Theatre Now, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1975

221 N.L.R.B. 1110 (N.L.R.B. 1975)

1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Theatre Now, Inc. and The Grease Company and
Joseph F. Doucette , Sr. Case 31-CA-3825
December 10, 1975
SUPPLEMENTAL DECISION AND
ORDER ON REMAND
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as ' amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondents comply with the
Board's Order issued on June 13, 1974.
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 30, 1973, Administrative Law Judge
Nancy M. Sherman issued a Decision in this
proceeding. On June 13, 1974, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding i finding that Respondent
had engaged in certain unfair labor practices in
violation of Section,8(a)(1) and (3) of the National
Labor Relations Act, as amended, and ordering
Respondent to take specific action to remedy such
unfair labor practices.
Thereafter, on October 29, 1974, the Board applied
to the United States Court of Appeals for the Second
Circuit for enforcement of its Order. Subsequently,
Respondent filed a motion to remand this action to
the National Labor Relations Board for the purpose
of taking additional evidence to be made part of the
record. On December 3, 1974, the court granted this
motion.
On March 18, 1975, the Board ordered that the
record in this proceeding be reopened, that a further
hearing be held before Administrative Law Judge
Nancy M. Sherman limited to the matters raised by
the testimony of Frank Marino and Donald Antonel-
li, that the proceeding be remanded to the Regional
Director for Region 31 for the purpose of arranging
such further hearing, that the Regional Director be
authorized to issue a notice thereof, and that, upon
the conclusion of such further hearing, the Adminis-
trative Law Judge shall prepare and serve on the
parties a Supplemental Decision containing findings
of fact upon the evidence received, conclusions of
law, and recommendations.
On September 5, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, Respon-
dent filed exceptions and a supporting brief.
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, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
221 NLRB No. 182
' 211 NLRB 525
2 The Respondent has excepted to certain'credibihty findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (C A.'3, 1951) We have
carefully examined the record and find no basis for reversing her findings.
SUPPLEMENTAL DECISION
1. PROCEDURAL STATEMENT
On November 30, 1973, I issued my first Decision in this
case. I found, inter alia, (1) that Joseph F. Doucette, Sr.
(Doucette or Doucette, Sr.) was discharged because of his
participation in the processing in Cincinnati, Ohio, of a
grievance by International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the
United States and Canada (the Union) on behalf of
employee Weeden; (2) that Joseph F. Doucette, Jr.
(Doucette, Jr.) was discharged because he was Doucette,
Sr.'s son; (3) that Doucette, Sr., was a supervisor within the
meaning of Section 2(11) of the National Labor Relations
Act, as amended (the Act); (4) that Doucette, Sr.'s
discharge violated Section 8(a)(1) of the Act; (5) that
Doucette, Jr.'s discharge violated Section 8(a)(1) and (3);
(6) that Section 8(a)(l) was violated when Doucette, Sr.,
was told that the Doucettes were discharged for the reasons
found, because that statement was made under circum-
stances which would lead management to anticipate that it
would be relayed to employee Doucette, Jr.; and (7) that
Respondents occupied joint-employer status for purposes
of this case.
Thereafter, Respondents and counsel for the General
Counsel filed exceptions, some of which are summarized
below. In addition, Respondents filed a motion (dated
December 18, 1973) to reopen the record to receive the
testimony of Frank Marino, Donald Antonelli, Patricia
Birch, and Tom Moore. Respondents' counsel averred,
inter alias
2. ... Respondents seek to reopen the record with
respect to the finding that Joseph F. Doucette, Sr. was
discharged for participating in union grievance meet-
ings in violation of Section 8(a)(1) of the Act, which
resulted in the finding of other violations as well.
3. At the hearing, respondents produced four
witnesses who testified that the decision to discharge
Doucette was made prior to the time Doucette engaged
in the alleged protected activity. However, Judge
Sherman rejected this uncontroverted testimony sub-
stantially because respondents failed to call other
witnesses. Judge Sherman, on the basis of this failure to
THEATRE NOW, INC.
call additional witnesses, inferred that had these
witnesses been called they would have testified adverse-
ly to the respondents and made numerous credibility
findings based on this inference. (See, e.g., footnotes 10,
11, 13, 14, 16, 17, 20, 21, and 22 of the decision).
4. The witnesses, company manager Donald Anto-
nelli, production stage manager Frank Marino, director
Tom Moore and choreographer Patricia Birch, were
not called to testify because their testimony was merely
cumulative and repetitive. If'the record was reopened
and they were permitted to testify, Antonelli, Marino,
Moore and Miss Birch would all state that they were
informed of the decision to terminate Doucette before
May 29, 1973, when Doucette participated in the union
grievance meetings.
5. Since it is obvious that the Administrative Law
Judge's decision is largely dependent on the inference
that these witnesses would testify adversely to respon-
dents, it is only equitable and dust that the record be
reopened to permit this testimony to be heard.'
On June 13, 1974, the Board issued its Decision, 211
NLRB 525. The Board stated, inter aka, that Respondents'
"motion to reopen the record, in our opinion, raises no
material or substantial -issues relevant to the proceedings
herein. Accordingly, we hereby deny'such motion" (fn. 1).
The Board rejected my finding (3), above, that Doucette,
Sr., was a supervisor, and, therefore, modified my finding
(4), above, by holding that Doucette, Sr.'s discharge
violated both Section 8(a)(1) and (3). The Board adopted
the rest of my findings summarized above.
