Sony Corp. of America

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 420 (N.L.R.B. 1993)

420
313 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On May 4, 1993, Administrative Law Judge Eleanor MacDonald
issued the attached decision. The Respondent and the Union filed ex-
ceptions and a supporting brief. The Respondent and the Union filed
answering briefs, and the Union filed a reply brief to the Respond-
ent’s answering brief.
2 The Union’s request for oral argument is denied as the record
and briefs adequately present the issues and positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 All dates are 1990, unless otherwise indicated.
5 Grove Valve & Regulator Co., 262 NLRB 285, 303 (1982).
6 Consequently, many of the cases cited by the judge in support
of her decision are inapposite because they involve factors other than
the substantiality of the raffle prize(s), standing alone. In Houston
Chronicle Publishing Co., 293 NLRB 332 (1989), and National Gyp-
sum Co., 280 NLRB 1003 (1986), it was significant that employees
were required to identify themselves in the raffle. ‘‘This information
indicated to the Employer where additional campaign efforts should
be focused and afforded the potential for directing pressure at par-
ticular employees.’’ National Gypsum, supra. In E. A. Nord Co., 276
Sony Corporation of America and Local 888,
United Food and Commercial Workers Inter-
national Union, AFL–CIO
Sony Corporation of America and Elaine Green,
Petitioner and Local 888, United Food and
Commercial Workers International Union,
AFL–CIO. Cases 22–CA–16874, 22–CA–17023,
and 22–RD–984
November 24, 1993
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Issues presented for the National Labor Relations
Board’s review in this case are whether the administra-
tive law judge correctly found that the Respondent
committed unfair labor practices and engaged in objec-
tionable preelection conduct by: (1) photographing em-
ployees and using their photos in an antiunion video-
tape without the employees’ informed consent; (2) fail-
ing to furnish the Union with requested information
about the photographing of employees and, further,
giving a false and misleading response to the request;
and (3) conducting a raffle in connection with a decer-
tification election.1 The Board has considered the deci-
sion and the record2 in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,3 and conclusions, except with respect to the
election raffle issue, and to adopt the recommended
Order as modified.
The Union has represented a multifacility unit of the
Respondent’s office and clerical employees for several
years. On March 14 and 15, 1990,4 the Board con-
ducted a decertification election among employees in
that unit. The tally of ballots cast in the election was
44 votes for and 76 votes against the Union.
About a week prior to the election, the Respondent
announced that it would hold a raffle on March 16 for
all unit employees who voted in the election. Employ-
ees were notified that they would receive a raffle ticket
after they had voted. They would not be required to
sign anything and no list of voters would be kept. The
Respondent also expressly assured unit employees that
‘‘[p]articipation is voluntary, and is not dependent on
the outcome of the election or how you voted.’’
The Respondent offered two company products as
prizes in the raffle: a Sony 27-inch television set and
a Sony Discman. The suggested retail prices of the tel-
evision and Discman were $1299.95 and $279.95–
$299.95, respectively, but Sony employees could pur-
chase these items at corporate discount prices of $617
and $175.95. The Respondent regularly conducts raf-
fles of its products and other prizes. For example, ap-
proximately 800 employees participated in a 1989 raf-
fle which the Respondent held to encourage participa-
tion in a United Way campaign. Prizes for that raffle—
car stereos, televisions, audio items, and hotel stays—
cost the Respondent $1500.
The judge found that the value of the prizes offered
in the March 16 raffle was so substantial that it inter-
fered with the employees’ electoral choice. She further
found that the value of the television was itself so sub-
stantial that the Respondent violated Section 8(a)(1) of
the Act by offering it as a raffle prize. We disagree.
[T]he Board has held that the conduct of a raffle
does not constitute a per se basis for setting aside
the election. Rather, the Board will consider all of
the attendant circumstances in determining wheth-
er the raffle destroyed the laboratory conditions
necessary for assuring employees full freedom of
choice in selecting a bargaining representative.
Some of the factors considered relevant by the
Board have been whether the circumstances sur-
rounding the raffle provided the employer with
means of determining how and whether employ-
ees voted, whether participation was conditioned
upon how the employee voted in the election or
upon the result of the election, and whether the
prizes were so substantial as to either divert the
attention of the employees away from the election
and its purpose or as to inherently induce those
eligible to vote in the election to support the em-
ployer’s position.5
In the present case, the substantial value of the
prizes offered by the Respondent is the only factor
which even arguably coerced employees or interfered
with their electoral choice.6 In a number of cases, the
421SONY CORP. OF AMERICA
NLRB 1418 fn. 2 (1985), the fact that eligibility to participate in the
raffle was limited to nonstrikers was a factor.
7 Stride Rite Corp., 254 NLRB 297 (1981); American Induction
Heating Corp., 221 NLRB 180 (1975); Marathon LeTourneau, 208
NLRB 213 (1974).
Board has found that the raffle prize of a television,
without more, was not so substantial as to warrant set-
ting aside an election.7 Concededly, there may be situ-
ations where the value of a raffle prize could be the
sole basis for finding an election-related raffle unlaw-
ful or objectionable. However, the value of the tele-
vision offered by the Respondent here, even when con-
sidered in conjunction with the value of the Discman,
is not substantially greater than the value of the prizes
in the cases cited above. In addition, the Respondent’s
employees are accustomed to raffles offering similar or
greater prizes.
Cases in which the Board has found election-related
raffles unlawful or objectionable based primarily on
the substantial value of prizes offered have involved
prizes of a far greater magnitude than here. For in-
stance in Grove Valve, supra, the grand prize was a 7-
day trip to Hawaii for two, with spending money. In
Smith International, 242 NLRB 20 (1979), the grand
prize was an all-expense paid trip for two to Hawaii
or a family trip to Disneyland or Disneyworld. Accord-
ingly, in the absence of evidence that the value of the
election raffle prizes was so substantial as to coerce
employees or to interfere with their electoral choice,
we dismiss the complaint allegation that the raffle vio-
lated Section 8(a)(1) of the Act and we overrule relat-
ed allegations in the Union’s Objections 6 and 12.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sony
Corporation of America, Mahwah, Teaneck, Paramus,
Park Ridge, Woodcliff Lake, and Fort Lee, New Jer-
sey, and New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Photographing its employees and including
their photographs in antiunion videotapes without the
employees’ consent; refusing to furnish to the Union,
as the exclusive collective-bargaining representative of
an appropriate unit of the Respondent’s employees, re-
quested information which is relevant and necessary to
the Union’s representative duties, and giving a false
and misleading response to the Union’s request for in-
formation.’’
2. Redesignate the paragraph following paragraph
1(a) as paragraph 1(b).
3. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT photograph our employees and use
their photographs in an antiunion videotape without
obtaining their informed consent.
WE WILL NOT refuse to give Local 888, United Food
and Commercial Workers International Union, AFL–
CIO, as the exclusive collective-bargaining representa-
tive of an appropriate unit of our employees, requested
information which is relevant and necessary to the
Union’s representative duties, and WE WILL NOT give
a false and misleading response to the Union’s request
for information.
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 provide the Union with relevant and nec-
essary information when requested by the Union.
SONY CORPORATION OF AMERICA
Renee I. Crain, Esq., for the General Counsel.
G. Peter Clark, Esq. (Clifton, Budd & DeMaria), of New
York, New York, for the Respondent.
Larry Cary, Esq. (Vladeck, Waldman, Elias & Englehard,
P.C.), of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. The
charges here were filed on March 14 and May 17, 1990. Fol-
lowing the issuance of a complaint on July 30, 1990, and an
amended complaint on April 19, 1991, a report on objections
and an order consolidating cases was issued on May 31,
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Various motions were filed by Respondent after the issuance of
the complaint and before the holding of the instant hearing.
2 The Union withdrew Objections 7 and 14 at the hearing.
3 Certain errors in the transcript are noted and corrected. C.P. Exh.
2 (Union) is admitted into evidence.
4 Respondent also filed and served a memorandum concerning
copyright.
5 The employees often use the name SONAM to refer to Respond-
ent when speaking among themselves.
6 The photographs were taken on March 1 and 2, 1990, at all the
New Jersey locations. Very few employees work at Nine West 57th
Street in New York City.
7 The presentations, described below, were mostly conducted on
March 12, 1990.
8 Hayes had played a similar role in formulating campaign strategy
for the deauthorization election.
9 Respondent had a total of about 1800 employees in March 1990.
1991.1 This case was tried in Newark, New Jersey, on No-
vember 18, 19, and 20, 1991. The record was held open to
allow sufficient time for the parties to stipulate to the con-
tents of a videotape and to the wages earned by unit employ-
ees. The stipulation of the parties was received into evidence
and the record here was closed on June 25, 1992. Briefs
were submitted on July 31, 1992. The complaint alleges that
Respondent, in violation of Section 8(a)(1) and (5) of the
Act, photographed unit members for use in an antiunion
campaign videotape, refused to furnish the Union information
it requested concerning the reasons for photographing em-
ployees, and conducted a lottery which diverted attention
from the decertification election. Respondent denies that it
has violated the Act.
