Advice Memo - Nicktoons, Case 31-CA-25144
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`Page 1 of 2
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`National Labor Relations Board
`OFFICE OF THE GENERAL COUNSEL
`Advice Memorandum
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`DATE: September 21, 2001
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`TO: James J. McDermott, Regional Director; Byron B. Kohn, Regional Attorney; Tony Bisceglia, Assistant to Regional
`Director, Region 31
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`FROM: Barry J. Kearney, Associate General Counsel, Division of Advice
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`SUBJECT: Nickelodeon Animation Studios, Inc. d/b/a Nicktoons, Case 31-CA-25144
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`This case was submitted for advice as to whether the Employer violated Section 8(a)(1) of the Act by failing to provide
`Johnnie's Poultry (1) assurances to its employees prior to asking them to speak with Board agents to supply evidence in support
`of the Employer's charge.
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`On May 10, 2001, the Employer filed a charge in case 31-CB-10841 alleging that certain Union agents, who were also alleged
`to be supervisors of the Employer, solicited authorization cards from employees in violation of Section 8(a)(1). (2) The Region
`asked the Employer to provide evidence of these solicitations. The Employer told the Region that it would provide information
`from its supervisors, but that it would not attempt to obtain information directly from its employees because it feared the Union
`would claim it was unlawfully interfering with Section 7 rights. The Employer agreed to make space available for Board
`agents' use in interviewing employees and to assist the agents in notifying the employees of interviews.
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`On May 31, the Employer provided four Board agents with offices at its facility. The agents gave the Employer a list of names
`of employees they wanted to interview. According to the Employer, General Manager Mark Taylor approached employees on
`the list and told them that the Board was conducting an investigation concerning the signing of Union cards, and that agents
`from the Board were present and wanted to talk to them for ten or fifteen minutes. According to the Union, Taylor told
`employees that "they needed to talk to some people from the National Labor Relations Board," and that the employees were
`"going to go with this guy [identified as someone the employees believed was from the Board] and answer their questions." At
`no point were employees advised by the Employer that their participation in the Board investigation was voluntary and that
`there would be no reprisals for their failure to participate. A few employees informed Taylor that they could not be required to
`meet with the Board agent, to which Taylor assented, and a few employees asked Taylor whether they were required to attend
`and Taylor told them they were not.
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`We conclude, in agreement with the Region, that the charge should be dismissed absent withdrawal.
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`Assuming the Employer told employees that they "needed to talk to some people from the National Labor Relations Board,"
`the Employer was simply attempting to make witnesses available to the Region in response to the Board agents' request that it
`do so to support its charge. The Employer did not compel employees to give statements, and indeed advised those employees
`who asked that they did not have to participate. Thus, the Employer did not interfere with the employees' Section 7 right to
`refrain from engaging in union activity.
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`Although the Employer did not comply with Johnnie's Poultry, supra, that was not required in these circumstances. The
`Johnnie's Poultry safeguards were established to minimize the coercive impact of an employer's investigatory interview of its
`employees. (3) The Employer did not interview or interrogate employees but at most directed employees to cooperate in the
`Board investigation. Any "interrogations" were conducted by the Board agents.
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`The Charging Party's reliance on Mathews Ready Mix (4) is therefore misplaced. In Mathews Ready Mix, a supervisor had
`asked an employee to write a statement about the employee's conversation with a fellow employee who was a union activist.
`When the employee refused to write the statement, a second supervisor approached him at a later date and obtained a statement
`from him after telling him that "the National Labor Relations Board wanted him to make a written statement concerning his
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`Advice Memo - Nicktoons, Case 31-CA-25144
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`Page 2 of 2
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`conversations with [his co-employee]." The ALJ, upheld by the Board, found a violation of Section 8(a)(1) based on a failure
`to provide Johnnie's Poultry assurances. The ALJ's decision provides no analysis regarding the applicability of Johnnie's
`Poultry to that kind of conversation, but implicit in the decision are determinations that the employer's obtaining a statement
`from the employee was tantamount to an interrogation, and that an employer cannot immunize an otherwise unlawful
`interrogation by advising the interrogated employee that the Board had requested the information.
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`Accordingly, the Region should dismiss the charge absent withdrawal.
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`B.J.K.
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`1 146 NLRB 770 (1964).
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`2 This charge was withdrawn after the Region determined it did not have merit.
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`3 In Johnnie's Poultry the Board established safeguards regarding two kinds of investigatory employee interviews: (1) the
`verification of a union's claimed majority status to determine whether recognition should be extended and (2) the investigation
`of facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for
`trial of the case. The Johnnie's Poultry safeguards require that: (1) the employer must communicate to the employee the
`purpose of the questioning, assure him that no reprisals will take place, and obtain his participation on a voluntary basis; (2)
`the questioning must occur in a context free of employer hostility to union organization and must not be itself coercive in
`nature; and (3) the questions must not exceed the necessities of the legitimate purpose by prying into union matters, eliciting
`information concerning an employee's subjective state of mind or otherwise interfering with the statutory rights of employees.
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`4 259 NLRB 739, 745 (1981).
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