Theatre Now, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 525 (N.L.R.B. 1974)

THEATRE NOW, INC. 525
Theatre Now, Inc. and The Grease Company and
Joseph F. Doucette, Sr. Case 31-CA-3825
June 13, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 30, 1973, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondents
filed exceptions, a supporting brief, an answering
brief to General Counsel's exceptions, and a motion
to reopen the record.'
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,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
1. The Administrative Law Judge found that
Doucette, Sr., was a supervisor and that he was
discharged for participating in the Union's process-
ing of an employee's grievance. The conclusion that
Doucette, Sr., possessed supervisory authority was
based on the finding that (a) he had authority
effectively to recommend hiring, (b) he participated
in the hiring of the local carpenters, and (c) he
possessed the authority to direct the employees in the
carpentry department. Although we accept the
finding of the Administrative Law Judge that
Doucette, Sr., was terminated for the participation in
the grievance, we find that he was a rank-and-file
employee at all times.
With respect to the finding of the Administrative
Law Judge that Doucette, Sr., had authority to
effectively recommend hiring, we note that the hiring
of the flyman is the only instance in which the
recommendation of Doucette, Sr., played a role.
Particularly noteworthy, however, is the fact that the
man Doucette, Sr., successfully recommended for the
position of flyman. was his son, Doucette, Jr. We
attribute this isolated incident only to the Employer's
willingness to permit Doucette, Sr., to name his son
to assist him, not as an example of a supervisor's
power of "effective recommendation." Moreover, it
I Respondents ' motion to reopen the record, in our opinion , raises no
material or substantial issues relevant to the proceedings herein . According-
ly, we hereby deny such motion.
2 In view of the finding that Doucette , Sr., was not a supervisor,
Members Jenkins and Penello deem it unnecessary to consider the finding
appears that the carpenter and his assistant (the
flyman) function as a team and the Employer may
have been willing to allow Doucette, Sr., to name his
son so as to ensure harmony within the team.
Secondly, with respect to the hiring of the local
carpenters, we note that Doucette, Sr., performed
only the mechanical task of submitting to the local
union a card containing the number of employees
needed to work the show and the number of
employees traveling with the show. The local union
then supplied the needed employees based on this
information. We consider the participation by
Doucette, Sr., in this hiring process to be so minimal
and so devoid of independent judgment as to negate
any conclusion that Doucette, Sr., exhibited supervi-
sory authority by his role in obtaining additional
employees from the local union.
Thirdly, we find that the record does not support
the finding by the Administrative Law Judge that
Doucette, Sr., exercised supervisory authority in the
direction of employees. Any direction or instruction
by Doucette, Sr., is attributable essentially to his
familiarity with the operation of the show. The job
function of Doucette, Sr., was to adapt the set of the
production to each theatre. This required him to
explain to other employees how the stage should be
set for this particular play, but did not require actual
supervision or direction of stagehands as they
performed their jobs in achieving this objective.
Considering the foregoing together with the facts
that there is no evidence that the employer or any
employee or union representative considered or held
out Doucette, Sr., to be a supervisor, and the
employer conceded at the hearing that Doucette, Sr.,
did not exercise supervisory authority, we find that
he was not a supervisor within the meaning of
Section 2(11) of the Act. Accordingly, we find that
the Respondent violated Section 8(a)(1) and (3) of
the Act by terminating an employee, Doucette, Sr.,
for participating in a grievance.2 Since Doucette, Jr.,
was also discharged, apparently as part and parcel of
the discharge of his father, we shall order his
reinstatement. The termination of Doucette, Jr., was
directly linked to the unlawful termination of
Doucette, Sr., for participation in a protected
activity. Accordingly, we find that Respondent
violated Section 8(a)(1) and (3) of the Act by this
action.
Remedy
Inasmuch as we agree with the Administrative Law
and rationale of the Administrative Law Judge with regard to the violation
of Sec. 8(a)(1) of the Act . Member Fanning would find, in any event, that
both Doucette, Sr., and Doucette, Jr., should be reinstated for the reasons
articulated by the Administrative Law Judge in her Decision.
211 NLRB No. 58
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge that Respondents violated the Act by termi-
nating Joseph Doucette, Sr., and Joseph Doucette,
Jr., we shall adopt as our remedy the remedy
recommended by the Administrative Law Judge.
However, since we do not find that Doucette, Sr.,
was a supervisor, we shall delete from our Order that
part of the Administrative Law Judge's Order
requiring Respondents to cease and desist from
discharging or taking adverse action against the
supervisor.
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusions of Law 5 and 10 and
renumber accordingly.
2. Reword Conclusion of Law 6 to read:
"By discharging Joseph F. Doucette, Sr., under
circumstances constituting interference with and
restraint and coercion of employees in the exercise of
their statutory rights, Respondents have violated
Section 8(a)(1) of the Act and have discriminated in
regard to tenure of employment to discourage
membership in a labor organization in violation of
Section 8(a)(3)."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent, The Grease Company, Los Ange-
les, California, its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise taking adverse action
against any employee, where such action interferes
with , restrains , or coerces employees in the exercise
of their rights under Section 7 of the Act.
(b) Discouraging membership in International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada, Local 381 of that organization, or any other
labor organization, by discharge or any other
discrimination in regard to hire or tenure of
employment or any term or condition of employ-
ment.
(c) Stating the reasons for discharges which were
violative of the Act, under circumstances where such
statements are likely to be relayed to employees.
(d) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
Offer Joseph F. Doucette, Sr., and Joseph F.
Doucette, Jr., reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
jobs, and make them whole for any loss of pay
suffered by reason of their discharge in the manner
set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy."
B. Respondent, Theatre Now, Inc., Los Angeles,
California, its officers, agents, successors, and as-
signs, shall:
1. In connection with the show "Grease," or any
other show where Edward H. Davis is employed,
cease and desist from:
(a) Discharging or otherwise taking adverse action
against any employee, where such action interferes
with, restrains, or coerces employees in the exercise
of their rights under Section 7 of the Act.
(b) Discouraging membership in International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada, Local 381 of that organization, or any other
labor organization, by discharge or any other
discrimination in regard to hire or tenure of
employment or any term or condition of employ-
ment.
(c) Stating the reasons for discharges which were
violative of the Act, under circumstances where such
statements are likely to be relayed to employees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
Make a written request to Respondent The Grease
Company to offer Joseph F. Doucette, Sr., and
Joseph F. Doucette, Jr., reinstatement to their former
jobs; provide the Doucettes with a copy of that
request; and make them whole for any loss of pay
suffered by reason of their discharge in the manner
set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy."
C. Respondent Theatre Now, Inc., and Respon-
dent The Grease Company, Los Angeles, California,
their officers, agents, successors, and assigns, shall:
(a) 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.
(b) Post at their offices and places of business, and
in the theater or theaters where they, or either of
them, are putting on the musical comedy "Grease,"
copies of the attached notice marked "Appendix." 3
Copies of said notice on forms provided by the
3 In the event that this Order is enforced by a Judgment of a United judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals , the words in the notice reading "Posted by Order National Labor Relations Board."
of the National Labor Relations Board" shall read "Posted Pursuant to a
THEATRE NOW, INC.
Regional Director for Region 31, after being duly
signed by representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law by firing employees Joseph F.
Doucette, Sr., and Joseph F. Doucette, Jr., under
circumstances which would lead employees to
believe that they too would be discharged if they or
their kin engaged in grievance or other union
activity. We have been ordered to post this notice.
We intend to carry out the order of the Board and
abide by the following:
WE WILL NOT fire any employee under circum-
stances which would lead our employees to
believe that they too will be discharged if they or
their kin engage in grievance or other union or
protected concerted activity.
WE WILL NOT convey the message to employees
that employees have been discharged for this
reason.
Theatre Now, Inc., will ask The Grease
Company to reinstate, and The Grease Company
will offer to reinstate, Joseph F. Doucette, Sr.,
and Joseph F. Doucette, Jr.
WE WILL make Joseph F. Doucette, Sr., and
Joseph F. Doucette, Jr., whole for loss of pay,
with interest, owing to their discharge.
Our employees are free to join or assist
International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators
of the United States and Canada and its Local
381, or any other union, including participation in
grievance proceedings, and to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection. Our
employees are free to refrain from any or all such
activities except to the extent that their rights may
be affected by an agreement requiring member-
527
ship in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of
the National Labor Relations Act.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of these rights.
THE GREASE COMPANY
(Employer)
Dated By
(Representative) (Title)
THEATRE Now, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 12100, 11000
Wilshire Wilshire Boulevard, Los Angeles, California
90024, Telephone 213-824-7351.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding, heard at New York, New York, on September
19 and 20, 1973, pursuant to a charge filed on June 18,
1973, a complaint issued on July 26, 1973, an amended
charge filed on August 1, 1973, and an amended complaint
issued on August 6, 1973, presents the questions , inter alia,
(a) whether Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, (herein called the Act) was
violated by the discharge of Joseph F. Doucette, Sr. (herein
Doucette or Doucette, Sr.) and Joseph F. Doucette, Jr.
(herein Doucette , Jr.); and (b) whether Section 8(a)(1) of
the Act was violated by statements allegedly made to
Doucette about the reason for the discharges.
Upon the entire record , including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondents and counsel for the General Counsel, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
The Grease Company (herein Respondent Grease) is a
New York limited partnership engaged in the production
of musical or legitimate theater shows for exhibition to the
general public . Its annual gross revenues exceed $500,000,
of which more than $50,000 is derived from productions
outside the State of New York. I find that , as the answer to
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the amended complaint admits, Respondent Grease is an
employer engaged in commerce and in a business affecting
commerce within the meaning of the Act ; that (as
Respondents ' counsel admitted at the hearing) Respondent
Grease was an employer of the Doucettes ; and that
exercise of jurisdiction over its operations will effectuate
the policies of the Act.
Theatre Now, Inc. (herein Respondent Theatre), is
engaged in the business of managing theatrical productions
for its customers , including Respondent Grease, which
customers are engaged in the production of musical or
legitimate theater shows for exhibition to the general
public . It annually derives revenues in excess of $50,000
from services performed outside the State of New York. I
find that Respondent Theatre is engaged in commerce and
in a business affecting commerce within the meaning of the
Act. The amended complaint alleges that Respondents
were a joint employer of the employees of Respondent
Grease in its national touring company , which employees
included the Doucettes . The answer to the amended
complaint denies the joint employer allegations; the
answer to the original complaint asserted , as did Respon-
dents' counsel at the hearing , that for purposes of this
proceeding Respondent Theatre acted solely as an agent of
Respondent Grease . The issues so presented are resolved
hereafter.
The parties stipulated at the hearing , and I find, that
International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States
and Canada (herein the Union) and Local 381 of that
organization are both labor organizations within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The relationship between Respondents
Edward H . Davis is vice president of and one of a
number of stockholders in Respondent Theatre, which
pays a yearly salary . At a time not indicated in the record,
Kenneth Waissman and Maxine Fox Waissman,t the
producers of the musical comedy "Grease ," approached
Davis and (according to Davis) requested him to act as
"their personal manager ." Davis testified that he became
"general manager of The Grease Company ." While he was
acting in this capacity , Respondent Grease paid his salary
to Respondent Theatre. By December 1972, "Grease" was
being shown in New York City, and a road production was
in rehearsal. Respondent Theatre was hired by Respondent
Grease to act as its corporate general manager for both the
New York and the road productions.2
i Kenneth Waissman and Maxine Fox Waissman are husband and wife.