In the representation case, a decertification election was
conducted on March 14 and 15, 1990. Excluding the 14 chal-
lenged ballots, which are not sufficient in number to affect
the election results, the vote was 44 for and 76 votes against
union representation. The Union filed timely objections, and
Objections 1, 2, 3, 6, 8, 9, and 12 and are at issue here.2
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Charging Party, and the
Respondent, I make the following4
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with offices and places of busi-
ness in Mahwah, Teaneck, Paramus, Park Ridge, Woodcliff
Lake, and Fort Lee, New Jersey, and New York, New York,
is engaged in the manufacture, sale, and distribution of elec-
tronic products and related goods.5 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
It is undisputed that since at least 1978, the Union has
been the designated exclusive collective-bargaining represent-
ative of the employees in the following unit and has been
recognized as such by Respondent:
All full-time office and clerical employees employed by
the Respondent at its Mahwah, New Jersey; Teaneck,
New Jersey; Paramus, New Jersey; Park Ridge, New
Jersey; Woodcliff Lake, New Jersey; Fort Lee, New
Jersey; and 9 West 57th Street, New York, New York
locations, but excluding all private secretaries, sales-
men, executives, professional employees, managers,
confidential employees, guards and supervisors as de-
fined in the Act.
Respondent and the Union have been parties to a series of
collective-bargaining agreements, the latest of which expired
on March 31, 1990. In November 1989, a deauthorization
election pursuant to Section 9(e) was conducted among the
unit employees. The vote was 56 against and 49 for
deauthorizing the Union. About 14 unit employees did not
vote in this election.
The instant proceeding concerns events relating to the de-
certification election conducted on March 14 and 15, 1990.
There is no dispute that prior to the decertification election
Respondent arranged for still photographs of virtually all unit
employees to be taken while the employees were at their
work stations, seemingly engaged in their normal jobs during
working times.6 These photographs were subsequently used
in a videotape shown to the unit employees about 2 days
prior to the election.7 The videotape presented Respondent’s
position on the subject of union representation and it urged
unit employees to vote against representation in the upcom-
ing election.
2. Management arrangements for photographing
employees
Alfred Hayes, Respondent’s vice president for benefits and
administration, testified that he manages employee benefit
plans, keeps employee records, and conducts union relations.
Hayes has negotiated with Local 888 and administered the
contract for about 15 years. He testified that since the filing
of the deauthorization petition he has spent about 25 percent
of his worktime on union business. At the time of the events
material to the instant case, Hayes was Respondent’s chief
negotiator and was responsible for handling grievances, arbi-
trations, and problems relating to the Union.
Hayes stated that prior to the day of the decertification
election Respondent’s labor counsel, Alfred T. DeMaria, sug-
gested the creation of a campaign video for use by Sony.
DeMaria found a production house to make the film and he
had the idea to use photographs of unit employees in the
video. Hayes testified that he informed his superior, Vice
President and Human Resources Manager John Stern, and
that Stern approved. Hayes stated that it was important to use
the photographs of unit employees in the film.8 In addition
to showing the videotape to employees, Sony sent each unit
employee approximately 24 different leaflets setting forth the
position of the Company in favor of decertifying the Union.
Hayes testified that he instructed Dolores DePiero, the su-
pervisor of the human resource information center, to obtain
pictures of the approximately 140 unit employees.9 DePiero
was to attempt to obtain still photographs of just about all
the unit employees except for six who were employed in the
423SONY CORP. OF AMERICA
10 Hayes testified that he told DePiero not to force or coerce em-
ployees because the picture taking was voluntary. Further, he told
her to photograph the members of the Union as they normally would
be during the workday. Since Hayes was not present while the pho-
tographs were taken, he could not testify what actually took place
during the process.
New York City location. It was up to DePiero to tell the
photographer which employees were to be photographed. Ac-
cording to Hayes, DePiero and the photographer knew why
they were taking the still pictures. Hayes stated that he in-
structed DePiero that she and the photographer were not to
inform the unit employees what their pictures were actually
going to be used for; if questioned by employees, DePiero
and the photographer were supposed to make something
up.10
Hayes said that the Company did not tell unit employees
their pictures were being taken for use in a campaign video-
tape because ‘‘people in general are interested in seeing
themselves in a videotape, they enjoy it, they get a kick out
of it. And we wanted the surprise effect, obviously to keep
their attention to the video tape.’’ On cross-examination,
Hayes said he did not know if a union shop steward would
‘‘get a kick out of’’ seeing herself on an antiunion film, but
he insisted that generally people like to see themselves on
video. Hayes agreed that a shop steward would be surprised
to see her picture in the tape. I find Hayes’ testimony here
quite disingenuous: a person with 15 years’ experience in
dealing with the Union cannot reasonably maintain that he
could not know whether a union shop steward would likely
‘‘get a kick out of’’ seeing herself in an antiunion videotape
shown by the Company just prior to a vigorously fought de-
certification election. Eventually, Hayes conceded that if the
union shop stewards had been told what the pictures were
going to be used for they probably would have objected and
possibly they would have complained to the Union. Hayes
stated that he did not intend to tell the Union what use he
was going to make of the photographs. Further, although
Hayes maintained that in general people like to see them-
selves on a videotape, not one of the 140 unit employees of
Respondent testified here that she or he did in fact enjoy
being surprised by the inclusion of a photograph in the Com-
pany’s film. I find no basis in Hayes’ testimony for conclud-
ing that any unit employee enjoyed the experience.
Hayes testified that posing for photographs was not part of
the job duties of unit employees and that the Company had
no policy to discipline unit employees if they did not want
their pictures taken. After DePiero had gone around to Re-
spondent’s various facilities in New Jersey, she reported to
Hayes that one person, a unit employee named ‘‘Sandy,’’
had refused to have her picture taken.
Dolores DePiero testified that Hayes told her to escort the
still photographer around to the various buildings to take pic-
tures for inclusion in a campaign videotape for the election.
Hayes instructed her not to tell employees why the pictures
were being taken; ‘‘we wanted to see them surprised.’’ As
DePiero described the procedure she used, she and the pho-
tographer would enter a facility, present themselves to the
manager in charge and ask where the unit employees
worked. DePiero told the managers that pictures were being
taken for a video; she did not recall whether she told any
of the managers what the video was for, but if any of them
had asked, she would have informed them of the purpose. As
DePiero and the photographer went around to the clerical
work stations, according to DePiero, the photographer would
do most of the talking and say that they were taking some
pictures and ask if that were all right. DePiero stated that she
did not tell any employees that the reason they were being
photographed was for inclusion in a videotape and DePiero
said that it was not her intention to give them this informa-
tion if they asked.
On direct examination by counsel for Respondent, DePiero
seemed to remember quite a bit about the visits to the New
Jersey facilities on March 1 and 2, 1990, even though she
was testifying in November 1991. DePiero recalled that she
and the photographer first went to Mahwah, and that when
the photographer told unit employees that they were there to
take some pictures the employees said that was fine. If any
employees were reluctant, according to DePiero, it was be-
cause they needed lipstick or their hair was not combed.
DePiero testified that no employees objected and that the pic-
ture taking took about 15 minutes. DePiero then recalled that
at the Teaneck facility the process similarly took 15 minutes
and that no employees objected to being photographed. At
the Paramus facility, according to DePiero, employees ‘‘were
fine.’’ One employee asked why the pictures were being
taken, and DePiero answered that she was from headquarters
and had been asked to take some pictures. No employees ob-
jected during the 30 to 40 minutes that she and the photog-
rapher spent on the premises. DePiero denied that she told
any employee the photographer was merely using up film
and she denied that he asked any employee to pose in a cer-
tain fashion. In fact, DePiero stated, some employees asked
the photographer if they could pose. DePiero recalled the
visit to Park Ridge and that one employee asked what the
pictures were about. DePiero responded that she and the pho-
tographer were from headquarters. One employee did not
want her picture taken because her hair was messed up and
she was not photographed. DePiero testified that the session
at Park Ridge took about 45 minutes. She did not tell em-
ployees that the photographer was just using up his film. At
the Tice Building in Woodcliff Lake, DePiero recalled that
Shop Steward Nina Ciravolo asked why she and the photog-
rapher were there. DePiero replied that they had been sent
by headquarters. She did not tell the employees present that
the pictures would be included in a video because she want-
ed to surprise them. DePiero recalled that Ciravolo applied
some lipstick before her picture was taken and that she did
not object to being photographed. DePiero knew Ciravolo be-
cause the two had been in contact on prior occasions, and
DePiero knew that she was a union shop steward. According
to DePiero, she and the photographer spent 45 minutes at the
Tice Building.
