Armstrong Circuit, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1971

189 N.L.R.B. 93 (N.L.R.B. 1971)

ARMSTRONG CIRCUIT, INC
Armstrong Circuit , Inc. and Local 228 of the Interna-
tional Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United
States and Canada , AFL-CIO. Cases 8-CA-5805
and 8-CA-5878
March 19, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On October 30, 1970, Trial Examiner James F
Foley issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further found
that the Respondent had not engaged in certain other
unfair labor practices as alleged and recommended
that such allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Armstrong Circuit, Inc., Bowling
Green, Ohio, its officers, agents. successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.'
IT IS FURTHER ORDERED that the complaint in Case
8-CA-5878 be, and it hereby is, dismissed.
In footnote 10 of the Trial Examiner's Decision , substitute "20" for
' I0' days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
93
JAMES F. FOLEY, Trial Examiner: These cases, Cases
8-CA-5805 and 8-CA-5878, were brought before the
National Labor Relations Board (herein called the Board)
under Section 10(b) of the National Labor Relations Act, as
amended (herein called the Act), 61 Stat. 136, 76 Stat. 579,
against Armstrong Circuit, Inc. (herein called Respondent),
by complaints issued April 30, 1970, and June 18, 1970,
respectively, and answers filed May 25, 1970, and July 20,
1970 respectively. The cases were consolidated for the
purpose of hearing by an order of the Regional Director
dated June 18, 1970 The complaint in Case 8-CA-5875 is
premised on an amended charge filed April 29, 1970, by
Local 228 of the International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO (herein called the
Union), and the complaint in Case 8-CA-5878 is premised
on a charge filed May 27, 1970, by the Union.
It is alleged in the complaint in Case 8-CA-5805 that in
violation of Section 8(a)(1) of the Act Respondent, by its
manager, Frank Nickens, interrogated employees, on or
about March 4, 1970, in and near its Cla-Zel Theater,
Bowling Green, Ohio, concerning their union memberships
and activities and sympathies for and support of the Union,
and, by its manager, David Krassow, interrogated employ-
ees on or about March 21, 1970, in the projection booth at
its Portage Drive-In Theater, Bowling Green, Ohio, about
their union memberships and activities and their sympa-
thies and support of the Union
It is also alleged in the complaint in Case 8-CA-5805 that
Respondent in order to discourage membership in the
Union, in violation of Section 8(a)(3) of the Act, on or
about March 13, 1970, terminated the employment of John
Durliat as a projectionist at the Portage Drive-In Theater
and, until March 21, 1970, limited his employment by
Respondent to 2 days a week at its Cla-Lel Theater, on or
about March 21, 1970, discharged Durliat, for the reason
that Durliat had joined, assisted, and favored the Union
and engaged in other concerted activities for the purpose of
collective bargaining and other mutual aid and protection,
and, on or about March 25, 1970, discharged Richard Earl
from his job as projectionist at the Portage Drive-In
Theater because he had joined, assisted, or favored the
Union or engaged in other concerted activities for the
purpose of collective bargaining or other mutual aid and
protection
It is alleged in the complaint in Case 8-CA-5878 that the
projectionists or motion picture machine operators Respon-
dent employs at its Portage Drive-In Theater constitute a
unit of employees appropriate for purposes of collective
bargaining within the meaning of Section 9(a) of the Act,
and during the month of February 1970, and continuously
thereafter, a majority of the employees in this unit selected
the Union as bargaining representative, but, although the
Union on or about March 21, 1970, and thereafter,
particularly April 4 and May 6, 1970, requested Respon-
dent to bargain collectively with it with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment for the projectionists at the
189 NLRB No. 20
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Portage Drive-In Theater, Respondent, in violation of
Section 8(a)(I) and (5) of the Act, has refused to do so, and
while indicating it would bargain if the Union demonstrat-
ed it represented a majority of the projectionists, it has
engaged in the interference with and restraint and coercion
of employees, violative of Section 8(a)(l) of the Act, and the
discriminatory discharging of projectionists, violative of
Section 8(a)(3) of the Act, alleged in the complaint in Case
of Section 8(a)(3) of the Act, alleged in the complaint in
Case 8-CA-5805, to dissipate and destroy the Union's
majority representation of projectionists at the Portage
Drive-In Theater.
Respondent denied in its answers to the complaints the
illegal conduct alleged in them.
A hearing on the complaints and answers was held before
me on July 21 and 22, 1970, in Toledo, Ohio. The parties
were afforded an opportunity to present evidence, make
oral argument, and file briefs. Briefs were filed by General
Counsel and Respondent, after the close of the hearing
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, with its principal
office and place of business in Bowling Green, Ohio, is
engaged in the operation of approximately 13 motion
picture theaters located in Toledo, Bowling Green, and
other cities in the State of Ohio Respondent, a member of
the Toledo Theater Association, annually receives gross
revenues in excess of $500,000 from the operation of its
theaters Annually, it receives goods and materials with a
value in excess of $50,000 at its various theaters in Ohio
directly from sources outside the State of Ohio. I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and the assumption of
jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
A. The Issues
The issues to be resolved are:
Did Respondent's managers, Nickens and Krassow,
interrogate employees Durliat, Espen, and Earl with
respect to union membership and activity in violation of
Section 8 (a)(1) of the Act?
Did Respondent 's manager , Nickens, deny employee
Durliat his job of projectionist at the Portage Drive-In
Theater and remove him from his job at the Cla-Zel
Theater as part - time projectionist, and fill -in on other
work because of Durliat 's union membership and
activity?
Did Respondent 's manager , Nickens, remove Rich-
ard Earl from his job as projectionist at the Portage
Drive-In Theater and offer him only limited worktime
at the Cla-Zel Theater because of his union member-
ship and activity?
Did Respondent refuse to bargain with the Union
for a unit of projectionists at the Portage Drive-In
Theater after it had dissipated and destroyed the
majority by denying Durliat employment as a projec-
tionist at this theater and removing Earl from his
projectionist job at this theater?
B. Background Evidence
Respondent in 1967, 1968, 1969, and 1970 operated in
downtown Building Green , Ohio, an indoor theater called
the Cla-Zel Theater and a drive-in theater on the outskirts
of Bowling Green called the Portage Drive-In Theater.
These two theaters were 2 of the chain of 13 theaters
operated by Respondent in Northern Ohio. Respondent, in
1970, was building a third theater in downtown Bowling
Green to be called Stadium I and II. It had not been
opened in July 1970 when the hearing was held in Toledo,
Ohio. The main office Respondent has for the entire
theater operation is located in the Cla-Zel Theater
building, Bowling Green
The Union with its principal office in Toledo, Ohio,
operated principally in Toledo, but did represent projec-
tionists in small commuities in the Toledo area . In 1970 it
became active in organizing the projectionists employed by
Respondent at the Portage Drive-In and the Cla-Zel. The
Union so informed Respondent in letters of January,
March, and May, 1970, and orally in March and April
1970. It had an interest in organizing these employees, as
far back as 1963, which became fairly active in 1967. This
interest in organizing will be discussed more fully infra.
Respondent 's president has been and is Jack Armstrong.