In the record and in this Decision , Mrs Waissman is referred to as Miss
Fox. Her husband is herein referred to as Waissman , and the two of them
together as the Waissmans . In addition to numerous limited partners,
Respondent Grease has two general partners-Kenneth Waissman and
Weissman & Fox, Inc.
2 The record fails to show whether any written contracts control the
relationship between Respondent Grease or its producers on the one hand,
and Davis or Respondent Theatre on the other. Nor does the record show
either the amounts paid Respondent Theatre by Respondent Grease, or
2. The hiring of the Doucettes
In December 1972, Doucette was working as carpenter
on the show "Purlie," which was about to close . Having
heard about the plans for a "Grease " road show, about
December 10 or 11 Doucette applied to Davis for the
carpenter's job on that show . The parties discussed the
matter on two or three occasions prior to and including
December 13, 1972 . After the first meeting, Doucette went
to see the show in New York , and then learned how to put
the road show together by studying a set of scenery plans
which he obtained from the shop where the scenery was
built . Thereafter , Davis told Doucette that he was
particularly concerned with holding down costs by "getting
the show in" or "hung" (that is , getting the scenery
installed in any theatre to which the road show moved) as
quickly as possible, with a goal of 8 hours . Doucette replied
that "if possible [he] would . [He] would need about three
or four times to see what [he] could do."
During their December 13 conference, Davis asked
Doucette, ". . . can you get an assistant or do you want me
to find one?" and, in addition , specified the weekly salaries
to be paid the carpenter ($429) and his assistant, the
flyman ($354). Doucette replied that he wanted his son
(Joseph F . Doucette, Jr.) to be his assistant, and that both
salaries offered were inadequate. Davis asked whether
Doucette, Jr., had worked before . Doucette replied that his
son had been his assistant on "Purlie." Davis said that he
could not agree to pay Doucette , Jr., more than the other
"assistants" (the assistant electrician and the assistant
propman), with whom Davis had already made deals; and
proposed that Davis obtain a different assistant who would
work for $354. Doucette persisted that he wanted his son as
his assistant , because "I have to work with the man, I
didn't know who [Davis ) was going to get me," and wanted
more money for both of them . Davis and Doucette
eventually agreed that the Doucettes would work as
carpenter and flyman , respectively, at the salaries offered
by Davis , with the understanding that in 6 weeks Doucette,
Sr., would receive a $50 raise and Doucette , Jr., an
"automatic" $25 raise if by that time the show was being
hung within 8 hours . Doucette , Jr., never interviewed for
the job or spoke to Davis before getting it .3
3. The Doucettes' contracts of employment; the
Extent of Davis's authority
Doucette brought to the December 13 discussion two
printed individual employment contract forms obtained at
the office of Local 381, of which both Doucettes are
members. Many of the blanks on these contracts were
never filled in. Davis filled in the blanks specifying the
salaries to be paid. Doucette's contract concludes with the
Davis' salary from Respondent Theatre.
3 My findings in the foregoing paragraph are based on the testimony of
Doucette, whose demeanor impressed me more favorably that Davis'; on
the testimony of Davis except where inconsistent with Doucette 's; and, as to
the sequence and context of the remarks made , on the probabilities of the
situation . In connection with Doucette , Sr.'s role in the hiring of Doucette,
Jr, I note that counsel for the General Counsel offered on the record to
stipulate that Davis "gave Mr. Doucette the right to choose his flyman and
he chose his son," and that Doucette testified that Davis gave him the right
to hire his assistant, and that Doucette selected his son.
THEATRE NOW, INC. 529
following language , with the blanks following "Party of the
first part" filled in by Davis and those following "Party of
the second part" filled in by Doucette:
In witness whereof , This contract is made in triplicate
and the parties have affixed their signatures this 13 day
of Dec., 1972.
Party of the first part The Grease Co. Per E. H. D.
Permanent address 1564 B 'way NYC
Party of the second part Joseph F. Doucette Member
of Local No. 381 Permanent address P.O. Box 48
Newton Junction, N. H. 03859
The address thus filled in by Davis is the address of
Respondent Grease , not of Respondent Theatre. The
corresponding portions of Doucette, Jr.'s contract, which
his father executed on his behalf because Doucette , Jr., was
out of the city, are the same in all significant respects
except for the "second part's" signature. Both contracts
begin with the following printed material:
This Agreement, made this-day of-19-, a
City-State, by- and between-(Name 'of
Company),1 party of the first part, and-, member of
Local No.-, International Alliance of Theatrical
Stage Employees and Moving Picture Machine Oper-,
ators of the United States and Canada, party of the
pecond part.
Witnesseth: The party of the first part agrees, To
engage the party of the second part as-with-
Company (name of attraction) ... .
To the extent that the blanks in the foregoing were filled in
at all, they were filled in by Doucette before Davis signed
these contracts. In both contracts, the word "Grease"
appears in the blank labelled "name of attraction." The
blank prior to the words "party of the first part" is not
filled in on Doucette's contract. However, the words
"Theatre Now" appear in that blank on Doucette, Jr.'s
contract . Davis testified that this entry "got by me. I just
didn't notice it. I am usually very careful to make those
changes because at the end of the show . . . when people
apply for unemployment , they make the claim against
Theatre Now and we have to write back and say no, the
rightful company is the Grease Company, not Theatre
Now." 4
On cross-examination, Davis testified that he did not
have "sole authority to hire or fire anybody," that he
"always discuss[ed] hirings with the producers of the
4 The form contracts state on their face , "This is the official and only
contract recognized by the International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the United States
and Canada ." In addition , the signatory employer undertakes to "fill any
vacancy that may occur under this contract at once with a member in good
standing" of that Union ; and the signatory employee undertakes to provide
his services "subject, however, to" union rules and to abide by the
employer's regulations governing rehearsals and performances "insofar as
they do not conflict with" union 'bylaws. Further, both contracts provide,
. should any dispute arise under this contract (as to matters other than
claims for salaries due, or drunkenness, or dishonesty, or incompetence; the
latter three of which , or any of them, shall be sufficient reason for the
immediate cancellation of this contract) such dispute shall be adjusted by
means of an arbitration board. The arbitrators shall be: one appointed by
the International Theatrical Association ..., who shall be a member of the
Association ; one a member of the [Union], and the third, should his
show," and that he did this with respect to Doucette's
hiring. However, on direct examination, Davis testified
that he had authority to hire Doucette. Moreover, although
both "Grease" producers (the Waissmans) subsequently
testified on Respondents' behalf, they were not specifically
asked about the extent of Davis' authority to hire or fire
the Doucettes without first checking with the Waissmans,
or whether he had in fact consulted with them about the
matter. Furthermore, Doucette credibly testified that Davis
agreed to hire Doucette, Jr., during the same conversation
when Davis signed Doucette, Jr.'s contract of employment.
For these reasons, because Davis was directly impeached
as to a critical part of related testimony (see, infra, sec. II,
C, 1, a), and because I was not impressed by his demeanor,
I discredit his testimony regarding the alleged limitations
on his authority to hire or fire the Doucettes.5
4. The Doucettes ' job responsibilities
The road show opened in Boston on December 23, 1972.
After the opening night, Doucette and Company Manager
Donald Antonelli decided how many carpenters would be
used for the run of the show. More specifically, they
decided that two carpenters (the Doucettes) would travel
with the show; that 12 more carpenters would be ordered
from the local union in each city to hang and dismantle the
scenery; and that three local carpenters would be used
while the show was being performed. Laying to one side
the matter discussed infra at fn. 32 and its referred-to text,
this arrangement was subsequently approved by the union
business agent. From time to time, the number of local
carpenters to be hired would vary in accordance with local
practice or the particular theater's union contract. In two
cities (New Haven and Toronto), four rather than three
local carpenters worked the show, the increase being
determined by house conditions and a consultation
between the stage manager, the local union business agent,
and Doucette. As shown infra, sec. II , C, 1, a, the Union
required Doucette to advise it in each city of the number of
carpenters to be used in the show.
The Doucettes acted as "Grease" carpenter and flyman,
respectively, from their December 13, 1972, date of hire to
their discharge on June 17, 1973, during which period the
show played in 14 different cities. Doucette, Jr., testified
that his father was the head of the carpentry department.
Doucette, Sr., testified that it was he who decided "how
I'm going to put the show into the theater. Every theater is
different. It's up to me to decide where I can put the show
appointment be necessary, someone mutually agreed upon by the other
arbitrators."
However, Respondents have at no time contended before me that I
should defer to arbitration . Accordingly, I need not and do not consider
whether these individual contracts of employment would call for deferral to
arbitration, under the principles set forth in Collyer Insulated Wire, 192
NLRB 837, if such a contention had been timely raised . Nedco Construction
Co., 206 NLRB No. 17. Furthermore, counsel for the General Counsel and
counsel for Respondents stipulated that contractually the employer had the
right to terminate without cause . Also, Respondents contend that incompe-
tence played a part in the discharge of both Doucettes ; that dishonesty
played a part in the discharge of Doucette, Sr.; and that both were
terminated without cause.
5 N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 408 (1962); Bon Hennings
Logging Co. v. N.L.R.B., 308 F.2d 548, 554 (C.A. 9, 1962).
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make it work. Some theaters may be small, I have to
make the show tight." Shortly before the show was to move
to another theater, Doucette would visit the new theater
and make plans in his mind and on paper about how to
hang the scenery. With the assistance of carpenters sent
out from the local union in the area pursuant to an
"advance call"-apparently made by Doucette, who
(inferentially) decided on the number to be called-Dou-
cette would then hang the "rigging" for the scenery. When
the scenery arrived at the theater, it was unloaded by the
Doucettes and by carpenters ordered from the local union
in that city. Doucette testified that he was "a boss" over
the local carpenters and "in charge" of them; that he told
them how to take the scenery off the trucks and where to
put it; that he was "responsible for [his] end of it, being
sure that the show got up"; and that once the show was
"operating fine, I just had to be sure that it kept going."
Doucette, Jr., testified that his father had no power to fire
anyone, but did not know whether any occasion for such
action had ever arisen.
In his capacity as flyman, Doucette, Jr., acted as his
father's assistant . Because the Hyman is responsible for all
scenery operated from the fly floor (a platform above the
stage floor and out of sight of the audience), and because
all the scenery in "Grease" was operated from the fly floor,
Doucette, Jr., was responsible for seeing to it that the
scenery was working at all times ; was properly set up,
maintained, and taken down; and was brought in and
taken out on time in accordance with the production stage
manager 's cues . While operating the show, Doucette, Jr.,
had two or three assistants (local men) on the fly floor.
When Doucette, Jr., regarded an assistant as unsatisfacto-
ry, he brought up the problem with his father and the
house Hyman; then (failing solution) with the house
carpenter and the stage manager ; and then, still failing
solution, with the local union, which might "fire the man."
Doucette, Jr., had no power to fire anyone. On one
occasion he "had a situation where somebody was
unsatisfactory but we couldn't get rid of him but I changed
the situation so after that he became satisfactory."
B. The Events Allegedly Leading up to the
Doucettes' Discharge
The Doucettes were discharged in Los Angeles, Califor-
nia, on June 17, 1973. Counsel for the General Counsel
contends that the significant events leading to their
discharge occurred in connection with the processing of a
grievance in Cincinnati, Ohio, between May 29 and June 2,
1973, relating to the discharge of sound man Bob Weeden.