On cross-examination, DePiero’s memory was less forth-
coming. When she was questioned about the specific basis
for her testimony on direct examination, DePiero testified
that she could not recall what each individual employee had
said to her nor what she had said to all the employees she
spoke to during the photography sessions held over the 2-day
period. DePiero stated that she could not recall how many
employees she spoke to at any facility and she could not re-
call the names of the employees. DePiero acknowledged that
the photographer took pictures of about 150 people and that
he took up to three pictures of each individual. She stated
that he never told anyone how to sit or stand although he
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Chormanski then called Union Representative Lonnie Warsaw
and told him that pictures were being taken at Paramus and Park
Ridge. Warsaw said that he would check it out.
12 At one point, Roberts heard Scelzo telling the photographer that
she did not want her picture taken.
may have told employees to smile, but she also stated that
she could not remember.
DePiero testified that it is normal to see photographers
walking around the company premises taking pictures of em-
ployees and that ‘‘different photographers are all over snap-
ping pictures.’’ When questioned about how many occasions
she had witnessed during her 7-year period of employment
with Respondent, DePiero recalled that she had seen an em-
ployee photographed for a company newspaper once or
twice. DePiero further testified that if an employee is photo-
graphed for inclusion in an employee newspaper, the em-
ployee will be told what use is going to be made of the like-
ness. DePiero stated that she has seen videotaping on com-
pany premises once or twice but she could not furnish any
details at all about those purported events.
Antonina Ciravolo, a data entry employee at the Tice
Building in Woodcliff Lake, has been a union shop steward
for 6 years. Ciravolo testified that in March 1990 she was
working at her desk when she became aware that a photog-
rapher, accompanied by DePiero, was taking pictures of em-
ployees in her area. Ciravolo asked why the photographs
were being taken; the two responded that they were just tak-
ing pictures in general. Ciravolo was not informed of the
purpose of the photography and she was not asked permis-
sion for her picture to be included in a videotape. Ciravolo
testified that she did not consent to have her photograph used
in the company video.
Gloria Chormanski, an accounts receivable bookkeeper at
Paramus, has been a union shop steward for 7 years. In early
March 1990, Chormanski testified that Supervisor Ginny
Granuzzo and a man and woman came into her workplace.
The supervisor said that they were there to take her picture.
When Chormanski asked how come, the supervisor said they
were taking pictures of the salesmen and that they had extra
film which they wanted to use up. Chormanski testified that
she never consented to have her likeness used in the com-
pany videotape. One of the three visitors told Chormanski to
sit at her desk and look like she was doing something.
Chormanski recalled that three pictures were taken of her.
She also recalled that employee Marie Scelzo did not want
to have her picture taken until a group photograph was sug-
gested; Scelzo agreed and Chormanski also posed in the
group. After this session, Chormanski received a telephone
call from unit employee Sandy Czyrnick in Park Ridge.
Czyrnick asked Chormanski whether she knew that unit em-
ployees were being photographed. Chormanski replied that
her own picture had been taken but that she did not realize
that the photography was limited to unit employees. Czyrnick
said that her supervisor had instructed employees to stay in
their department because pictures would be taken. Czyrnick,
not wanting to be photographed, had left. Chormanski testi-
fied that Czyrnick sounded upset and that she told her she
would telephone the union representative.11
Shirley Shears, an account service representative in Tea-
neck, has been a union shop steward for 6-1/2 years. Shears
recalled that she was sitting at her desk discussing some in-
formation with another employee when two supervisors ac-
companied by a photographer approached them. The three
said that they were doing a project and that they had some
film that they wanted to use. Shears told them that she did
not want to be photographed. Her own supervisor, Joan
Sheppard, said, ‘‘come on, let’s take a picture.’’ Shears con-
tinued to refuse and then her phone rang. When Shears fin-
ished her telephone conversation, the discussion about the
photographs continued and she finally gave in. Shears was
instructed to pick up a paper, speak to the other employee
as though they were discussing a matter, and then to smile.
One or two pictures were taken. Unit employee Debbie
Corbo was also present and she stated that she did not want
her picture taken. Corbo was urged by the three visitors to
have her picture taken. They said they just wanted to use up
the film; ‘‘they were working on a project and they had been
taking pictures of everyone, not just us.’’
Yolanda Roberts, an accounts receivable bookkeeper in
Paramus, is a member of the Union. Roberts testified that on
March 1 Ginny Granuzzo, the manager of her facility, came
into her office with a photographer. Granuzzo told Roberts
that they wanted to take her picture. When Roberts asked the
purpose of the picture, Granuzzo replied that they were using
up some film which they did not want to discard. Roberts
agreed to be photographed. The photographer told her to
hold her head down and look very busy and for the next pic-
ture he instructed her to look up at the camera and smile.
Then the photographer took a picture of Roberts in a group
with fellow employees Marie Scelzo and Gloria
Chormanski.12
3. Union inquiry concerning the photographing of
unit employees
James Lucas is the president of Local 888. Lucas testified
that in March 1990, he received a number of telephone calls
about the photographing at Sony. Shirley Shears called him
and stated that pictures were being taken at the workplace
and that she was getting calls about this. Shears was upset
because she did not know why the pictures were being taken.
Another shop steward called with a similar complaint. Fi-
nally, Business Agent Lonnie Warsaw called and said he had
received complaints that the Company was taking pictures of
all the union people. Lucas called Al Hayes. Hayes was not
available but he returned Lucas’ call about 1 hour later.
Lucas told Hayes that he was receiving telephone calls from
Sony employees about the pictures being taken at the various
locations. Lucas asked Hayes what was going on and what
he was trying to do. Hayes responded, ‘‘Jim, believe me, it’s
nothing, this is routine, it’s nothing to this.’’ Lucas replied
that he had never heard of picture taking before and that he
hoped Hayes was not playing games. Hayes again reassured
Lucas that it was only a routine matter. Lucas stated that he
does not usually speak directly to Hayes but that on this oc-
casion he called the latter because he was concerned about
the decertification effort and the Company’s tactics.
Hayes recalled speaking to Lucas. Hayes testified that
Lucas asked why the employees were being photographed
and he replied to Lucas that this was a routine function and
that employees were photographed for orientation, training,
company newspapers, and the like. Hayes testified that he
did not intend to tell the Union what the pictures were for
425SONY CORP. OF AMERICA
although he acknowledged that he was aware at the time that
it would be important for the Union to know the purpose of
photographing unit employees. Hayes denied that he lied to
Lucas, saying, ‘‘I don’t consider it lying to him, he had no
right to the information.’’ However, Hayes admitted that he
did not tell Lucas that he had no right to the information.
Hayes also admitted that he did not know of any bargaining
unit employees whose photographs have been used in train-
ing films or orientation films. When the Company uses em-
ployees’ pictures for commercial purposes, it obtains proper
releases from the employees. No bargaining unit employee
has signed such a release. Hayes testified that two Sony em-
ployees from a facility in Hawaii had speaking roles in the
video that was shown to unit employees. Those two employ-
ees were informed that their voices and likenesses would be
used in an antiunion video to be shown in New York and
New Jersey. Hayes also testified that when employees are
photographed for an employee newspaper or for training or
orientation films they are told the purpose of using their pic-
tures. According to Hayes, he did not provide the same infor-
mation to the unit employees who were photographed be-
cause he wanted to surprise them. Hayes volunteered that the
surprise effect on unit employees of seeing their pictures in
the video 2 days before the election was considered in the
discussions with DePiero and Attorney DeMaria.
4. Presentation of the video in meetings with
unit employees
A few days before the decertification election, Respondent
showed the videotape to its employees in meetings held at
their work locations during working time. A memorandum
instructing unit employees to attend the meetings had been
distributed to each employee; the memo set forth the time
and place of the meetings.
The videotape runs for about 30 minutes; it consists of
about 27 minutes of spoken material and about 3 minutes of
employee photographs accompanied by a song or by music.
During the 27 minutes of spoken material, still pictures of
unit employees are shown at various points.
The narration begins by stating in detail Sony’s argument
that employees no longer need unions because they have the
protection of various laws and that in consequence union
membership is declining. According to the narration, many
companies such as Respondent are treating their employees
better than before, and this is a reason for employees to vote
the Union out. While refraining from making promises of in-
creased benefits if the Union is decertified, the narration
promises that ‘‘you will not lose’’ if the Union is decertified.
