Strand Art Theatre, Inc.

STRAND ART THEATRE, INC. 667 Strand Art Theatre, Inc. and American Guild of Variety Artists, AFL-CIO , Kansas City Branch. Case 17-CA-3773 July 28, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On December 1., 1969, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. Thereafter Respondent filed exceptions to the Trial Examiner's Decision and a brief in support of the exceptions . The General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision , the exceptions, the briefs, and the entire record in this proceeding, and finds merit in Respondent 's exceptions. Ac- cordingly , the Board has decided to dismiss the complaint. The Trial Examiner found that Mr. and Mrs. Tackett, the alleged discriminatees, were em- ployees of Respondent and that Respondent discharged them in violation of Section 8(a)(3) and (1) of the Act for pressing a grievance through the Union . Respondent contends that the Tacketts were independent contractors and not employees and that, in any event, the discharges were for law- ful reasons . We do not reach a determination as to the cause of discharge because we find merit in Respondent 's contention that Mr . and Tackett were not employees of Respondent within the meaning of Section 2(3) of the Act.' Mr. and Mrs . Tackett are entertainers . They are billed as Buddy O'Day, a comic, and Tootsie Roll, an exotic dancer. They had been performing at Respondent 's Strand Art Theatre in Kansas City, Missouri, at the time of their discharge . They ob- tained the engagement through an agent. The Tacketts signed separate contracts entitled, "AGVA Standard Form of Artists Engagement Contract." Each contract designated the parties as "artist" and "operator." The Tacketts' agent's signature also appeared on the contract , and the Union's representative signified his approval of it. The separate contracts provided that the Opera- tor "engages the Artist and the Artist hereby ac- cepts said engagement , to present his act under the direction, supervision and control of the Operator . ... The term was for 4 weeks with 30 weekly shows at $175 a week . The contract provided that the artist was to render his act exclusively for the operator unless the operator consented to other en- gagements . The operator had the option to extend the agreement. He could also terminate it on 2 weeks' notice. Under the contract the operator agreed to furnish musical accompaniment. The contract required the artist to be an AGVA member and authorized deductions of membership sums. The operator agreed to contribute to the Union's wel- fare trust funds. Provisions added to the standard contract by the parties provided for rehearsal at noon on open- ing day, 2 weeks' vacation without pay for the artists, and 5-percent commission to Consoli- dated Orchestras of America, the agency that obtained the engagement. The Tacketts first performed under the 4-week contract. Respondent exercised its option to extend the agreement for several 4-week periods and three times for 26-week periods. Respondent exercised its last option in May 1968. Thus the Tacketts had performed at Respondent's theatre from December 1966 to August 1968, when Respondent discharged them . In that period they were absent 4 weeks for an engagement elsewhere with a different theatre owner and another 2 weeks for a vacation. Mr. Tackett created the acts for himself and his wife. He had many acts and changed them each week. He produced scenes to fit the size and cast of the theatre and requested props, cues, and lights from the operator for the scenes . The Tacketts sup- plied their own costumes, makeup , and some props. The acts were part of the entertainment , which in- cluded others, in a stage show and motion pictures. The Tacketts performed several times a day, and Mr. Tackett sometimes acted as the master of ceremonies. Mr. Tackett testified that how the act was to be performed was up to him. There is no evidence that he or his wife ever received directions on how to perform the act from Respondent's officials. 1 "(3) The term employee shall include any employee but shall not include any individual having the status of an independent contractor 184 NLRB No. 72 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bertram Ross, who was in charge of the theatre in the absence of his manager father , gave instructions as to the length of a number , but not its content, and as to suitability of costumes . He also deter- mined the number of scenes and whether Mr. Tackett would act as master of ceremonies, but this seldom varied. Respondent did not withhold income taxes from the Tackett's salaries or pay social security or unemployment compensation taxes on their behalf. The Trial Examiner concluded that the Tackett's were Respondent's "employees." He relied on these factors : the Tacketts ' tenure, the exclusive nature of the contract , the provision giving the operator control of the entertainer 's act, the opera- tor's exercise of such control , and the fact that Mr. Tackett made some of his props. Respondent contends that the Tacketts were in- dependent contractors in their relationship with Respondent . We agree. Of all the factors enumerated by the Trial Ex- aminer, the most important is the right to control the manner and means of performing the work. In our opinion, the following factors establish that the Tacketts had the right to control the manner and means of performing their work . Mr. Tackett alone wrote the material for the scenes performed by him, his wife, and supporting cast. He adapted the scenes to stage size and to the personnel in the stage show. The manner of entertaining the au- dience was the sole responsibility of the Tacketts. The only direction they ever received related to length and number of scenes and to the scantiness of a costume as measured by local regulations. Apart from supplying the theatre stage , music, and lights, Respondent played no part in the Tacketts' performance. A similar question , whether entertainers are em- ployees or independent contractors, was present in Radio City Music Hall Corp. v. United States, 135 F.2d 715 (C.A. 2), where the court held that enter- tainers who contracted for a limited period to present their own "vaudeville " acts were indepen- dent contractors rather than employees . In that case, as here, the theatre presented a motion pic- ture and a stage show . The theatre had a permanent group of entertainers in a supporting role-orches- tra, glee club, and ballet corp-who were concede- ly employees. A second, disputed, group were "vaudeville acts," including performing animals, acrobats, comedians , singers, dancers, jugglers, ventriloquists, and others . They were engaged on a weekly basis and their pay varied from $50 to $900 per week. The facts as found by the court were: Generally [the producer] negotiated the con- tract with the actor through the actor 's agent; sometimes the actors dealt with him them- selves ... if [the producer] had never seen the "act" he ordinarily required an "audition." To fit the "act" into the program he would some- times cut it down and have the actor piece together what remained . Sometimes it was necessary for the actor to put something in the place of what was cut out, but [the producer] never attempted to say what it should