Universal City Studios, Inc.

National Labor Relations Board - Board Decisions

Jan 6, 1981

253 N.L.R.B. 1013 (N.L.R.B. 1981)

UNIVERSAL CITY STUDIOS. INC.
Universal City Studios, Inc. and Make-up Artists
and Hair Stylists Local No. 706, International
Alliance of Theatrical Stage Employees &
Moving Picture Machine Operators of the
United States and Canada, AFL-CIO. Case 31-
CA-9142
January 6, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELI.O AND ZIMMERMAN
On September 17, 1980, Administrative Law
Judge James S. Jenson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Universal City
Studios, Inc., Universal City, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an oppor-
tunity to present evidence, the National Labor Re-
lations Board has found that we violated the Na-
tional Labor Relations Act, as amended, and we
have been ordered to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choosing
253 NLRB No. 142
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WF WIl.l. NOT refuse to hire, rehire, recall,
or in any other manner penalize our employees
for engaging in protected concerted activities
for their mutual aid and protection.
WE WlI.l NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WIt.L offer to Gordon Freid immediate
and full reinstatement to his former position
or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or any other other rights and privi-
leges previously enjoyed, and WE Wlt.t. make
him whole for any loss of earnings suffered as
a result of our discrimination against him, plus
interest.
UNIVERSAL CITY STUDIOS, INC.
DECISION
STATF.MENI ' OF THI CASE
JAMES S. JNSON, Administrative Law Judge: This
case was heard by me in Los Angeles, California, on De-
cember 17 and 18, 1979,' based upon a complaint issued
on August 14, pursuant to a charge filed on June 28, al-
leging that Respondent violated Section 8(a)(3) and (I)
of the Act by refusing to rehire Gordon Freid as a
makeup artist on the television production of "B.J. and
the Bear," because Freid joined or assisted the Union or
engaged in other protected concerted activities. Re-
spondent's answer denies the commission of an unfair
labor practice and pleads as an affirmative defense that
since the Union failed to file a grievance under the col-
lective-bargaining agreement and failed to demand that
Respondent arbitrate the dispute giving rise to the
charge, the Union is estopped from asserting it has vio-
lated the Act. All parties were afforded a full opportuni-
ty to appear, to introduce evidence, to examine end
cross-examine witnesses, to argue orally and to file briefs.
Briefs were filed by both the General Counsel and Re-
spondent and have been carefully considered.
Upon the entire record in the case, and from my ob-
servation of the demeanor of the witnesses, and having
considered the posthearing briefs, I make the following:
l All dales herein arc in 197) unless otherwise stated
10)13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINI)INGS OF FACT
I. JURISI)ICTION
Respondent, a Delaware corporation with its principal
office and place of business in Universal City, California,
is engaged in the production of theatrical and television
motion pictures. Respondent annually sells and ships
goods or services valued in excess of $50,000 directly to
customers located outside the State of California. It is
admitted and found that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE ABOR ORGANIZATION INVOI.VED
Make-up Artists and Hair Stylists Local No. 706, In-
ternational Alliance of Theatrical Stage Employees &
Moving Picture Machine Operators of the United States
and Canada, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
111. ISSUE
Whether or not Respondent failed and refused to
rehire Gordon Freid as a makeup artist for the second
season of the production of "B.J. and the Bear," because
he engaged in protected concerted activities.
IV. THE ALLEGED UNEAIR LABOR PRACTICES
A. The Setting
In early January, Respondent commenced first session
production of a television series known as "B.J. and the
Bear." Production was initially done on "distant loca-
tion" at various sites in northern California; however, in
late March the production company returned to the Los
Angeles area where it completed production and laid off
the entire production crew on April 25. Production for
the second session of "B.J. and the Bear" commenced in
June.
