Film Inspection Service, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1963

144 N.L.R.B. 1040 (N.L.R.B. 1963)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Oper-
ative Potters, AFL-CIO, by discriminating against our employees in regard to
their hire or tenure of employment, or any term or condition of employment.
WE WILL NOT unlawfully question our employees concerning their own or
their fellow employees' union membership, interest, or activity.
WE WILL NOT solicit the assistance of our employees in the surveillance or
questioning of their fellow employees.
WE WILL NOT threaten our employees that work will be curtailed or the plant
will be closed if the Union represents them.
WE WILL NOT grant our employees or any of them increased wages or benefits
to insure their opposition to the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist the above-named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all such activities.
WE WILL offer reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and we
will make whole for any loss of pay suffered as a result of our discrimination
against the following:
Yvonne Sue Bottoms Wilma Kniffen
Roscoe Crabtree Marvin Mayes
Shirley Dudley Winona Ruth Pennell
Charlotte Freudenberg Alvah Smiley
Margaret Harrington Mildred Smith
Delores Johnson Carolyn Sue Youngblood
All our employees have the right to form, join, or assist any labor organization,
or not to do so.
SUNBEAM PLASTICS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees 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 of 1948, as amended, after discharge from the Armed
Forces.
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.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis 4, Indiana, Telephone No. Melrose
3-8921, if they have any question concerning this notice or compliance with its
provisions.
Film Inspection Service, Inc. and Local B-57, International Alli-
ance of Theatrical Stage Employees and Motion Picture Ma-
chine Operators of the United States and Canada. Case No.
15-CA-2,000. October 11, 1963
DECISION AND ORDER
On June 4,1963, Trial Examiner Horace A. Ruck-el issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
144 NLRB No. 99.
FILM INSPECTION SERVICE, INC. 1041
spondent 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 Intermedi-
ate Report. He also found that the Respondent had not engaged in
certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 Interme-
diate Report and the entire record in this case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.2
The Trial Examiner found, and we agree, that Respondent dis-
charged Roy Hirstius because of his protected union activities in viola-
tion of Section 8(a) (3) and (1) of the Act. Respondent contends
that such activities were not protected but instead constituted acts in
the nature of insubordination. It is true, as indicated by the Trial
Examiner, that Hirstius, as business agent of the Union, was extremely
zealous in processing grievances against Respondent during the period
1 The General Counsel contends there was error in the Trial Examiner's ruling limiting
the scope of the General Counsel's examination of Respondent President Brandon under
rule 43(b) of the Federal Rules of Civil Procedure. After Brandon gave general conclu-
sionary reasons for his discharge of Hirstius, the General Counsel attempted to elicit from
Brandon the specific conduct of Hirstius upon which Brandon based these conclusions,
but the Trial Examiner refused to allow such questioning on the ground that this would
preempt Respondent's defense. As rule 43(b) permitted the General Counsel not only
to "interrogate him [Brandon] by leading questions . . ." but also to "contradict and
impeach him in all respects as if he had been called by the adverse party . . ." we find
merit in the General Counsel's contention. We also find merit in the General Counsel's
contention of error in the Trial Examiner's ruling requiring the General Counsel to fur-
nish Respondent with witness Howard's pretrial statement when Howard was under direct
examination as Respondent's witness, after such statement appropriately had been fur-
nished when Howard was under cross-examination by Respondent as a General Counsel
witness. See The Raser Tanning Company, 122 NLRB 640, footnote 3, enfd. 276 F. 2d 80
(C A. 6), cert denied 363 US. 830 ; International Association of Bridge, Structural and
Ornamental Iron Workers, Local No. 494 (Spiegelberg Lumber & Bldg. Co.), 128 NLRB
1379, footnote 1, enfd. 295 F. 2d 808 (CA. 10). However, as the General Counsel does
not claim prejudicial error, and as the Trial Examiner found the principal violation of
the Act alleged by the General Counsel with our concurrence herein, we do not find that
these rulings constituted prejudicial error in this case.