Fred Nickens, who has been employed by Respondent at
least 17 years, is Respondent 's city manager for Bowling
Green. He has the overall authority for the operation of the
Cla-Zel and the Portage Drive-In. While he personally
operates the Cla-Zel, he appoints a manager to operate the
Portage Drive-In. The drive- in is open from late March or
early April to late October or early November, depending
on the weather. The manager of Portage Drive-In for 1969
was a Mike Hoffman. On or about March 1, 1970, Nickens
appointed David Krassow , 18 years old , as manager of this
drive-in. He had been employed by Respondent since
1967, as lot boy at the Portage Drive-In during the
summers of 1967 and 1968, at Respondent 's Cedar Point
Theater, away from Bowling Green, during the summer of
1969, and at the Cla-Zel as doorman since Setember 1969
He was appointed a manager trainee at the Cla-Zel in
January or early February 1970.
In 1970, Respondent has had three projectionists at the
Cla-Zel. Joseph Espen, first employed by Respondent in
1961 as an usher and who became a projectionist in 1963, is
the regular projectionist . In 1970 , and for several years, he
has also been employed at Phil's TV Shop in Toledo.
Cordel Coy was a part-time projectionist at Cla-Zel until
March 25, 1970. He also worked as a doorman until March
25 On March 25, 1970, he was assigned the job of regular
projectionist at the Portage Drive-In Theater. The third
projectionist was John Durliat. He was a part-time
projectionist there in the period from November 1968 until
ARMSTRONG CIRCUIT, INC.
the Portage Drive-In opened in March 1969, and after the
drive-in closed in November 1969 until his employment at
the Cla-Zel was terminated on March 21, 1970.
In 1969, David Clingo was the regular projectionist at the
Portage Drive-In. He was assisted by John Durliat as part-
time projectionist. Clingo left the job of projectionist in
midsummer 1969, and Respondent appointed Durliat in
his place and appointed Richard Earl part-time projection-
ist. On or about March 1, 1970, in preparation for the new
season at Portage Drive-In to begin later in the month,
Nickens appointed Richard Earl to be its regular projec-
tionist. There is no evidence of any conversation or
discussion between Nickens or Krassow on the one hand
and Durliat on the other about Durliat returning to the
Portage Drive-In as the regular projectionist for the 1970
season even though Durliat had been the regular projec-
tionist there in 1969, beginning in midsummer, and Earl
had merely been the part-time projectionist who filled in
for Durliat when he was not working. There is no evidence
that Durliat made any inquiry about his not being assigned
to this job after Earl was appointed to it. Earl and Durliat
were good friends, and Durliat would have knowledge of
Earl's appointment. Respondent terminated Earl's employ-
ment as the projectionist at the Portage Drive-In on March
25, 1970. He was replaced by Cordel. In April 1970,
Nickens assigned Clingo, the regular projectionis at the
Portage Drive-In for the first half of the 1969 season, to be
a projectionist at the Portage Drive-In.
C. The Union Activity and Respondent's
Interrogation
In January 1970, Espen, a projectionist or motion picture
machine operator at Respondent's Cla-Zel Theater, visited
at the Cinema III Theater, Toledo, Ohio, Morris Liggett,
business agent of the Union and a projectionist at the
Cinema III. This theater was operated by Headstone
Management. Espen signed a card furnished to him by
Liggett on which he authorized the Union to act as his
bargaining representative. He also signed an application
for membership in the Union furnished to him by Liggett.
There is no evidence of the date the Union, according to its
policy, agreed to represent Espen or accepted him into its
membership. I find from the evidence of record that Espen
was a member of the Union and represented by the Union
and that Espen was represented by the Union by March
20, 1970. In early February 1970, Durliat, then working as
a part-time projectionist at the Cla-Zel, and Earl, working
as a part-time doorman at the Cla-Zel, but destined to be
appointed on March 1, 1970, as regular projectionist at the
Portage Drive-In, went to Cinema III Theater in Toledo to
visit Liggett, and then visited him at his home in Toledo
when they found he was there and not at the theater. There
they signed documents giving the Union authorization to
represent them, and filled in and signed applications for
membership in the Union, furnished by Liggett. The
Union, at a regular meeting held on March 3, 1970, agreed
to represent Durliat and Earl, and at a regular meeting on
or about April 7, 1970, accepted them into membership of
the Union. Liggett inserted the date March 3, 1970, on the
authorizations, and the corresponding secretary of the
95
Union inserted the date April 7, 1970, on the membership
applications.
On the application for membership form, Durliat stated
he had been employed 2 years as a projectionist and had
worked at the Portage Drive-In Theater. He also stated
that at the time he filled in the application form he was
employed as a projectionist at the Cla-Zel Theater. He did
not state on the form that he was employed as projectionist
at the Portage Drive-In Theater at the time he filled it in,
although he had been the regular projectionist there for half
of the 1969 season, and obstensibly would return there as
regular projectionist for the 1970 season. Earl, like Durliat,
stated on his application that he had been employed as a
projectionist, but for 1 year. He also stated, like Durliat,
that he had worked as a projectionist at the Portage
Drive-In. Unlike Durliat, he stated he was employed as a
projectionist at the Portage Drive-In at the time he filled in
the form. At this time he was actually employed as a
part-time doorman at the Cla-Zel. However, he had been
the part-time projectionist at the Portage Drive-In from
midsea son 1969 until the theater closed in November 1969.
Although from that time in November 1969 until March 19,
1970, he worked part-time as a doorman at the Cla-Zel, it
was reasonable to assume that he would return to the
Portage Drive-In as projectionist when the season opened
in March 1970. As it turned out, he was appointed on
March 1, 1970, as regular projectionist at the Portage
Drive-In for the 1970 season. Both Durliat and Earl stated
on the authorizations that they wished the Union to
represent them as bargaining representative with respect to
their employment by Respondent without designating the
place or places at which Respondent employed them.
On Wednesday, March 4, 1970, the day after the Union
agreed to act as bargaining representative for Durliat and
Earl, Nickens had conversations with Durliat and Espen
about activity by the Union to organize Respondent's
employees in Bowling Green. Durliat, who worked as
projectionist Monday and Friday at the Cla-Zel, and filled
in as projectionist and on other jobs at that theater
whenever he could on other days of the week, had come to
the Cla-Zel on Wednesday, March 4, 1970, for his weekly
paycheck. Nickens testified that William Herring, the
official of Respondent in charge of the concessions for
Repsondent's theaters, informed him that he had heard that
Durliat and Espen were mixed up in some sort of union
activity, and that he said to them he had heard rumors of
union activity and asked them if they had any information
about it or had been contacted by the union.
Durliat testified that he was standing in the theater
talking to Earl when Nickens came along, walked him out
of the theater to a place under the marquee, and said to him
that a rumor had reached him that he had joined the
Union; he replied that he had heard nothing of the rumor;
and, then Nickens asked him if he had been approached by
anyone from the Union or if he had approached anyone
connected with the Union and that he answered no to both
questions. Durliat further testified that Nickens said to him
to think for a minute, and then tell him if he had joined the
Union, and that he said in reply to Nickens that if he was to
hear anything about a rumor he would let him know.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nickens denied he said to Durliat anything in connection
with membership in the Union.