At all material times, Nick Marcellino has been the
head of Respondent's makeup department, and Joe
Boston has been one of Respondent's producers. Both
are admitted to be Respondent's agents and supervisors
within the meaning of the Act. Charles Sanford worked
as both a first and second assistant director throughout
the production. While his status as either a supervisor or
employee was not litigated, it is clear that he was direct-
ly under the unit manager in the chain of command and
possessed independent authority to change the "call
time" of employees. The makeup crew for the first
season included key makeup artist Gordon Freid, who
did the makeup on Greg Evigan, the star of the show,
key makeup artist Gene Bartlett, and hair stylist Jim
Post. Bartlett, however, quit the show late in March
when the crew returned to Los Angeles, and was re-
placed by Casey Bernay. While Bartlett and Post were
reemployed for the pickup or second season's production
commencing in July, Freid was not recalled in spite of
the fact it is admitted he was a competent makeup artist
and that both the star of the show and one of the pro-
ducers requested that Marcellino rehire him. Key
makeup artist Mario Gonzalez was hired in his stead.
The Union's business representative is Howard Smit.
This case involves the reasons Respondent did not rehire
Freid. 2
B. The Facts
Freid was hired as a key makeup artist for the produc-
tion of "B.J. and the Bear," by Marcellino in late De-
cember 1978, and commenced work in early January. As
noted, Bartlett was the other key makeup artist and Post
was the hair stylist. As the first few months were at a
"distant location" the makeup department employees ex-
perienced shortages of certain supplies from time to time,
such as brush cleaner, lip colors, and wigs. One such
shortage, involving lip colors, bears directly upon Re-
spondent's defense to this case. There is no dispute but
that in late February or early March, the makeup artists
ran short of a specific lip color that was being used on
the show. Freid had been advised that it would take a
couple of weeks to receive new supplies ordered through
the makeup department in Los Angeles. He discussed the
fact with Bartlett and expressed the opinion he could
obtain a supply within 48 hours if he ordered it directly.
Bartlett testified that he talked to the unit manager about
it, and that the unit manager said to go ahead. Accord-
ingly, Freid ordered the item which was charged to Re-
spondent and delivered to the makeup department in Los
Angeles and from there sent out to the location. Bartlett
testified that it was not unusual while on location to
order supplies and charge them to the employer and he
recited an incident when Post had done so.3
Prior to their return to the Los Angeles area in late
March, Freid asked both Bartlett and Post if they had
any specific complaints about things that might be
changed in order to make the work easier. Neither had
anything specific, and besides the men had decided it
would not do any good to talk to Marcellino about prob-
lems. Marcellino testified that after the production crew
returned to Los Angeles, and before the first season
"wrapped," Post told him that Fried had gone to the
Union to file a grievance and had asked Post to submit a
list of grievances to take to the Union. Upon his return
to the Los Angeles area in March, Freid called Union
Business Representative Smit to learn whether anything
could be done under the contract to correct the inability
I For many years the Union and Respondent have been parties to a
series of collective-bargaining agreements, the most recent agreement
having expired on July 31, 1979. Par 68 of the agreement provided, in
absence, that Respondent give preference in employment to qualified.
available employees on the Industry Experience Roster and that employ-
ees in group I status were to be given preference over those in group 2.
It provided specifically that there was no contractual seniority among
members of the same experience group. The record shows that when
Marcellino needed an employee, he called the Union, made his selection
from among the list of available employees, and either he or the Union
informed the individual of the job. All of the makeup artists named in
this proceeding were in group I.
:' Marcellino testified initially he had already made up his mind not to
rehire Freid before he learned of his role in ordering the lip colors.
Through the use of leading questions, however, Respondent's counsel
elicited from him testimony, which I do not credit, that he "definitely"
had this incident in mind when he made the decision not to reemploy
Freid.
