North Dixie Theatre, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1975

220 N.L.R.B. 307 (N.L.R.B. 1975)

NORTH DIXIE THEATRE, INC.
North Dixie Theatre, Inc., and its Wholly Owned Sub-
sidiary Kilgore Amusement , Inc. and Mary Sue Di-
amond . Case 9-CA-8529
September 15, 1975
DECISION AND ORDER
On October 10, 1974, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a brief in support thereof.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that the Re-
spondent did not violate Section 8(a)(1) and (3) of
the Act by laying off cashier and usher Mary Sue
Diamond during a strike by projectionists at its
theaters. We find merit in the General Counsel's ex-
ceptions to this finding.
On May 17, 1974, the Union representing pro-
jectionists at the Respondent's four theaters com-
menced an economic strike. Miss Diamond's father,
Frank Diamond, who was a projectionist at the Es-
quire Theatre where his daughter also worked, com-
menced picketing in front of the theater on May 17.
Miss Diamond did not in any manner participate in
the strike, but rather she crossed the picket line on
May 17, 18, and 19 and made herself available to
perform her cashier and usher duties.
On May 19, Nick Moenssens applied for the
projectionist's job at the Esquire Theatre. He was di-
rected to the projection booth by the theater manag-
er, Earl M. Hibbard, who instructed him to look over
the equipment. Hibbard then left Moenssens alone in
the booth. The Administrative Law Judge found that
a man , who was later identified as Frank Diamond,
entered the projection booth, identified himself as
the regular projectionist at that theater, and said to
Moenssens, "Are you the scabbie? I want to get a
good look at you because you are taking my job
away, and when I see you I am going to beat the shit
out of you." Diamond left the booth but returned a
few minutes later and said, "Do you have Blue Cross
health insurance? I hope you do because you are
going to need it."
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
307
After Diamond left, Moenssens came to the lobby
and told Miss Diamond that he had been threatened
by a man who "really looked big" and who said he
was the projectionist. He added that perhaps he
should forget about the projectionist's job, and that,
because of the threats, he was afraid to walk home.
Miss Diamond replied that perhaps she could drive
him home and asked him where he lived. He gave her
the address. She also told him that the projectionist
was her father and "just don't believe what he says,"
that she did not think he would hurt him. She en-
couraged him to go ahead and run the show, and she
reiterated, "I don't believe anybody is going to do
anything to you." Moenssens then told Hibbard
about the threat. Hibbard telephoned Sam Levin, the
Respondent's president, but neither of them could
persuade Moenssens to stay.
Later that day, Moenssens telephoned Levin and
indicated he might reconsider his decision to quit,2
but stated that he thought Miss Diamond was a
threat to his security because she might inadvertently
reveal his address to her father. Hibbard testified
that Levin telephoned him later that day and asked if
Miss Diamond was Frank Diamond's daughter and
if she was at the theater; Levin instructed Hibbard to
let her go and to take her back when it is all over,
saying, "she'll understand." Hibbard then told Miss
Diamond that Levin had just telephoned and told
him to have her laid off. When she asked why, he
said, "due to the fact that your father is on strike, we
feel that it would be better that you didn't work here
at this time until the strike was over." In spite of
Hibbard's denial, the Administrative Law Judge
credited Miss Diamond's testimony that, in addition
to making the above statement, Hibbard also said,
"We were afraid that you might be able to finger
someone."
It is undisputed that the strike and picketing by a
unit of the Respondent's projectionists, including
Frank Diamond, was protected concerted activity.
The fact that Frank Diamond may have engaged in
certain unprotected activity during the strike in no
way affects the protection afforded the strike and
picketing. Thus, Frank Diamond's participation in
protected activity cannot be ignored in a situation
where, as here, the Respondent acts against a relative
of a striker.
The Administrative Law Judge found that Miss
Diamond was laid off because of the Respondent's
good-faith belief that Frank Diamond had engaged
in strike misconduct. She further found that such
misconduct constituted a valid defense to her layoff.
We disagree with these findings. Although the Re-
2 The record does not indicate whether or not Moenssens had actually
been hired to work at the theater
220 NLRB No. 49
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent contends that Miss Diamond was laid off
because it was afraid she would inadvertently assist
her father in carrying out the threats of violence attri-
buted to him, there is no evidence of any word or
deed by Miss Diamond which would have given the
Respondent reason to believe that she would assist
her father in carrying out such threats. To the con-
trary, the evidence indicates that Miss Diamond at-
tempted to persuade Moenssens to remain at the
theater by allaying his fears that her father would
carry out his threats . Nor does it appear that the Re-
spondent had any reason to think that Miss Dia-
mond was in any way involved in her father's strike
activities. This brings us to the events immediately
surrounding the layoff; namely, Levin's instructions
to Hibbard and then Hibbard's remarks to Miss Dia-
mond. The credited evidence is that Levin tele-
phoned Hibbard on the day of the layoff and asked
if Miss Diamond was Frank Diamond's daughter
and if she was at the theater. Hibbard answered in
the affirmative. Levin then instructed Hibbard to let
her go and to take her back when the strike was over.