2 The Trial Examiner found that each of certain of Respondent's customers had direct
outflow of over $50,000 during the year 1962 ; but he inadvertently failed to find that
Respondent performed services valued in excess of $50,000 for such customers during 1962,
and thus that Respondent is engaged in commerce and meets the Board's indirect-outflow-
of-service standard for asserting jurisdiction We so find. See Siemons Mailing Service,
122 NLRB' 81. We also correct the Trial Examiner's inadvertent error in referring to
Bruce Hirstius as Bruce Brandon in footnote 2 of the Intermediate Report.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the commencement of his employment by Respondent on Au-
gust 17, 1962, until October 23, 1962? However, as further found by
the Trial Examiner, all of these grievances were settled in the Union's
favor at a meeting between Respondent and the Union on October 23,
1962, at which meeting Respondent expressed in no uncertain terms a
wish to be rid of Hirstius for having engaged in his August 17-
October 23, 1962, union activity. And, as further found by the Trial
Examiner, Hirstius was not discharged until shortly after Respond-
ent received a report that the employees were being "upset" by
Hirstius' activities during this period as the Union's business agent,
and that there was talk of a strike. The Trial Examiner therefore
concluded that Hirstius' discharge was motivated at least in part by
this protected union activity.
While Respondent does contend that some of the grievances in-
stituted by Hirstius between August 17 and October 23 amounted to
insubordination, this is not its principal contention in defense of
Hirstius' discharge. Indeed, in view of Respondent's admitted "ac-
quiescence" in all of the Union's demands with respect to these griev-
ances on October 23, such contention must be found to be wholly with-
out merit, for by such acquiescence Respondent in effect admitted that
the pre-October 23 grievances raised by Hirstius were valid and not
"insubordination." 4 Respondent's principal contention in defense of
the discharge is that Hirstius' conduct between October 23 and Novem-
ber 2, the date of his discharge, was tantamount to "insubordination,"
and that the Trial Examiner did not consider such conduct. We find
this contention also tobe without merit, because it represents a miscon-
ception of the law. This contention is, in essence, that even though
Hirstius' pre-October 23 conduct may not have constituted insubordi-
nation, as Respondent in effect admitted on that date, Hirstius' post-
October 23 conduct was insubordination, and so long as his discharge
was motivated at least in part by the latter conduct it was lawful. It
is now well established that a discharge motivated in part by discrimi-
natory reasons is unlawful, even though it may otherwise be motivated
by lawful reasons.' Accordingly, assuming arguendo, but without
deciding that Hirstius' post-October 23 conduct was insubordination
and was a contributing factor in the Respondent's discharge decision,
8 For the reasons indicated infra, we find it unnecessary to, and do not, adopt the
Trial Examiner 's further conclusions that Hirstius did not process the reel band grievance
properly and in so doing usurped the functions of management.
4 Respondent does not contend that it was coerced in any way into such acquiescence.
At the very least, such acquiescence represented condonation of the alleged pre-October 23
"insubordination " See M. Esktn & Son, 135 NLRB 666
5 See, e.g , N L R.B. v. Electric Steam Radiator Corp., 321 F. 2d 733 (C A. 6) ; N L R.B.
v Jamestown Sterling Corp, 211 F 2d 725 ( C.A. 2) ; N L R.B v . Wilbur H. Ford, d/b/a
Ford Brothers , 170 F. 2d 735 , 738, 739 (C.A. 6) ; Tabulating Card Company, Incorporated,
123 NLRB 62, 75; Carl L. Norden, Inc., 62 NLRB 828, footnote 12; John W. Campbell,
Inc., 58 NLRB 1153, 1162 , 1163; Lone Star Gas Company, 52 NLRB 1058, 1060.
