Galaxy Theatre

GALAXY THEATRE Martin J. Baker, an individual proprietor, d/b/a Galaxy Theatre, Hayloft Theatre, and Mini-Art Cinema and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local No. 230. Case 27-CA-3804 May 20, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On October 31, 1973, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, General Counsel and Res- pondent filed exceptions and supporting briefs. 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 briefs and has decided to affirm the rulings, findings,I and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent satisfied the Board's jurisdictional standard for retail enterprises. We disagree. Under no appropriate test does the revenue from Respondent's several related enterprises total $500,000.2 The facts and figures are not in dispute. Respon- dent has operated the Galaxy Theatre, Galaxy Bookstore, and the Adam & Eve Bookstore at all times relevant herein. On March 22, 1973, he purchased the Hayloft Theatre and the Mini-Art Cinema from two separate but companion corpora- tions and on June 1, 1973, acquired the Empress Theatre by purchase from a third corporation. Using the revenue figures from the above six enterprises, the Administrative Law Judge attempted, via several methods, to determine whether Respondent's related ventures met the Board's jurisdictional standard of $500,000 for retail enterprises. Respondent's reve- nues from the Galaxy Theatre and the two book- stores in the calendar year 1972 fell short, as did I 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 (C A 3) In view of the conclusion we have reached herein , we find it unnecessary to consider or pass upon the ments of the unfair labor practices alleged by the General Counsel and found by the Administrative Law Judge 2 The Board adheres to a standard in which it will assertj unsdiction over all retail enterprises which fall within its statutory jurisdiction and which do a gross volume of business of at least $500,000 per annum Carolina Supplies 210 NLRB No. 118 695 revenues from his wholly owned ventures for the 12- month period preceding the hearing (September 1972 through August 1973). By projecting postsale reve- nues from the Hayloft, Mini-Art, and Empress over 12 months, based on his several months of operation, and adding them to the 12-month figures of the other three enterprises, Respondent was still short of the jurisdictional minimum. The minimum was also not reached by retaining the Empress projection and reaching back through September 1972 to use the presale revenues of the Hayloft and Mini-Art, instead of projecting their earnings. The Administra- tive Law Judge reached a figure in excess of $500,000 by adding the 1972 revenues of Respondent's predecessors at the Hayloft and Mini-Art to Respon- dent's own 1972 revenues from the Galaxy Theatre, Galaxy Bookstore, and Adam & Eve Bookstore. Ordinarily, in determining the 12-month revenues of an employer, the Board looks to the experience of that employer during the most recent calendar or fiscal year or the 12-month period immediately preceding the hearing before the Board.3 The Board uses this test when the same employer has been conducting the business for more than 1 year and figures relating to his prior economic experiences are available. In instances involving new enterprises in existence for less than a year, the Board relies on the actual partial-year experience, using those figures to project forward what the employer's revenues for 12 months are likely to be.4 Where a successorship is involved, the Board has treated a successor-employer as if it had commenced operations of a new business and has determined whether it meets the jurisdictional standard by making a forward projection based on its actual experience.5 The Board has also used the 12-month experience of a predecessor to project what the revenues of the successor will total during its first 12 months of control where evidence indicates that the business will continue in essentially the same manner as before the change of ownership.6 In the instant case, the posture of Respondent lies somewhere between the situations in which the above tests are applied. Respondent was continuing his and Cement Co, 122 NLRB 88, 89 3 Western Machine & Tool Company, 115 NLRB 978, 979: Aroostook Federation of Farmers, Inc, 114 NLRB 538 + Devco Diamond Rings, 146 NLRB 556; Wallace Shops, Inc., 133 NLRB 36 5 E g., No H Denham d/b/a The Denham Company, 187 NLRB 434, enfd. as modified in other respects 469 F 2d 239 (C.A. 9, 1972); Interstate 65 Corporation d/b/a Continental Inn, 186 NLRB 248, enfd as modified in other respects 453 F.2d 269 (C A 6, 1971). 6 Will Coach Lines, Inc, 175 NLRB 518,519 ; Car City, Inc, 116 NLRB 1571. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previous operations at the Galaxy Theatre and the two bookstores but was a successor 7 insofar as the Hayloft, Mini-Art, and Empress Theatres were concerned . But, as noted above, the Administrative Law Judge found that under none of the above tests does a projection of the Respondent's income show a likelihood that he will satisfy the retail standard in his first year of operation, and that the separate operations of Respondent and of each of his predecessors also did not meet that standard prior to the takeover . Thus, the findings of the Administra- tive Law Judge actually rebut any showing of probable adequate income based on the usual tests. The Administrative Law Judge , however, conclud- ed that no standard method of computation justifies finding that the operations satisfied the dollar volume standard, and he therefore adopted a new method of computation which relies on a $500,000 revenue figure obtained by imputing to Respondent, in addition to his own income for 1972 (prior to the takeover), the 1972 income from enterprises then totally unrelated to that of Respondent ; he thus secured a gross for the calendar year 1972 which the evidence shows has not been and will not be achieved after the takeover.8 We cannot accept the Administrative Law Judge's method of computation in this case as we see no basis for a departure from existing precedent. To adopt such a new test would so strain to meet the $500,000 minimum that it would vitiate the purpose of our discretionary standards, to effectuate better the policies of the Act by promoting the prompt handling of cases.9 Accordingly, we find that Respondent does not meet the Board's jurisdictional standards in that neither his actual revenues nor his projected reve- nues, at any time pertinent herein, reached or exceeded $500,000, and we dismiss the complaint for this reason. 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. 7 In view of our decision herein, we find it unnecessary to determine whether Respondent was a successor who was obligated to continue to recognize the Union as the representative of the employees at the three newly acquired theaters 8 We reject the Administrative Law Judge's use of Perma Vinyl Corporation, 164 NLRB 968, as a basis of the rationale for the jurisdictional test he applied herein The Board held in Perma Vinyl that, in some circumstances, a successor can be held accountable for the unfair labor practices of a predecessor because, inter alia, when the successor substituted himself in the place of the perpetrator of the unfair labor practices, he became the beneficiary of the unremedied unfair labor practices Herein, the predecessors of Respondent committed no unfair labor practices Furthermore, the three newly acquired theaters individually or jointly could not have met the Board's jurisdictional standards in 1972 or 1973, just as Respondent's initial enterprises, standing alone, could not have possibly met the Board's jurisdictional standards if unfair labor practices had been committed there in 1972 or 1973 Whereas Perma Vinyl seeks to protect the victims of unfair labor practices who, but for a change in ownership, would clearly be entitled to a Board-ordered remedy, the Administrative Law Judge would assert jurisdiction here although he would not have asserted jurisdiction over