1014
UNIVERSAL CITY STUDIOS, INC.
to obtain supplies. He was advised that nothing could he
done. 4
Following lunch on March 28, the production crew
was scheduled to move from Universal to General Serv-
ice Studios. Freid, who had a toothache, made arrange-
ments with the assistant director, Evigan, and Bernay to
leave the studio after lunch in order to see a dentist. He
drove to the dentist's office and learned the dentist was
not able to see him. The dentist's assistant suggested he
try using toothache wax, which he bought at a nearby
pharmacy. He then drove home where he took some as-
pirin and rested. While there, he received a call from
Marcellino who asked if he was coming back to the
studio since it was wrong to have someone else punch
out his timecard. After assuring Marcellino he intended
to return, Freid called Bernay at General Service Studios
and learned that the company was in the process of
moving back to Universal Studios. She suggested that
Freid go back there and punch out, which he did about a
half hour before the rest of the company. The following
day, without saying anything further to him about it,
Marcellino changed Freid's timecard by allowing him
pay for a minimum call of 9 hours, thereby docking him
in excess of 3 hours pay. Bartlett, called as a witness of
Respondent, testified that the "basic problem" for the
makeup artists is making up a person in the morning, and
touching them up after lunch. The rest of the time is just
standing by. He testified that "it happens al! the time.
People get sick, people have dentist appointments," and
all that is required is to tell the second assistant directors
they are going to be gone, the exact procedure Freid fol-
lowed.
The "call sheet" is the document scheduling the fol-
lowing day's production activities and specifies the time
each individual is to report. The record indicates the call
sheet is generally distributed around 6 or 6:30 p.m., after
the makeup department has closed and Marcellino had
gone home. If prepared during the daytime, the call
sheet is typed; however, if it is prepared late in the after-
noon or evening, it is handwritten. It is not disputed, and
is clear from the evidence, that it is not unusual for call
times to be changed in longhand and that Second Assist-
ant Director Sanford had independent authority to
change call times. The evidence shows that the call
sheet6 for March 29 was made out in longhand, indicat-
ing it was prepared late in the day, and lists a call time
of 7 p.m. for Freid, Bernay, and Post. Freid's testimony,
corroborated in material part by Sanford, was to the
effect that after the March 29 call sheet had been posted,
Bernay called to his attention the fact four stunt doubles
were to be used the following day and that the makeup
crew did not have the necessary beard and wig materials
to insure the stunt doubles could be properly made up.
4Par. 63 of the collective-bargaining agreement pros ides
63 Make-up or Hair Styling Suppl-Employees shall not be re-
quired as a condition of employment to furnish anlly make-up or hair
styling supplies, provided, however, upon mutual agreement hetweni
Producer and the employee for such supplies to be furnished by the
employee. the cost hereof shall he reimbursed to the employee sepa-
rate and apart from his regular wages
5 Bernay replaced Bartlett when the crew returned to L.os Angeles
6 Entitled "Shooting Call "
As the makeup department was already closed, Freid
and Bernay approached Sanford with the problem, and
he in turn authorized a change in the call time to 6:48
a.m. for Freid, Bernay, and Post. Thus, on the morning
of March 29, all three arrived 12 minutes early, clocked
in, and went to the makeup department to acquire the
necessary supplies. The call time for body makeup artist
Beverly Turner remained at 7 am.
The call sheet for March 30, which was posted the
evening of March 29, again listed the makeup depart-
ment employees with a call time of 7 a.m. While Freid
did not remember the reason for the change, the unrefut-
ed evidence shows that Sanford again authorized a
change in call time to 6:48 a.m., this time for all four
makeup department employees. After Freid punched his
timecard the morning of March 30, he was called to
Marcellino's office. According to Freid, whom I credit,
Marcellino informed Freid that he, Marcellino, had
changed Freid's timecard for March 29 to reflect a call
time of 7 a.m., and that he was going to change the one
for that day also because he was not entitled to the 12
minutes "prep time" in a bus-to situation. 7 Freid ex-
plained that the call times had been changed by the as-
sistant director, that the change for March 29 was neces-
sitated by the fact they needed beards and wigs for the
previously unscheduled stunt doubles, and further, that it
was "illegal" for Marcellino to change his timecard.