FILM INSPECTION SERVICE, INC. 1043
this did not render his discharge lawful, if, as we are satisfied was the
situation here, another contributing factor was his pre-October 23
protected union activity but for which he would not have been dis-
charged. We find, therefore, in agreement with the Trial Examiner,
that Respondent discharged Hirstius on November 2, 1962, at least in
part for discriminatory reasons, and thus violated Section 8(a) (3)
and (1).B
ORDERI
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
6 Respondent also contends that Hirstius was a supervisor , and on this ground the com-
plaint should be dismissed However, Respondent does not advert to, and we do not find,
sufficient factual rather than conclusionary evidence in the record to support this
contention
7 The notice is hereby amended by adding the following paragraph immediately below
the signature line:
NOTE.--We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on November 28, 1962, by Local B-57, International Alliance
of Theatrical Stage Employees and Motion Picture Machine Operators of the United
States and Canada, herein called the Union , the General Counsel of the National
Labor Relations Board , respectively called the General Counsel and the Board,
through the Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued a complaint dated February 20, 1963, against Film Inspection Service, Inc.,
herein called Respondent , alleging that Respondent , in discharging Roy Hirstius, an
employee , has engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a)(3) and ( 1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Respondent
has filed an answer denying that it has engaged in any unfair labor practices.
Pursuant to due notice a hearing was held before Trial Examiner Horace A.
Ruckel at New Orleans , Louisiana , on April 9 and 10 and May 3, 1963, at which the
parties were represented by counsel . At the conclusion of the hearing the parties
waived oral argument . They have since filed briefs.
Upon the record as a whole and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent , a Louisiana corporation , having its office and place of business in
New Orleans , is engaged in the business of receiving , inspecting, repairing, and
preparing motion picture film for shipment to points in the States of Louisiana,
Mississippi , Alabama, and Florida. Among its customers are United Artists Cor-
poration , Warner Brothers Pictures Distributing Corporation , Buena Vista Distribut-
ing Co., Inc., Metro-Goldwyn-Mayer , Inc., Paramount Film Distributing Corporation,
National Screen Service Corporation , and Twentieth Century-Fox Distributing Cor-
poration , all corporations organized and doing business under the laws of States other
than the State of Louisiana . Each of these corporations is engaged in the manufacture
and distribution of film in various States of the United States. During the year 1962,
each of these corporations , Respondent's customers , received in excess of $50,000
from the shipment and distribution of films to States other than the State in which
it maintains its principal place of business . Each of them is an employer engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
727-083-64-vol. 141---67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local B-57, International Alliance of Theatrical Stage Employees and Motion
Picture Machine Operators of the United States and Canada, is a labor organization
admitting employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Roy Hirstius
Roy Hirstius came to work for Respondent on August 17, 1962, as a head shipper
under the supervision of Bruce Hirstius, his brother and office manager. Normally
Respondent employs about eight shippers of whom two are classified as head shippers,
and seven inspectors. Daniel Brandon, Respondent's president, spends little time
at Respondent's place of business. Bruce Hirstius actively directs and manages it.
Roy Hirstius has been employed on "Film Row" in New Orleans, since 1946, in
the shipping offices of various film companies. In August 1962, before coming to
work for Respondent, he had been for several years in the employ of Metro-Goldwyn-
Mayer. During the last several years Respondent has acquired the film inspection
and shipping operations of several of these companies, and on August 17 it acquired
those of Metro-Goldwyn-Mayer. It also acquired, by agreement, such shippers
and inspectors then employed by MGM as wished to come with Respondent.
Hirstius has been well known on Film Row not only as a shipper employed by
MGM, but, since February 1962, as business agent for the Union which represents
employees of the film companies, and before that variously as its president, record-
ing secretary, and executive board member. Brandon knew him well in these
various capacities and disliked him. The feeling was mutual. More than once
throughout the years, including the time Respondent took over the inspection and
shipping facilities business at Paramount in 1957 or 1958, and at Warner Brothers in
1959, Hirstius declared that he would never work for Brandon.
In preparation for the transfer of MGM's employees to Respondent's payroll,
Brandon met several times with them to discuss questions of seniority, hospitaliza-
tion, pensions, and other benefits. All of them declared their desire to continue
in Respondent's employ, with the certain exception of Hirstius and the possible
exception of one other, Hirstius stating to those present, including Brandon, that he
would never work for Film Inspection Service or for Brandon.' At one of these
meetings Hirstius asked Brandon if he wanted all MGM employees to come with
Respondent, to which Brandon replied that he did with the exception of Hirstius,
who, he stated, he hoped would abide by his previous decision not to come, saying
that he feared friction between Hirstius and Respondent, as well as disagreement
between him and his brother, who would be his supervisor. Hirstius told him that
he had no intention of coming but had raised the question just to see what Brandon
would say.
