Flat Dog Productions

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1571 (N.L.R.B. 2000)

FLAT DOG PRODUCTIONS, INC. 1571
Flat Dog Productions, Inc. and International Alliance
of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the
United States and Canada, AFL–CIO, CLC.
Case 31–CA–24062
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 23, 2000, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting 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 the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
The judge found that the Respondent unlawfully dis-
charged striking employees for engaging in an economic
strike. In its exceptions, the Respondent claims that even
though it made statements indicating that the strikers had
been discharged, other actions it took were inconsistent
with actual termination. The Respondent contends that
these other actions show that it did not, in fact, discharge
the strikers.3 We find no merit to the Respondent’s ar-
gument.
On the morning of August 17, 1999,4 the Respondent’s
employees began an economic strike. The initial re-
sponse to the strike by Frank DeMartini, the Respon-
dent’s producer, was to treat the day as a nonwork day
and to tell the strikers that “whoever wants to come back
to work can.” Later the same day, however, DeMartini
drove to the picket line and announced that the strikers
were terminated. On August 18 DeMartini offered $300
to strikers willing to cross the picket line. Several strik-
ers accepted the offer and returned to work. In an Au-
gust 19th letter to employees, DeMartini referred to the
strikers as “former employees.” In an August 19 letter to
the Union, DeMartini wrote that the strikers had been
“terminate[d for] refus[ing] to report to work.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify par. 2(c) of the recommended Order to provide
standard remedial language and modify the notice accordingly.
3 The Respondent additionally argues, based on cases such as Red-
wing Carriers, Inc., 137 NLRB 1545, 1548 (1962), enfd. 325 F.2d
1011 (D.C. Cir. 1963), cert. denied 377 U.S. 905 (1964), and Missoula
Motel Assn., 148 NLRB 1477, 1479 (1964), that it is lawful for an
employer to discharge employees and replace them in order to preserve
efficient operation of its business. In Torrington Const. Co., 235
NLRB 1540, 1541 (1978), overruled in part on other grounds by
Chambersburg County Market, 293 NLRB 654 (1989), the Board re-
jected the argument that Redwing and other early cases were precedent
for diminishing the distinction between discharge and replacement of
strikers. The Board held “that there exists a substantial difference
between replacement and discharge.” Torrington, supra at 1541.
4 All dates refer to 1999, unless otherwise indicated.
In Brunswick Hospital Center, Inc., 265 NLRB 803,
810 (1982) (citations omitted), the Board stated the stan-
dard to be applied in this case:
In determining whether or not a striker has been dis-
charged, the events must be viewed through the
striker’s eyes and not as the employer would have
viewed them. The test to be used is whether the acts
reasonably led the strikers to believe that they were dis-
charged. If those acts created a climate of ambiguity
and confusion which reasonably caused strikers to be-
lieve that they had been discharged or, at the very least,
that their employment status was questionable because
of their strike activity, the burden of the results of that
ambiguity must fall on the employer.
Applying the test quoted above to these facts, we agree
with the judge that the Respondent’s conduct would rea-
sonably have led the striking employees to conclude that
they had been discharged. Initially, the Respondent told
the strikers that they could return to work. That same
day, however, the Respondent told the strikers at the
picket line that they were terminated. The following day,
the Respondent offered the strikers a cash bonus to return
to work. Yet, the very next day, the Respondent wrote to
both the strikers and the Union stating, respectively, that
the strikers were “former employees” and that the strik-
ers were terminated. Such a sequence of events would
indicate to the employees “at the very least, that their
employment status was questionable . . . [and] the burden
of the results of that ambiguity must fall on the em-
ployer.” Brunswick, supra at 810. Accordingly, we affirm
the judge’s finding that the Respondent discharged the
strikers in violation of Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Flat Dog
Productions, Inc., Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the employ-
ees in writing that this has been done and that the dis-
charges will not be used against them in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

331 NLRB No. 169
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1572
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge employees engaged in a
lawful economic strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make whole all the employees who en-
gaged in an economic strike on August 17, 1999, for any
and all losses incurred as a result of our unlawful dis-
charge of them, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of our striking employees, and
WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the discharges
will not be used against them in any way.