Marcellino stated he was changing them anyway. The
timecards for Freid, Bernay, and Post, all in evidence,
show Marcellino recorded their call times as 7 a.m. for
March 30, but that he left them at 6:48 a.m. for March
29.
Within a few days after Marcellino told Freid he had
changed his timecard, Freid called Smit and reported
what Marcellino had done. Smit in turn talked to Mar-
cellino, both on the phone and in person. Each expressed
his position, and Smit stated he thought there was a mis-
understanding and would investigate the matter. He
thereafter talked to Sanford, who confirmed the fact that
the call times had been changed legitimately. Smit ad-
vised Marcellino of the fact the assistant director had
given Freid the call change, and both men testified they
considered the matter resolved.9
On April 25, production ended and everyone was laid
off. Freid testified that, at the "wrap" party on April 26,
an announcement was made to the effect that the show
Par 4 of the collectis e-hargainiig agreement. eCtitled "Preparation
Timc." provides that Twelve minutes preparation time will be allowed
for Make-t p Artists and Hair Stylists fr each day W.orked " A hbus-to"
situation is one where the crew is to be ready to board a bus at a peci-
fied time for transportation to another location If makeup is to be ip-
plied prior to bhoarding the bus, the makeup crew receives earlier call
times. and are also entitled to "prep tinme " If makeup is o hbe applied
locatliti, they are not entitled to preparation time unless required, a.
here, to obtalil otherwise unattainable supplies before Iavilng
' he all sheet fior April 2. hoAs a call tinle ot 4 p.m for lreid
and ernal., wtnch s as changed it Sanfordl dcl c n to 4 a il be-
cause tlhe director hd decided the act ors alld .rlrses ho lld be made
tip before the bhu left
It should bht 1loted, ho c , r, that e CeI ih o igh Ihe mlatler as con-
,idered resoil ed Marcellno relies on it ats rt'as ol for not rchirillg
-:reid
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been renewed for another season.1° Freid testified,
without contradiction, that at the party he talked to
Boston, one of the show's producers, and asked if he
could be assured of returning when production resumed.
Boston responded that there was no way he could assure
Freid of returning, but that he would call Marcellino and
put in a word for Freid. Marcellino testified that he re-
ceived a call from Boston requesting that Freid be re-
hired when "B.J. and the Bear" resumed production, and
that he refused saying: "He has given me some problems
and I would rather do without Gordon Freid." He testi-
fied that he made up his mind not to rehire Freid during
his conversation with Boston.
On or about May 29, Freid called and informed Mar-
cellino that he was available for work and wondered
when production on "B.J. and the Bear" would start.
Marcellino stated that Freid would not be in the show
since he had decided to have a whole new crew. ' Freid
then reported the conversation to Smit, who stated that
the company was not contractually obligated to hire him
back and suggested he call Boston to find out what Mar-
cellino had told him. According to Freid, the following
day he called Boston who stated that he had talked to
Marcellino on Freid's behalf and Marcellino told Boston
that Freid was not going to be rehired because of a prob-
lem involving Freid, the makeup department and/or the
Union. Boston was neither called as a witness by Re-
spondent, nor did Marcellino deny having made this
statement to him.
The following day, May 31, Freid talked to Marcellino
in the latter's office, protested the failure to rehire him,
and asked if something was wrong. Freid's undisputed
testimony concerning the conversation was as follows:
I said, "Nick is there something wrong? Am I
not doing something right? Am I doing something
incorrectly? Is there something wrong?" He said,
"Yes." I said, "Well, what is it?" He said, "Well,
Gordon, I feel that you are not happy here," and I
said, "Well, Nick if I weren't happy here, I would
not be trying to come back to work here."