Thereafter, the Board filed a petition to enforce the
Board's order in the United States Court of Appeals for the
Second Circuit. Respondents, thereupon applied to that
court for an order that additional evidence be taken before
the Board . Respondents averred, inter alia:
2. On November 30, 1973, Judge Sherman issued a
decision finding that the respondents violated Section
8(a)(l) and (3) of the Act. Specifically, Judge Sherman
concluded that Joseph F. Doucette, Sr., was discharged
for participating in union grievance meetings . Based on
this finding alone Judge Sherman concluded that
respondents violated Sections 8(a)(1) and (3) of the Act.
3. At the hearing, respondents produced four
witnesses who testified that the decision to discharge
Doucette was made prior to the time Doucette engaged
in the alleged protected activity. However, Judge
Sherman rejected this uncontroverted testimony sub-
stantially because respondents failed to call Donald
Antonelli and Frank Marano as witnesses. Judge
Sherman, on the basis of this failure to call these
additional witnesses , inferred that had these witnesses
been called they would have testified adversely to the
respondents and made numerous credibility findings
based on this inference. (See, e.g., footnotes 10, 11, 13,
14, 16, 17, 20, 21 and 22 of the decision).
, Moore's name was not mentioned in my Decision . My Decision further
stated (fn. 9), "In view of the statement by Respondents ' counsel that Miss
5. If further evidence was allowed to be taken, the
witnesses Antonelli and Marino, as their attached
affidavits demonstrate, would testify that they were
informed of the decision to terminate Doucette, Sr.,
before May 29, 1973, the date Doucette, Sr., participat;
ed in the union grievance meetings and that his
participation- in those union grievance meetings had
nothing to do with his discharge.
6. Antonelli and Marino were not called to testify
because their testimony was merely cumulative and
repetitive, and because of the expense and difficulty in
bringing them to New York from Chicago where, the
show was running , as the affidavit of Joel Arnold, the
attorney who tried the case, states.
7. Since the decision of the Board is based on the
credibility resolutions of the Administrative Law Judge
and since it is obvious that the Administrative Law
Judge's credibility resolutions and decision [are] largely
dependent on the inference that these witnesses would
testify adversely to respondents, it is only equitable and
just that an order be issued to permit the testimony of
Antonelli and Marino be heard before the Board and
be made a part of the record.
Respondents' motion to the court of appeals did not
refer to Moore and Birch . Respondents attached to that
motion purported, affidavits by Antonelli and Marino, The
purported Antonelli affidavit, which is undated and bears
the, seal of Respondents' counsel, Joel Arnold, as notary
public, stated, inter alia, "I knew, prior to the Cincinnati
incident with `Weeden,' that Doucette , Sr. was to be
discharged . 1 also know of my own knowledge that the
Cincinnati incident had absolutely nothing whatsoever to
do with Doucette's discharge." The purported Marino
affidavit (dated November 14, 1974, after the Board filed
its petition for enforcement) stated , inter alia, "I was told
by [producer Kenneth] Waissman in Detroit [pnor 'to
Cincinnati ] that Doucette was going to be discharged and
I knew for a fact that the `Weeden' incident had
nothing whatsoever to do with Doucette's discharge." Also
attached was an affidavit by Joel Arnold, Respondents'
sole trial counsel at the initial hearing , which affidavit was
likewise dated November 14, 1974 , and stated, inter alia;
At [the September 1973 ] hearing I offered evidence
from Kenneth Waissman [producer], Maxine Fox
[general manager] , Edward H. Davis, and [production
supervisor] Tommy Smith, to the fact that the decision
to discharge Mr. Doucette was arrived at by , manage-
ment long before the incident in Cincinnati in which he
interceded on behalf of a fellow employee [sic].
At the time of the hearing [in New York, New York],
Mr. Frank Marino and Mr. Donald Antonelli were
employed by The Grease Company as Production
Stage Manager and Company Manager, respectively, in
Chicago,! Illinois and I felt that their testimony which
was merely cumulative and repetitive, was not neces-
sary in view of the great expense and difficulty of
Birch is an independent entrepreneur , I draw no inference from her failure
to testify "
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bringing both of them in from Chicago while the show
was running.
Board counsel filed an opposition to this motion, which,
however, was granted by the court of appeals on December
3, 1974. Thereafter, on March 18, 1975, the Board
reopened the record, directed a hearing before me "limited
to the matters raised by Marino's andAntonelli's testimo-
ny," and ordered me to prepare a Supplemental Decision
containing findings of fact upon the evidence received,
conclusions of law, and recommendations.2
The hearing was held before me on May 2, 1975. Upon
the entire reco'rd,3 including the record of the October 1973
hearing and the demeanor of all the witnesses who testified
in October 1973 and May 1975, and after due considera-
tion of the briefs filed by Respondents and counsel for the
General Counsel, I make the following:
II. FINDINGS OF FACT DERIVED IN WHOLE OR IN
PART FROM THE EVIDENCE RECEIVED IN MAY 1975
A. Facts Allegedly Relevant to the Motivation for
the Discharges
At the first hearing before me, Respondents' witnesses
Davis, the Waissmans, and to some extent Smith testified
that the decision to discharge Doucette, Sr., was made by
the Waissmans, between April 18 and 23, 1973,4 before
Doucette, Sr., engaged in the grievance activity which,
according to the General Counsel, motivated his discharge.
