United Artists Theatre Circuit, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1985

277 N.L.R.B. 115 (N.L.R.B. 1985)

UNITED ARTISTS THEATRE
United Artists Theatre Circuit , Inc. and Office and
Professional Employees International Union,
Local No. 3, AFL-CIO. Cases 20-CA-15698,
20-CA-16009, and 20-RC-15160
31 October 1985
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 9 November 1981 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs. The General Coun-
sel and the Charging Party filed motions to strike
the Respondent's exceptions, and the Respondent
filed an answering statement.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
concllusions3 as modified, but not to adopt his rec-
ommended Order.
i We deny the General Counsel and the Charging Party's motions to
strike the Respondent's exceptions as lacking in merit. We grant the Gen-
eral Counsel's motion to correct clerical errors in the judge's decision.
2 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
We correct the judges inadvertent failure to make a finding regarding
Lee Goodwin's supervisory status, and find, based on the Respondent's
record admission, that Goodwin was a statutory supervisor at all relevant
times
3 In adopting the judge's conclusion in sec. III,B,l,h,(2) of his decision
regarding Sec 8(a)(1) violations involving Gloria Wyman, we rely on his
finding in fn 7 that Wyman was a supervisor during the relevant period
In adopting the judge's conclusion in sec III,B,l,i,(6) that the Re-
spondent violated Sec. 8(a)(1) of the Act when Manager Jack Hankins
told employee Adrena Owens, "I understand you guys are trying to form
a union," we find it unnecessary to decide whether Hankins' version of
the conversation, discredited by the fudge, was also violative of the Act
We agree with the judge's conclusion in sec III,B,l,g that Supervisor
Nora McGee's interrogation of employees Linde and Fong, not previous-
ly self-identified as union adherents, violated Sec 8(a)(1) of the Act, but
we disavow his statement that an initiating question by a supervisor to an
employee regarding the employee's union sentiments is a "traditional"
violation of Sec 8(a)(l) of the Act insofar as the statement implies a "per
se" approach
In Rossmore House, 269 NLRB 1176 (1984), affd sub nom Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F 2d 1006 (9th Cir 1985),
the Board stated the proper analysis is whether, under all the circum-
stances, the interrogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act
Chan man Dotson does not adopt the judge's conclusions that the con-
versation between Paul Ziegler and John DeMarsh and the conversation
between Jack Hankins and Adrena Owens violated the Act
115
We find merit in the Respondent's exception to
the judge's finding that it violated Section 8(a)(1)
of the Act by distributing a handbill and a letter
containing threatening statements to all employees.
The handbill stated that, if the Union won the elec-
tion, "we will be obligated by law to discuss griev-
ances only with the Union, not with you, AND
THEREFORE YOUR RIGHTS DEPEND
SOLELY ON WHETHER OR NOT THE
UNION DECIDES TO PURSUE THEM ON
YOUR BEHALF" [capitalization in the original].
The letter stated:
You have always had the right to deal directly
with the management of our Company. Should
this union get in, you will have voted away
that right and you will have placed a group of
outsiders who know nothing about our busi-
ness between yourself and your company.
The judge found these statements to be misstate-
ments of law under Section 9(a) of the Act consti-
tuting threats of loss of benefits if the employees
chose the Union.4 Recently, in Tri-Cast, Inc., 274
NLRB 377 (1985), the Board found that an em-
ployer's statement explaining a change in the
manner in which employees and employers deal
with each other when a union is elected was not an
objectionable threat to deprive employees of their
rights or a misstatement of law.5 The Board found
such statements constitute permissible campaign
conduct, taking into account a fact of industrial life
that in a union shop the employees deal with the
employer indirectly through their union representa-
tives. Under these principles, the Respondent's
statement did not violate the Act. Accordingly, we
will dismiss this portion of the complaint.
We amend Conclusion of Law 3 to reflect that
the Respondent did not violate Section 8(a)(1) of
the Act by this conduct, and shall issue a new
Order and notice to employees. We will, inter alia,
a Sec 9(a) of the Act provides-
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment Provided, That any individual employee or a
group of employees shall have the right at any time to present griev-
ances to their employer and to have such grievances adjusted, with-
out the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective-bargain-
ing contract or agreement then in effect' Provided further, That the
bargaining representative has been given opportunity to be present at
such adjustment
s In Tri-Cast, the employer distributed a letter to its employees on
election day stating
We have been able to work on an informal and person -to-person
basis If the union comes in this will change. We will have to run
things by the book, with a stranger, and will not be able to handle
personal requests as we have been doing
277 NLRB No. 15
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substitute narrow injunctive language for the broad
order recommended by the judge. See Hickmott
Foods, 242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board orders that
the Respondent, United Artists Theatre Circuit,
Inc., San Francisco, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about
union support or union activities.
(b) Threatening employees that, if the Union or-
ganized the Respondent, working conditions would
be made stricter, wage increases would be delayed,
and employees would be terminated, and telling
employees their eligibility to vote in NLRB-con-
ducted elections depends on how they intend to
vote.
(c) Asking employees to engage in surveillance
of union activities and creating the impression em-
ployees' union activities are under surveillance.
(d) Promising employees increased benefits, such
as larger, faster, and more frequent wage increases,
if the Union is defeated.
(e) Issuing employees written or oral warnings
because of their union activities.
(f) Assigning employees to, and refusing to trans-
fer them out of, more onerous positions because of
their union activities.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove from its files any reference to the
unlawful written warning issued to Adrena Owens
and notify her it has done so and that the warning
will not be used against her in any way.
(b) Transfer Adrena Owens to the position she
would have had but for her transfer to research or,
if that position no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or any other rights or privileges previously
enjoyed.
(c) Post at its San Francisco, California facility
copies of the attached notice marked "Appendix."6
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed
by the, Respondent's authorized representative,
c If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the challenges to
the ballots of John Merle Kaiser, Lloyd Morgan,
Flvie Jean Stokes, Martin Swearingen, Allen
Mason, and Jack Michael Naify in Case 20-RC-
15160 be sustained.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Office and Professional Em-
ployees International Union, Local No. 3, AFL-
CIO and that it is the exclusive collective-bargain-
ing representative of the employees in the follow-
ing appropriate unit:
All office and clerical employees employed by
the Employer in its accounts payable, payroll,
box office, comptometer, tax, insurance admin-
istration, corporation accounting, bank recon-
ciliation, data entry, computer, data control,
real estate, auditing, purchasing, film distribu-
tion, film payables, booking and buying, secre-
tary and miscellaneous clerical departments,
including PBX operator, located at 172
Golden Gate Avenue, San Francisco, Califor-
nia; excluding all professional employees, con-
fidential employees, including the secretary to
the president and secretary to the treasurer-
controller, film buyers and film bookers,
guards and supervisors as defined in the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively question you about
your union support or union activities.
WE WILL NOT threaten you that, if the Union or-
ganizes the employees, working conditions will be
made stricter, wage increases will be delayed, and
employees will be terminated, and WE WILL NOT
UNITED ARTISTS THEATRE 117
tell you your eligibility to vote in NLRB-conduct-
ed elections depends on how you intend to vote.
WE WILL NOT ask you to engage in surveillance
of union activities or create the impression your
union activities are under surveillance.
WE WILL NOT promise you increased benefits
such as larger , faster, or more frequent wage in-
creases, if the Union is defeated.
WE WILL NOT issue you written or oral warnings
because of your union activities.
WE WILL NOT assign any of you to, nor will we
refuse to transfer you out of, more onerous posi-
tions because of your union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL notify Adrena Owens that we have re-
moved from our files any reference to her unlawful
written warning and that the warning will not be
used against her in any way.
WE WILL transfer Adrena Owens to the position
she would have had but for her transfer to research
or, if that position no longer exists , to a substantial-
ly equivalent position , without prejudice to her se-
niority or any other rights or privileges previously
enjoyed.
UNITED ARTISTS THEATRE CIRCUIT,
INC.
Robert J. Buffin and Victoria Chin, Esqs., for the General
Counsel.
Charles B. Waud, Esq., of McDowell-Cohain & Associates,
Inc., of Oakland, California, for the Respondent Em-
ployer.
Richard Holober, International Representative , and Reva
Olson, Representative , of San Francisco , California, for
the Charging Party Petitioner.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on June 22-26 and July 2, 1981, in
San Francisco, California . The case arose as follows.
On September 25, 1980 , Office and Professional Em-
ployees International Union, Local No. 3, AFL-CIO
(the Union, the Charging Party, or the Petitioner) filed a
charge designated Case 20-CA-15698 against United
Artists Theatre Circuit , Inc. (the Employer or Respond-
ent). The charge was amended by the Union on October
15 and 21 and November 21, 1980 . On November 25,
1980, the Regional Director for Region 20 of the Nation-
al Labor Relations Board issued a complaint and notice
of hearing regarding Case 20 -CA-15698.
On February 5, 1981 , the Union filed a charge desig-
nated Case 20-CA-16009 against the Employer. The
charge was amended on May 28 , 1981. On March 31,
1981, the Regional Director issued a complaint and
notice of hearing regarding Case 20-CA-16009 which he
amended on June 4, 1981.
On August 26, 1980, the Union filed a petition desig-
nated Case 20-RC-15160 thereby seeking to represent
certain of the Employer 's employees . The parties entered
into a Stipulation for Certification Upon Consent Elec-
tion approved by the Regional Director on September
17, 1980 . An election was conducted on October 29;
1980, with the challenged ballots being sufficient in
number to affect the outcome of the election. On No-
vember 5 , 1980, the Union filed objections to the con-
duct of the election and on February 5, 1981, withdrew
certain of those objections . On March 10, 1981, the Re-
gional Director issued a Report on Challenged Ballots
and Objections. No exceptions were filed to that report.
On March 30, 1981, the Board issued an order directing
hearing directing that the Regional Director issue notice
of a hearing to be held on certain challenged ballots and
objections consistent with the Regional Director 's March
10, 1981 report.
On April 10 , 1981, the Regional Director issued an
order consolidating cases and notice of hearing which
consolidated the above -captioned cases and directed a
common hearing . Following certain hearing postpone-
ments, the matter came on for hearing as noted above.
The record was closed on July 2, 1981 , and the due date
for briefs was set by me for August 8, 1981. At the re-
quest of the General Counsel , the date for filing briefs
was extended to August 21, 1981 , by Associate Chief
Judge William J . Pannier III . On further request of the
General Counsel , Deputy Chief Administrative Law
Judge James T. Barker extended the due date until Sep-
tember 16, 1981. On the request of the Charging Party's
representative, a third extension of thi^ filing date was
granted by Deputy Chief Administrative Law Judge
Barker until October 1, 1981.
On the entire record , including substantial and very
helpful briefs from all parties , and from my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
All parties were given full opportunity to participate
at the hearing , to introduce relevant evidence , to exam-
ine and cross-examine witnesses, to argue orally, and to
submit posthearing briefs.
1. JURISDICTION
The Employer is a Maryland corporation with an
office and place of business in San Francisco, California
(the facility), where it is engaged in the management of
motion picture theaters . The Employer annually enjoys
gross revenues from its operations of a value exceeding
$500,000 and purchases and receives at its facility prod-
ucts, goods, and materials valued in excess of $5000 di-
rectly from points outside the State of California.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the National Labor Relations Act.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The Employer is principally engaged in the operation
of a geographically diversified network of owned and
leased motion picture theaters and the related sale of re-
freshments, primarily in California, New York, and
Texas. It also operates a variety of related enterprises
many of which are organized as wholly owned subsidiar-
ies. The Employer's principal office is located in San
Francisco, California, with divisional, executive, and ad-
ministrative offices located in San Francisco, California,
Dallas, Texas, and Great Neck, New York. As of August
31, 1980, the Employer employed approximately 4300
full-time employees. i
Respondent's president and chairman of the board is
Robert A. Naify. Marshall Naify, brother of Robert, was
chairman of the board of directors and chief executive
officer until 1978. He remains a director, chairman of the
executive committee, and honorary chairman of the
board. Richard R. Naify is the purchasing agent and vice
president of the corporation. Richard Naify is a first
cousin to Robert and Marshall Naify and is the father of
Jack Michael Naify. Brothers Robert and Marshall to-
gether hold a majority of stock in Respondent. Richard
Naify holds approximately 2 to 3 percent of the stock.
Jack Naify holds some shares but these represent an in-
significant portion of outstanding stock.
The following individuals at all relevant times were
admitted supervisors and agents of Respondent at the fa-
cility and hold the titles following their names:
Ron Zimmerman-treasurer and controller; Jack Han-
kins-manager accounts payable; Peggy Hogeston-Tsu-
pervisor; Jim Sherman-manger theater accounting;
Nora McKee-payroll supervisor; Cindy Clark-office
control supervisor; Paul Ziegler-theater payable super-
visor; and John Gehling-supervisor. The supervisory
status of employees Gloria Wyman and Lee Goodwin
was in issue and will be discussed, infra.
B. Specific Allegations of the Complaints
The Union in August, September, and October 1980,2
engaged in an organizational campaign among certain of
Respondent's employees at the facility culminating in an
election held on October 29. The General Counsel has
alleged a host of separate violations of Section 8(a)(1)
and (3) occurring during and following this period. Al-
though some allegations require a broader consideration
of events, many turn on credibility or are, at least to a
degree, factually uncontested. Specific allegations are
discussed seriatum.