He said, "Well, Gordon, I heard that you filed
grievances against the company." I had no reply to
that; there was no reply. He says, "And there was
that problem with the time cards that I thought we
had settled, and the next thing I knew, we had the
Union in here." He says, "I don't need those kinds
of problems in my Department." He says, "Of
course, that doesn't mean that you will never work
here again." He said "The time may come when I
will have to hire you." And I said, "Well, Nick, I
have been working here for a couple of years off
and on. I would hope that by now, you would hire
me for some reason other than the fact that you felt
you had to hire me." He said, "No." And I said,
"Oh," and I left, because I was very angry.
Q. Did he give you any other reasons during this
conversation?
i" Marcellino testified he did not learn that the show had been re-
newed until late May.
i Contrary to that representation, Marcellino rehired Bartlett and
Post for the second season
A. None.
Freid reported the conversation to Smit, who suggested
Freid seek assistance from somebody else with influence
on the show. As Freid had done the makeup on Evigan,
the star of "B.J. and the Bear," he contacted Evigan's
manager and was told that Evigan wanted him to return
and had tried to have Freid's services included in his
contract. At Freid's suggestion, Evigan wrote him a
letter stating he would "speak to the producer and let
them know I don't want anyone else except you-I think
you're the best .... "
On June 1, Smit called Phil Dezen, assistant head of
labor relations for Respondent and related the reasons
Marcellino had given Freid for not rehiring him, stating
that if they were true, he felt an unfair labor practice had
been committed. Dezen stated he would look into the
matter and set up a meeting between the two and Mar-
cellino. Several days later Smit called Dezen again and
was informed that Freid was not illegally fired and that
the Company had a right not to rehire him for "B.J. and
the Bear" but that he was still eligible for employment
by Respondent. Dezen testified he told Smit to file a
grievance over the matter but that Smit said he would
handle it his own way. Smit testified he did not recall
any discussion with Dezen about his filing a grievance.
Smit testified that a week or so later he had another
conversation with Marcellino. Also present at Marcel-
lino's request was Florence Avery, head hair stylist. 2
Smit testified without contradiction that Marcellino told
him that one of the reasons Freid had not been rehired
was that "he had heard that Gordon was going to file
grievances, or had filed grievances against the company,
and that he felt that if Gordon was going to do that, he
wasn't happy there, and didn't want him on the show."
He also mentioned the fact that Freid was talking to
other employees and trying to get more grievances.
They also discussed the "changing of the timecards,"
which Smit said he thought was a closed issue. '3 Ac-
cording to Smit, Marcellino also mentioned the fact that
Bartlett did not want to work with Freid and the fact
that Freid had gone to the dentist without letting Mar-
cellino know. Marcellino acknowledged, however, that
work had not been held up in any way as a consequence
of Freid's trip to the dentist. Marcellino also mentioned
that Freid had ordered merchandise directly on one oc-
casion, which Smit thought was also a closed issue.
On June 25, the second season production of "B.J. and
the Bear" commenced with Bartlett, Mario Gonzalez,
and Post comprising the makeup crew. A few days later
Marcellino received a call from Evigan complaining
about Bartlett's work and asking that Freid be rehired.
Marcellino admits he told Evigan that he would not
rehire Freid because Gonzalez had more seniority, and
that if he did not like Bartlett, he could use Gonzalez. t4
' Avery did not testify.
ti Both men had earlier agreed that the changing of the timecards was
a closed issue.
1'4 he collective-bargaining agreement spccifically provides that all
nien listed in group I on the Industry Experience Roster, have equal se-
niorit
1016
UNIVERSAL CITY STUDIOS, INC.
The instant charge was filed on Thursday, June 28,
and served on Respondent on June 29. On Monday, July
2, Marcellino selected Freid off the Industry Experience
Roster, and he worked on "The Return of Maxwell
Smart" on a daily basis through July 4, at which time he
left because of a commitment with another studio. He
later worked for Respondent on the production
"Quincy" from September 27 through the first week of
December.
