Renton Village Cinema

National Labor Relations Board - Board Decisions

Feb 22, 1977

228 N.L.R.B. 377 (N.L.R.B. 1977)

RENTON VILLAGE CINEMA
General Cinema Corp . d/b/a Renton Village Cinema
and Service Employees International Union, Local
No. 6, AFL-CIO' and International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada, AFL-CIO-CLC.2 Cases 19-CA-8183
and 19-CA-8300
February 22, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On September 21, 1976, Administrative Law Judge
Henry S. Salim issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed
cross-exceptions and a brief in support thereof and in
support of the Decision , and Local 6 filed a brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge, as
modified herein.
We find, as did the Administrative Law Judge, that
Respondent violated Section 8(a)(3) and (1) of the
Act by discharging janitors Charles Schumacher,
Michael Thompson, and Lonnie Trudeau on Novem-
ber 17, 1975, because of their activities on behalf of
Local 6.4 To remedy these unfair labor practices, the
Administrative Law Judge recommended that Re-
spondent be ordered to pay the discriminatees for any
loss of earnings sustained by them from the time of
their discharges to their subsequent return to Respon-
dent's employ in January and February 1976 and to
bargain prospectively with Local 6 upon request.
Inasmuch as there is some evidence that the discrimi-
natees may not have been fully reinstated, we find
Herein called Local 6.
z Herein called IATSE.
3 The Respondent 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 his findings.
4 In finding that the janitors were unlawfully discharged , we do not adopt
the Administrative Law Judge 's finding that Respondent's subsequent
rehiring of the dischargees is conclusive proof of Respondent 's unlawful
motivation.
5 Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division
#1, 228 NLRB 93 (1977).' Member Fanning, in accord with his position
228 NLRB No. 41
377
merit in the General Counsel's contention that the
Administrative Law Judge's recommended Order
may not return them to the position they would have
been in but for Respondent's unlawful conduct.
Accordingly, we shall issue our customary reinstate-
ment and make-whole order, leaving the determina-
tion of loss and the adequacy of reinstatement to the
compliance stage of the proceeding.
As for the bargaining order recommended to
remedy the unlawful discharges, we find, consistent
with our recent decision in Beasley Energy, Inc., 5 that,
although no demand for recognition had been made,
Respondent should be required to bargain upon
request from the date it embarked on its unlawful
course of conducts Accordingly, we shall order that
Respondent bargain upon request with Local 6 as of
November 17, 1976, the date Respondent unlawfully
discharged employees Schumacher, Thompson, and
Trudeau.
We further find that the Administrative Law Judge
correctly concluded that Respondent violated Section
8(a)(1) of the Act when, during a November 15, 1975,
meeting of its "front employees" (cashiers, refresh-
ment employees, ushers, and doorman), called by
Respondent, Theater Manager R. W. Osgood (1)
inquired as to whether those assembled had decided
to support a union; (2) told them that if they elected
to be represented by a union each employee would
probably be able to work more hours, that fewer
employees would therefore be needed, and that as a
result there would probably be a reduction in the
work force; 7 and (3) threatened them with more
restrictive working conditions. We find merit, how-
ever, in the General Counsel's exception to the
Administrative Law Judge's failure to conclude that
Respondent violated Section 8(a)(1) of the Act by
announcing a pay increase at the same meeting. We
find, as the General Counsel contends, that while the
granting of the pay increase was concededly required
by state law and was not violative of the Act the
timing and context of the announcement establishes
that it was part and parcel of Respondent's unlawful
effort to discourage the employees from joining a
union.
in Beasley, does not accept this finding and would affirm the Administrative
Law Judge's recommended Order.
6 By the date of the unlawful discharges , the entire janitonal complement
had signed union authorization cards. As it is clear that Local 6 had at one
time attained a majority standing , we find it unnecessary to pass upon the
Administrative Law Judge 's findings with regard to that Union's majority
status.
7 While correctly citing the testimony of credited employee witnesses
Monica Moore and Sharon Watson to this effect in his Decision, the
Administrative Law Judge inadvertently misstated in the section entitled
"Discussion and Conclusions," under the enumeration of Respondent's
misconduct identified as "(2)," that Osgood told the employees that upon the
advent of the union "there would probably be terminations which might
result in those employees who survived the reduction -in-force being required
to work more hours."
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pertinent facts are as follows: dissatisfied with
the wages they were receiving from Respondent, the
"front employees" contacted IATSE in late October
or early November 1975, and thereafter scheduled a
meeting for 10 a.m. on Saturday, November 15, 1975,
at employee Watson's home to discuss the prospect of
joining IATSE. A few days before the scheduled
meeting , Watson informed Assistant Manager Deb-
bie Long, an acknowledged supervisor, that the
employees were considering joining a union. Long
offered to ask her friend David Ewing, a manager of
one of Respondent's other theaters where the employ-
ees were represented by a union, to talk to the front
employees. Neither Long nor Ewing attended the
planned meeting, however, which was rescheduled
for 9 a.m. after Respondent, without the customary
advance notice, announced on Friday afternoon that
a staff meeting would be held the next morning at 10
a.m.
Following the employees' meeting at Watson's
home, where 12 to 15 of the 20 employees in
attendance voted "to join the Union," the employees
proceeded to the staff meeting where Theater Manag-
er Osgood informed the employees that they were to
receive a wage increase . While Osgood testified that
he told the employees the increase was in accordance
with the State's new minimum wage law,8 according
to the credited testimony of employees Watson and
Moore,9 Osgood made no reference to the minimum
wage,l° but told the employees they were getting the
raise because they were underpaid and the increase
was warranted.11 It was at this point that employee
Bill Dugovich brought up the fact that the employees
were considering joining a union. Osgood responded
that he had heard "rumors" to this effect and asked
whether the employees had decided to join a union.
Osgood then suggested that the employees take a vote
on the subject, and he and the other supervisory
personnel who were also in attendance left the room.
When Osgood and the others returned, the employees
indicated that they had decided to continue investi-
gating the matter of joining a union and began asking
Osgood questions about union representation. Os-
good, who allegedly told the employees he could not
a Both Osgood and Respondent 's division manager , Robert Painter,
testified that they had known of the change in the State 's minimum wage law
since September 1975. According to Painter , Respondent had not granted
the mandatory increases because it was awaiting receipt of a copy of the
regulation from the State Labor Department . Painter claimed that, when on
November 14, 1975, he coincidentally received a copy of the regulation from
a third party , he authorized Osgood 's announcement. Osgood testified that
during the fall of 1975 and in early November in particular certain employees
had inquired about an increase in the minimum wage retroactive to
September 1, 1975, that during a telephone conversation with Painter on
November 14 regarding the janitors ' discharge he raised the question of the
wage increase , and that later that day Painter called to inform him that
Respondent's "home office had finally checked it out," that there would be
an increase , and that the staff could be so informed.
a The format of the Administrative Law Judge 's discussion of Watson's
"technically or legally" get involved in such matters,
continued to explain that if the employees elected to
join a union there would probably be a reduction in
the work force and more restrictive working condi-
tions.