1 The bulk of this information is taken from the Employer's 1980
annual report prepared pursuant to secs. 13 and 15(d) of the Securities
Exchange Act of 1934
2 All dates refer to 1980 unless otherwise indicated
1. Alleged violations of Section 8(a)(1) of the Act
a. Conduct of Ronald Zimmerman
(1) The Zimmerman-Cosme conversation
Current employee, computer operator Joan Cosine,
testified that a few days after August 16, she was sum-
moned to Zimmerman's office where she had a conversa-
tion with him alone. She recalled Zimmerman told her
the Company could not afford higher wages, that the
union was trying to "get into" the Company and "we
really don't want that to happen." He continued that he
was looking for somebody "inconspicuous" to attend
union meetings unnoticed and report back to him as to
who attended and what was said. Cosme responded, "Do
you want me to be like a spy?" Zimmerman assured her
that he was not going to force her, that the decision
would be her own, and that he did not want her answer
until the close of business that day. Cosme said that she
would tell him of her answer within the hour but that
she did not wish to return to his office. Rather she
would call him. The conversation ended. Cosme did not
report back to Zimmerman and apparently the matter
was never raised again.
Zimmerman placed the conversation as occurring in
early August. In his recollection: "I asked Ms. Come if
she would be interested in attending the next union meet-
ing and, if she were, would she be willing to tell me
what happened in that meeting." He recalls the termina-
tion of the meeting as occurring consistent with Cosine's
testimony.
The two versions of the conversation have no substan-
tive variance save as to the date. I credit each witness
about the specific recollections of what was said.
Cosine's recollection is more complete and detailed. I
place the date of the conversation as a few days after
August 16. Cosme signed her authorization card on that
date and specifically recalled the conversation as occur-
ring soon thereafter. Zimmerman's placement of the date
of the conversation is less sure.
Respondent 's admitted agent solicited an employee to
attend union meetings and report on employee activities.
Such conduct violates Section 8(a)(1) of the Act irre-
spective of any lack of threat or other coercion associat-
ed with the solicitation and irrespective of the fact that
the request was never acceded to or the solicitation oth-
erwise acted upon. Custom Trim Products, 255 NLRB
787 (1981); TRW-United Greenfield Division v. NLRB,
637 F.2d 410 (5th Cir. 1981).
(2) Zimmerman's letters to employees
Sometime in early September a letter was distributed
to all employees on Respondent's letterhead bearing Ron
Zimmerman's typewritten name at the bottom of the
page. The letter discussed a then upcoming Board hear-
ing on the representation petition and presented the Em-
ployer's opinions regarding the desirability of voting
against the Union. The letter's fourth paragraph stated:
You have always had the right to deal directly with
the management of our Company. Should this union
UNITED ARTISTS THEATRE
get in, you will have voted away that right and you
will have placed a group of outsiders who know
nothing about our business between yourself and
your Company.
The General Counsel's amended complaint in Case 20-
CA-16009 alleges that Respondent violated Section
8(a)(1) of the Act by "telling employees they would lose
rights guaranteed under Section 9(a) of the Act if they
selected the union as their collective bargaining repre-
sentative."
On brief Respondent construes the allegation to ad-
dress question 16 in a handout distributed to employees
by Respondent immediately before the election:
Q. If the Union wins can it keep employees from
being discharged?
A. Of course not. Most contracts provide that
employees can be discharged "for just cause." This
is not different from the way things are now. It
would be foolish of us to discharge anyone for no
reason, and that is the way we will continue to op-
erate, we will be obligated by law to discuss griev-
ances only with the Union, not with you, AND
THEREFORE YOUR RIGHTS DEPEND
SOLELY ON WHETHER OR NOT THE
UNION DECIDES TO PURSUE THEM ON
YOUR BEHALF.
Counsel for Respondent on brief acknowledges the pro-
viso language of Section 9(a) of the Act which is by its
terms inconsistent with the above-written communica-
tions to employees, but he asserts that "for all practical
purposes" the statutory requirement that a bargaining
representative be present when an employee presents
grievances to the employer is a "negation of the employ-
ee's right." He concludes:
It would seem, therefore, that in the realities of in-
dustrial life as it exists today, the employer's state-
ment is not so erroneous as to constitute a violation
of the Act ... .
The Board however has found and continues to find
similar statements of employers to employees to be a
"misstatement of the law which constitute threats on the
part of Respondent to curtail employee rights and dis-
continue employee benefits in reprisal against a choice by
the employees to be represented by a union." Colony
Printing, 249 NLRB 223, 224 (1980), enfd. in relevant
part 651 F.2d 502 (7th Cir. 1981); Joe & Dodie's Tavern,
8 Sec. 9(a) of the Act provides-
Representatives designated or selected for the purposes of, collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment- Provided, That any individual employee or a
group of employees shall have the right at any time to present with-
out the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective-bargain-
ing contract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity to be'present at
such adjustment
119
254 NLRB 401 (1981). Accordingly, I find each commu-
nication violates Section 8(a)(1) of the Act.
b. Conduct of Peggy Hogeston
Joan Cosme testified that on the day of the election or
a day or two before she had a brief conversation with
Peggy Hogeston in the data entry room in the presence
of fellow employees Gerodias and Handley and another
employee. Cosme recalled that as she entered the room,
Hogeston-with a smile on her face--asked "How are
you going to vote, Joan?" Whereupon, Cosine replied,
"I'm not saying one way or the other."
Hogeston was not asked to describe the conversation
she had with Cosine in detail or to place its date. When
asked if she had at any time asked Cosme how she was
going to vote in the election, Hogeston said she had not
but rather had asked Cosme if she was going to vote.
She also recalled Cosme did not respond but rather left
the room. This was the only conversation Hogeston re-
called with Cosme on the matter. No other witness testi-
fied regarding the meeting.
I credit Cosme over Hogeston regarding the specifics
of the conversation. I do so primarily on demeanor. Fur-
ther Cosme had a generally superior recollection of
events and testified both as to this matter and the Zim-
merman conversation, noted supra in detail. Lastly, it
seems more probable, given the reaction of Cosme to the
question, that the subject was less benign than an inquiry
regarding her decision to vote or not. Thus, it is more
than likely the question addressed the more confidential
matter of her intended choice on the ballot.
Asking an employee how she will vote in a representa-
tion election violates Section 8(a)(1) of the Act. Green-
park Care Center, 236 NLRB 683 (1978); Winter Garden,
235 NLRB 19 (1978); Martin-Brower Co., 233 NLRB 876
(1977). I so find here.
c. Conduct of Cynthia Clark
Linda Henry, a former figure clerk in the box office
control department, then under the supervision of Cyn-
thia Clark, signed an authorization card on August 5.
She testified that on that day Clark asked her, and in her
presence each of fellow employees Yolande Foster, Tim
Keeton, Sharon Allen, Laurie Johnson, and Lynn Vin-
cent,4 "Did you sign one of the union cards?" All the
employees answered, "No." She testified further that
Clark asked such questions of all the employees in the
department . She also testified that in early to middle
September-on three or four occasions-in association
with scheduled union meetings, Clark asked the depart-
ment employees about the union meetings and if they
had participated . Most employees answered negatively.
Clark , now an administrative assistant in the real estate
department-a promotion from her previous position,
evinced an inability to recall asking questions of Henry
regarding the Union . She initially denied asking employ-
ees about their participation in union meetings . On cross-
4 Henry could recall only the first names of Johnson and Vincent. The
last names are here supplied by reference to the stipulation concerning
employees in the various departments
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination, however, when reminded of having given
an investigatory affidavit to the Regional Office, she re-
called asking a "couple of people" "out of my own curi-
osity" about union meeting attendance. She indicated she
had taken the earlier examination regarding interrogation
as directed only to her employees in her own depart-
ment. None of the other employees in the department
were called to testify. Indeed, authorization cards of em-
ployees Foster, Allen, Keeton, and Bascara were intro-
duced through a handwriting expert after the General
Counsel stated that all card signers had been subpoenaed
but that because some were unavailable to testify a hand-
writing expert would be used to identify the cards of
those unavailable employees. Henry had a sound de-
meanor although her testimony was vague and conclu-
sionary and her recollection not sharp. Clark seemed to
me to be very uncomfortable and highly defensive in her
testimony. She presented a significantly inferior demean-
or when compared to Henry. Indeed, it seemed she was
anxious to deny the events as if her conduct was now an
embarrassment to her. Clark's asserted confusion regard-
ing the meaning of the questions of counsel regarding in-
terrogation of employees seem contrived and her quick
willingness to acknowledge interrogation when reminded
she had given an earlier sworn statement revealed she
was aware her testimony had not to that point been
forthright and open.5 I credit Henry over Clark and
find, therefore, that Clark interrogated Henry and other
department employees regarding their union activities as
described by Henry above. Such conduct by an admitted
supervisor and agent of Respondent is a classic violation
of Section 8(a)(1) of the Act and I so find. NLRB v. Los
Angeles New Hospital, 640 F.2d 1017 (9th Cir. 1981);
Parkview Acres Convalescent Center, 255 NLRB 1164
(1981).
d. Conduct of John Gehling
Former employee Leigh Wentworth testified that on
the day of or the day before the election he was sum-
moned to the office of his supervisor, John Gehling, for
a one-on-one conversation. Wentworth recalled that
Gehling asked him if he was for or against the Union.
Wentworth said he was for the Union whereupon Gehl-
mg responded that, although he did not agree with
Wentworth's opinion, "You're entitled to it." Employee
Shirley McGee testified to a similar circumstance with
Gehling a week or so before the election. McGee was
summoned to Gehling's office where they spoke alone.
He asked her what her feelings were about the union.
She indicated she had no view and he said that he re-
spected her opinion and would not "pry."
Gehling expressed a vague recollection of the Went-
worth conversation and agreed generally with her on the
date and substance of his inquiry. He did not testify re-
garding the McGee attribution but, albeit vaguely and in-
directly, alluded to a general approach to the employees
in his department in which he attempted to ascertain em-
5 Respondent, on brief, points out that the affidavit was never offered
into evidence Relevant here, however, is the witness' shifting recollec-
tion.
ployee sentiments regarding the union and present his
opinions to them.
The versions of events are not at variance save in
degree of specificity of recollection, Each witness was
credible. I find that conversations occurred as testified to
by each, with the more specific recollection being relied
on in each case. Thus, I find that Gehling, immediately
preceding the election, met with employees in his office
and, although politely and without express threat or
overt attempt to influence employees, asked them their
sentiments regarding the Union. Such systematic conduct
by an admitted agent of Respondent violates Section
8(a)(1) of the Act and I so find. TRW-United Greenfield
Division v. NLRB, 637 F.2d 410 (5th Cir. 1981), enfg. 245
NLRB 1135 (1979); Naum Bros., 240 NLRB 311 (1979).
e. Conduct of Paul Ziegler
Former employee John DeMarsh was hired by and
worked under the supervision of Paul Ziegler in the ac-
counts payable department. DeMarsh testified that in the
latter part of September, he had occasion to pass by
Ziegler's desk at which time Ziegler asked him how he
felt about the Union. DeMarsh responded that he had
not given it much thought because he did not want to
discuss it with Ziegler. The brief exchange then ended.
Employee Adrena Owens, also supervised by Ziegler,
testified that on several occasions Ziegler asked her what
she thought about the Union and if she was attending
union meetings. She recalled that the conversations usu-
ally occurred following union meetings and that Ziegler
expressed sympathy and support for the Union and dis-
approval of existing working conditions.
Ziegler, no longer employed by the Employer, re-
called the DeMarsh and Owens conversations and fur-
ther recalled discussing the union with other employees
during the period before the election. Ziegler's recollec-
tion was far less detailed and specific regarding the con-
versations but did not otherwise differ essentially from
the versions of DeMarsh and Owens save in one respect.
He recalled that his inquiries into employee union senti-
ments were addressed to whether the employees had
checked into other unions as well as the Union, rather
than their sentiments about the Union in particular. I am
of the view that substantively this is a distinction without
difference but, if necessary, would credit the versions of
DeMarsh and Owens over Ziegler. It seems clear that
DeMarsh's statement to Ziegler that he did not wish to
discuss the matter was in response to an inquiry about
his personal sentiments regarding the Union. Owens testi-
fied to a far broader line of inquiry than that admitted by
Ziegler and Ziegler's testimony did not directly deny the
testimony of Owens. Rather he summarized his version
of the conversations in such a manner as not to address
the issue of whether or not he asked her about union
meeting attendance. Lastly, the demeanor of DeMarsh
and Owens was superior to that of Ziegler during the
testimony here in issue. Accordingly, I find that Ziegler
engaged in the conduct described above in the testimony
of DeMarsh and Owens. As noted previously such inter-
rogations, even if concluded in an apparently friendly
UNITED ARTISTS THEATRE
and nonthreatening manner, violated Section 8 (a)(1) of
the Act and I so find.
f. Conduct of Lee Goodwin
Former employee Gwendolyn Coggs testified that she
had two conversations with Payroll Supervisor Lee
Goodwin concerning the Union, but testified in detail
only with respect to the second . The conversation oc-
curred on the day before the election and arose when, in
response to a general inquii y by Goodwin of employees
asking if they had any questions, Coggs said she had a
question . Coggs and Goodwin then went to the lunch-
room where Coggs asked Goodwin questions regarding
the Employer and the Union . During that conversation
Coggs recalled Goodwin telling her that if the Union or-
ganized Respondent the then-existing attendance sign in'
and out procedures would be abandoned and a timeclock
installed with a recalled rigid, rather than flexible, time
and attendance policy. Goodwin recalled the two con-
versations and the fact that each occurred at the initi-
ation of Coggs. He also recalled that the conversations
were informal discussions including many things, one of
which was the Union. He specifically denied any recol-
lection of discussing either a timeclock or attendance
practice changes which would occur if the Union came
in.