The narration continues for several paragraphs in a discus-
sion of the asserted misrepresentations and ‘‘just plain lies’’
being spread by the Union ‘‘to scare you into continuing to
pay dues.’’ Seeking to counter the fears of employees, the
narration states that the Company will not adversely change
their conditions and will not ‘‘punish’’ them ‘‘when they de-
cide they no longer want to belong to a union, as the union
and some of the shop stewards want you to believe.’’ The
videotape then presents two company employees from Hono-
lulu who discuss the fact that they decertified their union and
that, since their benefits remained the same, ‘‘we are so
happy that we got out of the union.’’ Summing up this point,
the narration continues, ‘‘The bottom line is this: even
though the union and its supporters are tying to mislead you,
a union contract is no guarantee of better things.’’ The vid-
eotape continues with the Company’s assertion that dues are
expensive. Then the film examines in detail the benefits en-
joyed under the collective-bargaining agreement and com-
pares them to benefits of nonunit employees; in certain areas
bargaining unit employees have gotten less and the narration
then rebuts what ‘‘your union officials are trying to tell
you.’’ The tape goes on to counter purported lies told the
unit employees about their pensions ‘‘by people with a vest-
ed interest in keeping the union in, for themselves.’’ The
video then repeats many of the points made before, referring
repeatedly to the asserted misrepresentations made by the
‘‘union’’ and ‘‘the union stewards.’’ Continuing, the narra-
tion urges employees to vote:
Since the union stewards and union supporters will
be getting out the union vote, not voting will be like
voting to keep the union. So, be sure to vote.’’
And to add a little incentive to everyone to vote, the
company is having a drawing for all those who do vote.
First prize is a new TV made by the best TV maker
in the world. Second prize is a CD player made by the
best CD player maker in the world. Again, you don’t
have to sign anything. You just have to vote. Besides
the TV or the CD player, you’ve got a lot of reasons
to vote and a lot of reasons to vote no.
The videotape goes on to exhort the employees to work
as a team and tells them to choose a nonunion situation char-
acterized by ‘‘trust and honest communications.’’ It asks the
employees to consider whether they want to be represented
by a union that ‘‘spread lies.’’ The narration concludes short-
ly thereafter by saying, ‘‘Vote no.’’
Following the narrated portion of the videotape, a portion
lasting about 3 minutes shows approximately 85 still photo-
graphs, most of which are of bargaining unit employees. For
the first 90 seconds of this portion, there is music and a song
and 32 photographs are shown. For the last 90 seconds, there
is only music and 53 photographs are shown. Among the
pictures of bargaining unit employees are those of Union
Shop Stewards Chormanski, Ciravolo, and Shears, and of
unit employee Roberts. Two pictures of Roberts and
Chormanski are shown. The parties agree that nonunit em-
ployees are shown including one temporary employee, one
secretary, and two supervisors. The lyrics of the song express
the idea that although Sony employees have a lot of work
ahead they have a good job and ‘‘now we’ve got a guaran-
tee, That we won’t lose if we decertify, and that’s enough
for me.’’
Hayes testified that he was present when the videotape
was shown to unit employees at Paramus. He offered no sub-
stantive testimony about this occurrence.
When cross-examined about the matter, DePiero stated that
Hayes showed her the videotape before it was presented to
the unit employees. However, she could not recall anything
about her conversation with Hayes even though she was to
present the video to the employees soon after viewing it with
him. In contrast, when questioned on direct by counsel for
the Respondent, DePiero professed to recall many details
about the meetings where she showed the tape to unit em-
ployees. DePiero testified that at the Tice Building the em-
ployees were excited about seeing themselves on the video
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 This guarantee is signed by the president and executive vice
president of Respondent and it provides: ‘‘On behalf of Sony cor-
poration of America, we hereby guarantee employees covered by the
Local 888 contract that the Company will not reduce the value of
their salary and fringe benefit package as a result of decertifying the
union.’’
14 As a shop steward, Shears is responsible for the Mahwah loca-
tion.
15 The prizes were further identified as a Black KV27HSR10 TV
and a D2K Discman.
16 In 1986, the Christmas raffle prizes included six hand-held tele-
visions, 12 13-inch televisions, a stereo, and a trip to the Super
Bowl. The 1987 raffle was similar.
and no one expressed any dissatisfaction. The employees
were very surprised when they saw their photographs in the
film. DePiero stated that Union Shop Steward Ciravolo was
not upset to see herself in the videotape; she was happy and
thrilled. When cross-examined, however, DePiero could not
recall whether she said anything to the employees before the
video was shown, she did not know if she was the first one
to speak after the film was completed and she did not know
if there were questions. However, DePiero volunteered that
people were laughing while the video was being run and that
the meeting was very light and jovial. After being prompted
to recall that she answered employees’ questions about their
continued rights to their pensions, sick leave, and vacations
if the Union lost and asked whether she answered in a joking
manner, DePiero indignantly stated that as a member of the
human resources department she answered these questions
seriously.
Ciravolo testified that at the meeting where the video tape
was shown to unit employees, the Company gave out certifi-
cates guaranteeing that employees would be granted the same
benefits if they decertified the Union as they had enjoyed
under the collective-bargaining agreement.13 Ciravolo stated
that as a shop steward she was embarrassed to see her own
photograph used in the Company’s video. After the film,
there were a few questions and answers but Ciravolo recalled
that she ran out of the room and back to her desk because
she was so embarrassed to see her picture.
Chormanski saw the videotape at Paramus a few days be-
fore the election. Management showed the film and after it
was completed conducted a question-and-answer session.
Chormanski saw three pictures of herself in the video. As a
union shop steward she was surprised that her likeness had
been used in an antiunion film and she did not make any
statements nor ask question at the meeting because she was
nervous and embarrassed. She had not been told that her pic-
ture would be used in an antiunion video. All the employees
were talking about the video and three or four of them asked
her what she was doing up there as a shop steward.
Chormanski responded, ‘‘I was just as shocked as you are
because I didn’t know . . . they were going to use it for
that.’’ Chormanski could not tell her fellow employees what
she was doing in the video.
Roberts also saw the videotape at Paramus. During the
question-and-answer session, management distributed certifi-
cates stating that employee benefits would not change if the
Union were decertified. Roberts stated that two pictures of
her were used in the videotape: the photograph in which
Roberts had been instructed to pose with her head down was
shown first and then the photograph in which Roberts had
been instructed to look up and smile was shown when the
narrator of the film said that employees would be happy
without a Union. Roberts testified that she was shocked to
see her picture in the video. Roberts supports the Union and
people were asking Roberts why her picture was used in the
video. According to Roberts, the message conveyed by the
video was that employees were happy that the Union was
being decertified. Roberts did not speak out in the meeting
to ask why her picture had been used because she was afraid
to ask that question.
Shears saw the video in Teaneck. After the meeting, she
received a call from employee Denise Wirchansky in
Mahwah.14 Wirchansky said the employees had been discuss-
ing the film and they wanted to know why Shears partici-
pated in a film that seemed to be antiunion when Shears was
a shop steward. Shears replied that she had not been told that
her photograph would be used for a film.
5. The election raffle
Respondent conducted a raffle in connection with the de-
certification election. Employees were informed of the raffle
by a one-page announcement headed ‘‘TO ALL OFFICE
AND CLERICAL EMPLOYEES, MEMBERS OF LOCAL
888.’’ In bold type, another heading stated, ‘‘A Sony Black
27’’ TV and a Discman Will Be Raffled Off On Friday,
March 16.’’15 The text of the flyer stated that after the em-
ployees voted they could obtain a raffle ticket from someone
sitting in the reception area at each office. Employees would
not be required to sign anything to be eligible for the raffle
and no list of voters would be kept. ‘‘Employees who voted
in the election, who present [a winning ticket] will be the
winners. Participation is voluntary, and is not dependent on
the outcome of the election or how you voted.’’ The an-
nouncement did not explain how the Company would be able
to prevent unit employees who did not vote from obtaining
raffle tickets in the absence of lists of voters.
This announcement was mailed directly to the homes of
unit employees a week before the election; it was also posted
on workplace bulletin boards.
Several witnesses testified that Respondent regularly con-
ducts raffles of various Sony brand products and other prizes
for its employees. At Christmas, a party is held for all em-
ployees, including supervisors and managers, and all those
who attend are automatically entered in a raffle which offers
prizes ranging from televisions and video cameras to audio
tapes.16 About 1300 to 1400 employees participate in the
Christmas raffles. There is a summer picnic each year; any
employee who attends is automatically entered in a raffle for
various prizes. Whenever the Company participates in a
United Way campaign, it encourages its employees to con-
tribute by entering any employee who makes a donation in
a raffle. The cost of the raffled items to Respondent in 1989
was $1500; the prizes included car stereos, televisions, hi-fi
items, and hotel stays. About 800 employees participated.
Hayes testified that the Company conducted the election
raffle because it wanted employees to participate in the elec-
tion. Hayes recalled that in the deauthorization election, the
Company campaigned vigorously; management was aware
that the outcome depended on getting the majority of unit
members to vote to deauthorize. Hayes stated that in the ear-
lier election if an employee did not vote that amounted to
427SONY CORP. OF AMERICA
17 At Park Ridge, the Board agent responded that this was no time
to ask us these questions; the employees were there to vote.
a vote against deauthorization. In contrast, Hayes knew that
in the instant decertification election, the outcome depended
only on the number of employees actually voting. Hayes did
not explain why the Company did not use a raffle to get out
the vote in the earlier deauthorization election, yet it used
one in the instant decertification election.
