XenonDownload PDFNational Labor Relations Board - Board DecisionsJun 25, 1980250 N.L.R.B. 123 (N.L.R.B. 1980) Copy Citation 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 Copy with citationCopy as parenthetical citation