Coggs had a sound demeanor and a clear recollection
of the events . I credit her version . Although Goodwin
was not incredible , I do not equate his failure to recall
the specifics of.the conversation with a specific denial of
the conversation as credibly testified to by Coggs.6 Ac-
cordingly , I find that Goodwin told Coggs that if the
Union came in, attendance policy would deteriorate to
employees ' detriment . The credited timeclock description
can have no other fair interpretation . Such a threat is not
in any way a prediction of consequences of bargaining or
the result of an agreement with the Union. Rather it is a
simple threat to diminish , however slightly , the quality
of employee working conditions should the employees
select the Union . Such a statement cannot but effect em-
ployee sentiment regarding , the decision to support or
oppose the Union. Such interference violates Section 7
rights of employees and, in so doing , violates Section
8(a)(1) of the Act and I so find . L'Eggs Products, 236
NLRB 354 (1978), enfd. in relevant part 619 F.2d 1337
(9th Cir. 1980).
g. Conduct of Nora McGee
Current employee and account clerk Fred Linde testi-
fied to a conversation with his supervisor, Nora McGee,
in or around the latter part of September . Linde is hear-
ing-impaired and regularly , as on this occasion , commu-
nicated with McGee by means of exchange of handwrit-
ten notes . McGee tore and discarded the notes at the end
of the conversation . Linde, however , retrieved the notes
6 The timeclock reference was also admittedly made to employees by
Supervisor Hankins. Indeed , Supervisor McGee, who testified as did
Goodwin that she attended management meetings regarding the Union
and proper conduct for a supervisor , recalled that the lecturer indicated
if the Union was successful, things might "tighten up" such as flexible
attendance hours and lunch and breaktimes
121
and reassembled substantially all the pages which were
placed into evidence.
Each witness gave a summary version of the conversa-
tion which McGee testified she initiated with Linde and
Sonny Fong-a second hearing-impaired employee-to
see if they had any questions about the Union. McGee
placed the conversation as occurring in early October.
The difference in dates is immaterial . The conversation
being entirely written and the writing in evidence, I rely
entirely on the handwritten documents . McGee's initial
entry or question was "How do you feel about the
Union?" Linde answered , "I want unions because of high
cost of living ." The exchange continued regarding eco-
nomics, consequences of bargaining , and other matters.
The initiating question of a supervisor to an employee
during an organizing and election campaign , "How do
you feel about unions?" as noted , supra, is a traditional
violation of Section 8(a)(1) of the Act. I so find.
h. The conduct of Gloria Wyman
(1) Wyman's supervisory status
The General Counsel alleges and Respondent denies
that Advertising Coordinator Gloria Wyman was at rele-
vant times a supervisor within the meaning of the Act
and an agent of Respondent . Wyman shares an office
with Christine Hanni who was hired in February 1980.
Testimony was received from Wyman and Hanni regard-
ing Wyman 's supervisory status particularly with respect
to her purported hiring and supervision of Hanni.
Wyman denied she had the authority to hire, fire,
transfer, discipline, or direct employees , including Hanni,
in their work. Hanni testified that Wyman granted her
time off, approved her vacation schedule, trained her,
recommended she receive a wage increase, and, further,
that she regarded Wyman as her supervisor. The circum-
stances of Hanni's hire was closely litigated . Hanni was
interviewed by Wyman who then reported the matter to
her superior in' Los Angeles by telephone. Her superior
indicated he knew Hanni and, as Wyman testified, he
added "that, if I like her get the papers together and
then talk to her again and see when she wanted to start."
Hanni and Wyman then held additional discussions re-
garding details of Hanni 's hire and Hanni joined the staff.
Later Wyman recommended a wage increase for Hanni
to her superior who subsequently told Wyman that the
increase for Hanni had been obtained.
The sole issue in this portion of the case is Respond-
ent's accountability for the actions of Wyman with re-
spect to statements made to Hanni. Given that narrow
issue, it is clear and I find that Respondent allowed
Wyman to conduct herself in her employment in a
manner to create in Hanni's mind, based on objective
evidence, the reasonable belief that Wyman had author-
ity to hire and to effectively recommend wage increases
for employees in Hanni's position. Irrespective of the
actual authority Wyman held or exercised, H[anni could
properly conclude Wyman was her supervisor and that
she had the noted authority . Thus, it is clear that Wyman
had the apparent authority to hire and to effectively rec-
ommend wage increases and I so find . Given this finding,
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agency relationship is established based on apparent
or ostensible authority and it is unnecessary to make fur-
ther findings with respect to Wyman's supervisory
status.7
(2) Allegations of misconduct
Hanna testified to a variety of conversations with
Wyman regarding the Union. In early September just
after a union authorized leaflet had been disseminated,
Wyman initiated a conversation with Hanni alone in
which Wyman asked if she had signed a union card and
if she had gone to any union meetings. When Hanni said
she had gone to union meetings, Wyman asked what
went on at them. Hanni said people asked questions re-
garding the union. Wyman then asked who had attended
the meeting, whereupon Hanni said a lot of people she
did not know. Later in the second week of September,
Wyman initiated a conversation alone with Hanni in
which she asked if Nick Thirkettle, Grace Morones, and
Lou Chiappe had gone to the union meetings. Hanni said
yes and Wyman said "then they are all for it." A third
conversation occurred in late September or early Octo-
ber in which Wyman expressed fears that a strike would
occur and a fourth on October 29 in which Wyman ex-
pressed an intention to vote against the Union because
she could not afford to go on strike.
Wyman admitted she had discussed the Union with
Hanni but could not recall specifics. She denied asking
about union meetings or the identity of union supporters.
I credit Hanni over Wyman primarily on demeanor.
Hanni seemed to me to be particularly aware of the obli-
gation of her oath and the formality of the proceedings.
She endeavored to answer directly the questions asked
her. Wyman seemed to me to have had a sense of show
as if her testimony were a performance. Her answers
were often designed to be more than directly responsive
to the question. I do not believe Hanni was misstating
her recollection of events. Her recollection of the specif-
ic conversations and Wyman's mention of other employ-
ees by name is not likely to have been the product of
faded memory or misrecall. Thus, with regard to the spe-
cific conduct attributed to Wyman by Hanni and denied
by Wyman, I find the events occurred as testified to by
Hanni. I discredit Wyman where her testimony is not
consistent with Hanni's version of events.
(3) Analysis and conclusion
Respondent's Responsibility for Wyman's
Statements to Hanni
Were Wyman a supervisor and clearly disassociated
from the unit, her conduct, found supra, would clearly
violate Section 8(a)(1) of the Act consistent with cases
cited supra. Wyman, however, admittedly was listed on
° Were it necessary to do so, I would find Wyman during the relevant
period was a supervisor within the meaning of Sec 2(l1) of the Act.
First, it is clear Wyman was given the discretion to hire Hanna Second,
as noted, infra, I have credited Hanna over Wyman on other matters
Were I also to credit her here, as I would, if necessary, based on demean-
or, it is clear that Wyman did in fact have the indicia of supervisory au-
thority testified to by Hanni and that she was in fact Hanni's supervisor
during the relevant period
the Employer 's prepared election eligibility list submitted
to the Union and voted in the election without challenge.
A longstanding line of cases8 stands for the proposition
that an employer is not responsible for the conduct of a
supervisor if that supervisor is in the unit and there is no
evidence that the conduct was encouraged , authorized,
or ratified by the employer or that the supervisor acted
in such a mariner as to lead the employees to reasonably
believe that she was acting on behalf of management. On
the facts of this case , I do not find this line of cases ap-
plies to Wyman's interrogations of Hanni.
Irrespective of any final answer to the question of
Wyman 's unit placement , Respondent's conduct in hold-
ing out Wyman to Hanm as if she were her supervisor
combined with the specific statements Wyman made to
Hanni , make it clear Hanni would reasonably conclude
Wyman was acting on behalf of management during her
interrogations and I so find.9 Accordingly , I find that
through the above acts and conduct , Respondent has
violated Section 8 (a)(1) of the Act.
i. Conduct of John Nankin
The multiple allegations of the complaints regarding
statements of Hankin were addressed by a host of wit-
nesses. These allegations are best presented as follows:l 0
(1) Attributed by Ricky Turner
Former employee Turner was hired on September 18.
He testified that Hankin asked him at that time how he
felt about unions. Hankin recalled asking Turner if he
was voting for the Union. Either version of events is a
violation of Section 8(a)(1) of the Act and I so find.
Turner testified that Hankin told him that if he intend-
ed to vote against the Union then he should be able to
vote but if he was going to vote for the Union then he
should not be able to vote because management needed
all the votes it could get. Turner placed this remark as
part of the same conversation noted above. The conver-
sation included, in Turner's memory, a letter by Zimmer-
man which Hankin had him read. Hankin initially denied
that he had had a discussion with Turner which included
a letter by Zimmerman, but later suggested it was possi-
a Commencing with Montgomery Ward & Co, 115 NLRB 645 (1956),
see also Times-Herald, 253 NLRB 524 (1980)
9 Wyman did not merely engage in banter regarding the Union that
one might expect from a fellow unit member freely discussing the issues
associated with a union organizing campaign Rather her remarks were in
part directed to learning the identity of those who signed union cards and
attended union meetings and to learning union sympathies of named em-
ployees These inquiries would seem to an employee in the position of
Hanni more likely the product of management's interest-proper or im-
proper-in evaluating the strength of the union opposition and the possi-
ble result of the campaign than the curiosity of a fellow unit member
The contents of the third and fourth conversations are otherwise. I do
not find that Wyman's statements in those conversations may be attrib-
uted to Respondent
10 A variety of witnesses fixed conversations with Hankin as occurring
in August before the time Hankin testified he began his employment No
documentary evidence was offered to reliably fix the date of Hankin's
employment commencement The exact dates of his hire and the various
conversations in any case, while a factor in evaluating credibility, are not
critical to resolution of the issues in this portion of the case
UNITED ARTISTS THEATRE
ble but that he did not recall. Hankin also denied making
the other statements attributed to him.
I credit Turner about these events. His recollection is
clear and quite specific. Hankin had no clear recollection
of the conversation. His demeanor during his testimonial
denials, qualified as they were, indicated to me that
Hankin was not searching his memory for the specifics
of conversations but was rather merely denying remarks
attributed to him based on a less than conscientious
effort to recollect. Thus, I find that Hankin did suggest
to Turner that his eligibility to vote depended on his ulti-
mate preference for or against the Union. While this as-
sertion is substantive nonsense, it is not necessarily im-
probable that such an assertion was made. Hankin was
admittedly ignorant of the rules regarding unions and the
election process early in his employment with Respond-
ent. A statement to an employee that his eligibility to
vote in an NLRB election is dependent on his selection
on the ballot is a misrepresentation of the law. Further, it
is a statement that exercise of statutory rights depends on
the employee's union or nonunion preferences. Such a
statement from an employee's new employer is reason-
ably calculated to chill employee exercise of Section 7
rights and therefore violates Section 8(a)(1) of the Act.
Turner also testified to an occasion when employees
returned from a union meeting wearing-apparently for
the first time-buttons which identified the wearers as
supporters of the Union. Turner recalled that Hankin,
after noticing the buttons worn by his staff and under-
standing their significance, spent a period of time con-
spicuously staring at the buttons worn by the employees.
Thereafter, Turner observed Hankin go into Sherman's
office. Later that day Turner overheard Hankin ask em-
ployee Issac Price for a list of the first and last names of
the employees in the group, Price inquired of the reason
and Hankin declined to explain. Hankin recalled that em-
ployees frequently wore union buttons. He also said he
had asked several employees in the group for names of
employees but only as a means of committing' them to
memory as a new employee himself.
The General Counsel argues that Respondent, through
Hankin's conduct described above, created the impres-
sion among employees that their union activities were
under surveillance and engaged in actual surveillance of
union activity. I disagree. There must be more to illegal
surveillance than otherwise benign conduct by a supervi-
sor where the union activity is open and ongoing at the
worksite . Subjective feelings of employees are not suffi-
cient to sustain such an allegation. Honda of Mineola, 218
NLRB 486 (1975). There is insufficient evidence on this
record to sustain the General Counsel's burden here. I
shall therefore dismiss the allegations of the complaint
directed to this conduct.
