Cine Enterprises

National Labor Relations Board - Board Decisions

Jan 30, 1991

301 N.L.R.B. 446 (N.L.R.B. 1991)

446
301 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 363 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
The judge erroneously referred to Al Barber as ‘‘Parker’’ in fn. 3 of his
decision. We correct this error.
2 All dates are in 1988 unless noted.
3 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
4 The General Counsel also excepts to the judge’s failure to draw an adverse
inference against the Respondent for failing to call Production Manager Kline
as a witness. As Kline was terminated by the Respondent prior to the hearing,
however, it cannot reasonably be assumed that he is favorably disposed to-
wards it. In these circumstances, it is well settled that an adverse inference
will not be drawn. Property Resources Corp., 285 NLRB 1105 fn. 2 (1987),
enfd. on other grounds 863 F.2d 964 (D.C. Cir. 1988).
Although we reject the General Counsel’s adverse inference argument, be-
cause Kline did not testify we similarly discount the judge’s speculations why
Kline refused to identify himself to the alleged discriminatees on March 23,
or why he unlawfully stated that Teamsters drivers would not be hired.
5 Specifically, in 1985, Al Barber filed charges against Mason during the
production of ‘‘Murphy’s Romance,’’ claiming that Mason caused another
union member to be fired. Al Barber testified that after the Union investigated
the matter, the discharged employee was reinstated. Barber said that the rein-
statement angered Mason, who threatened to quit. In 1986, Al Barber filed
charges alleging that Mason had caused a union member to be fired and others
not to be hired on the set of ‘‘American Anthem.’’ Mason testified that these
charges were dropped. Finally, in 1987, Al and Dino Barber, along with other
union members, filed intraunion charges against Mason for crossing the
Union’s informational picket line. As a result of the 1987 charges, Mason,
then a supervisor, was expelled from the Union for nonpayment of a fine. He
was subsequently readmitted after the fine was paid.
6 The judge characterized Al Barber’s entrance into the production office as
‘‘bullish’’ and ‘‘intimidating,’’ based on Barber’s failure to knock before en-
tering, his approaching the Respondent’s representatives closer than was rea-
sonable, and his asking ‘‘Where is Hank Kline?’’ in a voice louder than was
necessary. Although Al Barber exhibited behavior that arguably would be un-
conventional in the traditional job setting, the alleged discriminatees and the
Respondent’s industry are somewhat atypical. Thus, Abli and the Barbers, all
physically imposing men, make their living by driving vehicles—frequently at
Cine Enterprises, Inc. and Transport, Local Deliv-
ery & Sales Drivers, Warehousemen and Help-
ers, Mining and Motion Picture Production,
State of Arizona, Local Union No. 104, a/w
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Case 28–CA–9135
January 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 12, 1989, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed a responsive brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s findings1 and conclusions and to
adopt the recommended Order, only to the extent con-
sistent with this Decision and Order.
1. The judge found that the General Counsel failed
to establish a prima facie case that the Respondent had
violated Section 8(a)(3) and (1) of the Act by refusing
to hire drivers Al Barber, Dino Barber, and Demir Abli
for its television movie ‘‘Desert Rats.’’ The judge con-
cluded that Abli and the Barbers were refused employ-
ment, not because of their union affiliation or activi-
ties, but because of their confrontational approach
when seeking work with the Respondent on March 23,
1988.2 The judge further found that the Respondent’s
transportation coordinator typically hired drivers who
previously had worked for him, which Abli and the
Barbers had not, that the transportation coordinator had
many other driver applicants from which to choose,
and that the Respondent, in fact, hired eight union em-
ployees to perform production work. On these bases,
the judge concluded that the General Counsel failed to
establish that the Respondent unlawfully refused to
hire the three alleged discriminatees.
The General Counsel excepts claiming, inter alia,
that it met its initial burden under Wright Line3 by es-
tablishing that the union membership and protected
union activities of Abli and the Barbers were moti-
vating factors in the Respondent’s decision to deny
them employment or to refuse to consider them for
employment. The General Counsel further maintains
that the Respondent failed to rebut this prima facie
case by demonstrating that the alleged discriminatees
would have been denied employment for reasons unre-
lated to their union or protected activities.4 For the fol-
lowing reasons, we find merit in the General Counsel’s
exceptions and conclude that the Respondent’s refusal
to hire Demir Abli, Al Barber, and Dino Barber, or to
consider them for hire, violated Section 8(a)(3) and
(1).
The Respondent is engaged in the television, movie,
and entertainment industry. On March 16, it com-
menced production of ‘‘Desert Rats’’ in Tempe, Ari-
zona. On March 23, Teamsters Local 104 members
and experienced movie drivers, Abli, Al Barber, and
Dino Barber visited the hotel where the Respondent’s
production offices were located to apply for driving
work. Outside the hotel, they met the Respondent’s
transportation coordinator, Kenny Mason, who in-
formed them that Production Manager Kline was re-
sponsible for hiring. Abli and the Barbers knew Mason
because he was a fellow Local 104 member and be-
cause the Barbers previously had filed intraunion
charges against him.5
After speaking to Mason, Abli and the Barbers en-
tered the hotel and attempted to locate Kline. Initially,
they entered the open door of a production office
where several men, including Kline, Producer Malden,
and Location Manager Marshall, were meeting. None
of the alleged discriminatees knew Kline or Malden.
Al Barber asked where they might find Kline.6 Instead
447CINE ENTERPRISES
high speeds—on movie productions. They must compete with approximately
200 movie industry drivers in Arizona for short-term movie projects like the
Respondent’s, which they frequently learn of through industry contacts and
word-of-mouth. Because of the strong competition and brief production sched-
ules, movie industry drivers must ‘‘hustle’’ for work and frequently seek out
job opportunities on production sites. In these circumstances, and given the
brief foray into the production office, Al Barber’s single question of the Re-
spondent, and the three’s prompt exiting of the office when directed by Kline,
we find less than compelling the Respondent’s claim that they were denied
work solely because they lacked social graces. Moreover, as discussed below,
the Respondent’s contention is undermined further by its marked animus to-
ward the Union and by its failure to apprise the three that their behavior was
unacceptable.
7 Given the Barbers’ history of filing charges against Mason, the
discriminatees understandably were interested in ascertaining who was respon-
sible for hiring drivers for ‘‘Desert Rats.’’
8 Based on this series of events, we later characterize Kline’s behavior as
aggressive, confrontational and provocative. (See fn. 11, infra.) The dissent as-
serts that this characterization is neither supported by the record nor in accord
with the judge’s findings. Nonetheless, this is the sequence of events found
by the judge in sec. III,B of his decision, and it is fully supported by the cred-
ited testimony.
9 Malden testified that Mason was responsible for hiring drivers and trans-
portation equipment employees under the supervision of Kline. Malden admit-
ted, however, that he retained ultimate authority to hire and fire employees
on the ‘‘Desert Rats’’ production.
of identifying himself, Kline replied either ‘‘He isn’t
here,’’ or ‘‘Nobody is here,’’ and directed them to an
adjoining production office. After they left, Marshall
said that Abli and the Barbers were from the Team-
sters Union and that he was certain Al Barber was
there to talk about the Union.