be. He did indeed at times depart from this in the case of music, the actor being compelled to rehearse the new pieces for an hour or two ... or when on occasion he put a song of his own choosing into a singer 's repertory . At times he would also reduce or amplify the volume of a singer's voice . The plaintiff [theatre] furnished the stage , scenery, lighting, orchestral music and attendants ; sometimes it supplied a costume for one of the "acts." The producer directed the staging according to his require- ments, fixed the times for the rehearsals, the number of performances in a day, required promptness in attendance , and prescribed the order of the songs and dances . He determined the time at which the "act" should appear on the stage, and sometimes insisted on leaving out parts of the dialogue or other features when he thought them unsuitable for the plain- tiff's audience. His effort was to weld the dif- ferent "acts" together into a harmonious pro- gram, but always giving each actor his opportu- nity to perform without interference. Some- time he made an "act" part of a playlet, and then the actor might be required to mingle with the chorus and put on a costume con- gruent with the scene and with those of the other actors. [ 135 F. 2d at 717.] Judge Learned Hand , writing the opinion for the court, observed , "The test [as to the distinction between an employee and an independent contrac- tor] lies in the degree to which the principal may intervene to control the details of the agent's per- formance ; and that in the end =- all that can be said " He concluded: In the case at bar the plaintiff did intervene to some degree; but so does a general building contractor intervene in the work of his subcon- tractors . He decides how the different parts of the work must be timed, and how they shall be fitted together; if he finds it desirable to cut out this or that from the specifications, he does so. Some such supervision is inherent in any joint undertaking , and does not make the con- tributing contractors employees. By far the greater part of [the producer's] intervention in the "acts" was no more than this. It is true, as STRAND ART THEATRE, INC. we have shown, that to a very limited extent he went further, but these interventions were trivi- al in amount and in character ; certainly not enough to color the whole relation . [ 135 F.2d at 718.] The vaudeville artists in the Radio City case were much less on their own than the actors in the sub- ject case in that the producer in Radio City some- times cut out parts of an act, added songs of his own choosing , supplied a costume as needed, and directed the staging so as "to weld the different `acts' together into a harmonious program . . . ." The court held, however , that these interventions did not make the actors "employees " because the actors performed without the producer 's inter- ference.2 The Board reached a like conclusion in American Guild of Musical Artists, AFL-CIO, 157 NLRB 735, in which it held that the two principal dancers who contracted to dance in a ballet produced jointly by a ballet school and a symphony orchestra were in- dependent contractors. The ballet dancers were less independent than the actors in the subject case in that they performed their roles as part of a large unified ballet production. Like the Tacketts, they supplied their own costumes and makeup. The symphony, like Respondent here, supplied only the hall and the music . In both cases no deductions were made for Federal income and social security taxes . These factors, but particularly the fact that the symphony and ballet school "retained and exer- cised little , if any, control or supervision over the manner in which [the two dancers ] danced their roles in rehearsals and in the performance," were relied on by the Board in finding that the artists were independent contractors.3 In view of the strong evidence herein establishing that the Tacketts controlled the manner and means of performing their work we conclude that the Tacketts were independent contractors. We shall therefore dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER MCCULLOCH, dissenting: For the reasons stated in the Trial Examiner's Decision , I would adopt the findings and conclu- sions therein , that Mr . and Mrs. Tackett were em- ployees of Respondent and that Respondent vio- lated Section 8(a)(3) and ( 1) by discharging them for pressing a grievance . I would therefore order 669 the discriminatees reinstated and make them whole for loss of earnings by ordering backpay for the contract term. 2Cf Ringling Bros -Barnum & Bailey Combined Shows, Inc v Higgins, 189 F 2d 865 (C A 2), and Club Hubba Hubba v United States, 239 F Supp 324 (D Hawaii), in which courts found an employment relation- ship because of management's tight control over the performers ' The form contract language in the subject case, giving the operator control over the artist's act, did not reflect the day-to-day relationship of the parties As shown above, Respondent did not, and as a practical matter could not, exercise control over the manner of the Tacketts' performance In these circumstances we do not regard the contract recital as controlling our determination of the parties' relationship TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: With Respon- dent and the General Counsel represented by coun- sel, this proceeding was heard in Kansas City, Mis- souri, on July 22 and 23, 1969, on complaint of the General Counsel of the National Labor Relations Board and answer of Strand Art Theatre, Inc., herein called Respondent. The issues litigated were whether the Board has jurisdiction herein, whether William F. Tackett and his wife, Jerrolyn Tackett, were employees or independent contractors, and whether Respondent's discharge of Mr. and Mrs. Tackett on August 1, 1968, was lawful or in viola- tion of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. After the hearing the General Counsel and Respondent filed helpful briefs, which have been carefully considered. Thereafter Respondent filed a request for leave to file a reply brief. This request is hereby denied because the Board's Rules do not provide for reply briefs at this stage in a proceeding and because there appears to be no real need to depart from customary practice in this instance. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE JURISDICTION QUESTION Respondent challenges the Board's jurisdiction over this proceeding. The General Counsel con- tends that the combined business operations of several corporations doing a gross annual business of over $500,000 satisfies the Board's standard for retail enterprises by virtue of the fact that the several corporations constitute a single integrated enterprise. The General Counsel contends it is a single integrated enterprise because of common owners, directors, officers, and management of the several corporations. