Theatre Now, Inc.

THEATRE NOW, INC. 525 Theatre Now, Inc. and The Grease Company and Joseph F. Doucette, Sr. Case 31-CA-3825 June 13, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 30, 1973, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondents filed exceptions, a supporting brief, an answering brief to General Counsel's exceptions, and a motion to reopen the record.' 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, and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found that Doucette, Sr., was a supervisor and that he was discharged for participating in the Union's process- ing of an employee's grievance. The conclusion that Doucette, Sr., possessed supervisory authority was based on the finding that (a) he had authority effectively to recommend hiring, (b) he participated in the hiring of the local carpenters, and (c) he possessed the authority to direct the employees in the carpentry department. Although we accept the finding of the Administrative Law Judge that Doucette, Sr., was terminated for the participation in the grievance, we find that he was a rank-and-file employee at all times. With respect to the finding of the Administrative Law Judge that Doucette, Sr., had authority to effectively recommend hiring, we note that the hiring of the flyman is the only instance in which the recommendation of Doucette, Sr., played a role. Particularly noteworthy, however, is the fact that the man Doucette, Sr., successfully recommended for the position of flyman. was his son, Doucette, Jr. We attribute this isolated incident only to the Employer's willingness to permit Doucette, Sr., to name his son to assist him, not as an example of a supervisor's power of "effective recommendation." Moreover, it I Respondents' motion to reopen the record, in our opinion, raises no material or substantial issues relevant to the proceedings herein. According- ly, we hereby deny such motion. 2 In view of the finding that Doucette, Sr., was not a supervisor, Members Jenkins and Penello deem it unnecessary to consider the finding appears that the carpenter and his assistant (the flyman) function as a team and the Employer may have been willing to allow Doucette, Sr., to name his son so as to ensure harmony within the team. Secondly, with respect to the hiring of the local carpenters, we note that Doucette, Sr., performed only the mechanical task of submitting to the local union a card containing the number of employees needed to work the show and the number of employees traveling with the show. The local union then supplied the needed employees based on this information. We consider the participation by Doucette, Sr., in this hiring process to be so minimal and so devoid of independent judgment as to negate any conclusion that Doucette, Sr., exhibited supervi- sory authority by his role in obtaining additional employees from the local union. Thirdly, we find that the record does not support the finding by the Administrative Law Judge that Doucette, Sr., exercised supervisory authority in the direction of employees. Any direction or instruction by Doucette, Sr., is attributable essentially to his familiarity with the operation of the show. The job function of Doucette, Sr., was to adapt the set of the production to each theatre. This required him to explain to other employees how the stage should be set for this particular play, but did not require actual supervision or direction of stagehands as they performed their jobs in achieving this objective. Considering the foregoing together with the facts that there is no evidence that the employer or any employee or union representative considered or held out Doucette, Sr., to be a supervisor, and the employer conceded at the hearing that Doucette, Sr., did not exercise supervisory authority, we find that he was not a supervisor within the meaning of Section 2(11) of the Act. Accordingly, we find that the Respondent violated Section 8(a)(1) and (3) of the Act by terminating an employee, Doucette, Sr., for participating in a grievance.2 Since Doucette, Jr., was also discharged, apparently as part and parcel of the discharge of his father, we shall order his reinstatement. The termination of Doucette, Jr., was directly linked to the unlawful termination of Doucette, Sr., for participation in a protected activity. Accordingly, we find that Respondent violated Section 8(a)(1) and (3) of the Act by this action. Remedy Inasmuch as we agree with the Administrative Law and rationale of the Administrative Law Judge with regard to the violation of Sec. 8(a)(1) of the Act. Member Fanning would find, in any event, that both Doucette, Sr., and Doucette, Jr., should be reinstated for the reasons articulated by the Administrative Law Judge in her Decision. 