Respondents contend that the most significant event
leading to their discharge was New York management's
observation of a "Grease" performance in Toronto,
Canada, on April 18, 1973, and that management reached
the discharge decision by April 23, 1973, before the
Weeden grievance arose . Respondents attribute the inter-
val between the June discharges and the events which
allegedly motivated them to the fact that on June 12, 1973,
the "Grease" sets were hung in Los Angeles for an
openend engagement during which a new carpenter and a
new Hyman would be able to learn how to hang the show.
The events material to the foregoing contentions regarding
the motives for the discharges are summarized below.
1. The Doucettes' work performance
The road show opened in Boston on December 23,
moved to Philadelphia for an engagement beginning
January 8, and then moved to New Haven for an
engagement beginning January 22. The Waissmans saw the
show in Boston and Philadelphia, but not in New Haven.
From New Haven, the show moved to Baltimore for an
engagement between January 29 and February 10.
While the show was in Philadelphia, Waissman had told
then Production Stage Manager Bill Leddich that the sight
lines in the theater to be used in Baltimore were very poor,
and every effort should be made to keep as much of the
sight line as possible. Leddich assured him that every effort
would be made. Prior to the opening night curtain in
Baltimore, the Waissmans looked at the physical set. They
thought it looked "generally fine." However, they went to
the extreme sides of the audience side of the theater to
check the sight lines and realized that the second level of
the set, where a lot of action took place, was invisible from
certain seats . At this time, Doucette was on stage. They
asked him whether he could widen the gap between the
black curtains hanging on the sides of the stage so as many
people as possible could see the action on the second level.
Doucette pulled them back and thereby enabled 50 to 100
more people to see the second level.6 The Waissmans
thanked Doucette, did not reprove him, and did not
mention the matter to Leddich.
At the conclusion of the opening night performance in
Baltimore, where the Waissmans were particularly anxious
for a successful engagement because Baltimore is their
hometown and the theater used is hard to fill, the
Waissmans were "elated" because the show was what they
wanted it to be. They congratulated everyone, including
the crew, for what they did that night, addressing the
company in large or small groups. Later that week,
Doucette, Jr., received a $25-a-week raise. While the show
was in Baltimore , Doucette decided that the set had to be
changed so it could be hung in 1 day. After the show was
hung in Baltimore, and with Davis' approval, Doucette and
other carpenters cut 2 feet off the back end of the set.
After leaving Baltimore, the show went to Pittsburgh, to
Columbus, to Indianapolis, and then to Washington. In
Washington, Doucette succeeded for the first time in
hanging the set within 8 hours.? On March 5, the opening
night in Washington, Davis told Doucette that he was
"very happy ... I knew you could do it in the time we
wanted, in one day. It was a great saving for the company."
On this occasion, Doucette, Jr., received a $25 bonus and a
promise of a similar bonus each time the show was hung in
8 hours-as it was during the rest of the Doucettes'
employment. About March 26 or 27 (after the show had
6 However , owing to the physical limitations of both the theater and the this event occurred in March in Columbus, but gave an earlier date after
set, a number of people were still unable to see the second level. examining a schedule showing that the Columbus run took place in
r My finding as to the date and city is based upon Doucette's credited February . I believe Doucette , Jr.'s initial recollection of the date was more
testimony , corroborated by Miss Fox . Doucette, Jr., initially testified that reliable.
THEATRE NOW, INC. 531
moved from Washington to Cleveland), Doucette tele-
phoned Davis , reminded him of their agreement regarding
a $50 raise if within 6 weeks he hung the show in 1 day,
and said that now he had hung the show in 1 day, he
thought he was entitled to the raise . Davis agreed to the
raise , which Doucette received in that week's paycheck.
After the show left Baltimore, the Waissmans did not see
it again until March 21 , when it was running in Washing-
ton. There is no credible evidence that they had any
complaints about the show there.8 The record fails to show
whether the Waissmans saw the show in Cleveland, where
it moved after leaving Washington.
On Wednesday, April 18, Miss Fox, Production Supervi-
sor Thomas C. Smith, and choreographer Patricia Birch
came from New York to attend a matinee performance in
Toronto, where the show had gone from Cleveland. Their
visit was unannounced , but Company Manager Donald
Antonelli made their hotel reservations and knew that they
were coming.
As to the condition of the show in Toronto, Smith
credibly testified as follows:9 The show was "tired-look-
ing" and "a little bit sluggish ." The "performances were a
little slow." The music was too slow in some places and too
fast in others, so the choreography could not be done the
way it was set. Some accessories which were supposed to
be part of the costumes were not being worn (defects which
were the responsibility of the wardrobe man and the
production stage manager ). Some of the performers were
wearing the wrong hair styles (defects which were the
8 Miss Fox testified that Waissman complained to then Production Stage
Manager Leddich that "the blacks had not been hung for masking" (that is,
that the backstage area was inadequately concealed from the audience).
However, Waissman was not asked about this incident , although according
to his wife he was "very, very upset" about the matter . Davis testified that
during the Washington run, one of the Waissmans (he did not remember
which ) complained to him that "certain pieces did not fly in or fly out as
they previously had" and that "Certain masking and backing had not been
there as it previously was in Boston ." Davis further testified that "the feeling
was" that the changes would be undone with the next move (to Cleveland) if
for financial reasons this was not done in Washington . However , neither of
the Waissmans testified about any conversation with Davis about the
Washington show at this time, or about any changes in flying pieces. Nor is
there any evidence that any alleged changes were undone in either
Washington or Cleveland . Accordingly , and in view of the witnesses'
demeanor, I do not credit Miss Fox's testimony that in Washington,
Waissman complained to Leddich about the masking, or Davis' testimony
that in Washington one of the Waissmans complained to him about a
failure to fly pieces and to use adequate masking.
Doucette credibly testified without contradiction that in Washington one
of the "hard legs" (wooden pieces of scenery) was left on the stage, instead
of flying in and out, because the stage was too small to permit the flying
operation , and that Frank Marino (who was taking over Leddich 's job as
production stage manager) asked about this. There is no evidence that any
member of management reproved Doucette about the Washington show
and, as noted , he received a $50 raise after the show went from Washington
to Cleveland.
9 On the basis of the witnesses ' demeanor, I credit Miss Fox's description
of the defects in the show only to the extent that it was corroborated by
Smith. In view of the statement by Respondents ' counsel that Miss Birch is
an independent entrepreneur , I draw no inference from her failure to testify.
10 In addition , Smith testified that a particular panel (referred to in the
record as "the Edsel panel "), which he believed important to the show's
artistic effect , was not being used . Miss Fox testified that "there were panels
not hung"; but the only unhung panel she specifically described was the
Edsel panel . I discredit their testimony that a panel or panels were missing
without proper authorization on the basis of their demeanor and the
following facts : Smith did not specifically testify that he mentioned any
missing panels to Doucette. Although the Doucettes (who testified prior to
Smith and Miss Fox but were not called as rebuttal witnesses) were not
responsibility of the hairdresser and the production stage
manager). Some of the props, including the benches, were
torn, badly patched, or inadequately maintained (defects
which were the responsibility of the prop man and the
production stage manager). In addition, some of the scene
changes were slow; some of the scenery was not being
adequately maintained; the masking was insufficient; and
a crack which had developed in one of the panels during
the Boston run had widened, probably as a result of
repeated disassembly and assembly, and was now visible to
the audience.10 The deficiencies described in this last
sentence were under the jurisdiction of Doucette and the
production stage manager.
After the April 18 matinee performance, Smith and Miss
Fox spoke to Antonelli and Marino about the poor
appearance of the show.1" Smith admittedly discussed the
painting of the scenery with Antonelli, who had had the
authority to order it repainted. Doucette had not been
present during the performance, and Miss Fox asked where
he was. Antonelli and Marino told her that he had been in
Detroit for a couple of days doing advance work, and that
they thought he would return on Thursday, April 19.12
On April 18 or 19, Smith described to Marino all the
defects in the show, including those within the jurisdiction
of the wardrobe head, the head electrician, the head prop
man, and the Doucettes. Smith made certain suggestions to
Marino regarding the need for, and methods of, perform-
ing prop maintenance and repair work outside of perform-
ance hours. He also told Marino that some of the panels
specifically asked about a missing panel or panels, Doucette, Sr. (a reliable
witness in most respects) testified generally that with exceptions not
material here , the entire set was used at all times . Further, Smith and the
Waissmans testified , in effect, that Production Stage Manager Frank
Marino (Doucette's immediate superior) was largely exonerated from blame
regarding the missing panel or panels because Marino had not joined the
show until the Washington run and told them that "He was told by Joe
Doucette that that was the way he was given permission to hang it;" but
neither of the Waissmans testified that any panel was missing from the
Washington show, even though both of them saw it while both Marino and
the original production stage manager (Leddich) were with the show.
Further, it seems inherently unlikely that if a panel or panels had been
unexplainedly omitted during all of the 19 previous performances in
Toronto and part or all of the Washington run, not a single member of the
entire road company would have drawn the matter to the attention of
responsible management.
Finally, although Frank Marino was still in the employ of Respondent
Theatre and/or Respondent Grease at the time of the hearing , and although
as to this and other matters discussed infra he possessed information highly
material to the issues , he did not testify, nor was his absence explained. The
same is true of Company Manager Antonelli , who (as will appear infra)
likewise possessed information highly material to the issues . I infer that if
Marino and Antonelli had testified their testimony would have been
unfavorable to Respondents . N.LR.B. v. A. P. W. Products Co., 316 F.2d
899, 903-904 (C.A. 2); International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (Gyrodyne) v. N. L R. B., 459
F.2d 1329, 1335-1346 (C.A.D.C.). Because of the foregoing considerations
and Doucette's demeanor, I credit his testimony that with exceptions not
material here, he never had a conversation with Marino with respect to
cutting some of the sets and scenery out of the show.
11 This finding is based on Smith 's and Miss Fox's testimony, which I
credit to this extent. However , for the reasons summarized supra at In. 10,
and infra at In. 13, I do not credit their testimony that on this or a somewhat
later occasion they complained to Marino about a missing Edsel panel or
missing "pieces," and that Marino blamed Doucette.
12 My finding as to this conversation about Doucette is based on Miss
Fox's testimony. Because the inquiry seems natural under the circum-
stances, I credit her testimony that it was made , although Smith did not
corroborate it.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were being dropped and raised too slowly (this being
Marino's responsibility) and that additional masking
should be hung-a matter under Doucette's jurisdiction.