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Corporation and Volume of Business 1. The business of the corporation, Strand Art Theatre , Inc., includes the operation of the Strand Art Theatre in Kansas City, Missouri, herein called the Strand , the apartment rentals of the Strand Art Theatre building in Kansas City, the operation of the Vogue Art Theatre in Wichita , Kansas, herein called the Vogue , and certain business rental por- tions of the Stockyards Hotel in Kansas City. Dur- ing calendar year 1968 this corporation did a gross volume of business totalling $407,974. During the first half of calendar year 1969 its gross was $22,918. This corporation's president and sole owner is Dorothy Ross and its directors are Dorothy Ross and Charles Orr, an attorney. Dorothy Ross is the wife of Edward Ross. On the witness stand Edward Ross identified himself as general manager of the corporation, and later as general manager of the Strand Art Theatre. On Strand Art Theatre stationery his name appears as managing director. 2. Ross Operating Company, a corporation, operates and receives rent from the Stockyards Hotel , the Monroe Hotel , and the Bluebird Motel, all in Kansas City, Missouri . During the calendar year 1968' this corporation 's gross volume of busi- ness totalled $49,387. During the first half of 1969 its gross was $24,287. Dorothy Ross is president and sole owner of this corporation also, and its directors are Dorothy Ross and Charles Orr. 3. Lakeside Drive-In Theatre, Inc., incorporated in or about December 1968, has, since March 5, 1969, operated the Lakeside Drive -In Theatre in Kansas City. This corporation is owned by Edward Ross and Paul Rosenbaum . The incorporators were Edward Ross, Dorothy Ross, and Bertram Ross. The officers are: Edward Ross, president; Paul Rosenbaum , vice president and treasurer ; and Sher- win Epstein (an attorney ), secretary . Its gross volume of business from March 1 to June 30, 1969, amounted to $60,497. 4. Town Underground Theatre of Chicago, Il- linois, is a separate corporation. The gross volume of business of this theatre during calendar year 1968 was $460,234 . Its gross during the first half of 1969 was $326,010. The only testimony concerning the corporation 's ownership was Edward Ross' "be- lief" that it was owned by Robert Hubey (or Hovey), its president, and by "Griffin and Jerry Voss." M. L. Griffin is the accountant for all the corporations involved herein, and is the only Griffin specifically identified in the record. He was hired as accountant for all the corporations by Edward Ross. Upon this evidence and the entire record, and as by his demeanor and his shifting answers Edward Ross impressed me as something less than a completely credible witness , I do not credit his testimony that the three owners of Town Un- derground Theatre are in no way connected with Strand Art Theatre, Inc.; and I find that the Griffin who is part owner of Town is also accountant for the other corporations . Edward Ross, herein called Ross, is general manager of Town Underground Theatre. Also he is apparently the beneficial owner of the building in Chicago which houses this theatre. At first he testified he owns the building. Then he testified he owns it under a trust of which "I am the beneficiary." Ross testified that he thinks he used to receive $2,000 a month rental from his ownership of this building and he now receives $3,000 a month "against a percentage." B. Interlaced Ownership and Management and Conclusions The key to the jurisdictional question is the inter- laced ownership and/or management of the four corporations by the Ross family. Edward Ross, the head of the family, is president of Lakeside Drive- In Theatre, Inc., and one of its incorporators; managing director or general manager, as the record reveals, of Strand Art Theatre, Inc.;' and general manager of, and beneficial owner of the building which houses, Town Underground Theatre. In addition, although he testified he had nothing to do with Ross Operating Company, he hired , some 4 years ago , the present manager of the Bluebird Motel and told her what her duties would be. Thus he holds dominant positions in three of the corporations and hired the manager of one of the components of the fourth. Mrs. Dorothy Ross is president and sole owner of two of the corporations , and signs the paychecks for the employees of those corporations. In addition she was an incorporator of Lakeside Drive-In Theatre, Inc., and she signs the paychecks for the employees of its theatre, the Lakeside Drive-In Theatre. Thus she is closely connected with three of the corporations. ' The stipulation on this point shows in the record as "for calendar year 1967-68 " This is followed by the figure for the first half of 1969 The stipulations lust before this related to Strand Art Theatre, Inc 's business for calendar year 1968 and the first half of 1969 In his brief the General Counsel interpreted "for calendar year 1967-68" as referring to calendar year 1968 It is probable that as the General Counsel was phrasing the stipulation at the hearing he misspoke when he said "1967" and corrected himself by saying -68 - ' It is clear that Edward Ross' authority extends beyond the Strand Art Theatre, and that he is general manager of Strand Art Theatre, Inc The record showed that he sent his son, Rueben Ross, to work at the Vogue Art Theatre in Wichita twice, and the second time he made him manager of the Vogue STRAND ART In addition three of the sons of Mr. and Mrs. Ross are active in the management of the three cor- porations which operate in Kansas City and Wichita, particularly the two older sons, Bertram, age 22, and Joel, age 21. Bertram and Joel are both active in the management of the Strand. Either one is in charge there in the absence of their father. Each of them has the title of manager of the theatre. Also each of them has, one at a time, been manager of the Lakeside Drive-In Theatre since its opening in March 1969. When he was manager of both Strand and Lakeside Bertram received two paychecks, one from each corporation. In addition 6 months ago Bertram promoted to "manager" the present "manager" of the Monroe Hotel and told him that if he had any trouble he should call Bertram and the latter would help him out. Joel goes up to that hotel sometimes several times a week, "looks around to see how everything is and asks how everything is going." The "manager" of the hotel calls Bertram or Joel at the Strand if he has any questions about repairs to the building. Joel customarily takes the paychecks out to the Monroe and the Bluebird. The "manager" of the Monroe Hotel, who also runs the elevator, and the manager of the Bluebird Motel, who is also the room clerk, have nothing to do with setting the wages of the maids and any other employees at those hotelries. The "manager" of the Monroe Hotel testified that he supposes Edward Ross owns the hotel and sets wages, that if he wanted to pay employees more money he would ask Edward Ross "or somebody, I don't know who." The manager of the Bluebird Motel testified that she supposed the Ross family set wage rates. The Strand, the Vogue, and the Town Un- derground theatres show "adult" films, open only to those over 18 years of age. The Lakeside shows "adult" films and also general films. Edward Ross obtains the films for the Strand, the Vogue, and the Lakeside theatres. The manager in Chicago obtains the films for the Town Underground Theatre. Edward Ross testified that as general manager of the Strand he sees that "the theatre makes a profit." He testified that as general manager of the Town Underground Theatre "I see that everything goes quietly. We make money, that is my real