211 NLRB No. 58 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Judge that Respondents violated the Act by termi- nating Joseph Doucette, Sr., and Joseph Doucette, Jr., we shall adopt as our remedy the remedy recommended by the Administrative Law Judge. However, since we do not find that Doucette, Sr., was a supervisor, we shall delete from our Order that part of the Administrative Law Judge's Order requiring Respondents to cease and desist from discharging or taking adverse action against the supervisor. AMENDED CONCLUSIONS OF LAW 1. Delete Conclusions of Law 5 and 10 and renumber accordingly. 2. Reword Conclusion of Law 6 to read: "By discharging Joseph F. Doucette, Sr., under circumstances constituting interference with and restraint and coercion of employees in the exercise of their statutory rights, Respondents have violated Section 8(a)(1) of the Act and have discriminated in regard to tenure of employment to discourage membership in a labor organization in violation of Section 8(a)(3)." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent, The Grease Company, Los Ange- les, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise taking adverse action against any employee, where such action interferes with, restrains, or coerces employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership in International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 381 of that organization, or any other labor organization, by discharge or any other discrimination in regard to hire or tenure of employment or any term or condition of employ- ment. (c) Stating the reasons for discharges which were violative of the Act, under circumstances where such statements are likely to be relayed to employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: Offer Joseph F. Doucette, Sr., and Joseph F. Doucette, Jr., reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, and make them whole for any loss of pay suffered by reason of their discharge in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." B. Respondent, Theatre Now, Inc., Los Angeles, California, its officers, agents, successors, and as- signs, shall: 1. In connection with the show "Grease," or any other show where Edward H. Davis is employed, cease and desist from: (a) Discharging or otherwise taking adverse action against any employee, where such action interferes with, restrains, or coerces employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership in International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 381 of that organization, or any other labor organization, by discharge or any other discrimination in regard to hire or tenure of employment or any term or condition of employ- ment. (c) Stating the reasons for discharges which were violative of the Act, under circumstances where such statements are likely to be relayed to employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: Make a written request to Respondent The Grease Company to offer Joseph F. Doucette, Sr., and Joseph F. Doucette, Jr., reinstatement to their former jobs; provide the Doucettes with a copy of that request; and make them whole for any loss of pay suffered by reason of their discharge in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." C. Respondent Theatre Now, Inc., and Respon- dent The Grease Company, Los Angeles, California, their officers, agents, successors, and assigns, shall: (a) 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 other records necessary to analyze the amount of backpay due under the terms of this Order. (b) Post at their offices and places of business, and in the theater or theaters where they, or either of them, are putting on the musical comedy "Grease," copies of the attached notice marked "Appendix." 3 Copies of said notice on forms provided by the 3 In the event that this Order is enforced by a Judgment of a United judgment of the United States Court of Appeals Enforcing an Order of the States Court of Appeals , the words in the notice reading "Posted by Order National Labor Relations Board." of the National Labor Relations Board" shall read "Posted Pursuant to a THEATRE NOW, INC. Regional Director for Region 31, after being duly signed by representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) 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. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law by firing employees Joseph F. Doucette, Sr., and Joseph F. Doucette, Jr., under circumstances which would lead employees to believe that they too would be discharged if they or their kin engaged in grievance or other union activity. We have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT fire any employee under circum- stances which would lead our employees to believe that they too will be discharged if they or their kin engage in grievance or other union or protected concerted activity. WE WILL NOT convey the message to employees that employees have been discharged for this reason. Theatre Now, Inc., will ask The Grease Company to reinstate, and The Grease Company will offer to reinstate, Joseph F. Doucette, Sr., and Joseph F. Doucette, Jr. WE WILL make Joseph F. Doucette, Sr., and Joseph F. Doucette, Jr., whole for loss of pay, with interest, owing to their discharge. Our employees are free to join or assist