Smith told Marino that Smith and Miss Fox were going to
discuss the cracked panel with General Manager Davis,
because Davis (rather than Marino or Smith) would have
to authorize its replacement.13 Marino told Smith and Miss
Fox that he was having some trouble in getting along with
Doucette.14
On Monday, April 16, Doucette had gone to Detroit (the
location of the next run) to perform "advance work." He
did not return until after the evening show on Wednesday,
April 18.15 On Thursday, April 19, Antonelli telephoned
Doucette at his Toronto hotel and told him to come to the
theater. When Doucette arrived, Antonelli called him to
the office alone , and told him that Miss Fox had said that
the sets were dirty and should be fixed. Antonelli told
Doucette to telephone Davis in New York and see what
could be done about it. Doucette then telephoned Davis
and told him the set should have been painted and touched
up. Davis "gave the okay to do it. That's if that was what
[Miss] Fox wanted, he wanted the sets in perfect
condition." Thereafter Miss Fox told Doucette that the
paint was coming off, that the set should have been painted
and some seats should have been reupholstered. Doucette
replied " ...we were going to do it, but we didn't have the
money to do it in Detroit for the opening in LA." On April
18 or 19, Miss Fox and/or Davis authorized a "paint call"
(the engagement of employees to repaint the set), although
the work would have to be done on Good Friday and,
therefore, at overtime rates . Doucette did not have the
authority to issue a paint call, or otherwise spend money,
without his superior's approval; but Marino and Antonelli
did. Also on April 19, Smith asked Doucette about the
absence of black masking. Doucette replied that "there was
a problem in hanging it the way it had been hung in
Boston ." Smith replied that he was aware of the time
problem but felt that the masking could have been hung by
using particular techniques outlined by Smith. Smith also
asked him to "find another way of hanging the palm trees."
Smith did not mention the cracked panel to Doucette.16
The deficiencies described to Doucette during these
13 My findings in this paragraph up to this point are based on Smith's
testimony , which I credit to this extent because of the indirect corroboration
afforded by the credited testimony regarding the defects found . However,
because of the uncontradicted testimony showing Marino 's expressions of
surprise and regret at the Doucettes ' discharge, Marino's unexplained
failure to testify, and Smith's demeanor , I do not credit Smith's testimony
that Marino told him that Doucette had given Marino the impression that it
was all right not to use the black masking about whose absence Smith was
complaining.
14 This finding is based on the testimony of Smith and Miss Fox, which I
credit to a limited extent because of the indirect corroboration afforded by
Doucette 's uncontradicted testimony regarding Marino's postdischarge
remarks to him ("We finally got where we could work together"). However,
I conclude that Smith and Miss Fox (as well as Davis; see text reference for
In. 30, infra) were somewhat overstating Marino's complaint Marino
unexplainedly failed to testify, and the record is barren of evidence that
management ever asked Doucette to be more cooperative with Marino
Because Davis and the Waissmans planned by their own testimony to retain
Doucette until the show had moved to Los Angeles , a date almost 2 months
away, it seems to me that a strenuous complaint by Marino would have
naturally led management to make such a request even accepting
Respondents ' contention that the decision to discharge the Doucettes was
conversations were corrected by the time the show opened
in Detroit, its next destination.
Through Marino, Smith also gave general "notes"
(inferentially, written warnings) to Doucette, Jr., about
"some of the patterns that were too slow," in Toronto and,
subsequently, in Detroit.17 Smith testified that in Detroit
"It was better but not perfect."
Miss Fox admitted that she had never told Doucette, Sr.,
that she was dissatisfied with his work. Waissman admitted
that he had never told Doucette, Sr., that he was unhappy
with the condition of the set. Davis admitted that he never
told Doucette, Sr., that the Waissmans were dissatisfied
with his work. Doucette testified that except for the April
19 conversations, while he was working with "Grease,"
management never told him that it was dissatisfied with his
work, or warned or reprimanded him about it. Except to
the extent that Doucette's testimony in this respect may be
inconsistent with findings previously made, I credit such
testimony.
Smith, the Waissmans, and Davis testified about various
conversations among them which allegedly occurred at
various times after Smith and Miss Fox had seen the April
18 matinee performance in Toronto and allegedly led to a
decision by the Waissmans on April 23 to discharge the
Doucettes. These alleged conversations are discussed infra
at sec. II, C, 1, a.
2. The Weeden grievance
On or about Friday, May 25, when the show was about
to leave Detroit, sound man Bob Weeden was given 2
weeks' termination notice for reasons immaterial here. On
May 25, Weeden complained about this by telephone to
Doucette, who was performing advance work in Cincinnati
for the run to begin there on May 28. During this
conversation, and during another conversation upon
Doucette's May 26 return to Detroit, Doucette advised
Weeden that if he thought his discharge was wrong he
should talk to the union business agent . Weeden thereupon
telephoned Detroit Business Agent Warren Wilson. Wilson
told both Weeden and Doucette that the Union's New
York business office is closed on Saturdays and he could
do nothing, and advised Weeden to call Edward Vignale,
made on April 23.
IS This was Doucette's second visit to Detroit to perform advance work
He was unable to perform any work during the first visit , because of an
unscheduled rehearsal of the show then playing in the Detroit theater. On
the basis of his demeanor and the testimony in this respect , I conclude that
at least on the second occasion he spent somewhat more time in Detroit
than was necessary to discharge his duties. However , Miss Fox's testimony
shows that she was consciously exaggerating when allegedly telling Davis,
Smith , and Waissman that Doucette had been absent for 4 days.
16 My findings as to Doucette's conversations with Antonelli , Davis, and
Miss Fox are based on Doucette's credited testimony In view of Antonelli's
unexplained failure to testify and the fact that Davis' denials of the
telephone conversation were somewhat uncertain , I do not credit such
denials. I discredit as improbable Miss Fox's testimony that she did not
speak to Doucette at all on this occasion, particularly in view of her credited
testimony that after seeing the April 18 matinee performance she asked
where he was. My findings as to Doucette 's conversation with Smith are
based on Smith's credited testimony , not specifically denied by Doucette.
17 This finding is based upon Smith's credited testimony that he gave the
notes to Marino, who told him that Marino had given the notes to Doucette,
Jr. While Marino did not testify, Doucette, Jr., was not asked whether he
received such notes or was ever reprimanded.
THEATRE NOW, INC.
the Union's Cincinnati business representative, when
Weeden reached that city.
On Tuesday morning, May 29, after the show had been
hung in Cincinnati, Doucette telephoned Vignale and
asked him to come to the theater to talk to Weeden.
Vignale agreed to come down before the show began that
evening, and asked Doucette to arrange a conference
between Vignale, Antonelli, and Marino. Doucette thereu-
pon made such arrangements , advising Marino that
Weeden wanted to know why he had been fired.
When Vignale arrived at the theater, he conferred with
Weeden about the matter. Thereafter, Doucette introduced
Vignale to Marino, Antonelli proposed that the conference
be held in his office. At this point, Vignale asked Doucette
to sit in on the conference.18 Accordingly, Doucette joined
the group. Marino asked why Doucette had to be there;
Doucette replied that he was brought in with Vignale to sit
and listen, just as Antonelli was there to sit and listen.
Vignale asked why management wanted to fire Weeden.
Marino replied that Weeden was incompetent, that "the
sound was not up to par in Detroit," and that "I don't want
him any more. I just want him to go, and that's it."
Doucette asked Marino to give a more specific reason, but
Marino refused. This was the only remark made by
Doucette during the conference. Vignale said that he
would have to talk to his office about the matter, and
Antonelli said that he would have to talk to Davis "to find
out if it would be okay to terminate." The meeting then
broke up.
That same day, May 29, Antonelli advised Davis by
telephone that various named persons, including Doucette,
had met at the theater to discuss Weeden's discharge.
Davis asked Antonelli why Doucette was present, and
Antonelli replied that he did not know. Later that day or
on the morning of May 30, Davis telephoned Doucette and
asked why he was "getting involved in this." Doucette
replied that he had only advised Weeden of his rights, and
that Weeden was entitled to this information. Davis said,
"... okay, you advised the man of his rights. Now let's let
them take care of it."
After consulting by telephone with Union President
Walter Diehl in New York, Vignale came back to the
theater on the afternoon of May 30 for a further
conference with management. The same four people met
again , while the show was in progress. Vignale said that the
Union could not get Weeden's job back, but the notice.had
to be given out on Sunday, June 3, because this was the
end of a week; that Weeden was entitled to be paid
through the Denver show, which wag to terminate on June
10; and that he was entitled to I week's vacation pay.
Marino said that he did not know anything about the
vacation. Marino replied, "I just spoke to Mr. Diehl and
that's the way it is." Marino said, " . . . we don't need
[Weeden] for Denver, he's done here as of Saturday night."
Vignale replied that as long as Weeden received his pay
and his vacation this was "fine" with him. Management
agreed to this arrangement. Doucette was present during
18 Vignale testified that he extended this invitation because " ... the
carpenter is like the ex officio head of the crew, like the steward of the crew,
if there's problems. Each department has their department head, but if
there's any particular department with respect to talking to management,
533
this conference, but said nothing. Because Weeden was
performing his professional duties while the conference
was in progress, Vignale waited until the show was over
and then reported to him what had happened.
Thereafter, Weeden told Vignale that Antonelli had said
Weeden had to go on to Denver and work out the
engagement there. On June 1, Vignale came back to the
theater again. Vignale asked Doucette to accompany him
in the meeting with Antonelli and Marino. Doucette
replied that he did not want to go in because he was getting
too deeply involved and was afraid he would be fired.
Doucette added, "After we go into LA, they don't need
me, they are going to have a run there." Vignale remarked
that Doucette was "kidding," and insisted that he attend
the meeting. This meeting was attended by Vignale,
Doucette, Marino, Antonelli, and (perhaps) Weeden.
Vignale asked why he had not been told previously that
Weeden would have to work in Denver. Marino replied, "I
just got a hold of my New York office and the man has to
work in Denver." Vignale replied that he guessed Weeden
would have to work in Denver as long as he was being paid
for it.
Weeden did not leave the show until the end of the
Denver run, at which point he was replaced by the original
sound man who had set the show up in New York. When
Weeden was paid off he received 1 week's vacation pay.
Davis agreed to this payment in order to allay the Union's
suspicions, conveyed to him in New York, that the
selection of Weeden's discharge date had been affected by
a desire to prevent him from accumulating enough service
to receive vacation pay in accordance with a recent
agreement with the Union.
3. The Doucettes' discharge
Davis testified that while the show was in Denver
(between June 5 and 10), "I made my telephone call . . . to
find out the availability" of a new carpenter. Davis made
this phone call some 6 weeks after the late April meetings
during which management allegedly decided to discharge
the Doucettes, and from 4 to 9 days after the last Weeden
grievance meeting.
After the opening night in Los Angeles, on June 12, the
Waissmans told either Doucette alone, or a group of
touring company members including Doucette, that the
show looked "beautiful" or "wonderful." On Sunday, June
17, the first Sunday after the Los Angeles show was hung,
Antonelli called Doucette, Sr., into Antonelli's office
backstage, closed the door, sat down, and said, "I got to let
you and your son go." Doucette said, "You got to be
kidding." Antonelli said, "No. I got to do the dirty work. I
got to pay you off and your son off." Doucette asked for
the reason. Antonelli said, "I don't know. I don't have a
reason. I was told to pay you off, to terminate you and
your son." Doucette asked, "Why are you terminating my
son?" Antonelli replied, "Because he is your son."
Antonelli gave Doucette the Doucettes' paychecks, both of
which (as required by the Doucettes' employment con-
talking to the Union, getting back and forth, he had a responsibility, he is
sort of the steward of the crew in name like and I figured that Joe had called
me about Mr. Weeden and I know Joe over a period of years."
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracts) included 2 weeks' pay in lieu of notice, and said,
"I'm sorry. There's nothing I can do with this. It's out of
my hand, it's coming from Mr. Davis." Doucette asked if it
would be all right to call Davis in the morning.19 Antonelli
replied, "I wish you would call Mr. Davis and he will tell
you the reason." Doucette, Sr., then left Antonelli's office
and told Doucette, Jr. (who was then performing his
professional duties) that they had been fired and paid off,
adding that he "really didn't quite believe it." At the end of
the show, Antonelli approached Doucette, Jr., and said,
"I'm sorry for what has happened. I am going to miss you
and your father." 20
On the following day, June 18, Doucette telephoned
Davis for an explanation of the discharge action. What
Davis said in reply is the subject of conflicting evidence
which is discussed hereafter.
