Golub Bros. Concessions

120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By refusing to recognize and by failing and refusing on and at all times since September 22, 1961, to bargain collectively with United Packinghouse, Food & Al- lied Workers, AFL-CIO, Local 398, as the exclusive representative of the employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaining of Section 8(a) (5) and (1) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Murray Golub, Selwyn Golub, and Albert Golub d/b/a Golub Bros. Concessions and Deborah Lapp, Louis Lapp, Sanford Lapp. Cases Nos. 2-CA-8534, 2-CA-8541, and 2-CA-8542. De- cember 13, 1962 DECISION AND ORDER On August 24, 1962, Trial Examiner David London issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report and the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications: We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by discharging Deborah Lapp, a super- visor, because of her husband Louis Lapp's union activities, and that Louis Lapp was denied employment in violation of Section 8(a) (3) 1 The Respondent has requested oral argument. This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 140 NLRB No. 16. GOLT B BROS. CONCESSIONS 121 and (1). In so holding, we rely not only upon the facts set forth in the Intermediate Report but also upon the following : The record shows that on March 18 and 19, Deborah Lapp had conversations with the Respondent by telephone and in person. During these conversa- tions the Respondent told here that ". . . none of the chargemen will be touched except anyone that has anything to do with Louis Lapp. And anyone in the Lapp family cannot work for us any- more . ..." The record also shows that on March 15 or 16 charge- man William Lamm was told by Albert Golub that because of his association with the union, "Mr. Louis Lapp is going to be notified that he is no longer with us and anyone associated with him would also be let go." Contrary to the Trial Examiner, we believe that the above state- ments made to Deborah Lapp and Lamm establish that Sanford Lapp, too, was refused reemployment in violation of Section 8(a) (3) and (1). As Sanford was "a member of the Lapp family" it is clear that he lost his employment because of Louis Lapp's membership in and activities in behalf of the Union. While, as the Trial Examiner found, Sanford had not by March 19 personally applied to Respondent for employment, it is obvious, in the light of the above statements, that any application by him would have been futile. Considering Deborah's practice of employing Sanford, it is apparent that by un- lawfully terminating the employment of Deborah and Louis as of the date the new production opened at the Shubert Theater, Re- spondent at the same time also discriminated against Sanford. Ac- cordingly, we shall order Sanford Lapp to be reinstated with backpay and interest from the date he would have been reemployed, absent the discrimination against him. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Murray Golub, Selwyn Golub, and Albert Golub d/b/a Golub Bros. Concessions, their officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Interfering with, restraining, or coercing its rank-and-file em- ployees in the exercise of their rights guaranteed in Section 7 of the Act by discharging any supervisor because the spouse, or any other relative of such supervisor employed by them, is a union supporter or adherent, or is engaged in any activities in its behalf, or by engaging in any like or related conduct. (b) Discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment, be- cause of their or any relative's membership in, or activities in behalf of, 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any labor organization, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will ef- fectuate the policies of the Act : (a) Offer to Deborah Lapp, Louis Lapp, and Sanford Lapp im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their discharge all in the manner set forth in the section of the Intermediate Report entitled "The Remedy," 2 as modified by this Decision and Order. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of lost earnings due under the terms of this Order. (c) Post at its office and at the Shubert Theater, New York, New York, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of Respond- ent, be posted by it immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. 