any operation separately before the change in ownership. Therefore, the Administrative Law Judge's rationale that a sale of a business should not result in a lapse of coverage is totally inapplicable here, where the income is combined to achieve coverage rather than to continue it. 9 Carolina Supplies and Cement Co, supra at 88 DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was tried before me in Denver, Colorado, from September 11 through 14, 1973. The charge was filed March 29, 1973, by Inteniational Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local No. 230 (herein called the Union). An amended complaint issued August 24, 1973, superseding in all respects an original complaint that had issued May 31, alleging that Martin J. Baker, an individual proprietor, d/b/a Galaxy Theatre, Hayloft Theatre, and Mini-Art Cinema (herein called Baker or Respondent) had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The parties were given opportunity at the trial to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel and Respondent. II. ISSUES The issues are whether Respondent meets the Board's jurisdictional standards, and, if so, whether it: 1. On about November 1, 1972, withdrew from a bargaining relationship with the Union concerning a projectionist unit at the Galaxy Theatre, an incident of which was unilaterally to change wages and displace existing unit employees, violating Section 8(aX5) and (1) of the Act. 2. On about March 22, 1973, upon purchase of the Hayloft Theatre and the Mini-Art Cinema: (a) Refused to retain prepurchase projectionists at those theaters-Douglas Calvird, Kirby Hairgrove, Richard Harmes, Paul Rabe, and William Ramsay-because of their union activities, violating Section 8(a)(3) and (1) of the Act. (b) Disavowed bargaining relationships between the former owners and the Union concerning projectionist units at each theater, an incident of which was unilaterally to change wages and displace existing unit employees, violating Section 8(a)(5) and (1) of the Act. 3. At various times between November 1972 and June 1973, by sundry verbal and physical acts of Baker against picketers, interfered with, restrained, or coerced employ- ees, violating Section 8(a)(1) of the Act. GALAXY THEATRE 697 III. FINDINGS OF FACT A. Business of Respondent Respondent disputes the Board's assertion of jurisdiction in this case. The General Counsel counters that his business activities meet the Board's retail standard. The parties have stipulated that Respondent's annual inflow, direct and indirect, exceeds $3,000, leaving as the disposi- tive jurisdictional question whether Respondent's annual gross receipts equal $500,000 by any appropriate manner of reckoning. Respondent is the sole owner-operator of four adult movie houses and two adult bookstores in Denver, Colorado. The movie houses are the three in question -Galaxy Theatre, Hayloft Theatre, and Mim-Art Cinema -and the Empress Theatre. The Galaxy Theatre, always owned by him, opened for business in October 1971. The Hayloft and the Mini-Art were purchased, respectively, from Bo-Har, Inc., and Art 16, Inc., companion corpora- tions, on March 22, 1973. As developed later in this decision, Respondent for purposes of the Act is a successor of the selling entities regarding projectionist bargaining units at each theater. The Empress was acquired June 1, 1973. The bookstores are the Galaxy Bookstore, which is in the lobby of the Galaxy Theatre, and the Adam & Eve Bookstore. Respondent also is 50-percent owner of Empire Baths, Inc., which operates a steam, sauna, and swimming facility that opened for business in Denver in late July 1973. He plays only a minor role in the conduct of this enterprise, the responsibility for policy decisions, hiring and firing, and day-to-day operation resting primarily with the co- owner, Lin Harrington, and the hired manager of the facility. Books and records are maintained by Harrington, who has no part in the maintenance of books and records for Respondent's theaters and bookstores. Other recent activities of Respondent have been the production of films for exhibition at the Galaxy, and the publication of a magazine called Denver Swinger's Guide. Six films were produced in all: four 10-minute segments and one 1/2-hour movie in 1971; and one 1-hour feature-"Promiscuous Housewives"-in early 1972. None of these films has been sold or rented to other exhibitors. Denver Swinger's Guide consists mainly of advertising placed by people in quest of sexual adventure. Two editions have issued-the first, 2,000 copies, in December 1971; the second, 3,000 copies, in May 1972. Both sold for $3 a copy, virtually all sales being through Respondent's bookstores. Most of the advertising was without charge. The Board stated in Western Machine & Tool Company, 115 NLRB 978, 979. [T]he Board in applying its jurisdictional standards uniformly relies on the experience of an employer during the most recent calendar or fiscal year, or the 12-month period immediately preceding the hearing before the Board, where such experience is available. In calendar 1972, Respondent realized gross revenues from his arious business ventures of approximately $237,164 -far short of the $500,000 retail jurisdictional, mini- mum. In the 12-months before the month of trial-i.e., September 1972 through August 1973-he realized reve- nues from his wholly owned ventures of approximately $303,534-still far short. This latter figure includes $51,798 from the Hayloft Theatre and $41,969 from the Mini-Art Cinema after their acquisition by Respondent March 22, 1973, and $9,346 from the Empress Theatre after its acquisition June 1, 1973. Projecting the postsale revenues of the Hayloft, Mini- Art, and Empress over 12 months, the figure grows to about $426,859. And, retaining the Empress projection but discarding the Hayloft and Mini-Art projections , instead reaching back through September 1972, by virtue of Respondent's legal successorship, and incorporating their presale revenues of $65,628 and $69,631, respectively, the figure becomes approximately $441,565-still short.' Empire Baths, Inc., generated revenues of $10,683 in its first 9 weeks of operation before the trial. Projected over 52 weeks, the figure would be $61,724. That, added to the above $441,565, would break the jurisdictional barrier. I conclude, however, that it would be improper to treat Empire Baths, Inc., and Respondent's wholly owned activities as one for jurisdictional purposes in view of Respondent's role as little more than a stockholder in Empire Baths, Inc., and the total separation otherwise of that enterprise from those wholly owned by Respondent. E.g., Piedmont Wood Products Co., 156 NLRB 151; Justru Realty Corp., 156 NLRB 1. A further possibility remains. In calendar 1972-"the most recent calendar year," remembering Western Machine & Tool Company, supra-the Hayloft grossed $128,085 under Respondent's predecessor, and the Mini-Art $172,893, or $300,978 between them. That, coupled with Respondent's 1972 revenues of $237,164, comes to $538,142 -well over the jurisdictional minimum. It would seem at least as appropriate to combine revenues of successor and predecessors to achieve jurisdiction in this fashion as it is to hold a successor accountable in some circumstances for the unfair labor practices of a predecessor. See, e.g., Perma Vinyl Corporation, 164 NLRB 968. If the law were otherwise-that the successor need independently satisfy the jurisdictional minimums-the sale of a business sometimes would be accompanied by an untenable lapse in the coverage of the Act.2 I find, combining 1972 revenues of Respondent and his predecessors at the Hayloft and the Mini-Art, that he is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act; and, moreover, that he satisfies the Board's jurisdictional standard for retail enterpnst:s. i The record does not disclose presale figures for the Empress live, on-stage entertainment But a comparison of Mini-Art revenues for 2 Respondent makes the further argument that it would be improper to those 9 weeks with revenues for the same period in 1973, when there was no