There is no indication in the record evidence that
Levin referred to Moenssens , or to Respondent's al-
leged fear that Miss Diamond would help her father,
during this conversation.3
Thereafter, Hibbard went to Miss Diamond and
told her that she was being laid off. Miss Diamond
asked why and Hibbard replied: ". . . due to the fact
that your father is on strike, we feel it would be bet-
ter that you didn't work here at this time until the
strike is over." Even if Hibbard told Miss Diamond
that the Respondent was "afraid that she might be
able to finger someone" (as she testified and the Ad-
ministrative Law Judge credited), the fact that un-
equivocally he denied this remark is persuasive that
the Respondent did not sufficiently separate Frank
Diamond's alleged misconduct from his participation
in protected activity to permit the conclusion that
Miss Diamond's layoff because of her relationship to
her father can be attributed solely to her father's al-
leged misconduct. In any event, the significance of
this remark is minimal in the absence of any indica-
tion that Levin, at the time he instructed Hibbard to
layoff Miss Diamond, or for that matter at any time
3 This finding is predicated on the credited testimony of Hibbard who
gave the only specific account of this conversation . Levin testified at the
hearing but did not give a specific account of this conversation.
Our dissenting colleague agrees with the Administrative Law Judge's in-
ference that Levin must have told Hibbard about Moenssens' fear "because
Moenssens had expressed this concern only to Levin and not to Hibbard."
It is not at all clear that Moenssens expressed this concern only to Levin
and it appears from Moenssens ' own testimony that he "told the manager
[Hibbard] about this." It is clear, however, that Hibbard did not recommend
to Levin that any action be taken against either Frank Diamond or Miss
Diamond . Under the circumstances , we find that the inference drawn by the
Administrative Law Judge is unwarranted.
other than at the hearing, attributed his decision to
the alleged fear that Miss Diamond would "finger
someone" or otherwise assist her father in carrying
out an alleged threat. The absence of such testimony,
in the face of the undisputed fact that Respondent's
manager, Hibbard, attributed the layoff "to the fact
that your father is on strike," convinces us that Re-
spondent made the layoff, at least in part, because
Miss Diamond was the daughter of a striker, and
thereby violated the Act .4
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It has
been found that the Respondent has discriminated
against employee Mary Sue Diamond by laying her
off on May 19, 1974, wholly or in part for the con-
certed protected activity of her father, Frank Dia-
mond. We shall therefore order the Respondent to
offer her immediate and full reinstatement to her for-
mer position, or, if that position no longer exists, to a
substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and to
make her whole for any loss of pay she may have
suffered as a result of this discrimination against her
by payment to her of a sum of money equal to that
which she would have earned as wages from the date
of the discrimination to the date of reinstatement,
less her net earnings during such period, in accor-
dance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), together with
interest at the rate of 6 percent per annum to be
added to such backpay, such interest to be computed
in accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Ridgely Manufacturing Company, 207 NLRB 83 (1973) (the discharges of
Doris Cook and Shawanne Cook); The Colonial Press, Inc, 204 NLRB 852,
858 (1973 ) (the layoff of Carol Nice); Superior Micro Film Systems, Inc,
and/or Wilfred W Burgart and Jesse Guido, Partners d/b/a B G. Manage-
ment Company, 201 NLRB 555 (1973) ( the discharge of Gary Daugherty)
Also see Tri-State Stores, Inc, 185 NLRB 829, 832-834 ( 1970) (discharge of
Ilse L lliff).
Our dissenting colleague advances the analogy that if one were to apply
our finding consistently "then, in the event an employee , who was engaged
in a lawful strike , were to enter the plant and blow it up he could not be
discharged because , at that time , he was also engaged in protected activity."
The analogy seems misplaced First, we are not being asked to review the
alleged misconduct of Frank Diamond for the purpose of determining
whether or not it provides a lawful basis for disciplining him. In fact, as
indicated earlier , the record is devoid of any indication that Respondent
took any such action against Frank Diamond . Second , there is no allega-
tion, nor does the record show, that Miss Diamond engaged in any miscon-
duct In these circumstances, we are certain that our dissenting colleague
did not intend to suggest , by this analogy, that a determination that striker
Frank Diamond engaged in misconduct would foreclose a finding that
Respondent 's retaliation against a relative of his could not violate the Act.
NORTH DIXIE THEATRE, INC. 309
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
North Dixie Theatre, Inc., and its wholly owned sub-
sidiary Kilgore Amusement, Inc., Cincinnati, Ohio,
its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise discrimi-
nating against any employee in regard to his or her
hire, tenure, or terms and conditions of employment,
so as to discourage membership in, affiliation with,
sympathy for, or lawful activity on behalf of any la-
bor organization.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Offer Mary Sue Diamond immediate and full
reinstatement to her former position or, if her posi-
tion no longer exists , to substantially equivalent em-
ployment, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings she may have suffered by reason of
the unlawful action against her in the manner set
forth in the section in this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its premises at Cincinnati, Ohio, copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by the
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I would adopt the Ad-
ministrative Law Judge's Decision and dismiss the
complaint alleging a violation of Section 8(a)(1) and
(3) of the Act.
Respondent's president, Levin, testified that he de-
cided to lay off Miss Diamond after Moenssens had
called him and explained his fears regarding both
Frank Diamond and his daughter. Levin did not
want to maintain a situation where other projection-
ists would leave when threats were made .6 Based on
credited testimony, the Administrative Law Judge
found that Hibbard, in following Levin's directive,
approached Miss Diamond and informed her that
Levin had called him and told him she was laid off.
She asked why, and Hibbard replied, ". . . due to the
fact that your father is on strike, we feel that it would
be better that you didn't work here at this time until
the strike was over. We were (sic) afraid that you
might be able to finger someone." We agree with the
Administrative Law Judge's inference that Levin,
when instructing Hibbard to lay off Miss Diamond,
must have told Hibbard about Moenssens' fear of
Miss Diamond's inadvertently revealing his address,
because Moenssens had expressed this concern only
to Levin and not to Hibbard, yet Hibbard related
this concern to Miss Diamond.
