Xenon

National Labor Relations Board - Board Decisions

Jun 25, 1980

250 N.L.R.B. 123 (N.L.R.B. 1980)

XENON
Discotron Equipment Inc., d/b/a Xenon and Albert
W. Sayers, E. Scott Kramer, Curtis Brothers,
and Theatrical Protective Union Local No. One,
IATSE, AFL-CIO, CLC. Cases 2-CA-15969,
2-CA-16002, 2-CA-16012, and 2-CA-16013
June 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On February 14, 1980, Administrative Law
Judge David L. Evans issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
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 2 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, Discotron
Equipment Inc., d/b/a/ Xenon, New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Chairman Fanning agrees that a bargaining order is appropriate as of
October 26, 1978, but does not agree with the Administrative Law Judge
that such an order would be required as of that date "even without
demand and refusal." See his separate opinion in Beasley Energy. Inc.. d/
b/a Peaker Run Coal Company. Division #1, 228 NLRB 93 (1977), where
he indicated that in the absence of a demand and refusal he would date a
bargaining order prospectively only.
DECISION
DAVID L. EVANS, Administrative Law Judge: The
charges in this case were filed against Discotron Equip-
ment Inc., d/b/a Xenon, herein called Respondent or
Xenon, by Theatrical Protective Union Local No. One,
IATSE, AFL-CIO, CLC, herein called the Union, and
by individuals Albert W. Sayers, E. Scott Kramer, and
250 NLRB No. 24
Curtis Brothers. Sayers' charge was filed on November
1, 1978,' Kramer's on November 2, Brothers' on Novem-
ber 9, and the Union's on November 9 also. On Decem-
ber 29, the Regional Director issued an order consolidat-
ing cases and consolidated complaint and notice of hear-
ing. The complaint alleges that Sayers, Kramer, and
Brothers were discharged in violation of Section 8(a)(3)
and (1), that employees were interrogated by agents of
Respondent in violation of Section 8(a)(1), and that Re-
spondent has refused to bargain with the Union in viola-
tion of Section 8(a)(5) of the National Labor Relations
Act, as amended, herein called the Act. Respondent duly
filed an answer denying that it has engaged in any unfair
labor practices. A hearing in this proceeding was con-
ducted before me in New York City on June 25-27,
1979. Counsel for General Counsel and Respondent have
filed excellent post-hearing briefs which have been care-
fully considered.
Upon the entire record in the case, and from my ob-
servation of the demeanor of the witnesses and the inher-
ent probabilities and improbabilities of their testimony, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation which oper-
ates a discotheque in New York City. Respondent annu-
ally derives gross revenues in excess of S500,000 from
the operation of said discotheque and it annually pur-
chases goods and materials valued in excess of S10,000
directly or indirectly from suppliers outside the State of
New York. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. Operation of Respondent and Background
Respondent is operated by two chief officers, Howard
Stein and Pepo Vinnini. As Stein testified, and as essen-
tially corroborated by all other witnesses at the hearing,
a "discotheque" as the term has evolved is a place where
people dance to records. While several establishments
throughout the United Sates, and New York City in par-
ticular, would meet this definition, all witnesses agreed
that there are only two New York City establishments of
Xenon's ilk, itself and Studio 54. Xenon is located in
what was once a theater and the dance floor is the stage
which has been substantially extended. As well as an
elaborate sound system which is operated by a profes-
sional disc jockey, there is a sophisticated system of
lights operated from a "light board," a laser beam light-
' All dates herein are in 1978 unless otherwise specified.
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing system, props (such as pinball machines) which de-
scend from the superstructure of the theater, fog ma-
chines to create atmosphere, and various other light-and
sound-producing instrumentalities which are designed to
create an atmosphere which is not found in any other
New York nightclub or discotheque except Studio 54.
The flyman (who operates the rope system of raising and
lowering of props), disc jockey, and light board operator
are under the supervision of the technical director. (The
laser beam operator is employed by an independent con-
tractor.) Xenon is a 7-day-a-week operation which re-
mains open until substantially all of the patrons leave,
usually between 5 and 7 o'clock each morning. Each
evening's light, sight, and sound program is called a
"show" and many of the technical aspects employed are
the same as, or similar to, the operations of live theater.
Each show is designed to be different, so the technical
employees usually arrive at 8 p.m. to arrange all decora-
tions, props, and music which will be used during the
evening. This activity is called "pre-set." During the day
and up to 10:30 p.m., the premises are frequently con-
tracted for photography sessions, fashion shows, and pri-
vate parties which also require pre-set.
Stein and Vinnini at all times material herein were as-
sisted by one Jeffrey Kiehl whom the complaint de-
scribes as "executive assistant/office manager" and
whom Respondent admits to be a supervisor within the
meaning of Section 2(11) of the Act. Employee Corrine
Hartman is classified as a production coordinator. She
works in the office at Xenon along with Kiehl where she
orders supplies for the technical operations and arranges
for contracts to sublet the premises to business entities
which use them for private parties and photography ses-
sions. She also is present for photography sessions or
"shoots," and testified that she runs the lights and sound
and all of the technical aspects of the shoots. The techni-
cal director at all times material herein was Douglas
Murray whom Respondent also admits to be a supervi-
sor. Sayers was the light board operator; Brothers was
the flyman; Kramer was a rigger and substitute flyman;
and the disc jockey was Harvey (Tony) Smith. These
four employees were referred to as "technical employ-
ees" throughout the hearing. An issue in this case is the
perimeter of the authority of one Taylor Alonzo; specifi-
cally, did he have supervisory authority over the techni-
cal employees? Alonzo described himself as "general
manager" of Xenon while all other individuals describe
him as "manager" or "night manager." Alonzo's authori-
ty will be discussed infra; however, it suffices to say at
this point that it is undisputed he was at all times materi-
al herein the supervisor of the waiters, busboys, and bar-
tenders, and a supervisor within the meaning of Section
2(11) of the Act. There are about 60 employees em-
ployed at Xenon.
As the light board operator, Sayers, from a balcony
booth, controlled the elaborate lighting effects positioned
throughout the facility. By operating the light board, a
keyboard-type instrument, Sayers could change the den-
sity, color, and direction of the lights to create a "mood"
as the music was being played (at extremely high
volume) by Smith. At the time of the hearing dischargee
Brothers was a full-time flyman and he was usually as-
sisted by either Supervisor Murray or substitute flyman,
dischargee Kramer. The technical director, disc jockey,
light board operator, and flyman coordinated their activi-
ties by communications through headsets.