All of Respondent’s employees have access to a number
of company stores where they can purchase both Sony brand
and non-Sony products at discount. In addition, employees
can order available products by mail. The price charged to
employees is about 90 percent of the price Sony charges its
dealers for the same items. Respondent’s employees can de-
termine the suggested retail price and the discounted cost to
them of any item they wish to purchase by using computer
terminals to which they have access; the computer will print
out the list price of each item and the discounted employee
price. The January 1, 1990 Dealer Price List published by
Sony to its dealers stated that the ‘‘Suggested Retail’’ price
of the TV was $1299.95 and that the ‘‘Dealer Cost’’ was
$758. The ‘‘Suggested Retail Price Range’’ of the Discman
was ‘‘$279.95 to $299.95 and the ‘‘Dealer Cost’’ was
$199.95. The computer information available to employees
showed that the list price for the Discman was $279.95 and
that the price to them was $175.95. The record shows that
the television was available to employees at a cost of $617.
The unit employees eligible to enter the raffle are eligible
to work overtime at a rate of 1-1/2 times straight time for
all hours worked in excess of 7-1/2 hours each day. The par-
ties agree that the average (mean) weekly pay for these em-
ployees as of August 1990 was $385.43, which represents an
average (mean) hourly rate of $10.28.
Employee Yolanda Roberts testified that as she was on her
way to vote in the decertification election, she passed a
woman handing out raffle tickets in the hallway. When Rob-
erts and other employees asked about a raffle ticket, the
woman responded that one had to vote in order to get a tick-
et. Shop Steward Ciravolo testified that she was an observer
during the election both at Woodcliff Lake and at Park
Ridge. At each location, about one-half of the voters who
came up to vote asked out loud where they could get the raf-
fle tickets for the television set.17 Shop Steward Chormanski
testified that she was an observer during the election at
Paramus. According to Chormanski, a number of employees
voting that day asked the Board agent where they would get
their tickets for the raffle.
B. Discussion and Conclusions
1. Credibility of the witnesses
As discussed above, I found certain portions of Hayes’ tes-
timony evasive and disingenuous. I observed that Hayes was
uncooperative on cross-examination. Although Hayes is an
expert in labor relations and has dealt with the Union for 15
years, he professed himself unable to answer whether a union
shop steward would enjoy the surprise of seeing herself on
an antiunion videotape. Further, Hayes conceded that when
Union President Lucas telephoned and asked why pictures of
bargaining unit employees were being taken, he told Lucas
that it was routine and mentioned orientation and training
materials and company newspapers. In fact, the record shows
that the photography was anything but routine. Company
practice in the past had been to inform employees of the pur-
pose for taking their pictures, and Hayes stated that to his
knowledge no unit employees had been photographed in the
past for orientation or training purposes. Hayes acknowl-
edged that the true facts would have been important to the
Union at the time; he said he did not consider that he was
lying to Lucas because in his opinion Lucas had no right to
the information. I observed carefully Hayes’ demeanor as he
was being questioned on this matter and I formed the impres-
sion that Hayes arrogates to himself the decision whether to
tell the truth or not depending on how the particular cir-
cumstances appear to Hayes. Further, Hayes told DePiero
and the photographer to conceal the truth from the unit em-
ployees if they wished to know why their pictures were
being taken. Hayes conceded that he told the two to ‘‘make
something up.’’ I observed that Hayes showed no unease nor
compunction about admitting that he instructed DePiero to
lie to about 140 of her fellow workers; he seemed not to un-
derstand why such a fuss was being made about whether the
truth was told to his subordinates. Based on my observation
of Hayes and on my analysis of his testimony, I have deter-
mined that Hayes is not a credible witness. I am particularly
mindful that Hayes is aware of the importance others place
on the telling of lies: the videotape made with his assistance
and which he personally presented to employees at the var-
ious meetings emphasizes repeatedly Respondent’s position
that the Union and its shop stewards were telling just plain
lies to the employees. Thus, I conclude that Hayes’ use of
untruthfulness is deliberate. I shall not rely on Hayes’ testi-
mony where it is contradicted by other evidence.
As discussed above, I found that DePiero had a selective
memory. She recalled very well the answers to questions
posed by counsel for Respondent but she was unable to re-
call much about contemporaneous events inquired into by
counsel for the General Counsel and counsel for the Charg-
ing Party. Thus, she was uncooperative and not forthright on
cross-examination. Further, DePiero testified in generalities
that she was unable to back up with specific facts. She stated
that photographers were often all over company premises
snapping pictures, but she could recall only one or possibly
two actual instances in the last 7 years. DePiero professed
to recall that employees were thrilled and excited to see
themselves in the video, but when cross-examined, DePiero
could not recall what she said before the video was shown
and what happened after the video was over. It was only
when prompted by leading questions that DePiero began to
recall some details that opposing counsel wished to inquire
about. Because DePiero seemed willing to recall only those
matters that assisted Respondent’s view of the case, I find
that she was not a reliable witness. Further, I have consid-
ered the fact that DePiero willingly spent 2 days directing the
photographing of 140 of her fellow workers, some of whom
she knew personally, while assiduously hiding from them the
purpose of the picture taking and making something up when
they asked what the pictures were for. This willingness to lie
repeatedly to accomplish Respondent’s goals further per-
suades me that DePiero cannot be considered a credible wit-
ness. I shall not rely on DePiero’s testimony where it is con-
tradicted by other evidence.
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 My observation of the unit employees who testified in this pro-
ceeding was that they were all reticent and reserved; none of these
ladies was equipped for rough and tumble argument nor to respond
indignantly when tricked by her employer.
19 Hayes’ testimony establishes that it was important for the video
to feature as many pictures of the actual unit employees as possible
and that the Company wanted to use the element of surprise 2 days
before the election. Thus, Hayes’ testimony establishes that Re-
spondent was well aware that the likely result of employees’ pictures
being shown as part of an antiunion video was to silence to some
extent the voices of those who would urge their fellow employees
to vote in favor of the Union.
I found all the other witnesses here to be forthright and
cooperative and I formed the impression while observing
them that they tried to recall the facts and provide answers
to the best of their abilities. I shall credit the testimony of
these witnesses.
2. Photographing the employees
The General Counsel contends that photographing employ-
ees at their work stations without their permission for the
purpose of incorporating the pictures in the Company’s
antiunion videotape infringed on employee Section 7 rights
in two ways; by expropriating the images of prounion em-
ployees and creating the illusion that they were antiunion and
by denying the employees the right to have other employees
know about their support of the Union.
Respondent argues that employees were not coerced into
having their pictures taken and that they all did so volun-
tarily. I reject this contention. Although a number of employ-
ees asked why they were being photographed, it is admitted
that not one of the 140 unit employees was told the true pur-
pose for taking the photographs and that none of them knew
the pictures would be used in a company video about the de-
certification election. It is axiomatic that there can be no
consent if there is not an informed consent.
It is not disputed that the videotape was an antiunion pres-
entation; the tape delivered the message that employees
would be better off without the Union; it asserted repeatedly
that the Union was telling unit employees lies to convince
them to vote against decertification; and it contained an inter-
view with two Sony employees in Hawaii who said how
happy they were now that they had decertified their former
union in that location.
Thus, without their consent, unit employees had their pic-
tures used to give seeming approval to the Company’s
antiunion message. The employees were not asked whether
they wished to subscribe to the antiunion message and were
presented with a fait accompli after the video was shown to
them and to the other unit employees. In essence, the tape
was the visual equivalent of placing the employees’ names
on a written antiunion document and circulating it to all the
other unit members. The unit employees here had the right
to assist and support the Union if they so desired; Respond-
ent interfered with that right by using their pictures without
their consent to convey an antiunion message.
By concealing the true purpose of taking pictures, the em-
ployees’ likenesses were used without their consent in a vid-
eotape which made it appear that they did not support the
Union. Those employees who did in fact support the Union
were thus coerced into seeming to agree to Respondent’s
antiunion message as conveyed in the videotape. The element
of surprise, repeated over and over in Hayes’ and DePiero’s
testimony, was key to Respondent’s strategy of making it ap-
pear that even shop stewards did not support the Union and
favored decertification. By using their likenesses, Respondent
deprived union supporters of their freedom to disagree.