Espen testified that, when he was in the projection booth
at the Cla-Zel during the evening of March 4, 1970,
operating the motion picture machine, Nickens came into
the booth and said to him he had heard in Jack Armstrong's
office that the Union was attempting to organize Bowling
Green and asked him if he knew anything about the matter,
and if he had joined the Union or was planning to join the
Union, and he answered no to both questions Espen
further testified that Nickens asked him if there was anyone
else in the union business , and he answered no, and that
Nickens then said "You know if you ever join the Union,
you cannot be a manager in the Armstrong Circuit "
Nickens denied he said anything to Earl about membership
in the Union or union membership.
The Portage Drive-In opened on March 20, 1970, for the
1970 season. Earl, who was appointed on March 1, 1970, as
the regular projectionist for the 1970 season, had been
excused from working on March 20 and 22, 1970. He was
active on March 20, either as performer or producer of a
talent show at the high school he attended. He was a
participant in a choir concert on March 22 He worked,
however, on March 21, 1970 During the latter part of the
show, David Krassow, the manager of the Portage
Drive-In, came into the projection booth and asked him
the question, "Have you talked to anybody from the big
city lately"' Earl answered that he did not know what
Krassow meant, that he did not know anyone from the big
city. The big city in relation to Bowling Green is Toledo
Bowling Green is a small college town within the market
area of Toledo.
As found infra, in Toledo, Ohio, on March 20, 1970, the
Union informed Thor Hauschild, a representative of
Respondent, that it represented the projectionists at the
Portage Drive-In Theater and asked for a meeting with
Respondent for negotiation of a collective-bargaining
contract for these projectionists. The Union repeated the
claim that it represented the Portage Drive-In projection-
ists and the request for a meeting to negotiate a contract for
them, in a letter dated March 20, 1970, which it sent on
March 20, 1970, by mail, from Toledo to Jack Armstrong,
president of Respondent, at Respondent's address in the
Cla-Zel Theater Building in Bowling Green, and which
Respondent received on March 21, 1970 Earl testified he
understood Krassow to mean the Union by the words
"anybody from the big city" in the question he asked him
on the evening of March 21 Krassow testified as a witness
for Respondent, but in his testimony there is no reference to
Earl's testimony of the conversation he had with Earl on the
evening of March 21, 1970
On the demeanor of Durlfat, Espen, Earl, Nickens, and
I As stated Durhat was 18 years of age and married He would
graduate from high school in June 1970 and did He was first employed
by Respondent in August 1968 as lot boy at the Portage Drive - In When
the drive-in closed for the season in November 1968, he worked part time
at the Cla -Zel until the drive-in opened in April 1969 for the 1969 season
At the Cla -Zel he worked as doorman , projectionist , and janitor In April
1969 Durliat was assigned to the job of part -time projectionist at the
drive- in He also performed other jobs at the drive - in In midsummer,
David Clingo, the regular projectionist, left employment at the drive-in
Nickens or Mike Hoffman, the drive-in manager , appointed Durlfat as
regular projectionist and Richard Earl as his replacement Durliat worked
Krassow, and their oral testimony or lack of it, considered
in the context of the record as a whole, I credit the
testimony of Durlfat, Espen, and Earl where it is in conflict
with the testimony of Nickens and Krassow, and I credit
the testimony of Durliat, Espen, and Earl with respect to
the matters related in their testimony.
D The Discharges
1. Durliat
Durliat did not work as projectionist at Respondent's
Portage Drive-In Theater at any time during 1970 season
which opened March 20, 1970 He worked there on
Monday, March 9, 1970, assisting Manager Krassow and
the custodian in preparing the projection equipment for the
new season He testified that early in 1970 he had given
Nickens a list of things that should be done in the
getting-ready work, and Nickens had instructed him at that
time to do the cleaning of the projection equipment and the
small repairs on it Tuesday, March 10, he asked Krassow if
further work was to be done at the drive-in and Krassow
answered no, and that on Friday, March 13, he asked
Nickens if he was to continue the repair of the projection
equipment at the drive-in, and Nickens answered that he
did not want him going out there anymore, that there was
nothing further for him to do. According to Durliat
one-half of the items he had placed on the list had been
completed when he talked to Nickens on March 13
On Tuesday, March 10, 1970, or Wednesday, March 11,
1970, Nickens informed Durliat that Armstrong, president
of Respondent, would like to see him It was about his
longstanding request to Nickens that Respondent appoint
him to the position of manager trainee As early as July
1969, Durliat had informed Nickens that he wished an
appointment to this position. Nickens told him he would so
inform President Armstrong Durlfat on several occasions
after July 1969 reminded Nickens that his objective was an
appointment to this position.'
By early February 1970, Durliat had received no response
to his request for a position as manager trainee Krassow
had been made a manager trainee at the Cla-Zel in January
1970 or early February 1970 He then went to Liggett, the
business agent of the Union, and signed the authoriztion
and filled in and signed the application for membership.
About the same time he also applied to the Bowling Green
office of the Norhtern Ohio Telephone Company for a job.
Durliat and Nickens went to see President Armstrong in
the latter's office on March 10 or 11, the day Nickens
informed Durliat that Armstrong wished to talk to him
Armstrong and Durhat discussed the latter's interest in
becoming a manager trainee Armstrong said to Durlfat
on the average of 6 days a week as projectionist After the drive-in closed
in November 1969 for the 1969 season , Durliat worked as doorman at the
Cla-Zel About Christmas time he began working Monday and Friday
evenings as projectionist He filled in as extra projectionist on Saturday
afternoon and Sunday afternoon or evening He sometimes worked as
doorman on Tuesday, Wednesday, and Thursday At the drive-in in 1969
Durliat was paid 10 each weekday evening and $12 each weekend evening
for working as a projectionist The same rate of pay was in effect at the
drive-in for the 1970 season At the Cla-Zel he received $6 and then $7 for
projectionist work, and $1 25 per hour for work as doorman and
delivering concessions material to other theaters
ARMSTRONG CIRCUIT, INC 97
that in this position he may have to be sent to one of the
other theaters away from Bowling Green He asked him if
he would have any objection to such an assignment. Durliat
said he would have to discuss such a possibility with his
wife Armstrong said to him to discuss it with his wife, and
that they would meet again at Armstrong's office at 2:30
p.m the following Monday afternoon. This Monday was
March 16, 1970
Armstrong asked Durliat if he had discussed aspects of
theater operation with other persons, and he answered that
he had discussions with Espen, Earl, and Coy about them
Armstrong also asked him if he discussed them with
Norman Crellar, a member of the Union 3 years before,
who had been employed at the Portage Drive-In in 1967,
and he answered that all he knew was that Crellar had an
electronics' shop downtown in Bowling Green and he
patronized it
About the time Durliat talked to Armstrong he was
notified by Northern Ohio Telephone Company that he
could have a job there if he filled in the necessary papers
He completed the papers on Friday afternoon, March 13,
1970 He was given a starting date of Tuesday, March 17,
1970 Durhat testified that on the morning of Monday,
March 16, he talked to Nickens at the Cla-Zel and told him
he had been offered a job by the telephone company He
said they had a plan for employees who were attending
school and it looked good He asked Nickens if he should
continue to be available for a manager position, if one
should arise, or take the job at the telephone company, and
Nickens answered that it was his decision The job started
at I p m and was not for more than 5 hours each of the
days he attended school
On Monday afternoon, March 16, Nickens and Durliat
went to Armstrong's office to discuss further the manager
trainee position Armstrong did not appear Durlfat told
Nickens that he had decided to take the job at the telephone
company, and Nickens then said that there was no point in
waiting for Armstrong since he decided not to take the
manager trainee position As stated, Durlait worked
Monday evening at the Cla-Zel as projectionist. While he
was operating the projection machine, Armstrong entered
the projection booth where Durhat was, apologized for his
failure to appear, said to Durliat that Nickens had informed
him that he was no longer interested in the trainee job, and
that if there was anything he could do to help him he would.