(2) Attributed by Leigh Wentworth
Wentworth testified to a conversation initiated by
Hankin a week or two before the election regarding the
Union. Hankin asserted he was against the Union. Went-
worth answered that she was for it. Hankin, in a general-
ly promanagement argument, reasserted a theme he had
raised earlier in group meetings, see discussion infra: If
the Union came in, timecllocks would be installed by
123
management-with a resultant tightening in working
conditions. Hankin recalled a single discussion with
Wentworth in a group setting and could not recall any
similar discussion with her thereafter. Based on demean-
or and my conviction that Hankin's recollection of
events is either faded or has not been diligently searched,
I find his denials unconvincing. I credit 'Wentworth
about the above events. As previously discussed, the as-
sertion that working conditions would deteriorate if the
Union organized Respondent is a simple threat without
pretense and is without the immunity that Section 8(c) of
the Act affords objective predictions of events in other
circumstances . Hankin's statement violates Section
8(a)(1) of the Act and I so find.
(3) Attributed by Roseann Gordy
Current employee Roseann Gordy testified to a chance
meeting with Hankin in early August. She testified that
as she was introducing her son to her ;superiors at the fa-
cility she met Hankin. Hankin ignored her son and told
her: "I understand the union's coming in." Gordy ig-
nored the remark and the encounter ended. Hankin re-
called no separate conversation with Gordy save for the
group meetings discussed infra. I found Gordy a very
credible witness with an impressive demeanor. As noted
supra, I distrust the quality of Hankin"s denials based on
his asserted absence of recollection. I credit Gordy over
Hankin here.
Hankin's statement does not rise to the level of a coer-
cive interrogation under Board cases. The remark does
not reasonably solicit a response which will reveal the
employee's knowledge of union activities. Nor does Han-
kin's comment improperly create the impression of sur-
veillance of employee's union activities. The statement
does not reveal how Hankin's understanding was formed.
It could not be reasonably assumed by Gordy based on
this remark that employee union activity was under em-
ployer surveillance. South Shore Hospital, 229 NLRB 363
(1977); G. C. Murphy Co., 217 NLRB 34, 36 (1975). Ac-
cordingly, I will dismiss that portion of the complaint di-
rected to this conduct.
(4) The group meetings
As accounts payable manager, Hankin supervised 16
employees who were organized into four teams of four
employees each. Each team was headed by a group
leader. Within a few weeks of starting his job, Hankin
met separately with each group, without the group lead-
ers. In one group was Ms. Wentworth and Ms. Sharon
Nash. In another was Allen Mason, Annette Morrison,
and Roseann Gordy.
Wentworth testified that the meetings occurred in Sep-
tember and that Hankin discussed a need for improved
attendance. She recalled that Hankin asked if she had at-
tended any union meetings. He also asked what she
thought of the Union. She said she was prounion. Hankin
then, in her recollection, became "chummy"' and said
that her prounion view was "good." He noted, however,
that if the Union came in there would not be as much
employee "freedom" and that timeclocks would be in-
stalled. She also recalled that the she asked Hankin about
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases. Hankin replied that he could not talk
about giving raises because the union was "tying his
hands" but that he was going to work on it when he had
a little more time.
Gordy testified that Rankin suggested there would be
a lot of changes made and that employees would be
"weeded out." She did not recall Rankin initiating the
term "troublemakers" but said he later used the term in
discussing problems at the facility. He discussed new im-
provements in the physical surroundings of the work
place including potted plants, etc. Allen Mason chal-
lenged Rankin in this regard suggesting the employees
should receive the moneys which would otherwise be
expended by the Employer for new furnishings directly
in the form of wage increases. Gordy recalled that a new
system involving three warnings preceding a discharge
was also mentioned by Rankin.
Allen Mason testified that Rankin asked if they had
signed authorization cards and the names of others who
signed. He also asked if the employees had attended
union meetings and the names of other employees who
had attended. Mason recalled that he told Rankin that he
had attended meetings. Mason also recalled that Hankin
said that he would like to give employees raises but with
the union matter his hands were tied.
Rankin recalled Mason's remarks at the group meet-
ing. Rankin testified that Mason responded to his an-
nouncement of upcoming physical improvements by
"saying something about instead of the union coming in
we should get better salaries, that the pay was too low."
Hankin responded that his "hands were tied, I just had
no position to come from." Hankin specifically denied
asking employees about union meetings or who had
signed union authorization cards. He could not recall
Mason saying anything about filling out a union card.
Save for the "time clock" remarks which he admitted,
Rankin specifically denied making any remarks regarding
adverse consequences to employees if the union orga-
nized the facility. He specifically denied threatening to
get rid of or "weed out" employees. Rankin recalled that
after meeting with management attorneys regarding
proper conduct during the Union's campaign "I think
mainly what I did was asked [sic] them if they were
voting for the union or not voting for the union."
As noted previously, I have no confidence in Hankin's
recollections concerning what he said and did during this
period. It is clear that initially he was inexperienced re-
garding organizational campaigns and not familiar with
the constraints of the law on management's conduct.
Further, I have consistently discredited him regarding
remarks attributed to him by employees which remarks
he denied having made. I continue to do so here. I find
Hankin's demeanor to be significantly inferior generally
to that of employees-save as specifically noted-and be-
lieve he found it convenient to fail to recall the extent
and strength of his remarks to employees regarding
union matters. Rankin, it seemed to me, was endeavoring
to admit a portion of his conduct but to deny those re-
marks which in his current view were particularly em-
barrassing to admit. In contrast to the testimony of
Hankin, Wentworth, and Mason gave corroborative testi-
mony regarding Hankin's interrogations concerning
union activities and of Hankin's suggestion that the
Union had "tied his hands" with respect to wages.
Gordy, a current employee, has been credited earlier
based on her sound demeanor. She exhibited a specific
recollection of Mason's remarks at the group meeting as
well as Hankin' s statements he was going to get rid of or
"weed out," in his adopted phrase, "troublemakers." I
rely on each employee's testimony for the portions of the
meeting they specifically recall and, disregarding Han-
kin's denials, find the meetings occurred as described by
this credited composite of testimony.
Based on this finding it is clear that Rankin violated
Section 8(a)(1) by: (1) interrogating employees about
their union activities and the union activities of other em-
ployees in signing authorization cards and attending
union meetings; (2) telling employees that the union "tied
his hands" on wages increases; (3) threatening employees
with adverse working conditions, i.e., loss of "freedom"
and the imposition of a timeclock if the Union came in;
and (4) threatening to get rid of "troublemakers."
I do not find, however, that Hankin's newly imposed
warning system was created because of the Union or that
the promise of new furnishings were other than business
decisions. Rankin was a new employee and such sugges-
tions could well come from such a new supervisor and
be implemented at his request.
(5) The Hankin-Chris Graham event
Employee Chris Graham and other employees attend-
ed a union meeting during the organizing campaign. On
their return, Rankin and Graham had a brief conversa-
tion in front of other employees and then the two en-
tered Hankin's office. Current employees Owens and
Trujillo and former employee John DeMarsh testified
similarly that Hankin approached the group and asked
Graham if he had gone to the union meeting. Graham in-
dicated he had. Rankin told Graham to step into his
office to talk. Graham and Rankin did so. After a period
of time Graham left Hankin's office.
Rankin testified that Graham on several occasions
came to him and volunteered to tell him about the union
meetings. Rankin recalled one occasion where Graham
mentioned the matter on the "floor and I didn't want to
get caught up out there so I said let's just come in my
office and talk about it." Hankin also testified: "Graham
told me he had been to a meeting and that he wasn't for
the union and if I'd like to know what happened in the
meeting and I said yah. And we went into my office,
with the door closed . . . ." Graham did not testify.
There is essentially no substantive difference between
the versions testified to or their legal consequences.
Were there a difference, I would unhesitatingly credit
the corroborated version of employees over Hankin's for
the reasons noted supra. Hankin's conduct violated Sec-
tion 8(a)(1) of the Act for it created the impression
among the employees that their union activities were
under surveillance. The issue here is the impression not
the reality. Whether or not Graham volunteered the
UNITED ARTISTS THEATRE 125
union meeting information is immaterial." Hankin, in
front of the group of employees, expressed interest in re-
ceiving information about union meetings and then
joined Graham in his office--clearly creating the impres-
sion among the employees that their union activities
were then being divulged. Such conduct violates the Act
and I so find.
(6) By Adrena Owens
Current employee Adrena Owens testified that about
August 12 she walked into Hankin's office and he told
her, "I understand you guys are trying to form a union."
She responded, "Yes" and he said that he was for the
Union because working conditions were terrible. Owens
agreed and left immediately thereafter. Hankin specifical-
ly denied at any time making the statement attributed to
him. He admitted, however, "I'd asked her one time if
she was for the union, if she was going to vote for the
union." He recalled Owens did not answer the question
but added he knew she was for the union because she
wore "those buttons" all the time.
I credit the clear recollection of Owens over the pre-
viously discredited recollections of Hankin for the rea-
sons given, supra. I find Hankin's testimony about his re-
marks to Owens refers to a separate occasion. In either
version of the conversation, however , Hankin 's statement
violated Section 8(a)(1) of the Act and I so find.12
(7) Attributed by Charles Suntheimer
Suntheimer worked for the Employer from June 27,
1980, until April 1981, but was on hospital leave from
October 23 through November 3. He testified that he
was invited into Hankin's office on an afternoon in late
August or early September by Hankin and there had a
conversation with him alone. Suntheimer testified that
Hankin asked him if he had gone to the union meeting.
Suntheimer answered that he had. Hankin then asked
who else had attended the meeting. Suntheimer said he
could not say. Hankin asked if Shirley McGee had at-
tended. Suntheimer did not respond. Hankin then asked
what went on at the union meeting. Suntheimer said he
would not tell Hankin and that he should "watch what
he says and how he says it."
In early October Suntheimer had a conversation with
Hankin alone concerning office morale at which time
employee Adrena Owens' name came up. Suntheimer
testified:
i i Graham related the events of the union meeting to Hankin once in
the office but, although overheard by an employee listening outside, I
find the conversation was not intended to be public There is no evidence
Hankin violated Graham's Sec. 7 rights and no other employees were le-
gitimately privy to what occurred in the office Thus what was said in
the closed office does not violate the Act.
12 The difference between the remark found violative here and the
previous remark testified to by Gordy is that Hankin's remark to Owens
identifies her as one of the union organizers Such a statement is both
threatening (because Owens stands revealed as a union activist ) and cre-
ates the impression of surveillance The specific identification of Owens
as a union supporter is unlikely to have been learned from mere rumor
The statement implies surveillance as the source of the information and
thus creates the impression that union activities are being observed
Then [Hankin] says to me, "Adrena [Owens] really
thinks she's hot with this union thing, doesn't she?"
And I didn't really respond and then the phone
rang, and we-I started to leave the office and as
we opened the door we heard Adrena's voice, and
he said, in a mimic sort of deep South plantation
worker sort of voice, "There she goes again run-
ning her mouth. She thinks she's so hot and no-
body's her boss. Little does she realize that when
the union gets in, she will be one of the first ones to
go."
Ms. Owens is black, Hankin and Suntheimer are white.
Suntheimer testified to a conversation with Rankin on
the morning of November 5. Hankin told Suntheimer
that he had put Adrena Owens on assignment in a re-
search project on a lower floor in the "hopes of getting
her sick of it and quitting." Suntheimer also testified to
various conversations with Hankin concerning employee
raises. Suntheimer was promoted to group leader on Sep-
tember 18 or 19 and placed two conversations with
Hankin as occurring before his promotion and the re-
maining conversations after. In these conversations
Hankin told Suntheimer that he had across-the-board
raises planned for employees "when this union thing is
over." He variously suggested that once the "union
thing" was over raises would come "easier"; they would
be larger and they would come more often.
Although Suntheimer was not at work due to his
health as noted, supra, he came into the office about the
day before the election and had a conversation with
Hankin. Hankin asked him, in Suntheirer's recollection,
if he was coming in to vote the next day. Suntheimer
said yes. Hankin asked him how he felt about the Union.
Suntheimer responded that if what Hankin said in the
past was true, employees did not need the Union.
It is apparent from Suntheimer's testimony that Hankin
discussed a variety of things with Suntheimer including
matters, like Adrena Owens, which were not Sunth-
eimer 's concern as a group leader. Suntheimer acknowl-
edged that Hankin "discussed a lot of things with me I
didn't understand why he was discussing with me."
Hankin addressed portions of the conversations testified
to by Suntheimer. He did not deny all the remarks attrib-
uted to him nor the apparently free communication that
occurred between the two. As noted, supra, I found
Hankin's demeanor unsatisfactory during his examina-
tion. I place no reliance on his testimony with respect to
these conversations save where not inconsistent with that
of Suntheimer. Suntheimer demonstrated a sound de-
meanor. While it may appear implausible that Hankin
would reveal such confidences to Suntheimer, I note that
Suntheimer was promoted to group leader under Hankin
during this period and, further, there was no denial,
direct or indirect, by Hankin that this open relationship
existed. Accordingly, for all the above reasons-includ-
ing the important proposition that l[ do not believe
Suntheimer would deliberately falsify the conversations
but that Hankin could well self-servingly fail to recall
and therefore deny them-I credit Suntheimer's testimo-
ny over Hankin.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By the statements found above, Respondent , through
Hankin , engaged in the following conduct involving
Suntheimer : ( 1) interrogated him about his union activi-
ties and the union activities of others , (2).by indicating
Owens was prounion and would be terminated when the
union got in, threatened employees with termination be-
cause of their union activities , (3) by stating Owens was
being treated in a manner designed to induce her to quit,
indicated he was attempting to constructively discharge
employees because of their union activities , (4) promised
increased benefits for employees when the Union was de-
feated , and (5) interrogated him concerning his vote in
the election . Each of these acts and conduct separately
violates Section 8(a)(l) of the Act and I so find.