At the hearing the parties stipulated that a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act is the following:
All full-time and regular part-time production em-
ployees, including pre-set technicians, lighting oper-
ators, riggers-flymen operators, and sound techni-
cian-disc jockeys employed by Respondent; exclud-
ing all other employees such as bartenders, ticket-
takers, waiters, busboys, doorman, coat room clerks,
ladies' room attendants, office clerical employees,
guards and all supervisors as defined in Section
2(11) of the Act.
The parties stipulated that, as of October 26, the only
employees in said unit were the three dischargees and
disc jockey Tony Smith.
In regard to Brothers' discharge, a certain amount of
background is necessary. As discussed infra, employee
Brothers was discharged on November 4 for the stated
reason that he refused a direct order by Alonzo to sweep
the stage of debris left from the pre-set which was con-
ducted for that evening's performance. The General
Counsel contends that, given the following background,
it was a virtual certainty that Brothers would refuse the
order which, given other circumstances discussed infra,
demonstrates that the order itself was part of a "set-up"
of Brothers in order to eliminate him because of his
union activities.
Brothers, Sayers, and Smith testified that none of the
technical employees had been asked to sweep up after
the pre-set before or after November 4. As discussed
infra, Mitchell and Ray Howell were hired on October
26; they also testified that, in their experience as techni-
cal employees, they were never asked to sweep the
stage. Each of these five employees testified that sweep-
ing after pre-set was performed only by the busboys.
Alonzo testified that the busboys swept the stage after
pre-set "many times," but "it's not generally (their) job
to clean up after the technician crew . . . I tell every-
body pretty much what to do." I find that this testimony
by Alonzo was false in view of the consistent testimony
of the five technical employees who testified credibly on
the point and the failure of Murray and Stein to contra-
dict any of the said testimony of the five technical em-
ployees. This conclusion is fortified by the following un-
contradicted testimony regarding a previous occasion
when Brothers started sweeping the stage and another
occasion when Alonzo attempted to give orders to
Sayers, as well as denials by Murray that Alonzo had
any authority over himself or the technical crew.
Brothers testified, without contradiction, that on one
of his first nights on the job he picked up a broom to
start sweeping after pre-set and Murray instructed him to
put down the broom because that was the job of the bus-
boys. Additionally, Sayers testified that in August he was
instructed by Alonzo to remove some boxes of plastic
snow from the side of the stage and take them down-
124
XENON
stairs. Sayers testified that he replied, "Look, Taylor,
you're not my boss, talk to Doug Murray." According to
Sayers, Alonzo became infuriated and stalked off to look
for Murray. Murray was found and told of the refusal.
According to Sayers, Murray told Sayers, in Alonzo's
presence, that he should go ahead and take the snow
boxes and put them downstairs, "But I was also told by
Mr. Murray that he was in fact my supervisor and that
he told Taylor in front of me that only he gave orders to
his crew." Alonzo, testifying on behalf of Respondent,
did not contradict Sayers' testimony on Murray's instruc-
tion. However, Alonzo testified that, when he gave the
order to Sayers, Sayers said nothing, "he just went run-
ning off" without saying anything. Alonzo admitted that
he and Murray had a "confrontation about it" by which
he meant Murray "came running out and he said what
you mean telling one of my men what to do. I responded
that anything it takes to get this place open in time I'll
do. And that I run it . . ... After my comment on that it
was just a lot of yelling and screaming and we just both
went our own ways to get the place open." Alonzo fur-
ther testified that he and Murray came to an agreement
between themselves that "in situations where it's neces-
sary, I always try to come to him first, if I can come to
him." Murray testified that he witnessed Sayers telling
Taylor that "it wasn't his place to tell him to do that,
that he should talk to Doug."2 Murray further adds,
"Then Taylor and I went outside and had it out and that
was that. It was made quite clear that I was supposed to
tell my people what to do and he was supposed to tell
his people what to do . . . that he was supposed to talk
to me before he gave them any orders." Although Stein
and Alonzo generously portrayed Alonzo as the supervi-
sor of Murray, ergo the technical employees, Murray at
all times material herein has made a higher salary than
Alonzo. Moreover, when asked to describe his responsi-
bilities on cross-examination, Murray testified:
Q. Now, I'd like you to tell me where your posi-
tion is in the hierarchy of Xenon? Who do you
report to?
A. I report to Howard Stein and Pepo Vinnini.
Q. Right. You do not report to Tony Alonzo?
A. Taylor Alonzo?
Q. Taylor Alonzo.
A. No.
It is further undisputed that Alonzo had no technical
competence, interviewed no technical employees, and,
according to this record, never gave any instructions of
any kind to any technical employee before November 4,
except in the case of Sayers and the plastic snow.
B. Union Activity and Demandfor Recognition
The organizational attempt among the technical em-
ployees at Xenon began on or about October 15. It was
initiated by Sayers who kept Supervisor Murray apprised
of his actions as he undertook them. Sayers had a meet-
ing on October 14 with Richard Cohen, apparently an
organizer for the Union, and on October 19 he met with
2 Accordingly, I discredit Taylor's testimony that Sayers "just went
running off" when told to remove the plastic snow
Cohen and McDonald, the Union's business manager, to
discuss organization. Sayers informed Murray of these
meetings beforehand, to which report Murray replied
that the prospect was interesting and he would check out
the Union with people whom he knew. A meeting of the
employees was arranged for October 24 with McDonald.
On October 22, in the presence of Murray, Sayers invit-
ed Tony Smith to attend the meeting. In addition to the
employees, Murray was specifically invited to attend the
October 24 meeting with McDonald. Brothers testified
that during the week preceding the October 24 meeting
he discussed the organizational attempt and the sched-
uled meeting with Murray. While the exact nature of this
discussion and what Brothers said is not in evidence,
Murray also told Brothers that he intended to check out
the Union.
Because he had doubts about whether Murray could
participate in organizational activities, McDonald ar-
ranged to meet Murray separately to discuss the ques-
tion. During the morning of October 24 McDonald,
Cohen, Sayers, and Murray met at a restaurant. Mc-
Donald asked Murray several questions about his author-
ity. Upon receipt of the answers McDonald informed
Murray that he should not participate in union activities
because he could not be protected from retaliation by
Respondent. Murray told McDonald that he understood
and the meeting terminated.
Later on October 24, McDonald and Cohen met with
Sayers, Kramer, Brothers, and Smith and solicited from
them signatures on authorization cards received in evi-
dence. The cards designate the Union as the collective-
bargaining representative of the employees. McDonald
also explained to the employees that Murray was not at
the meeting because he was a supervisor and could not
be protected if he participated in the union activities.