Based on these facts, we find that Respondent acted
improperly by announcing the wage increase. Re-
spondent had been aware of the change in the State's
minimum wage law for some 3 months, but had never
so apprised the "front employees." Then, on the eve
of the "front employees' " first meeting to discuss
joining a union, Respondent decided to announce
this mandatory increase . Significantly, the decision
by Osgood and Painter to inform the employees of
the increase at this time was made during the same
telephone conversation in which they decided to
discharge the entire janitorial complement for engag-
ing in union activities. Further, Respondent staged
the announcement for 10 a.m. on Saturday, Novem-
ber 15, the same time the "front employees" had
chosen to conduct their union meeting of which
Respondent had knowledge. At the staff meeting,
Osgood, acutely aware of the employees' dissatisfac-
tion with the current wage scale, announced that
Respondent was granting a substantial wage increase.
Osgood also indicated that the increase was being
granted because it was deserved, thereby inducing the
employees to believe the increase, which in fact was
not substantial, was the result of Respondent's
generosity rather than the amended minimum wage
law. When the "front employees" were not persuaded
to abandon the possibility of organizing by the
promise of a wage increase, Respondent threatened
them with loss of their jobs and more restrictive
working conditions. Also noteworthy is the fact that,
on the same day Respondent announced the increase,
it discharged the entire janitorial staff for engaging in
union activities. Under these circumstances, we find
that Respondent, by announcing the increase at this
time and in this context, violated Section 8(a)(1) of
the Act.12
Upon the basis of the foregoing facts and the entire
record, the Board makes the following:
testimony set forth in the section ofhis Decision entitled "Alleged Violations
of Section 8(a)(1)" suggests that Watson is quoted verbatim. In fact, the
discussion is an accurate paraphrase of Watson's testimony.
10 Moore indicated in her testimony that she learned of the change in the
minimum wage law at this meeting, but, contrary to the Administrative Law
Judge's finding that she "heard [this] from Osgood ," Moore specifically
denied that Osgood based the wage increase on the minimum wage law
amendment.
11 The Administrative Law Judge found that Moore testified that Osgood
told the employees the wage increase would "be a substantial raise ... from
$1.75 to $1.79 an hour ." Moore in fact testified that Osgood announced the
increase would be substantial , but that she did not so consider the 4-cent-per-
hour increase she received.
12 See, e.g., Spotlight Company, Inc., 188 NLRB 819 (1971).
RENTON VILLAGE CINEMA 379
CONCLUSIONS OF LAW
1. General Cinema Corp. d/b/a Renton Village
Cinema is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local
No. 6, AFL-CIO, and International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada,
AFL-CIO-CLC, are labor organizations within the
meaning of Section 2(5) of the Act.
3. All janitorial employees employed by Respon-
dent at its Renton Village Cinema, Renton, Washing-
ton, but excluding office clerical employees, profes-
sional employees, guards, supervisors as deemed in
the Act, and all other employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since November 17, 1975, Service
Employees International Union, Local No. 6, AFL-
CIO, has been and now is the exclusive representative
of the employees in said unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. Respondent, by discouraging membership in
Service Employees International Union, Local No. 6,
AFL-CIO, by discharging its employees because of
their union activities, has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
6. Respondent, by interrogating employees con-
cerning their union activities, has engaged in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
7. Respondent, by threatening employees with
possible loss of employment or more restrictive
working conditions in reprisal for union activity or
membership, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. Respondent, by announcing wage increases to
its employees in order to influence their desire or
decision with respect to International Alliance of
Theatrical Stage Employees and Moving Picture
Operators of the United States and Canada, AFL-
CIO-CLC, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
General Cinema Corp. d/b/a Renton Village Cine-
ma, Renton, Washington, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Service Employees
International Union, Local No. 6, AFL-CIO, or any
other labor organization, by discharging or in any
other manner discriminating against employees in
regard to their hire or tenure of employment or any
terms or conditions of employment.
(b) Interrogating employees concerning their union
activities.
(c) Threatening employees with possible loss of
employment or more restrictive working conditions
in reprisal for union activity or membership.
(d) Announcing wage increases or other benefits to
employees in order to influence their desires or
decisions with respect to International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada,
AFL-CIO-CLC, or any other labor organization.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement regarding membership in a labor organiza-
tion as a condition of employment as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Offer Charles Schumacher, Michael Thompson,
and Lonnie Trudeau immediate and full reinstate-
ment to their respective former jobs or, if those jobs
no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered because of
Respondent's discrimination against them, the com-
putation of such money to be in accord with F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6 percent per annum as
set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
(b) Upon request, recognize and bargain with
Service Employees International Union, Local No. 6,
AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described below,
with respect to rates of pay, wages, hours and other
terms and conditions of employment and, if an
understanding is reached, embody such understand-
ing in a written signed agreement. The appropriate
bargaining unit is:
All janitorial employees employed by Respondent
at its Renton Village Cinema, Renton, Washing-
ton, but excluding office clerical employees,
380 DECISIONS OF NATIONAL
professional employees, guards, supervisors, as
defined in the Act and all other employees.
(c) 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.
(d) Post at its place of business in Renton, Wash-
ington, copies of the attached notice marked "Appen-
dix." 13 Copies of said notice, on forms provided by
the Regional Director for Region 19, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately upon
receipt thereof, and maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees 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.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
13 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against our employees for their activities on
behalf of Service Employees International Union,
Local No. 6, AFL-CIO, or any other labor
organization.
WE WILL NOT interrogate our employees con-
cerning their union activities.
WE WILL NOT threaten our employees with loss
of employment or restrictive working conditions
in reprisal for union activity or membership.
WE WILL NOT announce wage increases or other
benefits to employees in order to influence their
desires or decisions with respect to International
Alliance of Theatrical Stage Employees and
Moving Picture Operators of the United States
and Canada , AFL-CIO-CLC, or any other labor
organization.
LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL offer Charles Schumacher, Michael
Thompson, and Lonnie Trudeau immediate and
full reinstatement to their respective former posi-
tions or, if those positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privileg-
es, and WE WILL make them whole for any loss of
earnings or other benefits suffered because of the
discrimination against them, with interest at the
rate of 6 percent per annum.
WE WILL, upon request, recognize and bargain
collectively with Service Employees International
Union, Local No. 6, AFL-CIO, as the exclusive
representative of all employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment, and other conditions
of employment and, if an understanding is
reached, embody such understanding in a written
signed agreement. The appropriate bargaining
unit is:
All janitorial employees employed by Respondent
at its Renton Village Cinema, Renton, Washing-
ton, but excluding office clerical employees,
professional employees, guards, supervisors as
defined in the Act and all other employees.
GENERAL CINEMA CORP.
D/B/A RENTON VILLAGE
CINEMA
DECISION
STATEMENT OF THE CASE
HENRY S . SAHM, Administrative Law Judge : This pro-
ceeding was heard at Seattle, Washington, on March 18,
1976, pursuant to charges filed on November 21, 1975, and
January 21, 1976 , and a consolidated complaint issued
February 23, 1976.1
The complaint presents questions whether Respondent,
called both Renton Village Theatre and General Cinema
Corporation, violated Section 8(aX3) of the National Labor
Relations Act when it discharged three janitorial employees
because of their membership in and activity on behalf of
Service Employees International Union, Local No. 6,
AFL-CIO, referred to hereafter as Local 6, one of the two
Charging Party Unions in this consolidated proceeding.