2. Alleged violations of Section 8(a)(3) and (1) of
the Act
a. The discharge of Allen Mason
(1) Focusing on the graffiti events as the key
element in the case
The circumstances of Mason' s discharge are somewhat
unusual and produced arguments by Respondent and the
General Counsel which are directed to fundamentally
different elements of the evidence . There is no dispute
that, following a series of events described in detail infra,
Respondent terminated Mason through the intervention
of higher management and that neither first level super-
vision nor Mason were given the reason , which Re-
spondent now asserts is the true reason, for Mason's dis-
charge.
Mason was an open union advocate and had clearly
displeased Hankin with his aggressive solicitation of
wage increases for employees. Hankin, as noted supra,
repeatedly violated the Act in dealing with employees
under his supervision . There is substantial credible evi-
dence to support a finding that if Hankin had been re-
sponsible for the termination , it would have been because
of Mason 's union and protected concerted activity. For
purposes of this analysis , I assume that there was no
proper basis for Hankin or any other agent of manage-
ment-given Respondent 's personnel practices and the
uncontradicted testimony of knowledgeable witnesses
about Mason 's satisfactory job performance-to fire
Mason save for the graffiti events discussed infra.
Respondent argues that Mason's termination resulted
from the graffiti events and treats those events as its
entire defense to the discharge . The General Counsel
argues that the discharge was based on Mason's conduct
independent of the graffiti question and that Respondent
is asserting that matter as a sham and pretext to cloak the
true illegal motive for the discharge, i.e., the desire to
obtain the removal of a known and vocal union advo-
cate. The General Counsel asserts repeatedly that the
fact that Respondent did not tell Mason or lower level
supervision of the new asserted motive for the discharge
is conclusive evidence of its falsity.
For the reasons set forth in greater detail immediately
below and in my analysis of the graffiti events, I accept
Respondent 's assertion that these events were the sole
cause of Mason 's termination . Without commenting on
the wisdom of the decision , Respondent , at the time it
terminated Mason , had reason to withhold the graffiti ra-
tionale from Mason as the reason for his termination.
Thus, the union election campaign was underway. A dis-
charge for the writing of prounion slogans was sure to
produce controversy. The two witnesses on which Re-
spondent would have to rely to support its claim of mis-
conduct had been given assurances of confidentiality. Re-
spondent therefore may fairly have perceived that its as-
sertion of the true reason for Mason 's discharge would
have caused more difficulty than the assertion of a false
but, in its view, less controversial reason.
In summary then, while I accept the proposition of the
General Counsel that, save for the graffiti events, Re-
spondent had no proper basis to fire Mason, I accept the
argument of Respondent that these events were in fact
the sole basis of Mason's termination . Thus, I find that
the merit of the discharge allegation turns on an exami-
nation and analysis of the graffiti events.
(2) The graffiti events
Respondent 's facility utilizes a two-story elevator. It
also contains separate public restroom facilities for men
and women . There had been no significant or unusual
occurrences of graffiti or written slogans appearing on
elevators or in restrooms until the union campaign was
underway. Commencing in August slogans in blue mark-
ing pen began to appear on the walls of the elevator and
the men 's restroom . There was no evidence offered con-
cerning similar markings , if any, in the women 's rest-
room. The Employer regularly removed the marks, but
graffiti would reappear in the elevator within a day of
cleaning and would reappear in the restroom within a
week. The slogans were in support of the Union and/or
against the Company.13
On September 8, Zimmerman issued a memo on Re-
spondent 's letterhead over his name which was distribut-
ed to all employees . It stated:
TO ALL UATC EMPLOYEES:
RECENTLY ONE OR MORE PEOPLE HAVE BEEN
WRITING GRAFFITI ON THE WALLS OF THE ELEVA-
TOR AND WASHROOMS WHICH ALL OF US USE. OBVI-
OUSLY , THIS IS DESTRUCTIVE TO THE WORKPLACE
WE ALL SHARE.
PLEASE BE ASSURED THAT THE COMPANY WILL
TAKE STEPS TO TRY TO PREVENT THIS IN THE
FUTURE. ANYONE FOUND TO HAVE BEEN INVOLVED
IN DEFACING OUR PROPERTY OR SIMILAR ACTS WILL
BE IMMEDIATELY DISMISSED.
MOST OF YOU , I AM SURE, WOULD LIKE TO ENJOY
NICE SURROUNDINGS AND DO NOT APPROVE OF
RECENT DESTRUCTIVE ACTIONS. IF ANY OF YOU
KNOW WHO IS RESPONSIBLE , PLEASE LET ME OR
YOUR SUPERVISOR KNOW . ANY INFORMATION WE
RECEIVE WILL BE TREATED CONFIDENTIALLY.
13 Examples are "Unionize Now," "Fuck United Artists," "We hate
UATC," "Union Now or Pow," and "No More Passes , You Fat Asses "
The term "Passes" is an apparent reference to the fact that Respondent
issued passes of free tickets to employees for certain film showings.
UNITED ARTISTS THEATRE 127
THANK YOU FOR YOUR HELP.
Former employee James Arnold, then employed as a
data control clerk, testified that about a week before he
received the September 8 Zimmerman memo he had
been in the cafeteria where he overheard Mason-who
he knew by sight and identified at the hearing-speaking
with a woman Arnold did not know but who he thought
was a new employee. Arnold testified that while in close
hearing distance but out of direct sight, he heard Mason
"bragging" that he had been the one writing graffiti on
the bathroom walls.
Former employee George Fazekas, a prounion em-
ployee, testified that 3 or 4 days before he received the
Zimmerman memo he had occasion to take the elevator
clown to the entrance with a friend. He observed that the
elevator had been recently cleaned and was free of graf-
fiti. As he left the elevator, he passed Mason who en-
tered the elevator and took, it to the upper floor. Mo-
ments later Fazekas decided to return to the second floor
to retrieve a forgotten item . He proceeded to the eleva-
tor entrance and entered the now empty elevator which
had moments before recycled down from its previous
use. Fazekas entered the elevator and observed that the
elevator, clean minutes before, was defaced with graffiti.
Fazekas and Arnold had occasion to discuss their ob-
servations on reading Zimmerman 's memo. They decided
to report their experiences to Zimmerman. Later in the
working day of September 8, they jointly went to Zim-
rnerman 's office and there asked to speak to him. Zim-
rnerman spoke to each separately. Arnold and Fazekas,
in each instance corroborated by Zimmerman, testified
that they related the above-described observations to
Zimmerman. Zimmerman further recalled that Fazekas
added that his motive in reporting to Zimmerman was
his belief that the continuing graffiti was hurting the
union campaign which he supported. Arnold told Zim-
nnerman , in Zimmerman 's recollection , that he also felt
that the practice of issuing free theater passes might be
jeopardized if the defacing was not stopped. Zimmerman
thanked each for his report and assured them that their
reports would be maintained in confidence. The employ-
ees then left and, insofar as the record reflects, told no
other employees of the events.
Allen Mason specifically denied ever claiming respon-
sibility for writing the graffiti or for ever actually writ-
ing it. He could not recollect the incident involving Fa-
zekas and the elevator.
Zimmerman testified that the reports of Arnold and
Fazekas had not been anticipated by him and he had not
previously suspected Mason. Due to the lateness of the
hour he took no further action that day. The next morn-
ing he called his labor counsel, Steven Conhain. He re-
lated the reports he had received and asked Conhain's
advice. Conhain asked how long Mason had been em-
ployed and what type of employee he was. Zimmer-
man--apparently while holding the telephone line-
learned from Sherman and reported to Conhain that
Mason was a probationary employee with less than 90
days' service and that Sherman and Hankin thought
Mason had a poor attitude . Conhain counseled no action
be taken that day but suggested they further discuss the
matter at their then scheduled meeting to be held the fol-
lowing day, September 10. At that meeting Zimmerman
and Conhain again discussed the situation. Conhain ulti-
mately advised that Mason be terminated but that neither
Mason nor others be informed of the true reason. Rather,
he counseled that Mason be terminated assertedly be-
cause of his bad attitude during his probationary service.
Zimmerman acceded to Conhain's advice and told Sher-
man to fire Mason due to his poor attitude during his
probationary period. Zimmerman did not talk to Mason
nor did he reveal to Sherman-or Hankin the reason he
had decided to discharge Mason. Mason was thereafter
terminated.
The testimony regarding the conversations Zimmer-
man had with Arnold, Fazekas, and Conhain are uncon-
tradicted. Conhain did not testify. Arnold and Fazekas
corroborated Zimmerman . I find that the events of Sep-
tember 8 forward occurred as testified. I further find that
Zimmerman neither initiated the actions of Arnold and
Fazekas nor did he have reason to disbelieve their re-
ports. I therefore find that Zimmerman believed that
Mason was responsible for the graffiti as reported and
that his subsequent actions were based on that belief 14
(3) Analysis and conclusion
At the threshold I find that the writing of graffiti on
elevator walls and restroom walls of an employer is not
protected activity. Leon Ferenbach, 213 NLRB 373, 387
(1974); Emerson Electric Co., 196 NLRB 959 (1972). Fur-
ther the language of the various graffiti is also unprotect-
ed as obscene and offensive. Southwestern Bell Telephone
Co., 200 NLRB 667 (1972). It is further apparent, and I
find, that Respondent perceived the graffiti as "destruc-
tive to the workplace" and, before the identity of the
perpetrator was learned, had announced an intention to
immediately dismiss those employees responsible.15 I
have previously found that Respondent had a good-faith
belief that Mason was the perpetrator. I have also found
that Respondent had circulated a statement of intention
to fire the perpetrator. Having found this conduct is not
protected activity, I therefore find that Mason was not
fired for his union or protected concerted activities.'
Two issues remain for consideration. First, given my
finding that Zimmerman had a good-faith belief that
Mason engaged in the graffiti writing, is the question of
who actually wrote the graffiti relevant? The Supreme
Court ruled in NLRB v. Burnup & Sims, 379 U.S. 21
(1964), that a good-faith but erroneous belief by an em-
ployer that an employee had engaged in misconduct
during the course of protected concerted activity was
not a defense to the allegation that a discharge based on
14 The General Counsel argues that Mason was never confronted with
the allegations and therefore Respondent was not in fact concerned with
their truth I disagree As noted, supra, there were reasons to avoid publi-
cizing the basis of the termination in the middle of the election campaign
15 There was no evidence offered regarding the existence of any com-
pany policy, rule, or practice regarding defacing of property
16 In the alternative, consistent with the Board's recently established
casualty standard set forth in Wright Line, 251 NLRB 1083 (1980)f enf
denied in relevant part 662 F 2d 899 (1st Cir 1981), I find that Respond-
ent would have fired Mason in any event irrespective of his union and/or
protected concerted activity
1,28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the misconduct violated Section 8(a)(1) of the Act. Jus-
tice Douglas writing for the Court added in obiter dicta,
"Had the alleged [misconduct] been wholly disassociated
from Section 7 activities quite different considerations
might apply" (379 U.S. at 24). The question then arises:
Was the misconduct herein sufficiently associated with
protected activity so as to require more than a good-faith
belief by Respondent that Mason engaged in the miscon-
duct, i.e., need the Employer be correct in its belief?
Longstanding doctrine establishes employee rights to dis-
play slogans, etc., at the workplace absent special consid-
erations. Republic Aviation Corp. v. NLRB, 234 U.S. 793
(1945); St. Joseph's Hospital Corp., 225 NLRB 348 (1976);
Singer Co., 199 NLRB 1195 (1972); Publishers Printing
Co., 246 NLRB 206 (1979). Thus the dissemination of
prounion slogans may constitute protected activity. Does
this decisional line sufficiently approach the instant graf-
fiti situation to render the misconduct attributed to
Mason "not wholly disassociated from Section 7 activi-
ties?" I conclude not. My conclusion turns on the propo-
sition that the writing of graffiti or defacing of the Em-
ployer's property as a means of the propagation of slo-
gans is under no circumstances a protected activity and
therefore, at the threshold, the conduct is disassociated
from Section 7 activity and is clearly unlike misconduct
occurring during the course of protected activity. There-
fore, I find Respondent's good-faith belief that Mason en-
gaged in the described misconduct constitutes a complete
defense to the allegation that Mason was illegally termi-
nated. I therefore find the question of whether Mason
did or did not in fact have any role in defacing of prop-
erty is irrelevant. t 7
A second issue remaining is whether or not Conhain,
by asking Zimmerman what kind of employee Mason
was before recommending his termination, was by impli-
cation suggesting that had Mason been an excellent em-
ployee he would not have been fired. Were this so, it
17 Because of the possibility that reviewing authority may reject or
modify my conclusion in this respect, and in order to avoid a resultant
remand for further findings on the issue, I make the following conditional
findings regarding the graffiti I fully credit the testimony of Arnold and
Fazekas who were superior witnesses with sound demeanor and no ap-
parent motive to testify falsely Indeed Fazekas both expressed and the
record substantiates a prounion position which buttresses his credibility.