Inherent in the employees’ right to support the Union is
the right to inform other employees of their support and to
seek to persuade them to join in supporting the Union. Both
Hayes and DePiero testified in connection with the film that
the element of surprise was very important; Hayes testified
that when he and DeMaria and DePiero discussed the video
they recognized the importance of surprising the unit em-
ployees with their photographs in the videotape. Although
Hayes and DePiero said the reason for the surprise was to
keep the employees’ attention riveted to the video, there is
another likely and reasonably foreseeable result of surprising
the employees with their photographs in the film. Those em-
ployees who might wish to speak out in support of the Union
would be hesitant to do so after seeing their pictures in an
antiunion presentation. First, the surprise showing of a photo-
graph to contradict the known views of the union supporters
whose pictures were used would tend to show them and all
the other employees that they were powerless to express their
beliefs in the face of the Company’s wishes; the ability of
the Company to use their pictures would reinforce the feeling
of futility in speaking out. Second, the reasonably expected
reaction of a union adherent after being surprised by her own
photograph appearing in an antiunion film 2 days before the
election would be embarrassment, confusion, and an inability
to explain how she came to be used in that way. This confu-
sion would reasonably tend to inhibit the union supporter
from speaking in any of the meetings where the video was
shown. An unauthorized use of one’s own likeness to combat
one’s beliefs can reasonably be expected to lead the victim
of this sort of trick to feel unable to respond immediately;
the humiliation of being victimized and used in this way
would silence all but the most hardy and outspoken.18 Third,
the emphasis in the film on the supposed ‘‘lies’’ being told
by the Union and the shop stewards accompanied by pictures
of these very same shop stewards would reasonably tend to
silence them in the last 2 days of the campaign. In fact, the
testimony shows that this is exactly what happened.19
Ciravolo said that as a shop steward she was so embar-
rassed to see her own photograph used in the Company’s
video that during the question-and-answer period after the
film was shown she ran out of the room and back to her
desk. Chormanski testified that as a shop steward she was
surprised at the use made of her picture and as a result she
was too nervous and embarrassed to speak at the preelection
meeting. Chormanski did not know what to say to the several
fellow employees who asked what, as a shop steward, she
was doing in the film; she could only respond that she was
just as shocked as they were. Union supporter Roberts was
shocked to see her photograph in the video; she did not
speak out in the meeting because she was afraid to ask why
her picture had been used. The testimony of Roberts and
Shop Stewards Shears and Chormanski establishes that other
employees talked about the presence of known union sup-
porters among those whose photographs were used in the
antiunion video and that they wanted to know why the pic-
tures were there.
429SONY CORP. OF AMERICA
20 See also Fermont, 286 NLRB 920, 921 (1987).
21 Hayes did not testify what factors he used to reach the conclu-
sion that the Union had no right to the information.
22 There is no evidence that any employee was told, in plain
English, that the pictures which were about to be taken were purely
a matter of choice. Indeed, the evidence shows that employees were
cajoled into posing for the photographer.
The Supreme Court has recognized the power of the ‘‘out-
ward manifestation of support’’ on employees in a
preelection campaign, and the Court has disapproved of a
method whereby the union bought employee signatures to
‘‘paint a false portrait of employee support during a cam-
paign.’’ NLRB v. Savair Mfg. Co., 414 U.S. 270, 277 (1973).
In the instant case, the Company did not buy employee sig-
natures but it tricked employees into posing for pictures to
incorporate into its antiunion film; Respondent thereby was
enabled to paint a false picture of employee desires to decer-
tify the Union. This trickery coerced prounion employees
into giving an outward manifestation of support to the decer-
tification effort and interfered with their right to support the
Union.20 Further, including the employees’ pictures in an
antiunion video where they seemed to support the antiunion
words of the film and the final jingle would impermissibly
place any employee who wished to disassociate herself from
the video message in the position of having to declare herself
as to union sympathies. Lyon, Inc., 145 NLRB 54, 76 (1963),
enfd. 341 F.2d 301 (5th Cir. 1965).
Respondent urges that the employee pictures in the video-
tape do not perform the function of supporting the film’s
antiunion message, but are for the purpose of tying the video
to the workplace. Having seen the videotape, I find that a
viewer could reasonably conclude that the laughing and smil-
ing photographs of unit employees whose faces appear dur-
ing the film, and especially during the final antiunion jingle,
were meant to show support for the antiunion message of the
film as a whole. A viewer could reasonably receive the mes-
sage that unit employees were laughing and smiling because
they were getting rid of the Union as suggested by the entire
film and by the words of the song.
Nu Skin International, 307 NLRB 223 (1992), cited by
Respondent, does not support Respondent’s position. In Nu
Skin, the Board found that ‘‘the Union’s photographing of
employees enjoying a voluntarily attended [Union] picnic’’
was not objectionable conduct: the pictures would not rea-
sonably lead to fears of retaliation, and employees who asked
why photographs were being taken were told that the photo-
graphs might be published and that they were to help remem-
ber the day. These explanations were found by the Board to
be true.
I find that Respondent violated Section 8(a) (1) of the Act
when it used unit employees’ photographs without their con-
sent in its antiunion videotape shown 2 days before the de-
certification election.
3. Denial of information to the Union
The General Counsel contends that the information re-
quested by Lucas was necessary for and relevant to the
Union’s performance of its function as the representative of
the employees as that information related to terms and condi-
tions of employment. The General Counsel urges that
photographing employees at their work stations affects the
employees’ terms and conditions of employment and that the
Union has a general statutory right to learn the reason for
photographing the employees. The General Counsel main-
tains that the employees were photographed without their in-
formed consent during working hours and after they were in-
structed to pose as if they were engaged in the performance
of their normal duties. The General Counsel points out that
the purpose of the picturetaking was ultimately to erode the
status of the Union. When the Union received complaints
from the employees that they were being photographed and
the Union sought information as to the purpose of taking the
pictures, it was not given a true answer and it could not
make an informed decision whether the collective-bargaining
agreement had been violated and whether it ought to invoke
the grievance procedure. Thus, the General Counsel con-
cludes that the Union was forced to engage in the ‘‘blind
man’s bluff’’ described in footnote 8 of the the Supreme
Court’s decision in NLRB v. Acme Industrial Co., 385 U.S.
432, 438 (1967).
In Acme, the Court held that information requested by a
union in order to decide whether to invoke the grievance pro-
cedure of a collective-bargaining agreement must meet only
a liberal discovery-type standard of relevancy; the informa-
tion must be turned over if there is a probability that the de-
sired information is relevant and ‘‘would be of use to the
union in carrying out its statutory duties and responsibil-
ities.’’ This standard does not require any finding at all about
the merits of the union’s claims under the contract. Acme,
supra, 385 U.S. at 437.
In the instant case, the facts show that Union President
Lucas received complaints and inquiries about the
photographing of unit employees. He called Hayes to ask
what was going on. Hayes offered reassurances that it was
nothing and that it was routine. Lucas said he hoped Hayes
was not playing games. Clearly, Lucas was asking for infor-
mation which might have helped him to register a complaint
on behalf of the employees he represented; he might even
have filed a grievance under the collective-bargaining agree-
ment. When Hayes decided not to tell Lucas the truth about
the reason for photographing unit employees, he took it on
himself to do what the Supreme Court has forbidden in
Acme; although he conceded that it would have been impor-
tant to the Union to know what the photographs were for,
he decided that the Union had no right to the information.21
I find that Respondent thereby denied the Union information
that was probably relevant and would have been of use to
the Union in carrying out its duties.
Respondent urges that the photographing of employees is
not a mandatory subject of bargaining and for that reason the
Company was under no duty to comply with the Union’s re-
quest for information. I find that the facts show that some
employees were told to stay in their work areas because a
photographer was coming, some employees were told to pose
in certain ways and some employees were told to look as
though they were performing their daily work. Although em-
ployees were not threatened with discipline if they failed to
have their pictures taken, none of them were told the truth
about the purpose of the photography and all of them were
faced with one or two supervisors who urged them to have
pictures taken.22 I conclude that, in the circumstances, the
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 As shown in the videotape, the pictures of the unit employees
are apparently at their work stations, seemingly engaged in their
daily tasks: many of them seem to be typing at a computer, talking
on the telephone, perusing files, and consulting with their coworkers.
24 These cases may be compared with others where the Board did
not set aside the election on the basis of election raffles: In Holly-
employees would reasonably believe that it was part of their
obligation to the Company to submit to the photography.23
The Board has recently considered whether the filming of
employees is a mandatory subject of bargaining in E. I. du
Pont & Co., 301 NLRB 155 (1991). In that case, the Board
held that the Employer need not bargain with the union over
the company’s request that a few employees give a filmed
interview concerning newly promulgated management prin-
ciples for inclusion in a videotape. The E. I. du Pont case
is distinguishable in several respects. That case was decided
by Administrative Law Judge Zankel on the basis that the
videotaping was analogous to an attitude survey and con-
stituted direct dealing with the employees, and that the cri-
teria for a mandatory subject of bargaining under Ford Motor
Co. v. NLRB, 441 U.S. 488 (1979), had been met. The Board
found contrary to the judge. The Board held that the em-
ployer had not engaged in direct dealing because there was
no attempt to undermine the union. The Board found that the
videotaping was not a mandatory subject; the employees un-
derstood what the taping was for and that they could decline
to participate, and the taping was not part of their regular job
duties. On this basis, the Board concluded that the matter
was not of ‘‘deep concern’’ to the employees and was not
‘‘plainly germane’’ to the working environment under the
test of Ford Motor Co. Further, the Board found that the
videotaping was within the sphere of managerial prerogative
because its purpose was to inform both unit and nonunit em-
ployees of newly formed management principles without any
attempt to erode the status of the union nor to change an im-
portant facet of the employees’ daily lives. A reading of the
Board’s decision makes it clear that both the element of vol-
untariness and the lack of any motive to erode the status of
the union as the exclusive representative were important to
the Board’s ultimate conclusions.