According to these witnesses, this discharge decision was
motivated by the poor condition of the show in Toronto on
April 18. Similarly, Respondents' November 1973 brief to
me alleged that the discharge 'decision was made on April
18, and at least partly for this reason (p. 3), and their brief
to the Board alleged that the decision was made for this
reason on April 23 in Toronto (p.'6). I discredited this
testimony, and found instead that the discharge decision
was made by Davis after Doucette's participation in the
grievance proceeding on May 29 and,30.5
2 In view of the limited nature of the remand, I believe it beyond my
province formally to recommend an adjustment of paragraphs A, 1,(c) and
B, l,(c) of the Board's order, the first two paragraphs of the notice, and my
eighth Conclusion of Law, to reflect more fully the Board's finding that, in
reciting to Doucette, Sr , the, reasons for the Doucettes' discharge, General
Manager Davis was addressing an employee.
However, notwithstanding such procedural constraints, I would like to
note the following error in my original Decision fn 41 inaccurately
describes the court's holding in Food Store Employees Union, Local 347,
Amalgamated Meat Cutters [Necks, Inc J v N LR B.; 418 F.2d 1177, 1181
(C A.D.C., 1969) The court said
As for White, the Board's conclusion that she was not a "supervisor"
seems , amply supported by the record-In any event . the Company
never indicated that it was limiting its coercive tactics to supervisors,
and it in fact knew that White was a union member. The Company's
3
conduct [in discharging her ] can therefore be viewed as a violation of
[Section] 8(a)(1) even if one assumes employee White was a front-line
supervisor, simply because of the Company's awareness that she would
most likely pass on the threats made to her to her fellow union
employees with whom she had a close working relationship.
Respondents' unopposed request that the record be corrected in certain
respects is hereby granted, except for the requested change on p. 449 In
addition , p 391, 1 1, is corrected by substituting the word "after" for the
1. Marino's testimony
a. Events in connection with the Toronto Show
(1) The Edsel panel
In the first hearing before me, Producer Maxine Fox and
Production Supervisor Thomas Smith testified that, at the
April 18 Toronto performance, a particular panel, referred
to in the record as the "Edsel panel," was not being used.
Miss Fox further testified that "there were panels not
hung"; but the only allegedly unhung panel she specifically
described was the EdseL panel. Miss,Fox testified (with
some corroboration from Smith, from Waissman's account
of her subsequent report to him, and from Davis' account
of an undated report by the Waissmans to him) that
Marino, who had notjoined the show until the Washington
run, told her 'that "He was told by Joe Doucette that this
was the way he was given permission to hang it." In my
first Decision, I discredited Smith's and Miss Fox's
testimony that a panel or panels were missing without
proper authorization. I relied in large part on Respondents'
failure to call Marino as a witness and my inference that no
panel had been missing in the Washington run - an
inference which I based on the Waissmans' failure to
testify 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 (fn. 10). Respondents excepted to my
discrediting of Smith's and Miss Fox's testimony regarding
the Edsel panel (exception 4), and to my drawing an
adverse inference from Marino's failure to testify. Respon-
dents further averred, in their motions to the Board and the
court of appeals, that Marino's testimony would be
"cumulative and repetitive."
Marino did not corroborate Miss Fox's testimony that
"panels" were missing from the Toronto show. As to the
Edsel panel, he credibly testified that it was used in both
Washington and Cleveland, where the show went between
the Washington and the Toronto run. Marino further
credibly testified that, upon returning from Toronto to
perform "advance work," Doucette told Marino that the
word "before."
4 All dates hereinafter are 1973 unless otherwise stated.
5 In this connection, I found, inter alia, that Davis "testified that he had
never told Doucette that the producers were dissatisfied with his work" (fn.
23). Respondents excepted to this finding on the ground that I was "using
testimony regarding occurrences in April" (exception 5). Davis testified as
follows.
Q [By Mr Pollack] Did you, in April of 1973, give Mr. Doucette
a warning that the producers of the show wanted to fire him if he didn't
improve the quality of his work or anything to that effect?
'A I don't recall doing that
Q. In other words, you never did that, you didn't tell him they
were dissatisfied with his work?
A No They told him there. They were on the spot and they were
telling him of their dissatisfaction -
Q You weren't present at that time9
A. I was in New York They were in Toronto.
Q So you don't know of your own knowledge whether he was ever
told that?
A. That he was in danger of being fired?
Q. Yes
A No [Emphasis supplied.]
THEATRE NOW, INC. 1113
layout of the Toronto theatre might create a problem with
the Edsel panel, which in the course of the performance
flew in and a minute or so later flew out; that the panel was
actually hung in Toronto to see if it could work; that it was
badly warped; and that after watching it in Toronto
Marino decided not to use it there because it was
"dangerous" to use, "used to catch a lot on a large pipe,"
and "could knock a light off." Marino further credibly
testified that he explained to Smith during his Toronto visit
why the Edsel panel was not being used. I infer from the
probabilities of the situation that Smith relayed this
explanation to Miss Fox, and that Smith and/or Miss Fox
relayed this explanation to Waissman. There is no evidence
that the Edsel panel was ever used in Toronto.
To the extent inconsistent with the foregoing credible
testimony of Marino, I modify my previous conclusion that
Doucette should be credited in testifying that, with
exceptions not material here, the entire show was used at
all times, and he never had a conversation with Marino
with respect to cutting some of the sets and scenery out of
the show.