According to Durlfat, he said that he would continue to
operate the projection machines, and Armstrong answered
that his doing that work would be decided between him and
Nickens Durliat's next work night as projectionist was
Friday, March 20
Durhat began employment at the telephone company on
March 17, 1970 On Wednesday evening, March 18, he
went to the Cla-Zel to pick up his weekly paycheck He had
a conversation with Nickens Nickens said he could
continue to work as projectionist on Monday and Friday
evenings and could do extra work as projectionist on
Saturday afternoon, March 21, and Saturday afternoon,
March 28. Durhat worked on Friday evening, March 20,
and Saturday afternoon, March 21. When he finished work
Saturday afternoon, Nickens said he would like to talk to
him. He said things were not working out, that he would not
be at the Cla-Zel much longer, that he had to get things
organized, and was putting him on the projection
emergency list. Durlrat asked if that meant he would r,)t
work as projectionist on Monday and Friday evenings, or
on Saturday afternoon, March 28, and he said yes. Durliat
asked if he would be there Tuesday and Nickens answered
that Krassow would be there. According to Durlrat he then
said he would stop by and pick up his check at that time,
and would probably see him in court.
Nickens was still at the Cla-Zel Theater at the time of the
hearing, July 21 and 22. As stated infra, March 21, 1970,
was the day Respondent received the Union's letter of
March 20, 1970, in which it stated it represented the
projectionists at the Portage Drive-In and the Cla-Zel, and
requested negotiations for contracts for projectionists at the
Portage Drive-In, Cla-Zel, and Stadium I and II Espen
asked Nickens on March 22, 1970, why Durlrat had been
fired, and he replied that he was not going to work out, that
he had offered him a good manager trainee job, and he
refused it. Espen asked Nickens at this time if he was mad
at him for joining the Union, and he answered he had not
known he joined the Union. This is Espen's testimony
Nickens corroborated it, and added that he also said he had
nothing against union membership. I credit both Espen and
Nickens 2
1 have made the above findings after evaluation of the
demeanor testimony and oral testimony of Durliat and
Nickens and of Espen insofar as it relates to the discharge
of Durliat This evidence has been considered in the context
of the record as a whole. Nickens testified that in the
conversations he had with Durliat in 1969 and in early 1970
about Durliat's application for a position of manager
trainee, Durliat had informed him that he did not wish to
return to the Portage Drive-in as projectionist, that he did
not like the job of projectionist, and that he did not like
drive-in theaters Nickens also testified that nothing was
said by him to Durliat or to him by Durlfat about Durliat's
returning to the Portage Drive-In as projectionist for the
1970 season
Durhat, in rebuttal, denied he said he did not wish to
work at the Portage Drive-In during the 1970 season He
testified he said to Nickens he would continue to operate as
projectionist until he could step up to the position of
manager or manager trainee He also testified that he had
to make other plans when no offer of manager or manager
trainee was made He then went to the Union The evidence
shows that in early February 1970, he went to the Union
and applied at the same time to Northern Ohio Telephone
Company for a position
On the evidence of record, and demeanor of Nickens and
Durhat, I credit Nickens' testimony. There is no evidence
that Durliat said anything to Nickens, Krassow, or anyone
else about his not being assigned to the Portage Drive-In as
t Nickens testified at the hearing that he told Durhat his services would trainee after he had been after him for 8 or 9 months for such a position
no longer he needed He testified that during the week of March 16, 1970, and he told him he would do his best which he had done Nickens also
he determined he would not work out since he was going to work for the testified that Durliat said that the position at the telephone company was a
telephone compan} full time and would he in their school for an undefinite full-time job
period of time and especially since he turned down the job of manager
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
projectionist for the 1970 season when Earl was appointed
regular projectionist there about March 1, 1970 3 Durliat
had been the regular projectionist there for the latter half of
the 1969 season, and Earl had been only his stand-in,
working about one evening a week. Projectionist at the
Portage Drive-In paid $10 each weekday night, and$12 each
weekend night. Projectionist at the Cla-Zel paid only $7 for
both weekday and weekend evenings. Durlfat asked
Krassow on March 10, 1970, and Nickens on March 13,
1970, if they wished him to finish the cleaning and repair
work he had started on the projection equipment at the
Portage Drive-In on March 9, 1970 He said nothing about
working as projectionist.
In conversations with Armstrong on March 16, and with
Nickens on March 18, Durliat told them he would continue
his work as projectionist at the Cla-Zel when he worked
afternoons at the telephone company He did not mention
the Portage Drive-In In his rebuttal testimony he referred
to projectionist with no specific reference to that work at
the Portage Drive-In In February 1970 Durliat stated on
his application for membership in the Union that he was
employed as projectionist only at the Cla-Zel. In regard to
the Portage Drive-In he stated only that he had worked
there Earl, on the other hand, stated on his application that
he was employed as projectionist at the Portage Drive-In,
although he was then working as doorman at the Cla-Zel,
and had only been Durliat's stand-in as projectionist at the
Portage Drive-In during the 1969 season They were
together when they completed the applications.
There is a conflict between Nickens' testimony that
Durliat told him on March 16 that the position at the
Northern Ohio Telephone Company was full time and that
he would attend a school of the telephone company in
Illinois, and Durliat's testimony that he told him it was
part-time employment from I p m. to 5 p.m I credit
Durliat On March 18, Nickens told Durhat he could
continue to work Monday and Friday evenings as
projectionist and fill in on Saturday afternoon as projec-
tionist at the Cla-Zel. On March 18, Nickens had no reason
to believe that the job at the telephone company would
interfere with his work at the Cla-Zel. I credit Durliat's
testimony he told him he would be attending school in
Illinois but that it would be in the summer after he
graduated from high school. He graduated on June 6, 1970.
I find and conclude that Nickens stated on March 21, 1970,
to Durliat that he could not employ him, and discharged
him, for the reasons that the Union in its letter of March 20,
1970, claimed it represented the projectionists at the
Cla-Zel and the Portage Drive-In, and he determined that
he would dissipate the majority that the Union alleged it
had at the Cla-Zel, and because of Durliat's membership in
and assistance to the Union. Durliat's membership in and
assistance to the Union reached Nickens' ears on March 4,
1970. Durlfat denied both at that time Nickens was
convinced that what he heard on March 4 was true after the
Union's representation on March 20 and 21, that it
represented the projectionists at the Portage Drive-In and
the Cla-Zel.
2. Earl
Richard Earl, 18 years of age, was first employed by
Respondent as lot boy at the Portage Drive-In at the
beginning of the 1969 season. He was appointed
part-time projectionist about the middle of the 1969 season
Clmgo, the regular projectionist, left, Durhat who was the
part-time projectionist replaced Clingo, and Earl replaced
Durlfat. In November 1969, at the close of the 1969 season
for the drive-in, Earl was given part-time employment at
the Cla-Zel as a doorman. As stated Earl and Durhat, in
early February, went to Toledo, Ohio, met Liggett, business
agent of the Union, and signed authorizations to the Union
to act as their bargaining representative, and completed
and signed membership applications. The Union agreed to
represent them on March 3, 1970, and accepted them into
the Union on April 7, 1970.