In the instant case, unlike the facts in E. I. du Pont, there
was no voluntary participation by the unit employees because
they were deceived into having their pictures taken by the
excuse that the photographer merely wanted to use up his
film or by a vague reference to ‘‘headquarters,’’ and the em-
ployees were not told that their likenesses would be used in
a videotape. The purpose of the deception and of the photog-
raphy was to surprise the unit employees with their own pic-
tures in an antiunion film to be shown 2 days before the de-
certification election. The aim of the film was to aid in de-
certifying the Union and to change an important part of the
unit employees’ working lives. The fact that the employee’s
photographs were to be used in furtherance of the Compa-
ny’s effort to remove the employees’ union representative
makes the picture taking of ‘‘deep concern’’ to the employ-
ees and ‘‘plainly germane’’ to the working environment as
contemplated by the decision in Ford Motor Co., supra at
498. Few circumstances can have as much effect on the
working environment of employees as the presence or ab-
sence of union representation. Further, it requires only an ex-
ercise of common sense to recognize that the use of a per-
son’s likeness is necessarily of ‘‘deep concern’’ to the indi-
vidual. Here, almost all the members of the unit were photo-
graphed, making the issue one that affected nearly every em-
ployee represented by the Union. Finally, the decision to take
the employees’ pictures and use them in a video was not a
managerial decision at the core of entrepreneurial control; as
the Ford Motor Company is not in the business of selling
food to its employees neither is Sony in the business of
photographing its employees for use in videotapes. Ford
Motor Co., supra at 498.
In the instant case, if Hayes had replied truthfully to
Lucas’ inquiry about what was going on, Hayes might have
requested to bargain about the taking of photographs for in-
clusion in the videotape. However, Lucas was denied the
proper information and thus had no opportunity to request
bargaining about the subject. Of course, it is a violation of
the duty to bargain in good faith to give a false and mislead-
ing answer in response to a union’s information request.
Assn. of D.C. Liquor Wholesalers, 300 NLRB 224 (1990).
I find that Respondent violated Section 8(a)(5) and (1) of
the Act by failing to provide the requested information con-
cerning the photographing of employees and by giving false
and misleading information to the Union.
4. The election day raffle
The General Counsel contends that the value of the prizes
was so substantial as to divert the attention of the employees
away from the election and its purpose. The General Counsel
further contends that the value of the prizes was so substan-
tial as to inherently induce voters to vote in support of the
Company’s position.
Although company raffles are permitted in the context of
Board elections, the Board has held in particular cases that
raffles may interfere with an election and may also interfere
with employees’ Section 7 rights.
For example, in Smith International, 242 NLRB 20 (1979),
the Board sustained an objection to the election based on the
conduct of an election day raffle by the employer. Out of
856 eligible voters, 804 had cast ballots. The Board found
that, id. at 20–21:
[T]he size of the leading prize [an all-expense paid trip
to Hawaii or Disneyland or Disneyworld] is so great as
to divert the attention of employees away from the elec-
tion and its purpose. In addition, such a substantial
prize inherently induces those eligible to vote in the
election to support the Employer’s position.
In E. A. Nord Co., 276 NLRB 1418 fn. 2 (1985), the
Board found that in a unit where 1172 employees voted, five
prizes of $252 ‘‘were so substantial that the raffle constitutes
objectionable conduct.’’ In National Gypsum Co., 280 NLRB
1003 (1986), the Board set aside an election conducted in a
unit of 88 voters, where six raffles were held with prizes of
$261 in cash and $270 television sets. Although the Board
relied in part on the fact that the employer required raffle
participants to identify themselves on their entry forms, it
also relied on the fact that the prizes ‘‘were of substantial
value.’’ In Houston Chronicle Publishing Co., 293 NLRB
332 (1989), the Board found that a $250 prize was substan-
tial in a unit where 176 employees voted.24
431SONY CORP. OF AMERICA
wood Plastics, 177 NLRB 678, 681 (1969), the employees had a 1
out of 95 chance of winning an $80 bag of groceries; in Buzza-
Cardozo, 177 NLRB 589 (1969), 350 voters had a chance to win
groceries worth $84; and in Thrift Drug Co., 217 NLRB 1094
(1975), prizes ranged from $10 to $40.
25 Marathon Le Tourneau Co., 208 NLRB 213, 223–224 (1974),
does not address to any length the issue whether the raffle of a tele-
vision is substantial because the conduct of the raffle was otherwise
found to be objectionable.
In contrast to National Gypsum, supra, where as a prize
a television set was not permitted, some earlier cases appar-
ently approve the raffle of televisions. In Elgin Butler Brick
Co., 147 NLRB 1625, 1627 (1964), the Board declined to set
aside the election where the employer had conducted a raffle
of a television set for all those who voted. The decision does
not provide any glimpse into the Board’s rationale. Similarly,
in Tunica Mfg. Co., 182 NLRB 729, 743 (1970), the raffle
of a television set was held to be not objectionable on the
basis of precedent but with no discussion of the rationale, al-
though other objectionable conduct and certain unfair labor
practices were found sufficient to interfere with employee
rights under the Act.25
I conclude that although earlier cases hold that the raffle
of a television set was not of itself the basis for sustaining
an objection, more recently the Board has engaged in a case-
by-case analysis to determine whether any raffle prizes, in-
cluding television sets, constitute objectionable conduct.
In the instant case, the record shows that the average
(mean) wage of employees in the unit was $385 per week.
The list price of the 27-inch television set was $1299.99 and
the employee discount price was $617. The discman was list-
ed at $279.95 and employees could purchase it for $175.95.
In prior cases, the Board has looked to the price of the
‘‘leading prize’’ in a raffle to see if the value was so sub-
stantial as to divert the attention of the employees from the
election. I find that even at a discount, a television valued
at $617, was substantial in that it represented, on average,
much more than 1-1/2 of a week’s earnings for the unit em-
ployees. Moreover, employees were aware that they were
being offered an item publicly valued by Sony at $1299.95:
the computer, which employees used to order discount items,
showed both the list price and the discount price. If, as Re-
spondent contends, the list price was immaterial to Sony em-
ployees, then the Company would not have provided it to
them when they purchased discount merchandise. It is rea-
sonable to conclude that Respondent informed its employees
that the goods they were able to obtain at a discount actually
listed for a much higher price because this helped the em-
ployees to understand the true value of what they were re-
ceiving. Even if, as the Company urges, ‘‘no one’’ pays list
price, that price is used as a benchmark. A prize that listed
for a price 3-1/3 times the average weekly earnings of unit
employees is quite substantial.
Respondent further argues that because it regularly con-
ducted raffles the instant raffle in connection with the elec-
tion could not have interfered with a free and fair election.
The evidence shows that the Company usually offers its em-
ployees raffle prizes when it plays host to a summer picnic
and a Christmas lunch. Raffle prizes are also used as an in-
ducement to persuade employees to contribute to the United
Way drive. However, these prizes are available to all em-
ployees, both rank and file and managerial, unlike the instant
prizes which were available only to unit members who voted
in the election. In the deauthorization election held just 4
months before the decertification election, no raffle was con-
ducted. Thus, unit employees would reasonably conclude that
the instant raffle was unlike any others previously available
to them.
Respondent presented evidence concerning the rate of in-
flation. This was an attempt to show that the dollar amount
at which the Board has previously found that prizes interfere
with an election should be adjusted to account for inflation.
Respondent thus takes a mechanical view of the analysis to
be conducted. However, I find that the proper analysis is one
made on a case by case basis, taking into account the par-
ticular circumstances of the employees at issue and viewing
the value of the prizes in the context of the Employer’s en-
tire campaign. The facts, here, show that Respondent cer-
tainly intended the unit employees to be impressed with the
value of the prizes offered to them in the election raffle: The
videotape shown to employees specifically mentioned the
prizes as a reason ‘‘to vote’’ and ‘‘to vote no.’’ Further, this
was a relatively small unit of about 140 employees and an
employee could reasonably conclude that the chance of win-
ning the leading prize was fairly good. Further, although Re-
spondent tried to give the impression that Sony employees
would not be overly impressed with the prizes being offered
to them, the testimony shows that at several locations about
half of those voting asked where to pick up the raffle tickets.
Finally, although Respondent offered much theoretical back-
ground for its contention that the prizes were not substantial
and almost humdrum, it did not show how many unit em-
ployees had actually purchased a 27-inch television set
through the Company’s store network nor did it show what
the average price of purchases per employee might be in a
given time period. Thus, I conclude that the prizes offered
were so substantial as to interfere with the employees’ free
choice of a collective-bargaining representative and I shall
make the appropriate findings below in the discussion of the
representation case.