duty, to see we make money." When he is in Chicago he "see(s ) that everything is going right, see(s) the receipts are in, see(s ) there are proper help, just general supervision." From his appearance, presence, and bearing, and upon the preponderance of the evidence in the en- THEATRE, INC. 671 tire record, it is clear to me that Edward Ross is a person of strong and powerful character, and that without question he is the "boss" of all four of the corporations and their several enterprises. As his wife is ill and not very active in the business enter- prises, the real managerial authority for all the en- terprises resides in Mr. Ross . Clearly his sons look to him as the boss, and so did William F. Tackett, whose discharge from the Strand Theatre is in issue herein . Tackett credibly testified that he did not know what Edward Ross' official position with the Strand was, but that "all I know is everybody fears him, he is the boss, including me." Looking at Ross in the hearing room, Tackett added, "Mr. Ross, you scare me." Although Ross testified that the manager he hired to run the Town Underground Theatre runs it autonomously with no help from Ross, it is clear on this record that Ross holds the residual power to enforce his will if the manager in Chicago does anything to displease him in the running of that theatre. Conclusions The four corporations have as their business pur- poses the providing of entertainment and the rental of rooms and office space. All four of the theatres run by the three corporations have a common busi- ness purpose-the showing of "adult" movies. All four corporations are under the managerial domination or potential domination of Edward Ross, who is also president of one of them. In addi- tion, as has been seen, other members of the Ross family are either president of the other two cor- porations operating in Missouri and Kansas or ac- tive in the management of them. The four corpora- tions have a common accountant, Griffin, who was hired as accountant for all of them by Edward Ross, and who has control of the books and records of all four corporations. In addition Griffin is co-owner of one of the corporations. In view of the interlaced, intertwined officerships, directorships, manage- mentships, and ownerships of various members of the family and Griffin, under the actual or potential domination of the head of the family, Edward Ross, I find and hold that the four corporations are a sin- gle integrated enterprise for the purpose of the Board's jurisdiction. The combined business operations of the three corporations in existence in 1968 grossed for that calendar year in excess of $800,000, far in excess of the Board's $500,000 standard for retail enter- prises. If Town Underground Theartre were to be excluded, the combined business operations of the other three corporations for the first half of 1969 grossed $307,702. Projected to a yearly basis, this 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would amount to $615,404 for the current year.3 Upon the above facts and considerations I find that the Board has jurisdiction over this proceeding and that it will effectuate the policies and procedures of the Act for the Board to assert its ju- risdiction. II. THE LABOR ORGANIZATION American Guild of Variety Artists, AFL-CIO, Kansas City Branch, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Employees or Independent Contractors? William F. Tackett and his wife, Jerrolyn Tackett, worked for Respondent Strand Art Theatre, Inc., for 4 weeks in December 1966, and from January 1967 until their discharge on July 25, effective August 1, 1968 . The first question is whether they worked as employees or as indepen- dent contractors. Tackett was an entertainer billed as a comedian. Mrs. Tackett, his partner, identified herself as an exotic dancer, a stripper, and said that in the bur- lesque business she is also called a talking woman and a straight woman . They gave individual and joint acts . They are members of the Charging Party herein , the American Guild of Variety Artists (AG- VA), and they worked under written contracts with Dorothy Ross on AGVA's standard form contract. At first they signed for several 4-week periods, and then they signed three times for 26-week periods. When Bertram Ross first asked them to sign for 26 weeks, he said , "We like you , you can stay for- ever." The last 26-week contract was executed about May 31, 1968. Elements in the employment relationship point- ing toward the status of independent contractors were the facts that Respondent did not withhold any income tax, social security tax, or unemploy- ment compensation tax from the Tacketts' paychecks. The Tacketts supplied their own costumes and makeup and created the burlesque scenes they put on. Other aspects of the relationship between Respondent and the Tacketts pointed toward their status as being that of employees . Among these aspects are the following: 1. Their long tenure , and the fact that for three successive half-year periods the Tacketts were not free to work for others than the Rosses . Their con- tracts to perform at the Strand promised that "the Artist shall render his Act in the variety field exclu- sively to the Operator ... unless otherwise pro- vided herein or otherwise consented to by the Operator in writing." 2. Their contracts provided that each of the Tacketts "accepts said engagement to present his act under the direction , supervision , and control of the Operator." 3. Uncontradicted and substantiated testimony proved that in fact the Tacketts worked under the "direction , supervision , and control" of the manag- ing members of the Ross family . The latter deter- mined on what stage the Tacketts would perform, how many performances they would give per day, whether there would be a midnight show, what times their acts would go on, and how long they would last . Bertram Ross would tell Tackett whether he was to serve as master of ceremonies. 4. The Tacketts were , in addition to being a devoted married couple, partners engaged in the profession of entertaining people . As Tackett testified : "My profession is to make people happy . ..." They had no business , no place of business, no employees . They made no profit on the work of anyone working under them . In essence they were engaged in rendering services , and they rendered them when and where Respondent instructed them to do so. 5. The stage of the Strand was too small for the storage of the stage props, which therefore had to be lifted up and onto the stage at change -of-scene times . Because of their weight it was impossible to lift up ordinary furniture and put it in place during the time available. So Tackett, who was handy with tools, made many lightweight props out of beaver board and one-by-ones, including a judge 's bench, counters, a desk, tables, and fireplaces. As these props were especially designed and made for this stage, it is a fair assumption that when he made them Tackett intended them to remain there and become a part of the backstage equipment of the theatre. (Tackett's testimony showed that, by con- trast, he also worked on "something of my own.") The act of making these props with this intent, with no additional pay for his services insofar as the record revealed , appears to me to have been more ' The Board 's jurisdiction criteria may be satisfied by projecting or esti- mating commerce data for an appropriate annual period Building and Con- struction Trades Council of San Bernardino, 139 NLRB 1370, 1372 The Board frequently looks to the 12-month period immediately preceding the hearing Whippany Motor Co, Inc, 115 NLRB 52, 53, International Hod Carriers, 150 NLRB 158 , 170, Hobb-Parsons Co, 128 NLRB 1031, 1032 Business operations subsequent to the unfair labor practices (such as those of Lakeside Drive-In Theatre, Inc ) are properly included in asserting ju- risdiction Glen Koennecke , dlbla Sunset Lumber Products, 113 NLRB 1172, Cadillac Marine & Boat Company, 115 NLRB 107 , Calera Mining Company, 97 NLRB 950, National Gas Company , 99 NLRB 273 STRAND ART THEATRE, INC. 673 an act of an employee than an act of an indepen- dent contractor. 