At a third and final meeting, however, just before August 17, the day of the take-
over, Hirstius announced that he had changed his mind and was accepting employ-
ment by Respondent. Brandon told him that that was his privilege and that he
hoped the relationship worked out well. For a while, according to Brandon, it did,
and during the latter part of September, on one of his periodic visits, Brandon called
the two Hirstius brothers together and told them that in spite of everything that had
transpired in the past Roy Hirstius was welcome there and that he wanted to let
bygones remain bygones.
Not long afterward, however, several incidents occurred which were followed by
the discharge of Hirstius on November 2, 1962, due, the complaint says, to his
activity on behalf of the Union, but which Respondent avers was caused by his
insubordination.
Looking Under the Reel Bands
When reels of film are received at Respondent's office it is usually necessary to
look under the metal bands which bind the reels to make sure of their identity and
to match the reels so that all those pertaining to the film are together, before shipping
them to distributors. Inspectors ordinarily perform this function, but it has been
a longstanding custom for shippers to look under the bands on occasions when the
inspectors are rushed. Somewhere around the first of October, Bruce Hirstius,
apparently at a time when several inspectors were on vacation, directed several
shippers to look under reel bands. Roy Hirstius protested this, and stated that he
was taking the matter up with the Union's New York office. In the meantime,
1 Brandon had other Interests to which be devoted more of his time than he devoted
to Respondent. Normally he was present at Respondent's shipping office only a few
hours a month.
FILM INSPECTION SERVICE, INC. 1045
though the record is not entirely clear, he prevailed upon certain of the shippers not
to do the work in question. On October 15, Hirstius consulted with his New York
office by telephone, and on October 16 he directed letters on the subject to the
management of the various film service companies in the area (copy to Daniel
Brandon) in part as follows:
This letter is to give you notice that no shipper is to check film under bands
of pictures, shorts, etc., at any time.
If film has to be checked an inspector should be called upon to do this work.
No branch manager or office manager is to do the work of a shipper and
ship film from shipping department.2 This should be done by a union shipping
clerk.
On the same day Roy Hirstius called Respondent's shipping employees and Bruce
Hirstius together in a meeting where Roy Hirstius, according to his own testimony,
"told each and every one at the same time" that they were not to look under reel
bands. When Bruce Hirstius said that he would have to telephone Brandon, Roy
Hirstius repeated that the shippers were supposed to do as he had indicated. Brandon
telephoned Roy Hirstius the same day and protested Hirstius' taking the matter up
with New York without getting in touch with him. He insisted that until he heard
from New York 3 shippers were to continue to look under reel bands when necessary.
It is not clear from the record, however, whose directions prevailed, those of Roy
Hirstius or those of Brandon and Bruce Hirstius,4 but on October 23, Brandon
conceded the point at a meeting attended by Brandon, Hirstius, and several repre-
sentatives of the Union's International office.
Loading and Unloading Trucks
It had been the practice for some time for Respondent's shippers, including Bruce
Hirstius, its office manager, to go onto delivery trucks, many of which were operated
by Transway (a company largely owned by Brandon), for the purpose of picking
out and pairing up reels of film so that the assembled film would be complete, before
the reels were unloaded indiscriminately on the platform. This practice was a
convenient one for the shippers, but Roy Hirstius informed them that it was beyond
the call of duty. When Bruce Hirstius protested that he did this only for his own
convenience, Roy Hirstius pointed out that, as a supervisor, he should not engage in
unloading which was truckdrivers' work. Although again the record is not clear
as to the immediate result of Roy Hirstius' intervention, at a union-management
conference subsequent to his discharge it was agreed that Respondent's shipping
clerks would not go onto the trucks.