Once in the second office, the three asked the Re-
spondent’s production coordinator where they could
find Kline. The coordinator, who knew them from
other jobs, and who closely associated Al Barber with
the Teamsters Union, escorted the three men back into
the office they had just vacated; only Kline and
Malden remained. After introducing Kline to the al-
leged discriminatees, the coordinator left. Al Barber
then asked if there were any driving jobs. Kline ac-
knowledged that there were and either said ‘‘We will
take your name [and] . . . make a list,’’ or ‘‘We will
take your names and we [will] call you back later.’’
One of the three asked Kline if he was doing the hir-
ing. When Kline demurred, saying that he was merely
assembling a list of applicants, and that Mason was
hiring, Dino Barber said that Mason had told them that
Kline was doing the hiring. Kline repeated that he was
merely taking names and that Mason was responsible
for hiring. Because of Kline’s and Mason’s conflicting
claims, Dino Barber left to fetch Mason, who was just
outside the office.7
When Dino Barber and Mason returned, Kline asked
Mason if he knew the three men. Mason admitted that
he did, stating, ‘‘Yeah, they are members from Local
104.’’ The alleged discriminatees, whose testimony
was credited by the judge, stated that Mason pointed
at them and spoke sarcastically when identifying them
to Kline. Kline then announced, ‘‘We are not [a] union
show, and we are not hiring any union members from
Local 104 or any other Teamster local.’’ When Al
Barber asked Kline if he knew what he was saying,
Kline responded that he did. Al Barber then turned to
Malden, asked who he was, and inquired whether he
had heard Kline’s statement. When Malden affirma-
tively nodded, Kline interjected, ‘‘I mean it.’’8
Abli and the Barbers left the Respondent’s offices.
Approximately 20 minutes later, Malden notified
Mason that he never wanted to see ‘‘those goons’’
again. Mason understood Malden to mean that Abli
and the Barbers were not to be hired.
The Respondent hired approximately 34 transpor-
tation employees for ‘‘Desert Rats,’’ only 5 of whom
were hired before April 1. Eight of the hires (including
Mason) were Local 104 members. Actual production
began on April 6 and concluded on April 26 or 27.
Contrary to the judge, we find that the evidence
clearly establishes a prima facie case that the alleged
discriminatees’ union membership and activities were
motivating factors in the Respondent’s decision not to
hire them or consider them for employment. Wright
Line, supra at 1089. Initially, we note that the judge
applied the incorrect standard when evaluating whether
a prima facie case had been established. The test is not
whether the Respondent has proffered a lawful defense
for its action, but whether, viewed in isolation, the
General Counsel’s evidence supports an inference that
protected activity was a motivating factor in the refusal
to hire. Bali Blinds Midwest, 292 NLRB 243 fn. 2
(1989). Under this standard, the General Counsel clear-
ly established a prima facie case.
Even before Abli and the Barbers had the oppor-
tunity to request work on March 23, Kline and Malden
learned from Marshall that they were union members
and that Al Barber was there to speak on behalf of the
Union. Shortly after Al Barber asked Kline if drivers
would be hired, Mason again identified the alleged
discriminatees, disparagingly, as union members.
Knowing that Abli and the Barbers were Local 104
members, and that Al Barber was a union spokesman,
Kline forcefully and unlawfully rejected their employ-
ment request by announcing that no Local 104 mem-
bers, nor indeed any Teamsters members, would be
hired for driving work. Instead of repudiating Kline’s
unlawful statement, Malden, his superior,9 merely af-
firmed that it had been made. Considered in toto, these
statements and conduct by Kline, Mason, and Malden
provide ample evidence that the discriminatees’ union
affiliation and/or activities were motivating factors in
the Respondent’s decision to deny them employment.
We further find that the Respondent failed to rebut
this prima facie case by demonstrating that Abli and
the Barbers would not have been hired regardless of
their union affiliation or activities. Given the Respond-
ent’s knowledge of this union membership and activi-
ties, its unlawful statement that union members would
not be hired, and its failure to repudiate that statement,
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Respondent also claims that its hire of eight union members in the
transportation department establishes that its refusal to hire Abli and the Bar-
bers was not discriminatorily motivated. This argument is not persuasive.
Other than Mason, only two union members were hired before the instant
8(a)(3) charges were filed. One driver was specifically requested by the art
department and the other was the only union member who did not file a griev-
ance against Mason on ‘‘Unholy Matrimony,’’ discussed infra.
11 Just as we reject the Respondent’s argument that Mason’s hiring of union
drivers after March 23 proves that Abli and the Barbers lawfully were denied
employment, we discount the General Counsel’s claim that Mason’s hostility
toward the Barbers for filing intraunion charges against him supports a viola-
tion. Mason’s superiors, Kline and Malden, made it abundantly clear on March
23 that Abli and the Barbers would not be considered for employment. In
these circumstances, any animus Mason harbored against the Barbers appar-
ently was not a factor in the decision to deny them work. As discussed, infra,
however, such animus would be relevant in evaluating Mason’s subsequent
hiring decisions.
12 Since March 1987 Jordan has been suspended from the Union for non-
payment of dues.
13 The judge credited Jordan’s testimony over that of Mason. Fruin did not
testify. Although he was subpoenaed by the General Counsel and flew in for
the hearing from his California home, Fruin had to leave before he was sched-
uled to testify. It is unclear whether Fruin is a union member.
14 An insert car carries a camera crew and is used for filming chase scenes.
15 On the contrary, the judge found that the insert car, as reconstructed by
Jordan, was in very good shape, which Mason well knew.
the Respondent bears an especially heavy burden of es-
tablishing that the alleged discriminatees would law-
fully have been denied employment for reasons not as-
sociated with their union activity. The Respondent has
not met that burden.
Initially, we reject the Respondent’s claim that the
demeanor of Abli and the Barbers during their first
meeting with the Respondent on March 23 resulted in
the refusal to hire. As we previously observed, this
claim is less than compelling given the facts of this
March 23 incident and the atypical nature of the indus-
try. Moreover, assuming that the alleged dis-
criminatees’ conduct exceeded the bounds of accept-
able behavior under the circumstances, we find it sig-
nificant that the Respondent neither apprised them of
this fact, nor even alluded to their behavior when re-
fusing them work. On the contrary, the Respondent ex-
pressed strong antiunion animus and unequivocally an-
nounced that union members would not be hired: ‘‘We
are not [a] union show and we are not hiring any
union members.’’
We also reject the contention that this subsequent
conduct on March 23 justified the Respondent’s deci-
sion to deny the three employment. Any inappropriate
conduct the three exhibited in their second meeting
with Kline, Malden, and Mason directly resulted from
the Respondent’s provocations: Kline’s crude efforts to
dismiss them and Mason’s and Kline’s inconsistent
statements as to hiring authority. It would not be sur-
prising if the three were also unsettled by Mason’s sar-
casm when he identified them to Kline, and by Kline’s
forceful statement that union members would not be
hired. In these circumstances, it was not untoward for
Al Barber to brusquely approach Malden, ascertain his
identity, and inquire whether he ratified Kline’s stated
unlawful intention not to hire union members.