accord full face value to the 1972 revenues of the Mim-Art because, in the live entertainment, discloses a differential of only $20,130 That, subtracted first 9 weeks of that year, its business received unnatural stimulation from from $538,142, does not defeat jurisdiction 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Labor Organization Involved The Union is a labor organization within the meaning of Section 2(5) of the Act.3 C. The Alleged Unfair Labor Practices 1. The bargaining situation at the Galaxy Theatre As previously mentioned, Respondent opened the Galaxy Theatre in October 1971. Before the opemng-spe- cifically, on August 15, 1971, and before the hire of any projectionists-Respondent entered into a bargaining contract with the Union purporting to cover all Galaxy projectionists. The contract by its terms was to run through August 14, 1972, then renew automatically from year to year unless "at least thirty (30) days prior to the expiration date, either party shall give notice in writing, to the other of its desire to alter, amend or cancel said contract." It prescribed an hourly wage rate of $4, and was devoid of union-security and hiring hall provisions. The Galaxy had one projectionist until January 1, 1972, when a second was hired. Both were referred by the Union. In June 1972, coincident with the Galaxy's becoming a 24- hour-a-day operation, the projectionist complement grew to three or four. Despite the union contract, and apparent- ly without the Union's knowledge, the projectionist on the graveyard shift was paid $2.50 an hour. That person was not referred by the Union. The relationship between Respondent and the Union to the summer of 1972 generally was amicable, although Charles Weber, the Union's business agent, found it necessary at times to remind Baker that he was delinquent in remitting pension contributions and membership dues withheld from projectionists' wages. In July 1972, Weber and Baker met at Weber's behest to consider, among other things, this problem of delinquencies. Weber, early in the meeting, raised the additional matter that the contract soon would be up for renewal, and proposed that the wage rate be increased to $4.25, in keeping with the area practice. To Baker's demurrer that he could not afford such an increase, Weber relented, suggesting that the contract be renewed as was. Baker signified his agreement to that, but then stated that he had some promising and trusted employees in the Galaxy Bookstore, in the theater lobby, that he wished to double as projectionists to expand their experience and thus enhance their opportunities in his organization. Baker expressed the further wish that he be relieved from paying such projectionists contract scale. The Galaxy by now was using only one union-furnished projectionist, Richard Huhman,4 anyway, already double-functioning bookstore employees at a lesser wage the rest of the time. The meeting closed with an oral understanding that 3 Respondent's answer was amended during the trial to admit the Union's status as a labor organization 4 The transcript, referring to Huhman on pages 614, 619, 620, and 622, erroneously reads "Newman " It hereby is ordered corrected in that regard S Weber is credited over Baker that Baker agreed to continue using one union-furnished projectionist, and Baker is credited over Weber that, except for the union-furnished projectionist, Weber consented to Baker's paying any wage he chose . On the first point, Weber is credited because of the corroborating circumstance of Baker's having had a conversation with Baker need use only one union-furnished , contract-scale projectionist at the Galaxy, filling his remaining require- ments as he had proposed and at any wage rate he chose .5 A further aspect of the understanding was that Baker then pay to the Union lump sum amounts covering all arrearages in dues and pension payments, plus all dues and pension obligations for all Galaxy projectionists for the coming year, calculated on an hourly wage per projection- ist of $4. Baker accordingly tendered four checks to Weber-two covering the delinquencies in each category, two for the future. Huhman thereafter continued to receive $4 an hour, and did not double in the bookstore. Four other projectionists, who did double in the bookstore, received $2.50. Matters remained in this posture until about November 1, 1972, when Weber learned from Huhman that he had quit at the Galaxy. Weber telephoned Baker to discuss the Union's providing a replacement per their oral understand- ing. Baker asked that Weber refer one Marvin Jones. Weber did so, but Jones was not hired .6 Upon learning this from Jones, several days after Jones' referral, Weber again called Baker about making a referral . This time, Baker stated that he could not afford union scale and would be forced to close the Galaxy if required to pay it, was able to obtain adequate projectionists for $2.50 an hour, and generally would be better off without the Union. Weber replied that he would take the matter up with the Union's executive board, and that picketing might result. Baker answered that Weber should do what he had to do. Picketing did result, beginning about mid-November. In November, while Weber was checking the picket line, he and Baker again conversed. Baker asked that the monies advanced for union dues and pension contributions be refunded inasmuch as the Galaxy no longer was a union house. Weber refused, arguing that Respondent still was subject to the bargaining contract by virtue of its automatic renewal provisions. Baker disputed this, to which Weber countered that that was a question for the attorneys to decide. Except for the picketing, which continued at the Galaxy until about April 1, 1973, the Union never again communi- cated with Respondent about the Galaxy. Baker next communicated with the Union by letter dated May 9, 1973, giving notice "if such is required, of my desire to cancel the contract between the Union and myself with regard to the ... Galaxy Theater . . . . Any contract which exists between your union and the Galaxy Theater shall expire on August 14, 1973.1'7 Respondent has hired no union- furnished projectionists since Huhman quit. Baker testi- fied: "I didn't feel ... that I really could afford to pay union scale wages ... . Kirby Hairgrove in October in which he asked Hairgrove if Hairgrove thought the Union would picket if Respondent ceased using union- furnished projectionists entirely On the second point, Weber's testimony was vague and without consistency from one mention to the next, rendering it unconvincing 6 The record does not disclose the circumstances of Jones' not being hired Baker testified - "I don't know if the person (Jones ] showed up or not. But we failed to meet .. "Jones did not testify 7 This letter is set forth, infra. GALAXY THEATRE 2. Incidents involving Respondent and picketers at the Galaxy Several incidents occurred on the picket line at the Galaxy between Baker and picketers. None of the involved picketers was an employee of Baker when the incidents took place. All, however, were projectionists in the Denver area, and three-alleged disenmmatees Kirby Hairgrove, Richard Harmes, and William Ramsay-were employed at the Hayloft Theatre and/or the Mini-Art Cinema when Baker later acquired them as subsequently described. To itemize the incidents, taking the affected picketers alpha- betically. John Ackerman a. On about December 16, 1972, Baker accused Ackerman of blocking a doorway at the Galaxy and gave him a shove, prompting Ackerman to call the police. b. In March 1973, Baker photographed Ackerman as he picketed, then appeared to write down Ackerman's automobile license number. Baker admitted taking the picture, explaining that he suspected that Ackerman had thrown a bottle of acid through a window at the Galaxy and was seeking to establish his identity.8 Lynn Britten9 a. On or about December 13, 1972, Baker on two or three occasions pushed Britten and another picketer, Terry Gulley, about the sidewalk and into the street, once holding Britten by the throat, bent backwards over a car. Baker also