The other union , International Alliance of Theatrical
Stage Employees and Moving Picture Machine Operators
of the United States and Canada , AFL-CIO-CLC, called
hereafter IATSE and the Union, filed a charge alleging
I All dates refer to the year 1975 unless otherwise indicated.
RENTON VILLAGE CINEMA 381
violations of Section 8(a)(1) on behalf of those theater
personnel employed in Respondent 's Renton Village Cine-
ma, as cashiers , candy or concession employees , ushers, and
doormen . These employees , hereafter grouped under the
collective name "front employees ," worked at the same
theater as did the janitors , but during the hours the movies
were being shown , whereas the janitors cleaned the theater
after the last performance.
It is alleged that, at a time when Respondent knew its
"front employees" had made arrangements for a union
meeting, at 10 a .m. on July 15, Respondent scheduled a
staff meeting of the front employees for the same date and
time, which , of course, was not attended by the janitors. At
this meeting, states the General Counsel, the front employ-
ees were granted pay increases and threatened with more
restrictive working conditions and loss of employment,
including lessened opportunity for future merit wage
increases should the employees elect to be represented by
IATSE.
Upon the entire record , including observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by both counsel on April 26, there are
hereby made the following:
FINDINGS OF FACT
Jurisdiction and the Labor Organizations Involved
The Board on December 20, 1974 , found that Respon-
dent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act. General Cinema Corporation, 214
NLRB 1074 ( 1974).
Both of the above-named Unions are labor organizations
within the meaning of Section 2(5) of the Act.
I. INTRODUCTION
Michael Thompson , Charles Schumacher, and Lonnie
Trudeau were employed as janitors cleaning Respondent's
Renton Village movie theater at the end of each day's
performance . They all signed Service Employees Local 6
union authorization cards on November 12.2 By identical
letters dated November 15, and signed by R. W. Osgood,
manager of Respondent 's theater and received by said
employees on November 17, they were notified that,
effective November 17, they were being discharged "due to
unsatisfactory job performance . . . determined by a
theater inspection , November 5, by Mr . Werthman, region-
al director and Mr . Painter, west coast division manager."
The dismissal letter continues as follows : "Mr. Osgood,
manager and Miss Pittman , assistant manager, inspected
the theater November 15, 1975 , no improvement was
shown . Therefore our company has determined it is in the
best interests of General Cinema Corporation to make
other arrangements at this time."
On November 20, Respondent employed American
Building Maintenance Company to perform the same
duties of cleaning the Renton Village movie theater, which
heretofore had been performed by the three alleged
discriminatees . This company was employed to clean the
theater for 12 days until December 2, when Respondent
dispensed with its services . The company was replaced by
three new janitors . Later, after the issuance of the com-
plaint, Respondent rehired the three alleged discriminatees
to perform the same duties they had as janitors . A seventh
janitor was employed at about the same time , thus keeping
the three dischargees in the minority.
II. THE ALLEGED 8(A)(3) VIOLATIONS
A. The Testimony
Charles Schumacher was employed by Respondent as a
janitor from October 13 until November 17, when he was
discharged allegedly for the inferior quality of his work. On
November 12, 1975 , he signed a union designation card.
The following day, he testified , he had a conversation with
Bonnie Pittman, assistant manager of the theater and a
supervisor within the meaning of Section 2(11) of the Act.
At that time, according to Schumacher , he told her "that we
planned on going Union" and, when he mentioned the
names of the two union officials with whom he was dealing,
Pittman stated that she knew one of them.
On cross-examination , it was elicited that management
had notified the janitors on approximately November 1 that
the cleanliness of the theater was to be inspected on or
about November 5 by Respondent 's upper echelon offi-
cials . Schumacher also testified that he had never been
reprimanded by Osgood, the manager, nor any other
superior for the quality of his work . He emphasized on
cross-examination that, after the November 5 inspection of
the theater's cleanliness , neither Manager Osgood nor his
assistant, Pittman, complained about Schumacher's work.
In fact, testified Schumacher, none of his supervisors ever
advised him about the results of the November 5 inspec-
tion . In his words : "We all tried to fmd out and we weren't
told nothing," except that Pittman upon being asked by
him replied that "she had heard nothing."
Michael Thompson , another dischargee , who corrobo-
rated Schumacher's testimony , denied that any superior
ever complained about his work . Moreover , continued
Thompson , he was unable to ascertain from Pittman the
results of the November 5 inspection by Respondent's
officials. Thompson related on cross-examination that
when he was fired he asked Osgood the reason and the
latter told him "that American Building Maintenance was
coming in; we weren't doing a satisfactoryjob. "
Lonnie Trudeau, the third alleged discriminatee, corrob-
orated the other two janitors' testimony that he had never
been reprimanded for unsatisfactory work performance
prior to his discharge , adding that the theater at the time of
the November 5 inspection was "in good shape ." On cross-
examination, Trudeau testified that when he was terminat-
ed he inquired of Osgood the reason why he was discharged
and the latter answered : "That it came from above him,
that American Building Maintenance was coming in, and it
[our work ] was not up to snuff."
R. W. Osgood , manager of the theater , testified on
direct examination that between October 1 and November
5, 1975, the date of the inspection he had on several
2 There were a total of four janitors employed by Respondent at its
Renton Village theater . The fourth , who also signed a union card, was
terminated for good cause on November 13.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasions noted cleanliness deficiencies in the janitorial
staffs work. Osgood was on vacation from November 3
through 9, and when he left he knew that an inspection was
to be made of the theater by his superiors on November 5.
It strains one's credulity to believe that he had been
dissatisfied with the three janitors' work heretofore. Other-
wise, it is not too unreasonable to assume that he would not
have gone on vacation 2 days before the inspection if he
was truly dissatisfied with the quality of their work. The
plain implication of his departing, it is submitted, is that he
went on vacation optimistically reposing such faith in the
three janitors' ability that he harbored no qualms about
their passing the hierarchy's inspection with flying colors.
Thus, his assertion is not credited that the three janitors'
work was so unsatisfactory that he had been required to do
corrective work in the restrooms and to utilize staff
members other than the three janitors to maintain the
cleanliness of the theater in a satisfactory condition.
Painter, division manager , testified on direct examination
that the inspection which was ordered by the Boston home
office was conducted by Werthman, who is Painter's direct
supervisor. Werthman did not testify. Painter, who accom-
panied Werthman on the "walk-through" inspection of the
theater on November 5, testified he had noticed that the
theater was "below what I would look for in a normal or
average theater." Painter continued that he "honestly felt
that it should have been done in a better manner."