Finally, we reject the Respondent’s defenses that no
drivers were being hired when Abli and the Barbers
applied for work on March 23, that Mason had many
other applicants, and that the discriminatees had not
previously worked for Mason.10 First, the complaint
alleges both an unlawful refusal to hire the three and
a refusal to consider them for hire. Thus, whether the
Respondent was actually hiring drivers on March 23 is
not controlling. The Respondent unequivocally in-
formed the alleged discriminatees on that date that
they would not be considered for employment. Second,
the availability of other applicants and the alleged
discriminatees’ lack of work experience with Mason
similarly is irrelevant. The Respondent acknowledged
that the decision not to hire Abli and the Barbers was
made on March 23. Any hiring that Mason undertook
after that date, or any criteria he used in evaluating ap-
plicants, therefore is not determinative. Finally, as to
the Respondent’s defense that the three previously had
not worked for it, Mason testified that he did hire driv-
ers who had not worked for him before.11
Accordingly, because we find that the General
Counsel established a prima facie 8(a)(3) case, and that
the Respondent did not meet its burden of rebutting it,
we reverse the judge and find that the Respondent vio-
lated the Act by unlawfully refusing to hire or consider
for hire Al Barber, Dino Barber, and Demir Abli.
2. We further find, contrary to the judge, that the
Respondent violated Section 8(a)(3) and (1) by refus-
ing to employ, or consider for employment, Luke Jor-
dan and John Fruin.
Luke Jordan is an experienced movie driver and
Local 104 member.12 He has known Al Barber for
over 20 years, is a friend of both Barbers, and attended
school with Dino Barber.
On March 30, Jordan and Fruin went to the Re-
spondent’s offices to apply, respectively, for driver and
key grip or driver positions. According to the credited
testimony,13 Jordan asked Mason for driving work and
additionally offered to rent the Respondent an insert
car14 that he had purchased from Al Barber and recon-
structed. Fruin similarly offered to rent his pickup
truck. In response to these offers, Mason retorted that
he was not interested in ‘‘anybody affiliated with Al
Barber or any piece of equipment affiliated with Al
Barber in any way.’’ Jordan stressed that he had only
purchased an insert car from Barber, that he was not
affiliated with him, and that he and Fruin merely
sought driving work. Mason replied that, as far as he
was concerned, Jordan was affiliated with Barber.
The judge rejected the Respondent’s argument that
Jordan and Fruin were denied employment because
Jordan had conditioned his hire on the rental of an in-
sert car that Mason considered unsafe.15 Instead, the
judge found that Jordan and Fruin were denied em-
ployment because of Jordan’s suspected connection
449CINE ENTERPRISES
with Al Barber. Nonetheless, the judge concluded that
no violation occurred because Al Barber lawfully had
been denied employment: ‘‘[I]t follows . . . that the
. . . evidence regarding Mason’s subsequent refusal to
consider Jordan and Fruin for employment . . . must
similarly be found to be insufficient to warrant the
finding of unlawful [motive].’’ infra. Although the
judge noted that Mason’s treatment of Jordan and
Fruin may have been unfair or unwarranted, he con-
cluded that it did not violate the Act. We disagree.
Because the Respondent violated the Act by refusing
to employ Al Barber based on his union membership
and activities, it follows that Mason’s rejection of Jor-
dan’s and Fruin’s job requests also is unlawful. Thus,
Mason clearly denied Fruin and Jordan employment
because of Jordan’s suspected affiliation with Al Bar-
ber. Whether Mason made this decision based on per-
sonal animosity against Al Barber for filing intraunion
charges against him, or on Kline’s March 23 directive
that union members not be hired, or because he under-
stood Malden’s comment about not seeing ‘‘goons’’
again to mean that no union members, or any individ-
uals affiliated with Al Barber, should be hired, Mason
acted unlawfully in denying Jordan and Fruin employ-
ment.
3. The judge found that the Respondent violated
Section 8(a)(1) by refusing to hire Harry McCrorey be-
cause he signed a grievance petition during the produc-
tion of ‘‘Unholy Matrimony.’’ No exceptions were
taken to this finding. The General Counsel argues that
the refusal to hire McCrorey additionally violates Sec-
tion 8(a)(3). For the following reasons, we agree.
The facts are fully set forth in the judge’s decision.
Briefly, McCrorey is a Local 104 member and experi-
enced wrangler driver who has worked with Mason on
numerous shows, and socialized with Mason. In early
1988, Mason, as transportation coordinator, hired
McCrorey for the movie ‘‘Unholy Matrimony.’’ In late
February, during the production of ‘‘Unholy Matri-
mony,’’ Mason told McCrorey he had prospects for
employment on another movie. When McCrorey indi-
cated that he would again like to work for Mason,
Mason assured him, ‘‘You will be on it.’’
In March, a dispute arose between the ‘‘Unholy
Matrimony’’ management and drivers over the drivers’
job descriptions and hours of work. On March 5,
McCrorey and six other drivers signed a petition
claiming an additional day’s pay. Five of the seven pe-
tition signers were Local 104 members. On the day
after this petition was submitted to Mason, all the sign-
ers were discharged. Unfair labor practice charges
were subsequently filed.
After his discharge, McCrorey learned that Mason
was the transportation coordinator on ‘‘Desert Rats.’’
McCrorey repeatedly telephoned Mason at work and at
home, and wrote to Mason and Kline, in an effort to
obtain work on the movie. When he received no re-
sponse to his inquiries, McCrorey and his wife visited
the Respondent’s production offices on March 28.
McCrorey spoke with Mason, told him he would like
to work on ‘‘Desert Rats,’’ and said he hoped that
Mason would not hold the ‘‘Unholy Matrimony’’
grievance against him. According to the credited testi-
mony, Mason replied that ‘‘In this business . . . you
don’t know who your friends are.’’ Mason further stat-
ed that the petition had put him in a bad spot with the
‘‘Unholy Matrimony’’ production manager. Mason
said that he had assured the production manager that
union drivers would not cause problems, and that the
petition belied his assurances. When McCrorey re-
peated his request for work, and his appeal that Mason
not hold the ‘‘Unholy Matrimony’’ incident against
him, Mason replied that the Union might picket
‘‘Desert Rats.’’ McCrorey stated that he would not
cross a picket line, but again requested work. Mason
answered that there was nothing he could do for
McCrorey.
The foregoing facts clearly establish an 8(a)(3) vio-
lation in addition to the 8(a)(1) violation found by the
judge. Thus, by denying McCrorey’s March 28 em-
ployment requests because of the ‘‘Unholy Matri-
mony’’ petition, Mason plainly was reacting to
McCrorey’s union as well as protected concerted ac-
tivities. Mason was upset by the ‘‘Unholy Matrimony’’
petition which McCrorey and, inter alia, several other
Local 104 members signed, because it nullified Ma-
son’s representations to his boss that ‘‘union drivers’’
would pose no problem on ‘‘Unholy Matrimony.’’