called the two names, including "bastard" and the usual barracks room terms connotative of sundry sexual activities . Gulley called the police. Baker testified that Britten and Gulley were blocking a door, making it impossible for him to enter without pushing them apart. Britten conceded that he was reaching across the doorway, to get a cup of coffee from Gulley, when one of the attacks happened.10 b. On about February 1, 1973, Baker asked Britten if he could provide Baker with the names and addresses of members of the Union, saying that he would make it well worth Britten's while to get them.ii Britten suggested that Baker see union officials for that information, to which Baker stated that he found it impossible to work with Weber and that Weber and Union President John Rabe were taking kickbacks from theater owners. Hume Garrett a. In February 1973, Baker seized Garrett's picket sign, resting atop his car, and ran into the theater with it. a Ackerman is credited over Baker that Baker wrote down his license number, or at least went through the motions of writing it down, because of Ackerman's convincing demeanor on the witness stand, the plausibility of his testimony in view of the totality of Baker's conduct as found herein, and, as between the two, Baker's greater incentive to falsify 9 The transcript, referring to Britten on pages 598, 599, and 601, erroneously reads "Brighton " It hereby is ordered corrected in that regard. 10 Baker testified that he could not recall any "attack" other than the one at the doorway Britten is credited that other attacks occurred because his testimony comports with the totality of Baker's conduct as found herein, and because Baker's inability to recall is not tantamount to a denial. 699 b. In March 1973, Baker told Garrett that he had no business being alive and should stick his head down a toilet, and called him names such as "bastard," "son of a bitch," and one denotive of an incestuous relationship with a female parent. Kirby Hairgrove a. In November or December 1972, this exchange took place between Baker and Hairgrove: Baker: So they got you picketing, too, you are picketing too? Hairgrove: Yes Baker: If I had known you were this kind of person, I would have fired you long ago.I2 b. In February 1973, Baker shoved Hairgrove and ordered him not to walk on Baker's property. Richard Harmes In January 1973, Baker remarked to Harmes that someday he might be Harmes' boss, and Harmes might be out of a job. Thomas Peacock On or about March 2, 1973, Baker twisted Peacock's sandwich board picket sign so that the shoulder straps wrapped around his neck, and gave him a shove. 13 Baker also said, "We will fix you guys good, we will fix you real good," that Weber pocketed union pension momes, and alluded to the projectionists' homosexual inclinations. William Ramsay Baker said to Ramsay, in late 1972 or early 1973, that if he ever bought a theater that the pickets worked in, they would be without a job. Keith Stow a. On about January 18, 1973, Baker said to Stow, "You had to stoop that low, too, to come out here and walk the sidewalk." The two then chatted rather amiably for a while. Later that day, Baker-"a changed man altogether," to use Stow's phrase-returned and shoulder-shoved Stow across the sidewalk and into the street while saying, "Get out of here, you son of a bitch, get away from my building." Baker in addition called Stow varied names of the sort already referred to descriptive of sexual activities, ii Baker testified that he asked Britten only for the names of the previous night's pickets, attempting to identify the actor in the alleged acid-throwing incident Baker is not credited that his inquiry had so narrow a focus in view of the impression imparted by Britten on the witness stand as being both a sound observer and a truthful reporter 12 This presumably was a reference to Hairgrove's having worked at the Galaxy from its opening in 1971 until he quit in March 1972. is Baker conceded in his testimony that he "might havejust moved him [Peacock] over [B jut not in a very harsh way"; adding that he could not remember twisting the picket sign Peacock is credited , among other reasons, because of the absence of a true denial by Baker. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and suggested that the autoerotic proclivities of the projectionists interfered with their running of the projec- tors.14 b. On or about February 22, 1973, Baker said to Stow, "You son of a bitch, here you are back again." Baker returned a while later and, much as before, pushed Stow around, called him various of the obscenities mentioned above, and invited Stow to indulge him homosexually.15 3. The situations attendant Respondent's purchases of the Hayloft Theatre and the Mini-Art Cinema Baker learned on March 21, 1973, that the Hayloft Theatre and the Mini-Art Cinema were for sale. They, like the Galaxy, featured adult fare. He purchased both the following noon, and assumed control at 5 p.m., March 22. At the time of the transactions, the Union represented the projectionists at both in separate bargaining units, and was party to identical labor contracts with the sellers covering those employees. The contracts fixed the hourly wage at $4.25. Except for that and their effective dates-July 1, 1972, through June 30, 1973-the two contracts were nearly identical to the contract at the Galaxy. As at the Galaxy, the bargaining relationships at the Hayloft (then called the Art 16) and the Mini-Art had their inceptions in prehire grants of recognition some years before. The regular projectionists at the Hayloft when Baker took over were Douglas Calvird and William Ramsay; at the Mini-Art, George Cribari, Richard Harmes, and Paul Rabe.16 In addition, Kirby Hairgrove worked both theaters as a relief projectionist. All had obtained their jobs through the Union, all but Rabe had participated in picketing at the Galaxy, and all but Cribari are named in the amended complaint as having been discriminated against. Ramsay was on shift at the Hayloft and Cribari at the Mini-Art when Baker assumed control. Ramsay quit later that evening. Cribari completed his shift that evening and worked his scheduled shift at the Mini-Art the next day. He then was shifted to the Hayloft, where he worked another week or so before quitting. Other than Ramsay and Cribari, none of the projectionists employed by the sellers worked at the Hayloft or Mini-Art after Baker's takeover. Baker, in his testimony, denied that he dis- charged any of the incumbent projectionists. He further testified that, because of the rapidity with which the deal was closed after he learned that the theaters were for sale, he had no plan about projectionist staffing when he took over. To that he added, however, "[I ]t wasn't unreasonable for me to assume that there was going to be a lot of animosity [from the projectionists] when I acquired these two theaters." Except in the cases of Hairgrove and Rabe, described below, he did not explain why this was so. Baker abandoned contract scale for the projectionists shortly after his takeover, converting to a salary basis "roughly commensurate with the number of hours that they were working." Cribari, as is reported below, was 14 Baker testified that he told Stow to keep moving, and not stand in front of the door or advertising signs, implying that he did not physically move Stow Stow is credited that Baker aid physically move him because that is consistent with the totality of Baker's conduct as found herein, and because Stow was a highly believable witness reduced to the equivalent of $2.50 an hour, and two new projectionists, Sheryl Taylor and Henry Sadowski, received the equivalent of $3 an hour, plus overtime. The record otherwise fails clearly to set forth projectionist compensa- tion at the Hayloft and the Mini-Art under Baker. Business Agent Weber was told of Baker's purchases by Harmes on either March 22 or 23. Harmes reported that the projectionists had been ousted at both places. Acting on that information, the Union promptly established a picket line at the Mini-Art, which has been more or less