Basically, continued Painter, the normal cleaning items had
not been properly performed: "The rear seat backs, made
of white metal, had not properly been wiped down, spills
had not been mopped, and the floors had not been poli
to remove gum, candy and other sticky items ." After e
inspection, Werthman, according to Painter, communicat-
ed to him that the theater "needed work." Nevertheless, all
these alleged inadequacies were not revealed to the dischar-
gees prior to their November 15 termination. It is incredible
that, under the circumstances here disclosed, a word of
caution, a warning, would not have been given to them.
Osgood, who returned from vacation on November 10,
testified that on November 13 he spoke briefly with
Thompson, one of the discharged janitors. Thursday, stated
Osgood, was payday at the theater and he recalled meeting
Thompson behind the candy counter when Thompson
came in for his paycheck. Osgood's testimony continued
that he warned Thompson "that the theater was not in
shape and that you're going to get on the ball or we're going
to have to make other arrangements."
On November 14, when Painter, the district manager,
phoned Osgood, the latter told Painter during the course of
their talk that "there had been rumors of union activity by
Local 6." The conversation concluded when Painter stated
to Osgood "that if termination of the janitorial employees
was the only solution, then this is where we go, and that the
3 Santa Fe Drilling Company v NLR.B., 416 F.2d 725, 729 (C.A. 9,
1969), N.LR B v Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9,
1969), Shattuck Denn Mining Corporation v. N L R B., 362 F.2d 466, 470
(CA. 9,1966)
4 N L R B v Condensor Corporation of America; 128 F.2d 67, 75 (C.A 3,
1942)
5 Sante Fe Drilling Co v N L R B, supra at 729; N L R B v International
Union of Operating Engineers , Hoisting and Portable Local No 101 [Sub
Grade Engineering Co 1 216 F 2d 161, 164 (C A 8, 1954)
letters would be written and they would be terminated as of
[November] the seventeenth."
B. Discussion and Conclusions
Respondent maintains that Schumacher, Thompson, and
Trudeau were discharged for cause. The General Counsel,
however, contends that Respondent 's assigned reasons for
terminating them were pretextual and that it discharged
them because of their union activities and in order to rid
itself of these three union adherents. The issue, therefore, is
one of fact: what was the actual motive for the discharges? 3
Was there considerably more than a temporal coincidental
connection between the three employees' union activities
and their summary and precipitate discharge shortly
thereafter?4 Because the issue is one of subjective intent,
direct evidence is rarely obtainable and consequently the
trier of the facts "may rely on circumstantial as well as
direct evidence ...." 5 Moreover, a discharge is unlawful
under Section 8(a)(3) of the Act even if the employees'
union sympathies or activities, which are protected, are
only partially responsible for the employees' actions.6 The
test is whether the reason ascribed for the termination of
these employees, their protected union activities, is the
moving cause behind their discharges. In other words,
would they have been discharged but for their protected
union activities? The law is well settled that an employee
does not forfeit his statutory rights when in good faith he
seeks to bring a union into his employer 's place of business,
even if his conduct may fairly be regarded with a dim view
by his employer. That protection is lost only when such
conduct becomes malicious or unreasonably disruptive of
order and discipline.?
Here, the three alleged discriminatees, the record clearly
reveals, were suddenly, summarily, and peremptorily dis-
charged without any prior warning. Moreover, based upon
the facts detailed above, it is found that all three were
satisfactory workers. They were admittedly capable em-
ployees whose competency was irrefutably recognized by
the cogent fact that Respondent rehired them not long after
it terminated its contract with the American Building
Maintenance Company which had taken over the cleaning
of the theater on December 2, after the three employees
were notified of their discharges by Respondent on Novem-
ber 17, effective as of November 15. Apparently, Respon-
dent became disenchanted with them and discharged them
only when they became interested in being represented by
the Union herein. "Such action on the part of an employer
is not natural." Under these circumstances, it is difficult to
justify Respondent's discharges of them especially for the
vaguely unspecific and trivial reasons ascribed by Respon-
dent for doing so.8 The record does not warrant the finding
that Respondent discharged them for good cause but
rather, on the contrary, because of their union activities
6 N.L.R B v Ayer Lar Sanitarium, 436 F.2d 45, 50 (CA. 9, 1970);
N.LR.B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5, 1967).
1 See Hagopian & Sons, Inc. v. N.LR B., 395 F.2d 947, 952-953 (C.A. 6,
1968).
8 E Anthony & Sons, Inc. v. N.LR B., 163 F.2d 22, 26-27 (C.A.D C.,
1947)
RENTON VILLAGE CINEMA 383
which, in turn, was motivated by a desire to rid itself of this
union nucleus of three employees.
It is undisputed that their union activities were known by
Respondent prior to the date of their discharge which
further corroborates the conclusion found above, that they
were discharged for proscribed reasons. Respondent's
opposition to their "concerted activity for the purpose of
... mutual aid or protection .... " violated the essence of
Section 7 which guarantees employees the right to engage in
such protected activities. Accordingly, when Respondent
discharged them for such protected activities, prima facie,
this was an unfair labor practice. Once the General Counsel
has established a prima facie case of unfair labor practices,
the burden of going forward with evidence sufficient to
rebut the General Counsel's prima facie case and to prove
its affirmative defense that the three employees' discharges
were for just cause falls upon Respondent .9 In other words,
an employer, when he denies the discharge and avers that
the employee was discharged because of unsatisfactory
work performance is pleading an affirmative defense, the
legal incidence of which is that the burden of going forward
with the evidence to prove his contention shifts to him.10
Based upon the record in this proceeding, Respondent has
not adduced sufficient evidence to rebut the General
Counsel's prima facie evidence that the three alleged
discriminatees' terminations were discriminatorily motiva-
ted for the reasons explicated above and below. It is found,
accordingly, that the evidence adduced by Respondent to
prove its affirmative defense was not only lacking, but per
contra, reveals that Respondent's reason for discharging the
three janitors was a sham and clearly pretextual. This is
conclusively proven by Respondent's rehiring them a few
months later after rescinding its agreement with American
Building Maintenance Company which reveals that they
were discharged not for the poor quality of their work, but
for engaging in protected union activities. Union activity,
however, need not be the only reason for a discharge, but it
is sufficient as a matter of law if it is a substantial or
motivating reason, despite the fact that other reasons may
exist.11 Furthermore, Respondent's attempts to establish
lawful grounds for discharging them are patently pretextual
in that the reasons of complaint assigned by Painter and
Osgood for their termination were generalized, broad,
petty, specious derelictions which were not only proved, but
also were so lacking in specificity that they were difficult to
impugn. For these reasons, Respondent's defenses alleging
the three dischargees' inadequacies are not credited. Final-
ly, it is believed that all of these alleged reasons for
terminating Schumacher, Thompson, and Trudeau were
afterthoughts raised for the first time at the hearing.12
Finally, the arguments made in its brief and the testimo-
ny adduced by Respondent do not persuasively advance its
claim of legitimate motivation, and the failure of Respon-
dent's explanations to withstand scrutiny only serves to
buttress the inference of interdicted motivation culminating
in a finding of discrimination. It is axiomatic that, when a
9 J. M Lassing, et al. d/b/a Consumers Gasoline Stations, 126 NLRB 1041,
1042, fn. 6 (1960); Brady Aviation Corporation v N L R.B., 224 F 2d 23 (C.A.