However, Marino's credible testimony confirms my
finding that Miss Fox was not telling the truth when she
said "panels" were "not hung," or in testifying that, when
Marino was asked why the Edsel panel was used, he
replied that Doucette had-said he had previously been
given permission to omit a missing panel or panels - an
allegation by Doucette which, if he had made it, would
have been a conscious misrepresentation. For similar
reasons, Marino's credible testimony impeaches the previ-
ously summarized testimony of Respondents' other wit-
nesses in connection with such alleged misrepresentations
by Doucette. Further, neither Smith nor Miss Fox adverted
to Marino's statement that far from misrepresenting to
Marino the basis for failing to use the Edsel panel,
Doucette had hung the panel in Toronto, and Marino had
watched the panel operate there before accepting Dou-
cette's recommendation that it,not be used in that theatre.
These testimonial efforts by Smith and Miss Fox to
exaggerate (to say the least of it) Doucette's culpability in
connection with the deficiencies in the Toronto show, and
to minimize Marino's rote, support my finding that these
defects were not the real reason for Doucette's discharge.
(2) Other alleged defects in the Toronto show
Marino credibly testified, in accordance with my finding
in my original Decision, that he was responsible for giving
the cues which controlled the speed with which scenery
flew in and out.
Smith testified that when he drew Marino's attention to
the missing black masking in Toronto, Marino replied
"that he was given the impression by the carpenter that it
was okay not to, use them." In my original Decision I
discredited this testimony on the ground, inter aka, of
Marino's failure to testify (fn. 13). Respondents excepted
to this finding (exception 4) and alleged in their motions to
the Board and the court of appeals that Marino's testimony
6 This last finding is based on Marino's testimony on cross-examination
that "probably" the masking would have had to be repaired in Toronto to
be hung the way Smith wanted it. Smith did not testify that the missing
masking was hung in Toronto. I believe that Marino was mistaken in
would be "cumulative and repetitive." I adhere, to my
previous credibility finding. Marino credibly testified that,
when Smith mentioned the missing masking,` Manno said
that it was missing because of time problems and that he
thought the scenery looked fine without the missing
masking. As found in my initial Decision, Smith later
acknowledged the time problem to Doucette. The missing
masking was not hung in Toronto .6
Marino credibly testified, substantially in accordance
with the findings in my original Decision, that the
scratched paint on the props and platforms in Toronto was
Marino's responsibility and that Doucette could not have
corrected on the road the remaining defects in the Toronto
show which fell within Doucette's jurisdiction - namely,
the cracked panel (which Marino referred to as the "park
flat") and the palm (or "hop") trees.? Manno further
credibly testified that he told Smith that Doucette was not
at fault in connection with the park flat and the palm trees,
a message which I infer (from the probabilities of the
situation) was relayed by Smith to Miss Fox and by one of
them to Waissman. Manno'further credibly testified that
"all the things that they complained about that they felt
were Mr. Doucette's responsibility, I didn't agree with."
Marino credibly testified that when he explained to
Smith the reasons why Marino felt Doucette was not
responsible for the cracked panel, the palm trees, and the
missing masking, Smith replied, ". . . well, we have got to
have it taken care of regardless." 8 Marino further credibly
testified that, although he felt responsible for and upset
about the show's deficiencies, Smith told him not to be
upset, "they didn't necessarily hold it against [Marino]
because he was too new and still learning the show." This
testimony and Respondents' contention that the discharge
decision was made by Miss Fox and Waissman limit the
significance of Marino's testimony, that he regarded
Doucette as free from blame for the April 18 show and told
this to Smith. However, such testimony does cast some
doubt on the sincerity of Miss Fox's alleged belief that
Doucette was sufficiently responsible for such defects to
warrant his discharge. The veracity of Respondents'
witnesses regarding the intra-management conferences and
decisions between April 18 and 23 is further drawn, into
question by the fact that Miss Fox and Smith did not
testify about Marino's tendered defenses of Doucette but,
on the contrary, falsely alleged that Marino, attributed
some of the defects to misrepresentations by Doucette.
(3) Marino's April representations to top
management about his relationship with, Doucette
My original Decision found that between April 18 and
23 Marino told Smith, Miss Fox, and Davis that Marino
was having some trouble in getting along with Doucette. I
based this finding on Smith's, Miss Fox's, and Davis'
testimony, but found that they were somewhat overstating
Marino's complaints. In so finding, I relied on, inter alia,
Marino's failure to testify. Respondents excepted to such
reliance (exception 4), contended that I should have
testifying, on direct examination , that this masking was in fact hung there.
7 These were decorations used at a dance or "hop."
8 This statement led Marino ' to conclude that Smith and Miss Fox did
not accept Marino's explanations '
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unreservedly credited its witnesses' testimony in this
respect, and asserted in Respondents' motion's to the Board
and the court of appeals that Marino's testimony would be
"cumulative and repetitive."