continuous ever since. It also picketed the Hayloft, but only for a couple days in late March. Weber testified that this picketing was purely because of the situations at the Hayloft and the Mini-Art, and not in support of the dispute at the Galaxy. The picketing at the Galaxy ceased about a week after this picketing began. Weber made no effort to communicate with Baker after Baker's takeover, except by picketing . Baker's only communication with the Union since that time was the May 9 letter to Weber, partially quoted above with reference to the Galaxy. The letter in whole: Dear Mr. Weber: this letter is to give you notice, if such is required, of my desire to cancel the contract between the Union and myself with regard to the Mini-Art Theater, the Hayloft Theater and the Galaxy Theater. Any contract which exists between you Union and the Hayloft and Mini-Art Theaters shall expire on June 30, 1973. Any contract which exists between your Union and the Galaxy Theater shall expire on August 14, 1973. The Union involved in this alleged contract is the International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada. Very truly yours, s/ Martin J. Baker The circumstances of each of the six projectionists' cessation of employment at the Hayloft and the Mini-Art are as follows: William Ramsay Ramsay was the first projectionist to learn of Baker's acquisitions. He was on shift at the Hayloft, about 4:40 p.m., March 22, when Lin Harrington, the principal shareholder of the selling corporations, entered with Baker and Sheryl Taylor, an employee of Baker's. Harrington told Ramsay of the sales, and said all revenues after 5 p.m. were Baker's. Baker then told Ramsay that he wanted him to stay on at his present pay, $4.25 an hour. Baker stated that he was on his way to the Mini-Art to fire the projectionists there, adding that the other regular Hayloft 15 Baker testified that he could not recall this incident. Stow is credited for the reasons stated in the preceding footnote, and further because of the lack of an explicit denial by Baker is The Mini-Art, being a round-the-clock operation, required one more projectionist than the Hayloft, which closed from midnight to 8 a.m GALAXY THEATRE 701 projectionist, Calvird, also was to be fired. Baker explained that he was not going to pay Calvird $4.25 an hour.17 Later that night, on one of several return visits to the Hayloft, Baker told Ramsay that he could not be retained at his present wage; that he would keep him on at that level for a week, then a downward adjustment to somewhere between $1.75 and $2.50 an hour would have to be worked out. Ramsay, pointing to a union contract on the wall of the booth, responded that he would not work for less than the specified $4.25. Ramsay agreed to finish out the week, but later that night he and Baker got into an altercation and Ramsay promptly quit, necessitating an unscheduled closure of the theater until the next day. The details of the altercation are hazy on the record, but it apparently had nothing to do with the Union or terms of employment. Ramsay testified that the provocation was such that he would have quit regardless of his wage level or prospects with Baker. Douglas Calvird About midnight, March 22, Ramsay telephoned news of the Hayloft's sale to Calvird. Calvird consequently did not report for work the next morning per his usual schedule, instead calling Business Agent Weber for confirmation. Weber's information coincided with Calvird's. Implicit in their conversation was that Calvird no longer had a job at the Hayloft; Weber assured him that the Union could find him a new job. That afternoon, Calvird telephoned the Hayloft anonymously to ask what was showing, movie starting times, and admission fees, learning that nothing had changed in those respects. He did not know to whom he talked. He never again went to the Hayloft, and never discussed his job status with Baker after the changeover. Paul Rabe delivered Calvird's final check to him a few days later. George Cribari Cribari was on duty at the Mini-Art in the early evening of March 22 when Harrington, Baker, Sheryl Taylor, and Ed Sadowski, also an employee of Baker's, arrived. Harnngton reported the sale. Cribari volunteered that he "assumed" he was out of a job, and asked Harrington about severance pay. Harrington said that would be taken care of. Then, explaining that he was a student in acute need of a job, Cribari asked Baker if he could stay on. Baker replied that he really did not care for the idea; that he had his own people and wanted "a whole new crew." Baker specifically mentioned that he did not want two of the other Mini-Art projectionists, Hairgrove and Harmes, working for him, but did not give a reason why. Baker stated that if Cribari is Ramsay is credited over Baker's denial that he said he was going to fire the projectionists Not only was Ramsay an impressively conscientious witness, even to the serious detriment of his own self-interest, his version of Baker's stated intent tends to be corroborated by Baker's subsequent actions Perhaps a reason why Ramsay was to be exempted from Baker's resolve to replace the projectionists was that the two had been friends of some duration, stemming from the times Baker used to chat with Ramsay when Ramsay worked at the Cine 16 Theatre Moreover, it was Ramsay who informed Baker, on March 21, that the Hayloft and the Mini-Art were for sale did stay, his pay would be reduced to about $2.50 an hour. Baker asked if Cnban belonged to the Union, saying that he had had trouble with union help before and did not want that to happen again. Cribari answered that he used the Union as a means of obtaining jobs, but was not a member and had no particular plans to become one. It was left that Baker and Cnbari would think on the matter of Cnbari's continued employment overnight. Taylor and Sadowski stayed at the Mini-Art after the departure of Baker and Harrington, to be trained by Cribari in the operation of the projector.18 Baker instructed Cribari to let none of the former projectionists in the booth, should any come by. The next day, Cnban told Baker that he wanted to stay on, even at $2.50 an hour. As mentioned above, he worked that day at the Mini-Art, then shifted to the Hayloft, where he worked another week or so before quitting. The record is silent concerning his reasons for quitting. No contention is made that misconduct by Respondent was a factor. Richard Harmes While Baker and Harrington were at the Mini-Art discussing the sale with Cribari, Harrington telephoned the news to Harmes. Harrington shortly turned the telephone over to Baker, and Harmes asked him what he planned to do about projectionist staffing. Baker replied that he had "his own people." 19 Harmes then telephoned Paul Rabe, who had some administrative responsibilities at the Mini- Art and Hayloft besides being a projectionist at the Mim- Art.20 Rabe reported that he was having car trouble, so Harmes offered to go to the Mini-Art in his place to get the payroll checks for the Mini-Art and the Hayloft, it being the end of the regular pay period. Later that evening, Harmes went to the Mini-Art to get the checks, which were in the projection booth. The occupants of the booth, Cribari among them, being mindful of Baker's orders, at first would not let Harmes enter. They eventually relented, and Harmes obtained what he was seeking. On the way out, he ran into Baker in front of the theater. Baker asked what he was doing there. To Harmes' reply that he had come for the payroll checks, Baker commented that that was all Harmes or anyone else ever was going to get out of that theater.2i Already recited is the picket line incident between Baker and Harmes in January 1973 when Baker remarked that he might be Harmes' boss some day, and Harmes might be out of a job. Kirby Hairgrove Cnbari telephoned news of the sale to Hairgrove about 7 p.m., March 22, adding that the services of the former 18 Baker and Sadowski had previous projecting experience at the Galaxy Baker testified that the Mini-Art projector was unique, necessitating indoctrination even for experienced projectionists 19 Harmes is credited over Baker's denial that he talked to Harmes about projectionist staffing Harmes was a convincing witness generally , and his version finds support in similar statements made by Baker to others. 