2The amount of backpay due shall include an allowance for interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our nonsupervi- sory employees in the exercise of rights guaranteed by the Act, by discharging any supervisor because the spouse, or other relative GOLUB BROS. CONCESSIONS 123 employed by us as a nonsupervisor, is engaged in union activities, or by engaging in any like or related conduct. WE WILL NOT discourage membership in, or activities on behalf of, Home Office Employees Union, Local 11-63, International Al- liance of Theatrical Stage Employees and Motion Picture Ma- chine Operators of the United States and Canada, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities. WE WILL offer to Deborah Lapp, Louis Lapp, and Sanford Lapp immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earn- ings they may have suffered as a result of our discrimination against them. MURRAY GOLUB, SELWYN GOLL'B, AND ALBERT GOLUB D/B/A GOLL'II BROS. CONCESSIONS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York 2, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or com- pliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed on March 28 , 1962, by Deborah Lapp, and by Louis Lapp and Sanford Lapp on April 2, 1962 , the General Counsel of the Board, acting through the Regional Director for the Second Region , consolidated said cases and, on May 21, 1962, issued his consolidated complaint against Murray Golub, Selwyn Golub, and Albert Golub d/b/a Golub Bros . Concessions, hereinafter referred to as Respond- 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents, charging them with violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. In substance, the complaint alleges that on or about March 14, 1962, Respondents discharged their supervisor, Deborah Lapp, and their employee Sanford Lapp, and refused to employ Louis Lapp, all because Lows Lapp was a member and engaged in activities on behalf of Home Office Employees Union, Local H-63, International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, hereinafter referred to as Local H-63. By their answer, Respondents admitted that Louis Lapp had engaged in activities on behalf of Local H-63 and that they knew that he was so engaged, but denied the commission of any unfair labor practice with respect to any of the three Charg- ing Parties herein. The answer further pleaded that because Deborah Lapp was a supervisor within the meaning of the Act, the Board was without jurisdiction to grant any relief pertaining to her loss of employment which, though admitted, was alleged by them to have been brought about because Respondents were no longer satisfied with her services. Pursuant to due notice, a hearing was held before Trial Examiner David London at New York, New York, between June 25 and 27, 1962. The General Counsel and Respondents were represented by counsel at that hearing and were afforded full opportunity to be heard, to introduce relevant and competent evidence, to present oral argument, and to file briefs. Since the close of the hearing, briefs have been received from the General Counsel and Respondents and have been duly considered. Upon consideration of the entire record, the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS At all times material herein, Respondents were, and are, a copartnership composed of Murray Golub, Selwyn Golub, and Albert Golub, doing business under the trade name and style of Golub Bros. Concessions. At all times relevant herein, Respond- ents have maintained their principal office and place of business at 252 West 46th Street in the city of New York, New York, and various other places of business in the States of New York, Pennsylvania, and Massachusetts, where they are, and have been at all times material herein, continuously engaged in providing check- room, candy, refreshment, and related services in theaters and other places of enter- tainment. During the year 1961, which period is representative of their annual operations generally, Respondents in the course and conduct of their operations, derived gross revenues from sales in excess of $500,000. During the same period, Respondents, in the course and conduct of their business, purchased and caused to be transported and delivered to their New York, Pennsylvania, and Massachusetts places of business, orange drinks, candies, chewing gum, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to their places of business in interstate commerce directly from States of the United States other than the State in which they are located. Respondents are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Home Office Employees Union, Local H-63, International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CTO, is, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As indicated above, Respondents are engaged as concessionaires in approximately 20 so-called "legitimate" theaters in New York City under lease or license from the theater owners. The acquired concession consists of the right to sell soft drinks, candies, cigarettes and, for a fee, to check the coats of patrons who attend the theatrical presentations at these theaters. To operate the concession at each theater, Respondents engage the services of a chargem^an, or chargewoman, who is made responsible for the efficient and successful operation of the concession at that theater. The chargeman or woman engages such additional employees, called helpers, as he or she deems necessary. As compensation for his or her services, the chargeman or woman retains all of the checking fee for each garment checked except 10 cents which is paid to Respond- GOLUB BROS . CONCESSIONS 125 ents. For refreshments, candies, and cigarettes sold in the theater, he or she retains a specified commission and accounts for the balance to Respondents. Out of the moneys retained, the chargeman or woman pays the wages of the helpers employed at that theater. When Respondents