5, 1955).
10 Cf. N L R.B. v. Fleetwood Trailer, Co, Inc, 389 U.S 375,378 (1967),
N L R B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).
11 N L.R B v. Whitin Machine Works; 204 F.2d 883 (C.A. 1, 1953), enfg
100 NLRB 279 (1952).
reason given for a discharge is false, the inference may be
drawn that there is another reason.13 In this regard,
Osgood's testimony is not credited that he posted notices
warning the janitors of their unsatisfactory derelictions of
duty when it is considered that he was unable to delineate a
single specific incident. Moreover, Painter's admission that
he inspected the theater at intervals of 6-8 weeks is belied
by the record which is devoid of any plausible indication
that the theater was unclean prior to November 5. Such
unconvincing testimony leads to the conclusion that
Respondent's dissatisfaction with these three employees
were more fictitious than real and played no part in the
decision to discharge them.
On the basis of the foregoing and the entire record, as
well as the suggestive indicia inhering in the circumstances
surrounding the discriminatees' terminations and the weak-
nesses of Respondent's alleged justifications therefor, that
they were discharged for unsatisfactory work performance,
it is found that their union activities were the real reason,
and, therefore, discrimination existed in regard to their hire
and tenure of employment, thereby discouraging member-
ship in the Union in violation of Section 8(a)(3) of the Act.
C. The Gissel Aspect
The General Counsel contends that the Supreme Court
case of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), is controlling here and that an order should issue in
accordance with Steel-Fab, Inc., 212 NLRB 363 (1974). He
argues that the basic law with respect to the propriety of
bargaining orders as a remedy for egregious unfair labor
practices which effectively destroy the possibility of a fair
election, or make it more likely that the uncoerced wishes of
employees can best be determined by reliance on union
designation cards, signed prior to the commission of those
unfair labor practices, was enunciated by the Supreme
Court in Gissel Packing Co., Inc., supra. The three unfair
labor practice areas, he maintains , which traditionally have
led to bargaining orders under the teachings of Gissel, have
been pay increases, threats of plant closure, and, most
particularly, discriminatory discharges of union supporters.
In almost every case in which even one 8(a)(3) discharge
has been found to have occurred in the context of an
organizing effort, the cases hold, contends the General
Counsel's representative, that a bargaining order is a
remedy appropriate in the circumstances here revealed.
Inasmuch as in the case at bar the janitors were discharged
en masse and without warning, and then were rehired only
after the complaint issued and the maintenance company
was hired for 12 days, asserts the General Counsel, they at
that time were kept in a minority amongst an opportunely
enlarged janitorial staff of seven. A free and fair election
under the present circumstances , concludes the General
Counsel's representative, would be an impossibility, and
therefore a bargaining order is warranted. Respondent's
12 Thomas W Dant, et al., d/b/a Dant & Russell, Ltd, 92 NLRB 307, 320
(1950); Intertown Corporation (Michigan), 90 NLRB 1145, 1188 (1950);
N.L R.B. v. Somerset Shoe Company, 111 F.2d 681 (C.A 1, 1940).
13 NL.R.B. v C W. Radcliffe, et al., d/b/a Homedale Tractor &
Equipment Company, 211 F.2d 309,314 (C.A. 9, 1954).
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel did not address himself in his brief to this phase or
facet of the proceeding.
Having considered all these contentions of the General
Counsel's representative, as well as the attendant circum-
stances detailed above, it is concluded and found, based
upon the applicable law as promulgated by the Supreme
Court in Gissel, supra, that a bargaining order is warranted
to remedy the unfair labor practices committed by Respon-
dent in this proceeding. For the foregoing reasons delin-
eated above, it is found that the factual situation here
reveals "egregious" unfair labor practices of a lingering
nature which prevent the possibility of a fair election even
though the discriminatees are presently employed by
Respondent, but cunningly kept nevertheless in an adroitly
planned minority of three in a seven-man janitorial unit,
strategically enlarged subsequent to the discriminatees'
expediently well-timed reemployment.
As soon as Respondent was confronted with the knowl-
edge that the three janitors had signed union designation
cards, it promptly and opportunely fired all three in order
to eliminate the Union as their bargaining representative. It
accomplished this fait accompli by subcontracting the work
performed by the discriminatees to the American Building
Maintenance Company and then terminating the successor
maintenance company's services 12 days later, which was
then sequentially followed by the three discharged janitors
being rehired thereafter at discreetly spaced intervals.
A free and fair election is unlikely in the circumstances of
this case. Equitable principles would seem to dictate that a
bargaining order is warranted to remedy the serious illegal
acts committed by Respondent which are not only per-: -
sive but deviously contrived to defeat the ends of justice, as
witness Respondent's cleverly increasing the unit to seven
janitors and thus rendering them impuissant in order to
cause the three discriminatees to remain a feckless minori-
ty.
Moreover, to ascribe validity to Respondent's bare denial
in its answer to the complaint, with no reason therefor as to
the propriety of the janitorial unit described in the
complaint, is to favor form over substance. Furthermore, it
was stipulated that the janitors work as a unit separate from
the "front employees." Accordingly, it is found that an
appropriate unit is one comprised exclusively of all janitori-
al employees, as described in the complaint.
A more serious matter in this proceeding involves the
lack of a bargaining demand on the part of the Union.
However, in addition to Respondent's mala fides, detailed
above, it is not too unreasonable to assume that the
probative significance, as well as legal incidence, in the
circumstances here present, of Respondent's engaging for
12 days the services of the American Building Maintenance
Company,14 then terminating it, followed by hiring four
new janitors and then rehiring the three discriminatees, was
an ostensibly preconceived plan to abort unionism in its
theater by resorting to this convoluted and perfidious
scheme. This failure of the Union to request recognition or
bargaining of Respondent under the circumstances here
present, has been answered by Eagle Material Handling of
14 The San Francisco Chronicle of September 11, 1976, at p. 46, states
that this corporation "had record sales and profits . . for the first nine
New Jersey, 224 NLRB 1529 (1976), where the Board
stated:
The Administrative Law Judge also found that
Respondent violated Section 8(a)(5) of the Act by
failing and refusing to recognize and bargain with the
Union as of January 20. In so doing, he construed the
Union's petition, which was filed on January 13, as a
demand for recognition upon Respondent. Contrary to
the Administrative Law Judge, we do not so construe
the petition. The Board has long held that the mere
filing of a representation petition does not constitute a
request for recognition or bargaining such as to make
an employer's failure to bargain, without more, a
violation of Section 8(a)(5) of the Act. In the instant
case, the Union made no demand upon Respondent for
recognition or bargaining and, accordingly, we find that
the evidence fails to establish that Respondent violated
Section 8(a)(5) of the Act.