20 1 conclude , in disagreement with Respondent , that Rabe's responsibil- ities at this time did not remove him from employee status under the Act. 21 Baker testified that he could not recall this incident Harmes is credited in part because of the absence of an explicit denial 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD projectionists no longer would be needed. Hairgrove accordingly went to the Mini-Art about 9:30 p.m. to get some belongings. Upon his arrival, Baker asked him what he wanted . Hairgrove answered that he had come to get his personal effects . As Hairgrove left, moments later, Baker stated, "You better take a good look around because this will be the last time that you see this place." Baker, citing "bitter feelings" between himself and Hairgrove, testified that he "had no intentions [of firing Hairgrove ] because I had to expect" him to quit. When asked the basis of the animosity, Baker testified that Hairgrove is anti-Semitic .22 For about a month in late 1972, Baker and Hairgrove had a partnership arrangement of sorts in the operation of the Adam & Eve Bookstore; and, as already noted, Hairgrove was Baker's first projectionist at the Galaxy. Two picket line incidents between Baker and Hairgrove are chronicled above. Paul Rabe Rabe first learned of the sale when Harrington tele- phoned him the evening of March 22. Rabe went to the Mini-Art about noon, March 23, to obtain a clarification of his status. Baker was there, and said to him, "I told you I would fire you and all your buddies some day." 23 Baker continued that he was glad to be rid of union projectionists and would not hire any more because they are not good operators. Baker testified, much as he did regarding Hairgrove, that hard feelings between him and Rabe caused him to believe Rabe would quit, and that. he consequently had not perfected an intent to fire Rabe. Explaining, Baker testified that Rabe was resentful because he, too, had aspired to buy the Hayloft, but was unable to obtain financing. Addition- ally, Baker and Rabe had a verbal tiff in February 1972 when Rabe spurned Baker's request for revenue figures at the Hayloft and the Mini-Art, the result being that Baker forbade Rabe's being allowed in the projection booth at the Galaxy. In October 1972, during a conversation with Hairgrove, Baker stated that if he ever did buy the Hayloft and the Mini-Art, the first thing he would do would be to get rid of "that smuck" Rabe. Rabe is a son of the Union's president, John Rabe. 4. Incidents involving Respondent and picketers at the Hayloft and the Mini-Art While they picketed the Hayloft in March 1973, William Ramsay and John Slott were approached by Baker, who said, "They tell me that you like boys, is that true? Then you are in a good spot to pick them up." 24 And while Keith Stow was picketing the Mim-Art in June 1973, Baker berated him with a cornucopia of sex- related obscenities. 22 Leaving one to assume that Baker is Jewish 23 Baker testified that he did not recall saying this to Rabe Rabe is credited in part because of the absence of an explicit denial Baker never before had said anything of this sort to Rabe, leaving Rabe without a frame of reference. Baker presumably was alluding to the aforementioned remarks made to Ramsay and Harmes , while they picketed the Galaxy , to the effect, respectively, that if he ever bought the theaters where the pickets worked, they would be out of jobs; and that he might be Harmes ' boss some day and Harmes might be out of a job IV. LEGAL ANALYSIS A. The Bargaining Situation at the Galaxy The evidence establishes beyond doubt that the contract entered into between Respondent and the Union on August 15, 1971, covering the Galaxy projectionists, automatically renewed for another year in August 1972, subject only to the oral modification negotiated by Baker and Business Agent Weber in July 1972. That being so, and it further being evident that those projectionists became an appropriate unit within the meaning of Section 9(b) upon their number exceeding one in January 1972, it follows that Respondent violated Section 8(a)(5) and ( 1) when, in November 1972, he repudiated his bargaining relationship with the Union concerning them. True, the contract was of a prehire nature, and thus executed when the Union did not have majority support at the Galaxy. That is no defense, however, since the contract's validity was not challenged within the 6-month limitation period of Section 10(b). The controlling principle is stated in R. J. Smith Construction Co., 191 NLRB 693: [I ]n the normal case, an employer-respondent in an 8(a)(5) case may not go behind the 10(b) period to show that a contract, apparently regular and continuing on its face, was executed at a time when the union was not the majority representative . The reason for this rule is that a contract, regular on its face, carries with it an irrebuttable presumption-absent, perhaps, unusual circumstances-of continuing majority status of the union. Thus, since the contract standing alone carries with it a continued requirement of union recognition, to go behind the 10(b) period to show that when the contract was executed the union failed to represent a majority runs directly counter to the teachings of Bryan.25 The General Counsel contends that as an incident of Respondent's unlawful repudiation of the Union at the Galaxy, he additionally violated Section 8(aX5) by chang- ing projectionist wage rates and by failing to hire Marvin Jones upon his referral by the Union about November 1, 1972. Having credited Baker that Weber consented, at their July 1972 meeting, to Baker's setting wage rates as he chose for projectionists not furnished by the Union, and it further appearing that all wage changes occurred more than 6 months before the filing of the charge, I am constrained to disagree with the General Counsel on the wage issue for both substantive and Section 10(b) reasons. Regarding Jones' not being hired, Jones himself did not testify, and Baker's testimony was inconclusive. The record consequently supports no more than a suspicion that 24 The Hayloft caters to homosexual males. 25 Referring to Machinists Lodge 1424 [Bryan Mfg. Col v N.L.R.B., 362 U S 411 (1960), in which the Court observed at 429: "As expositor of the national interest, Congress, in the judgment that a six-month limitations period did 'not seem unreasonable,' . . . barred the Board from dealing with past conduct after that period had run , even at the expense of the vindication of statutory rights." See also, Barrington Plaza and Tragniew, Inc., 185 NLRB 962, 964. GALAXY THEATRE Respondent refused to hire him, leaving open the possibili- ty that he did not show up . A finding of violation requires more than that. B. The Situations Attendant Respondent 's Purchases of the Hayloft Theatre and the Mini-Art Cinema Whether Respondent violated Section 8(aX5) concerning the projectionist units at the Hayloft and the Mini-Art turns on whether, applying successorship principles, he inherited the sellers' bargaining relationships with the Union ; and, if so, he breached his resultant obligations to the Union. "[I ]n determining whether a purchaser is a successor for the purposes of Section 8(aX5)," to quote the Board in Galis Equipment Co., 194 NLRB 799, "the crucial inquiry is the continuity of the employing industry." Making this inquiry, the Board traditionally has considered such things as whether the purchaser (a) retained a substantial portion of the seller's unit employees and supervisors, working under substantially unchanged conditions , and (b) contin- ued to use the same physical plant, equipment, and processes, producing the same product or offering the same service. E.g., Border Steel Rolling Mills, 204 NLRB No. 89; Georgetown Stainless Mfg. Corp., 198 NLRB No. 41. It is apparent in the present case that the several criteria of successorship