Thus, on its face, Mason’s March 28 statement to
McCrorey establishes an 8(a)(3) refusal to hire. More-
over, in rejecting McCrorey’s employment request,
Mason gave credence to his record testimony that,
when deciding to hire or not hire drivers, he takes into
account whether they previously have given him a dif-
ficult time. Admittedly, McCrorey, like the Barbers,
had given Mason trouble. As this ‘‘trouble’’ was privi-
leged union and protected concerted activity, however,
it can not lawfully support a refusal to hire. This con-
clusion is strengthened, by other evidence of the Re-
spondent’s animus and unlawful conduct. Thus, just 5
days before McCrorey spoke with Mason, Kline pro-
nounced that union members would not be hired and
the Respondent unlawfully refused to hire Abli and the
Barbers.
In all of these circumstances, we find that the Re-
spondent violated Section 8(a)(3) as well as Section
8(a)(1) by refusing to hire Harry McCrorey.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 In his remedy discussion, the judge apparently concludes that McCrorey’s
entitlement to backpay ceased on April 11 when the Union began picketing
the Respondent—based on McCrorey’s statement to Mason that he would not
cross a picket line. We disagree. The fact that McCrorey represented to Mason
on March 28 that he would honor a potential picket line does not determine
what McCrorey would have done when confronted with the reality of pick-
eting. Depending on such factors as McCrorey’s economic situation, the nature
of the strike, and, indeed, whether a strike would have occurred without the
Respondent’s unfair labor practices, or simply a change of heart, McCrorey’s
March 28 position might have changed. As it is well settled that any ambiguity
will be resolved against the wrongdoer, we will not terminate McCrorey’s
backpay rights solely on the basis of his prestrike representations to the Re-
spondent. See generally NLRB v. Textile Workers Local 1029, Granite State
Joint Board, 409 U.S. 213 (1972); A & T Mfg. Co., 280 NLRB 916, 917
(1986).
2. The Respondent told applicants for employment
that it would not hire union members, in violation of
Section 8(a)(1) of the Act.
3. The Respondent failed and refused to hire and to
consider for hire Al Barber, Dino Barber, Demir Abli,
Luke Jordan, and John Fruin in violation of Section
8(a)(3) and (1) of the Act.
4. The Respondent failed and refused to hire Harry
McCrorey in violation of Section 8(a)(1) and (3) of the
Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
AMENDED REMEDY
Having found that the Respondent engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist and take certain affirmative action designed
to effectuate the policies of the Act. We shall order the
Respondent to make whole Al Barber, Dino Barber,
Demir Abli, Luke Jordan, John Fruin, and Harry
McCrorey for any loss of earnings and other benefits
they suffered as a result of the Respondent’s unlawful
refusal to hire them or consider them for hire for
‘‘Desert Rats.’’ F. W. Woolworth Co., 90 NLRB 289
(1950). Interest is to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).16
ORDER
The National Labor Relations Board orders that the
Respondent, Cine Enterprises, Inc., Tempe, Arizona,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Refusing to hire employees because they en-
gaged in union or protected concerted activities.’’
2. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph.
‘‘(c) Refusing to hire or consider for hire employees
because of their union membership or activities.’’
3. Substitute the following for paragraph 2(a).
‘‘(a) Make whole Al Barber, Dino Barber, Demir
Abli, Luke Jordan, John Fruin, and Harry McCrorey
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the man-
ner set forth in amended remedy section of this Deci-
sion and Order.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) of the Act by refusing to hire
McCrorey because of his protected concerted activities.
I do not agree with my colleagues, however, that the
Respondent violated Section 8(a)(3) by failing to hire
McCrorey or by failing to hire or consider for hire the
five other alleged discriminatees.
In this regard, I agree with the judge that the Re-
spondent did not hire Al and Dino Barber and Abli be-
cause of their rude and intimidating behavior during a
meeting where Production Manager Kline, Transpor-
tation Coordinator Mason, and Producer Malden were
present on March 23, 1988. Accordingly, I would dis-
miss this 8(a)(3) allegation of the complaint. Further,
because I would find that the Barbers and Abli were
not hired for nondiscriminatory reasons, I would also
find, in agreement with the judge, that the Respond-
ent’s refusal to hire or consider for hire Jordan and
Fruin was not unlawful. Finally, I would dismiss the
8(a)93) allegation as to McCrorey on the ground that
there is insufficient evidence to establish that the Re-
spondent’s refusal to hire McCrorey was motivated by
antiunion animus.
In my view, the issue of whether the Respondent
violated Section 8(a)(3) by refusing to hire or consider
for hire the six alleged discriminatees turns on the in-
terpretation of Kline’s March 23 statement to the
Barbes and Abli that the Respondent was not a ‘‘union
show’’ and was not hiring union personnel. Inter-
preting Kline’s statement as the climactic moment of
an unhappy and hostile incident that began with the
three alleged discriminatees’ abrupt and unannounced
entrance into the meeting of the Respondent’s officials,
the judge found that Kline’s statement, while a viola-
tion of Section 8(a)(1) of the Act, was made out of
frustration and in an effort to get the three individuals,
as peviously requested, to cease intruding in the man-
agement meeting. I agree.
Although I do not condone Kline’s behavior, I
would not find that it was indicative of an overarching
motive not to hire union members on this project. In
this regard, I note that the majority would discount
Kline’s statement as a pretext to get rid of the Barbers
and Abli on the ground that if Kline was really af-
fected by their rude and intimidating behavior, he
would have told them that that was the real reason that
they would not be considered for hire. In sum, major-
ity would only be satisfied if kline confronted the three
men. This view ignores the fact that Kline’s behavior
451CINE ENTERPRISES
1 I note that the majority finds it ‘‘inexplicable’’ that Kline did not ‘‘call
the discriminatees to task for their behavior’’ on March 23. If Kline had en-
gaged in the ‘‘aggressive, confrontational and provocative behavior’’ on March
23 that the majority asserts he did, I too might find Kline’s silence ‘‘Inex-
plicable.’’ I find, however, that the majority’s characterization of Kline’s be-
havior in this regard is neither supported by the record nor in accord with the
judge’s findings. Consequently, I view the majority’s reinterpretation of
Kline’s behavior on March 23 as no more than a futile attempt to recast the
victim as the bully. I believe that if the majority would view Kline’s reluc-
tance to chastise the Barbers and Abli within the context of the events of
March 23 as found by the judge, it would not find Kline’s failure to chastise
the discriminatees ‘‘inexplicable.’’
1 All dates or time period hereinafter are within 1988 unless otherwise stat-
ed.
throughout the incident was indicative of one who is
seeking to avoid a confrontation. It is in this light that
I interpret Kline’s statement.1
I also disagree with my colleagues’ characterization
of this single incident as two discrete confrontations in
their attempt to give a different interpretation to Kline’
statement. In this regard, I note that the majority
discounsts the rude and intimidating behavior of the
Barbers and Abli when they first entered the Respond-
ent’s meeting unannounced and uninvited on the
ground that the industry involved is ‘‘atypical,’’ imply-
ing that rude and intimidating behavior is the norm in
the movie production industry and that Kline should
not have been threatened by it. The majority would
then ascribe the alleged discriminatees’ rude behavior
on their second intrusion as a response to the actions
of Kline and Mason. The majority then argues that the
alleged discriminatees, whose behavior in the first inci-
dent was rude and abrasive in keeping with this
‘‘atypical’’ industry, were ‘‘stunned’’ by Mason’s
‘‘sarcasm’’ and thus provoked to further rudeness. I do
agree.