However, the absence of an 8(a)(5) finding does not
affect the propriety of the bargaining order herein since
that order is not predicated on any such finding, but
rather is required to remedy Respondent's extensive
unfair labor practices, which precluded a fair election
from being held on February 6 and have made unlikely
the holding of a fair election in the near future, even
after application of the Board's traditional remedies
therefor. [Citations omitted]
In Ludwig Fish & Produce, Inc., 220 NLRB 1086 (1975),
the Administrative Law Judge recommended that a bar-
gaining order was not necessary because the Union made
no demand for bargaining. The Board disagreed, stating
that "a bargaining order is necessary." The Board's
rationale follows: "There is nothing in Gissel which
conditions the bargaining order remedy upon a demand for
bargaining. Rather, as the Supreme Court stated, the test is
whether we may reasonably conclude the Respondent's
unfair labor practices have rendered `a fair and reliable
election' impossible. In Gissel, the Court upheld the Board's
bargaining remedy where the only unfair labor practice
shown was the threat of plant closure."
Here, Respondent, apparently when told by Pittman, the
assistant manager, on November 13 that Schumacher had
said to her that the janitorial staff "were going Union,"
caused the theater manager to react with lightning-like
speed. He wrote letters of dismissal on November 15 to
each of the janitors which were received by them on
November 17, stating they were fired as of November 15.
See Section A, supra. Consequently, at one fell swoop and
with might and main, the appropriate unit was abolished
and the small nucleus of three union adherents eliminated,
and so, in this fashion, Respondent attained its manifested
objective of ridding itself of the Service Employees Union,
the Charging Party herein.
It should be mentioned to obviate the question of
majority status, although the unit comprised only the three
janitors, that the Supreme Court in Gissel observed that "in
`exceptional' cases marked by `outrageous' and `pervasive'
months [of 1976] totalling] 107.1 million and earnings were 2.5 million
11
RENTON VILLAGE CINEMA 385
unfair labor practices" a bargaining order might be the only
"effective remedy," even "without need of inquiry into
majority status" of the union. N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 613-614 (1969). This proceeding, it
is submitted, is such a case in which Respondent's compre-
hensively effective retaliation makes a "fair and reliable
election" impossible . Id. at 614; Crockett-Bradley Inc., 212
NLRB 435 (1974).
III. ALLEGED VIOLATIONS OF SECTION 8(A)(1)
Monica Moore, a cashier at Respondent's theater,
testified that the so-called "front employees" (as distin-
guished from the janitors), who comprised the cashiers,
refreshments employees, ushers, and doormen, were dissat-
isfied with the wages Respondent was paying them. At the
request of her coworkers, Moore telephoned a union
official of the International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators, herein
IATSE, in late October or early November and, in the
course of explaining her reason for calling him with respect
to their interest in organizing a union, the union official
suggested that the "front employees" should hold a meeting
to determine whether they were interested in having IATSE
represent them. See "Statement of the Case," supra.
Around the beginning of November, it was decided to
hold a meeting at one of the employees' homes at 10 a.m. on
November 15 to discuss the aforementioned Union. About
2 weeks later, on November 14, Respondent notified the
front employees that a staff meeting would be held at the
theater at 10 a.m. the following morning, whereupon the
said employees had to change their originally scheduled
union organizational meeting from 10 a.m . to 9 a.m. in
order for them to be able to attend Respondent's staff
meeting at the theater at 10 a.m. on the same day. Moore
testified that in the year she has worked for Respondent
advance notice of staff meetings was given 10 to 14 days
before each meeting and this was the first time she was
summoned by Respondent to a staff meeting with advance
notice of only 1 day.
At the 9 a.m. meeting of those interested in a union, held
at an employee's home , 12 to 15 of those 20 employees
present voted "to join the Union." They then proceeded to
the theater to attend Respondent's 10 a.m. staff meeting.
At the staff meeting, the first matter on the agenda was
Manager Osgood's announcement of the names of the
movies scheduled to be shown at the theater in coming
weeks. Also present for management were Pittman, Long,
Holman, and Kulhham, all assistant managers of General
Cinema Corporation theaters in the Seattle area. Moore's
version of what next occurred reads as follows:
Then Osgood told us that we were to receive a wage
increase "because he had felt-he knew-that we were
getting low wages, and then Bill Dugovich [an employ-
ee ] brought up the fact that we were looking into joining
a union . . . that is going to join a union-we were
looking into it, and he [Osgood] wanted to know if we
had decided to join and we said no, that we were still
looking into it and he wanted to know if we had decided
to join, and we said no, that we were still looking into it
more. [Osgood] wanted to know if we wanted to take a
vote to decide then to join a union. So he and all the
other manager assistants left the room and we didn't
take a vote; we just decided to look into it further, and
that's what we told him when he came back [into the
meeting].
We asked Osgood and Pittman more about the union
and he said he shouldn't go into it, but we asked him
We asked him questions about the union and he
told us what he thought he could . . . . He didn't want
to go into the hassle of it. He said that going into the
union, we'd probably get more hours and there'd be less
people than he needs. So I guess we got the impression
that there'd be less people that they needed and we'd be
laid off; and he told us that there'd be less freedom;
when we asked for days off, that we'd be less likely to
get them. . . . He just said that he couldn't tell us how
he felt about it, that we probably knew how he did feel
about it. . . . He wanted us to remember that he had
helped save our jobs when they were going to lay off
those of us that were under seventeen because of the "R
rated shows" that they showed there. They show "R"
rated movies where I work, and those who are under
seventeen were going to be laid off.
On cross-examination, it was elicited from Moore that
the staff was notified for the first time on the afternoon of
November 14 that there would be a meeting of the front
employees at 10 a.m. the next day. Moore also testified that
it was not unusual to hold these staff meetings once a
month, but it was her belief they usually were scheduled for
11 a.m.
Moore testified that she heard from Osgood for the first
time at this November 15 employees' meeting that the
minimum wage law of the State of Washington had been
amended so as to provide increased wages for them.
Osgood stated, Moore testified, that "it'd be a substantial
raise . . . from $1.75 to $1.79" an hour.
Moore acknowledged on her cross-examination that it
was Dugovich, an employee, who first raised the question of
a union, when he informed Osgood that the front employ-
ees were considering "joining the Union." It was then,
continued Moore, that Osgood, in reply to Dugovich's
statement, stated that he had heard "rumors" about union
interest among the employees. Moore also testified on
cross-examination that, when the employees asked "quite a
few" questions from the floor, Osgood demurred to
answering their questions, protesting "that he shouldn't"
but, nevertheless, the employees insisted that they wanted
him to talk about it.
Moore continued that Osgood told them that if a union
should come in there might be possibly more hours of work
and less employees to do the work, which could result in a
reduction in the present number of front employees. When
counsel for Respondent asked if Osgood said "for a fact
that this would happen," Moore answered in the affirma-
tive, continuing that Osgood told them he based this
opinion on his experience of what occurs with the advent of
a union which usually results in consequent wage increases
which, in turn, requires management to reduce the number
of its employees. Moore testified that Osgood told them
"that we'd be able to work more hours and there wouldn't
be as much staff," but that he did not state he would fire
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any employees if they selected a union to represent them.
He said , explained Moore, that "these actions may follow"
if the employees should join the Union.