Another complaint, resurrected though not originated by Hirstius, concerned the
hours of work and pay for one Guerin, a shipper. Hirstius admitted that he was
mistaken as to the facts in Guerin's case and that he promised Brandon that he would
so inform New York and send Brandon a copy of his letter. Hirstius wrote such
a letter on October 18, but he did not furnish Brandon the promised copy.
In his letter to the International office on October 18, Hirstius set forth the Guerin
matter, but not his complaint as to unloading trucks or looking under reel bands and
announced that the Union would strike on October 26, unless he received instruc-
tions to the contrary. No strike occurred. At the October 23 meeting between
representatives of the Union and Respondent, when Brandon conceded Hirstius'
points including the point that shippers should not look under reel bands, but only
inspectors, Brandon stated that, in consequence, it would be necessary to lay off one
shipper and hire an additional inspector, and asked for the Union's seniority list of
unemployed inspectors. This Hirstius agreed to supply. At one point in the
meeting Brandon said to the representatives of the International, pointing to Hirstius:
"And that son-of-a-bitch over there, if I get him off my back ...." At another point,
R. E. Morris, International trustee for the Union, cautioned Hirstius about making
trivial or insubstantial complaints as to Respondent.
About the time of the October 23 meeting, or shortly thereafter, Brandon asked
Roy Gallagher, formerly Respondent's manager, to inquire into the state of affairs at
Respondent's shipping office. Gallagher visited the office on one or more occasions,
talked with employees, and during the last week in October reported his findings
2 The matter of Bruce Brandon's occasionally helping Respondent's shipping employees
to load and unload Is hereinafter discussed.
8 Whether she meant the Union's office or that of Respondent's New York affiliate Is not
clear.
4Bruce Hirstius was not called as a witness, and since Brandon spent little time at the
office events there are reflected principally through the testimony of Roy Hirstius.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Brandon. They were, in substance, that the employees were disturbed about their
seniority status, concerning which Hirstius was talking to them, that there was a
controversy as to who should look under the reel bands, that there was confusion as
to who was running the office, that some of the employees were "worried and
upset," and that there was some fear that the Union might call a strike.
On November 2, a few days after receiving Gallagher's report, Brandon visited
the office for the dual purpose of obtaining the seniority list he had asked Hirstius
to procure and discussing with the employees any complaints they might have.
Brandon interviewed the shippers and inspectors individually at his car, checked
their standing on the seniority list furnished by Hirstius, and asked them what
grievances or complaints they had. Nicholas Herkes, a shipper, testified that
Brandon asked him if anyone liked the Union, to which he replied in the affirmative,
and Jeanette Howard, an inspector, testified that he said that he had heard that she
liked the Union and that she stated that she did. Brandon denied making any
comment or inquiry as to the attitude of the employees toward the Union. I credit
his denial. Herkes further testified without contradiction, however, and I find, that
Brandon said to him that Hirstius was "breathing down his neck" and telling him how
to run his business with the result that Respondent might have to lay off a shipper
who could be Herkes since he had the least seniority. Brandon asked him if, in that
event, he would care to work for Transway, and Herkes said that he would. This
did not transpire. Instead Respondent discharged Hirstius.
After interviewing the employees individually, Brandon addressed them collec-
tively, to the same effect. Following this meeting, Brandon called the Hirstius
brothers to him and told Roy Hirstius that he was discharged.
Conclusions
It is apparent that over a period of time commencing prior to Hirstius' employ-
ment by Respondent, the relationship of the two was one of mutual dislike. There
can be little question that Brandon was dismayed by Hirstius' decision to enter Re-
spondent's employ as a result of its acquisition of MGM's inspection service, after
having publicly declared on more than one occasion that he would never work for
Brandon. This alone foreshadowed an uncertain employer-employee relationship.
When there is added to this the fact that Hirstius was the business agent for the
Union, and the consideration that he would be under the supervision of his brother,
who, since Brandon spent little time at Respondent's office, was the effective head
of the business, it could be fairly said that trouble was a little more than likely
to happen.