On June 19, when the Doucettes returned to the Los
Angeles theater to retrieve some personal belongings,
Marino approached Doucette, Sr., and asked why Dou-
cette , Jr., was so "mad" at and "bitter" toward Marino.
Doucette, Sr., replied that Marino must have had some-
thing to do with the discharges. Marino said, "I had
nothing to do with it. I just heard about it Sunday
afternoon. I was just as surprised as you were. We finally
got where we could work together. I just don't believe it." 21
As required by union rules, the individual hired as the
new carpenter was paid as such from the time the
Doucettes were terminated , although he was unable to join
the show for 2 or 3 weeks and the job was actually
performed by a local carpenter in the meanwhile. The new
carpenter had worked in "bus and truck shows" (smaller
versions of large shows), with Davis as general manager,
for about 5 years. Davis testified that he had given the
Doucettes 2 weeks' pay in lieu of notice (totalling about
$1,700) because he feared sabotage if they worked out their
notice.
The first charge herein was received by Respondent
Theatre about June 20 or 22. By letter dated June 26, 1973,
addressed to the Board field attorney assigned to the case,
Respondents' attorney stated , inter alia:
The two (2) complaining employees were hired for
the Touring Company, I believe in Cincinnati, Ohio
and toured with the company pursuant to their written
contract with the Producer. The employees were
discharged without cause in California, were paid two
(2) weeks salary and furnished transportation as per
their contracts.
11
In response to your oral inquiry, we must emphati-
cally state that these two employees were dismissed
without cause. As stated to you on the telephone, the
employer did have suspicion of wrong doing on the
part of each employee, but there is absolutely no
credible evidence which can be offered in support of
19 The Doucettes were discharged about 10 p .m. Los Angeles time-that
is, about I a . m. New York time.
20 My findings in the foregoing paragraph are based on the Doucettes'
undenied and credited testimony. Antonelli unexplainedly failed to testify.
Davis testified that Antonelli had known "for some time" that the
Doucettes would be terminated on June 17, but could not recall when Davis
this suspicion. The employer and its agents categorical-
ly and affirmatively stated that these employees were
not discharged "because of their membership and
activities" in any union.
All of the officers of Waissman & Fox, Inc.,
Kenneth Waissman and Edward H. Davis, are present-
ly in London, England and will not return until after
July 9th. On behalf of the employer, we agree to submit
any or all of these persons having knowledge of the
facts for your inquiry here in New York after their
return.
Respondents ' attorney, who signed this letter and whose
office is in New York, testified that when the charge was
filed , the Waissmans and Davis were in England ; and that
when he wrote the letter , "I knew none of the facts and
none of the particulars with respect to the charge. I did
know that Mr . Doucette had been discharged. I knew he
had been discharged pursuant to the terms of a written
agreement which authorized his discharge without cause."
Counsel did not state the source of the information on
which he based this letter.22
C. Analysis and Conclusions
1. Whether unfair labor practices have been
shown
a. The reasons for the Doucettes ' discharge
Doucette testified that when he called Davis on June 18
and asked why he and his son had been discharged, Davis
replied that he "was mad at [Doucette] for bringing the IA
representative into Cincinnati, that was causing [Davis]
troubles . . . he said [Doucette] should have minded [his]
own business and [he] should never have got into that part
of it." According to Doucette, he then asked, "Why is my
son going? He had nothing to do with it. He never attended
none of the meetings ," and Davis replied, "Because he is
your son . . . I was going to fire you three weeks prior, I
was going to fire you in Cincinnati, but I needed you for
the opening in LA, but now I don't need you." In view of
the evidence regarding Doucette's participation in the
processing of Weeden's grievance, this statement (if Davis
in fact really made it) renders almost unassailable the
contention of counsel for the General Counsel that
Doucette, Sr., was discharged because Davis resented the
help Doucette, Sr., provided the Union and Weeden in
support of Weeden's grievance, and that Doucette, Jr., was
discharged because of his kinship to Doucette, Sr. Davis,
on the other hand, testified that during this conversation
Doucette, Sr., asked why he had been given his notice and
stated that "this was unexpected and I don't understand,"
told him this.
21 My findings in the foregoing paragraph are based on Doucette's
undenied and credited testimony. Marino unexplamedly failed to testify.
22 There is no evidence that Antonelli or Manno , neither of whom
testified, was abroad or otherwise unavailable during this period. Smith
returned to New York from England 3 days before counsel wrote this letter
THEATRE NOW, INC. 535
to which Davis replied that "the producers have not been
happy' for- a `long tin .1,123 It is apparent that this alleged
statement is inconsistent with the General Counsel's
contention regarding the motive for Doucette Sr.'s dis-
charge, but furnishes some support for Respondents'
principal contention that the Waissmans decided to
discharge Doucette, Sr., because they were dissatisfied with
his work 24 Accordingly, highly relevant to resolving this
critical clash in the testimony is Respondents ' evidence
about who decided on the discharges, when the discharge
decision was reached, and why it was reached.
Upon analyzing such evidence, and because Doucette,
Sr.'s demeanor on the witness stand impressed me much
more favorably than Davis', I credit Doucette's version of
the conversation.25 I reach this conclusion notwithstanding
my further finding that the Waissmans were seriously
concerned (financially, artistically, and emotionally) about
the condition of the Toronto show and were annoyed at
Doucette's coincidental absence ; that Miss Fox conveyed
this concern to Waissman and both of them to Davis; and
that this concern included (although it extended far
beyond) deficiencies within Doucette 's jurisdiction.
Thus, Davis' version of the June 18 interview represents
that the decision to discharge Doucette, Sr., was made by
the Waissmans ; and Respondents ' witnesses (Davis, the
Waissmans, and to some extent Smith) testified that the
Waissmans made this decision notwithstanding Davis'
advice to the contrary. Further, those witnesses testified
that this decision was finalized during a series of
conversations which allegedly occurred between April 18
(when the show was in Toronto) and April 23 (the opening
night in Detroit , but, by the time the show reached Detroit,
the participants in these conversations were all in New
York). Yet, Davis' prehearing affidavit stated, inter alia:
I made the decision to discharge Joseph F. Doucette,
Jr. and Joseph F. Doucette. In mid-May, I came to the
conclusion that it would be to the best interests of the
Grease Company to terminate the employment of both
Doucettes . I, at this time, discussed this conclusion with
[the Waissmans ] and the three of us agreed to
terminate their employment as soon as replacements
could be found and at a time that the Company would
not suffer, namely after the Los Angeles opening. (In
mid-May the road show was in Detroit, Michigan.) 26
Moreover, the reasons tendered by the Waissmans for
their alleged decision to discharge Doucette lack plausibili-
ty in view of the retention of all other members of the road
company, although the credited testimony of Production
Director Smith (called by Respondents) establishes that
Production Stage Manager Marino and the other depart-
ment heads were at least as blameworthy as Doucette for
the deficiencies in the Toronto show. The genuineness of
these reasons is further drawn into question by the
uncontradicted testimony that Company Manager Anto-
nelli told Doucette that he did not know why Doucette was
being terminated and Production Stage Manager Marino
told Doucette that he was surprised by the discharges,
although Smith and Miss Fox admitted that they had
spoken to both men about the deficiencies in the Toronto
show-in considerable detail to Marino, and including a
discussion with Antonelli about the painting of the scenery.
Further, the testimony of Respondents' witnesses leaves
Doucette, Jr.'s discharge somewhat in the air. Davis
testified that he did not recall discussing Doucette, Jr.,
during the June 18 conversation with Doucette, Sr.,
although the circumstances render highly probable, to say
the least, Doucette, Sr.'s testimony that he asked about the
matter. Furthermore, Waissman was the only witness
called by Respondent who testified that Doucette, Jr., was
even mentioned during the April 23 conference, and
Waissman's memory was "very cloudy" about whether a
decision was reached that day to terminate the son as well.
Moreover, Waissman's testimony is confused if not
internally inconsistent, and is also inconsistent with certain
parts of Smith's testimony, regarding Doucette, Jr.'s
alleged responsibility for the slowness of the flies, with
virtually an eventual admission in the testimony of both
witnesses that the production stage manager was the one
really at fault. Finally, Davis' admission that his phone call
to obtain a new carpenter was made on June 5 or later is
difficult to reconcile with the contention that the discharge
decision was made as early as April 23, particularly in view
of the scarcity of competent road show carpenters which
required Davis to accept a carpenter with "bus and truck"
experience only; 27 but creates a logical time sequence
23 Davis so testified on direct examination . On cross-examination, he
testified that he had never told Doucette that the producers were dissatisfied
with his work ; and that ,if' Davis gave Doucette any reason for his
termination, " ... it was a phrase such as general dissatisfaction."
24 Respondents' explanations for the discharge of Doucette, Jr., are
discussed infra.
25 1 note that Doucette, Sr.'s testimony that Davis tendered kinship as
the reason for Doucette, Jr.'s discharge is to some extent corroborated by
the uncontradicted evidence that Antonelli had previously given Doucette,
Sr., a like explanation.
26 When this portion of Davis' affidavit was drawn to his attention at the
hearing, he testified, inter alia, that the termination decision was made in
May. He admitted that he "must have" told the Board agent that "I made"
the decision, but added , . in Toronto, the week before this, Mr.
Waissman and Miss Fox-decided to fire Mr . Doucette and I prevailed upon
them to wait so we could discuss it further So , I made my own decision at
that point in Detroit that their wishes were going to prevail." He tendered,
as an attempted explanation of the "mid-May" date in the affidavit, that
this was a recollection of when the show was in Detroit , which followed
Toronto; but he offered no explanation of why he deemed the Detroit
location important when the alleged decision was made by management
,personnel while they were in Cincinnati and (on the date of the Detroit
opening) in New York. As an attempted explanation of his statement that
"I" decided on the discharges , he testified that he "had a personal
dissatisfaction from the very beginning But I overlooked it constantly
because I felt that I had no way-the job was getting done ." Davis
conceded that he gave the statement in the presence of Respondents'
counsel , and that both read it before Davis signed it. I am not satisfied with
his purported explanation for the inconsistencies between his sworn
testimony and his sworn statement.
There are certain seeming additional inconsistencies between Davis'
affidavit and portions of his testimony regarding his hiring authority and his
June 18 conversation with Doucette about the reasons for his discharge.
Because Davis was not asked about these possible discrepancies , I do not
rely thereon even though counsel for the General Counsel offered these
portions of his affidavit into evidence at the request of Respondents'
counsel . III A Wigmore on Evidence §§ 1025-29, pp 1020-32 (Chadbourn
rev. 1970).
27 During Doucette's April 19 conversation with Miss Fox about the
condition of the Toronto show, she remarked that "this was a road show,
(Continued)
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assuming (as contended by counsel for the General
Counsel) that the discharge decision was motivated by
Doucette's participation in the processing of the Weeden
grievance over a period ending Friday, June 1.