International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada and its Local 381, or any other union, including participation in grievance proceedings, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection. Our employees are free to refrain from any or all such activities except to the extent that their rights may be affected by an agreement requiring member- 527 ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of these rights. THE GREASE COMPANY (Employer) Dated By (Representative) (Title) THEATRE Now, INC. (Employer) 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding, heard at New York, New York, on September 19 and 20, 1973, pursuant to a charge filed on June 18, 1973, a complaint issued on July 26, 1973, an amended charge filed on August 1, 1973, and an amended complaint issued on August 6, 1973, presents the questions, inter alia, (a) whether Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, (herein called the Act) was violated by the discharge of Joseph F. Doucette, Sr. (herein Doucette or Doucette, Sr.) and Joseph F. Doucette, Jr. (herein Doucette, Jr.); and (b) whether Section 8(a)(1) of the Act was violated by statements allegedly made to Doucette about the reason for the discharges. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondents and counsel for the General Counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION The Grease Company (herein Respondent Grease) is a New York limited partnership engaged in the production of musical or legitimate theater shows for exhibition to the general public. Its annual gross revenues exceed $500,000, of which more than $50,000 is derived from productions outside the State of New York. I find that, as the answer to 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amended complaint admits, Respondent Grease is an employer engaged in commerce and in a business affecting commerce within the meaning of the Act ; that (as Respondents' counsel admitted at the hearing) Respondent Grease was an employer of the Doucettes; and that exercise of jurisdiction over its operations will effectuate the policies of the Act. Theatre Now, Inc. (herein Respondent Theatre), is engaged in the business of managing theatrical productions for its customers, including Respondent Grease, which customers are engaged in the production of musical or legitimate theater shows for exhibition to the general public. It annually derives revenues in excess of $50,000 from services performed outside the State of New York. I find that Respondent Theatre is engaged in commerce and in a business affecting commerce within the meaning of the Act. The amended complaint alleges that Respondents were a joint employer of the employees of Respondent Grease in its national touring company , which employees included the Doucettes . The answer to the amended complaint denies the joint employer allegations; the answer to the original complaint asserted , as did Respon- dents' counsel at the hearing, that for purposes of this proceeding Respondent Theatre acted solely as an agent of Respondent Grease . The issues so presented are resolved hereafter. The parties stipulated at the hearing , and I find, that International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (herein the Union) and Local 381 of that organization are both labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The relationship between Respondents Edward H . Davis is vice president of and one of a number of stockholders in Respondent Theatre, which pays a yearly salary. At a time not indicated in the record, Kenneth Waissman and Maxine Fox Waissman,t the producers of the musical comedy "Grease," approached Davis and (according to Davis) requested him to act as "their personal manager." Davis testified that he became "general manager of The Grease Company ." While he was acting in this capacity , Respondent Grease paid his salary to Respondent Theatre. By December 1972, "Grease" was being shown in New York City, and a road production was in rehearsal. Respondent Theatre was hired by Respondent Grease to act as its corporate general manager for both the New York and the road productions.2 i Kenneth Waissman and Maxine Fox Waissman are husband and wife. In the record and in this Decision, Mrs Waissman is referred to as Miss Fox. Her husband is herein referred to as Waissman , and the two of them together as the Waissmans . In addition to numerous limited partners, Respondent Grease has two general partners-Kenneth Waissman and Weissman & Fox, Inc. 2 The record fails to show whether any written contracts control the relationship between Respondent Grease or its producers on the one hand, and Davis or Respondent Theatre on the other. Nor does the record show either the amounts paid Respondent Theatre by Respondent Grease, or 2. The hiring of the Doucettes In December 1972, Doucette was working as carpenter on the show "Purlie," which was about to close . Having heard about the plans for a "Grease" road show, about December 10 or 11 Doucette applied to Davis for the carpenter's job on that show. The