6. The record showed that under the "right of control" test" the Ross family retained the right to control the manner and means by which the Tacketts should entertain the audience. a. Management instructed Mrs. Tackett as to what costumes could be removed in her "strip- tease" dances and what cover should be worn under the costumes , whether it should be "panties or a G-string or a brassiere or pasties," and as to "how far she could go," and how long her "strip- tease" numbers should last.5 b. Although Tackett , or Mr. and Mrs . Tackett, wrote the skits or scenes they played , they rewrote them and adapted them to the stage conditions of the Strand , which included the narrow stage, a small cast, and "no traveler." Different chorus girls not selected by the Tacketts were brought in each week and management instructed the Tacketts which girls to use in their acts. As Tackett ex- pressed it, "We also worked with whoever the management tells me to use in the scenes . As a bur- lesque comedian you are required to put on scenes to fit into situations or the cast of the threatre." The record showed, further, that for a time late in their employment they had to eliminate all scenes using props, music, sound effects, and extra girls, because of inadequate support by the person who was to take care of those things . This was an addi- tional instance of adapting their scenes to the con- ditions in the theatre. c. At least once Bertram and Joel Ross con- fronted the Tacketts concerning the quality of their work, which had suffered as a result of their dif- ficulties, considered below, with Rueben Ross, a third Ross son . This showed that the Rosses as- sumed they had the right to control the quality of the Tacketts' performance. Conclusions In view of the Tacketts' long, locked-in, tenure, their commitment to serve Respondent exclusively during their tenure, and their written and actual subordination to the direction, supervision, and control of Respondent; as the Tacketts had no busi- ness, place of business , or employees and in essence were engaged in rendering services when and where Respondent instructed them to; as Tackett adjusted to the needs of Respondent 's theatre and made stage props for it with no additional pay for his ser- vices; as Respondent through members of the Ross family retained the right to control the manner and means by which the Tacketts should entertain the audience as shown by its controlling what costumes and undergarments should be worn in strip-tease acts and the length of such acts, as shown by its requiring that the Tacketts ' scenes be adapted to and fit into situations in the theatre and the cast of the theatre not selected by them , and as shown by its confronting the Tacketts concerning the quality of their work ; and upon the preponderance of the evidence in the entire record considered as a whole , I find and hold that the Tacketts were em- ployees within the meaning of the Act having "tenure of employment" within the meaning of Sec- tion 8 (a)(3) of the Act. B. Discharge of the Tacketts 1. Background In Kansas City at the time of the events herein there were two "burlesque theatres ," the Strand, and the Follies Theatre . According to the credited testimony of Steve Stephens, these were the only two "burlesque theatres" in the four States covered by AGVA's branch office in Kansas City, and the Follies operated "non-union." From the beginning of and during most of the Tacketts' tenure at the Strand, Rueben (Ruby) Ross was a stage hand with the responsibility of setting the props in place on stage, taking care of the lights, tending to the tape recorder and record music for the acts, and "catching" the wardrobe. The proper handling and timing of the props, lights, music, and wardrobe were of course very important to the Tacketts' performance , and how they were handled was of course an important condition of work in their employment. When the Tacketts began working at the Strand in 1966 Rudy Ross had just become 17 years old. He became 18 years old in September 1967. During much of their employment the Tacketts ' relations with Rudy were amicable , placid, even affectionate; but from about the summer of 1967 on the rela- tions between them were at times cold, silent, hostile, and stormy .6 The record established that in- creasingly the Tacketts could not rely on Rudy for the proper performance of his supporting duties ' See American Guild of Musical Artists, AFL-CIO ( National Symphony Orchestra Association ), 157 NLRB 735, and cases cited in fn 9 of the Trial Examiner's Decision ' As the police censor the burlesque show every week, it is, presumably, regulated by municipal ordinance However I conclude from Tackett's un- contradicted testimony that in addition the Strand had certain regulations, which had to be adhered to Tackett testified , "there were certain limita- tions and certain rules there are certain rules , every theatre has dif- ferent rules They instruct us as to these things, just how far you can go, they instruct how long a number they want us to do and she complied and t complied " "Rudy Ross testified that, "When we got along we got along well, and when we didn 't get along, we didn 't get along terribly " 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that it was this which caused the difficulties between them . Sometimes Rudy was upstairs in his apartment or in back of the theatre working on his Volkswagen during shows, and sometimes even when he was present backstage his mind was not on his duties. Once in the summer of 1967 Rudy used a prop, a sheet with which Tackett covered Mrs . Tackett on- stage, on the ground under Rudy as he worked on his Volkswagen. When Tackett reminded Rudy that onstage Tackett puts that sheet over Mrs. Tackett's face, Rudy replied that "It is my theatre , my dad's theatre, I will do what I want to with the props," and Rudy shoved Tackett about 2 feet across the dressing room . Rudy was taller, much heavier, and much younger than Tackett . The latter was 53 years old. Once about April 1968, when Mrs . Tackett com- plained to Rudy backstage that he was playing the music too loud for her act, Rudy replied , " I like it loud." When Tackett asked him to play the music softer Rudy replied, "I'll lay you out, I 'll knock the ... out of you." Tackett looked at Rudy, ran to the intercom , and called Joel Ross . When Joel arrived backstage Rudy and Tackett were arguing loudly and each had a