In short, in view of the foregoing considerations, the
witnesses ' demeanor, and the record as a whole, I do not
credit Davis' version of his June 18 conversation with
Doucette or the following related testimony: Miss Fox's
testimony that on April 18 she told Waissman that she
could not obtain a definite answer as to when Doucette
was expected back 28 and told Davis there were "torn
panels" and "panels . . . that [were] not hung" (supra, fn.
10); Waissman's testimony that on April 18 Miss Fox told
him that "there are things that weren't hung" (supra, fn. 10)
(specifically mentioning the Edsel panel, although Miss
Fox did not specifically testify that she then mentioned
that panel to Waissman); Davis' testimony that on April 18
Miss Fox asked him when Doucette was coming back,29
that between April 18 and 23 Marino told him that Marino
felt he was "fighting" Doucette all the time (see, supra, fn.
14), and that after telling Doucette on May 29 or the
morning of May 30 not to get further involved in the
Weeden grievance he never learned about Doucette's
subsequent participation therein; and the testimony by the
Waissmans and Davis that on April 23 they agreed that
Doucette, Sr., (and-according to Waissman alone-per-
haps Doucette, Jr., as well) would be terminated after the
show reached Los Angeles and Davis was told to find a
new carpenter.30 I also discredit Waissman's testimony
that on May 17 he told Marino that "we had already
decided after that Toronto incident that [Doucette] was
going to be replaced," and Smith's testimony that on May
23 or 24 Marino relayed this alleged conversation to him.
Waissman's and Smith's testimony in this respect was not
corroborated by Marino (who unexplainedly failed to
testify) and is inconsistent with the uncontradicted testimo-
ny that on June 19 he told Doucette that the discharges
were a "surprise" and he had not learned about them until
June 17, the day they occurred. I need not and do not
determine whether the fabrications of Respondents'
witnesses consisted of the testimony that the Waissmans
wanted to discharge Doucette, or of the testimony that
Davis was unsuccessful in his admitted efforts to induce
them not to take such action.
My conclusion that the Doucettes were discharged for
the reasons tendered in Doucette's version of Davis' June
18 remarks is further supported by the action of Respon-
dents' counsel in asserting , successively, that the Doucettes
were discharged "without cause"; that they were dis-
charged on "suspicion of wrong doing on the part of each
employee, but there is absolutely no credible evidence
which can be offered in support of this suspicion"; 31 that
she didn 't want it to be run like a bus and truck show ." I infer that the
standard of work expected from the carpenter on the latter type of show is
lower than from the carpenter on a road show.
78 Waissman testified , "She said they expect him back tomorrow."
79 This testimony was not corroborated by Miss Fox, who already knew
the answer (supra, In. 28) In any event , I see no reason why she would
expect Davis to know.
30 The Waissmans and Smith testified that no discharge decision was
made before Smith left the conference , but Davis testified that the decision
was made in Smith's presence.
3i Because these representations were made in a letter to the Regional
Doucette, Sr., was discharged because of his entries on the
so-called "yellow cards" used by the Union to assure that
the local union had proper notice of the need for local
stagehands for the show and that the show used what the
Union regarded as a sufficiently large crew (br., p. 3); and
that Doucette, Jr., was discharged in order to enable the
new carpenter to select his own flyman (br., pp. 10-11).
Neither Miss Fox, nor Waissman, nor Davis testified that
the discharge decisions were in any way so motivated.
Indeed, both Davis and Antonelli knew about Doucette's
questioned "yellow card" practice before he began to
follow it; Doucette's uncontradicted and credible testimo-
ny establishes that management never complained to him
about it; Davis did not learn of the Union's objections to
this practice until after the alleged April 23 discharge
decision; Doucette credibly testified that he believed his
practice would save the employer money; there is no
evidence that prior to his discharge any member of
management thought otherwise; and the uncontradicted
evidence establishes that at least in many locations it in
fact did so.32 Moreover, the usual practice is to retain the
assistant, because of his familiarity with the show, where
the carpenter leaves a show before the end of the run; and
Davis failed to explain why he did not do this 33 "The
Company's vacillation and the multiplicity of its alleged
reasons for firing [the Doucettes] render its claims of
nondiscrimination the less convincing." N.L.R.B. v. Schill
Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5, 1965).
Accord: N.LRB. v. Long Island Airport Limousine Service,
468 F. 2d 292, 295 (C.A. 2, 1972); Aloi Fora supra, 179
NLRB at 230. Assuming arguendo that Respondents'
counsel has shown justifiable ground for the Doucettes'
discharge, "the existence of some justifiable ground for
discharge is no defense if it was not the moving cause."
N.L.R.B. v. Wells, Inc., 162 F.2d 457, 460 (C.A. 9). Accord:
N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.
2d 352, 355 (C.A. 2, 1962), cert. denied 373 U.S. 950 (1963).
b. Whether the discharges and Davis ' assertions of
the reasons therefor violated the Act
(1) Whether Doucette, Sr., was an employee or
was a supervisor
I have found that Doucette, Sr., was discharged because
of his participation, on employee Weeden's behalf, in the
processing of the grievance based upon Weeden's dis-
charge; and that employee Doucette, Jr., was discharged
because he was Doucette, Sr.'s son. As discussed infra, the
discharge of employees for these reasons would violate
Section 8(a)(l) and (3) of the Act. Further, in response to
my inquiry at the hearing, Respondents' counsel conceded
Office from Respondents' counsel , they constitute admissions to be held
against Respondents . Steve Aloi Ford 179 NLRB 299, 230.
32 Doucette eventually altered this practice because of the Union's
protests.
33 Indeed, the assistant sometimes himself obtains the carpenter's job
under these circumstances . Davis testified that he did not so promote
Doucette, Jr., because he hired the Doucettes as a team and had doubts
about the ability of the son, whom he hardly knew, to "deal with men." The
practice of giving the carpenter the right to hire his assistant is followed for
new shows, not shows which are already running.
THEATRE NOW, INC.
that Doucette, Sr., was an employee within the meaning of
the Act. Nonetheless, during the hearing, I concluded that
the evidence indicated that Doucette, Sr., might well have
been a supervisor within the meaning of Section 2(11) of
the Act and, therefore, not an employee within Section
2(3). At my request, the parties have briefed that issue. I
conclude that Doucette was in fact a supervisor. Cf.
Primrose Super Market of Malden, Inc., 178 NLRB 566,
568-569.34
Thus, Doucette, Sr., had the authority, in the interest of
the employer and in the exercise of independent judgment.
effectively to recommend the hiring of the flyman (the only
other carpenter who was a permanent member of the
touring company) and in fact induced Davis to hire
Doucette, Jr., for that job.35 The record does warrant the
inference, which I draw, that Davis gave weight to
Doucette's recommendation partly because Doucette was a
highly skilled worker and would have to work with the
flyman, and that Doucette selected his son partly because
of their blood relationship. However, Doucette's belief that
his son was in fact well qualified for the job played a major
part both in Doucette's recommendation and in Davis'
willingness to hire Doucette, Jr., sight unseen and without
(so far as the record shows) any independent investigation
whatever. I am not persuaded that Doucette, Sr., lacked
the requisite recommendatory authority by the contention
of counsel for the General Counsel that the hiring of the
Doucettes was, in effect, a "package deal." The granting or
withholding of supervisory powers would ordinarily affect
parties' willingness to enter into a contract of employment
and the wages and other terms called for therein. See Setco
Well Service Co., 171 NLRB 338, 339.
Moreover, Doucette's participation in the decision about
how many local carpenters to use in each location to
perform the "advance work" and for each step in the
hanging, operation, and dismantling of the set constituted
participation in the only part of "hiring" the remainder of
the carpentry department in which the employer had any
voice; the local carpenters were selected by the local union.
Further, it was Doucette who decided when to call for local
carpenters to perform the "advance work." While I have
found no cases on the point, I am inclined to think that
Doucette's authority with respect to the hiring of the local
34 There is no contention or evidence that either Weeden or Doucette,
Jr., was other than a rank-and-file employee The authority exercised by
Doucette, Jr (who was familiar with the show), with respect to the local
men on the "fly floor" (who had never worked on the show before it
reached the local theater, and may not have even rigged or hung it) was
merely that of a highly skilled with respect to the less skilled worker See
Dubin-Haskell Lining Corp v N L R B, 375 F 2d 568, 570-571 (C A 4,
1967), modified on reconsideration 386 F 2d 306 (C A 4, 1967), cert denied
393 U.S 824(1968)
as 1 would reach the same conclusion even accepting Davis' discredited
testimony that he had only recommendatory authority, and that the final
authority to hire resided in the Waissmans Sec 2(11) does not provide that
the requisite effective recommendation must be made directly to the final
hiring authority
36 See , e g , the cases cited infra at fns 38, 46 See also Ebasco Services,
Inc, 181 NLRB 768, 769-770, Pioneer Drilling Co, 162 NLRB 918, 923,
enfd in material part 391 F.2d 961, 962-963 (C A 10, 1968), Dewey
Brothers, Inc, 187 NLRB 137, 142, enfd 80 LRRM 2112 (CA. 4, 1972)
37 See Oil City Brassworks v N L R B, 357 F 2d 466, 470-472 (C A. 5,
1966), cf General Engineering Co v N L R B, 311 F 2d 570, 573-574 (C A
9, 1962)
38 See, e g, Local No 207, International Association of Bridge, Structural,
537
carpenters constituted authority, in the interest of the
employer and in the exercise of independent judgment,
effectively to recommend hiring within the meaning of
Section 2(11).
Furthermore, Doucette was the only member of the
touring company who was present when he and the
carpenters sent out by the local union in the area for an
"advance call" hung the rigging in preparation for the
show's next intercity move. In addition, he was the head of
the carpentry department, was the "boss" and "in charge"
of the local carpenters, and told them how to take the
scenery off the trucks and where to put it. It was Doucette
who decided how to put the show into the various theaters,
each of which was different. I conclude that Doucette also
had the authority, in the interest of the employer and in the
exercise of independent judgment, responsibly to direct the
employees in the carpentry department.