In Grove Valve & Regulator Co., 262 NLRB 285, 303
(1982), the Board found that an election raffle with large
prizes coerced the employees in violation of Section 8(a)(1)
of the Act. In Grove, as in the instant case, the employer
cited a history of prior raffles, but these had been open to
all employees. Further, the employer’s arguments relating to
inflation were not found to be persuasive on the issue of the
value of the prizes.
Here, Respondent showed its employees a videotape 2
days before the election which told them that Sony was add-
ing ‘‘a little incentive to everyone to vote. . . . First prize
is a new TV made by the best TV maker in the world . . . .
Besides the TV or the CD player, you’ve got a lot of reasons
to vote and a lot of reasons to vote no.’’ Although there are
many ways to parse this sentence, it must be remembered
that the employees did not read this message, they heard it
near the end of a 30-minute film. In the circumstances, it is
reasonable to conclude that many of them would have heard
a message which told them that a reason for voting against
the Union was the fact that Sony was giving away valuable
prizes through an election day raffle. I find that the substan-
tial nature of the leading prize in the raffle coerced the em-
ployees in violation of Section 8(a)(1) of the Act. Grove
Valve & Regulator Co., supra. I make no finding concerning
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the wording of the videotape because the General Counsel
has not alleged any violation based on the language.
III. THE OBJECTIONS TO THE ELECTION
As set forth above, the Union filed objections to the elec-
tion, and a number of them remain to be disposed of. Objec-
tions 1, 2, 3, 6, and 12 are based on conduct, which I have
discussed above. I have found that Respondent unlawfully
photographed unit employees without informing them of the
purpose for which the pictures would be used and included
those pictures in an antiunion videotape shown to unit em-
ployees 2 days before the decertification election. I have fur-
ther found that Respondent unlawfully refused to provide in-
formation to the Union after employees and shop stewards
complained to the Union about the photographing. I have
also found that Respondent unlawfully coerced employees by
announcing and conducting an election day raffle with a sub-
stantial leading prize. The value of the leading prize was so
substantial as to divert the attention of the employees away
from the election and its purpose and was so substantial as
inherently to induce voters to vote in support of the Compa-
ny’s position. To the extent that Objections 1, 2, 3, 6, and
12 are based on conduct found to violate the Act, I shall rec-
ommend that they be sustained.
Objection 8 states, ‘‘On March 14, 1990, at the Paramus
locations, the Employer stationed an agent on the line of
march to the poll so that the employees observed the agent’s
raffle tickets shortly before entering the polling area.’’ Ob-
jection 9 states, ‘‘While the polling at Paramus took place
on March 14, 1990, the Employer’s raffle distributor and
agent stated that the raffle was only for special people which
implied that they were rewarding employees for voting
against the Union.’’ Both of these objections are based on
the testimony of Al Guglielmo, secretary-treasurer of Local
888. All the testimony here, taken together, shows that the
raffle distributor was well away from the polling location, al-
though she was in an area that some employees might pass
on their way to vote. If the raffle were otherwise proper, this
alone would not be grounds for sustaining the objection.
Guglielmo testified that when he arrived at the Paramus loca-
tion he observed a young lady with raffle tickets and he
asked her if he could purchase a ticket. The lady responded
that they were free and when Guglielmo then asked for his
ticket, she replied that they were for Sony people only.
Thereupon, Guglielmo said that was nice and that he would
get the rest of the staff, but the young woman said that the
tickets were for ‘‘special people.’’ I do not find that this
vague reference implied that Sony was rewarding employees
for voting against the Union. I shall recommend that Objec-
tions 8 and 9 be overruled.
I have found above that the acts described in Objections
1, 2, 3, 6, and 12 constitute unfair labor practices which oc-
curred during the critical preelection period. I further find
that such conduct reasonably tended to interfere with the em-
ployees’ free and untrammeled choice in the election held on
March 14 and 15, 1990. Accordingly, I recommend that the
election be set aside and that Case 22–RD–984 be remanded
to the Regional Director for Region 22 to conduct a new
election when he deems the circumstances permit. I shall not
recommend the issuance of a bargaining order under NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). Although I have
found both unfair labor practices and conduct sufficient to set
the election aside, I do not find that the conduct was ‘‘out-
rageous’’ nor that the possibility of erasing the effects of
Sony’s conduct and ensuring a fair election by the use of the
Board’s traditional remedies is slight.
IV. REQUEST TO SEAL VIDEOTAPE FROM PUBLIC
INSPECTION AND COPYING
Respondent seeks an order sealing the 30-minute campaign
videotape which was introduced into evidence here. In a sep-
arate memorandum submitted on this point, Respondent ar-
gues that if the order sealing the videotape is not granted,
‘‘copies of the videotape now in the possession of the Board
and the Union’s counsel could be subject to the ‘fair use’
provisions of 17 U.S.C. § 107, such as television broadcast-
ing . . under the guise of news reporting, and could also
be made available for viewing in private settings.’’ Since
Sony has not obtained a copyright registration for the video-
tape because ‘‘registration requires a public filing of the vid-
eotape with the Copyright Office and resulting access and
viewing by the public,’’ it points out the ‘‘the threat of an
infringement suit offers virtually no deterrence.’’
Finally, Respondent states, ‘‘But for this proceeding,
Sonam would have been able to maintain complete control
of the videotape.’’
The Supreme Court stated in Nixon v. Warner Commu-
nications, 435 U.S. 589 (1978), that ‘‘the courts of this coun-
try recognize a general right to inspect and copy public
records and documents, including judicial records and docu-
ments.’’ Id. at 597, citations omitted. The Court explained
that the interest supporting this right was found, for example,
‘‘in the citizen’s desire to keep a watchful eye on the work-
ings of public agencies’’ and on the intention of the press
to publish information concerning the operation of govern-
ment. Id. at 598. The Court recognized limitations on the
right to inspect and copy judicial records ‘‘where court files
might have become a vehicle for improper purposes’’ such
as the gratification of spite or scandal through the release of
details of a divorce case, by the repetition of libelous state-
ments, or the revelation of business information that might
harm a litigant’s competitive standing. The Court instructed
that the decision on the common law right of access ‘‘is one
best left to the sound discretion of the trial court’’ based on
the facts and circumstances of each case. Id. at 599.
There is no scandalous or libelous material in the video-
tape here. Further, none of Sony’s trade secrets are revealed
on the tape. This film was made to be shown to 140 mem-
bers of a clerical unit, none of whom by definition is a con-
fidential employee, and I find no support in the facts or cir-
cumstances for the notion that any portion of the tape should
be kept secret. The transcript of the tape has also been made
a part of the record and large portions of the tape are quoted
in the briefs and in the instant decision. The videotape is a
central piece of evidence in the instant case. A viewing of
the actual tape will serve to enhance understanding of the
case and any decisions which may arise as a result of these
proceedings.
Respondent’s stated reasons for shielding the videotape
from public view amount to a wish to maintain complete
control over the tape and to keep its contents secret. I con-
clude that Respondent has not shown any reason for sealing
the videotape and and I find that it has no right to any order
433SONY CORP. OF AMERICA
26 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
27 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
prohibiting inspection or copying of the videotape as part of
the evidence here.
CONCLUSIONS OF LAW
1. By photographing employees and using the photographs
in its antiunion videotape without the employees’ consent,
Respondent coerced the employees in violation of Section
8(a)(1) of the Act.
2. By refusing to furnish the Union with information it re-
quested concerning the photographing of employees and by
giving a false and misleading response to the request, Re-
spondent violated Section 8(a)(5) of the Act.
3. By conducting an election day raffle with substantial
prizes, Respondent coerced its employees in violation of Sec-
tion 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair 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.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
ORDER
The Respondent, Sony Corporation of America, Mahwah,
Teaneck, Paramus, Park Ridge, Woodcliff Lake, and Fort
Lee, New Jersey, and New York, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Photographing its employees and including their photo-
graphs in antiunion videotapes without the employees’ con-
sent, refusing to furnish necessary and relevant information
to the Union and giving a false and misleading response and
conducting election day raffles with substantial prizes.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the necessary and relevant informa-
tion to the Union.
(b) Post at its facilities in Mahwah, Teaneck, Paramus,
Park Ridge, Woodcliff Lake, and Fort Lee, New Jersey, and
Nine West 57th Street, New York, New York, copies of the
attached notice marked ‘‘Appendix.’’27 Copies of the notice,
on forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Objections 1, 2, 3, 6, and 12
be sustained and that Objections 8 and 9 be overruled, that
the election conducted on March 14 and 15, 1990, be set
aside,and that Case 22–RD–984 be remanded to the Regional
Director for Region 22 to conduct a new election when he
deems the circumstances permit.