When asked on direct examination whether Marino had
had any "problems" with Doucette, Sr., before April 18,
Marino credibly replied, "No, nothing that I can definitely
say this is a problem, that is a problem." Marino further
credibly testified, "What [Smith and I] discussed in
Toronto wasn't so much problems that I had. It was
feelings that I had and the attitude that I had about, what
[Doucette]. was like." I adhere to my finding summarized
in the first two sentences of the preceding paragraph .9
b. Events occurring after the alleged April 18-23
discharge decision-
Marino testified that after the Toronto run, which
terminated on April 21, he reached the conclusion that
Doucette, Sr., was not a good carpenter, that he was "kind
of lazy," and that he did not have an adequate sense of
responsibility toward his work. Marino went on to testify
that, during a conversation which occurred after May 14
and a few days before May 26, he told the Waissmans that
he was dissatisfied with Doucette,. Sr., and asked that he be
replaced "'right away." According to Marino, he did not
tell them that this request was based on the Edsel panel
matter, and Marino "was not referring back, necessarily to
Toronto." In 'addition, Marino testified that, as nearly as
he could recall ,, Waissman said that "he would look into it
and see toy it,-. . take care of it;" that the Waissmans were
"pacifying [Marino's] anger;" that Waissman',never told
him any specific time that Doucette,' Sr., would be
discharged; but that Marino "understood" from this
conversation - that Doucette would be discharged. At the
first, hearing, Waissman testified that during this conversa-
tion (which he credibly testified as having occurred on
May 17), after Marino expressed dissatisfaction' with
Doucette, Sr., Waissman said "that we had already decided
after that Toronto incident that [Doucette, St.] vas going
to be replaced and that [Davis] was going to pick a time so
that problem was at least for the time being on the shelf
and being resolved." Waissman further testified that when
he mentioned the "unforgivable" cuts in the Toronto show,
Marino said that he had been told by Doucette that "this is
the way it had been done since Boston," the first city
visited by the road show. In my initial Decision, I
discredited - Waissman's testimony as to the content of this
conversation on the ground, inter alia, that it was not
corroborated by, Marino. On the basis of the witnesses'
demeanor and my previous findings about Marino's prior
explanations to management for the defects in the Toronto
show,'I credit Marino's version.10
9 Miss Fox' testified that Marino told her that he had trouble getting
along with Doucette, that Doucette was not responding to Marino's
requests , and (in response to a leading question on direct examination) that
he wanted things done to the set that Doucette refused to do She further
testified that Smith told her that Marano said he had difficulty getting
Doucette- to do what Marino wanted done, and could not get cooperation
from Doucette. Smith testified that Marino said "he was having difficulty
relating to the crew and he felt that instead of [Doucette ] giving him a hand
and breaking him into the show, that he wasn't responding in that way "
Marino further testified that a few days before May 26
Marino described his dissatisfaction with Doucette, Sr.'s
performance to Smith, and said that Marino "had had this
[May 17] discussion with Mr. Waissman and Miss Fox in
the hotel room and that they said that they were going to
discharge him," but did not tell Smith when this was going
to occur because, Marino did not know, At the initial
hearing, Smith gave a very similar version of the conversa-
tion, which according to him occurred on May 23. In my
original Decision, I discredited Smith's testimony in this
respect on the ground , inter alia, that it was not corroborat-
ed by Marino. I now conclude that both of them were
telling the truth in this respect, although I regard Marino's
version as more accurate. However, because Marino's
credited testimony makes it , clear that his May 23
statement to Smith was based on Marino's belief that the
Waissmans had accepted Marino's May 17 recommenda-
tion that Doucette, Sr., be discharged (and not on any
belief -by Marino that the discharge decision had been
made, as Respondents assert, several weeks earlier), and
because no witness for Respondents testified that he or she
decided to discharge Doucette, Sr., because of Marino's
May 17 recommendation, my altered findings as to the
May 23 conversation have no significance to the results
herein. Further, Marino's testimony about his May 17
discussion with Waissman indicates that Marino had at
least some suspicion that Waissman was merely trying to
"pacify" Marino, and did not really intend to discharge
Doucette. I find that this was Waissman's real motive for
these remarks, particularly in view of Waissman's vague-
ness about specifics- as to Doucette even though, that same
day, Waissman in terms announced acceptance of Mari-
no's recommendation that Weeden be discharged as well."
I note that Waissman did not testify that this May 17
conversation had anything to do with the discharge
decision. Moreover, if in truth 'Doucette's discharge had
already been decided on, Waissm'an's natural response to
Marino's discharge request would have been a simple
statement to that effect, rather than the vague and soothing
remarks to which Marino credibly testified.
Doucette, Sr., testified at the first hearing, and I found in
my original Decision, that a few days after the discharges
Marino told Doucette, Sr., that Marino "had nothing to
do" with the discharges, that he had "just heard about
them" in the afternoon before the evening they occurred,
and, "We finally got where we could work together. I just
don't believe it." In the absence of Marino's testimony
about the matter, I gave Marino's statement full face value,
and relied thereon as a basis for discrediting Waissman's
testimony about his May 17 conversation with Marino
(which this Supplemental Decision discredits for other
reasons) and Smith's testimony about his May 23 conversa-
tion with Marino (which this Supplemental Decision
Davis testified that Marino said he felt he was "fighting" Doucette all the
time
10 Miss Fox was not asked about this conversation. Marino unequivocal-
ly testified that she was present, and Waissman 's testimony suggests her
presence.
11 However, Marino's testimony suggests that his recommendation as to
Weeden was concurred in by Jack Shearing, who had created the sound for
the original production in New York. Weeden was in fact advised of his
discharge about a week later
THEATRE NOW, INC. 1115
accepts). Marino substantially corroborated Doucette, Sr.'s
version of what Marino said, but credibly explained that he
said he was "sorry" about Doucette's discharge because "A
man's just been fired. I wasn't going to be pouring salt on
the wound," and that Marino was not in fact surprised that
Doucette was fired. Accordingly, these remarks as credibly
explained by Marino do not support the inference that, so
far as Marino knew, the deficiencies in the Toronto show
and top management's reaction to them did not point to
the likelihood that Doucette, Sr., would be discharged for
his part in those deficiencies. However, at the second
hearing, Marino testified in terms that he did not believe
Doucette, Sr., was at fault for any of the deficiencies in the
Toronto show; that he so advised Smith; and that in
Toronto Miss Fox and Smith did not tell him that
Doucette, Sr., was going to be fired because of the
problems in Toronto. Moreover, his testimony shows that
his lack of surprise at Doucette, Sr.'s discharge was based
solely on his belief that a discharge decision had been
made on May 17, several weeks after the date which
Respondents' witnesses and briefs attached to the dis-
charge decision. Accordingly, Marino's explanation of his
June 19 remarks to Doucette, Sr., provides no assistance to
Respondents' cause.
c. Doucette, Jr.'s abilities
Respondents take the position that the decision to
discharge Doucette, Jr., was likewise made on April 23.12
Marino credibly testified that on various occasions he
made unfavorable comments about Doucette, Jr.'s work to
Doucette, Sr., Waissman, and Davis. However, all these
comments were made after April 23, and neither Waiss-
man, nor Davis, nor Smith, nor Miss Fox testified that
Doucette, Jr.'s discharge was in any respect motivated by
Marino's expressed opinion of him.