It is well established that one violates the Act by
laying off or discharging an employee in order to
discourage a relative from engaging in concerted pro-
tected activity. But that is not the case here. There is
no evidence whatsoever that Miss Diamond's layoff
was related to her own or her father's protected con-
certed activities. Such a relationship is, of course, es-
sential in order to bring this matter within the cover-
age of the Act. To the contrary, there is
overwhelming evidence that her layoff occurred be-
cause of the Respondent's fear that she might inad-
vertently assist her father in the unprotected strike
activities which the Respondent, in good faith, be-
lieved he had engaged in, and the record affords no
basis for concluding that he did not in fact make the
threats of physical violence attributed to him.
However, my colleagues conclude that, even if
Hibbard told Miss Diamond that the Respondent
was "afraid that she might be able to finger some-
6 In addition to Levin's concern over the incident at the Esquire Theatre,
his credited testimony was that he had received reports that projection
equipment in all the theaters had been rendered inoperative , that he had
received a report that another of his struck theaters, the 20th Century, had
'In the event that this Order is enforced by a Judgment of a United been fire bombed , with injuries to persons and clothing ; and that, when
States Court of Appeals, the words in the notice reading "Posted by Order nonstriking personnel at a third struck theater went to see what happened at
of the National Labor Relations Board" shall read "Posted Pursuant to a the 20th Century, the pickets threatened their lives. Such testimony demon-
Judgment of the United States Court of Appeals Enforcing an Order of the strates Levin's fear of widespread strike-related violence and supports his
National Labor Relations Board ." stated motive in laying off Miss Diamond
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one," his denial of the remark indicates that the Re-
spondent did not sufficiently separate Frank
Diamond's misconduct from his protected activity of
participating in a strike and picket line to permit a
conclusion that Miss Diamond's layoff can be attri-
buted solely to her father's misconduct. The logic of
this eludes me. The issue is not what Hibbard said
but what Respondent's motive was, and there is no
question but that Hibbard was merely carrying out
the directive of Levin who, without consultation with
Hibbard, made the decision to lay off Miss Diamond
because of his own fears of strike violence' and
Moenssens' fears for his personal safety. Further,
Hibbard's denial of the statement was discredited by
the Administrative Law Judge, there is no basis for
reversing that credibility resolution, and I do not un-
derstand my colleagues' attempt to rely on such dis-
credited testimony. But, even if the denial had been
credited, that statement to Miss Diamond would at
most be violative of Section 8(a)(1), but it could not
establish a fact contrary to the clear preponderance
of the evidence.'
The burden of proving that an employee has been
laid off wholly or partially because someone has en-
gaged in protected activity rests with the General
Counsel, yet the General Counsel has presented no
evidence which might meet this burden. Without any
basis whatsoever, my colleagues conclude that, since
Frank Diamond's misconduct occurred at a time
when he was also engaged in protected activity, the
Respondent's motive in laying off Miss Diamond, in
spite of evidence to the contrary, must have been
wholly or partially because of Frank Diamond's pro-
tected activity. If one were to apply such a rationale
consistently, then, in the event an employee, who was
engaged in a lawful strike, were to enter the plant
and blow it up he could not be discharged because,
at that time, he was also engaged in protected activi-
ty. This logic is inherently unsound. Whenever a
striker has engaged in misconduct, he does not spend
every moment engaging in this unprotected activity.
Of course, his other activity would be protected. But
it has never been held or contended that an employee
may never be laid off or discharged for misconduct
as long as he has also engaged in protected activity.
The General Counsel must establish that the layoff
or discharge was motivated by the individual's en-
gaging in the protected activity rather than the mis-
conduct. Such a motive cannot merely be presumed
simply because some of the misconduct occurred in
the course of otherwise protected activity.
I realize that Miss Diamond has not, herself, en-
gaged in any misconduct and that she has instead
See In. 6
Wagner-Wood Company, 148 NLRB 963, 968 (1964).
suffered because of the unprotected activity of her
father. Yet, any employee can be laid off or dis-
charged for good cause or no cause at all, and no
violation of Section 8(a)(1) and (3) of the Act exists
absent a showing that the termination was related to
one's own or someone else 's protected concerted ac-
tivities. No such showing has been made here. Ac-
cordingly, I would adopt the Administrative Law
Judge's Decision and dismiss this complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act and has ordered us to post this notice. We
intend to carry out the Order of the Board, the judg-
ment of any court, and to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT lay off, discharge, or otherwise
discriminate against any employee in regard to
his or her hire, tenure, or terms and conditions
of employment, so as to discourage membership
in, affiliation with, sympathy for, or lawful ac-
tivity on behalf of any labor organization.
WE WILL offer Mary Sue Diamond immediate
and full reinstatement to her former position or,
if it is no longer in existence, to a substantially
equivalent position, without prejudice to her se-
niority or other rights and privileges, and make
her whole for any loss of pay which she may
have suffered as a result of the discrimination
against her.
NORTH DIXIE THEATRE, INC., AND ITS
WHOLLY OWNED SUBSIDIARY KILGORE
AMUSEMENT, INC.
NORTH DIXIE THEATRE, INC. 311
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN , Administrative Law Judge: This
proceeding , heard at Cincinnati, Ohio, on August 15, 1974,
pursuant to a charge filed on July 5, 1974, and a complaint
issued on July 18, 1974, presents the question of whether
the layoff of the Charging Party, Mary Sue Diamond, in
connection with the alleged strike-related activities of her
father, Frank Diamond, violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, herein
called the Act.