It was not long in coming. The impression I derive from this record is of a
union representative temperamentally disposed to distort and magnify things of
minor importance so that they became complaints, and complaints became grievances.
Hirstius' two principal interpositions as business agent cum supervisor had to do
with shippers looking under the reel bands and helping to unload trucks or going
on trucks so as better to match up the reels of film. The first was a temporary
measure, often previously invoked; the second facilitated the work of the shippers.
Neither, so far as the record reveals, had ever been the subject of a complaint, and
neither is asserted to be in violation of any provision of the collective-bargaining
agreement. There were grounds for Brandon's feeling that these interventions by
Hirstius, along with others of even less moment, were picayunish and had the result
(for example the Guerin incident) of putting Respondent in an unfavorable light
with the International, if indeed they were not designed for this purpose.
As I view it, Hirstius, as business agent for the Union, was endowed with an
occupational conceit aggravated by what he conceived to be his near-supervisory
status, and unhampered by the only day-by-day supervision to which he was subject-
that of his own brother .5
B Hirstius testified that he and his brother were on good terms As to his own status
his testimony was such as raises some question as to whether his work as "head shipper,"
which was his classification, was supervisory in character. The testimony follows:
Q. You did not have any idea that you were hired there at Film Inspection Service
in a supervisory capacity, did you . . . ?
A. As a head shipper, yes
Q. Oh, you were a supervisor9
A. As a head shipper . .. you do some supervising.
• • • • • • •
Q. What employees were under your direction?
A. At least six or seven
Counsel for Respondent did not press the point, and my own conclusion is that Hirstius'
idea of his job was inflated.
FILM INSPECTION SERVICE, INC. 1047
When Hirstius determined that the shippers should not board trucks to pair up
reels of film, and that only inspectors should look under reel bands, he did not
proceed as he should have done to take the matter up as a complaint with manage-
ment in the person of Bruce Hirstius or Brandon, but himself directed the shippers
not to help unload trucks or to look under reel bands. Not only to Bruce Hirstius
but to "all branch managers and office managers," he directed his letter of October 16
giving "notice that no shipper is to check film under bands-at any time," but
that "an mspectress should be called upon." "No branch manager or office man-
ager," runs his edict, "is to do the work of a shipper and ship film from the shipping
department."
This language is not that of a collective-bargaining representative seeking to ad-
just a grievance, but of an employee who has usurped the functions of management.
It is the genius of this case that Hirstius' arrogance is tied up with his function as
union business manager. His insubordination, if such it is, demonstrates itself in
the manner in which he handles what he conceives or professes to believe are em-
ployee grievances. It is axiomatic, however, that activity in a labor organization
does not insure against discharge for legitimate business reasons, and certainly insub-
ordination is such a reason
I am not convinced, however, that it was the operating reason here. Respondent
had knowledge of Hirstius' activities concerning shipping employees helping to unload
trucks and looking under reel bands for some time before November 2. These and
other complaints were discussed and settled in the Union's favor at the meeting on
October 23. At this meeting Brandon expressed in no uncertain terms a wish to
be rid of Hirstius. Bearing in mind that this sentiment was expressed in the context
of a union-management meeting called to settle complaints as to working conditions,
it is difficult to avoid the conclusion that Brandon's desire to be rid of Hirstius was
largely, though not wholly, inspired by this collective activity. Moreover, the dis-
charge of Hirstius was not decided upon until shortly after Gallagher had reported
to Brandon that the employees were being "upset" by Hirstius' activities as the Union's
business agent. and that there was talk of a strike. In my opinion this determined
Respondent to discharge him.
I conclude and find that Respondent discharged Roy Hirstius on November 2,
1962, because of his union activities, in violation of Section 8(a)(3) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close, in-
timate and substantial relation 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
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. Respondent having dis-
charged Roy Hirstius because of his activity on behalf of the Union, I recommend
that Respondent offer him immediate and full reinstatement to his former or substan-
tially equivalent position without prejudice to his seniority or other rights and privil-
eges and make him whole for any loss of pay he may have suffered by reason of
Respondent's discrimination against him by payment of a sum of money equal to
that which he normally would have earned as wages from the date of his discharge
to such date as Respondent shall offer him reinstatement, less his net earnings during
said period. Such backpay shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294,
and with interest thereon at the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating, 138 NLRB 716.