are sufficiently met at both the Hayloft and the Mini-Art, with one exception : carryover of the sellers' unit employees . Of the three projectionists at the Hayloft (including relief projectionist Hairgrove), only Ramsay remained after Baker's takeover, and he only until quitting later that evening . Of the four at the Mini-Art (including Hairgrove), only Cribari remained, and he only for another day until shifted to the Hayloft, where he stayed only another week. In the usual case, this lack of personnel carryover would preclude successorship findings in both units, and defeat the General Counsel's theory of 8(aX5) violation, regard- less of the satisfaction of the other criteria. For, as the Board stated in G. T. & E. Data Services Corp., 194 NLRB 719, 720: In defining and applying the "employing industry" concepts, the Board, with court approval, has always found that more significant weight should be attached to facts demonstrative of "the continued nature of the employment [of a particular group of employees involved] rather than the source of such employ- ment."26 The reason for this attachment of greater weight to personnel carryover is, of course, that without substantial carryover there is no basis for assuming continuation of the Union's majority status. There being substantial carryover, on the other hand, and the other criteria of successorship obtaining, "there is no reason to believe that the employees will change their attitudes [about union representation] merely because the identity of their employer has changed." 27 se The quotation within the quote is from N L.R.B. v. McFarland 306 F.2d 219, 220 (C.A. 10, 1962). 27 The William J Burns International Detective Agency, 182 NLRB 348. 703 The General Counsel contends, however, that this is not the usual case ; that the lack of carryover at both theaters flowed from Respondent's unlawfully discriminatory refusal to retain any of the projectionists except Cribari; and therefore that the requisite carryover existed in point of law. Whatever its application to the present case, the General Counsel's premise is sound; most assuredly, a purchaser cannot frustrate successorship by its own misconduct. As the Supreme Court observed in NLRB. v. Burns International Security Services, 406 U.S. 272, 279-280 (1972): It goes without saying, of course, that Burns was not entitled to upset what it should have accepted as an established union majority by . . . committing the unfair labor practice of which it was found guilty by the Board. The successorship issue narrows, then, to whether, but for misconduct by Respondent, there would have been sufficient projectionist carryover . I conclude that there would have been. It is plain, Baker's protestations notwithstanding, that he never intended to retain two of the three Hayloft projectionists, Ramsay excepted; and all four at the Mini- Art, later relenting on Cribari. The day of the transactions, he told Cribari he was going to have "a whole new crew"; Harmes, that he had "his own people"; and Ramsay, that he was going to fire all of the projectionists at both theaters but Ramsay himself. That Baker in fact denied retention to all but Cribari and Ramsay is evidenced, in addition to these expressidhs of intent, by his telling Harmes in front of the Mini-Art March 22, when Harmes went to get the paychecks, that that was all he or anyone else ever was going to get out of that theater; telling Hairgrove, that same night, when he went to the Mini-Art to get his things : "You better take a good look around because this will be the last time that you see this place"; and telling Paul Rabe, the next day: "I told you I would fire you and all your buddies some day." Thus, disregarding Cribari and Ramsay, all of the projectionists but Calvird in effect were told by Baker that they were going to be and/or had been fired. That Calvird spared himself so explicit a confrontation with Baker, given Baker's statement to Ramsay of an intent to "fire" Calvird and the surrounding circumstances generally, does not alter the jural reality of his having been denied retention as well. Cf., Mook Weiss Meat Packing Co., 160 NLRB 546, 550-551. It is equally plain that Baker's refusals to retain Calvird and Hairgrove at the Hayloft, and Harmes, Rabe, and Hairgrove at the Mini-Art were based in major part on union considerations. Baker was outraged by the picketing at the Galaxy, and all but Rabe had picketed there. Baker told Hairgrove, while Hairgrove picketed, referring to his earlier having worked at the Galaxy, "If I had known you were this kind of person, I would have fired you long ago"; and told Harmes that someday he might be Harmes' boss, and Harmes might be out of a job. Even more revealing, 349, quoting from N.LR.B. v. Albert Armato, 199 F.2d 800, 803 (C.A. 7, 1952). 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker told Ramsay, as Ramsay picketed the Galaxy, that if he ever bought a theater that the pickets worked in, they would be without a job. The case of Rabe is somewhat more difficult than the others, inasmuch as he did not picket the Galaxy and Baker harbored a strong dislike for him apparently unrelated to the Union. I conclude, however, that the refusal to retain Rabe also was discriminatorily motivated. Baker's statements to Rabe March 24-"I told you I would fire you and all your buddies some day," and that he was glad to be rid of union projectionists and would not hire anymore-betray a common, antiunion motivation for all. Beyond that he necessarily would have viewed the retention of Rabe, a son of the Union's president, as an impediment to his manifest resolve to operate without the Union. Apart from these indications of antiunion motivation behind the elimination of all but two of the incumbent projectionists, Baker only a few months before unlawfully had repudiated his bargaining relationship with the Union at the Galaxy to escape paying union scale. It figures that like thinking underlay his refusal to continue the use of the union-furnished projectionists at the Hayloft and the Mini- Art. That Cribari and Ramsay were retained does not invalidate this analysis. Baker relented on Cribari only after asking him about his status with the Union, explaining that he did not want a recurrence of previous union trouble; and being assured that Cribari viewed the Union as nothing more than a job-placement device. Ramsay's retention, as suggested before, perhaps was owing to his preexisting friendship with Baker and his having tipped Baker off that the Hayloft and the Mini-Art were for sale.28 I conclude, in sum, that Respondent denied retention to two of the three Hayloft projectionists-Calvird and Hairgrove-and to three of the four Mini-Art projection- ists-Harmes, Rabe, and Hairgrove-for union reasons, violating Section 8(a)(3) and (1). I further conclude that, but for this misconduct, there would have been sufficient projectionist carryover in both units to render Respondent a successor. I there:ore find that Respondent is a successor in point of law, obligated to recognize the Union's status as bargaining representative of the projectionists in both units.29 I further find that Respondent, by unilaterally revising pay levels and means of computing pay for projectionists at the two theaters, and otherwise by evincing a repudiation of the Union at both, violated Section 8(a)(5) and (1).