Nathan Laks, Esq., for the General Counsel.
Richard J. Frey and Richard W. Kopenhefer, Esqs. (McDer-
mott, Will & Emery), of Los Angeles, California, for the
Respondent.
Hope Singer, Esq. (Geffner & Bush), of Burbank, California,
for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Los Angeles, California, on March 27 and 28,
2000. On August 23, 1999, International Alliance of Theatrical
Stage Employees, Moving Picture Technicians, Artists and
Allied Crafts of the United States and Canada, AFL–CIO, CLC
(the Union) filed the charge alleging that Flat Dog Productions,
Inc., (Respondent) committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act (the Act).
On December 23, 1999, the Regional Director for Region 31 of
the National Labor Relations Board issued a complaint and
notice of hearing against Respondent, alleging that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging em-
ployees who were engaged in an economic strike against
Respondent. Respondent filed a timely answer to the complaint,
denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the briefs submitted by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation, with an office and
principal place of business in Los Angeles, California, where it
was engaged in the production of a motion picture called Flat
Dog. During the 12 months prior to issuance of the complaint,
Respondent purchased and received in California, goods valued
in excess of $50,000 directly from points outside the State of
California. Accordingly, Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Respondent admits and I find that at all times material in the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent began production of the motion picture Flat Dog
in early August 1999. In the first or second week of August,
certain members of the production crew contacted the Union
seeking representation. The Union obtained signed union au-
thorization cards from a majority of the crewmembers.
On August 17, without warning to Respondent, the Union
placed a picket line at the entrance to Sable Ranch in Los
Angeles County where Respondent was producing Flat Dog.
The employees, with a few exceptions, did not cross the picket
line. Rather the employees took turns picketing with signs
which read:

Flat Dog Productions UNFAIR
Does Not Pay IATSE Wages and Benefits
IATSE, AFL–CIO
That morning, Frank DeMartini, Respondent’s producer, told
the employees that it was a “no call” day and that the employ-
ees could return to work. In the afternoon DeMartini an-
nounced at the picket line “The Company does not recognize
that the crew is represented by the Union. The crew is in viola-
tion of their written contracts and they’re all fired.” Dale Paule,
a representative of the Union asked DeMartini to repeat his
statement and DeMartini did so. Paule and Barbara Jerrome, a
representative of the Union’s Local 600, each made a notation
of DeMartini’s statement. Paule then relayed to the employees
what DeMartini had just said.2
1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
2 Respondent’s witnesses DeMartini and Dwayne Shattuck, produc-
tion manager, denied that DeMartini said the employees were fired.
The testimony of three credible witnesses, Paule, Jerrome, and em-
ployee Charles Lenz establish that Demartini did in fact state that the
employees were all fired. Further, this credible testimony is corrobo-
rated by the notes taken by Paule and Jerrome shortly after the state-
FLAT DOG PRODUCTIONS 1573
On the following day, August 18, the striking employees
voted to continue their strike against Respondent and to file
unfair labor practice charges with the Board. The picket signs
were changed to read:
Flat Dog Incorporated Unfair Labor Practices
IATSE AFL–CIO
Also on August 18, Joseph Aredas, an international represen-
tative of the Union, wrote DeMartini stating that the striking
employees were protesting the Company’s action in firing the
striking crewmembers. Aredas further stated that the Union
intended to represent the employees and that the Union wanted
a collective-bargaining agreement.
On August 19 DeMartini wrote Aredas stating that the Union
did not represent the former or current employees of Respon-
dent. He called the strike a wildcat strike and stated that no one
was fired for seeking union representation. DeMartini stated
that certain employees were terminated for refusing to report to
work in accordance with their employment agreements. He
further stated, “we have subsequently replaced these people and
we now have a full crew with whom we are very happy.” De-
Martini stated that he did not believe a union contract was in
the Company’s best interest. That same day, Aredas again
wrote DeMartini offering to prove by a card check that the
Union represented a majority of Respondent’s employees. Also
on August 19, Respondent distributed to “all employees and
former employees” a memorandum written by DeMartini set-
ting forth his version of the dispute with the Union. In this
letter DeMartini states, “To begin with, all of the former em-
ployees of this corporation signed a written employment
agreement laying out their obligations to the corporation. An
unannounced wildcat strike without formal union representa-
tion clearly breaches that written employment and is clear legal
justification for discharge.”
On August 20 the parties met at a restaurant in Beverly Hills.
The Union sought recognition for the crew of Flat Dog. Re-
spondent rejected recognition for Flat Dog but offered recogni-
tion for a higher budget movie. However, the parties were
unable to reach any kind of agreement. Thereafter, Respondent
closed the production in California and finished the production
of Flat Dog in Mexico.
B. Conclusions
It is well settled that while an employer may permanently re-
place strikers, it may not terminate them because they engage in
protected activity. See Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970). The Board has held that the unlawful discharge of
strikers is a violation of Section 8(a)(1) and (3) of the Act and
is “a blow to the very heart of the collective-bargaining proc-
ess” and “leads inexorably to the prolongation of a dispute.”
Vulcan-Hart Corp., 262 NLRB 167, 168 (1982), enf. granted in
part and denied in part on other grounds 718 F.2d 269 (8th Cir.
1983); Super Glass Corp., 314 NLRB 596, 597 (1994).
In the instant case, I have found that DeMartini terminated
the strikers on August 17. The strike was an economic strike