Mason's testimony with respect to this issue is unworthy of belief
Mason's direct contradiction of the statements Arnold attributed to him
first as a witness on the stand and second through his outbursts as a spec-
tator in the courtroom during the testimony of Arnold were unpersua-
sive. I also found his denial that he had defaced the facility to be incredi-
ble, largely based on demeanor, Considering the indirect evidence deriv-
ing from the credited testimony of Arnold and Fazekas and the specifi-
cally discredited denial of Mason, I find that there is sufficient evidence
to find-even assigning the burden of proof to Respondent-that Mason
did in fact "brag" of writing graffiti within the hearing of Arnold and
that he wrote graffiti on the elevator walls consistent with the description
of Fazekas.
In making this credibility resolution, I also discredit the testimony of
Adrena Owens that another employee, Keeton, no longer with Respond-
ent, told her soon after Mason's termination that Keeton had written on
the lavatory and elevator walls and that Mason had been fired for some-
thing he did First, there is no evidence that the graffiti situation was
known to be the basis of Mason's termination at the time of Keeton's pur-
ported admissions to Owens. Second, Owens had only recently disclosed
to the General Counsel that she had had this conversation. Lastly, Owens
exhibited a significantly inferior and unconvincing demeanor during her
testimony concerning this conversation.
may be argued that the report Zimmerman received and
related to Conhain, that Mason had a "bad attitude," was
a contributory cause of Mason's termination. Thus,
Mason would not have been terminated if Conhain had
been told Mason was a satisfactory employee. If the "bad
attitude" appellation were the product of animus against
Mason's protected concerted activity, then, under this
theory Mason's protected activity may be regarded as
the cause of his discharge irrespective of the graffiti alle-
gations. I reject this argument. I find that the Conhain-
Zimmerman deliberations were over the way to handle
Mason's termination and were not deliberations over
whether or not to fire him. Thus, I find Mason would
have been fired irrespective of the "bad attitude label."
In making this finding I place special weight on Zimmer-
man's September 8 memorandum announcing that em-
ployees responsible for defacing property would be dis-
missed. Thus, I find that the label "bad attitude" affixed
to Mason, even if it resulted because of his protected
concerted activity, did not cause or in any way contrib-
ute to his termination.18
Based on all the above, I find that Mason was termi-
nated because Respondent had a good-faith belief that he
engaged in the unprotected act of defacing the Employ-
er's facility with obscene graffiti. I further find that
Mason's protected concerted activity was not a factor in
his discharge. Therefore, I find that Respondent did not
violate the Act when it terminated Mason. Accordingly,
I shall dismiss the allegations of the complaint with re-
spect thereto.
b. The warnings and transfer of Adrena Owens
(1) The warnings
In June, employee Adrena Owens was promoted to
group leader, a newly created nonsupervisory lead posi-
tion. She testified that she was verbally warned by
Hankin on August 21 and issued a written warning by
him on August 23. The written warning she received
was placed in evidence. It is dated September 9. Thus it
is clear the date Owens received the written warning is
September 9. The error by Owens in dating the second
warning places the date of the first warning in substantial
doubt.
Owens recalled that in the first warning conversation,
Hankin warned her about excessive talking and eating at
her desk. He told her that continuation of such conduct
could be grounds for termination. Owens testified that
her talking was not excessive and that her eating prac-
tices were consistent with those of other employees and
had not been previously criticized. There is employee
support for these assertions. The September 9 written
18 Even were Ito accept the proposition that the graffiti events would
not have caused the termination of Mason without Sherman's report to
Zimmerman, a proposition I specifically reject, I would further find it
was Mason's probationary employee status which would then have result-
ed in the ultimate termination decision and not the "bad attitude " charac-
terization. This is so because probationary status was regarded by Zim-
merman, as is apparent from the substance of the Conhain -Zimmerman
conversation, as allowing adverse action to be taken against such employ-
ees which might not be equally proper if taken against nonprobationary
employees.
UNITED ARTISTS THEATRE
warning given Owens stated in part that her perform-
ance had been 'unsatisfactory in regards to attendance,
tardiness, and excessive talking. It continued:
Your excessive talking has also been discussed with
you at various times by Jim Sherman, Jan Resser,
Paul Ziegler and myself. In your new position, you
are a role model (an example) for your group and I
am sure you can understand that poor attendance,
tardiness, and excessive talking creates a bad exam-
ple for the group.
The memo concluded that continued failure to perform
satisfactorily as a group leader would result in Owens'
termination.
Hankin testfied that he had had occasion to talk to
Owens about her performance and in particular his un-
happiness with her absenteeism and tardiness. He re-
called doing so on only three occasions. Two of these
times, with the September 9 warning constituting the
third, occurred subsequent to these events and are not
under attack by the General Counsel. He did not recall
the alleged August 21 warning. Hankin testified that the
September 9 memo was prompted by Owens' numerous
absences from work earlier in the month. Owens' attend-
ance records, however, indicate she had no absences fol-
lowing August 19 although she had been absent on three
occasions in August.
I have, with some consistency, discredited the testimo-
ny of Hankin particularly when he denied remarks attrib-
uted to him by employees Although I have credited
Owens in part, supra, I have also discredited her about
the Keeton conversation. Were the evidence described
above the only evidence on this issue, I would be in-
clined to find that the General Counsel had not meet _his
burden of proof on the warning allegations. It is essen-
tially improbable, absent an almost transparent animus,
for Hankin to have warned Owens regarding eating at
her desk when there was uncontradicted evidence that
her conduct in this respect was unexceptionable. Further,
the September 9 written warning alludes to a series of
previous conversations with Owens by other supervisors
regarding her excessive talking. Owens did not challenge
the factual assertions in the written warning when she re-
ceived it.
I am persuaded that the General Counsel's case has
merit., however, by considering the various other cred-
ited statements attributed to Hankin, especially those tes-
tified to by Suntheimer, indicating that Hankin harbored
specific animus towards Owens because of her union sup-
port. The critical evidence in my view carries the Gener-
al Counsel's burden of showing that Hankin issued the
warnings to Owens because of her union activities and I
so find. Given this prima facie case, the burden of proof
shifts to Respondent to show that Owens would have re-
ceived the warnings even if she had not engaged in pro-
tected activity. Wright Line, 251 NLRB 1083 (1980), enf.
denied in relevant part 662 F.2d 899 (1st Cir. 1981). The
evidence offered to justify the warnings when compared
to the situation of other unwarned employees is inad-
equate to meet that burden. Accordingly, I find that the
oral and written warnings issued to Owens by Hankin, as
129
described above, were issued because of Hankin 's hostili-
ty to Owens' union activities in violation of Section
8(a)(3) and (1) of the Act.
(2) Owens' transfer
In late October, a special research project was under-
taken to identify and pay certain long outstandng bills
which were not being timely processed by the accounts
payable department. There is no evidence that the
project was established for other than !legitimate business
reasons. A variety of employees were assigned to the
project on an initial and temporary or ad hoc basis. After
several weeks their numbers diminished as employees re-
turned to their regular duties - until, ultimately, Owens
was the only employee assigned to the project, The
project was apparently subsequently discontinued but
Owens remains doing the same type of work which is
different at least to a degree from the work she did
before her transfer. Indeed, Owens testified she did not
realize the project had been discontinued because her
work had remained essentially unchanged.
The project employees were located in a conference
room rather than in the accounts payable area. The
terms and conditions of work were essentially identical
to normal accounts payable work save for the different
location and for the fact that the project work involved
perusal of old records and files. This process involved
use of viewing equipment which, at least in the eyes of
some employees, is tedious and produces eye fatigue and
headaches. While Zimmerman, who was involved in the
creation of the project, testified that he did not regard
the work as more onerous than other accounts payable
work, Hankin testified that he did regard the project
work as less desirable.
Owens was initially told by Hankin that she would be
assigned to the project for an indefinite period. When
Owens expressed uncertainty regarding the transfer,
Hankin told her the new job was not a demotion. No
agent of management ever told Owens her transfer was
based on reasons other than her superior job skills. From
time to time Owens expressed a desire to leave the
project to Hankin and Zimmerman. Each indicated she
was still needed on the project and would have to
remain at that task for a time.
There is little objective evidence which allows a deter-'
urination of whether Owens was the sole person or one
of a few persons best qualified to be assigned to the job
in question. The project's creation was free from imper-
missible motives. There is no basis to conclude that the
continued assignment of one employee to project-type
work, at least through the time of the hearing, was other
than proper. Given such, a paucity of evidence which
would allow a decision as to whom should have been as-
signed the work, the General Counsel, having the burden
of proof on the allegation, can not prevail without more.
Again, however, evidence of the specific animus of
Hankin directed toward Owens is relevant. Hankin told
Suntheimer on November 5-according to the credited
testimony of Suntheimer-that he had transferred Owens
to the project in the hopes that she would become sick
of the work and quit. This is tantamount to an admission
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, irrespective of appearances, Hankin chose Owens
for the job because of her union activities. It further
shows Hankin well knew Owens would regard the posi-
tion as onerous and he hoped to induce her to quit. De-
spite the testimony of Zimmerman that he chose Owens
for the job, I find that Hankin had a participatory role in
Owens' selection and retention for the project.19 Hankin
thus could consummate his illegal plan and I find he did.
Accordingly, I find, based on: (1) the admission of
Hankin testified to by Suntheimer (2) the animus previ-
ously found against Owens, and (3) Hankin's ability to
influence Owens' assignment, that the General Counsel
has established his prima facie case that Owens was
transferred to the research project and retained in similar
work thereafter because of her union activities. Again, as
previously noted, given this threshold finding, the
burden shifts to Respondent to show that Owens' trans-
fer would have occurred even if Owens had not engaged
in union activity. Respondent has not met that burden
and therefore the General Counsel prevails on the allega-
tion. Wright Line, supra; Atlas Corp., 256 NLRB 91
(1981). Accordingly, I find that Owens' transfer to re-
search work, which was regarded by Owens and Hankin
as lesser quality work, violates Section 8(a)(3) and (1) of
the Act.
(3) Attempt by the General Counsel to amend
complaints in posthearing brief
An issue at the hearing was the unit inclusion or exclu-
sion of a host of employees. Generally, the General
Counsel took the position that the individuals in dispute
should be excluded from the unit even though in some
cases the individuals voted in the election without chal-
lenge. Respondent argued, generally, that the employees
should be included in the unit. The General Counsel
argued on brief that Respondent "with the intention of
packing the voting unit in such a way as to insure the
defeat of the Union in the Board election" improperly
transferred employees into the bargaining unit. The Gen-
eral Counsel argued further:
In these circumstances, the Administrative Law
Judge is urged to find that Respondent violated
Section 8(a)(1) of the Act by expanding the size of
the voting unit in order to dilute the ballots of bona
fide employees so that their desire for union repre-
sentation would be frustrated. . . . Finally, while
Respondent may argue that this allegation was not
specifically alleged in the complaints it was litigated
at the hearing, and Respondent had the opportunity
to present evidence and cross-examine witnesses in
this regard. Free Flow Packaging, 219 NLRB 925,
927-928 (1975), enf d 566 F.2d 1124 (9th Cir).
19 I credit Harkin that he had a role in the assignment of staff. Zim-
merman's demeanor with respect to his testimony concerning his exclu-
sive control of the project assignments was unconvincing Further, the
record indicated that Zimmerman consulted with his supervisors, includ-
ing Hankm, regarding employee merit I find, at least, that he did so here.
Zimmerman need not have known taht Harkin sought Owens' assign-
ment for improper reasons for the transfer to be improper, therefore I
make no finding with respect to Zimmerman's knowledge or motive re-
garding Owens
I do not reach the merits of the unit packing unfair
labor practice allegation because I believe the General
Counsel's attempt to amend the complaints is improvi-
dently late and therefore impermissible. I base this find-
ing on two grounds. First, I disagree with the General
Counsel's assertion that the matter was fully litigated at
the hearing. Evidence relevant to unit "packing" by Re-
spondent was in issue through the pleadings only as it re-
lated to unit placement issues. The unit issues were liti-
gated at length but I do not find either that the General
Counsel's unit packing theory was addressed by Re-
spondent or that Respondent was on notice that it should
have litigated the issue as a potential unfair labor prac-
tice. Clearly, the unit issues may be decided in Respond-
ent's favor without it adducing evidence on the "pack-
ing" contentions raised by the General Counsel. Indeed,
Respondent adduced considerable evidence offered for
the proposition that the contested employees were prop-
erly in the unit. It is, of course, obvious that if the em-
ployees were properly in the unit, the Employer proper-
ly put them on the election eligibility list and consider
them in the unit. In this context the instant case differs
from Free Flow Packing, supra, where the Board and the
court found that evidence which was the basis of posth-
earing complaint amendments was identical to the evi-
dence already litigated in the unfair labor practice case.