Because I would dismiss the 8(a)(3) allegations of
the complaint as they pertain to the Barbers and Abli,
I would also, for the reason explained above, dismiss
the remaining 8(a)(3) allegations as to Jordan, Fruin,
and McCrorey.
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.
WE WILL NOT tell applicants for employment that
we do not intend to hire union members.
WE WILL NOT refuse to hire employees or consider
employees for hire because of their union membership
or activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL make whole Al Barber, Dino Barber,
Demir Abli, Luke Jordan, John Fruin, and Harry
McCrorey for any loss of earnings and other benefits
resulting from the discrimination against them, less any
net interim earnings, plus interest.
CINE ENTERPRISES, INC.
Guy David Knoller, Esq., of Phoenix, Arizona, for the Re-
spondent.
Michael Karlson, Esq. and Mitchell Rubin, Esq., of Phoenix,
Arizona, for the Petitioner.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing with respect to this matter was held
before me in Phoenix, Arizona, on July 26, 27, and 28, 1988.
The charge was filed on March 31, 1988,1 by Transport,
Local Delivery & Sales Drivers, Warehousemen and Helpers,
Mining and Motion Picture Production, State of Arizona,
Local Union No. 104, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (the Union). Thereafter, on May 9, the Re-
gional Director for Region 28 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing alleging a violation by Cine Enterprises, Inc. (Re-
spondent), of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act).
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from the General Counsel and counsel
for Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Arizona corporation, has maintained
an office and place of business in Tempe, Arizona, where it
has been engaged in the television, movie, and entertainment
industry and has been directly involved in the production of
a television series pilot for NBC entitled ‘‘Desert Rats.’’
Based on its operations since March 15, at which time it
commenced its operations in the State of Arizona, the Re-
spondent will annually purchase and receive at its Tempe,
Arizona location, goods and materials valued in excess of
$50,000, and/or rent goods and materials the rental value of
which will exceed $50,000, which goods and materials will
be transported in interstate commerce and delivered to its
places of business in the State of Arizona directly from sup-
pliers located in States of the United States other than the
State of Arizona.
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent had rented six suites on the second floor of the hotel for
its offices during the filming.
3 Al Barber, a former Teamsters business representative in Alaska, appar-
ently utilizes his labor relations background to unofficially advise his fellow-
members who, according to Parker, seek his assistance regarding their rights.
Thus, Barber testified that sometimes he tries to get things ‘‘squared away’’
and acts as a ‘‘mediator’’ on behalf of the employees.
4 Zollman’s account of the incident appears infra.
5 Mason testified that Kline asked, ‘‘Who are these people?’’, and Mason
answered, ‘‘they are Teamsters from Local 104.’’ Mason testified that he
merely intended to answer Kline’s question and was not being sarcastic.
It is admitted, and I find, that the Respondent is now, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings involve the
Respondent’s failure and refusal to hire certain drivers for its
‘‘Desert Rats’’ production. It is alleged that such conduct
was motivated by unlawful considerations, namely, the em-
ployees’ union activity or affiliation, and that by such con-
duct the Respondent has violated Section 8(a)(1) and (3) of
the Act.
B. The Facts
1. The refusal to hire Al Barber, Dino Barber, and
Demir Abli
On March 23, Al Barber, his son, Dino Barber, and Demir
Abli, all members of the Union, visited Respondent’s office
at the Sheraton Mission Palms Hotel in Tempe, Arizona,
where the Respondent, on March 16, had established its pro-
duction headquarters for the making of ‘‘Desert Rats,’’ a
movie for television.
The three individuals, experienced movie industry drivers,
had heard that the filming was about to begin and intended
to apply for driving jobs. When they arrived at the hotel’s
parking lot they saw Kenny Mason, Respondent’s transpor-
tation coordinator, who advised them that Hank Kline, pro-
duction manager, was doing the hiring. The three individuals
then went to the Respondent’s offices2 and walked into an
open door where several of Respondent’s representatives,
namely, Producer Boris Malden, Production Manager Hank
Kline, and Location Manager Gerald Marshall were talking.
The three individuals entered the room and Al Barber
asked where he could find the production manager. Hank
Kline, whom the individuals did not know, apparently was
preoccupied at the time and resented the interruption. He re-
plied either that the production manager (Kline) was not
there or that ‘‘nobody is here,’’ and directed the employees
to the room next door which was being used as the produc-
tion office.
Marshall testified that when Al Barber asked for Kline,
‘‘the tone of his voice, his physical approach was an intimi-
dating bullish approach.’’ According to Marshall, Al Barber
did not knock on the open door before he came into the
room, did not ask permission to interrupt the meeting, spoke
in a voice that was louder than was necessary, and, rather
than standing at a reasonable distance, approached more
closely than was reasonable under the circumstances.
When the three men left the room, Marshall advised
Malden and Kline that the men were from the Teamsters
Union, and added that he was certain that Al Barber was
there to talk about the Teamsters Union.3 Marshall then ‘‘re-
treated to his office’’ because he knew that Kline was going
to be ‘‘confronted with a situation.’’ Marshall did not want
to remain in the room to witness it because he felt it would
be embarrassing for Kline as, according to Marshall, Kline
is a very mild-mannered person who would be reluctant to
direct the men to leave the office when further discussion
(apparently Marshall erroneously believed the men had come
to discuss union representation) reached a stalemate. He told
Kline and Malden he would be in his office next door if they
needed him.
The following account of what transpired thereafter is
based on the testimony of Al and Dino Barber, and Abli,
who corroborated each other’s testimony in material respects.
The three individuals entered the office next door and Al
Barber asked the production coordinator, Denise Zollman,
where he could find Kline. Zollman, who knew the Barbers
and Abli from working with them on other movie produc-
tions, then escorted them back to the room they had just left.
Only Malden and Kline were present, however. Zollman then
introduced Kline to the men and left the office.4
Al Barber asked Kline whether any driving jobs were
available, and Kline acknowledged that drivers were being
hired. Kline said, according to Abli, ‘‘We will take your
name, we [will] make a list. We’ll take your name and call
you later or something.’’ One of the men asked if Kline was
doing the hiring, and Kline said no, that he was just taking
care of the list and that Mason, the transportation coordi-
nator, was doing the hiring. Dino Barber then said that they
had just spoken with Mason and that Mason had told them
that Kline was doing the hiring. Again, Kline said that he
was just taking care of the list and that Mason was doing
the hiring. At this point Dino Barber told Kline to wait a
minute and said that he would go and get Mason and bring
him in the office. Dino Barber walked out of the office to
look for Mason and met him just outside in the hallway.