tool in his hand . Tackett's version was that Rudy was trying to sic him on. Rudy told Joel, "I'll play the music as loud as I want." Rudy and Joel had a fight . Joel finally quieted Rudy down by shooting tear gas at him which got into Rudy's eyes . After this incident Rudy was removed from backstage for a period, but he returned. Numerous times during the long though intermit- tent period of their struggles to get adequate backstage assistance , Tackett discussed Rudy's shortcomings with Bertram , Joel, Mrs. Ross, and Edward Ross . The Rosses would say they would straighten Rudy out . Rudy testified his parents al- ways took the Tacketts ' side and that " it was always my fault." Several times Bertram or Joel en- gineered a rapprochement between Rudy and the Tacketts and they shook hands and made up. Several times also Steve Stephens, the AGVA agent, discussed the problems with Bertram and Joel. During the last show on Friday, June 7, 1968, the fire door behind the stage kept opening and bang- ing shut as Rudy went out numerous times to work on his VW. As Tackett expressed it, "A comedy is based on timing" and with the banging doors going on they "couldn 't time properly." Mrs. Tackett, "in an effort to cover," told the audience , "that's just my janitor, he is always banging around ." After a period of quiet the banging resumed . When Mrs. Tackett started to speak to Rudy about it, he shouted an obscenity loud enough to be heard all over the theatre . Finally Tackett told the audience that they couldn 't finish their scene, and shortly after that concluded the entire show before it was finished . Rudy told Tackett that he was "crazy" for not finishing the show . It was this episode that prompted Tackett to write a two-page grievance for the information of AGVA's representative, dated June 10 reading as follows: Backstage , acting in the capacity of a stagehand and disc jockey , is one of Mr. Ed- ward Ross 's (owner of Strand Theatre, K.C. MO.) sons a Mr. Rueben Ross , (age 18). Rueben Ross is very inefficient . He will not set props in proper position on stage for scenes., he plays background music and sound effects too loud or too soft as his fancy suits him. He misses light cues , music cues, sight cues, and sound effects . He leaves his job backstage to go up to his apartment on the third floor or goes outside and fixes his car in the middle of a show. The general manager, Bertram Ross, (also son of Edward Ross) instructed his brother, Rueben, not to worry about the positions of the girls in the show (the line up). Bertram also stated the comedy scenes were more important than the feature spot. He also told Rudy there are no " stars." Rudy ignores what Bertram tells him and places girls where he chooses, quite often leaving the girl available for scene the girl that is not capable of doing them. She is inefficient in acting or speaking. When you mention any of the above inefficien- cies to Rudy he is arrogant to the point of being a physical bully. His reply usually is "I am Rudy Ross and I don't have to." Naturally, all this detracts from the quality of the show . I have in my repertoire 62 burlesque scenes adaptable to the stage conditions of this theatre . Many of these scenes are five and six people cast scenes and my wife and I have rewritten them so they are adaptable to the short cast, narrow stage, no traveler and general all round conditions. In order to avoid conflict with Rudy Ross I have eliminated all scenes using props , music, sound effects, and extra girls. This brings my list of scenes down to 11. My wife, Tootsie Roll, does special novelty strips. There are 20 different numbers in all, naturally with appropriate wardrobe and props. All of her numbers are prefaced with specially written songs, and parodies. All of her numbers are on tape. She uses patter through out her number . She never says anything vulgar or ob- jectionable to anyone . The show is censored by the police every Friday morning . Rudy Ross misses cues and plays her background music so loud she cannot do her number properly. STRAND ART THEATRE, INC. 675 So . . . in order to avoid conflict with Rudy Ross she has eliminated all of her novelty num- bers. Furthermore Rudy Ross has an uncontrollable temper, so violent it verges on insanity. He loses his temper, flies into a rage at the most innocent remark or action . He gets so violent he takes his fist and punches holes in plaster board walls . Rudy Ross on three separate occa- sions threatened me and my wife with physical violence . He has violently shoved me several times . He has shouted an obscenity to my wife while she was working on stage loud enough for everyone in the theatre to hear it. Rudy Ross's behavior has reached the point that when he is in the back stage area , my wife and I become so nervous and frightened that it is exceedingly difficult to concentrate on our work . As a result , the house manager ( Mr. Joel Ross, also son of E. Ross owner ) and Bertram Ross has confronted us on the quality of our work . This was done (the only time) in the seventy fourth week of our engagement. We tried to explain to them , as we did both Mr. and Mrs . Edward Ross earlier, that Rudy Ross frightens us and we begged them to transfer him from his back stage duties to another position in one of the many firms that they own . We did not try to dictate , tell, or boss them as to how they run their own busi- ness but if their objective is the same as ours, which is to have a good show at all times, we can see no reason as to why they should refuse our request as they have so many other busi- ness enterprises in which they could place Rudy Ross. /s/ W. F. Tackett Buddy O'Day-W. F. Tackett comic /s/ Mrs. J. Tackett Tootsie Roll-Mrs. J. Tackett dancer and talking woman After Stephens received this written grievance he discussed the Tacketts ' problem again with Bert or Joel. Then one evening Edward Ross telephoned Stephens at his home and they discussed it. During this conversation Edward Ross told Stephens that neither the Union nor the employees was going to tell him how to run his theatre . Stephens replied that they had no intention of telling him how to run his theatre, that "We wanted to have good working conditions." Ross gave Stephens to understand that Rudy came before the performance , that he didn't want employees to tell Rudy what to do , and that he, Ross, and not the employees , was responsible for what went on in the theatre. Thereafter , on or about June 19, Stephens for- warded a copy of the Tacketts ' two-page complaint to Edward Ross, together with a covering letter reading as follows: Attached is a complaint recently received by AGVA about working conditions at the Strand Art Theatre. As mentioned in our conversation I do not rule on a complaint , but instead , refer it to the Branch Executive Committee for their recom- mended action. You are welcome to appear before this group concerning this complaint involving your interests in show business. On June 24 Ross replied to Stephens in writing as follows: Your letter of, June 19 , 1968; together with several copies of a written complaint signed by, Buddy O'Day and his wife , were received by myself and various members of my family. My primary reason for acknowledging your letter-is not to dignify the contents of the complaints there in-but, rather as an act of courtesy to you. It occurs to me, that Rudy Toss, ( sic) the sub- ject of the complaints, has not worked back stage for at least two ( 2) weeks prior to the receipt of the letter . Why then?