By letter dated October 25, McDonald informed Stein
that a majority of the technical employees had designat-
ed the Union as their bargaining agent, demanded recog-
nition and bargaining for such employees, requested vol-
untary recognition as the employees' bargaining agent,
and suggested a card check. It was stipulated that this
letter was received in Respondent's office on October 26,
1978.
C. Events Following Demand for Recognition
1. Questioning of employees
Stein was not in the office at the time the Union's
letter demanding recognition was received, 11 a.m. As
was his usual custom he did not come in until about 3
p.m. that day. The letter was opened by Office Manager
Kiehl who read it and then summoned Murray and Hart-
man and asked them what they knew of it. Both Hart-
man and Murray denied any knowledge of the letter.
Murray took the letter and went down to the dance floor
where employees Sayers, Brothers, and Kramer were
working to prepare props for an afternoon show. As
Murray admits, he asked each of the three what they
knew about the letter, and all three replied that whatever
he needed to know was in the letter. Murray further
admits saying "the shit has hit the fan." Murray then
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to the disc jockey's booth and asked Smith about
the letter and Smith also gave the same response.
Murray reported back to Kiehl what the employees
had replied. Kiehl testified that he wanted to know if the
letter was authentic so he called the Union. The person
who answered the telephone referred him to the Union's
attorney who explained to Kiehl what a card check was.
Thereafter, Kiehl went himself to ask Sayers, Brothers,
and Kramer what they knew about the letter. The em-
ployees testified that Kiehl asked them, "Are you card
carrying members?" Kiehl admitted that he might have
couched his inquiry in those terms.3
About I p.m. Kiehl called Stein and read him the
Union's demand letter. Kiehl testified that, after he read
the letter to Stein, Stein asked if Hartman was involved
and he replied negatively. I credit this testimony over
Stein's denial that Kiehl read only the first paragraph of
the letter and asked Kiehl about the involvement of no
individual employee.
2. Hiring of replacements
At some point during the afternoon of October 26,
sometime between I and 5 p.m., individuals Mitchell
Acker and Raymond Howell, both of whom testified at
the hearing, received telephone calls from Murray who
asked both Acker and Howell if they would be interest-
ed in coming to work for Xenon. Both replied affirma-
tively. Murray told them they would later be called by
Stein. At the time Acker was employed by Studio 54, as
he put it, "primarily as a flyman" but also as an electri-
cian and light board operator; Howell was then unem-
ployed. (At one point in his testimony Acker volun-
teered that Howell had been fired from Studio 54. Al-
though this remark was hearsay, it was not objected to
and I find it to be the fact.) After the initial calls from
Murray, both Acker and Howell were called later in the
afternoon by Stein himself. Acker testified about his call
from Stein thusly: Stein stated that he was displeased
with his present light board operator (who was Sayers)
and he was looking for another. Stein asked Acker if he
was involved with the Union and Acker replied nega-
tively. Stein asked if Acker would ever want to get in-
volved with the Union and what his views on the Union
were. Acker replied that the Union had good points and
bad. Stein asked if Acker knew that Xenon was "not a
union house." Acker replied that he did. Then Stein and
Acker began to discuss what his duties would be at
Xenon. Stein indicated that, as well as operating the light
board, Acker would have to do pre-set work from 8 to
10:30 p.m. Acker flatly refused to agree to do any pre-set
work and would agree only to report to work in suffi-
cient time to have the lighting system operating. Stein
told Acker to come in that evening to discuss the job in
more detail and discuss salary. None of this testimony by
I The preceding two paragraphs represent essentially undisputed testi-
mony. In addition, Sayers also testified that Murray said that Howard
Stein was in the office and had gone "berserk." It is further undisputed
that Stein was not in the office at that hour. I conclude that Sayers was
mistaken about Murray's referring to Stein's whereabouts, but not delib-
erately lying. Murray admitted the "fan" statement and refused to deny
also telling the employees "the people in the office were really pissed off
about the Union." It appears that Sayers, not illogically, took this to in-
clude Stein.
Acker about this telephone conversation with Stein was
denied by Stein.
Howell testified that he also received a telephone call
from Stein that afternoon and Stein asked if he would be
interested in working at Xenon. When Howell gave an
affirmative reply, Stein asked him to come in that eve-
ning to discuss the matter also.
When Acker arrived at the premises about midnight
he met Stein. According to Acker, Stein first offered be-
tween $35 and $40 per shift to operate the light board.
Acker said that he would not work for less than $50 a
night, that he would not do pre-set work, and he would
work only when his schedule at Studio 54 would permit
(which would be 3 or 4 nights per week maximum).
Stein agreed to these terms.
Howell also met Stein that evening in Stein's office.
Stein told Howell that he wanted to hire him to run the
light board and operate the flys. Stein offered Howell
$50 per shift and Howell agreed. Stein told Howell that
he would start working on either October 30 or 31 and
that Murray would be contacting him later.
As discussed infra, Sayers was fired by Stein on Octo-
ber 27 about 2:30 p.m. Acker began working as a light
board operator the evening of October 27 and continued
until November 6 when he quit. Howell began working
on October 30 or 31 working the light board, apparently
when Acker was at his regular job at Studio 54. Howell
worked the light board for a few weeks after Acker quit
and then, because Vinnini and Stein were displeased with
his performance on the light board, he was transferred to
the job of flyman where he remained until February or
March 1979 when he was made assistant technical direc-
tor.
None of the above testimony by Howell and Acker is
denied by Stein or other agents of Respondent who
would presumably have knowledge about their inter-
views and initial employment. Specifically, it is to be
noted that it is not in dispute that neither Howell nor
Acker was interviewed by Murray before he was hired;
it is further not disputed that all other technical employ-
ees hired before the date of the hearing were, in fact, in-
terviewed by Murray; it is further undisputed that Stein
has no technical experience and had not previously inter-
viewed technical employees.
Murray testified that he found out that Sayers had
been fired on Friday evening, October 27. He first testi-
fied that on that date Stein informed him that Howell
and Acker would replace Sayers and Brothers; then he
withdrew that and stated that on October 27 Stein told
him only that Acker would be replacing Sayers and that
he, Murray, should find out what Acker knew about the
light board. Murray testified that Howell replaced only
Brothers and was not hired until the evening Brothers
was fired, as discussed infra, November 4. Murray em-
phatically stated that he did not even see Howell at the
discotheque until November 4, on which date he was
first told by Stein that Howell was to replace Brothers
and it was only then that he called Howell at home to
come in to replace the discharged Brothers; however, it
is undisputed that Howell began work on October 30 or
31.