Sharon Watson , who is presently employed by Respon-
dent as a cashier, corroborated Moore's testimony , except
she denied that the November 15 staff meeting at the
theater was a regularly scheduled monthly meeting. She
also testified that the meeting of the employees to discuss
the Union was held at her home and that she informed
Debbie Young , "an assistant manager ... a couple of days
before the meeting," that the front employees were going to
meet at her home to consider joining a union. According to
Watson , she told Young , who is acknowledged to be a
supervisor , "that we tried to get the union representative,
but that he couldn't come for some reason ," whereupon
Young suggested , according to Watson , "it might be good if
we invited Dave Ewing ," manager of Respondent's Over-
lake theater, whose employees were represented by a union,
in order to obtain Ewing 's views. Watson invited Ewing to
attend the employees ' 9 a.m. November 15 meeting at her
home , but he did not attend . Watson described the result of
the meeting at her home as a decision of the employees "to
look into it more."
On cross-examination , Watson testified that the employ-
ees "decided to look into the matter of unionization
further" although they failed to follow through "because
after the [November 15 ] meeting , a number of the employ-
ees didn ' t want to go union anymore ." Watson added that
at the present time she "hadn' t decided yet" and that
probably is why she has not pursued the Union further.
Watson also testified that at the staff meeting on
November 15, when Dugovich mentioned to Osgood that
,.we were thinking about going union," Osgood then asked
for questions from the floor . It was then , continued Watson,
that "Osgood said he shouldn 't tell us about the Union .. .
but we told him that we wouldn't mind hearing about it,
and he told us that some of the people that hadn't been
there long might get laid off, we'd get more hours, and we
wouldn 't have as much freedom with the days off that we
wanted ... we wouldn't get merit raises if the Union came
in."
Watson further testified that Osgood told the assembled
employees that they were being granted a "pay increase"
because they "deserved it ." When asked on direct examina-
tion if Osgood made any mention that the wage increase
was occasioned by the state law raising the former
minimum rate , Watson answered in the negative . She also
testified that Osgood told the employees that if they
selected a union there "might" be less employees working at
Respondent 's Renton Village theater. Watson concluded
her direct examination by stating that she received a 4-cent-
an-hour raise from $ 1.85 to $ 1.89. It was stipulated that
effective September 1, 1975, the State of Washington
increased its minimum hourly wage law for employees 18
years of age and above , from $2 per hour to $2.10. Those
under 18 years of age had their hourly wage rate increased
from $1 .75 to $1.79.
On cross-examination, Watson amplified her direct
testimony with respect to her conversation with Debbie
Long, an assistant manager . She testified that she told Long
that some of the employees were then looking into the
possibilities of a union and that Long suggested they should
obtain the views of Dave Ewing , who was manager of one
of Respondent 's movie theaters which was unionized. Long,
according to Watson, volunteered to request Ewing to talk
to them as "he would know more about the Union."
However , Watson continued , Long "didn't say anything
one way or the other about the Union itself." Watson
concluded her cross -examination by quoting Osgood as
saying it was "probable" that the employees would work
longer hours than presently if they were to select a union as
their representative and that this belief was based on his
experience with unions so that it was likely the staff
"might" be cut back , but, continued Watson, Osgood did
not threaten that anybody would be terminated.
On her cross -examination, Watson also stated that it was
Osgood's practice in the past to accommodate the employ-
ees when they requested time off from work and that he
told those at the staff meeting "there wouldn't be as much
freedom for days off" with the advent of a union as there
was the "possibility that the staff would have to be
reduced ." Watson concluded by testifying that Osgood also
"said there wouldn't be any merit raises," but she admitted
in the words of counsel for Respondent that Osgood did not
"threaten to take any direct action."
Osgood testified on direct examination that he learned
from Painter , the district manager , on November 14 that
the employees ' wages were to be increased in compliance
with the minimum pay rates provided for in the recently
enacted amendment to the Washington state minimum
wage law.
With respect to the November 15 staff meeting , Osgood's
version is that he announced to the assembled employees
that they were being granted pay increases in accordance
with the State's new minimum wage law. The essence of
Osgood's testimony as to what transpired at this meeting
follows:
After the wage announcement , Osgood asked for ques-
tions from the employees. Dugovich then rose to his feet
and stated that the front employees "were thinking about
joining the union . . . I told Mr . Dugovich that it was up to
the staff; whatever they wanted to do , they were welcome to
do it . [Then ] they [the employees ] asked me for advice
about the union, and I told them, I guess , technically or
legally, I could not get involved ." Osgood continued he told
the front employees that they "may be reduced" if the
Union organized the theater personnel but he denied that
[he told them ] "anybody would be terminated . . . I said
there might be a total elimination of all merit increases."
Osgood was then told by the employees present at the
meeting that they wanted to discuss certain matters outside
his presence whereupon he left . He later returned when they
finished their discussion , and the employees, according to
Osgood, informed him they had come to the decision that
"they wanted to think about joining the union for a while
I just said that's fine ... do what you want to do."
A. Resolutions of Credibility
Those witnesses who testified as to what occurred and
what was said at the November 15 staff meeting have been
quoted, supra, in haec verba copiously because Respon-
dent's counsel based virtually his entire defense with
RENTON VILLAGE CINEMA 387
respect to the 8 (a)(1) allegations on those witnesses. The
same consideration applies, also , with respect to the
General Counsel's version with respect to what was said at
this same staff meeting of the front employees. In the
interests of accuracy , all those witnesses' testimony has
been quoted in extenso to avoid the ambiguities and
impreciseness created by paraphrasing. In fact, the flavor
and nuances of the witnesses who testified with respect to
the 8(a)(1) allegations were sometimes colorful , and subject
to different impressions and interpretations which are
frequently incapable of literal translation or interlineal
rewording so that even a metaphrase might be considered
imprecise and too loose.
After observing the witnesses, analyzing the record as a
whole and the inferences to be drawn therefrom, and
reconciling where possible the seemingly conflicting evi-
dence, I conclude that the generally consistent testimony of
the so-called front employees is reliable. Moreover, their
testimony logically conformed with the uncontradicted
chronological sequence of events and attendant circum-
stances in this proceeding. Furthermore, it is believed that
their testimony was forthright and true. This conclusion is
based on observation of the General Counsel's witnesses
with respect to the accuracy of their memories, their
comprehension , and their general demeanor on the stand in
answering the questions put to them . The impression that
they were testifying truthfully became a conviction when
their versions were found, in the main, to be consistent and
logical and not substantially shaken by able counsel for
Respondent who thoroughly cross-examined them. Anoth-
er practical consideration which cannot be overlooked in
resolving the credibility issue both with respect to the
janitors, who are presently employed by Respondent, as
well as the front employees who testified, is the cogent fact
that they were all still in the employ of Respondent at the
time they testified. As such, they depended on their jobs for
their livelihood and they understood that after testifying
they would continue in the employment of Respondent.
This practical consideration, coupled with the normal
workings of human nature, has led the trier of these facts to
place considerable credence upon their testimony, when it
is considered that both the janitors and front employees
corroborated each other's versions of what transpired.