(2) Doucette, Sr.'s discharge
It is hornbook labor law that by virtue of Sections 2(3)
and (11) and 14(a) of the Act supervisors do not possess the
protection which the statute affords to employees. Howev-
er, it is clear that action detrimental to their interests may
nonetheless constitute an unfair labor practice where it
infringes on the statutory rights of employees. Thus, it has
been held that an employer may not lawfully discharge or
otherwise discipline a supervisor because he refused to
commit unfair labor practices against employees, or
because he testified at a Board proceeding or at a
proceeding where a union was processing employee
grievances, or in order to punish the protected activity of
an employee who was the supervisor's relation, or in order
to provide a pretext to terminate employees for protected
activity.36 It may well be that such conduct is unlawful
whether or not the employees knew about it.37 However,
for the purposes relevant here, I deem it significant that
such cases have frequently if not usually relied on the
theory, inter alia, that such treatment of supervisors would
likely put employees in fear that like conduct by them
would lead to a like retaliation.38
Counsel for the General Counsel contends in his brief,
"The test is whether the discharge of the supervisor
and Ornamental Iron Workers v Perko, 373 U.S. 701, 707, Better Monkey
Grip Co, 115 NLRB 1170, 1170-71 [enfd 243 F 2d 836 (C.A 5), cert denied
353 U.S 864 (1957)], Talladega Cotton Factory, Inc, 106 NLRB 295,
295-297 [enfd 213 F 2d 209, 215-217 (C A 5) ]; Jackson Tile Mfg Co, 122
NLRB 764, 767 [enfd 272 F 2d 181 (C.A 5, 1959)], Consolidated Foods
Corp, 165 NLRB 953, 956-959 [modified 403 F 2d 662 (C.A 6, 1968)],
Inter-City Advertising Company of Greensboro, N C, Inc, 89 NLRB 1103,
1106-08, 1133 [modified 190 F.2d 420 (C.A. 4) ], Modern Linen & Laundry
Service, Inc, 116 NLRB 1974, 1975, 1986-87, Golub Bros Concessions, 140
NLRB 120, 127; Brookside Industrie.,, Inc, 135 NLRB 16, 25, enfd in
material part 308 F.2d 224, 228 (C A 4, 1962), Leas & McVitty, Inc, 155
NLRB 389, 390, 398-399, enforcement denied 384 F 2d 165 (C A 4),
Gainesville Publishing Co., Inc, 150 NLRB 602, 626-627, Dal-Tex Optical
Co, Inc, 131 NLRB 715,730-731 [enfd 310 F 2d 58,62 (C A 5, 1962)], Oil
City Brass Works, 147 NLRB 627, 629-630 [enfd 357 F 2d 466 (C A 5,
1966) ], Permian Corp, 189 NLRB 860, 864 [enfd 457 F 2d 512 (CA 5,
1972)], Thermo-Rite Mfg Co., 157 NLRB 310, 322 [enfd. 406 F 2d 1033,
1035 (C A 6, 1969)], Vail Mfg Co, 61 NLRB 181, 182-183, enfd. 158 F 2d
664, 666-667 (C.A 7), cert denied 331 U S 835 (under original Act).
Brackets around court citations indicate that the court either rejected or
failed to discuss the theory that the questioned conduct instilled fear in
rank-and-file employees
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrains and coerces nonsupervisory employees ." Howev-
er, counsel at the very least oversimplifies the problem. As
the Fifth Circuit pointed out in Oil City Brass Works,
supra, 357 F.2d at 470:
Any time an employee , be he supervisor or not, is fired
for union activity rank -and-file employees are likely to
fear retribution if they emulate his example . But . . . if
the fear instilled in rank-and-file employees were used
in order to erect a violation of the Act , then any time a
supervisor was discharged for doing an act that a rank-
and-file employee may do with impunity the Board
could require reinstatement. Carried to its ultimate
conclusion , such a principle would result in supervisory
employees being brought under the protective cover of
the Act . Congress has declined to protect supervisors
and the courts should not do by indirection what
Congress has declined to do directly.
Nonetheless , I do not conclude from this reasoning that
under no circumstances can the Board find unlawful,
because of the fear instilled in rank-and-file employees of
like retaliation for like conduct, the discharge or disciplin-
ing of supervisors for conduct protected by Section 7 where
engaged in by employees . Rather , I conclude that the Act
protects the employees against fears of retribution derived
from such employer conduct (just as it protects employees
from fears of retribution derived from discrimination
against their fellows) so long as this result is reconcilable
with other statutory ends, including the further congres-
sional purpose of permitting employers to discharge or
otherwise punish supervisors for engaging in Section 7-type
conduct . The propriety of this approach is suggested by the
interpretation afforded Section 8(b)(l)(A), which prohibits
unions from invading the rights of employees under
Section 7 in a fashion comparable to the activities of
employers prohibited by Section 8(axl),39 and which was
added to the Act at the same time as Section 14(a) and
related provisions . In considering whether Section
8(bXl)(A) was breached by union conduct, whose evalua-
tion need not take into account the employer 's privilege to
punish supervisors for Section 7-type conduct, the Board
and the courts have uniformly found a union unfair labor
pragice where the impact on rank-and-file employees of a
union 's treatment of supervisors had as a natural conse-
quence restraint and coercion of employees with respect to
their Section 7 rights .40 Furthermore, the Board held in A.
0. Smith Corp., 132 NLRB 339, 341-342, 393-394, not only
that a union violated Section 8(b)(1)(A) by causing a
supervisor's demotion to rank-and-file status because of
dissident union activity (thereby illustrating to the rank-
and-file employees their likely fate if they engaged in like
conduct), but also that the employer violated Section
39 International Ladies ' Garment Workers ' Union [Bernhard-Altmann] v.
N.LR.B., 366 U.S. 731,738 ( 1961).
40'See , e.g., International Union of Operating Engineers , Local 18,
AFL-CIO (C. F. Braun Co.), 205 NLRB No. 146 ; N.L.R.B. v Local 140,
United Furniture Workers [Brooklyn Spring Corp .], 233 F.2d 539, 540-541
(C.A. 2); N. L.R.B. v . International Woodworkers of America [W. T. Smith
Lumber Co.], 243 F.2d 745 (C.A. 5, 1957). See also New Power Wire &
Electric Co. v. N.LR.B, 340 F .2d 71, 72-73 (C.A. 2, 1965); N.LRB v.
Local 282, International Brotherhood of Teamsters [Lizza and Sons], 412
F.2d 334 , 337-338 (C.A. 2, 1969), cert . denied 396 U.S. 1038 ( 1970).
8(aX2) and (1) by effecting such demotion because of the
coercive effect of this action upon employee rights. While
finding that the evidence failed to support the Board's
conclusion as to the reasons for causing and effecting the
demotion , the court of appeals agreed with the Board that
if the supervisor's "demotion was an unfair labor practice
and if `the employees should regard [his] demotion as
symbolic of what would happen to them if they, in the
exercise of their statutory rights , were to oppose [the
incumbent union president ] and his ruling group,' the
Board has jurisdiction ." 343 F .2d 103 , 111-112 (C.A. 7,
1965). Moreover, the Board has held that the discharge of
an alleged supervisor violated Section 8(a)(1) because
"motivated by a desire to discourage union activities in
general among the employees , rather than a concern that
she, as an asserted supervisor, had signed a union card."
Heck's Inc., 170 NLRB 178, 184 , fn. 8.41 See also Fairview
Nursing Home, 202 NLRB 318, fn . 2, fn. 34. Further, the
Board has held a supervisor 's discharge to violate Section
8(axl) because he "spoke for the striking body shop
employees and, by his discharge , Respondent effectuated
its decision to close the body shop operation because of the
employees ' union adherence. . . . [His] discharge ... was
,an integral part of a pattern of conduct aimed at
penalizing employees for their union activities .' " Krebs
and King Toyota, Inc., 197 NLRB 462 , fn. 4. Moreover, in
finding that an employer did not violate Section 8(a)(1) by
discharging a supervisor for union activity and sending
rank-and-file employees a letter about the matter, the
Board relied on the fact that the letter gave the employees
assurance against reprisal , and that they had no reasonable
ground to fear a similar fate if they engaged in union
activity. Texas Gulf Sulphur Co., 163 NLRB 88 , 93-94.
The reasoning of the foregoing cases , taken as a whole,
leads me to conclude that the discharge of or other
reprisals directed against a supervisor for engaging in
conduct protected in an employee violates Section 8(a)(1)
of the Act if (1) under all the circumstances, such
punishment tends to lead rank-and-file employees reason-
ably to fear that the employer will punish them for
engaging in like conduct ; and (2) the employer has failed to
take reasonable and timely steps to reassure his rank-and-
file employees that they will not be punished for such
conduct . This second requirement enables employers who
have made such efforts at reassurance to discipline
supervisors for Section 7-type activity even though the fact
of the punishment and (perhaps ) circumstances beyond the
employer's control nonetheless tended to put the employ-
ees in fear . In my view, such an approach effects a proper
accommodation between employee rights and the congres-
sional policy withholding from supervisors the protection
afforded by Section 7 .42
On the basis of the foregoing principles , I conclude that
41 The court of appeals enforced the Board's order as to her on the
ground that she was a rank -and-file employee, without reaching the ground
adverted to in the text . Food Store Employees Union, Local 347, Amalgamat-
ed Meat Cutters v. N.LR. B., 418 F .2d 1177, 1181 (C.A.D.C., 1%9).
42 In so concluding, I am aware that a number of cases have used
language which might well point to an absolute privilege by employers to
discharge supervisors for concerted or union activity and to enjoy the
benefits of any consequent chilling effect on rank-and-filers' like activity.
Among cases using language suggestive of this result are: Oil City
Brassworks, supra, 357 F.2d at 468, 470; United Painting Contractors, 184
THEATRE NOW, INC.
supervisor Doucette, Sr.'s-discharge because of his partici-
pation in the Union's processing of employee Weeden's
grievance violated Section 8(a)(1) because it would tend to
instill in rank-and-file employees the fear that they too
would be discharged or otherwise punished if they engaged
in like conduct. There is no question that such conduct by
rank-and-file employees constitutes protected union and
concerted activity for which employees may not lawfully
be discharged 43 Nonetheless , management frankly told
Doucette, Sr., that he was being discharged for such
activity, although it must have anticipated that he would at
the very least relay this to employee Doucette, Jr., who was
his son and the reasons for whose own discharge were
interwoven with those for his father's.
Moreover, management made no effort whatever to
advise any of the rank-and-file employees that Doucette,
Sr., had been subjected to discharge for this reason solely
because of his supervisory status , and that management
recognized rank -and-file employees ' right to engage in
similar conduct without fear of employer reprisal. Rather,
management 's concomitant discharge of Doucette, Jr., a
statutory employee, both underlined the threat advanced
by his supervisory father's discharge and blurred any
distinction between their respective positions . Indeed, the
record shows that management did not subjectively regard
Doucette, Sr., as having any status other than that of a
rank-and-file employee. The management representatives
at the grievance meetings tacitly accepted him as a
representative of the Union and of employee Weeden.
General Manager Davis testified that after learning about
Doucette, Sr.'s participation in the first Weeden grievance
meeting, Davis in effect told Doucette, Sr., that he did not
act improperly in advising Weeden of his rights. The
Union's representative testified that he had brought
Doucette, Sr., to the grievance meeting to act as "steward."
Each of the Doucettes is a member of the same union
local; and was party to the same form contract, which is
the only contract "recognized" by the Union, was drafted
by the Union, contains various provisions purporting to
protect the Doucettes ' union membership rights and the
Union's own interests , and includes a provision for an
arbitrator appointed by the Union. Furthermore, Respon-
dents' counsel conceded at the hearing that Doucette, Sr.,
was an employee within the meaning of the Act. It was
only after I raised a question during the hearing as to his
status that any of the parties concerned became aware of
the possibility that Doucette, Sr., was a supervisor rather
than an employee. Accordingly, so far as both the impact
NLRB 159,affd . 441 F.2d 266 (C.A. 4, 1971); Texas Co, 93 NLRB 1358,
1369-70 (dissenting opinion), enforcement dented 198 F.2d 540, 544 (C.A.
5); El Canonazo Supermarket, Inc., 171 NLRB 83, 89-91; N L.R.B. v.
Fullerton Publishing Co., 283 F.2d 545, 550 (C.A. 9, 1960); Sopps, Inc., 175
NLRB 296, 297, 305-306 ; National Freight, Inc., 154 NLRB 621, 622.
However, in none of these cases does it appear that the Board or the court
was asked to evaluate the propriety of bringing into play the balancing
principles set forth in the text . Further, the law as it has thus evolved does
not render the discipline of a supervisor for union or concerted activity
unlawful , without more ; but the facts recited in most if not all of these
opinions fail to suggest the existence of considerations , other than the mere
fact of the discipline, which would tend to create reasonable employee fear.