On March I, 1970, Krassow or Nickens appointed Earl to
be the regular projectionist at the Portage Drive-In for the
1970 season. The tentative opening date at the time of the
appointment was the weekend starting Friday, March 27
Earl received permission from Nickens to be absent from
the projectionist job March 27 and 28. A choir group to
which Earl belonged was making a trip to New York. Earl
woud be available to work on March 29. There is disputed
testimony about Earl's availability for the weekend
beginning March 20. On March 20, he was either a
performer in, or connected with, the production of a talent
show at the high school he attended, and on March 22 he
was in a concert given by the choir with which he was
connected. According to Earl, he cleared the leave with
Krassow the second week of March. Krassow testified that
Earl told him at the Cla-Zel about a week before March 20
that he could not work on March 20 and 22 Krassow was
working as trainee at the Cla-Zel and spending time at the
Portage Drive-In in preparation for its opening on March
20. Krassow said O.K. Krassow testified that he gave to
Nickens on March 15 or 16 the information Earl gave him
on March 13 or 14 that he could only work Saturday,
March 21, of the opening weekend and could not work
March 20 and March 22. Nickens testified he received the
information from Krassow about 4 days before March 20,
that Krassow gave him the information as soon as he
received it from Earl. Krassow testified it slipped his mind
the first 2 or 3 days. In any event Nickens sent Cordel Coy,
a projectionist at the Cla-Zel to fill in for Earl, on March 20
and 22
Nickens testified that he was upset because Earl did not
tell him directly that he could not work on March 20 and
22, and that he had no notice of this matter until 4 days
before the opening. He also testified that President
Armstrong was displeased when he told him about the short
notice Earl gave Earl worked on Saturday, March 21. Coy
replaced Earl on March 20 and 22 On Tuesday, March 24,
Nickens telephoned Earl and told him he would like to talk
to him the next day, Wednesday, March 25 Earl had a
conversation with Nickens at the Cla-Zel on Wednesday,
March 25 Krassow was present. Nickens told him he gave
I There is no evidence that Respondent ' s representatives had any in January and February 1970 away from Respondent 's place of business
knowledge of union activity until March 3 or 4 1970 The small plant rule See N L R B v Roberto Alvaro Mfg Co inc. 327 F 2d 998 (C A 1)
does not apply as Espen , Durhat and Earl conducted their union activity
ARMSTRONG CIRCUIT, INC 99
him enough notice that he could not work March 27 and 28,
but not enough notice he could not work March 20 and 22
He also told him that he changed his schedule around too
much Nickens informed him that he would not be allowed
to go out to the Portage Drive-In until further notice. He
told Earl he could continue as doorman at the Cla-Zel. Earl
said he would consider continuing as doorman, and would
let him know. After talking to Durliat, he informed Nickens
he would not continue as doorman at the Cla-Zel Earl
received $10 and $12 as regular projectionist at the Portage
Drive-In, and $1.25 an hour as doorman at the Cla-Zel. This
amounted to $4 to $ 5 per evening 4
John Mussman, employed as ramp attendant by
Respondent at the Portage Drive-In for the 1970 season,
testified that on Friday, March 27, 1970, when Coy instead
of Earl was projectionist at the Drive-In, he asked Krassow
where Earl was and Krassow answered that Earl was no
longer with them as he was suspected of having connections
with the Union, and that on Sunday, March 29, at the
drive-in, he asked Krassow if it was not illegal to fire
someone for joining a union and Krassow answered that
that was not the reason Earl and Durliat were given
Mussman also testified that in the middle of April 1970, 2
weeks after March 29 conversation, while he and Krassow
were returning by automobile from the bank, Krassow said
to him that he liked Durliat and Earl until they got mixed
up in the union business and asked him to steer clear of
them because he might tell them something they should not
know. Krassow testified that Mussman on March 27 asked
him where Earl was, but he could not remember the answer
he gave him. He testified he knew Earl was discharged as he
was present when Nickens discharged him. He also testified
that Nickens said to Earl when he discharged him that he
was not able to work when he was scheduled to work In
regard to Mussman's testimony that he asked him on
March 29 if it was not illegal to fire someone for joining a
union, Krassow testified that to his knowledge he was never
asked the question. His testimony is silent with respect to
Mussman's testimony that in answer to the question he
asked Krassow on March 29, Krassow answered that
Durliat and Earl were not told that was the reason they
were discharged. His testimony also is silent as to whether
there was a conversation on March 29. Krassow's testimony
is also silent with respect to Mussman's testimony that in
the middle of April 1970, Krassow said to him that he liked
Durliat and Earl until they got mixed up in the union
business and asked him to steer clear of them because he
might tell them something they should not know.
After evaluation of the demeanor of Krassow and
Mussman and the oral testimony of each of them
considered in relation to the evidence of record as a whole,
I credit Mussman's testimony.
E The Alleged Refusal To Bargain
On March 20, 1970, the indoor theater owners in Toledo,
Ohio, who were members of the Toledo Theater Associa-
tion, were jointly negotiating collective-bargaining agree-
ments with the Union for these indoor theaters. Respon-
dent who operates the Valentine Theater, an indoor theater
in Toledo, was represented by Thor Hauschild. Representa-
tives of four other indoor theaters were also present. Ralph
Cobourne, president of the Union, and Thomas Liggett,
business agent of the Union, were present for the Union. At
the negotiations, Liggett stated to Hauschild that the Union
represented the projectionists at the Portage Drive-In
Theater and requested a meeting with Respondent to
negotiate a collective-bargaining contract for these em-
ployees. Hauschild said to Liggett he would so inform Jack
Armstrong, Respondent's president, but asked Liggett to
send a letter to him incorporating what Liggett had said to
him. The Union incorporated the information given to
Hauschild and the request made to him for
collective-bargaining negotiations in a letter to Armstrong,
as Respondent's president, dated March 20, 1970, signed by
President Cobourne, and sent that date by the Union from
Toledo to Respondent at its address in Bowling Green
It was also stated in the letter that the Union informed
Hauschild on March 20, 1970, that it represented the
projectionists of a legal age in Bowling Green and
requested Respondent to meet with it to negotiate contracts
with it for the Cla-Zel and the new two-theater unit
Respondent was building in Bowling Green identified as
Stadium I and II. This theater unit had not been opened by
the time of the hearing.
It is not clear from the above language in the letter, or
from the record, whether President Cobourne, in referring
to the projectionists in Bowling Green, was referring to
those at Respondent's theaters or all projectionists
employed by all theater operators, or whether Respondent
was the only theater operator in Bowling Green, a small
college town. The second last paragraph of the letter which
reads, "Concerning the operators at Bowling Green, their
signed applications are on file with the International,
however, copies are available for inspection by a third party
if you so desire," and the last paragraph which reads, "I
trust that we can consummate these arrangements in the
near future with mutual amity," appear to disclose that the
Union by Cobourne was referring only to the projectionists
at Respondent's theaters in Bowling Green.