-was the com- plaint ever made? f have several grievances relative to many per- formers who were engaged in our theatre. However, I shall defer action for a future date. I believe, rather than engage in criticism of theatres , that are suppling [sic ] work to your performers ; you should direct your actions and diatribes toward theatres , that are unfair and . operating "non-union." In my opinion to repeat an old phrase , "It is in- fantile to bite the hand that feeds your perfor- mers," surely , there are many important and pressing problems in your own organization, that demand immediate action and should be ameliorated. 2. The discharges The first and only confrontation between Edward Ross and Tackett after the former received the complaint letter occurred on July 22, and it turned out to be the Tacketts ' terminal interview. Someone other than Rudy had been doing the im- 427-835 0 - 74 - 44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portant backstage work for weeks and, insofar as the record showed , all had been going well. On the evening of July 22 the backstage man was missing from the third show and Edward Ross had sent Rudy back there to replace him. Rudy did not speak to the Tacketts . Obviously concerned about the reappearance of Rudy backstage , after that show the Tacketts went to the office to talk to someone about this and found themselves talking to Edward Ross . This was Edward Ross' first ap- pearance at the office since the previous December , when he had been hit by an automobile. Concerning this meeting the testimony of the Tacketts and the Rosses was almost completely contradictory. The Tacketts testified that they entered the office in the spirit of peace to inquire as to whether Rudy was going to remain backstage and, if so, to see if Bertram or Joel could arrange a friendly meeting between them and Rudy so that they and Rudy could shake hands and go to work harmoniously. They testified that they discussed the matter before going to the office and decided that they could not "fight city hall " if Rudy was going to remain backstage and that they entered to inquire, not to complain . All of this seems credible to me, since the Tacketts had had a 2-week vacation shortly be- fore and had had adequate backstage support since their return . I credit their testimony that at the beginning Tackett asked Ross if Rudy was going to remain backstage and Ross replied in the affirma- tive. Since Ross had sent Rudy backstage on the spur of the moment as a substitute , his reply that Rudy was going to remain back there seems to have been , and I so find, an intentional effort to provoke Tackett, and it seems probable to me that his intent bore fruit. Edward Ross testified that Tackett said strongly that Rudy had no right to be backstage , that he was not supposed to be back there , and that Tackett would not work with him . Ross' pretrial affidavit said Tackett talked "belligerently" but did not say Tackett refused to work with Rudy . Joel Ross, who was present, testified that Tackett said that he was not going to work with a crazy man backstage. Edward Ross indicated strongly in this interview that he would not discuss the substance of the grievance with Tackett . Ross testified that he told Tackett that the latter could not dictate to him who would work backstage , that Rudy was his son, and that Rudy was going to continue working back there. According to the credited testimony of the Tacketts, Ross asked them why they went to AGVA, said they were troublemakers, asked them if they wanted to quit, and told them he was going to get rid of them . He then ordered them out and ushered them out of his office. Edward Ross testified that during the interview Tackett called him a "dirty Jew bastard " and said he would take him before the NLRB and AGVA. Tackett denied this epithet and said that one of his grandmothers was Jewish and his father was "half Jewish." It seems probable to me that under the extreme provocation of having their grievance rebuffed by refusal even to discuss it, having their union affilia- tion attacked, being called troublemakers, and being all but discharged, that Tackett spontane- ously applied to Ross the epithet Ross accused him of. The termination notices handed the Tacketts on July 25 effective August 1 stated no reason for the discharges. Signed by Dorothy Ross as president of Respondent, they stated the renewal of the con- tracts by signature of Bertram was signed by a minor without her consent. At a later hearing by AGVA for alleged breach of the Tacketts' con- tracts, Mr. and Mrs . Ross asserted the position that Bertram was a minor without authority to sign for them , and one of them asserted that they had a minor sign purposely so that they could "get out of" the contracts. Edward Ross sent Rudy Ross to Wichita , Kansas, on August 1, 1968, and since then he has been manager of the Vogue . Rudy testified that he and his mother didn 't begin to "get along" until he was in Wichita. According to credited testimony of Steve Stephens , AGVA's branch manager, a credible wit- ness, although Bertram Ross telephoned him (presumably after the Tacketts left) that they were going to discontinue live shows at the Strand, they still have live shows there but are not getting them through AGVA ; the performers are not working under AGVA contracts and the Rosses are not doing business with AGVA. 3. Concluding findings The Tacketts normally performed four shows a day, 7 days a week, and appeared several times each show . Backstage conditions , including the proper handling and timing of the props , lights, music, and wardrobe , were important conditions of their employment, and a proper subject of a single or a continuing grievance. Their grieving or com- plaining over these working conditions was a pro- tected union or concerted activity within the mean- ing of Section 7 of the Act. Although Bertram and Joel Ross were apparently willing to listen to and consider the Tacketts' occa- STRAND ART THEATRE, INC. sional grievances about their working conditions (and although Rudy had been temporarily removed from backstage after discussions with Bert or Joel), the record showed that Edward Ross was not, and that he was hostile to the Union . Thus, prior to his receipt of the Tacketts' written complaint but after Stephens had discussed its contents with Joel or Bertram , Edward Ross called the union agent at his home one night and told him , as has been seen above, that the Union and the employees were not going to tell him how to run his theatre, that Rudy came before the performance , that he didn't want employees to tell Rudy what to do, and that he and not the employees was responsible for what went on in the theatre . Thus, in replying to Stephens after the latter had sent him the Tacketts' June 10 written complaint , Ross wrote nothing about the merits or demerits of the grievance and launched into an attack on the Union . Thus, in the terminal interview Ross intentionally provoked the Tacketts but refused to discuss the merits of their