43 Morrison-Knudsen, Inc., 149 NLRB 1577, enfd. 358 F.2d 411 (C.A. 9,
1966); Interboro Contractors, Inc., 157 NLRB 1295, enfd. 388 F.2d 495 (C.A.
4 1967); United Engineering Ca, 163 NLRB 81, enfd 401 F.2d 910 (C.A. 9,
1%8), cert . denied 393 U .S. 1084 (1969).
539
of and the motives for the discharges are concerned, this
case is in reality precisely the same as if Doucette, Sr., had
been an ordinary employee.44
For the foregoing reasons, I conclude that the discharge
of Doucette, Sr., because of his activity in connection with
the Weeden grievance violated Section 8(a)(1) of the Act.
However, because of Doucette, Sr.'s supervisory status, I
conclude that his discharge did not violate Section 8(a)(3).
Fairview Nursing Home, supra, 202 NLRB 318.
(3) Doucette, Jr.'s discharge
I have found that Doucette, Jr., was discharged because
of the union activity of his father, Doucette, Sr. As counsel
for the General Counsel points out, a number of cases have
found discharges to be unlawful where motivated by the
union activity of relatives. Some of these cases appear to
find the discharge unlawful on the ground that the union
activity of a particular individual led the employer to
suspect that his relatives were similarly active or were
receptive to organizational efforts, and to discharge them
on that suspicion.45 However, on the facts of this case, it
would be speculative to suppose that management dis-
charged Doucette, Jr., because his kinship with his father
led management to fear that, like his father, he would assist
employees in processing grievances if the occasion arose.
Other cases find the discharge unlawful on the theory that
the discharge of one was a means of punishing the other
for his own union activity.46 However, this theory assumes
that the latter's union activity was protected by Section 7,
whereas Doucette, Sr.'s union activity was not so protect-
ed.
Guidance here, however, is provided by Golub Brothers,
supra, 140 NLRB at 127-128, and by Consolidated Foods,
supra 165 NLRB at 959. Both these cases held that the
discharge of a supervisor by reason of the union activities
of the supervisor's employee relative violated the Act
because such a discharge could lead the employees
reasonably to fear that they would be discharged if they
continued to support the union. A fortiori, such a coercive
result would obtain where, as here, the supervisor's union
activities led not only to his own discharge, but to the
discharge of his employee relative as well.
Accordingly, I conclude that the discharge of employee
Doucette, Jr. because of the union activities of supervisor
Doucette, Sr., violated Section 8(a)(1) and (3) of the Act.
44 It is true that Doucette , Sr.'s supervisory status nught render his
employer answerable for an unfair labor practice based on certain kinds of
union activity which would be protected in an employee . However, I am
satisfied that Sec . 8(a)(2) does not require an employer to bar a firstline
supervisor from the degree of union activity engaged in by Doucette, Sr. See
National Gypsum Co., 139 NLRB 916, 920-921. Moreover, in the instant
case management did not refuse to discuss the grievance so long as the
conference included Doucette , Sr.; rather, management did discuss the
grievance and then discharged him for the grievance activity in which it had
previously acquiesced.
45 See, e.g., Everett L. Harper, 169 NLRB 320, 325; Washington Forge
Inc., 188 NLRB 90, 97.
4e See, e.g., WIPO, Inc, 199 NLRB 649; Owens-Corning Fiberglass Corp.,
146 NLRB 1492, 1495; Marathon Electric Mfg. Corp., 106 NLRB 1171,
1179-80, affd . 223 F.2d 338 (C.A.D.C.), cert. denied 350 U.S. 981 (1956).
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) The statement of the reasons for the
Doucettes' discharge
I have found that Supervisor Doucette, Sr.'s discharge
for union activity, and employee Doucette, Jr.'s discharge
because of their kinship, violated the Act because their
discharge could lead the employees reasonably to fear that
they would be discharged if they engaged in like conduct.
From this it follows that General Manager Davis'
statement that these were the reasons for the discharges,
made to Supervisor Doucette, Sr. but under circumstances
which would lead Davis to anticipate that the explanation
would be relayed to at least employee Doucette, Jr.,
violated Section 8(a)(1) because that statement expressed
in words the same threat which the discharges expressed in
conduct.
Under these circumstances, Respondents' admission that
Respondent Theatre was an agent of Respondent Grease
amounts to an admission that Davis was an agent of
Respondent Theatre. Accordingly, Respondent Theatre
had and exercised, through Davis, the power to hire and
fire the Doucettes and to promise and give them wage
increases.50 Further, the unfair labor practices herein were
committed in the exercise of this discharge power, and
were motivated by Doucette, Sr.'s activity in connection
with a grievance settled (through Davis) by Respondent
Theatre. Accordingly, I conclude that Respondent Theatre
occupied joint employer status with Respondent Grease
for purposes of this case, and is answerable for the unfair
labor practices found.51
CONCLUSIONS OF LAW
c. The extent to which Respondent Theatre is
answerable for the unfair labor practices found
Respondents conceded at the hearing and in their answer
to the amended complaint that Respondent Grease
occupied employer status with respect to the Doucettes
and is answerable for any unfair labor practices found
herein. Moreover, Respondents conceded at the hearing, as
did Respondent Theatre in the answer to the original
complaint, that RespondentTheatre is Respondent Grease's
agent. Section 2(2) of the Act defines the term
"employer" as including "any person acting as an agent of
an employer, directly or indirectly"; while Section 8(a)
states that it shall be an unfair labor practice for an
"employer" to engage in the conduct therein described.
Accordingly, Respondent Theatre's conceded status as
Respondent Grease's agent is sufficient to warrant its
inclusion in the cease-and-desist and notice-posting parts
of the order herein.47
However, Respondents denied in their answer to the
amended complaint the allegation therein that they
occupied joint-employer status with respect to the Dou-
cettes . While neither of the post-hearing briefs touches on
the issue , its resolution may affect both the breadth of the
order against Respondent Theatre48 and whether it is to be
named in the backpay order.49
I conclude from the record as a whole that Respondent
Theatre occupied (with Respondent Grease) joint employ-
er status with respect to the Doucettes. Davis, who was
admitted in the complaint to be an agent of Respondent
Grease, was employed by (and, indeed, an officer of and
stockholder in) Respondent Theatre; and was (so far as the
record shows) the only person connected with Respondent
Theatre who provided any services to Respondent Grease.
41 Marriello Fabrics, Inc., 149 NLRB 333, 346; Cache Valley Dairy
Association, 103 NLRB 280.
48 Omaha Neon Sign Co., 170 NLRB 1385, 1391; West Coast Casket Co.,
192 NLRB 624, In. 2, modified 469 F.2d 871 (C.A. 9, 1972).
49 Kartarik, Inc., I I 1 NLRB 630, fn. 2, enfd . 227 F.2d 190 (C.A. 8, 1955);
cf. Senco, Inc., 177 NLRB 882, 895.
50 While I accept Davis' testimony that he signed Doucette, Jr.'s contract
(naming Respondent Theatre as employer) through oversight , Doucette,
Sr.'s action in making the entry after discussing at least his own employment
with Davis , and Doucette , Sr.'s testimony that he "assumed" Respondent
Theatre was the employer, evidence that to applicants, Respondent Theatre
possessed the indicia of an employer . Moreover , Doucette, Sr.'s action in
filing the original charge herein against Respondent Theatre alone (and not
1. Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent The Grease Company is an employer
within the meaning of Section 2(2) of the Act.
3. For purposes of this case, Respondent Theatre Now,
Inc., occupies joint employer status with and is an agent of
Respondent The Grease Company, and is an employer
within the meaning of Section 2(2) of the Act.
4. International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the United
States and Canada and Local 381 of that organization are
both labor organizations within the meaning of Section
2(5) of the Act.
5. Joseph F. Doucette, Sr., is a supervisor within the
meaning of Section 2(11) of the Act, and is not an
employee within the meaning of Section 2(3).
6. By discharging Joseph F. Doucette, Sr., under
circumstances constituting interference with, restraint of,
and coercion of employees in the exercise of their statutory
rights, Respondents have violated Section 8(a)(1) of the
Act.
7. By discharging Joseph F. Doucette, Jr., Respondents
have interfered with, restrained, and coerced employees in
the exercise of their statutory rights, in violation of Section
8(a)(1) of the Act; and have discriminated in regard to
tenure of employment to discourage membership in a labor
organization, in violation of Section 8(a)(3).
8. By stating the reasons for such unlawful discharges,
under circumstances where such statements were likely to
be relayed to employees, Respondents have violated
Section 8(a)(1) of the Act.
9. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6)(7) of the Act.
naming Respondent Grease until after Respondent Theatre disclaimed
employer status in the answer to the original complaint ), together with
Davis' admission that laid -off employees seeking unemployment compensa-
tion frequently regarded Respondent Theatre rather than Respondent
Grease as their employer, indicates that Respondent Theatre also appeared
to employees who had actually worked in the "Grease " company as
constituting their employer.
51 West Texas Utilities Co., 108 NLRB 407,413-414, enfd. 218 F.2d 824
(C.A. 5), cert. denied 349 U.S. 953; Basic Management, Inc., 104 NLRB
1038, 1039-41; Fox Midwest Amusement Corp., 98 NLRB 699, 718; May
Dept. Stores Co., 59 NLRB 976, 986-987, 992, 1043-45, modified 154 F.2d
533 (C.A. 8), cert. denied 329 U.S. 725.
THEATRE NOW, INC.
10. Respondents' discharge of Joseph F. Doucette, Sr.,
did not violate Section 8(a)(3) of the Act.
THE REMEDY
Having found- that Respondents have violated the Act in
certain respects, I shall recommend that they cease and
desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act. While I see
no reason to anticipate that Respondent Theatre will
engage in similar unfair labor practices in connection with
shows managed by its personnel other than Davis, the
absence of credible evidence that the unlawful discharges
herein were decided on by anyone connected with
Respondent Grease other than Davis leads me to antici-
pate that Davis may engage in like unlawful conduct when
managing shows other than "Grease." Accordingly, I shall
recommend that Respondent Theatre cease and desist
from like or related conduct in connection with shows
other than "Grease," where Davis is employed in connec-
tion with those shows.
I shall also recommend that Respondent Grease offer
52 This division of liability may be academic herein, because Respon-
dents' counsel stated on the record that Respondent Grease had undertaken
to hold Respondent Theatre harmless and is financially capable of doing so.
However, the inclusion of Respondent Theatre in the backpay order does
541
reinstatement to the Doucettes, and that Respondent
Theatre (which has no power to make such an offer over
Respondent Grease's objection) request Respondent
Grease in writing, with a copy to the Doucettes, to make
such an offer. The Doucettes shall be made whole for any
loss of earnings they may have suffered by reason of their
unlawful discharge, by payment to them of a sum of
money equal to that which they normally would have
earned from the date of discharge to the date of a valid
offer of reinstatement less their net earnings during this
period, to be computed in the manner described in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716. Respondents shall bejointly
and severally liable for the backpay which is attributable to
the period prior to Respondent Theatre's request that
Respondent Grease reinstate the Doucettes, plus 5 days
thereafter. Respondent Grease shall be solely answerable
for any additional backpay.52 I shall also recommend that
Respondents post appropriate notices.
[Recommended Order omitted from publication.]
afford the Doucettes some additional financial security. Moreover, should
this case eventually be considered by the Board, it may constitute a
precedent for a case involving a show less successful than "Grease."