The Union, in a letter dated May 6, 1970, by Gallon and
Callender, its attorneys, again demanded recognition as
bargaining representative of the projectionists at the
Portage Drive-In theater, and an opportunity to meet with
Respondent to negotiate a contract for these employees. In
this letter, the Union stated it stood ready to prove that it
represented a majority of the Portage Drive-In projection-
ists.
Respondent did not reply in writing to the letters of
March 20, 1970, May 6, 1970, for recognition and
bargaining On or about April 3, 1970, the Union began
picketing at the Cla-Zel Theater and the premises of
Stadium I and II although this latter theater unit had not
been opened. The picketing was at least partly in support of
4 The Union began picketing the Cla-Zel and Stadium I and II about Shortly after the picketing started the Union requested Respondent to
April 3, 1970 At the time of the hearing, July 21 and 22, 1970, it was return Durliat and Earl to their jobs Nickens testified he did not know
picketing the Cla-Zel It did not picket the Portage Drive -In, as it was on Earl was a member of the Union , and never talked to him about the
a highway A safe place for picketing was not available Durliat, Earl, Union, and that he had some suspicions he was a member when he
and Espen joined the picket line at the Cla-Zel on many occasions joined the picket line at the Cla-Zel
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its demand for recognition and bargaining for the unit of
projectionists at the Portage Drive-In. Liggett testified that
there was no suitable place to picket at Portage Drive-In as
!t was on a highway On or about April 4, 1970, President
Armstrong informed the Union orally that Respondent
would bargain with it for the unit of projectionists at the
Portage Drive-In Theater if the Union demonstrated in an
election that it represented a majority of the employees in
the unit. Liggett testified that Armstrong's offer was
discussed with Respondent by the Union, but no agreement
could be reached regarding the employees who would vote
in the election. Liggett testified that persons other than Earl
and Durliat were doing the projectionists work at the
Portage Drive-In. It is undisputed that Cordel Coy, the
regular projectionist at the Cla-Zel, was assigned to, and
performed, the projectionist work at the Portage Drive-In
for the opening night of March 20, 1970, and the night of
March 22, 1970, in place of Earl, who had engagements
both evenings in connection with programs of the high
school he attended; was assigned to the Portage Drive-In
as the regular projectionist on March 25, 1970, when
Manager Nickens relieved Earl of the job of regular
projectionist at the Drive-In; and has been the regular
projectionist at the Drive-In since that date. Mussman, a
ramp attendant and security guard at Portage Drive-In,
testified there were Coy and two other employees doing the
projectionist work there on July 21 and 22, 1970, the time of
the hearing. Manager Nickens testified that in the middle of
April 1970, Clingo was assigned to the Portage Drive-In as
projectionist
At the time of the hearing, July 21 and 22, 1970,
Respondent was operating four drive-in theaters (the
Parkside in Oregon, Ohio, the East Side in Wood County,
Ohio; the Telegraph in Toledo, Ohio, and the Jesse James
in Toledo, Ohio) and a "hard top" theater, the Valentine, in
Toledo, Ohio, for which Respondent had individual
collective-bargaining agreements with the Union for
separate units of projectionists. In a letter dated January 2,
1970, to Jack Armstrong, as president of Respondent,
President Cobourne of the Union stated that Bowling
Green had been brought into the market area of Toledo
and to its doorstep by the advent of new highways, and
since Bowling Green had always been in the jurisdiction of
the Union it was necessary that the Union become active in
Bowling Green for its own protection. Cobourne stated that
it was the Union's wish that Respondent desire to employ
the services of the Union in its Bowling Green theaters for
their mutual benefit, and that it contact the Union on this
matter at its earliest convenience. Cobourne also stated that
the Union did not have in its records any previous
agreement its former business agent, Plumadore, had
reached with Respondent or any contract or written
communication covering such an agreement. In 1963, or
before, Plumadore, a business agent of the Union until
1963, who was succeeded by Business Agent Parties in
1963, and then by Liggett in 1967, had some type of
communication with Respondent regarding recognition of
the Union as bargaining representative for its projectionists
Mobile Paint Manufacturing Company of Delaware Inc, 168 NLRB
783, and Skaggs Transfer, Inc 185 NLRB No 91 While the Union
notified Respondent on January 20, 1970, that it was interested in
in Bowling Green. It appears from the record that the
Cla-Zel was Respondent's only theater in the Bowling
Green area at that time. As stated, the headquarters of the
Union is in Toledo, Ohio, and Bowling Green is a small
town, a short distance from Toledo. Apparently, nothing
came of this discussion. There is no probative evidence that
projectionists at the Cla-Zel were members of the Union or
had authorized the Union to act as their bargaining
representative
On July 11, 1967, Respondent, by its president, Jack
Armstrong, executed with the Union, by Business Agent
Liggett, a written stipulation that Respondent recognized
the Union as the exclusive bargaining agent for a unit of
projectionists at the Portage Drive-In Theater and that
Respondent would commence negotiations with the Union
on or before August 11, 1967, for a collective-bargaining
contract for this unit of projectionists. A contract was never
negotiated because there was only one employee in the unit
and he resigned, and his replacement was not 18 years of
age, the minimum age requirement in the Union's
constitution and bylaws for membership in the Union or
representation by the Union. However, a wage agreement
for the projectionists at the Portage Drive-In Theater was
executed by Respondent and the Union
ANALYSIS AND FINDINGS AND CONCLUSIONS OF
FACT AND LAW
I make the analysis and findings and conclusions of law
and fact in the following paragraphs from the foregoing
evidentiary and credibility findings.
I find and conclude that Respondent by Manager
Nickens, in violation of Section 8(a)(1) of the Act,
interrogated employees Durliat and Espen on March 4,
1970, about their union activity and membership In early
February 1970, Durliat and Earl signed authorizations to
the Union to act as their collective-bargaining representa-
tive and signed and completed applications for membership
in the Union. In January 1970, Espen signed an authoriza-
tion and signed and completed a membership application
On March 3, 1970, the Union in a regular meeting agreed to
represent Durliat and Earl. On being informed by Herring,
an official of Respondent like himself, that he had heard
that Durliat and Espen were mixed up in some sort of union
activity, Nickens on March 4, 1970, asked Durliat if he had
approached the Union or had been contacted by the Union
or had joined the Union, and asked Espen if he had heard
that the Union was attempting to organize Bowling Green
and if he had joined the Union or was planning to join the
Union. He also said to Espen that he could not become a
manager if he joined the Union.