acquired the concession at the Shubert Theater in New York City in January 1960, Deborah Lapp, who had during the previous 6 years been the chargewoman at the theater for the preceding concessionaire, was continued in that capacity by Respondents. She in turn, continued the employment of her hus- band, Louis Lapp, and her son, Sanford Lapp, as helpers. At the time Respondents took over the concession at the Shubert, they were parties to an agreement with Bookmen & Chargemen Salesmen's Union, Local 1115-D, R.C.I.A., AFL-CIO, hereinafter referred to as Local 1115-D. By that agreement, Respondents recognized and bargained with that local as the collective- bargaining agent for all of their "supervisory help" in any concession then, or there- after to be, operated by Respondents in the New York area during the life of that agreement. Deborah Lapp and Louis Lapp were members of Local 1115-D. The parties stipulated, however, "that on June 30, 1961, Local 1115-D . . . lost its charter and affiliation with the International, and notice was sent to all charge people that the Union was no longer functioning." Helpers and other employees of Respond- ents were represented by Amusement Clerks and Concessionaires' Employees Union, Local 1115-C, R C.I.A., AFL-CIO, hereinafter called Local 1115-C. On September 1, 1961, Local H-63 filed a petition with the Board, Case No. 2-RC-1 1565 (not published in NLRB volumes), seeking to be certified as collective- bargaining representative for chargemen and chargewomen as well as Respondents' other employees in the New York area. Local 1115-C intervened in that proceed- ing, and, as did Respondents, sought, inter alia, to exclude chargemen and charge- women from the unit on the ground that they were supervisors within the meaning of the Act. Protracted hearings extending over a period of 9 days were held in that representa- tion proceeding between September 26 and November 27, 1961, and in which Local H-63 sought to include chargemen and women within the unit. Louis Lapp, the only nonsupervisory employee who did so, testified in that proceeding on November 6, 1961, as a witness on behalf of Local H-63 and his testimony is spread over 144 pages of the transcript of testimony in that proceeding. On January 10, 1962, the Board's Regional Director for the Second Region issued his Decision and Direction of Election in the above-entitled proceeding sustaining the position of Respondents that "chargemen and women who generally work with a helper or helpers are . . . supervisors within the meaning of the Act." The estab- lished unit was, therefore, limited to helpers and other employees, and supervisors were excluded therefrom. At an election conducted among Respondents' employees in the appropriate unit on February 9, 1962, 28 votes were cast for Local 1115-C and 23 for Local H-63. On February 16, 1962, Local H-63, filed timely objections to that election. On March 8, 1962, the Board's Regional Director overruled those objections and certified Local 1115-C as the duly designated collective-bargaining representative of the employees in the unit briefly described immediately above.' Though Deborah Lapp was employed by Respondents as a chargewoman at the Shubert since January 1960, that employment was not continuous. Whenever the current production closed at that theater, she was required to surrender the keys to the checkroom or fixtures containing Respondents' candies, drinks, etc. When the following production opened, the keys were again delivered to her. From the outset of their operations, Respondents took the position that once a production closed and there was an intervening period in which the theater was dark, their relationship with the chargemen or women was terminated and that there was no obligation to rehire them when the next production opened. This position was challenged and denied by Local 1115-D, the Union then representing the charge- men and women. On or about November 18, 1961, after such an intervening dark theater from October 17, 1961, and the opening of "The Gay Life" at the Shubert, Mrs. Lapp went to the office of Respondents to get the keys above described. On that occasion, Selwyn Golub, hereafter referred to as Selwyn, told her she "could not get the keys unless [shel promised to keep Louis Lapp out of the theater" and, if she failed to do so, she would be discharged. She was further told that Re- 'The facts pertaining to the representation proceeding to which reference is made above and below, have, at the request of the parties, been officially noted by me from the Board's official files and transcript of testimony in Case No . 2-RC-11565. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents were imposing this condition because her husband was causing Respondents `a lot of trouble with the Unions, . . [causing them] a lot of expenses, all be- cause [her husband] has brought them into the picture with this other union." She agreed to comply with the condition imposed upon her and was thereupon given the keys which she requested. The findings in the preceding paragraph are based on the testimony of Deborah Lapp which I credit. The conversations detailed therein took place in the pres- ence of all three Respondents and Eli Grossman, their general manager. Albert and Selwyn Golub and Grossman denied that any such conversation took place. Murray Golub did not testify. My credibility resolutions on this, and all other testimonial conflicts herein, are based on my observation of the demeanor of the witnesses involved as they testified, and on consideration of the entire record herein. Mrs. Lapp, while a woman of high emotional nature, impressed me most favora- bly as being trustworthy with respect to her testimony. Respondents, both by their answer and their testimony, admitted that they had knowledge of Louis Lapp's activity in behalf of Local H-63, as indeed they must have had, at least since he testified in behalf of that local in the representation proceeding about a week earlier, on November 6, 1961.2 Nor is it unlikely, in view of the fact that Respondents were then on friendly relationship with Local 1115-C, that they looked with dis- favor upon being drawn into a protracted and expensive representation proceed- ing 3 brought by Local H-63 and in which Lapp took an active part. "The Gay Life" closed in February 1962, and Mrs. Lapp went to Florida where she remained until March 17. On or about March 14, she instructed her son, Sanford, to call Respondents for the keys to the Shubert concession stand so as to prepare for the production which was to open at that theater a few days later. Sanford testified that on March 14 he called Albert Golub, hereinafter referred to as Albert, but was told that Respondents were "not giving the keys to [his] mother because of the union activities" of his father. Mrs. Lapp testified she called Albert upon her return to New York and was told she was not getting the keys because her husband had caused him "enough trouble." When she reminded him that she had "lived up to [her] bargain" and had not allowed him into the theater, he admitted that she was right but added: "He still went around to all the theaters and he still told the men that he wants them to vote for H-63, and he went around seeing what time the election notice was posted." 4 On the following day, she went to the office of Respondents where her conversa- tion with Albert of the previous day was "rehashed" in the presence of all three Respondents. She asked if they considered her a loyal employee and they all agreed she was and added that "the only reason that [she] was discharged was because of Lou Lapp's union activity." Neither Deborah Lapp, Louis Lapp, nor Sanford Lapp, ever regained employ- ment with Respondents. Deborah Lapp's position as chargewoman at the Shubert was taken over on or about March 20, 1962, by Anita Feingold, the wife of Ben Feingold, Respondents' general manager. On or about March 24, 1962, after a new play had already opened at that theater, Sanford Lapp applied to Mrs. Fein- gold for employment but was told that she already had her full complement of employees. William Lamm, employed by Respondents as a chargeman at the Booth Theater in New York at the time of the hearing herein, testified, and I credit his testimony, that at a late evening meeting on or about March 16, 1962, in the office of Re- spondents and attended by Albert, Selwyn, and three chargemen, Albert told them "that things that had happened in the past with regards to the Union was water under the bridge"; 5 that they had already notified Deborah Lapp, and would notify Louis Lapp, that their employment was being terminated "because of Louis Lapp's 2 Mrs. Lapp testified he became active in Local H-63 in the summer of 1961 8 Respondents' attorneys were in attendance during each of the 9 days during which hearings were held in that proceeding. `The Supplemental Decision on Objections and Certification of Representation in Case No. 2-RC-11565 establishes that one of the objections filed by Local H-63 read as follows: "That the employer posted the National Labor Relations Board notice of elec- tion less than twenty four hours before the date of the election, thereby causing 14 em- ployees named on the eligibility list to fail to appear at the polls." 5 Selwyn testified that shortly before or during this meeting, he was asked by several chargemen whether it was true that there was "going to be firing of chargemen [and] that Deborah Lapp was not going back to the Shubert Theater " He further testified that his "answer was that Deborah Lapp was not going back to the Shubert Theatre," but that both he and Albert assured the other chargemen "that their jobs were secure " GOLUB BROS. CONCESSIONS 127 association with the Union," but that the men in attendance at the meeting did not "have to worry about a thing." Concluding Findings As indicated earlier, the complaint alleges that Deborah Lapp and Sanford Lapp were discharged on or about March 14, 1962, and thereafter refused employment, and that Louis Lapp has since the above date been denied employment, all be- cause Louis Lapp was a member and engaged in activities on behalf of Local H-63 and engaged in other concerted activity for the purpose of mutual aid and protection. Respondents, by their answer, pleaded that because Deborah Lapp was