Upon the entire record , including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondent and counsel for the General Counsel (herein-
after the General Counsel), I make the following:
FINDINGS OF FACT
1. JURISDICTION AND THE UNION 'S STATUS AS A LABOR
ORGANIZATION
North Dixie Theatre, Inc., and its wholly owned subsid-
iary Kilgore Amusement , Inc., are each Ohio corporations
which at all relevant times have been affiliated in business
with common officers , ownership , directors , and office
staff and with common labor policies formulated and ad-
ministered by the common officers of both corporations. It
is conceded that these corporations constitute a single em-
ployer within the meaning of Section 2(2) of the Act, and
they are hereafter collectively referred to as Respondent.
Respondent operates several movie theatres in the Greater
Cincinnati, Ohio, area, including the Esquire Theatre in
Cincinnati. During the year preceding the issuance of the
complaint , a representative period, Respondent had gross
revenues exceeding $500,000 ; rented films and purchased
goods and supplies valued in excess of $3,000 from sup-
pliers located outside Ohio and caused such goods to be
shipped directly to its Ohio locations; and leased films at a
cost in excess of $50,000 from firms located in Ohio, which
firms , in turn , leased and caused said films to be shipped to
their respective locations in Ohio directly from suppliers
located outside Ohio. I find that, as Respondent concedes,
it is engaged in commerce within the meaning of the Act,
and that exercise of jurisdiction over its operations will
effectuate the policies of the Act.
Moving Picture and Machine Operators Local 327, In-
ternational Alliance of Theatrical Stage Employees and
Moving Picture Operators of the United States and Cana-
da, AFL-CIO, herein called the Union, is a labor organiza-
tion within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In the latter part of March 1974, Respondent hired Mary
Sue Diamond as a cashier and usher at the Esquire The-
atre. She obtained this job with the assistance of her father,
Frank Diamond, who was that theatre's regular projection-
ist and a member of the Union. So far as the record shows,
Miss Diamond is not a member of nor in any respect inter-
ested in any union.
On Friday, May 17, 1974, the Union began an economic
strike of projectionists at four theatres operated by Re-
spondent, including the Esquire Theatre.' That day, Miss
Diamond reported to work at her usual hour for Friday, 6
p.m. At about 7:15 or 7:30, Theatre Manager Earl M. Hib-
bard drew her attention to the fact that Frank Diamond
was standing in front of the theatre and was putting on a
jacket which stated that the Union was on strike. Miss Dia-
mond credibly testified that this was the first time she
learned about the strike? She remained on the job until,
somewhat earlier than her regular quitting hour, Hibbard
sent her home. The show did not operate that evening, and
Respondent had to refund all the ticket money to pros-
pective patrons.
On Saturday, May 18, Miss Diamond reported for work
at her usual hour for Saturday, 6 p.m. When she opened
the box office, her father donned the "on strike" jacket and
began to picket the theatre. The show did not operate that
evening.
On Sunday, May 19, Miss Diamond reported to work
between noon and 1 p.m., her usual hour for Sunday. That
same day, Nick Moenssens, a music student, applied for
the projectionist's job at the Esquire Theatre, and was told
to report to the theatre that afternoon to look at the equip-
ment and see whether he could run it. When he arrived,
Hibbard took him up to the projection booth, told him all
Hibbard knew about the equipment, and then left Moens-
sens alone in the booth. Moenssens located various pro-
jector parts which had been hidden in various parts of the
booth. After about 10 minutes, he got one machine togeth-
er and began to operate a test run.
Moenssens credibly testified that he went to the pro-
jection booth sometime between 1 p.m. and 3 p.m. When
running, the projection machines can be heard from the
theatre manager's office. Theatre Manager Hibbard credi-
bly testified that between I and 2 p.m., Frank Diamond
1 Respondent 's counsel averred in his opening statement , "To the extent
that the work stoppage was the expression of an economic activity . it
was a protected activity within the meaning of the Act. However . . . there
was no notice given of the work stoppage It was a wildcat walkout in
violation of the existing agreement between the Union and the Company
However, that likewise would have no relevancy to the issues that are pres-
ently presented." Respondent's president testified that the struck theatres'
written contract with the Union "had expired, two years before we had
come in there and there was no contract as such We simply took over
whatever there was," and that when taking over the theatres Respondent
had not made any specific arrangements with the Union to continue the
predecessor 's contract . The record contains no evidence regarding the alleg-
edly "wildcat" nature of the strike, nor any evidence bearing on the legal
siginificances of any lack of notice thereof to Respondent.
She and her father did not live together, and regularly met only at work
and on Sunday mornings On May 17 , after her superior told Miss Diamond
to go home for the day, Frank Diamond told her that he had not advised
her of the strike in advance because he "didn't want to involve [her] in it. It
was none of [ her] business. It was Union business " Miss Diamond credibly
testified that "the whole family used to meet at Sunday morning at break-
fast and that Sunday [May 19] we decided not to have breakfast together
Everybody dust stayed at home . . . [Frank Diamond] said if anything
ever comes out of [the strike], then we will not converse about anything to
do with the Union or why [he was] on strike or anything like that."
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to that office to pick up his paycheck. Still according
to Hibbard's credible testimony, Frank Diamond then
went into the hallway and turned toward a stairway which
is down the hall and leads into the projection booth. The
theatre exit through the lobby and into the street is reached
from the other end of the hallway.