As the unfair labor practices committed by Respondent are of a type which strikes
at the very roots of employee rights safeguarded by the Act, I shall recommend that
Respondent be ordered to cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Local B-57, International Alliance of Theatrical Stage Employees and Motion
Picture Machine Operators of the United States and Canada is a labor organiza-
tion within the meaning of the Act.
1048 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
2. Film Inspection Service , Inc., is engaged in commerce within the meaning of
the Act.
3. By discriminating with respect to the hire and tenure of Roy Hirstius , thereby
discouraging membership in the Union, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not , by interrogating employees concerning their union activities,
violated Section 8 (a)( I) of the Act.
RECOMMENDED ORDER e
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended 7 that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of the Union or any other
labor organization of its employees, by discharging any employee, or in any other
manner discriminating in regard to hire or tenure of employment, or any term or
condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist labor organiza-
tions, including the above-named labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be affected by an
agreement authorized by 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 designed to effectuate the policies of the
Act:
(a) Offer to Roy Hirstius immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority and other rights and
privileges.
(b) Make whole Roy Hirstius for any loss of pay he may have suffered by reason
of the discrimination against him by payment to him of a sum of money equal to
the amount he normally would have earned as wages from the date of his discharge
to the date of Respondent's offer of reinstatement, in the manner set forth in the
section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of backpay due and to the reinstatement and related rights provided
under the terms of this Recommended Order.
(d) Post in its office in New Orleans, Louisiana, copies of the attached notice
marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Di-
rector for the Fifteenth Region, shall, after being signed by Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof and maintained by it
for 60 consecutive days thereafter in conspicuous places, including 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.
(e) Notify the Regional Director for the Fifteenth Region, in writing, within 20
days from the date of this Recommended Order, what steps Respondent has taken to
comply herewith.9
8In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order"
In the event that this Recommended Order be adopted by the Board, the word
"ordered" shall be deemed substituted for the word "recommended"
'In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order "
8In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
INT'L ASSN. OF BRIDGE, ETC., LOCAL 600 & LOCAL 798 1049
It is recommended that the complaint be dismissed insofar as it alleges any inde-
pendent violation of Section 8(a) (1) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local B-57,
International Alliance of Theatrical Stage Employees and Motion Picture Ma-
chine Operators of the United States and Canada, or any other labor organiza-
tion of our employees, by discharging or otherwise discriminating in regard to
the hire and tenure of any employee's employment or any other term or condition
of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the above-named labor organization or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from any or all of
such activities, except to the extent that such right may be affected by an agree-
ment authorized by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer Roy Hirstius immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other em-
ployment rights and privileges, and make him whole for any loss of pay he may
have suffered by reason of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining members of the above labor organization, or any other labor organization.
FILM INSPECTION SERVICE, INC.,
Employer.
Dated------------------- By------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans 12, Louisiana, Tele-
phone No. 529-2411, if they have any question concerning this notice or compliance
with its provisions.
International Association of Bridge, Structural and Ornamental
Iron Workers (AFL-CIO ), Local 600 and Local 798' and De-
Witt Prentiss , Narvel Brewer, Archie O. Dixon , Don Prentiss,
Rufus Richardson , J. C. Brewer and Bay City Erection Com-
pany, Inc. Cases Nos. 15-CB-448-1,15-CB-4418-2,15-CB-448-3,
15-CB-448-4, 15-CB-448-5, 15-CB-4/.8-6, 15-CB-448-7, and 15-
CB-453. October 11, 1963
SUPPLEMENTAL DECISION AND ORDER
On November 16, 1961, the Board issued its Decision and Order
in the above -entitled cases,2 finding that Respondent , Local 600, Inter-
national Association of Bridge , Structural and Ornamental Iron
1 The caption Is corrected to reflect the correct names of the Unions.
2134 NLRB 301.
144 NLRB No. 101.