Discussion
Marcellino testified that the "main reasons" Freid was
not rehired for the second season "were several instances
occurred which led me to believe that Gordon Freid
was not the caliber of person that I had been used to
dealing with." He then recited the two main factors: (1)
the incident on March 29 when the call times for the
two makeup artists and hair stylist were changed from 7
to 6:48 a.m.;" 6 and (2) that "I had heard from other
members of the 'B.J.' makeup artists or hair stylists that
Gordon was unhappy on the series, and that he had gone
to his Local to file a grievance, and he had approached
Jim Post, the hair stylist, and asked Jim to submit a list
of grievances, also, against the studio, or myself. And I
guess primarily for those reasons, I did not feel that I
should consider putting Gordon Freid on the 'B.J. and
the Bear' assignment." Asked by the General Counsel if
there were any other reasons, Marcellino responded
"No. There may have been some other reasons" and
went on to relate the time on March 28 when Freid left
the set to go to the dentist without first telling Marcel-
lino.' 7 Pressed for any other reasons he testified that
Mario Gonzalez was finishing another assignment and
was called back because he had more seniority then
Freid.' 8 While he then testified there were no other rea-
sons, he later testified that Bartlett's request that Freid
not work with him on the show was a consideration. He
admitted later, however, that the decision had already
been made before he talked to Bartlett about coming
back. As noted earlier, through leading questions by Re-
spondent's counsel, he also claimed that Freid's ordering
'5 Respondent asserts as an affirnmative defense that since the Union
failed to file a grievance under the collectise-bargaining agreement. it is
estopped frm proceeding under the guise of unfair labor practice
charges and proceedings under the Act It has long been established that
the Board's jurisdiction to remedy unfair labhor practices is not preempt-
ed, or ousted. by the possible existence of contractual ohligations arising
from the same circumstances for Sec I(xa) of the Act expressly provides
that the Board's poxwer to prevent unfair labor practices shall not he af-
fected by any other means of adjustment. or prevention establihshed by
agreement. law. or otherwis· Ilasco Mautufaucturing Co. 162 NlRB 611,.
fn. 13 (1967)
16 The change in the call times of the other members of the makeup
crew does not appear to have aroused Marcellitno's ire. as did the change
in Freid's Further, the evidence shovws conclusiely that the changes in
call times were approsed by the assistant director who had authority to
make the changes
1' No worktinle was lost as a result of Freid's having gone to the den-
tist and it is clear from the testimony of Bartlett that 'it happens all the
time People get sick, people have dentist appointments" and fllow, the
same procedure as Freid--notify the assistant director
ls Marcellino testified he made up his mind not to hire Freid during a
conversation with oston. which the evidence shows tok place prior to
March 2 He did not decide to hire Gonzalez until a week or two before
June 22 Thus, it is clear that seniority played ito part in hiring Gonzalez
over Freid.
of the lip coloring directly from the supplier played a
part in his decision, although he had already testified he
had made up his mind not to hire Freid before he
learned of the fact Freid had ordered the supplies direct-
ly.
