C. Tobalina Productions, Inc.

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Tobalina Productions, Inc. and Robert Morris. Case 31-CA-3266 November 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 17, 1973, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent, C. Tobalina Productions, Inc., filed exceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings,2 and conclusions of theAdministrative Law Judge and to adopt his recommended Order. charge in Case 31-CB-1070 also was filed that date by Morris. The consolidated complaint issued October 2, 1972, alleging that C. Tobalina Productions, Inc. (herein called Respondent), had violated Section 8(a)(1) and (3), and that International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators , Local 577 (herein called the Union) had violated Section 8(b)(1)(A) and (2), of the National Labor Relations Act, as amended. The General Counsel moved, at the start of the trial, that Case 31-CB-1070 be dismissed. That motion was granted. I. ISSUE The issue is whether 'Respondent, on July 19, 1972, discharged Robert Morris because of union nonmember- ship and related considerations , violating Section 8(a)(1) and (3) of the Act. The parties were given full opportunity at the trial to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, subsequently were filed for the General Counsel and Respondent. Upon the entire record in the case , and from my observation of the witnesses and their demeanor, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, C. Tobalina Pro- ductions, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i This proceeding was originally consolidated for hearing with Case 31-CB-1070 in which International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, Local 577, was named as a corespondent. The General Counsel moved at the start of the trial that Case 31-CB-1070 be dismissed. That motion was granted. The Respondent feels that the Administrative Law Judge relied in his decision on evidence which had been excluded during the hearing. We have examined the transcript on this point and find that the scope of the objection made and sustained during cross-examination of witness Reynolds was limited to the immediately preceding question, since it was not specified that the objection went to other testimony and no additional objections were made 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: Case 31-CA-3266 was tried before me in San Bernardino, California, on June 13, 1973. The charge in that case was filed August 9, 1972, by Robert Morris, an individual. The II. FINDINGS OF FACT A. The Business of Respondent Respondent is a California corporation engaged in the production and distribution of motion pictures , and in the operation of motion picture theaters, including the Fine Arts Theatre (herein called the Fine Arts) in San Bernardino, California. Respondent realizes an annual gross income from its business activities in excess of $500,000, and annually distributes films valued in excess of $50,000 directly to points outside California. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization Involved The Union is a labor organization within the meaning of Section 2(5) of the Act. C. The Evidence Morris was a fulltime projectionist at the Fine Arts from January 24, 1971, to July 19, 1972. The General Counsel contends that he was fired July 19 because of his nonmembership in the Union . Respondent contends that he quit. Morris by all accounts was a good projectionist. Weighed against this was his tendency to become upset over things at work and, when upset, to telephone Arturo Gutierrez, Respondent's general manager, or Carlos Tobalina, its president and owner, at their homes in Los Angeles if necessary, to voice his concerns . He telephoned from time to time to complain about his wage level, to report his suspicions of employee stealing at the Fine Arts, 207 NLRB No. 66 C. TOBALINA PRODUCTIONS, INC. 415 and to express anxiety about his job status should Respondent recognize the Union at the Fine Arts-the latter apparently a deep, unrelenting fear with Morris.' Tobalina testified that, while these calls to his home were an "aggravation," they were worth suffering for a projec- tionist of Morris' caliber. The facts surrounding the alleged discharge are in serious dispute: Morris' version: Morris testified that, about 5 p.m. July 19, he received a telephone call from Harry Reynolds, president of the Union. Reynolds told him that Tobalina had pledged Respondent to a bargaining agreement with the Union and, consequently, that Morris, as a nonmem- ber, would be out of a job at the Fine Arts as of August 1.2 Morris promptly telephoned General Manager Gutierrez for verification. Gutierrez replied, "I don't know anything about it"; told Morris that the Fine Arts would shut down for a time as of August 1 in any event; 3 admonished Morris not to argue with him; and, finally, told Moms he was fired. Upon telling Morris he was fired, Gutierrez hung up. He did not say why Morris was fired, and Morris did not have a chance to ask. The conversation lasted perhaps 5 minutes. Morris remained on duty following the conversation until the arrival of a relief projectionist about 9 p.m 4 About 10:30 p.m., July 19, according to Morris, he received a telephone call at his home from Jose Maids, the