Marino further credibly testified that it was "traditional"
in the industry for the flyman to "automatically move up"
to the job of a carpenter discharged from the same show.
Marino credibly testified to the opinion that this tradition
could not have been followed upon Doucette's discharge
because Doucette, Jr. "wasn't much better." However,
none of Respondents' witnesses testified that this was the
reason he or she decided not to give Doucette, Jr. the
carpenter's job. See footnote 33 of my original Decision.
2. Antonelli's testimony
Respondents represented to the Board and the court of
appeals that Antonelli would testify that he was informed
of the decision to terminate Doucette, Sr., before his May
29 participation in the grievance meeting. However,
Antonelli testified that he did not learn the date Doucette,
Sr., would be discharged until the date (June 17) that it
occurred,13 and Antonelli's testimony as a whole shows
that his assertion that at an unspecified earlier time he "just
felt" and "just knew" Doucette, Sr., would be discharged
could not have been based on anything more substantial
than hindsight. Thus, Antonelli conceded that, when
discharging the Doucettes on June 17, he told Doucette,
Sr., that Antonelli did not know the reason for Doucette,
Sr.'s discharge and wished he would find out from Davis.14
Furthermore, although union rules required that a carpen-
ter and a flyman be employed by the show at all times,
Antonelli testified that, before Davis told him on June 17
to discharge the Doucettes that day, Antonelli had made
no attempts to obtain replacements and had not been
directed by Davis to seek for any. Indeed, the most specific
expression by Davis to which Antonelli testified, "One of
these days, I'm going to get rid of Doucette, Sr., without
referring to Doucette, Jr., falls short of expressing a final
determination to discharge.15
Moreover, Antonelli's testimony about the reasons for
the Doucettes' discharge is based entirely on alleged
expressions to Antonelli by Davis regarding dissatisfaction
with the work of Doucette, Sr., and to some extent of
Doucette, Jr. Even if credited, such testimony could not
affect the determination regarding the motives for the
discharges; for at the first hearing Davis and the Waiss-
mans testified that the discharge decision was made by the
Waissmans and contrary to Davis' recommendations. In
any event, particularly in view of Antonelh's demeanor
and his admitted statement during the discharge interview
that he did not know why Doucette, Sr., was being fired
and Doucette, Jr., was being discharged because of their
kinship, I discredit much of Antonelli's testimony about
Davis' alleged complaints to him. Thus, I do not believe
Antonelli's testimony, uncorroborated by Davis, that
12 See p. 9 of Respondents' brief to the Board, pp 2-3 of Respondents'
initial brief to me, and p. 6 of their second brief to me : Waissman testified
that on April 23 he personally thought the discharge decision was applicable
to both. However, his memory was "very cloudy" about whether Doucette,
Jr., was mentioned during the April 23 conversation; and none of the other
witnesses testified that Doucette, Jr., was referred to
13 In view of Antonelli's testimony in this respect, Antonelli's and the
Doucettes' mutually consistent testimony about Antonelli 's remarks when
discharging them (infra, fn 14), and the witnesses' demeanor, I specifically
discredit Davis' testimony at the first hearing that, "some time before" the
Doucettes' June 17 discharge (but he did not know exactly when), Davis
told Antonelh that the Doucettes would be discharged on June 17. In my
first Decision, I implied that I was dubious about this testimony, and
referred to Antonelli's failure to testify (fn. 20). Respondents excepted to
this reference , relied thereon in their motions to the Board and the court of
appeals to reopen the record, and in both such motions alleged that
Antonelli's testimony would be "cumulative and repetitive."
14 In my original Decision , I credited Doucette, Sr.'s testimony about
what Antonelli said when discharging him and Doucette, Jr.'s testimony
about Antonelh's remarks to him later that same day In thi s connection, I
noted Antonelli's failure to testify, and Respondents , excepted to my
mentioning this (exception 4). At the second hearing , Antonelli testified that
my original Decision described his conversation with Doucette, Sr,
basically as it occurred , Antonelli was not asked about his conversation
with Doucette, Jr. I adhere to the findings summarized in the first sentence
of this footnote and to my prior inferences based thereon.
is No date was attached to this alleged remark. While I am inclined to
believe that from time to time Davis did grumble to Antonelli about
Doucette, I think the flavor of Davis' remarks is fairly accurately
represented by his testimony, "I had a personal dissatisfaction from the very
beginning. But I overlooked it constantly because I felt that Lhad no way -
the job was getting done." The „reasons for Davis' approach are shown by
the arguments he assertedly advanced in April to the Waissmans,in favor of
Doucette's retention . "... who is to say that whoever you get is going to do
the [road-show ] job better than 'I he. I had trouble getting a carpenter at the
beginning, road carpenters are at^a premium."