parties discussed the matter on two or three occasions prior to and including December 13, 1972. After the first meeting, Doucette went to see the show in New York, and then learned how to put the road show together by studying a set of scenery plans which he obtained from the shop where the scenery was built. Thereafter, Davis told Doucette that he was particularly concerned with holding down costs by "getting the show in" or "hung" (that is, getting the scenery installed in any theatre to which the road show moved) as quickly as possible, with a goal of 8 hours . Doucette replied that "if possible [he] would. [He] would need about three or four times to see what [he] could do." During their December 13 conference, Davis asked Doucette, ". . . can you get an assistant or do you want me to find one?" and, in addition, specified the weekly salaries to be paid the carpenter ($429) and his assistant, the flyman ($354). Doucette replied that he wanted his son (Joseph F. Doucette, Jr.) to be his assistant, and that both salaries offered were inadequate. Davis asked whether Doucette, Jr., had worked before . Doucette replied that his son had been his assistant on "Purlie." Davis said that he could not agree to pay Doucette, Jr., more than the other "assistants" (the assistant electrician and the assistant propman), with whom Davis had already made deals; and proposed that Davis obtain a different assistant who would work for $354. Doucette persisted that he wanted his son as his assistant, because "I have to work with the man, I didn't know who [Davis ) was going to get me," and wanted more money for both of them. Davis and Doucette eventually agreed that the Doucettes would work as carpenter and flyman, respectively, at the salaries offered by Davis, with the understanding that in 6 weeks Doucette, Sr., would receive a $50 raise and Doucette, Jr., an "automatic" $25 raise if by that time the show was being hung within 8 hours . Doucette, Jr., never interviewed for the job or spoke to Davis before getting it .3 3. The Doucettes' contracts of employment; the Extent of Davis's authority Doucette brought to the December 13 discussion two printed individual employment contract forms obtained at the office of Local 381, of which both Doucettes are members. Many of the blanks on these contracts were never filled in. Davis filled in the blanks specifying the salaries to be paid. Doucette's contract concludes with the Davis' salary from Respondent Theatre. 3 My findings in the foregoing paragraph are based on the testimony of Doucette, whose demeanor impressed me more favorably that Davis'; on the testimony of Davis except where inconsistent with Doucette 's; and, as to the sequence and context of the remarks made , on the probabilities of the situation . In connection with Doucette, Sr.'s role in the hiring of Doucette, Jr, I note that counsel for the General Counsel offered on the record to stipulate that Davis "gave Mr. Doucette the right to choose his flyman and he chose his son," and that Doucette testified that Davis gave him the right to hire his assistant, and that Doucette selected his son. THEATRE NOW, INC. 529 following language, with the blanks following "Party of the first part" filled in by Davis and those following "Party of the second part" filled in by Doucette: In witness whereof, This contract is made in triplicate and the parties have affixed their signatures this 13 day of Dec., 1972. Party of the first part The Grease Co. Per E. H. D. Permanent address 1564 B'way NYC Party of the second part Joseph F. Doucette Member of Local No. 381 Permanent address P.O. Box 48 Newton Junction, N. H. 03859 The address thus filled in by Davis is the address of Respondent Grease, not of Respondent Theatre. The corresponding portions of Doucette, Jr.'s contract, which his father executed on his behalf because Doucette , Jr., was out of the city, are the same in all significant respects except for the "second part's" signature. Both contracts begin with the following printed material: This Agreement, made this-day of-19-, a City-State, by- and between-(Name 'of Company),1 party of the first part, and-, member of Local No.-, International Alliance of Theatrical Stage Employees and Moving Picture Machine Oper-, ators of the United States and Canada, party of the pecond part. Witnesseth: The party of the first part agrees, To engage the party of the second part as-with- Company (name of attraction) ... . To the extent that the blanks in the foregoing were filled in at all, they were filled in by Doucette before Davis signed these contracts. In both contracts, the word "Grease" appears in the blank labelled "name of attraction." The blank prior to the words "party of the first part" is not filled in on Doucette's contract. However, the words "Theatre Now" appear in that blank on Doucette, Jr.'s contract. Davis testified that this entry "got by me. I just didn't notice it. I am usually very careful to make those changes because at the end of the show . . . when people apply for unemployment, they