Further, in Free Flow, the complaint amendments had
been moved at the hearing and denied by the judge, who
was then reversed by the Board. Accordingly, I find the
issues and evidence relevant to the proposed amendments
were not fully litigated in the instant case.
My second ground for denying the amendment is its
timing. The General Counsel suggests, in the portion of
its brief quoted, supra, how Respondent may argue on
this issue but, inasmuch as the General Counsel raises the
amendment for the first time in its posthearing brief-a
brief to which Respondent is not procedurally entitled to
reply-Respondent does not argue the matter at all. As
the Board said in commenting on a motion by the Gener-
al Counsel to amend the complaint in Camay Drilling
Co., 254 NLRB 239, 240 fn. 9 (1979):
Moreover, to determine an issue of this magnitude
when it was raised for the first time as a post-hear-
ing theory would place an undue burden on Re-
spondent and deprive it of an opportunity to present
an adequate defense.
For both of the above reasons, I deny the General
Counsel's motion to amend the complaints and make no
findings regarding the "packing" unfair labor practice al-
legation .2 °
20 Were the allegation timely before me, I would further find on this
record that the General Counsel has failed to establish a prima facie case
that Respondent violated the Act as the proposed complaint amendment
alleges I would therefore dismiss the allegation on its merits
UNITED ARTISTS THEATRE 131
C. The Remedy
1. Traditional remedies
Having found Respondent has committed violations of
Section 8(a)(1) and (3) of the Act, I shall recommend
that it be required to cease and desist therefrom and take
certain affirmative action designed to effectuate the pur-
poses of the Act. Having found that Adrena Owens was
improperly issued a written warning and was improperly
transferred to a more onerous position in research, 1 shall
require Respondent to remove the warning and all refer-
ences to it in Owens' file and transfer her to the position
she would have held had she not been assigned to re-
search. The quantum and variety of Respondent's im-
proper conduct further warrants an order requiring it to ,
cease and desist in any other manner from violating the
Act. I shall also recommend that Respondent post the
usual remedial notices.
2. The General Counsel's bargaining order
request21
The General Counsel alleges and the Union agrees
that a majority of employees in the unit had selected the
Union as their representative. The General Counsel fur-
ther alleges and the Union agrees that the unfair labor
practices committed, by the Employer require that a bar-
gaining order issue against it. Such a remedy is provided
where there has been a properly established majority in
an appropriate unit and the unfair labor practices have
"the tendency to undermine majority strength and
impede the election process." NLRB v. Gissel Packing
Co., 395 U.S. 575, 614 (1969).22 A significant portion of
record evidence and argument was directed to the ques-
tion of whether the Union possessed a valid majority in
the appropriate unit at relevant times. On the facts of this
case, however, I view it more appropriate to first consid-
er the question of whether or not, even assuming a valid
majority was possessed by the Union at an appropriate
time, the unfair labor practices found, supra, justify or
require a bargaining order remedy.
The violations of Section 8(a)(1) and (3) found, supra,
are various and numerous. They involve a significant
number of agents of the Employer and a significant pro-
portion of Respondent's employees. The great bulk of
the violations are: (1) interrogations about union senti-
ments and activities or voting intentions, and (2) the so-
licitation of employee surveillance and creation of the
impression of surveillance of employee union activities.
This conduct restrains and coerces employees even with-
out the occurrence of explicit threats. Such conduct is
however less likely than direct threats to undermine the
Union and so impede the election process as to require a
bargaining order.
21 A bargaining order as a remedy for employer unfair labor practices
is a matter independent of any certification under Sec 9 of the Act
which may accrue to the Union in the representation case Great Atlantic
& Pacific Tea Co Inc, 230 NLRB 102 (1977), Holding Co, 231 NLRB
383 (1977)
22 Neither the General Counsel nor the Union contends that a bargain-
ing order would be appropriate unless the Union has obtained a valid ma-
jority
Direct threats to employees have a serious effect on
employees. The effect of threats, of course, varies de-
pending on the consequences threatened. Threats to an
employee's economic livelihood, e.g., threats to termi-
nate a particular individual or general threats to close a
facility, are regarded as among the most serious and fla-
grant forms of interference with employee rights. Armcor
Industries, 227 NLRB 1543, 1544 fn. 5 (1977). They are
also difficult to remedy. NLRB v. Gissel Packing Co.,
supra at 611 fn. 31. In the instant case the following
threats: (1) Zimmerman's memoranda to employees
threatening mandatory interposition of the Union in the
handling of their grievances, (2) Hankin's statements re-
garding voter eligibility, (3) the threats that timeclocks
would be installed and that the working atmosphere
would be less relaxed if the Union got in, are of a lesser
type because they do not directly threaten the employ-
ees' livelihood. They are also more likely remedied by
normal Board orders. More significant threats were Han-
kin's statements to employees that the Union had tied his
hands with respect to wage increases. Again, this threat
is less than blatantly explicit and, as evidenced by the
fact that wage increases and wage reviews continued
after his remarks, was not subsequently carried out. Thus
the effect of these threats were somewhat lessened by
events and the passage of time.
Hankin made more explicit statements to Suntheimer
and Owens including promises of wage increases, an ad-
mission of strong antiunion animus coupled with dis-
charge threats. Hankin also issued improper warnings to
Owens. These violations occurred in one-on-one conver-
sations and were sufficiently specific and limited as not
to become the subject of devastating rumors passed
among employees which in and of themselves render
correction and remedy by Board processes unlikely and
any future election ineffective. The illegal transfer of
Owens to a more onerous job in her department is also
of significance. Owens' transfer, however, while viola-
tive of the act for the reasons noted, supra, was neither
overtly obvious as retaliation because of her union activi-
ties nor was it a transfer to a job so objectively undesir-
able so as to excite fears among other employees.
The above recitation is not intended to diminish the
misconduct of the Employer's agents. It demonstrates,
however, in my view, that the unfair labor practices
found herein are qualitatively less severe than those
found in Board cases where a remedial bargaining order
was directed. Terminations, closure threats, illegal wage
increases, and widespread solicitation of grievances-all
are lacking here. Further, although not uniformly rele-
vant to analysis of the individual acts engaged in, the
Employer showed that many of the violations occurred
before its agents received instruction or guidance on
labor law and Board standards for employer conduct
from its counsel. Thus, there is at least some reason to
believe that the conduct-particularly with respect to
threats, interrogations, and surveillance-will not be re-
peated. This factor, along with the relatively large size
of the unit, is relevant in determining; if a remedial bar-
gaining order is necessary and appropriate.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For all of the above reasons and considering the
number and severity of the violations found as well as
the record as a whole, I conclude that the conduct en-
gaged in by the Employer herein does not rise to the
level requiring a remedial bargaining order. The record
reflects an insufficiency of egregious and lasting viola-
tions. It further contains a preponderance of violations
based on verbal misconduct involving implied threats or
threats of diffuse or nonspecific consequence. The re-
maining serious violations, under all the circumstances,
are simply not in conjunction with the other lesser viola-
tions, sufficient to warrant a bargaining order here. Ac-
cordingly, I shall deny the General Counsel's requested
bargaining order relief.23
IV. THE CHALLENGED BALLOTS
The challenged ballots present separate questions and
are best resolved seriatum.
A. John Merle Kaiser
Kaiser's ballot was challenged by the Union which,
along with the General Counsel, contends he is not an
eligible voter because he is a professional employee, a su-
pervisor, and/or a managerial employee. Respondent
contends Kaiser's ballot should be opened and counted
and denies any basis exists for rejecting his vote.
Kaiser had over 40 years tenure with the Employer.
Although his exact title was disputed, his position in-
volves audit responsibilities and inventory control of the-
ater concessions. He also oversees a theater repair em-
ployee. Although Kaiser has not received a degree in ac-
counting nor is he a certified public accountant he at-
tended two accounting institutions for a substantial
period and he had been employed in an accounting ca-
pacity for almost 50 years.24
Kaiser is the sole auditor for the San Francisco divi-
sion and does not work with the Employer's other ac-
countants. His office is physically near Respondent's
president with whom he shares a secretary. Kaiser re-
ports directly to the general manager of operations and
conducts audits at his request. He also prepares reports
and statistical studies at the request of the controller/-
treasurer.
Kaiser's audits are sometimes done at particular thea-
ters and have resulted in personnel changes at the audit-
ed theaters based on improprieties or negligence uncov-
ered by the audit. Although Kaiser had on occasion re-
ceived specific instructions regarding the items to be ex-
amined in particular audits, he testified that he generally
applies his own experience and knowledge of accounting
procedures in carrying out his duties. He also utilizes his
25 Even if the Union had achieved a majority at a relevant time, I
have found a bargaining order inappropriate It is unnecessary, therefore,
to make any findings with respect to the majority question, i e, findings
regarding (1) the validity of the authorization cards put into evidence, (2)
the number and identity of individuals properly in the unit at relevant
times, and (3) other issues strictly limited to the question of the Union's
majority. Accordingly, I make no findings with respect to these matters
24 I notice judicially that half a century ago technical training and pro-
fessional education was completed with the awarding of fewer formal de-
grees and certifications.
accountancy skills in the preparation of his reports such
as concession cost comparisons or sales projections, etc.
I find that Kaiser, by virtue of his specialized training
and long experience as an accountant, despite the fact
that he does not hold an advanced degree, regularly uti-
lizes his accountancy expertise on behalf of the Employ-
er. Not all accountants are either managerial or profes-
sional employees. Kaiser however, unlike many account-
ants working on routine matters as part of a large depart-
ment with regular supervision, is clearly a special em-
ployee of Respondent. He reports to the general manager
of operations directly and conducts audits outside the fa-
cility. He works with little supervision. The record indi-
cates and I find that in the performance of his duties
Kaiser exercises independent judgment with respect to
the conducting of audits in order to determine if an au-
dited operation is properly performing. It is clear that
such work is not merely clerk's work. I find that these
audits necessarily involve the use of independent judg-
ment--which is further reflected in the special studies
Kaiser undertakes. Such independent judgment renders
Kaiser a managerial employee under Board standards.
General Dynamics Corp., 213 NLRB 851, 860 (1974).
Managerial employees are not properly in the unit. Ac-
cordingly, I shall recommend that the challenge to his
ballot be sustained.25
B. Lloyd Nohrden Morgan
Morgan's ballot was challenged by the Union. The
Union and the General Counsel contend than Morgan's
ballot should not be counted because at the time of the
election he was both a professional and a managerial em-
ployee.
Morgan is an employee with over 20.years' experience
with the Employer. He holds an undergraduate degree
and has done postgraduate work. He had been Respond-
ent's office manager and manager of account controls
and bank reconciliation before assuming his current posi-
tion. For about 2 years he had been employed in the real
estate department under the supervision of Arnold Child-
house, Respondent's senior vice president.
Morgan testified to his main duties as follows:
Essentially to review and pay real estate and unse-
cured taxes, to pay business licenses and other fees
pertinent to theater operation . . .. The bills are di-
rected to me, either by the source of billing or by
the mailroom in the corporation. I review them.
Within certain latitudes, company policy, I know
they are correct from 21 and a half years, I pay
them. I draw an authorization for payment form,
put it through a clerk who types the check and its
25 Having determined Kaiser is a managerial employee, it is unneces-
sary to determine if his relationship with respect to the theater repair em-
ployee renders him a supervisor within the meaning of the Act It is also
unnecessary to decide Kaiser's status as a professional employee Were it
necessary to do so, I would also find Kaiser regularly exercises profes-
sional judgment in the exercise of the accounting duties described above
I remain impressed by the need for independent judgment in Kaiser's
audit and special project functions. I would therefore also sustain the
challenge to his ballot on this ground Aeronca, Inc, 221 NLRB 326
(1975).
UNITED ARTISTS THEATRE 133
paid, returned to me and its sent to the billing au-
thority.
Morgan also inspects Respondent's various properties at
the direction of Corporate Counsel Mahler and reports
to Mahler on their state of repair and the condition of
their surrounding neighborhoods.
Morgan labels himself as just a clerk. Respondent
argues his duties are routine and clerical in nature and
involve the nondiscretionary application of Respondent's
standard operating procedures. I disagree with Respond-
ent's argument and, discrediting Morgan's attempts to di-
minish the extent of his application of independent judg-
ment to his work, find him to be a managerial employee.
Morgan is higher paid than all other argued unit mem-
bers including the accountants and is paid significantly
more than almost all others. He has long held significant
positions with Respondent including supervisory and
managerial positions. His current work draws on his pre-
vious experience and, in my judgment, involves the exer-
cise of independent discretion both in his "latitude" to
pay taxes and in his inspection functions. Respondent
argues, "It would appear from the evidence that Mor-
gan's position is very little different from that of Kai-
ser's."' I agree. As with Kaiser, supra, I cannot accept
the view that these individuals of long service and sub-
stantial training and experience who are well paid and
who perform under the direct supervision of highest
management are but mere clerks. Each is a trusted em-
ployee using his training and experience to make inde-
pendent judgments. Their functions render them in my
view managerial employees. Accordingly, Morgan, like
Kaiser, is not properly included in the unit. I therefore
recommend that challenge to Morgan's ballot be sus-
tained.