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis complained that Doucette, Sr.'s expense accounts
were inflated 16 and that (during a period as to whose
duration Antonelli gave internally inconsistent testimony)
Davis complained that without giving bonuses Davis could
not get the show up in 8 hours. Indeed, even assuming
Davis did make these remarks about bonuses, their
relevance to the discharges would be questionable in view
of Antonelli's testimony that the entire crew received
bonuses in every city. Nor do I believe Antonelli's
testimony regarding his telephone conversation with Davis
on the day the Doucettes were discharged. Antonelli
testified that on that day he telephoned Davis in New York
and reported that he thought Doucette was conspiring with
the house carpenter to increase the show's planned
expenditures for velour to make "soft legs;" and that Davis
thereupon told Antonelli, in essence, to get rid of the
Doucettes, that this was the final straw. Davis did not
corroborate this testimony, which is particularly difficult to
reconcile with Antonelli's conceded statement to Doucette,
Sr., when paying him off later that same day, that Antonelli
did not know why Doucette, Sr., was being terminated.17
In my original Decision, I credited Doucette, Sr.'s
testimony that on April 16 Antonelli told Doucette to
telephone Davis in New York and see what could be done
about Miss Fox's complaint that the sets were dirty and
should be fixed, that Doucette then called Davis and said
that the set should have been painted and touched up, and
that Davis approved this. I discredited Davis' denial that
he had any telephone conversation with Antonelll or
Doucette while the show was in Toronto about painting the
scenery, on the ground, inter alia, that Antonelli failed to
testify.18 Respondents excepted to my reliance on such
failure (exception 4), and Respondents' motions to both
the Board and the court of appeals alleged that Antonelli's
testimony would be "cumulative and repetitive." At the
second hearing, Antonelll testified that, in connection with
the way the set looked in Toronto, Miss Fox had him
telephone Davis because she wanted the set repainted, and
Davis said to get it done. I adhere to my finding in the first
sentence of 'this paragraph and to my discrediting of Davis'
denial . To the extent that Doucette's version differs from
Antonelli's, I credit Doucette, whom I believe to be more
honest and to have a better memory than Antonelli.
Antonelli credibly testified that the Grease Company
had originally planned to retouch the scenery and props
prior to the Los Angeles opening, and that this retouching
was partly moved up to Toronto because of Miss Fox's
dissatisfaction with the show there. This to some degree
supports my prior inference that Doucette's blameworthi-
ness for the defects in the Toronto show within his
jurisdiction was not serious enough to call for acceptance
of the contention that they constituted the real motivation
for his discharge. Antonelli's,testimony in this respect also
provides some support for the finding in my first Decision
that on April 19 Doucette told Miss Fox (who in effect
denied this statement) that the set had not been repainted
or the seats reupholstered because "we didn't have the
money to do it in Detroit for the opening in LA."
B. Doucette, Sr.'s Supervisory Status Vel Non
The record at the second hearing contains some
testimony regarding whether Doucette, Sr., was a supervi-
sor within the meaning of the Act. Without determining
whether such testimony is relevant to matters fairly within
the scope of the remand,19 for the purposes of convenience
I shall summarize such evidence.
1. The Board rejected my finding that Doucette, Sr.,
"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." Rather, the
Board found, "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 seeking this objective."
Marino's credible testimony establishes the following
facts either absent or not wholly apparent from the original
record: Every theatre has a house carpenter who is familiar
with local rules and with the skills of the local carpenters
who , hang and dismantle the show. On the basis of
Doucette's knowledge of the Grease scenery, when the
show was being hung and dismantled he would tell the
house carpenter which jobs had to be performed, how to
perform them, and in what order. Thereupon, the house
carpenter, because of his familiarity with local rules and
the local carpenters' individual abilities, would make the
selection, from among the crew sent out by the local union,
of which employees were to perform particular tasks. If
Doucette had a problem with a local carpenter, he would
go to the house carpenter to do something ' (such as
reassignment or replacement) about the problem. Doucette
would go directly to the local carpenters to show them how
and where the scenery was hung. If the foregoing evidence
had been in the original record, I would not have made the
finding set forth in the first sentence of the foregoing
'16 Antonelli 's duties included reimbursing company members, including
Doucette, for transportation expenses andper diem. Antonelh did not, testify
that he had 'ever questioned Doucette's expense claims,'or that Davis ever
criticized Antonelli for honoring'such claims.
17 Respondents ' June 1975 brief to me asserts at p 18 that this alleged
incident regarding the velour "accounts for the statement in [attorney]
Arnold's letter [about `suspicion of wrong doing] and explains why the
Doucettes were not given two weeks' notice. It is evident that both Arnold
and Davis were reluctant to go into this matter without positive proof
because they were afraid of being accused of libel " I find this contention to
be' without merit. Davis testified that he did not permit the Doucettes to
work out 2 weeks ' notice because he feared sabotage. Moreover, attorney
Arnold's testimony tendered no such explanation for his letter, although he
could hardly have feared a libel proceeding based on his testimony as a
witness
is Davis testified as follows:
Q. [By Mr Pollack ] We were talking about a telephone conversa-
tion while the show was in Toronto with either Mr. Antonelll or Mr.
Doucette in which the subject of painting the scenery and some of the
props was concerned.
A. I don't recall.
JUDGE SHERMAN : Would you recall such a conversation if such a
conversation had occurred?
THE Wimsss: I would.
19 Respondents' request for the remand was bottomed on the adverse
inferences drawn from Marino's and Antonelli's failure to testify. No such
inferences were drawn in connection with the supervisory issue.