a supervisor within the meaning of the Act, "the Board does not have jurisdiction over the alleged acts" pertaining to her discharge, but that in any event, her failure to regain employment in March 1962 was because Respondents "had not been satisfied with her services in the past." There is no merit to the first defense aforementioned invoking blanket im- munity under the Act for the discharge of supervisory employees. It is now well established that while an employer may demand the complete loyalty of his su- pervisors and may discharge those who participate in union activity, the Act does not permit him to use this loyalty as a device for infringing upon the rights of rank-and-file employees. N.L.R.B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C.A. 5); Jackson Tile Manufacturing Company, 122 NLRB 764, 767, enfd. 272 F. 2d 181 (C.A. 5). A restraint on the exercise of employee rights is readily ap- parent where, as it is here claimed, the supervisor is discharged because she is the wife of an employee who has engaged in union or other protected activities. Brookside Industries, Inc., 135 NLRB 16. Under these circumstances, the rank- and-file employees of Respondents can "reasonably . fear that the employer would take similar action against them if they continued to support the Union." Jackson Tile Manufacturing Co., supra. Turning now to the reasons assigned by Respondents for Mrs. Lapp's discharge,6 Albert testified that "from the very beginning of her employment . . . in Janu- ary 1960, [he] found [her] to be quite uncooperative," arrogant, surly, and that during the entire period of her employment he considered her to be a "rotten" em- ployee; that during the first 6 months of 1960 there were "annoying" incidents and discussions with her concerning her alleged conduct of checking two coats on one hanger and the checking of ladies' coats with the result that Respondents were de- prived of their portion of the fee for the checking of coats, a practice which he characterized as being "short-changed" and "dishonest"; 'r that she maintained a "slovenly" checkroom; that she wore a dirty smock while on duty; and that she "hawked" her wares too loudly so as to become offensive. However, Albert, in a sworn statement given to a Board agent 2'/i months earlier and purporting to give the reasons for Mrs. Lapp's discharge, no mention is made of the coat-checking incidents which, in his testimony, he characterized as dishonest. Indeed, in that statement he swore that he "never found her to have been ... dis- honest." 8 Nor was there suggestion or mention in that statement that she main- tained a slovenly checkroom or wore a dirty smock. And, while his sworn statement to the Board agent gives as one of the reasons for her discharge that she was not "capable of directing her subordinates so as to gain the maximum amount of sales . thus costing [Respondents] money by her conduct and improper direction of subordinates," not one syllable of testimony was offered at the hearing herein that this alleged shortcoming played any part in the decision to discharge her. Albert also complained that Mrs. Lapp continuously "hawked" her wares in a raucous and offensive manner. However, Arthur Shafman, one of her helpers who was later made chargeman at another theater and who, of all the witnesses, impressed me as the one most worthy of belief, testified that she was a "good dresser, quite neat," and that her voice in selling Respondents' wares was neither unusual nor raucous. 9 Respondents testified, and their brief asserts, that at the time Mrs Lapp was dis- charged "they did not assign any reason for the discharge . since, [being] a super- visor, they did not have to furnish any reason for their decision " 7 The disagreement with respect to the checking of ladies' coats, however, was sub- sequently settled by the payment of $75, not by her to them, but by Respondents to Mrs Lapp. s Eli Grossman, Respondents' general manager, testified that though, on checking the number of checked hangers against the number of coats reported by Mrs. Lapp, he found slight discrepancies, they were of such a minimal nature that it did not indicate to him "she was doing a wrong thing" or anything dishonest. As a consequence, he never re- ported these discrepancies to his employers. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selwyn testified that before giving his sworn statement to a Board attorney on April 3, 1962, setting forth "all the reasons for which [Mrs. Lapp] was discharged . . . all of these matters were discussed with [his] brothers." Significantly, how- ever, there is no mention in that affidavit, or indeed in his testimony before me, of any alleged "short-changing" or "dishonesty" in connection with the checking of coats and of which Albert complained so vehemently. When Selwyn testified herein and was asked by his own counsel on direct ex- amination to "indicate to what extent [he] found dissatisfaction with Deborah Lapp" he testified (1) that he considered it "particularly obnoxious" to find that on Mrs. Lapp's reports "the names not written down as a receipt for payroll paid by [her] to the various helpers," and that in