Moenssens credibly testified as follows: While the ma-
chine was running, a "really gruff looking man came in,
[who] looked like he was over 200 pounds" and was in his
mid or late fifties.3 Moenssens' visitor looked at him and
said, "Are you the scabbie?" Moenssens "just looked at
him and . . . smiled," whereupon the visitor said, "I want
to get a good look at you because you are taking my job
away and when I see you I am going to beat the shit out of
you." The visitor then left the booth. Moenssens turned off
the machine, but he remained in the booth. A few minutes
later, the visitor returned to the booth and said, "Do you
have Blue Cross health insurance? I hope you do because
you are going to need it." At some time during these con-
versations, Moenssens' visitor identified himself as the
proejctionist e
After the visitor's reference to Blue Cross insurance,
Moenssens went down to the lobby and asked
Respondent's ticket taker, whom the record identifies only
as "Joe," where the theatre manager was. "Joe" replied
that he was upstairs in the office. Moenssens said that he
had "been threatened with some very serious threats .. .
against [his] personal welfare." At that time, Miss Dia-
mond, whom Moenssens did not then know anything
about, was sitting on a bench on the other side of the lob-
by. Moenssens sat down beside her and said that a man
who "really looked big" had threatened to beat him up,
that he did not want a broken jaw, and that maybe he
should just forget about the projectionist's job. He ex-
plained that he was "just trying to make a few bucks to go
to school," whose name he mentioned. Moenssens further
said that, although he lived within walking distance of the
theatre, the threats had made him afraid to walk home.
Miss Diamond said that perhaps she could drive him
home, and asked him where he lived. He "more or less"
told her. Moenssens stated that "the man" who threatened
him "said he was the projectionist here" and that Moens-
sens "didn't want to monkey around with him." Miss Dia-
mond said that the projectionist was her father, and "just
don't believe what he says," that she did not think he
would break Moenssens' jaw. Moenssens said, "I really
don't want to get mixed up in any kind of Union stuff."
Miss Diamond told him to go ahead and run the show, "I
don't believe anybody is going to do anything to you.,,
Moenssens replied no, that he was going home.
Moenssens then told Theatre Manager Hibbard that
Moenssens had been threatened and did not feel that he
should work there "considering the nature of the strike"
(see infra). Hibbard thereupon telephoned Sam Levin,
3 Moenssens is 23 years old , is 6 feet I inch tall , and weighs between 170
and 180 pounds.
I so infer from Miss Diamond 's testimony , in effect corroborated by
Moenssens , that he so stated in reporting the exchange to her a few minutes
later.
S My findings in the foregoing paragraph are based on a composite of
Miss Diamond's and Moenssens ' mutually corroborative testimony
Respondent's president, that Moenssens was leaving. Levin
asked to speak to Moenssens, who told him that the pro-
jectionist had come into the booth and threatened Moens-
sens . Hibbard and Levin offered Moenssens a pay increase
and a security guard if he would stay. Moenssens refused,
and left the theatre about 10 minutes later 6
Later that afternoon, Moenssens telephoned Levin, indi-
cated that he might reconsider his decision to quit, but said
that he thought Miss Diamond was a "threat to [his] securi-
ty" because she might inadvertently reveal his address to
her father, the regular projectionist. A little later that day,7
Levin telephoned Hibbard. The only direct, specific ac-
count of their conversation is Hibbard's testimony (see su-
pra, fn. 6, infra, fns. 8 and 11). According to Hibbard, who
I am satisfied was trying to tell the truth to the best of his
memory. Levin "asked if [Miss] Diamond was Frank
Diamond's daughter, the projectionist, if she was there and
I told him, yes, and he said, let her go and take her back
when it is all over. He said she'll understand." However,
for the reasons set forth infra (fns. 8 and 11), I conclude
that Levin made some reference to Miss Diamond's ability
to "finger" other replacement projectionists for Frank Dia-
mond. Hibbard then told her that Levin had just called
him and told him that she was laid off. When she asked
why, he said "due to the fact that your father is on strike,
we feel that it would be better that you didn't work here at
this time until the strike was over. We were afraid that you
might be able to finger someone." 8 Miss Diamond replied
that her duties gave her no time to do such a thing. She
then went outside and told her father, who was picketing
outside the theatre, that "they just laid me off." Because
she was "upset" at her layoff, she did not refer to the pro-
jection-booth incident. He replied, "well, I expected they
would do that." She credibly testified that she had never
subsequently discussed the projection-booth incident with
her father. She ascribed this omission to her father' s state-
ment that "the strike was his concern."
Frank Diamond did not attend the hearing, nor was his
absence explained. Miss Diamond was in the hearing room
throughout the trial, but did not testify that Moenssens'
description of his visitor was inconsistent with her father's
physical appearance. At the time of the hearing the strike
was still in progress, and Moenssens was apparently work-
ing as a projectionist in another of Respondent's theatres?
Levin credibly testified that, on the day the strike began,
6 My finding that this Moenssens-Levin conversation occurred is based
on the credited testimony of Moenssens , whose memory I regard as more
reliable than that of Hibbard (who in effect denied that this conversation
took place) and Levin. My findings as to its content are based partly on
Moenssens testimony and partly on that of Levin, who was mistaken, I
believe , in attaching the remarks in the text to a conversation with Moens-
sens later that day
r I so infer from the probabilities of the situation . The witnesses' testimo-
ny about times, standing alone, is consistent with but not demonstrative of
that finding.