The questions and statement of Nickens were a threat to
Durliat's and Earl's job security and other working
conditions and interfered with their rights to engage in
concerted activity, to join or assist the Union, to provide for
collective bargaining and for other mutual aid and
protection 5
For the same reasons, I find and conclude that
Respondent violated Section 8(a)(1) of the Act by
representing its employees in Bowling Green as their collective-bargaining
representative it had made no demand that Respondent-recognize or
bargain with it Respondent had no color of right to interrogate Durhat
ARMSTRONG CIRCUIT, INC. 101
Krassow's question to Earl on the evening of March 21,
1970, whether he had talked to anyone from the big city
lately. The evidence shows, and I find, that Krassow was
referring to the Union with its headquarters in Toledo when
he said anyone from the big city. The Union notified
Respondent orally on March 20 and in writing on March 21
that it represented the projectionists at the Portage
Drive-In and Cla-Zel. Earl understood the reference to
anyone from the big city to be a reference to the Union. It
can be assumed and I find that Earl had knowledge of the
Union's March 20 and 21 demands on Respondent. Durliat
kept in close touch with Business Agent Liggett. On March
4, 1970, Durliat telephoned Liggett after being questioned
by Nickens. Earl knew, of course, that he himself talked to
Business Agent Liggett in Toledo in early February and
that the Union agreed to represent him on March 3.6
I find and conclude that Respondent, in violation of
Section 8(a)(3) and (1) of the Act, discharged Durliat on
March 21, 1970, from his jobs at the Cla-Zel Theater of
projectionist for 2 nights a week and replacement or fills-in
for other projectionists, doormen, and ushers during the
remainder of the week, and discharged Earl on March 25,
1970, from his job as regular projectionist at the Portage
Drive-In Theater, because they joined and assisted the
Union. The discharges were to discourage membership in
the Union and to dissipate the strength of the Union at the
Cla-Zel and the Portage Drive-In Theaters.
The sequence of the events credited shows that Respon-
dent's defense that Durlfat was discharged because
Durliat's employment, by his own words, with Northern
Ohio Telephone Company was a full-time job and his
rejection of the job of manager trainee made him an
undesirable employee is clearly pretextual when it is
considered with the evidence of the Union's notice of
majority representation and demand for recognition and
bargaining on March 20 and 21, 1970, the date of the
discharge, and the evidence that Nickens was satisfied on
March 18, 1970, to have Durliat continue his work at the
Cla- Zel I Theater in spite of Durliat's decision to take a part-
time job at the telephone company, which I have found was
part time, and that Durlfat informed Nickens it was part
time, and to withdraw his application for appointment as a
manager trainee, and the evidence of Nickens' interroga-
tion of Durliat regarding his membership in and activity on
behalf of the Union and Manager Krassow's statement to
Mussman that Durliat and Earl were fired because of their
connections with the Union. Durliat was discharged on the
evening of March 21 following the notice and demand from
the Union. He was considered to be manager material by
Manager Nickens and President Armstrong of Respondent
only after Respondent became aware that he may have
made a connection with the Union. Nickens testified he
was after him 8 or 9 months for the position of manager
trainee. It appears to me to be more than a coincidence that
on March 9 and 10, 1970, just a few days after Nickens
received information that Durliat made a connection with
the Union, that Respondent should show interest in
Durhat's application for a manager trainee that would take
him away from Bowling Green, after its long disinterest in
his application. Durliat's discharge was to prevent or defeat
majority representation by the Union at the Cla-Zel
Theater.
Earl's discharge occurred on March 25, 1970, following
the Union's notice and demand of March 20 and 21, 1970.
Earl worked Saturday, March 21, and was to work Sunday,
March 29. He was to be on leave on March 27 and 28. The
Portage Drive-in was opened only weekends at the
beginning of the season . Manager Nickens told him on
March 25 he was not reliable because he did not give
sufficient notice that he was unable to work on March 20
and 22 and because he gave the notice to Krassow instead
of giving it directly to him. Respondent relies on this
evidence as evidence of legitimate and substantial reasons
for the discharge. But it withers away when considered with
the other evidence of record.
Earl gave Krassow notice on March 13 or 14, a week
before he was scheduled to work on March 20. He gave
Krassow the notice at the Cla-Zel where Krassow was
manager trainee, where Nickens was, and where he does
business. Since Krassow was a member of management of
the Cla-Zel and also manager of the Portage Drive-In, Earl
was not remiss in his responsibilities as an employee of the
Portage Drive-In, but acted reasonably and responsibly,
when he gave the notice to Krassow at the Cla-Zel.
Nickens' complaint of only 4 days' notice that Earl had to
be replaced on March 20 and 22 should have been directed
to Krassow. Krassow forgot to inform Nickens for 2 or 3
days of the notice Earl gave him, and that he said to Earl it
was O.K. to take the leave. Respondent by Nickens
assigned Cordel Coy 4 days before March 20 to work in
Earl's place at the Portage Drive-In on March 20 and 22.
Coy worked those 2 nights. However, after the Union's
notice of March 20 and 21 that it represented the
projectionists at the Drive-In reached Respondent no later
than the afternoon of March 21, Respondent by Krassow
interrogated Earl in the evening of March 21, about talking
to the Union, and, on March 25, 1970, Respondent by
Nickens notified Earl that he was discharged from his
projectionist job at the Drive-In for short and indirect
notice of his unavailability for work on March 20 and 22,
even though Earl's notice was satisfactory at least until
March 20 or 21. Then there are Krassow's admissions on
March 27 and 29, and in April, that Earl and Durlfat were
discharged because of connections with the Union.
There is no evidence that Earl was less than an able and
skillful employee. Like Durlfat, his demeanor and testimo-
ny showed him to be a fine, responsible, and ambitious
young man. Respondent' s defense of the discharge of Earl,
like that of Durliat, is specious on its face, and when
considered with General Counsel's evidence is pretextual.
The discharge was to defeat or prevent majority representa-
tion by the Union of projectionists at the Portage Drive-In
Theater.
I find and conclude that evidence presented by General
Counsel shows an impact of Respondent's conduct on
rights of Durliat and Earl protected by Section 8(a)(3) and
and Espen Struksnes Construction Co, Inc, 165 NLRB 1062, does not questioning Earl, even if it is assumed that Respondent was seeking to find
apply out if the Union represented a majority of the projectionists at the Portage
6 Krassow did not observe the requirements of Struksnes, supra, in Drive- In following the Union's notice and demand
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) of the Act that placed the burden on Respondent of
advancing legitimate and substantial business justifications
for the discharge of Durliat and Earl, and that Respondent
by substantial evidence on the record as a whole has failed
to meet this burden. I further find and conclude that
General Counsel, in any event, by a preponderance of the
evidence on the record as a whole, has showed antiunion
motivation behind the discharges. The discharges were in
violation of Section 8(a)(3) and (1) of the Act.7
I find and conclude that Respondent has not violated
Section 8(a)(5) of the Act by refusing to recognize the
Union as bargaining representative of the projectionists at
the Portage 'Drive-In or to meet and negotiate
collective-bargaining contracts with these employees It is
clear and I find that a unit of projectionists at the Portage
Dnve-In is an appropriate unit within the meaning of
Section 9 of the Act. At the time of the demand for
recognition and bargaining, Respondent and the Union
were parties to four separate collective-bargaining con-
tracts for four separate units of projectionists at four of
Respondent's drive-in theaters. There is no evidence that a
unit of projectionists at the Portage Dnve-In differs from
the unit of projectionists at each of the other four drive-in
theaters.
But I have found that Durliat was an employee at the
Cla-Zel and not the Portage Drive-Iii] at the time the
demand for recognition was made on March 20 and 21,
1970, and have found that he was discriminated against on
March 21 while an employee at the Cla-Zel. He was an
employee at the Cla-Zel on May 6, 1970, when the second
demand was made and he remains an employee at the
Cla-Zel until the discrimination is remedied, and thereaft-
er until he is transferred elsewhere by Respondent in the
normal course of business and absent discrimination, or he
is terminated or leaves without discrimination. Without
Durliat, the unit at the Portage Drive-In had only one
employee at the time the demand for recognition and
bargaining was made on March 20 and 21, 1970. He was
Richard Earl. On May 6, 1970, when the Union again
demanded recognition and bargaining for the projectionists
at the Portage 'Drive-In, Cordel Coy and David Clingo
were projectionists at the Portage Drive-In, and Earl had
the status of projectionist at the Portage Drive-In.