Mason entered the room, and Kline asked Mason if he knew
the three men. Mason said, sarcastically, according to Abli,
‘‘Yeah, they are members from Local 104.’’5 Kline replied,
‘‘We are not [a] union show, and we are not hiring any
union members from Local 104 or any other Teamsters
Local.’’ Al Barber then asked whether Kline was sure he
knew what he was saying, and Kline said yes. Al Barber
then turned to Malden and asked Malden what his name was.
Then he asked Malden if he heard what Kline had said.
Malden nodded affirmatively, and Kline interrupted and said,
‘‘I mean it.’’ Then the men left the premises.
Zollman, production coordinator, who identified Al Barber
as someone who is closely associated with the Teamsters
Union, testified that she was on the telephone when the three
individuals entered her office and that she asked them to wait
a minute. Al Barber interrupted her telephone conversation
and said he would like to see Hank Kline. Zollman said she
453CINE ENTERPRISES
6 An insert car is a specialized vehicle that carries cameras and camera crew
and is used for filming chase scenes. It follows or tracks the action being
filmed.
7 A key grip assists in setting up or rigging the insert car to provide it for
holding the cameras, and helps with lights and flags. Fruin also apparently
leases car mounts to production companies. Car mounts are used for rigging
or attaching the cameras to the framework of the insert cars.
8 Fruin did not testify in this proceeding.
9 The record is clear that the insert car, while owned by Barber, was unsafe.
However Jordan, who had reconstructed it, testified that after considerable re-
construction work the vehicle was in very good condition, and that Mason had
knowledge of this as Mason was present on an occasion in February or March,
when Jordan had taken the car apart for cleaning.
10 Respondent’s answer to the complaint admits, however, that Fruin did
apply for work.
11 A wrangler is an individual who is responsible for the care of the live-
stock and other animals, and performs any other work necessary for their care
and transportation.
would see if Kline was available, and then continued her
phone conversation, at which point the three men walked out
of her office and back into Kline’s office. She hung up as
soon as she could and when she entered the room next door
Al Barber was already speaking to Kline. Then she returned
to her office and did not hear their conversation.
The record indicates that Kline was terminated by Re-
spondent on April 13 or 14, 1988, and the Respondent elect-
ed not to subpoena him for the hearing. Thus, only Malden,
who testified at the hearing, was in a position to corroborate
the foregoing testimony of Zollman. However, Malden testi-
fied that he believed Zollman had brought the men back into
the room, as he observed that Zollman was ahead of the
three men when he looked up from his desk. Malden testi-
fied: ‘‘So she [Zollman] was either a step ahead or right be-
side of Al Barber and she was with them as they were com-
ing in the room . . . so I assume she had brought them into
the room.’’
Malden’s version of the ensuing conversation is as fol-
lows: Malden turned and looked up when he heard Al Barber
say to Kline, ‘‘You are Hank Kline.’’ Kline said he was in
a meeting, and the men could make an appointment to meet
with him. Al Barber said, ‘‘I just want to know one thing.
I want to know if you are hiring Teamsters.’’ Kline repeated,
‘‘If you want to talk to me, you can make an appointment.’’
Al Barber said, ‘‘That’s not what I asked you. I want to
know if you are hiring Teamsters.’’ He repeated this three
or four times, and Kline said, ‘‘We’re hiring drivers . . . if
you want to go to the production office and make an ap-
pointment, I’ll meet with you.’’ Then Al Barber approached
Malden, stuck his finger within several inches of Malden’s
face and asked, ‘‘Who are you?’’ Malden told him. Then the
men left.
Malden does not recall Kline saying that they were not
hiring members of Local 104 or any other union. Further,
Malden does not recall Mason ever coming into the room;
nor, therefore, did he hear Mason identify the men as mem-
bers of the Union. Malden admitted that it was possible he
was just trying to avoid having to deal with the situation and,
therefore, he was intentionally inattentive to the discussion.
About 20 minutes after the conversation ended, Malden told
Mason, ‘‘I never want to see those goons again.’’
Mason testified that after entering the room and telling
Kline that the men are ‘‘Teamsters from Local 104,’’ Al
Barber pointed his finger at Malden and repeatedly asked,
‘‘Who are you?’’ However, Mason does not recall anything
else about what was said or what happened during that par-
ticular conversation.
The record shows that of approximately 34 employees in
the transportation department who were hired to work on the
movie, approximately 8 of them were members of a Team-
sters local. Only five of the total employee complement were
hired prior to April 1. Apparently, the filming was completed
on about April 30.
2. The refusal to hire Luke Jordan and John Fruin
Luke Jordan is a member of the Union but has been sus-
pended since March 1987 for nonpayment of dues. He has
been a driver in the movie industry for the past 6 years, and
has driven every type of vehicle. He purchased an insert car
from Al Barber6 in October 1987. He has known Mason for
2 years and worked with him on one commercial. On March
30 Jordan and John Fruin went to Respondent’s offices at the
hotel to apply for a position on the ‘‘Desert Rats’’ produc-
tion. Jordan was interested in a job as a driver with or with-
out his insert car, and Fruin apparently was looking for a job
as a key grip.7
After introducing Fruin to Mason, Jordan requested em-
ployment as a driver, but also offered to rent his insert car
to the Respondent. Fruin, according to Jordan,8 said he had
a 4-door pickup for rent for use as a transportation vehicle.
Mason replied, according to Jordan, that ‘‘he wasn’t inter-
ested in anybody affiliated with Al Barber or any piece of
equipment affiliated with Al Barber in any way.’’ Jordan re-
plied that although he had purchased the insert car from Bar-
ber, he was not affiliated with Barber in any way; that he
and Fruin were just seeking employment as drivers; and that
the insert car was optional. Mason replied that as far as he
was concerned, Jordan was affiliated with Al Barber. The
conversation was very brief.
Mason testified that he knew Luke Jordan from working
with him on one other show, but had never met Fruin.
Mason gave the following account of the conversation: Jor-
dan asked him whether he needed an insert car and Mason
said no, that it was Al Barber’s car, and he did not want it.9
Jordan said that he had purchased it from Barber, and Mason
said it did not matter who owned the car, he did not want
it.
Mason testified that the car is ‘‘unsafe, dangerous, junk,’’
and that Jordan only wanted to work as a driver of that par-
ticular car and not as a driver of other vehicles. Fruin, ac-
cording to Mason, never applied for any type of job.10
3. The refusal to hire Harry McCrorey
Harry McCrorey has been a wrangler driver in the movie
industry for 20 years.11 He is a member of the Union herein.
He has worked with Transportation Coordinator Kenny
Mason on 10 or 12 shows since 1972. In February and
March, Mason was the transportation coordinator on the
movie ‘‘Unholy Matrimony,’’ which was filmed in Phoenix,
Arizona. Mason hired McCrorey for the production. During
the filming a dispute arose between management and the
drivers regarding the drivers’ job description and hours of
work. On March 5 seven drivers, including McCrorey, signed
a petition stating that they were entitled to an extra day’s
pay. On the day after the petition was submitted to Mason,
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Union did, in fact, picket the production commencing on April 11.