grievance, and he asked the Tacketts why they went to AGVA. And finally , after the Tacketts left, the Strand ceased doing business with AGVA. On the witness stand Ross admitted that the Tacketts' June 10 complaint letter was one of his reasons for discharging them and that it "could be" the main reason ; "it's as good a valid reason as any that I know of." He quickly added that what disturbed him was the "vilifying" of Rudy in the letter . Of note in this connection is that in his reply letter to Stephens he had said nothing about any vilifications in the Tacketts ' letter and on July 22 he said nothing like that to the Tacketts. Ross had received the June 10 written complaint on or about June 20 . If he was going to discharge the Tacketts for vilifying Rudy in the complaint, no reason appears as to why he waited over a month to do so . In his affidavit given in February 1969, over 6 months after the discharge , Ross stated, "The reason that we terminated the Tacketts was because they were there too long." He, said nothing about terminating them because they vilified Rudy. Nor did Bertram testify that "vilification" had anything to do with the discharges . Under these cir- cumstances and upon the preponderance of the credible evidence I believe and find that alleged "vilification" of Rudy was not an important reason for the discharges but was an idea lately arrived at and conceived as a buttress to the defense. On the witness stand Ross said that what he meant by "there too long " in his affidavit was that they had been there too long and Tackett was try- ing to "take over." The record established beyond any question that Tackett was not trying to "take over" anything in the theatre , but that he was 677 simply trying to achieve backstage working condi- tions which would permit him and his wife to per- form their acts appropriately well. It is the Board's experience that adamant posi- tions sometimes melt or change as a result of col- lective bargaining, including the discussion of grievances . Had Ross been willing to discuss the Tacketts' problem with them it was possible that some adjustment of the situation might have come about which would have been satisfactory to both sides. The Tacketts were primarily interested in having adequate backstage support for their per- formance , not in having Rudy removed . If Mr. Ross had been willing to negotiate with the Tacketts and the Union on this grievance , and to let Rudy and the Tacketts know that he was taking a personal in- terest in backstage conditions and expected them to improve, it is possible that such a result would have occurred . A few days later Ross sent Rudy to Wichita where he became manager of the Vogue, so Ross must have had confidence in him. Such confidence , conveyed to Rudy, might have im- proved his performance backstage at the Strand. Further, if, on July 22, Ross had told the Tacketts he was thinking of sending Rudy to Wichita, or was going to send Rudy to Wichita, this would have solved their grievance and they would have con- tinued working at the Strand. Upon the preponderance of the evidence I find and hold that Edward Ross refused at all times to consider the Tacketts ' grievance in depth because of his hostility toward AGVA and toward per- mitting performers to discuss their working condi- tions with him, and that these were also the reasons he discharged them. The Board has long held, with court approval, that not every impropriety committed in the course of Section 7 activity deprives the employee of the protective mantle of the Act. See the discussion of Trial Examiner Louis Libbin in Harding Glass of Missouri, Inc., 158 NLRB 1366, 1372, and the cases cited in footnote 8 (page 1373 ) of the Trial Examiner's Decision. On the facts of this case I find and conclude that nothing contained in the June 10 written grievance or in the July 22 interview was so improper as to forfeit the Act's protection . In their June 10 com- plaint, written for the information of the union agent to assist him in pressing their grievance with management, and not intended to be forwarded to the Rosses, the Tacketts wrote the truth as they saw it, with no intent to vilify Rudy and motivated sole- ly by a desire to protect their own performances and professional standing . And the epithet Tackett applied to Ross on July 22 was uttered spontane- ously after the extreme provocations listed above. 678 DECISIONS OF NATIONAL As the Tacketts' actions in presenting and pressing their grievances were within the protection of Section 7 of the Act, and as in discharging them Ross was motivated , at least in part, by his hostility to AGVA and towards discussing grievances with performers, I find upon the preponderance of the evidence in the entire record considered as a whole that Respondent discharged the Tacketts in viola- tion of Section 8(a)(3) and (1) of the Act. Their discharge under these circumstances would neces- sarily tend to discourage other members of AGVA from seeking employment at the Strand, which would necessarily tend to discourage membership in AGVA by members and nonmembers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respon- dent's operations 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 commerce and the free flow of commerce. V. THE REMEDY I recommend the customary broad cease-and-de- sist order and the affirmative relief conventionally ordered in cases of this nature, where Respondent's unfair labor practices were of a character which struck at the roots of employee rights safeguarded by the Act. At the time of their discharge the current con- tracts of the Tacketts had nearly 4 months to run. They were on their third 26-week extension and they had worked at the Strand for over a year and a half. The record established that they were satisfac- tory, even valued, employees, and that they were given at least two half-yearly extensions after they began to have trouble and to complain over backstage working conditions. Nothing in the record suggested that their tenure would not have LABOR RELATIONS BOARD continued indefinitely but for their discharge for engaging in protected union and concerted activity. Under these circumstances I recommend the custo- mary reinstatement and backpay remedies, with backpay running from the date of the discharge, August 1, 1968, until the date of the offer of rein- statement (less their net earnings during such period), computed on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as ascer- tained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondent make available to the Board , upon request, payroll and other records in order to facilitate the checking of the amounts of backpay due. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the follow- ing: CONCLUSIONS OF LAW 1. Strand Art Theatre, Inc., Ross Operating Company, Lakeside Drive-In Theatre, Inc., and Town Underground Theatre, are a single integrated enterprise engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. American Guild of Variety Artists, AFL-CIO, Kansas City Branch , is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of William F. Tackett and Jerrolyn Tackett, thereby discouraging membership in American Guild of Variety Artists, AFL-CIO, Kansas City Branch , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]