ment was made and repeated by DeMartini. Most important, the letters
written by DeMartini on August 18 and 19 confirm that he terminated
the striking employees on the August 17. DeMartini stated that the
“former employees” were “terminated” for refusing to report to work
and that a wildcat strike was a breach of an employment agreement and
“legal justification for discharge.”
for union recognition at its inception. However, after DeMar-
tini announced that the strikers were “all fired,” the employees
voted to continue their strike as an unfair labor practice strike
and also to continue to seek recognition. Economic strikes are
converted to unfair labor practice strikes where the employer’s
unfair labor practices are a factor in causing or prolonging the
strike. Gaywood Mfg. Co., 299 NLRB 697, 700 (1990). Fur-
ther, the General Counsel must prove only that “the unlawful
conduct was a factor (not necessarily the sole or predominant
one) that caused a prolongation of the work stoppage.” Id.
The Board has held that “certain types of unfair labor prac-
tices by their nature will have a reasonable tendency to prolong
the strike and therefore afford a sufficient and independent
basis for finding a conversion.” C-Line Express, 292 NLRB
638 (1989). The termination of strikers has a tendency to pro-
long strikes and by its very nature provides a per se basis for
conversion. F. L. Thorpe & Co., 315 NLRB 147, 149 (1994);
and Vulcan-Hart Corp., supra.
In the instant case, it is clear that the unlawful discharge of
the strikers converted the strike to an unfair labor practice
strike. The Board has held that unlawfully discharged strikers,
like unlawfully discharged employees, need not request rein-
statement in order to activate the employer’s backpay obliga-
tion. See Abilities & Goodwill, Inc., 241 NLRB 27 (1979), enf.
denied on other grounds 612 F.2d 6 (1st Cir. 1979). Thus, the
discharged strikers are entitled to backpay from the date of the
employer’s unlawful action until the date he or she would have
lawfully been laid off. Reinstatement is not an issue in this
case as production of the movie has been completed.
I reject Respondent’s argument that it replaced but did not
discharge its striking employees. First, DeMartini stated that
the employees were all fired. Thereafter DeMartini wrote that
he terminated employees who refused to work in accordance
with their employment agreements. DeMartini wrote that he
had subsequently replaced these employees and that he was
happy with his new crew. Third, DeMartini wrote the employ-
ees stating that the wildcat strike was legal justification for
discharge. Thus, while DeMartini did state that strikers were
replaced, he made that statement in the context that the em-
ployees had been terminated for engaging in a strike and that
the employees had subsequently been replaced. Contrary to
Respondent’s argument, DeMartini’s words and conduct did
not communicate to the striking employees that Respondent
was offering them reinstatement or the opportunity to return to
work.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act by
discharging its employees engaged in an economic strike.
4. Respondent’s unlawful discharge of its striking employ-
ees converted the strike from an economic strike to an unfair
labor practice strike.
5. The above-unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1574
REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectu-
ate the policies of the Act.
I shall recommend that Respondent make whole the employ-
ees who engaged in a strike on August 17, 1999, for any and all
loss of earnings and other rights, benefits and privileges of
employment they may have suffered by reason of Respondent’s
discrimination against them, with interest. Backpay shall be
computed in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided in New Horizons
for the Retarded, 283 NLRB 1173 (1987); See also Florida
Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962).
Respondent shall also be required to expunge any and all
references to its unlawful discharge of the striking employees
from its files and notify them in writing that this has been done
and that the unlawful discipline will not be the basis for any
adverse action against them in the future. Sterling Sugars, Inc.,
261 NLRB 472 (1982).
On these findings of facts and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Flat Dog Productions, Inc., Los Angeles,
California, its officers agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees engaged in a lawful economic
strike.
(b) In any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole its employees who engaged in an economic
strike on August 17, 1999, for any and all losses incurred as a

3 All motions inconsistent with this recommended order are hereby
denied. In the event 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 objections to them shall be deemed
waived for all purposes.
result of Respondent's unlawful discharge of them, with inter-
est, as provided in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any and all references to the discharge of its striking
employees and notify them in writing that this has been done
and that Respondent's discipline of them will not be used
against them in any future personnel actions.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, timecards, social security payment records, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to determine the amount of backpay due under the terms
of this Order.
(d) Within 14 days after service by the Region, post at its
Los Angeles, California facilities copies of the attached Notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being signed by
Respondent's authorized representative, shall be posted for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure the notices
are not altered, defaced or covered by other material. Because
Respondent has completed production of the movie Flat Dog,
Respondent shall duplicate and mail, at its own expense, a copy
of the attached notice to all current employees and former em-
ployees employed by the Respondent at any time since August
17, 1999.
(e) Within 21 days after service by the Region, file with the
Regional Director, a sworn certification of a responsible official
on a form provided by the Region attesting to the steps Re-
spondent has taken to comply.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”