make the claim against Theatre Now and we have to write back and say no, the rightful company is the Grease Company, not Theatre Now." 4 On cross-examination, Davis testified that he did not have "sole authority to hire or fire anybody," that he "always discuss[ed] hirings with the producers of the 4 The form contracts state on their face , "This is the official and only contract recognized by the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada." In addition, the signatory employer undertakes to "fill any vacancy that may occur under this contract at once with a member in good standing" of that Union ; and the signatory employee undertakes to provide his services "subject, however, to" union rules and to abide by the employer's regulations governing rehearsals and performances "insofar as they do not conflict with" union 'bylaws. Further, both contracts provide, . should any dispute arise under this contract (as to matters other than claims for salaries due, or drunkenness, or dishonesty, or incompetence; the latter three of which, or any of them, shall be sufficient reason for the immediate cancellation of this contract) such dispute shall be adjusted by means of an arbitration board. The arbitrators shall be: one appointed by the International Theatrical Association ..., who shall be a member of the Association; one a member of the [Union], and the third, should his show," and that he did this with respect to Doucette's hiring. However, on direct examination, Davis testified that he had authority to hire Doucette. Moreover, although both "Grease" producers (the Waissmans) subsequently testified on Respondents' behalf, they were not specifically asked about the extent of Davis' authority to hire or fire the Doucettes without first checking with the Waissmans, or whether he had in fact consulted with them about the matter. Furthermore, Doucette credibly testified that Davis agreed to hire Doucette, Jr., during the same conversation when Davis signed Doucette, Jr.'s contract of employment. For these reasons, because Davis was directly impeached as to a critical part of related testimony (see, infra, sec. II, C, 1, a), and because I was not impressed by his demeanor, I discredit his testimony regarding the alleged limitations on his authority to hire or fire the Doucettes.5 4. The Doucettes' job responsibilities The road show opened in Boston on December 23, 1972. After the opening night, Doucette and Company Manager Donald Antonelli decided how many carpenters would be used for the run of the show. More specifically, they decided that two carpenters (the Doucettes) would travel with the show; that 12 more carpenters would be ordered from the local union in each city to hang and dismantle the scenery; and that three local carpenters would be used while the show was being performed. Laying to one side the matter discussed infra at fn. 32 and its referred-to text, this arrangement was subsequently approved by the union business agent. From time to time, the number of local carpenters to be hired would vary in accordance with local practice or the particular theater's union contract. In two cities (New Haven and Toronto), four rather than three local carpenters worked the show, the increase being determined by house conditions and a consultation between the stage manager, the local union business agent, and Doucette. As shown infra, sec. II, C, 1, a, the Union required Doucette to advise it in each city of the number of carpenters to be used in the show. The Doucettes acted as "Grease" carpenter and flyman, respectively, from their December 13, 1972, date of hire to their discharge on June 17, 1973, during which period the show played in 14 different cities. Doucette, Jr., testified that his father was the head of the carpentry department. Doucette, Sr., testified that it was he who decided "how I'm going to put the show into the theater. Every theater is different. It's up to me to decide where I can put the show appointment be necessary, someone mutually agreed upon by the other arbitrators." However, Respondents have at no time contended before me that I should defer to arbitration. Accordingly, I need not and do not consider whether these individual contracts of employment would call for deferral to arbitration, under the principles set forth in Collyer Insulated Wire, 192 NLRB 837, if such a contention had been timely raised . Nedco Construction Co., 206 NLRB No. 17. Furthermore, counsel for the General Counsel and counsel for Respondents stipulated that contractually the employer had the right to terminate without cause . Also, Respondents contend that incompe- tence played a part in the discharge of both Doucettes ; that dishonesty played a part in the discharge of Doucette, Sr.; and that both were terminated without cause. 5 N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 408 (1962); Bon Hennings Logging Co. v. N.L.R.B., 308 F.2d 548, 554 (C.A. 9, 1962). 