126
XENON
3. Discharge of Albert Sayers
Dischargee Brothers testified that at some time during
the shift which began on October 26, apparently around
midnight, "Mr. Murray said that he would have to get
rid-that Mr. Stein told him that he would have to get
rid of three people. Sayers, Kramer, and myself," al-
though Murray did not say why. Murray did not deny
this statement, and I find that he made it. Respondent
argues that Brothers' testimony on this point cannot be
credited because his pretrial affidavit states that no su-
pervisor spoke to him about the Union after he was in-
terrogated by Kiehl. Brothers and Murray had worked
together in off-broadway productions for about 2-1/2
years before the discharges. Brothers testified that the
two were friends, a fact that was readily apparent from
Murray's demeanor as he testified about the discharge of
Brothers in which he conspicuously failed to participate,
as discussed infra. Brothers credibly testified that it was
because of this friendship and fear for Murray's job that
he omitted Murray's statement from his affidavit. Al-
though the affidavit carried an express assurance of con-
fidentiality, it is to be remembered that Business Manager
McDonald had warned the employees that Murray could
not be insulated from retaliation by Respondent. Accord-
ingly, I credit Brothers' undenied testimony about this
remark by Murray.
During the same shift, Murray entered the control
booth where Sayers was operating the light board. Ac-
cording to Sayers' testimony Murray asked, "Would you
like to know before or after if you're going to be fired?"
Sayers replied that he wanted it beforehand and Murray
stated that Stein would fire him either that night or later
that day "as an example to everyone else" because Stein
"was trying to find someone to blame this on." Murray
denied telling Sayers that union activity was the reason
for his impending discharge; in fact, he denied giving
any reason at all. Since Sayers had no prior warning of
the discharge, it is incredible that Murray simply an-
nounced the forthcoming discharge and nothing about
"why" it was said. I therefore credit Sayers. It is further
undisputed that a few hours later, during the same shift,
Murray told Sayers that the following day Stein would
call him in the afternoon at home and fire him. About
2:30 p.m., October 27, Stein called Sayers at home and
told him that he was discharged because he did not think
he was of a caliber to compete with Studio 54. Sayers
replied, "I understand."
Stein testified that Sayers was discharged because he
was not as good as the light board operator at Studio 54.
As Stein testified on direct examination:
Q. Who fired Al Sayers?
A. I did.
Q. Could you tell me why he was fired? What
the background of it was.
A. The background. There was no background.
He was simply not good enough to complete with
Studio 54 in our opinion. We didn't think he had
the artistic sensibility nor the disco music knowl-
edge or the basic sense and-I can't find the word
because it's a difficult word to find, but he didn't
have "It" for a disco lighting operator.
Q. Did you yourself have any complaints about
the quality of Mr. Sayers' work?
A. Yes.
Q. Would you tell us about that?
A. I thought it was professional but lacked luster.
Just not the best.
Stein further testified that he was willing to "gamble" on
working Howell and Acker in tandem as the light board
operator rather than continue with Sayers alone. Except
for one performance of which he had been critical, Stein
could cite no specific incident of misconduct or failing
on the part of Sayers and relied only on his subjective
dissatisfaction and reports by his clientele that Studio 54
had better lighting. As noted, it is undisputed that neither
Howell nor Acker was the primary lighting board opera-
tor at Studio 54, and that Howell was not even em-
ployed by Studio 54 at the time. Murray himself testified
that Studio 54 operates its light board with two opera-
tors at a time. There is no evidence that either Stein or
Murray had ever witnessed light board operations at
Studio 54 that they knew to be by either Howell or
Acker.
Stein and Kiehl testified that Respondent had been
looking for a replacement operator for quite some time
because of dissatisfaction with Sayers' artistic talent. This
testimony was completely unsubstantiated, and, further,
the:e is no explanation offered as to why Respondent
was not successful in contacting Acker and Howell until
the day of the Union's demand other than that their tele-
phones were not answered. Moreover, Sayers testified
credibly that Murray had stated to him at some time
shortly before his discharge that Respondent was, in fact,
looking for another light board operator, but only as a
relief light board operator because Sayer had been work-
ing 21 days in a row without a day off. I find that if
there had been prior attempt to secure another light
board operator it was only for the purpose of securing a
relief operator for Sayers.
Sayers was hired in June or July as a flyman and was
trained on the light board by Murray when the then
light board operator, Dale Jordan, was absent for a
week. After Jordan returned Sayers alternated with him
as light board operator and gradually took over the
duties as Jordan was eased out because Stein had become
dissatisfied with his performance on the light board. As
Stein testified, Jordan "knew we were unhappy with him
and we started to give him fewer shifts to work and as a
result, I think he took the hint that he wasn't appreciated
and decided to leave." Respondent is a 7-day-a-week op-
eration and Sayers, being the only light board operator,
worked 21 consecutive days immediately preceding the
Union's demand for recognition. In addition to working
the regular shift from 10:30 p.m. to 6:30 a.m., he ap-
peared each night at 8 p.m. for pre-set. Additionally, he
worked several private parties during the daytime as
well as photography sessions.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 10, Sayers asked Stein for a raise from $40
to $50 per shift.4 Before asking for the raise Kiehl ad-
vised Sayers against making such a request because it
was not a good time to do so. Nevertheless, Stein grant-
ed the $10-per-show wage increase to Sayers and further
told him that he was happy with his work and appreciat-
ed his working as the only light board operator. In the
10 days preceding the Union's demand for recognition,
both Stein and Vinnini complimented Sayers' work, Vin-
nini telling him at one point that the lights had really
been "hot" on a particular night, apparently the consum-
mate compliment for a light board operator in the indus-
try. As noted, Stein could cite only one evening's light
display for which he criticized Sayers. No warning was
given to Sayers by Stein on this occasion.
4. The discharge of E. Scott Kramer
About 3 a.m. the morning of October 31, according to
the testimony of Kramer, he was approached by Murray
and:
I was running the projector at the time-he had
asked me how that was going and I said there were
some film left on it and then Doug told me he-you
know-he said the effect I had rigged for the Hal-
loween work nicely and then had told me-he then
told me that Howard-you know-didn't want me
working there any more and that, you know-I was
finished and I asked him what that meant and he re-
plied that, you know-Howard did not want me at
Xenon any more. And I said, I think-you know-
does that mean I'm fired to which he replied
yes ...