C. Elvie Jean Stokes
The Union challenged the ballot of Stokes. The Union
and the General Counsel contend that Stokes at the time
of the election was a supervisor and, therefore, that the
challenge to her ballot should be sustained.
Stokes, as of the time of the hearing, had been em-
ployed for approximately 5 years by the Employer. In
June 1980 she was promoted to assistant to the manager
of accounts payable. She testified that in her capacity as
assistant to the manager she spent almost all her time
training new employees because of high turnover in the
department. Stokes specifically denied possessing the au-
thority to hire, fire, or recommend the hire or fire of em-
ployees. She denied that employees reported to her on
that she did performance reviews of employees. The
period of time she spent training new employees depend-
ed on their skills and learning and retention rate. During
training she would discuss the trainee with either Paul
Ziegler or Jack Hankin and tell them of the new employ-
ees' attitude, and give them her opinion of the employ-
ee's work quality and speed. After an employee was
trained, Stokes would continue to check on the employ-
ee. She testified: "I would just go around and asked [sic]
them how they were doing or just watch them occasion-
ally."
As assistant to the manager, Stokes was paid at a rate
higher than 30 out of 31 of the unit employees in the ac-
counts payable department . Further the salary of the as-
sistant to the manager position was set in consultation
with the manager and did not have a previously estab-
lished formal or informal rate as did the clerk and group
leader positions in the department . Employee Rick
Turner credibly testified that at the time of his hire in
September , Hankin told him that he had two supervisors,
Stokes and Ziegler, and to go to either with any prob-
lems. Further, he testified that Stokes was involved in his
training and told him about mistakes in his work. Turner
added that on occasion when he wished to leave work
early and Hankin was not available he would ask Stokes
for permission who told him she would report his leav-
ing to Hankin.
The General Counsel argues and I agree that Stokes
tended to diminish her position and authority during her
testimony . She initially identified her position as "train-
ing person" and specifically denied holding any other job
title or classification . Only on cross-examination did she
accede to her title of assistant to the manager . 26 For this
reason, and because I found her demeanor significantly
less satisfactory than that of other employees , I place
little reliance on her testimony diminishing her authority
when contradicted by the testimony of others such as
Turner.
Respondent argues correctly that Stokes' primary
training function is not , standing alone, sufficient to cloak
her with supervisory status under the Act. Neither is her
job title, although facially indicative of supervisory
status, significant without actual evidence of actual or os-
tensible supervisory authority . On this record , however,
I have no difficulty finding Stokes was a statutory super-
visor at relevant times. Hankin clearly held her out to
employees as a supervisor to whom employees should
bring problems. Stokes not only trained employees but
reviewed their performance after their training . She ob-
served their work, and pointed out mistakes to the em-
ployees. She reported to higher supervision her views of
employee attitude, progress , and general worth . Accord-
ingly, based on all the above and the record as a whole,
I find Stokes was a supervisor within the meaning of the
Act at the time of the election . I shall therefore recom-
mend the challenge to her ballot be sustained.
D. Martin Swearingen
The Union challenged the ballot of Swearingen be-
cause it alleges he was not an employee of the Employ-
er. The General Counsel joins the Union in arguing he is
not in the unit and that his ballot should not be counted.
Swearingen is employed by United Film Distributors,
a separate corporation wholly owned by Respondent.
Although there was little dispute of fact, the parties liti-
gated and argued at length regarding the relationship of
United Film Distributors to Respondent. Without decid-
ing that issue, a separate basis exists on which to deter-
mine Swearingen's voter eligibility.
26 Zimmerman had announced Stokes' promotion to assistant to the
manager of accounts payable by memo dated June 19
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swearingen testified he is a print booker who has cer-
tain films he "dates" with theaters, both Respondent's
and others. Respondent's film bookers hold equivalent
positions and, like Swearingen, handle films, screen titles,
and deal with theaters. It is clear that if United Film Dis-
tributors is properly regarded as one with Respondent,
Swearingen would share both a similarity of function
and a community of interest with Respondent's film
bookers. Respondent's film bookers are explicitly ex-
cluded from the unit. They were not eligible to vote in
the election. Therefore, I find that Swearingen, too,
should be excluded from the unit. Accordingly, without
deciding the issues regarding separate or joint employers,
I recommend that the challenge to Swearingen's ballot
be sustained.
E. Allen Mason
Allen Mason's ballot was challenged because his name
did not appear on the election eligibility list. The Union
and the General Counsel contend his vote should be
counted because he had been terminated by the Employ-
er in violation of Section 8(a)(3) and (1) of the Act.
For the reasons set forth, supra, I have determined
that Mason was not terminated in violation of the Act.
Since he was not employed at the time of the election he
was not eligible to vote. I shall, therefore, recommend
the challenge to his ballot be sustained.
F. Jack Michael Naify
Naify's ballot was challenged by the Union. Both the
Union and the General Counsel contend that his ballot
should not be counted because of a lack of community of
interest with other employees by virtue of his blood rela-
tionship to certain of Respondent's owners and manag-
ers.
Jack Naify's relationships to other Naifys who have
ownership interests in and actively participate in manage-
ment of Respondent are described, supra. I conclude that
these relationships do not per se remove Jack Naify from
the unit or render his ballot uncountable. Rather, the
issue determinative of the eligibility question is whether
or not Jack Naify shares a community of interest with
employees in the unit.
Jack Naify lives a substantial distance from his father
and, as an adult, lives a separate and independent life
from his relatives. Although there is evidence that he
"moonlights" in the evenings at certain theaters which
are also owned in part by his relatives, there is no evi-
dence that this independent employment has any bearing
on his community of interest with unit employees. Thus,
in my view, Jack Naify's working situation as an em-
ployee of Respondent at its San Francisco facility is the
sole factor relevant to determine the validity of his chal-
lenged ballot.
Jack Naify was hired as a film payable clerk about
May 1979. The film payable clerks work under the su-
pervision of David Van and all perform essentially the
same duties. Jack Naify was hired by the head film
buyer, Joseph Crotty, who is located in Los Angeles.
Jack Naify called Crotty and sought employment with
Respondent. Following an interview, Crotty offered
Naify employment at starting salary which Naify accept-
ed without further negotiation.
Jack Naify testified that he received absolutely no ad-
vantage from his name or his relationship to relatives
who have an ownership interest in Respondent or who
are in management. He described his work duties and
hours as no different from other film payable clerks. He
added that the work is not complex and was quickly
learned. These characterizations were challenged by wit-
nesses of the General Counsel. Christine Hanni testified
that Jack Naify usually came to work over an hour late,
would take inordinately extended lunch hours, and
"leave whenever he would want to." Nick Thirkettle, a
film payable clerk under Van's supervision who worked
with Jack Naify, confirmed that Jack Naify came to
work later and left earlier than other employees and took
longer lunch periods. Thirkettle also testified that in Sep-
tember he had occasion to rebuke Jack Naify concerning
a work-related matter. Thereafter he observed Jack
Naify enter Van's office-where he heard Naify com-
plain to Van that he had been yelled at. Naify thereafter
went directly to his father's office. Thirkettle added that
he observed Jack Naify enter his father's office every
day.
Thirkettle and Hanni testified that Jack Naify's fre-
quent absences and the fact that he was often behind in
his work made their own work more difficult. Hanni tes-
tified that she once complained to Van regarding the
condition of Jack Naify's books but Van just "threw up
his hand and said there was nothing he could do about
it." Thirkettle testified that he complained almost weekly
to Van and on the same basis had earlier complained to
Jack Stevenson, Van's predecessor, regarding Jack
Naify's recurrent absences from his work area and the
fact that Naify was always in the purchasing section of
the office. Thirkettle testified that Van told him that
there was nothing he could do about the problem. Thir-
kettle overheard Van complaining to Joe Crotty over the
telephone about Jack Naify on a few occasions. Thirket-
tle also recalled that in August, September, or October
1981 he received a company memo stating that, starting
on a specific date, Jack Naify would give the department
all his time. Thirkettle testified that Jack Naify for some
2 weeks after receipt of the memo-while still arriving
late-remained in his own department but that his regu-
lar presence soon ended and his previous pattern of ab-
sence reasserted itself. Finally, Thirkettle testified that, at
the time of Jack Naify's hire, he had been told by Jack
Stevenson that while Stevenson did not like the idea, Joe
Crotty had told him to find a position for Jack Naify.
,The testimony regarding Jack Naify was at substantial
variance. In my view, the dispute turns on credibility. I
found Thirkettle and Hanni to be open and direct wit-
nesses. Each had a strong and convincing demeanor. In
contrast Jack Naify seemed to me to be a sullen and
almost belligerent witness. I credit Thirkettle and Hanni
over Jack Naify where their testimony differs. Further,
Jack Naify's testimony was not fully consistent with
other record evidence. There is evidence that on at least
one occasion high management had discussed Jack
Naify's attendance problems. Yet Jack Naify claimed his
UNITED ARTISTS THEATRE
hours and attendance were regular. Further, Van did not
testify regarding the conversations with Hanni or Thir-
kettlee nor was his unavailability discussed on the record.
There is other evidence that Jack Naify was not just
another film payable clerk., but rather stood apart by
reason of his family. Thirkettle testified without contra-
diction that while the work of the film payable clerks
was similar, other clerks handled 70 to 80 "screens" in
their work while Jack Naify handled fewer than 50. Fur-
ther, Jack Naify was hired at a starting salary substantial-
ly in excess of the highest rate paid any other film pay-
able clerk and has since received an increase enlarging
this differential.
Based on all the above, I find that Jack Naify at the
time of the election did not share a community of inter-
est with unit employees. His high pay, lower workload,
and poor attendance separate him from the common
working conditions shared by other employees which
form the basis of their community of interest. Further,
and of critical importance, the remarks of supervision to
other employees, noted supra, serve to identify Jack
Naify to employees as a person apart, not susceptible to
control by lower level supervision. Jack Naify reinforced
this image by his open and frequent trips to his father's
office during the working day. It is apparent and I find
that both other employees and, if not consciously, Jack
Naify himself, realized that by virtue of his family, Jack
Naify was an employee apart who was immune from
review or correction by lower level supervision, and
who shared no community of interest with other em-
ployees. Accordingly, I find that Jack Naify was not
properly included in the unit at the time of the election.
I shall therefore recommend that the challenge to his
ballot be sustained.
G. Summary and Further Recommendation
I have recommended that the challenges to the ballots
of the six individuals be sustained. There being no addi-
tional challenged ballots, the current tally of ballots is
now final and determinative of the results of the election.
Accordingly , I further recommend that those results be
certified as determinative of the election and, therefore,
the Union be certified as the exclusive representative of
employees in the appropriate unit for purposes of collec-
tive bargaining.
V. THE UNION'S OBJECTIONS27
The Union filed timely objections to the conduct of
the election on November 5, 1980. On February 5, 1981,
it withdrew certain of those objections. The objections
are numerous and somewhat vague as to the particular
times and as to the particular agents of Respondent
27 Given my recommendation that the challenges be sustained and the
Union certified as representative of employees, the Union's objections
may be regarded as moot The Board or subsequent reviewing authority
however may not adopt these recommendations and the Union's objec-
tions may then become relevant Accordingly, I shall rule on their merits.
135
against whom the objectionable conduct is laid. On brief,
however, the Union makes it clear that its objections
"are identical to the subject matter of the unfair labor
practice charges in the consolidated cases." Those allega-
tions have been discussed and analyzed supra. That anal-
ysis will not be repeated here.
I have found that Respondent 's agents violated the
Section 7 rights of a significant number of employees
during the period from the filing of the representation
petition to the election , Such widespread conduct, a for-
tiori , constitutes objectionable conduct. Dal-Tex Optical
Co., 137 NLRB 1782 , 1786 (1962). I therefore recom-
mend that the Union 's objections be sustained and, if oth-
erwise deemed appropriate , that a new election be direct-
ed consistent with this finding. Z8
CONCLUSIONS OF LAW'
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the acts and conduct found violative
in Findings of Fact, section III, of this decision, Re-
spondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act and in each and every instance, and
as a single course of conduct, violated Section 8(a)(1) of
the Act.
4. By issuing Adrena Owens a written warning on
September 9 and transferring her to a more onerous job
in research because of her union activities, Respondent
discriminated against an employee because of her union
activities in violation of Section 8(a)(3) of the Act.
5. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. Respondent has not otherwise violated the Act as
alleged.
7. The unfair labor practices described above do not
warrant the issuance of a bargaining order.
8. The challenges to the ballots of voters: Kaiser,
Morgan, Stokes, Swearingen, Mason, and Naify should
be sustained.
9. As a result of the resolution of challenges described
above, the challenges are no longer determinative of the
result of the election and the Board should certify the
Union as the exclusive representative of employees in the
appropriate unit.
10. The Union's objections to the conduct of the elec-
tion have merit and should be sustained. In the event it is
otherwise appropriate, a new election should be ordered.
[Recommended Order omitted from publication.]
28 In light of the quantum of the Employer's objectionable acts, I fur-
ther recommend any notice to voters in a second election be worded
consistent with the notice to voters set forth in Lujkzn Rule Co, 147
NLRB 341 (1964), and Bush Hog, 161 NLRB 1575 (1966).