manager of the Fine Arts and, at the time, a personal friend.5 Maida said he had just returned from Los Angeles, knew of the situation, and would come to Morris' house to tell him about it. Maids presently dropped by the house and said that the discharge had been ordered by Toballna and had something to do with the Unions Morris and Maida then applied themselves to the drafting of a letter of reference for Morris. Morris later typed a letter for Maida's signature. Maida signed it July 22. It read: Robert S. Morris served as projectionist here for eighteen months. His work was highly satisfactory at all times. He was never late for work. He was reliable, cooperative, and highly skilled in his trade. His screenings were bright and properly focused. The sound level was always pleasing. The projection room was kept spotlessly clean and the ancient equipment oiled and properly adjusted. Through no fault of his own, Mr. Moms was instantly dismissed during the evening performance of July 19th. This was ordered by owner Carlos Tobalina through his general manager Mr. Arturo Gutierrez. i Morris was and is passionately antiumon . He once termed the Union, in a letter to Toballna, as "a vicious group of Coniaue degenerates," and as "these rattlesnake umonites." 2 Coming from Morris, Reynold's statement of what Tobalina may have said to him was hearsay of no probative value. Edward Kraemer & Sons, Inc., 203 NLRB No. 110; Sweater Bee by Banff, Ltd, 197 NLRB 805. 3 Assertedly because of economic problems, Respondent considered closing down the Fine Arts for a few days, beginning August 1, to be reopened after unspecified organizational changes . The employees were informed of this prospect by letter in July. The shutdown never materialized 4 Morris testified that the relief projectionist , Robert Gregg, stated on arriving- "Well, Bob, you are absolutely fired. Get your stuff and get out." Gregg added, according to Moms, that this was on Gutierrez' say-so. Mr. Morris's position was filled by projectionist's from I.A.T.S.E. Local 577 of which he is not a member. His unfortunate firing was a great loss to this theatre. I sincerely recommend Robert to anyone needing a fine professional projectionist. Moms testified that he never talked to Gutierrez after the discharge conversation, but that he did ask Tobalina, a few days later, why he had been fired. Tobalina responded that he had not been fired, but had quit and that the Union would get him another job. Morris also testified that he was told by Union President Reynolds, on July 20 or 21, that he could take a union qualification test the following Tuesday. Other versions: Reynolds, while admitting that Morris frequently called him, denied that he ever telephoned Morris about anything, or that he ever told Morris that he would be out of a job if or when the Fine Arts went union. Reynolds testified that when Morris once asked him if that would happen he answered that it would be up to Tobalina. Gutierrez admitted that Morris telephoned him about 5 p.m., July 19, asking about the Union. He replied that he did not know anything about the Union. Morris launched into a tirade, saying that Respondent was out to "screw" him, that he was not going to keep working until the August 1 shutdown, and that Respondent had 2 hours to get a replacement for him. Gutierrez responded: "If you want to go, go. " Maida testified that he telephoned Morris the night of July 19 to ask what had happened, and that Morris explained that he was unwilling to continue working-until the theater closed down August 1. Maids admitted that he may have been in Los Angeles July 19-his day off-but denied going to Morris' house that night. He testified that, a day or so later, Morris brought to him for signing a handprinted reference letter which read: Mr. Robert Morris has served as projectionist at this theatre for the past 18 months. During that time he has been honest, reliable, and a projectionist of the very highest merit. Maida told Morris he thought that such a letter should be in more presentable form , "something more class." Morris returned July 22 with the typewritten letter, previously set forth, which Maids signed . Maids testified that he signed the letter out of friendship for Morns without careful reading as "an accommodation for another job," adding that, because of his naivete in the English idiom and about Coming from Morris. this testimony of what Gutierrez said to Gregg was hearsay without probative value to the issue of whether Morris quit or was fired. See citations in fn. 2, supra. 5 Maida's supervisory status is in dispute. He was the ranking official regularly on the premises at the Fine Arts, Gutierrez , his iminediate superior, officing 65 miles away in Los Angeles. Maids sometimes fired employees and interviewed and screened applicants for jobs at the Fine Arts, usually being the only official of Respondent actually to see them, after which he consulted telephonically with Gutierrez, and received formal authorization to hire. I find that Maids was a supervisor within the, meaning of the Act. 6 Morris' wife testified that she also was present. Her testimony substantially corroborated Morris. 7 Maids testified elsewhere that Morris denied quittirig. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American laws, he did not appreciate that it was inaccurate in ways that might be troublesome to Respondent .8 Maida testified that July 20-2 days before signing the letter for Morris-he asked Gutierrez what had happened, to which Gutierrez told him that Morris had quit. Later, when Morris flaunted the letter as proof that he had been unlawfully discharged, Maida tried, unsuccessfully, to recover it. Tobalina testified that Gutierrez telephoned him July 19, after Gutierrez had talked to Moms, to report that Morris had given 2 hours' notice that he was quitting.9 Tobalina denied instructing anyone to discharge Morris. Other evidence: Respondent undertook operation of the Fine Arts a few days after Morris' hire in 1971. The previous operator had had a bargaining relationship with the Union concerning the projectionists, but, roughly coincident with its hire of Morris, discharged its union member projectionists. Morris, at all times a nonmember, was retained by Respondent after its takeover, being its only projectionist for a time. A subsequent unfair labor practice proceeding at the instance of the Union was resolved by a settlement agreement requiring, among other things, that Respondent place the union member projectiomsts fired by the predecessor on a preferential rehire list, and that it bargain on request with the Union.'" In an evasion of that agreement, Respondent in September 1971 hired a part- time projectionist, who was neither on the preferred list nor a union member, as relief for Morris.ii Respondent later procured two other projectionists to spell Morris part-time. They likewise were not on the preferred list, nor members of the Union. Morris and the three relief projectionists-all still nonmembers of the Union-left the Fine Arts within roughly a month of one another, to be succeeded by projectionists on the preferential rehire list. Two of the relief projectionists thus displaced now work in nonunion theaters of Respondent's in Los Angeles; the third no longer works for Respondent. During the same general period that the four nonmember projectionists left the Fine Arts, Tobalina and Union President Reynolds met perhaps six times. Reynolds explained, "We were trying to get the house back." The record, although meager as to the more specific substance of these meetings, leaves little doubt that projectionist staffing at- the Fine Arts was perhaps the main thing considered. Tobalina testified once telling Reynolds, in apparent reference to Morns, that Respondent would not "fire anybody already working there to place a union man"; and that Reynolds asked him, 3 days before Morris left, if he was happy with Morris. Reynolds testified that 2 8 Maida, a native of Argentina, has been in the United States about 2 years. Although not fluent in English, he testified without an interpreter 9 Gutierrez testified that he did not call Tobalina at this time. 10 Case 31-CA-2249. Respondent's postsettlement retention of Morns apparently did not contravene the settlement agreement. 11 Respondent and Morris worked out a scheme concerning this relief projectionist whereby Morris paid him from his own funds, presumably to be reimbursed by Respondent, so that person's name would not appear on Respondent's payroll records Morris eventually objected to the arrange- ment and it was discontinued 12 Maida's contention that he did not know the substance of the letter has its appeal, given his limited facility in English, but I do not believe it. He or 3 days before Morris left-i.e., about the very time, according to Tobalina,' of Reynold's query about Morris -Tobalina asked him if the Union could furnish a man to replace Morris. Reynolds stated that this was how he learned that Morris was no longer going to work for Respondent. Tobalina, testifying that he was not disappointed over replacing Morris with a union projectionist, explained, .. I would rather operate the business without having any special pressure from the Union ...." D. Analysis I conclude that Morris did not quit July 19, but was discharged because of his nonmembership in and hostility to the Union. In concluding that Morris was fired, I credit his version of the July 19 telephone conversation with Gutierrez. This is not because of relative demeanor on the witnesses stand-there seemed little choice between the two in that regard-but because Morris' version comports more nearly with Tobalina's having sought a replacement for him from the Union 2 or 3 days before, and with the letter Maida signed July 22. Whether or not Maida visited Morris' house the night of July 19 with word that union considerations underlay the discharge-and I conclude, again crediting Morris, that he did-he admittedly ob- tained Gutierrez' version of the situation before signing the letter. It would violate all laws of probability in this circumstance for Maida, as manager of the theater, to have signed a letter so distortive of the truth as he now urges.12 In concluding that proscribed union considerations underlay Morris' discharge, I rely not only on Morris' testimony that Maida so told him that same day 13 and upon the suggestive, but not conclusive, mention of the Union in the letter that Maida signed, but upon these additional considerations: 1. Roughly coincident with the discharge, all of Respondent's nonunion projectionists left, to be succeeded by those supplied by the Union-14 2. Roughly coincident with the departure of the nonunion projectionists, Owner President Tobalina met perhaps six times with Union President Reynolds regard- ing the Union's getting "the house back," during which projectionist staffing at the Fine Arts was considered. 