two instances in 1961 the signatures "seemed to be identical," which led him to the opinion "there was forgery going on"; (2) in October 1961, he was informed that Mrs. Lapp, after turning in her keys at the close of a production, had retained possession of a duplicate set which she retained until, by letter, he asked that they be returned; (3) although, because his function in the partnership was to take care of the office, he visited the Shubert only about once a month, he found during the "entire two years of her employment" that the check- room "was kept in rather a filthy fashion, . empty cartons strewn about, old newspapers, and magazines, ,and an old pair of shoes on the shelves " Significantly, however, incident (1) immediately above, concerned with Mrs. Lapp's weekly reports and which, in Selwyn's opinion, were acts of "forgery," was not mentioned by Albert in his sworn statement to the Board in which he listed the "reasons that [he] and [his brothers] decided not to give Mrs. Lapp the concession keys" in March 1962. Nor is any claim made that the amounts noted on her report as having been paid to the helpers was incorrect, or that these amounts were not in fact paid to the helpers. With respect to the alleged filthy condition of the check- room, or Mrs. Lapp's alleged raucous voice in selling her wares, it is significant that no credible, probative evidence was offered that any representative of the theater, who would be most concerned with such a state of affairs if it in fact existed, ever complained about the appearance of the checkroom, or the dress or voice of Mrs. Lapp. By reason of all the foregoing I find it highly incredible that Respondents would continue Mrs. Lapp's employment for over 2 years after allegedly finding her from the very beginning of that period to be the unsatisfactory supervisor which they pictured her to be at the hearing before me. The inconsistent reasons assigned by Respondents in their affidavits and their testimony for that delay-that they were afraid to get into "a hassle" with the Union if she were sooner discharged-appar- ently did not deter them from discharging other supervisors. Nor is it without significance in appraising their testimony that, according to Re- spondents, they gave Mrs. Lapp no reason for her discharge when they declined to, give her the keys in March 1962. Employers do not normally so conduct themselves with supervisors or employees of long standing. And if she were, in fact, guilty of the derelictions in the performance of her duty as portrayed by Respondents, neither Albert nor Selwyn impressed me as men who would hesitate to expressly tell her she was being discharged for those derelictions.9 I find that the reasons assigned in this proceeding by Respondents are not the true reasons for which she was discharged but are pretexts to cover their determination to get rid of Louis Lapp. I credit Mrs. Lapp's testimony that she was told on or about March 18, 1962 by Albert that she was discharged because of her husband's union activity and find that she was dis- charged for that reason. By that conduct, Respondents restrained and coerced their rank-and-file employees in the exercise of rights guaranteed to them in Section 7 of the Act, and thereby violated Section 8 (a) (1) thereof. Louis Lapp The record is undisputed that after Respondents took over the concession at the Shubert in January 1960, Louis and Sanford Lapp were employed there by Mrs. Lapp as helpers Louis Lapp was, however, seriously ill and incapacitated during most of the period from April 15, 1961, to about December 1961, including two confinements in a hospital. On the date last mentioned, he went to Florida and returned to New York about January 15, 1962. Early in the following February, he met Albert, told him he was feeling better, and that he was going back to work. Albert reminded him of the agreement with Mrs. Lapp that he was not to be em- ployed and told him that if he did, Respondents would "be forced to take the keys from [his] wife in accordance with [their] agreement with her." 9 Murray Golub, who also was present when Mrs. Lapp was discharged, did not appear as a witness herein. GOLUB BROS. CONCESSIONS 129 The record compels the conclusion that, absent the agreement not to reemploy Louis Lapp, the latter would have been hired by his wife when he was physically able to do so. By discharging her in March 1962, Respondents also permanently termi- nated the services of her husband at the Shubert Theater. Having found that she was discharged because of Louis Lapp's union activities, it must likewise be, and is, found that Louis Lapp was deprived of further employment at the Shubert Theater for the same reason. In arriving at my ultimate conclusion herein with respect to Deborah and Louis Lapp, I have not been unmindful of the absence of any evidence that Respondents were opposed to their employees' membership in any union of their choice, or that they were ever guilty of any other unfair labor practice. "Although such circum- stances are ordinarily regarded by the Board as elements pointing to a lack of a discriminatory motive for a discharge, it does not necessarily follow