8 Although Hibbard denied saying anything about her being able to "fin-
ger" other employees or projectionists for her father, I credit the testimony
of Miss Diamond , whose memory impressed me as better than Hibbard's,
that he did in fact make such a remark. On the basis of this finding , Levin's
testimony that Moenssens told him Moenssens feared that Miss Diamond
would inadvertently reveal his address to her father, and the absence of
evidence that Moenssens told this to Hibbard, I infer that Levin relayed this
to Hibbard when telling him to lay off Miss Diamond.
e In giving testimony , Moenssens withheld his address and was not asked
NORTH DIXIE THEATRE, INC.
he received reports that the projection equipment in all the
theatres had been rendered inoperative by dismantling or
like means . According to his further credible testimony, on
the following day, May 18, when Respondent had man-
aged to start putting on a performance at another struck
theatre (the 20th Century), he received a report that the
theatre had been fire bombed with injuries to persons and
clothing; that when Respondent's nonstriking personnel
left another struck theatre (the Ambassador) in the neigh-
borhood and went to the 20th Century to see what had
happened, the pickets threatened their lives; and that such
threats caused the Ambassador personnel, one of whom
had been working for Respondent for 20 years, not to want
to come back,10
B. Analysis and Conclusions
Levin testified that Respondent laid off Miss Diamond
at the Esquire Theatre on May 19, 1974, because Moens-
sens had reported being threatened by the projectionist
and had expressed fear that his daughter would inadver-
tently tell him Moenssens' address, Levin believed that her
father would similarly threaten any other replacement pro-
jectionist, and Levin feared that if such a projectionist
learned of the Diamonds' relationship he would quit for
the same reason Moenssens left. Counsel for the General
Counsel asks me to discredit Levin's testimony in this re-
spect, and to conclude instead that "Respondent retaliated
against Miss Diamond because of her father's lawful strike
activities." In addition to urging that Levin's testimonial
explanation was never tendered to Hibbard or Miss Dia-
mond (a contention previously rejected in Sec. II, A), the
General Counsel relies on the fact that Miss Diamond was
laid off for the duration of the strike rather than perma-
nently, and on Respondent's failure to take personnel ac-
tion against Frank Diamond himself. However, these cir-
cumstances , if anything, serve to corroborate Levin's
testimony. Any desire by Frank Diamond to inflict a beat-
ing on a substitute projectionist might well be increased by
Frank Diamond's discharge during the strike, but diminish
if not disappear once the strike was over. Moreover,
Levin's testimony about his motives for laying off Miss
Diamond gains support from the uncontradicted evidence
that at the Ambassador, also victimized by vandalism
which Levin believed attributable to strikers whose identity
he did not know, Respondent retained in its employ a the-
atre manager who was the wife of a "very very militant"
union member . Accordingly, I credit Levin's testimony re-
garding his motives for laying off Miss Diamond." The
to name the theatre where he worked . However, Respondent's counsel elic-
ited from him the name of the college which he was attending.
10 Levin 's testimony that he received these reports was admitted for the
purpose of showing his motive for his subsequent conduct, and not for the
purpose of showing that these events in fact occurred.
1 I attribute to Levin 's poor memory , and his tendency to generalize, the
inconsistency between his testimony and Moenssens ' regarding the number
of telephone conversations between them prior to Miss Diamond's layoff,
and Levin 's failure to testify that he told Hibbard about the possibility that
she would " finger" other replacement projectionists. Nor do I find Levin's
testimony about his motive for laying off Miss Diamond to be suspect be-
cause of the opening statement of Respondent 's counsel that the layoff
decision was based in part on the Diamonds' living together , whereas her
313
question then remains of whether her layoff for such rea-
sons violated the Act.-I conclude that it did not.
In contending that Miss Diamond's layoff was unlawful,
the General Counsel relies on, inter alia, cases holding un-
lawful the discharge of a union activist's relative, or sup-
posed relative, for the purpose of punishing the activist for
his own protected activity.12 These cases are inapposite,
however, because the activity for which Frank Diamond
was allegedly being punished through his daughter's layoff
was not protected union activity 13 but, rather, was activity
for which he himself could lawfully have been separated. °
Particularly because the strike was still in progress at the
time of the hearing, the mere absence of evidence that Re-
spondent ever expressed unwillingness to take back Frank
Diamond himself does not establish that Respondent had
already condoned his strike misconduct-and, therefore,
could not have lawfully terminated him-when laying off
Miss Diamond."
Nor is there merit to the General Counsel's contention
that the evidence fails to show that the individual who
threatened Moenssens was in fact Frank Diamond. I infer
that Moenssens ' visitor was in fact Frank Diamond from
the uncontradicted evidence that Frank Diamond partici-
pated in the strike; participated in the May 19 Esquire
picketing both before and after the May 19 projection-
booth incident; at or about the time of this incident was
present in the theatre manager's office, from which the op-
eration of the projection machines could be heard and the
projection booth was readily accessible; turned toward the
projection booth, and away from the exit through the lob-
by, when he left the manager's office; and just prior to the
strike was the last man present in the projection booth,
where the next person who succeeded in operating the pro-
jection machinery (Moenssens) found various parts of it
credible testimony shows that they had not lived together for a period of
years beginning well before Respondent hired her and Levin testified that
prior to his conversation with Moenssens he had not even known that she
worked at the Esquire
12 Counsel cites the following cases in this category- Ridgely Manufactur-
ing Company, 207 NLRB 83 (1973); J. P Chnapko, inc, 202 NLRB 252
(1973): Colonial Press, Inc, 204 NLRB 852 (1973): Vanella Buick Opel, Inc,
191 NLRB 805 (1971); Champion Papers, Inc, 158 NLRB 978 (1966), enfd
393 F.2d 388 (C A. 6, 1968). Cf. infra, In 21
13Cf Dofflemyer Bros., 101 NLRB 205, 206-207 (1952), enforcement de-
nied 206 F.2d 813 (CA. 9, 1953), Marathon Electric Mfg. Corp, 106 NLRB
1171, 1179-80 (1953), affd. sub nom. United Electrical, Radio & Machine
Workers of America (UE) 223 F 2d 338 (C.A.D C, 1955)
14 See, a g, Gulf Coast Portland Cement Co, 169 NLRB 47 (1968), Food
Store Employees Union, Local 347, Meat Cutters (Davis Wholesale Co., Inc ),
165 NLRB 291, 313-314 (1967), enfd. and affd. 413 F 2d 407 (C.A.D.C.,
1969), remanded in part 419 F 2d 719 (C A.D.C., 1969); The Firestone Tire
& Rubber Company, 187 NLRB 54 (1970), enforcement denied 449 F 2d 511
(CA. 5, 1971).