Kramer further testified that Murray told him that he
would be replaced by an individual to whom he had
been introduced at Xenon the preceding Saturday after-
noon. That Murray told Kramer that he was "fired,"
that he told Kramer that it was Stein's decision to effec-
tuate the discharge, and that he told Kramer that he
would be replaced by another individual is not denied.
As noted above, Kramer was one of the employees ques-
tioned by Kiehl and Murray on October 26. Additional-
ly, relevant in Kramer's case is the undisputed fact that,
on October 24, he approached Murray to ask where the
union meeting was going to be that date. Murray told
Kramer at which restaurant it would be and added that
he had been advised by the Union not to attend any
more meetings because it might cost him his job.
At the hearing Stein testified that in order to cut ex-
penses he told Murray to lay off someone who was ex-
pendable. Murray corroborates this testimony and states
that he selected Kramer because Kramer had been initial-
ly hired only as a "consultant" for rigging and as a sub-
stitutes flyman. Murray acknowledged that Kramer was
replaced as a substitute flyman, although he was not re-
placed as a rigger.
4 In addition thereto, Sayers was paid $7.50 per hour for the parties
and photography sessions.
s As substitute flyman, Kramer worked 2 or 3 days a week, apparently
in relief of Brothers.
No other employees were laid off at this time.6 Two
flymen were hired by Respondent in the 2 weeks follow-
ing the discharge of Kramer, one Joel Krasnove during
the week of November 8 and one Hamford Monteith
during the week of November 15. Additionally, one
Robert Medrala was hired as a pre-set man during the
week ending November 15 and one Allen Grippaldi was
hired as an additional light board operator during the
week ending November 29. During the several weeks
following the discharge of Kramer, pay raises were
granted to Murray and Alonzo. Respondent offered no
documentary substantiation for the claimed necessity for
the layoff.
5. The discharge of Curtis Brothers
As noted above, Murray told Brothers on the evening
following the receipt of the demand letter that he, Sayer,
and Kramer were to be discharged. Thereafter, during
the shift beginning November 2, Murray told Brothers
specifically that he would be fired the following day
after he worked a daytime fashion show. As Murray
admits, "I said to Curtis, Curtis, you are going to be
fired, probably the next day." Murray testified that he
made the remark to Brothers, as well as Sayers, to pre-
pare them for what was going to happen eventually.
Brothers worked the fashion show without event and
after it was over asked Murray to be excused from the
shift beginning at 10:30 p.m. Murray granted the request
and Brothers did not reappear for work until the evening
of November 4.
On November 4, Brothers appeared about 8 p.m. to do
pre-set with Murray. He testified that about 10 p.m. after
the pre-set work was finished Murray asked him to go to
a nearby delicatessen to get him some milk and cookies.7
Murray did not ask Brothers to sweep up crepe paper
which was left on the stage from the pre-set. Brothers
went to the delicatessen and returned about 10:10 p.m. at
which time he went down to the crew which was be-
neath the dance floor to "relax." While he was there
Taylor Alonzo appeared and instructed him to get a
broom and clean off the stage where there was still crepe
paper residue left over from the pre-set. Brothers replied
that he had been told by Murray not to clean the stage
area and he asked Alonzo to check with Murray or
Stein. Alonzo persisted in his demand and ordered
Brothers to clean the stage immediately. Brothers stated
that he wanted to talk to Murray and turned his back on
Alonzo and walked toward a stairway which led up to
the stage. As Brothers walked away Alonzo stated that if
he continued walking he would be fired. Brothers con-
tinued walking and Alonzo stated, "That's it. You're
fired." It is undisputed that at the top of the stairway
toward which Brothers was walking there was a broom
which could have been used to sweep the stage had
I There was testimony that several bartenders or busboys were fired
about this time by Taylor Alonzo for various reasons; however, I find
this testimony irrelevant.
I Murray testified that he did not remember sending Brothers out for
milk and cookies. I credit Brothers. In view of the dramatic nature of the
discharge, of which Murray was assuredly aware, it is incredible that
Murray could not remember whether shortly before the fact he had sent
Brothers on such an errand.
128
XENON
Brothers been inclined to do so. Brothers asked Alonzo
how he could know he was not walking toward the
stairway to get the broom at the top of the stairs.8
Alonzo did not reply but only repeated that Brothers
was fired.
Brothers acknowledged that, at one point during the
confrontation, Alonzo stated that he was Murray's super-
visor.
The foregoing account of Brothers' discharge is a fair
synthesis of the credible parts of the testimony of
Alonzo, Brothers, and bartender Patrick McBride who
claims to have been in the stage area coincidently.
Brothers testified that he first looked for Murray but
could not find him. He then saw Stein and asked to talk
to him. When asked if Brothers had asked to speak to
him, Stein responded, "Not to my knowledge." I credit
Brothers. Brothers went to his work station, the fly rail,
where he was followed by McBride. Brothers was imme-
diately approached by security personnel and ordered to
leave, which he did without seeing Murray.
Alonzo testified that he chose Brothers to sweep the
stage because the busboys had failed to finish their other
assigned duties in time to sweep the stage before the
10:30 opening and Brothers was the only member of the
technical crew whom he had seen doing pre-set that eve-
ning. More specifically, Alonzo testified that just a few
minutes before 10:30 he saw the stage had not been
swept and he went to the room where the busboys were
changing from their street clothes into the jumpsuits they
wore during the evening. According to Alonzo he yelled
at the busboys to hurry and sweep the stage, but he ac-
knowledged that he did not discipline them in any way
for their failure to have the stage swept by that point. He
went from the busboys' changing room to the crew
room where he found Brothers. After Brothers' refusal,
Alonzo and the busboys swept the stage.
Murray testified that he believed he must have gone
for coffee when the Alonzo-Brothers incident occurred.
To the extent that by this answer Murray attempted to
convey the impression that he could not remember
where he was when Alonzo confronted Brothers, I find
this answer false. Again, this was a dramatic, unprec-
edented discharge of his longstanding friend by someone
whom Murray insisted had no authority over himself or
his crew. Moreover, Murray had previously warned
Brothers that his discharge was impending and it was
only because of his absence that the confrontation could
have been fulminated.
Murray testified that "to this date I still do not know
the exact reason why he was let go," although Alonzo
testified that he told Murray within a few hours after-
wards the reason for the discharge of Brothers. Brothers
is the only technical employee that he discharged, al-
though he discharged numerous waiters, busboys, and
bartenders before and after the events of this case.
When asked on direct examination about Brothers' dis-
charge. Stein testified:
' However, it is quite clear from all the testimony that Alonzo had no
reason to believe that Brothers had any intention of sweeping the stage
pursuant to the directive without finding and conferring with Murray
first.