that they preclude a finding of discrimination where, as here, the only reasonable explanation for the discharge is that the hostility of [Respondents to Louis Lapp] . . . for his past union activities, coupled with" Selwyn's warning of November 1961 to Mrs. Lapp not to employ her husband, caused Respondents to get rid of her and thereby also to rid themselves of her husband. Calera Mining Company, 97 NLRB 950, 956. Nor does the fact that Respondents retained other members of Local H-63 exculpate them "from the charge of discrimination as to those discharged." N.L.R.B. v. W. C. Nabors d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5). Sanford Lapp Although the General Counsel has presented a persuasive argument that all three members of the Lapp family were the targets of Respondents' unlawful conduct, he has failed to establish his case with respect to Sanford Lapp by the necessary pre- ponderance of the evidence. Sanford knew several days before the opening of the new production in March that his mother would not be the employment agent or charge- woman at the Shubert. And, while he may have speculated that it would be an idle gesture, under the circumstances, for him to apply for employment to the new chargeman or woman, it is not for me to speculate or assume that he would not have been employed if he had made timely application to Mrs. Feingold before his job had already been filled. It will, therefore, be recommended that the allegations of the complaint charging that he was discriminatorily discharged or denied further employment on or about March 14, 1962, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operations of Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondents violated Section 8(a) (1) of the Act by terminating the employment of Deborah Lapp, a supervisor, I further find that Deborah Lapp's reinstatement with backpay is necessary in order to restore to Respondents' non- supervisory employees their full freedom to exercise the rights guaranteed them in Section 7 of the Act, and thereby to effectuate the policies of the Act. I therefore recommend that Respondents offer Deborah Lapp immediate and full reinstatement to her former position even though this may necessitate displacement of the present in- cumbent or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and without conditioning her employment upon her promise not to engage the services of Louis Lapp or any other member of her family, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she normally would have earned from the date of her termination on or about March 14, 1962, to the date of said offer of reinstatement, less her net earnings during such period. Having found that by terminating Deborah Lapp's employment Respondents also terminated the employment of Louis Lapp, it is recommended that Respondents offer him immediate and full reinstatement to his former or substantially equivalent position, 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned, his health permitting, by payment to him of a sum of money equal to that which he would have earned from the date of the discrimination to the date of reinstatement, less his net earnings during such period. The amounts due to both Deborah and Louis Lapp shall be computed in accordance with the formula prescribed in F. W. Wool- worth Company , 90 NLRB 289 , 291, 294. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of the Act. 2. By terminating the employment of Deborah Lapp, a supervisor, on or about March 14, 1962, Respondents have interfered with, restrained, and coerced their nonsupervisory employees in the exercise of rights guaranteed in Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By causing to terminate , and by terminating, the employment of Louis Lapp, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. Respondents have not discriminated against Sanford Lapp as alleged in the complaint. [Recommendations omitted from publication.] Plochman and Harrison-Cherry Lane Foods, Inc. and Grocery and Food Products, Food Processors, Food Canners, Ware- house Employees and Related Office Employees Local No. 738, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Local 738, IBT), Petitioner. Case No. 13-RC-7989. December 13, 1962 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on September 6, 1961, under the direction and the supervision of the Regional Director for the Thirteenth Region among the employees in the unit described below. After the election the parties were furnished with a tally of ballots which showed that, of approximately 47 eligible voters, 44 votes were cast, of which 20 were for, and 23 were against, the Petitioner, 1 ballot was challenged, and 1 ballot was void. Thereafter, .the Petitioner filed timely objections to conduct affecting the results and the conduct of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and thereafter issued a report and supplemental report on objections, in which he recommended that the objections be overruled and that the Board issue a certification of results of the election. Thereafter, the Petitioner filed timely excep- tions to the recommendations of the Regional Director. 140 NLRB No. 11.