is Longview Furniture Company, 100 NLRB 301, 305-307 (1952), modified
206 F.2d 274 (C.A. 4, 1953), Merck and Company, Inc, 110 NLRB 67
(1954); Dubo Manufacturing Corporation, 148 NLRB 1114, 1119, (1964),
enfd . 353 F.2d 157 (C.A. 6, 1965). ". condonation may not lightly be
presumed ." Complete Auto Transit Inc, 134 NLRB 652, 658 (1961) In all
the cases cited by the General Counsel, the employer had at the very least
affirmatively stated that it would reinstate the misbehaving strikers.
As a matter of initial impression , I am receptive to a contention that a
condonation showing sufficient to ban personnel action against Frank Dia-
mond himself would likewise ban Miss Diamond's subsequent layoff for the
purpose of punishing him for his condoned conduct However, I do not
regard this proposition as being clear enough to warrant the General Coun-
sel in assuming it without discussion ; and I find it unnecessary to reach a
definitive conclusion as to its validity
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concealed. Moreover, Moenssens ' visitor identified himself
to Moenssens as the projectionist; and Miss Diamond, al-
though present in the hearing room when Moenssens gave
a physical description of his visitor, did not testify that this
description was inconsistent with her father's appearance.
Furthermore, because Frank Diamond would likely be
more favorably disposed toward his daughter than toward
the employer against which he was currently striking, the
unexplained failure of either Miss Diamond or the General
Counsel to call him as a witness leads me to infer that his
testimony would not have been favorable to their cause.16
In my view, such evidence preponderantly points to Frank
Diamond's guilt in the incident involving Moenssens,
whom he had never met before, notwithstanding Hibbard's
credible testimony that Frank Diamond "seemed to be
good friends" with Charles Lloyd, who acted as projection-
ist after Moenssens left and while the strike was still in
progress.
In any event, I conclude that because Respondent has
shown by a preponderance of the evidence that in laying
off Miss Diamond it acted in the good-faith belief that
Frank Diamond had engaged in strike misconduct, and
because such misconduct (if in fact committed) would con-
stitute a valid defense to her layoff, her layoff could not be
found unlawful unless the evidence preponderantly showed
(as it plainly does not) that Frank Diamond had not in fact
engaged in such misconduct. Under Board law and the
weight of judicial authority, the burden of establishing in-
nocence would devolve on the General Counsel if the issue
were the propriety of similarly motivated action against
Frank Diamond himself." Initially, in such a case, Re-
spondent would have the burden of showing a fact which,
if true, would be peculiarly within its own knowledge-
namely, that its action was motivated by a good-faith belief
that he had engaged in strike misconduct. While even such
a showing would not conclude the issue if Respondent
erred in its belief that it was Frank Diamond who threat-
16 Golden State Bottling Company Inc. d/b/a Pepsi-Cola Bottling Company
of Sacramento v N.L R B., 414 U.S. 168, 173-174 (1973); Laborers ' Interna-
tional Union of North America, AFL-CIO, Local No. 83 [Fry, Inc.], v.
N.L R.B., 497 F 2d 1337, 1339 (C.A. 6, 1974), N.L R B. v. Ohio Calcium
Company, 133 F.2d 721, 727 (C.A. 6, 1943); International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America
(UAW) [Gyrodyne Co J v. N L R B., 459 F.2d 1329, 1335-39 (C.A.D.C ,
1972).
17 Dallas General Drivers, Warehousemen and Helpers, Local Union No 745
[Farmers Cooperative Gin Association] v. N.L.R.B, 389 F.2d 553, 554-555
(C.A.D.C., 1968), and cases cited . See, however, Kayser-Roth Hosiery Com-
pany, Inc. v. N.L R.B, 447 F.2d 396, 400 (C.A. 6, 1971), ("The alleged act
and the particular striker's guilt thereof must be proven before the Compa-
ny is justified in denying him reinstatement N L R.B . v. Burnup and Sims,
Inc., 379 U.S. 21 (1964); N L R B. v. Cambria Clay Products Co., 215 F 2d 48
(6th Cir 1954).") The Board had found in Kayser-Roth that the General
Counsel had sustained his burden of proof with regard to this striker. 187
NLRB 562, 572 (1970) (Henderson). Moreover, Kayser-Roth involved unfair
labor practice strikers , whose inclusion in a reinstatement order notwith-
standing alleged strike misconduct turns on the remedial consideration of
whether their misconduct outweighs the employer's and, therefore, may call
for burden-of-proof rules different from those applicable where, as here, the
issue is whether the employer's personnel action constituted a statutory vio-
lation in itself. See J. H. Rutter-Rex Manufacturing Company, Inc, 158
NLRB 1414, 1418, 1448-49 (1966), modified 399 F.2d 356 (C.A. 5, 1968),
employer's petition for cert denied 393 U.S. 1117, reversed in part 396 U.S
258 (1969).