THEATRE NOW, INC.
paragraph. Rather, I would have found that, in connection
with hanging . and dismantling the show, Doucette was
acting as a highly skilled craftsman who'made mechanical
and quasi-artistic judgments with respect to equipment
rather than employees. Cf. N.L.R.B. v. Capital Transit
Company, 221 F.2d 864, 866-867 (C.A.D.C., 1955). Fur-
ther, the foregoing evidence furnishes additional support to
the Board's conclusion.
2. Both Manno and Antonelli corroborated the finding
in my original Decision that Doucette participated with
Antonelli in determining, after the opening night of the
road show, how many carpenters would be used for the run
of the show, including the number to be ordered from the
local union in each city.20 However, the Board rejected, at
least tacitly, my conclusion that, particularly because
Doucette was thus participating in the only part of "hiring"
the local carpenters in which the employer had any voice,
he was thereby exercising supervisory authority. Accord-
ingly, the corroborative testimony in the record on remand
provides no basis for a modification in the Board's
determination that Doucette was not a supervisor.21
3. Marino credibly testified to a belief that the
production carpenter was a supervisor. However, any
probative value such testimony would otherwise have had
is substantially diminished, if not overcome, by Marino's
further testimony that he was not surprised at Doucette's
presence at the Weeden grievance meeting because "it was
his responsibility. He was shop steward . . . . He was there
to protect . . . Weeden to see that he was properly
heard." 22 I note, moreover, ' that Respondents' counsel
attached to his motion to the court of -appeals his own
affidavit stating that Doucette, Sr., "interceded on behalf
of a fellow employee."
C. Other Matters
1. In my first Decision, on the basis of Davis' then
uncontradicted testimony, I found "As required by Union
rules, the individual hired [by Davis] 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." No exceptions were filed to
this finding. At the second hearing, Antonelli testified that
a local carpenter performed the job until toward the end of
the Los Angeles run, which lasted 12 or 13 weeks; that the
20 Antonelh testified that he was sure Doucette would also have
discussed the matter with Davis. There is no direct testimony to this effect,
and I regard the matter as immaterial. I believe Antonelli to have been
mistaken in testifying, contrary to both Doucettes, that the number of
stagehands never varied from city to city
21 I should like to convey my professional apologies for inadvertently
conveying to the Board the impression that I regarded as supervisory
Doucette's submission to each local union of a card containing the number
of employees needed to work the show, 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 I did not
intend to express any such view.
22 Marino testified that he could not remember asking what Doucette
was doing at that meeting While I regard Marino as a basically honest
witness , I believe that Doucette had a clearer recollection of the incident
Moreover, Antonelli testified that the summary of the incident in my
original Decision was a "very good account of what happened." According-
ly, I adhere to my finding, originally based on Doucette's testimony, that
Manno asked why Doucette had to be there
1117
new carpenter sent out by Davis took over the job just
before the show moved ' from Los Angeles to its next
destination (Chicago); and that there was little or no
duplication of salaries. Because Antonelli was the company
manager actually on the spot, and was in charge of the
road-show payroll, I conclude that he was in a better
position than Davis to know the facts. I credit Antonelli
and withdraw the finding quoted at the beginning of this
paragraph.
2. In my original Decision, I found, on the basis of
Davis' testimony (which was then neither corroborated nor
contradicted), that on May 29 he asked Antonelli why
Doucette had attended the Weeden grievance conference,
and that Antonelli replied he did not know. No exceptions
were filed to this finding. At the second hearing, Antonelli
denied that Davis asked this question and received this
response. Antonelli also testified that he was not surprised
at Doucette's presence at the conference, because "he was
`Poppa Joe.' He was a friend of the family . . . beside
being the head carpenter . . . I thought that it was second
nature for him to be there." Because Vignale and Marino
also testified that they regarded Doucette's participation in
the grievance meeting as only natural, and after consider-
ing the witnesses' demeanor, I accept Antonelli's testimony
in this connection and discredit Davis.
3. Antonelli denied advising Davis that Doucette had
called in Union Representative Vignale. Davis did not
testify otherwise, and I credit Antonelli. I note, however,
that Davis did not deny knowing that Doucette did this,
and Marino was not asked whether he reported this to
Davis.
CONCLUSIONS OF LAW
The evidence received on remand contains nothing
which would warrant altering the Board's June 13, 1974,
Conclusions of Law. Such conclusions thus being binding
upon me, I recommend that they be reaffirmed by the
Board.23
Accordingly, I hereby issue the following recommended:
ORDER 24
Respondents shall comply with the Board's Order issued
on June 13, 1974.
23 Respondents devote several pages of their brief to urging that as a
matter of law, Doucette, Sr.'s discharge for his grievance activity did not
constitute an unfair labor practice assuming that he was a supervisor rather
than an employee. This argument is supererogatory at this stage of the
proceeding I am unimpressed by Respondents' apparent contention that
my proposed theory is improper because the supervisory defense would be
available only to employers who admit that the supervisor was really
discharged for union activity, and not to employers who falsely claim other
motives. Respondents have apparently elected not to rely on Beasley v. Food
Fair of North Carolina, Inc, 416 U.S. 653 (1974) (issued between my first
Decision and the Board's Decision), holding that the Act does not protect
supervisors from discharge "solely" because of their union membership.
24 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein and in the Board's Decision
dated June 13, 1974, shall, as provided in Sec. 102.48 of the Rules and
Regulations, be adopted by the Board and become its findings, conclusions,
and Order, and all objections thereto shall be deemed waived for all
purposes.