13 The record shows that in fact Mason did communicate this concern to
McCrorey through a mutual friend.
the production company discharged all of the employees who
signed the petition. Thereafter, an unfair labor practice
charge was filed by the Union.
McCrorey testified that in the latter part of February, dur-
ing the filming of ‘‘Unholy Matrimony,’’ Mason told him
that Mason had prospects of being hired for another movie.
McCrorey said he would like to work for Mason again, and
Mason said, ‘‘You will be on it.’’
McCrorey attempted to contact Mason by telephone on six
or eight occasions after he learned that Mason was transpor-
tation coordinator for ‘‘Desert Rats.’’ He telephoned Mason’s
home and the ‘‘Desert Rats’’ production office, and also sent
Mason a certified letter requesting employment. Mason never
returned his calls or answered his letter. On March 24 he
wrote a letter to Production Manager Kline at the Sheraton
Mission Palms Hotel, seeking employment. A few days later
he sent the same letter to Mason. McCrorey received no re-
sponse to any of his letters or phone calls.
On March 28, accompanied by his wife, he went to Re-
spondent’s headquarters at the hotel to see Mason or Kline.
He initially spoke with Kline, who told him that Mason did
the hiring, and that McCrorey would have to see Mason
about a job. During his subsequent conversation with Mason,
McCrorey said that he would like to go to work and hoped
that Mason did not hold the grievance in ‘‘Unholy Matri-
mony’’ against him. Mason replied, according to McCrorey,
that ‘‘In this business . . . you don’t know who your friends
are.’’ Mason continued talking about the grievance petition
and said it got him in a bad spot with his production man-
ager, James Margellos, as Mason, when hired, had assured
Margellos that there would be no problems with union driv-
ers on that production. McCrorey repeated that he would like
to go to work and hoped that Mason would not hold that in-
cident against him. Mason replied that the Union might pick-
et ‘‘Desert Rats.’’ McCrorey replied that he would not cross
a picket line.12 Again McCrorey asked him for a job, and
Mason said there was nothing he could do for him.
McCrorey then left, and Mason never contacted him. Karen
McCrorey, Harry McCrorey’s wife, corroborated his testi-
mony.
Mason testified that while working on ‘‘Unholy Matri-
mony,’’ he anticipated being hired as transportation coordi-
nator for another movie, ‘‘Checker 500,’’ and that he was
considering McCrorey for that production rather than
‘‘Desert Rats’’ when, in February, he spoke to McCrorey
about future employment. However, when asked what dif-
ference it made whether McCrorey worked for him on one
show or another, Mason testified, ‘‘I’m not sure.’’
Mason, who began working for the Respondent on March
16, testified that ‘‘Desert Rats’’ was a pilot movie with the
possibility of becoming a series, and he explained that when
a series is being filmed it is customary to hire the crews lo-
cally due to the ongoing nature of the filming, thus saving
transportation and housing expenses. In anticipation of subse-
quent filming, according to Mason, Production Manager
Malden told him to hire local drivers for the filming of
‘‘Desert Rats.’’ Mason further testified that he customarily
hired drivers whom he knew and who had previously worked
for him; and that on ‘‘Desert Rats’’ he hired three of the
seven employees who signed the ‘‘Unholy Matrimony’’
grievance and also offered a job, which was not accepted, to
a fourth employee who had signed the grievance.
Regarding the March 28 conversation with McCrorey and
his wife, Mason testified he was in a hurry and that the
McCroreys caught him in the hallway and Mason was trying
to get away. McCrorey said he hoped Mason would not hold
‘‘Unholy Matrimony’’ against him, and Mason said he would
not. McCrorey asked if there was going to be any work, and
Mason said he did not know. Regarding his failure to answer
McCrorey’s telephone calls and letter, Mason testified that he
was still talking to attorneys about the NLRB matter that
evolved from the discharges in the ‘‘Unholy Matrimony’’ af-
fair, and that he sent word to McCrorey through a friend ad-
vising McCrorey that because Mason’s name was mentioned
in the charge, he did not feel that he should be talking to
McCrorey or to the other individuals who had brought the
charge.13 Further, Mason said that McCrorey had stated that
he had been hired to work on a movie in Virginia, so Mason
presumed he had a job.
Most importantly, Mason testified that he considered hir-
ing McCrorey for ‘‘Desert Rats’’ but did not hire him be-
cause McCrorey, who lived in Tucson, was not local. Mason
acknowledged that if McCrorey had been local, there would
have been no reason for refusing to hire him.
Although the McCroreys reside in Tucson, they own a
camper. They lived in it during the filming of ‘‘Unholy Mat-
rimony’’ in Phoenix. According to Harry McCrorey, Mason
knows about the camper and has been inside it. Further,
McCrorey testified that lodging expenses are customarily not
reimbursed to employees who live in Tucson and work in the
Phoenix area.
C. Analysis and Conclusions
1. The refusal to hire Al Barber, Dino Barber, and
Demir Abli
Gerald Marshall impressed me as a credible witness and
appeared to have a reliable recollection of the initial March
23 conversation. I credit his testimony to the effect that Al
Barber’s entrance into the room and the manner in which he
asked for Kline was perceived by Malden, Kline, and Mar-
shall to be brusque and impolite. While this may have been
unintentional on Al Barber’s part, or perhaps merely a char-
acteristic of Barber’s customary persona, I find that Kline
and Malden were left with a less than favorable first impres-
sion.
Thereafter, during the remainder of the March 23 scenario,
I find the facts to be substantially as testified to by the three
applicants for employment, and I discredit the testimony of
Malden, Mason, and Zollman to the extent that their testi-
mony differs substantially from that of the three men. Thus,
I find that Zollman escorted the men back into Kline’s of-
fice, and that Kline requested that the men place their names
on a list of prospective employees and stated that the Re-
spondent would get in touch with them. This was not satis-
factory to the trio, however, and they asked whether Kline
was doing the hiring. When Kline said no, that Mason was
doing the hiring and Kline was merely taking care of the list
of applicants, the men found this response to be unacceptable
455CINE ENTERPRISES
14 In this regard it appears that they desired to be hired immediately and
thereby were putting the Respondent in the rather awkward position of having
to make a hiring decision in their presence. Indeed, the situation would be all
the more awkward in the event the Respondent would have then elected to
hire one or two but not all three applicants. Thus, the need for them to sign
the list and leave the premises is apparent.
15 It should be noted that the fact that McCrorey told Mason he would not
cross a picket line was not proffered by Mason as a reason for refusing to
hire McCrorey.
as they had received contrary information from Mason.
Thereupon, they refused to accept at face value Kline’s rep-
resentations regarding the hiring list and Mason’s authority
to do the hiring, causing Kline to again repeat what he had
told them twice before, and directed Kline to wait a minute
while they sought out Mason in order to resolve the matter.
Not only does the foregoing exchange, related by the three
individuals, whom I credit, support and lend credence to
Marshall’s testimony regarding the unconventional behavior
of Al Barber during the initial introductory meeting, but it
also provides convincing justification for Respondent’s sub-
sequent decision not to hire them under any circumstances.