° Yb Although I suspect that, after Ramsay disclosed to Baker the night of March 22 that he would not work for less than contract scale, Baker purposely engaged Ramsay in so disagreeable an altercation that Ramsay would see no choice but to quit , I cannot conclude that the record supports this suspicion to warrant a finding of constructive discharge . I therefore do not find merit in that portion of the complaint alleging Ramsay's unlawful discharge. ss 1 find projectionist units at the Hayloft and the Mini-Art to be appropriate within the meaning of Section 9(b). Counsel for the General Counsel contended at the trial that Respondent is under the further obligation to assume the predecessors ' contracts with the Union The Supreme Court invalidated that contention in N L. R B. v Burns Internation- al Security Services, 406 U.S. 272 (1972) 30 In reaching this result , I am not unmindful of the Supreme Court's observation ' in the Burns decision. at 406 U S. 294-295, that "a successor C. The Incidents Involving Respondent and Picketers Respondent on frequent occasion vilified and physically assaulted picketers at the Galaxy. He in addition took the photograph and appeared to record the license number of one picketer, asked another to furnish him the names and addresses of union members; and commented to two in effect that, if he ever became their employer, they would be out of jobs. Baker also vilified picketers on one occasion each at the Mini-Art and the Hayloft. As earlier men- tioned, none of the affected picketers was an employee of Baker's when these incidents occurred. Respondent attempted to justify some of the assaults by testifying that the picketers were blocking doorways or signs ; and the photography and the request for names under color of seeking to identify a person who allegedly had thrown an acid bomb through a window. The frequency and vigor with which Baker assaulted the picketers demonstrate that he had much more in mind than he professed, and that he went far beyond any requirement to clear doorways or restore visual access to signs. Nor am I impressed that he had a valid law enforcement design when he aimed a camera at a picketer, or when he asked for the members' names. There is no evidence how he proposed to use, or did use, these techniques to that end. Moreover, if the circumstances had suggested that a picketer truly had thrown an acid bomb, the Denver police surely would have been at Baker's disposal to undertake this sort of sleuthing. I conclude, in other words, that the overriding purpose of this conduct by Baker, singly and in the aggregate, was to discourage the picketers from their activity; and, perhaps incidentally, to inform his employees, present and prospec- tive, how he felt about such things. It is well established that physical and verbal assaults against picketers, even if they are not employees of the perpetrator, violate Section 8(a)(1) if occurring in such circumstances that the employees reasonably could be expected to learn of them. The theory is that this conduct necessarily interferes with, restrains, and coerces the employees by portraying what might befall them were they to support the union. E.g., H. R. McBride Construction Co., 122 NLRB 1634. Even where the element of foreseeable employee knowledge is missing, the Board will find aggravated physical and verbal conduct of the sort in question to violate Section 8(a)(1). It reasons that "the normal consequence of conduct such as that . . . is the abandon- employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor . " The Court continued that "there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms." It is fairly assumable in the present case that, but for Respondent's union animus, the latter situation would have obtained at the Hayloft and the Mini-Art. For that reason, and because a contrary result would reward Respondent's misconduct, I find the unilateral changes to have been unlawful . That the Union did not make a formal demand for recognition is no defense in view of the manifest futility in the circumstances of its so doing The Act, consistent with other areas of law, does not require futile undertakings . Roadway Express, Inc., 170 NLRB 1446, 1448 ; Old Town Shoe Co, 91 NLRB 240,242. GALAXY THEATRE 705 ment of orderly and peaceful procedures for the settlement of industrial disputes . . . . Such practices are destructive of the rights guaranteed employees in Section 7 of the Act, and, it is just such practices which the Act was designed to eliminate." Anchor Rome Mills, Inc., 86 NLRB 1120, 1121. See also, H. R. McBride Construction Co., supra. I conclude, therefore, even assuming the unassumable-that Respon- dent's employees could not have been expected to learn of them-that Respondent's several physical and verbal assaults on picketers, as found herein, violated Section 8(a)(1). Perhaps less amenable to the rationale of Anchor Rome Mills, Inc., supra, standing alone at least, are Baker's request that a nonemployee picketer furnish the names of union members, his implying to other nonemployee picketers that they would be withoutjobs if he ever became their employer, and his taking the picture and apparently recording the license number of yet another nonemployee picketer. Photography aimed even at employee picketers is not necessarily a violation. Stark Ceramics, Inc., 155 NLRB 1258, 1269. I conclude, however, in the overall context of Respondent's conduct toward picketers in this case and having in each instance discredited his stated justifications, that these activities likewise violated Section 8(a)(1) on the theory of Anchor Rome Mills, Inc. V. CONCLUSIONS OF LAW A. By interfering with, restraining, and coercing em- ployees, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. B. By unlawfully failing to retain Douglas Calvird and Kirby Hairgrove as projectionists at the Hayloft Theatre, and Richard Harmes, Paul Rabe , and Kirby Hairgrove as projectionists at the Mini-Art Cinema, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. C. By unlawfully repudiating his collective -bargaining relationship with the Union concerning the appropriate unit of projectionists at the Galaxy Theatre , as found herein, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. D. By unlawfully failing to recognize the Union's status as collective-bargaining representative of the projectionists in the appropriate units at the Hayloft Theatre and the Mini-Art Cinema, and by unilaterally revising pay levels and means of computing pay for projectionsts in both of those units, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. E. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. F. Respondent did not violate the Act in any other manner. IV. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practices found, and from in any other manner interfering with, restraining, coercing, and discrim- inating against his employees. Affirmatively, it is recommended that Respondent be ordered to restore the status quo ante by: A. Offering Douglas Calvird, Kirby Hairgrove, Rich- ard Harmes, and Paul Rabe immediate and full reinstate- ment to their former positions ; or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges; and making them whole for any loss of earnings and other benefits suffered because of Respondent's discriminatory failures to retain them . Their losses of earnings shall be computed as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and F. W. Woolworth Company, 90 NLRB 289. B. Bargaining upon request with the Union as the exclusive bargaining representative of all employees in the appropriate projectionist units at the Galaxy Theatre, Hayloft Theatre, and the Mini-Art Cinema concerning rates of pay, wages, hours, and other terms and conditions of employment ; and embodying any resulting agreements in signed documents. C. Making whole the employees in the appropriate projectionist unit at the Galaxy Theatre, with 6-percent interest, for any loss of pension and other benefits resulting from any failure by Respondent to pay same after its repudiation of the bargaining relationship concerning that unit; and continuing those benefits until his obligation is changed through collective bargaining, or until a lawful bargaining impasse is reached. D. Reestablishing the wage and benefit levels for the employees in the appropriate projectionist units at the Hayloft Theatre and the Mini-Art Cinema as they existed when Respondent acquired those theaters ; making those employees whole for any loss of earnings, pension contributions, and other benefits suffered because of Respondent's unilateral changes in those regards, with 6- percent interest; and continuing those levels until its obligation is chanted through collective bargaining, or until a lawful bargaining impasse is reached. [Recommended Order omitted from publication.)