However, there is evidence that only Earl had authorized
the Union to be collective-bargaining representative. There
is no evidence that Coy or Clingo had given the Union this
authorization. In addition, there is no evidence that the
additional projectionist employed between April and the
time of the hearing for the Portage Drive-In had given the
Union this authorization. At no time, therefore, has a
majority of a unit of two or more projectionists at the
Portage Drive-In authorized the Union to be
collective-bargaining representative.
Respondent had no duty to bargain for the unit of
projectionists at the Portage Drive-In when it was a
one-employee unit, and has not had a duty to bargain for
7 N L R B v Great Dane Trailers, 388 U S 26, 34; N LR B v
Fleetwood Trailers Co, 389 US 375, Kamp Togs, Inc, 148 NLRB 196,
Cotton Lumber Company, 182 NLRB No 43, N L R B v Tru-Line Products
Company, 324 F 2d 614, 616 (C A 6), cert denied 377 U S 906, enfg 138
NLRB 964, N L R B v. D'Armigene, Inc, 353 F 2d 406,409-411 (C A 2),
enfg 148 NLRB 2, N L R B v WTVJ, Inc, 268 F 2d 346, 347-348 (C A
this unit after it consisted of two or more projectionists as at
no time has a majority of the projectionists authorized the
Union to act as a bargaining representative. Respondent
has not refused to bargain for the projectionists at the
Portage Drive-In within the meaning of Section 8(a)(5) of
the Act, and has not, therefore, violated this section of the
Act, as alleged in the complaint .8
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with operations described
in section II, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Respondent has been found to have engaged in conduct
violative of Section 8(a)(1) and (3) of the Act. I shall
recommend that it be ordered to cease and desist from
engaging in such conduct , and to take the affirmative
action specified . It is designed to effectuate the policies of
the Act. The extent of Respondent's illegal conduct calls for
a broad order . N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532
(C.A. 4).
Upon the basis of the foregoing findings of fact and the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, in violation of Section 8(a)(1) of the Act,
has interrogated and threatened employees with respect to
their rights under Section 7 of the Act to become members
of the Union, engage in union activity and other concerted
activity, and select and authorize the Union to be
collective-bargaining representative.
4. Respondent, in violation of Section 8(a)(3) and (1) of
the Act, discriminatorily discharged employee John Durliat
from his employment at Respondent's Cla-Zel Theater,
Bowling Green, Ohio, because he joined the Union,
engaged in union and other concerted activity to assist the
Union, and selected and authorized the Union to be his
collective-bargaining representative.
5. Respondent, in violation of Section 8(a)(3) and (1) of
the Act, discriminatorily discharged employee Richard Earl
from his employment at Respondent's Portage Drive-In
Theater, Bowling Green, Ohio, because he joined the
Union, engaged in union and other concerted activity to
5), enfg 120 NLRB 1180, Ames Ready-Mix Concrete, Inc, 170 NLRB No
174, enfd 411 F 2d 1159,' (C A 8)
s Westinghouse Electric Corporation, 179 NLRB No. 48, 72 LRRM 1316,
Joseph A White, d/b/a Joe White I GA, 154 NLRB 1; Faulks Bros
Construction Co, 176 NLRB No. 37, 71 LRRM 1281, Nash-Finch Company
d/b/a Jack and Jill Stores, 178 NLRB No. 77, 72 LRRM 1144
ARMSTRONG CIRCUIT, INC. 103
assist the Union, and selected and authorized the Union to
be his collective-bargaining representative.
6. Respondent has not refused to bargain with the
Union in violation of Section 8(a)(5) of the Act, as alleged
in the complaint, and this allegation in the complaint
should be dismissed.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER
Respondent Armstrong Circuit, Inc. its officers, agents,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating and threatening employees in regard to
their rights to become members of the Union, or any other
labor organization, to engage in union or other concerted
activity to assist the Union, or any other labor organization,
and to select or authorize the Union, or any other labor
organization, to act as their collective-bargaining repre-
sentative.
(b) Discouraging membership in the Union, or any other
labor organization, by discharging employees because they
join the Union, or any other labor organization, engage in
union activity or other concerted activity to assist the
Union, or any other labor organization, or select or
authorize the Union, or any other labor organization, to act
as their bargaining representative, or otherwise discriminate
against them in regard to the hire and tenure of their
employment or any term or condition of employment for
the above-stated reasons.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist the Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining, or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act.
(a) Offer immediate reinstatement to employee John
Durliat to his formerjob or, if thatjob no longer exists, to a
substantially equivalent job, at Respondent's Cla-Zel
Theater in Bowling Green, without prejudice to his
seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him with interest at 6
percent per annum, as provided in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
(b) Offer immediate reinstatement to employee Richard
Earl to his former job or, if that job no longer exists, to a
substantially equivalent job, at Respondent's Portage
Drive-In Theater, Bowling Green, without prejudice to his
seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, with interest at 6
percent per annum , as provided in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and material to Respondent's compliance with the
provisons of this Order.
(e) Post at its theaters in Bowling Green, Ohio, copies of
the attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt by the
Respondent of this Trial Examiner's Decision and Recom-
mended Order, what steps the Respondent has taken to
comply therewith.io
It is recommended that unless on or before 20 days from
the date of the receipt of this Trial Examiner's Decision and
recommended Order the Respondent notifies the Regional
Director in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board
issue an order requiring the Respondent to take the action
aforesaid. It is further recommended that the complaint,
insofar as it alleges a violation of Section 8(a)(5) and (1) of
the Act, be dismissed.
9 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate or threaten employees, or
interfere with, coerce, or restrain them in regard to their
rights to become members of Local 228 of the
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada, AFL-CIO, or any other labor
organization, to engage in union or other concerted
activity, to assist this Union, or any labor organization,
or to select or authorize it to act as their
collective-bargaining representative.
WE WILL NOT discourage membership in the above
Union, or any other labor organization, by discharging
or transferring employees because they become mem-
bers of this Union, or any other labor organization, or
assist it , or any other labor organization, to act as their
collective-bargaining representative, or otherwise dis-
criminate against them in regard to the hire and tenure
of their employment, or any term or condition of
employment, for these reasons.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
rights to self-organization, to form labor organizations,
to join or assist the Union, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, or to engage in any other
concerted activities for the purpose of collective
bargaining, or other mutual aid or protection.
WE WILL offer immediate reinstatement to John
Durliat to his former job or , if that job no longer exists,
to a substantially equivalentjob at our Cla-Zel Theater,
Bowling Green , Ohio, and to Richard Earl to him
former job if that job no longer exists, to a substantially
equivalent job, at our Portage Drive -In Theater,
Bowling Green, Ohio.
WE WILL notify John Durllat and Richard Earl if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
All our employees are free to become , or refrain from
becoming, members of Local 228 of the International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada, AFL-CIO, or any other labor organization.
Dated By
ARMSTRONG CIRCUIT, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1695
Federal Office Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.