ened Moenssens (Burnup & Sims, supra, 379 U.S. 21).18
once Respondent had discharged its burden of showing
good faith (as it has done here) the General Counsel could
maintain his complaint only by preponderantly estab-
lishing a fact which, if true, would be peculiarly within
Frank Diamond's knowledge-namely, that he had not en-
gaged in the misconduct alleged . This allocation of the bur-
den of proof flows at least in part from equitable consider-
ations . The essential problem presented by an ordinary
Burnup & Sims-type case is that loss must somehow be
allocated between two blameless parties-an employer
who in good faith-seeks to exercise his right under Section
10(c) to discharge an employee for "cause," and an em-
ployee who is in fact innocent of the misconduct ascribed
to him. Where (as here) the employer has discharged the
burden of showing subjective good faith (a matter pecu-
liarly within its own knowledge), it is fair to permit the
employee to prevail against his honest employer only if the
employee, in turn, affirmatively proves that he himself is
likewise innocent (a matter peculiarly known to him).19
These equitable considerations are applicable here with al-
most equal force, because Frank Diamond's testimony is
as a practical matter less available to Respondent than to
Miss Diamond and counsel for the General Counsel. In-
deed, even if this were not the case (for example, if Re-
spondent had erred in believing them to be related), the
same result is at least arguable from Burnup & Sims' refer-
ence to the deterrent effects, on employee freedom to par-
ticipate in protected activity, of discharge action "on false
charges ." The inhibiting effect of a layoff for a supposed
relative's misconduct in a concerted-activity context would
be less where (as here) the lawful reason which the employ-
er advances therefor to the employee is not undermined by
an affirmative showing of the supposed relative's inno-
cence.
Finally, counsel for the General Counsel contends that
Miss Diamond's layoff was unlawful because "inherently
destructive" of employee rights in that it discouraged Miss
Diamond in the exercise of her statutory right to refrain
from joining the strike.20 I do not agree that Respondent's
conduct had or tended to have such an effect. After the
strike began, Respondent continued to accept Miss
Diamond's services until the Moenssens incident; so far as
the record shows, Respondent continued to accept the
services of all other nonstrikers at all material times; and
Respondent told her that she was being laid off lest she
"finger" someone-a statement on the heels of the conver-
sation during which Moenssens revealed his address and
school to Miss Diamond, learned that the projectionist was
her father, told her that the projectionist had threatened
him with a beating, and said that in consequence of the
threat Moenssens was quitting the projectionist's job. Such
circumstances made it wholly clear to Miss Diamond and
the other nonstrikers that her layoff resulted from her abili-
ty to help her father carry out his threats of violence to
18 Accord: Cambria Clay, supra at 53-54.
19 See Ohio Associated Telephone Co. v. N.L.R.B, 192 F.2d 664 (C.A. 6,
1951).
20 Counsel relies on N.L R B v. Great Dane Trailers, Inc., 388 U.S. 26,
32-34 (1967).
NORTH DIXIE THEATRE, INC.
prevent the operation of the theatre, and not from her will-
ingness to help Respondent continue theatre operations
during the strike 21
In view of my findings regarding the role played by the
projection-booth incident in Respondent's decision to lay
off Miss Diamond, I find it unnecessary to determine
whether, even absent this incident, Respondent could law-
fully have laid her off for the sole purpose of forestalling
her from accidentally revealing substitute projectionists'
identity to her striking father. Cf. Joseph Schlitz Brewing,
supra; Celanese, supra at 725; Great Dane, supra at 33-34.
21 Counsel for the General Counsel further cites three cases which I read
as holding unlawful the discharge of a union activist 's relative because the
relationship had led the employer to suspect or anticipate protected union
activity by the dischargee : J. P. Stevens & Company, Inc, 179 NLRB 254,
265-266 ( 1969), enfd . 441 F.2d 514, 519 (C.A. 5), cert denied 404 U.S.
830(1971); Carolina Quality Concrete Co., 193 NLRB 463, 468-469 (1971),
Superior Microfilm Systems Inc., et a! d/b/a B. G Management Company,
201 NLRB 555 (1973), enfd . 485 F .2d 681 (C.A. 3). As is suggested by the
General Counsel 's contention that Miss Diamond 's layoff infringed on her
right to refrain from striking, this class of case is irrelevant here . Both Levin
and Moenssens testified that they apprehended inadvertent "fingering," not
"fingering" in a deliberate effort to help the strikers ' cause Accordingly,
they did not apprehend from her any conduct which would be concerted
CONCLUSIONS OF LAW
315
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not violated Section 8(a)(1) or (3) of
the Act by laying off Mary Sue Diamond.
[Recommended Order for dismissal omitted from publi-
cation.]
activity so far as her rights were concerned. Cf. N L R.B v Union Carbide
Corp, 440 F.2d 54, 56 (C.A. 4), cert denied 404 U.S. 826 (1971). In any
event , a deliberate effort by Miss Diamond to identify replacement pro-
jectionists for her father for the purpose of enabling him to threaten them
with strike -related violence would not be protected activity by her. Cf. Jo-
seph Schutz Brewing Co, 211 NLRB 799 (1974); Celanese Corporation of
America, 95 NLRB 664, 725 (1951) Nor is there any evidence that Miss
Diamond, who until her layoff reported for duty as usual throughout the
strike , was in any respect concerned with its outcome.
In view of this absence of any context of protected union activity by Miss
Diamond (either actual, suspected , or apprehended), her layoff was not
rendered unlawful by the absence of any blameworthy conduct ( even sus-
pected or apprehended) by her, Cf Complete Auto Transit, supra at 659-660:
N.L.R.B. v. McGahey, et al. , d/b/a Columbus Marble Works, 233 F.2d 406,
413 (C.A 5, 1956)