Q. Do you know who Curtis Brothers was?
A. Yes.
Q. Who was he?
A. Curtis Brothers was a flyman.
Q. What caused his release from your employ?
A. Personality. His attitude.
Q. Tell me about that?
A. In my opinion, he was belligerent, insubordi-
nate, bellicose and gruff with fellow workers and
difficult to work with.
Q. Can you give me specific instances?
A. I had several complaints from by manager-
Q. Who is?
A. Who is Taylor Alonzo. That he wouldn't
maintain his own area of operation. That being the
crepe paper and the snow and the balloons. That he
would occassionally pre-set. He had told me and I
don't know if it was an exaggeration, that once or
twice he had come to blows over-this is basic in a
small area with the bartenders, the waiters and the
bus boys, that he could get no response from him
when he asked him questions or asked any coopera-
tion from him. This is Taylor. And I had similar
complaints of a lack of cooperation from my pro-
duction assistant, Miss Corrine Hartman.
Alonzo testified to no such prior confrontations with
Brothers (over crepe paper or anything else), although
he testified that he had discharged several busboys for
insubordination short of that which "he had come to
blows over." Hartman testified that "at least once"
Brothers refused to move something heavy for her, but
she only testified that she reported this only to Murray,
not Stein. In short, the above-quoted testimony by Stein
is obviously false. Murray testified that Brothers argued
with him for about 15 minutes about how to do some-
thing, but there is no evidence that that incident had
anything to do with the discharge. Kiehl testified that
once he asked Brothers to carry a box of crepe paper
from the office area to the crew room and Brothers re-
fused. Brothers credibly denied this but, again, there is
no evidence that this could have played a part in the dis-
charge of Brothers by Alonzo. Murray agreed that
Brothers' work was satisfactory and that he was a "valu-
able" employee.
IV. ANALYSIS AND CONCLUSIONS
A. Interrogations
It is undisputed that Murray questioned Smith as well
as dischargees Sayers, Brothers, and Kramer about what
they knew about the demand for recognition. It is fur-
ther undisputed that Kiehl asked each of the dischargees
and Smith if they were "card carrying members." And it
is further undisputed that Stein questioned employee-ap-
plicant Acker about his sympathies for the Union before
hiring him. Each 9 of these inquiries are interrogations
I The interrogation of Acker by Stein was not specifically alleged.
However, it was an integral part of the General's Counsel's case on the
discharge of Sayers and Respondent had ample notice if it wished to
Continued
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from which employees are insulated by Section 8(a)(1) of
the Act as they tend to interfere with, restrain, and
coerce employees in the exercise of the rights established
by Section 7 of the Act. Accordingly, I find and con-
clude that by each of these interrogations Respondent
violated Section 8(a)(1) of the Act.
B. The Discharges
1. Albert Sayers
I would not attempt to substitute my judgment for
Stein's about what is art and how Sayer's artistic capa-
bilities compared to that of those who were operating
the lights at Studio 54. However, the following factors
lead me to conclude that Sayers was not discharged for
lack of artistic talent (or because he was "just not the
best" as Stein also stated) but because he spearheaded the
union organizational attempt
Through Murray, Respondent knew that the organiza-
tional attempt which was announced on October 26 was
chiefly instrumented by the efforts of Sayers. The
common vulgarism "the shit has hit the fan" employed
by Murray to announce Respondent's reaction to the
demand letter clearly demonstrates Respondent's animus
towards the organizational effort.
The employment of Howell and Acker to replace
Sayers was a complete sham, as well as unsuccessful.
Howell and Acker were first contacted for employment
the very afternoon Respondent received the demand
letter. According to Stein they were to jointly replace
Sayers in a "gamble" to establish competition with
Studio 54. The problems with such a theory are multitu-
dinous and multifarious. Studio 54 uses two light board
operators at a time. There is no evidence that Stein ever
knowingly saw Howell or Acker operating the lights at
Studio 54, either jointly or by themselves. Acker was not
even employed by Studio 54 principally as a light board
operator but principally as a flyman. Howell had been
fired by Studio 54 from whatever capacity he served.
Acker and Howell are the first technical employees hired
without consultation by Murray. Murray could not even
remember at the time of the hearing that Acker and
Howell were supposedly hired to jointly replace Sayers;
he thought Howell had been hired to replace Brothers.
Acker and Howell were completely unknown entities
but allowed to demand the same pay that Sayers had
been receiving. Acker was further allowed to flatly
refuse to do pre-set, an activity which accounted for 2-1/
2 hours per night, but still received the same salary as
Sayers' which had recently been augmented by $10 per
shift. Acker was hired only after Stein's interrogation
and elicitation of an acknowledgment that he knew that
Xenon was "not a union house." As it turned out, Acker
stayed with Respondent for only 2 weeks (during which
time he worked only when his Studio 54 schedule would
permit), and Howell proved to be totally unsatisfactory
as a light board operator. Unlike Sayers, however,
Howell was given a chance to operate the flys rather
than be discharged. Thus, it is clear that Stein was will-
deny the fact. Accordingly, I grant the General Counsel's request for a
specific finding and conclusion in this regard. Jupiter 8. Inc., 242 NLRB
1093 (1979).
ing to "gamble" on Howell and Acker in tandem (no
matter how unqualified in the case of Howell, and no
matter how demanding in the case of Acker) just in
order to "go on with the show" without union sympa-
thizer Sayers.
Sayers was fired immediately following the recogni-
tional demand. He was fired without warning and short-
ly after being complimented, given a $10-per-shift raise
(after being advised by Kiehl that it had been a bad time
to ask for a raise), and worked 10 to 12 hours a day for
21 consecutive days with only one performance being
criticized by Stein. In short, a satisfactory, or more than
satisfactory, employee was rejected in favor of two un-
known entities who proved quickly to be either inept or
unwilling to work for Respondent.
Stein himself testified that he had become dissatisfied
with the "art" of Sayers' predecessor, Dale Jordan;
Jordan was given a "hint" that his services were no
longer desired by a gradual reduction of shifts. Sayers,
on the other hand, was crudely fired as soon as putative
replacements could be secured.
Respondent offered no explanation why, if lack of ar-
tistic talent was the real reason for discharging Sayers,
Sayers was not given the opportunity to return to oper-
ating the flys, as was Howell, or given a "hint" that he
was in disfavor, like Jordan. Plainly, Respondent's treat-
ment of Sayers was discrimination and, following imme-
diately as it did after the demand for recognition, the
conclusion is compelled that the discrimination was
caused by the union activity of the employees, and the
activity of Sayers himself in particular.