Inasmuch as Marcellino testified a reason for not
hiring Freid was his having filed a grievance which Re-
spondent acknowledges is a techincal violation of Sec-
tion 8(a)(l), the question remains whether it was a sub-
stantial factor in not rehiring him. The statements Mar-
cellino made at the hearing, also to Freid and to Boston,
Smit and Bartlett, convince me that the other reasons of-
fered by Marcellino are pretettual and that the actual
reason was Marcellino's animus toward Freid for having
talked to other employees about working conditions, and
for having contacted the Union because Marcellino
changed his timecard. Thus, as noted above, he admitted
at the hearing that one of the "main reasons" was the
fact Freid had gone to the Union to file a grievance, and
had asked Post to submit a list of grievances against both
the studio and Marcellino. It is not isputed that on
March 31, he told Freid, when asked why Freid had not
been rehired, that he felt Freid was not happy, and went
on to explain that he had heard Freid had filed griev-
ances with the Union, that there had been a problem
with the timecards, which he thought was settled, and
the next thing he knew was that Freid had gone to the
Union about it. According to Freid, whose testimony
was not rebutted by Respondent, Boston told him that
Marcellino had told Boston that he would not hire Freid
back because of a problem involving Freid, "the make-
up department and/or the Union." Smit, whose testimo-
ny was also not rebutted, was told by Marcellino on two
occasions that the problem with Freid was that he had
filed grievances against the studio and had solicited other
employees to do so and, after Smit had taken the matter
up with Dezen, he again told Smit that one of the rea-
sons he had not brought Freid back was because he was
going to file a grievance against the Company. It is axi-
omatic that soliciting grievances, filing of a grievance,
and contacting the Union about working conditions, are
each protected concerted activities, and a refusal to fire
or rehire an individual for engaging in such conduct vio-
lates Section 8(a)(1) of the Act. Thus, I find the evidence
overwhelming that Respondent failed and refused to
rehire Freid as a makeup artist on "B.J. and the Bear"
because he engaged in protected concerted activities.
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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 failing and refusing to rehire Gordon Freid as a
makeup artist on the production of "B.J. and the Bear"
because he engaged in protected concerted activities, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(l) of the Act .s
1! II Is ullnecessar} to1 decide whether Respldentl's conduct also v-
lalted Sec S(a)() or the Act, inasmuch as the remced, necessary Io reffc
C'onntnued
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEl)Y
Having found that Respondent has engaged in an
unfair labor practice, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. I shall rec-
ommend that Respondent be required to offer Gordon
Freid immediate and full reinstatement to his former job
as key makeup artist on the production "B.J. and the
Bear" or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of
such discrimination, by payment of a sum of money
equal to that which he normally would have earned as
wages from the beginning of the second season on June
25, 1979, to the date of such offer of reinstatement, less
his net earnings during such period, with backpay com-
puted on a quarterly basis in the manner established by
the Board in Fb W Woolworth Company, 90 NLRB 289
(1950), and with interest thereon as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977). "20
It is also recommended that Respondent make availa-
ble to the Board, upon request, all payroll and other re-
cords to facilitate checking the amount of earnings
due. 2 l
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 2
The Respondent, Universal City Studios, Inc., its offi-
cers, agents, successors, and assigns, shall:
tuate tile policies of the Act would be identical in cither cse AIalcrlrlr
rrt Cuv ( omlpnyl. In., 142 N R 24. fn1 I (1963)
"' See, generally, lis Plilrnhing Heating C('o 118 N.RI 716 (1962)
" Whether Responldeni' offers of employment lo reid on other
shows on July 2 and September 27 suffice as valid reinstateilnelit offr,
are issues that are hesi left ls matters f r compliance.
`2 In t1he evenl ti exceptionls are filed as provided h Sec 12.46 of
the Rules antd Regulations of the National abor Relations loard. the
findings. conclusionls. and recolmnieded Order herein shall. as provided
in Sec 102 48 ot the Rules and Regulations, be adoipted by the Iloard arid
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of their right to engage in con-
certed activities guaranteed in Section 7 of the Act, by
refusal to hire, rehire, recall, or by any other disciplinary
action.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of rights
under the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer to Gordon Freid immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges enjoyed, and make him whole for any loss of
pay suffered by reason of the failure and refusal to rehire
him, in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of this
Order.
(c) Post at its place of business in Universal City, Cali-
fornia, copies of the attached notice marked "Appen-
dix." 23 Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in conspi-
cious places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps have been take to comply herewith.
become its findings, conclusions, and Order, and all objections thereto
shall be deemed aived for all purposes.
31 [in the event that this ()rder is enfirced bhy a Judgment of a United
States Court f ApPlals, the words in the notice reading "Posled hy
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment 1f1 the United States Court if Appeals Efiircing an
Order of the National Llabohr Relations Board "
1018