3. Two or three days before the discharge, about the time Reynolds asked Tobalina if he was happy with Morris, Tobalina asked if the Union could furnish a replacement. Whether Reynolds' intent, by this remark or otherwise, was to elicit such a response, Tobalina plainly so demonstrated as a witness a capability for subtle evasion, most obviously in answer to questions going to his supervisory status, that impressed me at once with his intellect, facile tongue, and testimonial pragmatism. 1.1 Morris is credited over Maida in this respect on the basis of previous observations herein about Maida's credibility , and particularly because of Maida's misrepresentations, as previously found, about the letter he signed. "[I In the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next" N.L.R.B v Pittsburgh S.S Company, 337 U.S. 656, 659 (1949) 14 Since all but Morris of the departed projectionists were hired in apparent breach of the rehire agreement, there perhaps was no basis for violation in the others' displacement. C. TOBALINA PRODUCTIONS, INC. 417 understood since he viewed Morris' being replaced as serving to avoid "special pressure from the Union." 4. Respondent, doubtless having antagonized the Un- ion by its initial flouting of the preferential rehire arrangement and wanting, in Tobalina's words, to avoid "special pressure from the Union," likely saw Morris' uniquely virulent antiunionism as a major impediment to rapprochement. 5. Morris was a good projectionist. 6. Finally, that union considerations figured in the discharge is indicated, if not clearly revealed, by Respon- dent's fundamental misrepresentation, as above found, of Morris' discharge as a quit. That, coupled with the surrounding circumstances generally, raises a strong inference that Respondent felt the need to conceal something-such as having fired Morris for an unlawful reason. Cf. Shattuck Denn Mining Corporation v. N.L.RB., 362 F.2d 466, 470 (C.A. 9, 1966). It follows from the foregoing facts and conclusions that Morris was discharged in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By unlawfully discharging Morris as found herein, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practice found. Affirmatively, it is recommended that Respondent be ordered to offer Robert Morris immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges; and to make him whole for any loss of earnings and other benefits suffered because of Respondent's discriminatory discharge of him. His loss of earnings shall be computed as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 Respondent, C. Tobalina Productions, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from discharging its employees because of their nonmembership in or attitudes toward the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, Local 577, or any other labor organization, except in accordance with an agreement requiring membership in a labor organization as permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Offer to Robert Morris immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his-seniority and other rights and privileges, and make him whole, as set forth above in the section entitled "Remedy," for any loss of earnings and other benefits suffered because of the discrimination against him. (b) Preserve and, upon request, make available, to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business at the Fine Arts Theatre, San Bernardino, California, copies of the attached notice marked "Appendix." 16 Copies of the notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 15 All outstanding motions inconsistent herewith are denied . In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclu- sions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall'be deemed waived for all purposes. 16 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held in San Bernardino, California, on June 13, 1973, in which we participated and had a chance to give evidence, resulted in a decision that we had committed an unfair labor practice in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To refrain from any or all such activities. In recognition to these tights, we hereby notify our employees that: WE WILL NOT discharge our employees because of their nonmembership in or attitudes toward Interna- tional Alliance of Theatrical Stage Employees and 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moving Picture Machine Operators, Local 577, or any other labor organization, except in accordance with an agreement requiring membership in a labor organiza- tion as permitted by Section 8(a)(3) of the Act. WE WILL offer to Robert Morris immediate and full reinstatement to his former position or, if that position no longer exists, to, a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings and other benefits suffered because of the discrimina- tion against him. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Region 31, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California, 90024, Telephone 213-824-7357. C. TOBALINA PRODUCTIONS, INC. (Employer)