Therefore, without more, I would find that Respond-
ent violated Section 8(a)(3) and (1) of the Act in the dis-
charge of Sayers. However, there is more: Murray told
Sayers in advance that he was going to be fired "as an
example to everyone else" because Stein was "trying to
find someone to blame this on." What "this" meant was
not expressly stated, but, following immediately the
demand for recognition, the interrogations, the "shit has
hit the fan" statement by Murray, and the sham securing
of replacements for Sayers, the conclusion is compelled
that Murray referred to the organizational effort.
Accordingly, I find and conclude that Respondent dis-
charged Albert Sayers on October 27 because of his ac-
tivities on behalf of the Union, which action violated
Section 8(a)(3) and (1) of the Act.
2. E. Scott Kramer
The only union activity of E. Scott Kramer was his at-
tendance at a union meeting and the signing of an au-
thorization card. His asking Murray for the location of
the meeting compels an inference of knowledge that at
least he intended to attend the meeting. Kramer was
named by Murray as one who Stein had said must be dis-
charged immediately after the demand for recognition
was made, according to the undenied testimony of
Brothers.
Respondent argued that Kramer was selected for "lay
off" as an economic measure, and Respondent further
argues that Kramer was hired only temporarily. The first
problem with the arguments is that Kramer was un-
130
XENON
equivocally told by Murray that he was fired, not laid
off, and there is a substantial difference. Further, it is un-
disputed that if Kramer's employment was only to be
temporary no one told Kramer about it. Finally, it is
plainly incredible that only I employee out of 60 would
be laid off for economic purposes. The sham nature of
Respondent's "economic" defense for laying off Kramer
is further demonstrated by the fact that Respondent of-
fered no documentary evidence to support its claim of
economic reversal which would require the Kramer
layoff, and I draw an adverse inference from its failure
to do so.' Finally, within a month after the layoff an-
other substitute flyman and other technical unit employ-
ees were hired.
Accordingly, I find that Respondent's defense of eco-
nomic motivation for the termination of Kramer is spuri-
ous, and it does not defeat the prima facie case made out
by the General Counsel in regard to the discharge of
Kramer. Accordingly, I find and conclude that Kramer
was discharged by Respondent in violation of Section
8(aX3) and (1) of the Act.
3. Curtis Brothers
It is clear that the discharge of Brothers was the prod-
uct of a maneuver, or "set-up" as the General Counsel
argues, and it was a maneuver employed by Respondent
to eliminate a known union sympathizer. Immediately
after the demand for recognition, Brothers was specifi-
cally told by Murray that Stein had decided that he, as
well as Sayers and Kramer, would have to be dis-
charged. On the same shift Murray told Brothers the dis-
charge would come the next day after the fashion show.
The discharge did not come until the next time Brothers
worked the 10:30 p.m. shift. Brothers was sent out for
milk and cookies which apparently failed to satiate
Murray because, even though the Saturday night show
("the biggest night of the week" according to Alonzo)
was about to begin, Murray found it necessary to step
out for coffee also. Thus was removed the person who
had categorically told Brothers not to perform sweeping
and the person who told Alonzo, in the presence of the
technical employees, in shouted words, not to give
orders to the technical crew without clearing it with him
first. Then entered Alonzo with his unprecedented order.
When an employee is told not to do something by his
undisputed supervisor, and then told to do exactly that
by someone who has no direct supervisory responsibility
over him, it is not unpredictable that the employee will
demur. The predictability was strong enough in this case
to amount to a virtual certainty.
Respondent introduced the testimony of Stein, Hart-
man, Keihl, and Murray to show that Brothers had a his-
tory of obstreperousness and insubordination and this
was part of the reason for discharge. The spurious nature
of this attempt is obvious. Stein's testimony relied chiefly
on reports by Alonzo, but Alonzo testified to no prior
encounters with Brothers. Presumably, had Alonzo had
prior difficulties with Brothers, he would have men-
tioned it. Even if it is assumed that Kiehl, Hartman, and
Murray reported their alleged difficulties with Brothers
'0 Hurst Performance. Inc., 242 NLRB 121 (1979).
to Stein, there is no evidence that they were reported to
Alonzo who, after all, fired Brothers. Moreover, if the
previous derelictions on the part of Brothers had war-
ranted some sort of discipline, discipline would have
been imposed before November 4; there was none. The
testimony that Brothers was guilty of prior disciplinary
infractions and that this was part of the reason for dis-
charge, as Stein testified, as well as being incredible,
completely destroys the theory of spontaneity in the No-
vember 4 discharge of Brothers, and it represents a grop-
ing for a reason to justify the unjustifiable.
The discharge of Brothers was also discriminatory vis-
a-vis the treatment of other employees. In August, when
Sayers refused to comply with Alonzo's orders to move
boxes of plastic snow from the stage, Sayers told
Alonzo, "Look, Taylor, you're not my boss, talk to
Doug Murray." Sayers was not disciplined; he was sup-
ported by Murray. It was Alonzo who was told that he
was out of line by Murray.
In summary, Brothers, prior to the union movement,
was a satisfactory employee, who, upon the demand for
recognition, was informed that he was to be fired; then
he was fired after being maneuvered into a position of
having to choose between outstanding instructions of his
(withdrawn or removed) supervisor and the unprec-
edented instructions by someone who was not his super-
visor or the supervisor of his supervisor. In these circum-
stances, the contention that Brothers was discharged for
refusing Alonzo's order is plainly spurious. I find and
conclude that the real reason was the known union alle-
giance of Brothers and the desire to keep Xenon, as Stein
referred to it when talking to Acker, "not a union
house."
Accordingly, I find and conclude that Respondent vio-
lated Section 8(a)(3) and (1) of the Act when it dis-
charged Brothers on November 4, 1978.
C. Appropriateness of a Bargaining Order
It was stipulated that the technical unit was a unit ap-
propriate for bargaining under Section 9(b) of the Act. It
was further stipulated that, at the time of the events of
this case, the only employees in said unit were, on Octo-
ber 24, employees Sayers, Kramer, Brothers, and Jones.
It is further not in dispute that all four of these employ-
ees, on October 24, executed cards authorizing the Union
to represent them as their agent for purposes of collec-
tive bargaining.
Upon the premise of the Union's having established a
majority of support in the unit appropriate for collective
bargaining, and the Union having demanded and the em-
ployer having refused recognition as the collective-bar-
gaining agent of said employees, the General Counsel
urges that a violation of Section 8(a)5) and (1) of the
Act has been made out and that a bargaining order
should issue.