B. Discussion and Conclusions
The consolidated complaint alleges that Respondent
violated Section 8(a)(1) of the Act when it announced and
granted pay increases. It should be borne in mind that this
was not a conventional voluntary pay increase of the
Employer, but rather it was an announcement at the
November 15 staff meeting by Respondent that the front
employees' pay was being raised in accordance with the
mandatory provisions of the recently amended Washington
state minimum wage law of September 1, 1975. This was
not, therefore, as in the usual orthodox sense of a pay
increase , a voluntary act on the part of an employer, but
rather one required by the law of the State of Washington.
It was not intended "to interfere with, restrain, or coerce"
15 Time-O-Matic, Inc v. N.LR B, 264 F.2d 96 , 99 (C.A. 7, 1959); Neco
Electrical Products Corporation, 124 NLRB 481 , 482 (1959), 289 F.2d 757
(C.A.D.C., 1960).
employees in the exercise of the rights guaranteed in
Section 7 within the meaning of Section 8(a)(1) of the Act.
Accordingly, it will be recommended that the allegation of
the complaint be dismissed which alleges this pay increase
was a violation of Section 8(axl).
It is also alleged that Section 8(a)(l) was violated when
Osgood threatened employees with more restrictive work-
ing conditions and loss of employment, as well as the
opportunity to receive merit wage increases in the future
should they choose to be represented by the Union.
In determining whether an employer's conduct amounts
to interference, restraint, or coercion within the meaning of
Section 8(a)(l), the test is not the employer's intent or
motive, but whether the conduct is reasonably calculated or
tends to interfere with the free exercise of the rights
guaranteed by the Act.15 It is not required that each item of
Respondent's conduct be considered separately and apart
from all others, but consideration must be given to all
conduct as a whole, including not only the alleged 8(a)(1)
unfair labor practices but also the discriminatory discharg-
es of the three janitors because of their union activities in
violation of Section 8(aX3) of the Act, found above, with a
view to drawing inferences reasonably justified by their
cumulative probative effect, particularly where, as here, it
must be determined if what Osgood supposedly told the
front employees at the November 15 staff meeting inter-
fered with, restrained, and coerced them in the exercise of
the rights guaranteed them by Section 7 of the Act.'6
In applying these principles to the facts in this case, which
are detailed above, and based upon the credibility findings
made herein, it is concluded and found that by the
following conduct, delineated below, Respondent violated
Section 8(a)(1) of the Act as it interfered with, restrained,
and coerced the employees in their freedom to choose to be
represented by the Union or no union. Thus, the employ-
ees' choice was interfered with within the meaning of
Section 8(a)(l) in the following specified incidents of
misconduct:
(1) Osgood knew before the November 15 staff meeting
that the employees were in contact with a union, so when he
inquired of them whether they had decided to support a
union he committed an unfair labor practice.
(2) When Osgood told the employees that, if they should
decide they wanted a union, with the advent of a union
there would probably be terminations which might result in
those employees who survived the reduction in force being
required to work more hours.
(3) When Osgood stated that if they elected to have a
union there would be "less freedom" for the employees,
meaning less time off, this was an unmistakable reference to
them not being granted as many privileges as they now had,
which is a violation of Section 8(a)(1) in that it would not
only result in a change in their existing working conditions
but also was a threat to them in the event of unionization.
THE REMEDY
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(aXl) and (3) of the
16 NLRB. v C W. Radcliffe, et a!., d/b/a Homedale Tractor &
Equipment Co., 211 F.2d 309, 313 (C A. 9, 1954), cert. denied 348 U.S. 833;
Popeil Brothers, Inc v. N.LR.B., 216 F.2d 66 (C.A. 7, 1954).
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It will be
recommended, inasmuch as the three discriminatees have
returned to their former jobs, that Respondent shall cease
and desist in the future in discouraging membership in
Service Employees International Union, Local No. 6,
AFL-CIO, or any other labor organization, by unlawfully
discriminating against the above-named discriminatees in
this proceeding or any other employees of Respondent in
regard to terms or conditions of employment . Respondent
shall also make Charles Schumacher , Michael Thompson,
and Lonnie Trudeau whole for any loss of earnings they
may have suffered by reason of the discrimination against
them, by payment to each of a sum of money equal to that
which they would have earned from the date of their
discharges to the date of their return to work , consistent
with Board policy set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest on backpay to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Relying upon the Supreme Court's statement in N.L.R.B.
v. Gissel Packing Co. Inc., 395 U.S. 575, 614 (1969), that the
Board has long had a policy of issuing a bargaining order,
in the absence of an 8(aX5) violation , or, more recently,
even in the case of no bargaining demand or a union's lack
of majority status (not present here), when that was the only
available effective remedy for substantial unfair labor
practices, it will be recommended accordingly that Respon-
dent be ordered to bargain with the Union inasmuch as that
is the only available and effective remedy for the substan-
tial and pervasive unfair labor practices committed by
Respondent.
The Board, by a long line of cases since Gissel, has sought
through an evolutionary process to adapt the Act to
changing patterns of industrial life, having as its lodestone
17 N L.R.B. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing Compa-
ny, 146 F.2d 773, 774 (C.A. 5, 1945). Brown v. National Union of Marine
Cooks and Stewards, 104 F 2d Sup . 685, 690 (1951). S. Rept . 105, 80th Cong.,
1st Sess . 50, where it was stated : "We believe that the freedom of the
that the Act was enacted for the prime purpose of
protecting the employees .17 If the rights of employees are
being disregarded, it is important that those rights be
restored by affirmative remedial action and the cause
therefor eradicated. Section 10(c) of the Act accords the
Board power to take affirmative action to effectuate the
policies of the Act. And one of these policies is to see that
the rights of employees are not infringed upon by employ-
ers, by unions, or by both. "The National Labor Relations
Board is not just an umpire to referee a game between an
employer and a union . It is also a guardian of individual
employees . Their voice, though still and small , commands a
hearing." Shoreline Enterprises ofAmerica, Inc. v. N.LR.B.,
262 F.2d 933, 944 (C.A. 5, 1959).
In this proceeding, Respondent had independent knowl-
edge of the employees' interest in having a union represent
them, so that there is not a semblance of a doubt that it had
no good-faith doubt that a majority of the janitors had
designated the Union their bargaining representative. This,
indeed, is convincing evidence of majority support entitling
the Union not only to recognition but also to a bargaining
order. Such tangible evidence cannot be ignored. To hold
otherwise would be tantamount to condoning Respondent's
outrageous scheme to subvert the purposes of the statute
and thus, by dilatory tactics and blithely frivolous tergiver-
sation, not only to evade its duty to bargain but also to fail
to follow the teachings of the Supreme Court as enunciated
in Gissel, supra.
Considering the circumstances of this case, I am con-
vinced that a bargaining order is necessary. Accordingly, it
is recommended that an Order issue which will contain a
requirement that Respondent bargain with the Union in
order to eliminate the pervasive and egregious unfair labor
practices committed by it. The janitors'situation requires
this. (See sec. C, supra.)
[Recommended Order omitted from publication.]
individual workman should be protected from duress by the union as well as
from duress by the employer ." Inland Steel Company v. N.L.R.B, 170 F.2d
247,258 (C.A. 7, 1948).