This was not a grievance meeting. Rather, the men were
seeking employment. And the appropriate and conventional
behavior under such circumstances would have been to fol-
low Kline’s initial instruction to leave their names rather
than to repeatedly contradict Kline and then attempt to take
it upon themselves to resolve any inconsistencies. As appli-
cants for employment their performance was less than stellar:
Their entrance was awkward, and they did not readily pick
up on repeated cues to exit.
Kline, having been advised by Marshall, knew from the
outset that they were members of the Teamsters but never-
theless requested that they leave their names. Kline’s subse-
quent statement that, ‘‘We are not a union show, and we are
not hiring any union members from Local 104 or any other
Teamsters’ Local,’’ perhaps was made out of frustration, be-
lieving that it was the most direct way to get rid of the appli-
cants as they appeared to be insensitive to any more subtle
suggestion. Whatever Kline’s motivation, I find that the
statement is violative of Section 8(a)(1) of the Act, as al-
leged. Young Hinkle Corp., 244 NLRB 264, 267 (1979).
However, despite Kline’s unlawful remark, I find the
record evidence insufficient to warrant the conclusion that
the three men were denied employment because of their
union affiliation or activity. Thus, the record shows that the
Respondent did, in fact, hire eight union members for the
production and that the behavior of the trio, who acted in
concert rather than in an individual capacity,14 was
confrontational and did not comport with the conventional
manner of seeking employment.
Further, the record is clear that Mason, who had been a
transportation coordinator for various production companies,
makes it a practice to select drivers who have worked for
him on prior occasions as he is thus familiar with their work
performance. None of the three individuals have ever worked
for Mason, and although Al Barber and Mason apparently
were employees of the same production companies on two
different movies, there is no evidence that they worked
closely together or that Mason was cognizant of Al Barber’s
work performance. It should be noted that Mason had a long
list of applicants from which he could make his selections
as he received 10 to 15 calls daily, between March 16 and
the end of March, from people applying for jobs.
On the basis of the foregoing, I find that the General
Counsel has not established a prima facie case of unlawful
refusal to hire, and the record evidence is therefore insuffi-
cient to warrant the finding that the men were denied em-
ployment because of their union activity or affiliation.
2. The refusal to hire Luke Jordan and John Fruin
I credit the testimony of Luke Jordan and find that his
March 30 conversation with Mason occurred substantially as
Jordan testified. As I have previously determined that the
record evidence is insufficient to show that the Respondent’s
denial of employment to Al Barber was unlawful, it follows
that the record evidence regarding Mason’s subsequent re-
fusal to consider Jordan and Fruin for employment because
of Jordan’s suspected affiliation with Al Barber, must simi-
larly be found to be insufficient to warrant the finding of un-
lawful motivation.
Thus, Mason had previously been instructed by Malden
not to hire Al Barber or the men who accompanied him on
March 23, 1 week earlier, because of their unacceptable be-
havior. Mason apparently believed that Jordan, too, was an
associate of Al Barber, primarily as a result of Jordan’s own-
ership of Al Barber’s insert car. While Mason’s rationale or
motivation for refusing to consider Jordan or Fruin for em-
ployment may have been unfair and unwarranted, it was not,
I find, unlawful within the purview of the Act. Therefore, I
shall dismiss the allegations of the complaint pertaining to
Jordan and Fruin.
3. The refusal to hire Harry McCrorey
I credit McCrorey’s testimony in its entirety, and find that
prior to the filing of the ‘‘Unholy Matrimony’’ grievance pe-
tition, Mason told McCrorey, who had worked for Mason on
numerous shows, that McCrorey would be hired for the next
movie. The record is clear that, as a practical matter, it made
absolutely no difference whether the next movie was ‘‘Desert
Rats’’ or any other production. Further, during the March 28
conversation, Mason told McCrorey, in effect, that he was
upset with McCrorey’s participation in the ‘‘Unholy Matri-
mony’’ grievance because it affected Mason’s relationship
with his production manager and added ‘‘You don’t know
who your friends are.’’
Mason admitted that the only reason for failing to hire
McCrorey was because he did not reside in the Phoenix area
where it was anticipated that the entire series would be
filmed, and that therefore it would have been more expensive
for the Respondent to keep him on the payroll for a pro-
tracted length of time due to Respondent’s practice of paying
living expenses.15
I find Mason’s proffered explanation to be totally unsup-
ported by the record evidence. ‘‘Desert Rats’’ was a pilot
movie for a possible series. Further filming had not yet been
planned and was dependent upon the reviews of the pilot
production. Thus, it is clear that, at least initially, McCrorey
would have been employed only for the brief duration of
‘‘Desert Rats,’’ and that any further employment opportuni-
ties in the event of favorable reviews would have been at
some indefinite time in the future. Further, and most impor-
tantly, there is no evidence that the Respondent did, in fact,
except in isolated instances, pay living expenses to drivers or
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
other transportation department employees. In this regard, I
credit McCrorey, who testified that reimbursement for such
expenses was not the customary practice in the industry, and
Respondent has not shown otherwise. Finally, although
McCrorey maintained his residence in Tucson, the evidence
shows that Mason was aware that McCrorey customarily
lived in his camper during his employment outside the Tuc-
son area.
On the basis of the foregoing, I find that Mason’s pur-
ported reason for failing to hire McCrorey is pretextual, and
that the record evidence is clear that but for McCrorey’s con-
certed and protected participation in the ‘‘Unholy Matri-
mony’’ grievance petition against Mason, he would have
been hired for the ‘‘Desert Rats’’ production. Under the fore-
going circumstances the fact that Mason did hire other em-
ployees who were also involved in the ‘‘Unholy Matrimony’’
grievance is not sufficient to show that Mason harbored no
particular animosity toward McCrorey for the same activity.
Therefore, I find that Respondent’s refusal to hire McCrorey
was violative of Section 8(a)(1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent told applicants for employment that it
would not hire union members, in violation of Section
8(a)(1) of the Act.
3. The Respondent failed and refused to hire Harry
McCrorey, in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not, except as specifically found
above, violated the Act.
REMEDY
Having found that the Respondent violated Section 8(a)(1)
of the Act, I recommend that it be required to cease and de-
sist therefrom and from in any like or related manner inter-
fering with, restraining, or coercing its employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act, and
take certain affirmative action described herein, including the
posting of the attached notice.
Having found that Respondent unlawfully refused to hire
Harry McCrorey, it is recommended that Respondent make
him whole with interest for any loss of pay he may have suf-
fered as a result of the discrimination against him. In this re-
gard, it appears that he would have been employed from
about April 1 to April 11, 1988, the date the picketing com-
menced, as McCrorey testified that he would refuse to cross
a picket line. Backpay is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and
New Horizon for the Retarded, 283 NLRB 1173 (1987). See
generally Isis Plumbing Co., 139 NLRB 716 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Cine Enterprises, Inc., Tempe, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling applicants for employment that union members
were not being hired.
(b) Refusing to hire employees because they engaged in
protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Harry McCrorey whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of this decision.
(b) Post at its principal place of business copies of the at-
tached notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 28,
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.