The Supreme Court stated in N.L.R.B. v. Gissel Pack-
ing Co., Inc., 395 U.S. 575, 614-615 (1969):
If the Board finds the possibility of erasing the ef-
fects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies,
131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though present, is slight and that employee senti-
ment once expressed through cards would, on bal-
ance, be better protected by a bargaining order,
then such an order should issue ....
After the four members of the bargaining unit were in-
terrogated, three of them were discharged in violation of
Section 8(a)(3) of the Act. After the discharges at least
one replacement, Acker, was pointedly told that Xenon
was "not a union house," thus implicitly warning Acker
to refrain from union activities after he was hired.
By these interrogations, discharges, and warnings to
one replacement, it has been made known to all present
and future employees of Xenon that Respondent intends
to remain "not a union house" even if it means that Re-
spondent will be required to unlawfully discharge sub-
stantially all employees in any appropriate unit. Specifi-
cally, I find that the employees' sentiments once ex-
pressed through cards, on balance, would be better pro-
tected by a bargaining order than invocation of tradition-
al remedies in the hope that a fair election may at some
day in the future be possible. Therefore, a bargaining
order would be required even without demand and refus-
al as of October 26. Beasley Energy, Inc., d/b/a Peaker
Run Coal Company, Ohio Division #1, 228 NLRB 93
(1977). I find, as well, that by its conduct Respondent
has violated Section 8(a)(5) of the Act and it is appropri-
ate and necessary to issue a bargaining order in order to
protect the employees' rights to organize and bargain
collectively.
Upon the foregoing findings of fact and conclusions
based thereupon, and upon the record as a whole, I make
the following:
CONCLUSIONS OF LAW
I. Respondent, Discotron Equipment Inc., d/b/a
Xenon, 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 interrogating employees about their union activi-
ties, sympathies, and desires, Respondent has violated
Section 8(a)(1) of the Act.
4. By discharging employees Albert Sayers, E. Scott
Kramer, and Curtis Brothers, Respondent has violated
Section 8(a)(3) and (1) of the Act.
5. The following unit constitutes a unit appropriate for
collective bargaining.
All full-time and regular part-time production em-
ployees, including pre-set technicians, lighting oper-
ators, riggers-flymen operators, and sound techni-
cian-disc jockeys employed by Respondent; exclud-
ing all other employees such as bartenders, ticket-
takers, waiters, busboys, doormen, coat room clerks,
ladies room attendants, office clerical employees,
guards and all supervisors as defined in Section
2(11) of the Act.
6. By failing to recognize the Union as the exclusive
collective-bargaining representative of its employees in
the unit described above on and after October 26, 1978,
as found herein, Respondent violated Section 8(a)(5) and
(1) of the Act.
7. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that Respondent
be ordered to cease and desist from engaging in these
unfair labor practices. I shall also recommend to the
Board that Respondent be required to take certain af-
firmative action in order to effectuate the policies of the
Act. As well as an order to bargain with the Union, such
affirmative action will include an offer of reinstatement
to Albert W. Sayers, E. Scott Kramer, and Curtis Broth-
ers, and the payment of backpay for them as well. Back-
pay is to be computed on a quarterly basis in the manner
prescribed by the Board in F. W Woolworth Company, 90
NLRB 289 (1950), with interest thereon as established by
the Board in Florida Steel Corporation, 231 NLRB 651
(1977); see, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
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:
ORDER 1
The Respondent, Discotron Equipment Inc., d/b/a
Xenon, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
membership, activities, or desires.
(b) Discouraging membership in the Union or any
other labor organization by discharging or otherwise dis-
criminating against employees in any manner with re-
spect to their hire or tenure of employment of any term
or condition of employment.
(c) Refusing to recognize and bargain with Theatrical
Protective Union Local No. One, IATSE, AFL-CIO,
CLC, as the exclusive collective-bargaining representa-
tive of its employees in this appropriate unit:
All full-time and regular part-time production em-
ployees, including pre-set technicians, lighting oper-
ators, riggers-flymen operators, and sound techni-
cian-disc jockeys employed by Respondent; exclud-
ing all other employees such as bartenders, ticket-
takers, waiters, busboys, doormen, coat room clerks,
ladies' room attendants, office clerical employees,
guards and all supervisors as defined in Section
2(11) of the Act.
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
132
XENON
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the
above-named labor organization as the exclusive repre-
sentative of the employees in the above-described unit
concerning their rates of pay, wages, hours, and other
terms and conditions of employment, and, if an under-
standing is reached, embody it in a signed agreement if
asked to do so.
(b) Offer to Albert W. Sayers, E. Scott Kramer, and
Curtis Brothers immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority
or other rights and privileges previously enjoyed, and
make them whole, with interest, for any loss of earnings
and/or benefits suffered by reason of their unlawful ter-
minations.
(c) 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
under the terms of this Order.
(d) Post at its New York City place of business copies
of the attached notice marked "Appendix." t 2 Copies of
said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent or
its representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
i2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activity except to the extent that the employees'
bargaining representative and employer have a
collective-bargaining agreement which imposes a
lawful requirement that employees become union
members.
WE WI.l NOT interrogate employees about their
union membership, activities, or desires.
WE WILL NOT refuse to recognize Theatrical
Protective Union Local No. One, IATSE, AFL-
CIO, CLC, as the exclusive collective-bargaining
representative of our employees in this appropriate
unit:
All full-time and regular part-time production
employees, including pre-set technicians, lighting
operators, riggers-flyman operators, and sound
technician-disc jockeys employed by us excluding
all other employees such as bartenders, ticket-
takers, waiters, busboys, doormen, coat room
clerks, ladies' room attendants, office clerical em-
ployees, guards and all supervisors as defined in
Section 2(11) of the Act.
WE WI L NOT discharge or otherwise discrimi-
nate against employees because of their union activ-
ities.
WI Wl.li NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under the Act.
WE WILL , upon request, recognize and bargain
with the above-named labor organization as the ex-
clusive representative of the employees in the
above-described unit concerning rates of pay,
wages, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody it in a signed document if asked to do so.
WE WILL offer Albert W. Sayers, E. Scott
Kramer, and Curtis Brothers immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed.
WE WILL make Albert W. Sayers, E. Scott
Kramer, and Curtis Brothers whole, with interest,
for any loss of pay they may have suffered as a
result of our discrimination against them.
DISCOTRON EQUIPMENT INC., D/B/A
XEINON
133