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make it work. Some theaters may be small, I have to make the show tight." Shortly before the show was to move to another theater, Doucette would visit the new theater and make plans in his mind and on paper about how to hang the scenery. With the assistance of carpenters sent out from the local union in the area pursuant to an "advance call"-apparently made by Doucette, who (inferentially) decided on the number to be called-Dou- cette would then hang the "rigging" for the scenery. When the scenery arrived at the theater, it was unloaded by the Doucettes and by carpenters ordered from the local union in that city. Doucette testified that he was "a boss" over the local carpenters and "in charge" of them; that he told them how to take the scenery off the trucks and where to put it; that he was "responsible for [his] end of it, being sure that the show got up"; and that once the show was "operating fine, I just had to be sure that it kept going." Doucette, Jr., testified that his father had no power to fire anyone, but did not know whether any occasion for such action had ever arisen. In his capacity as flyman, Doucette, Jr., acted as his father's assistant. Because the Hyman is responsible for all scenery operated from the fly floor (a platform above the stage floor and out of sight of the audience), and because all the scenery in "Grease" was operated from the fly floor, Doucette, Jr., was responsible for seeing to it that the scenery was working at all times ; was properly set up, maintained, and taken down; and was brought in and taken out on time in accordance with the production stage manager's cues. While operating the show, Doucette, Jr., had two or three assistants (local men) on the fly floor. When Doucette, Jr., regarded an assistant as unsatisfacto- ry, he brought up the problem with his father and the house Hyman; then (failing solution) with the house carpenter and the stage manager ; and then, still failing solution, with the local union, which might "fire the man." Doucette, Jr., had no power to fire anyone. On one occasion he "had a situation where somebody was unsatisfactory but we couldn't get rid of him but I changed the situation so after that he became satisfactory." B. The Events Allegedly Leading up to the Doucettes' Discharge The Doucettes were discharged in Los Angeles, Califor- nia, on June 17, 1973. Counsel for the General Counsel contends that the significant events leading to their discharge occurred in connection with the processing of a grievance in Cincinnati, Ohio, between May 29 and June 2, 1973, relating to the discharge of sound man Bob Weeden. Respondents contend that the most significant event leading to their discharge was New York management's observation of a "Grease" performance in Toronto, Canada, on April 18, 1973, and that management reached the discharge decision by April 23, 1973, before the Weeden grievance arose. Respondents attribute the inter- val between the June discharges and the events which allegedly motivated them to the fact that on June 12, 1973, the "Grease" sets were hung in Los Angeles for an openend engagement during which a new carpenter and a new Hyman would be able to learn how to hang the show. The events material to the foregoing contentions regarding the motives for the discharges are summarized below. 1. The Doucettes' work performance The road show opened in Boston on December 23, moved to Philadelphia for an engagement beginning January 8, and then moved to New Haven for an engagement beginning January 22. The Waissmans saw the show in Boston and Philadelphia, but not in New Haven. From New Haven, the show moved to Baltimore for an engagement between January 29 and February 10. While the show was in Philadelphia, Waissman had told then Production Stage Manager Bill Leddich that the sight lines in the theater to be used in Baltimore were very poor, and every effort should be made to keep as much of the sight line as possible. Leddich assured him that every effort would be made. Prior to the opening night curtain in Baltimore, the Waissmans looked at the physical set. They thought it looked "generally fine." However, they went to the extreme sides of the audience side of the theater to check the sight lines and realized that the second level of the set, where a lot of action took place, was invisible from certain seats. At this time, Doucette was on stage. They asked him whether he could widen the gap between the black curtains hanging on the sides of the stage so as many people as possible could see the action on the second level. Doucette pulled them back and thereby enabled 50 to 100 more people to see the second level.6 The Waissmans thanked Doucette, did not reprove him, and did not mention the matter to Leddich. At the conclusion of the opening night performance in Baltimore, where the Waissmans were particularly anxious for a successful engagement because Baltimore is their hometown and the theater used is hard to fill, the Waissmans were "elated" because the show was what they wanted it to be. They congratulated everyone, including the crew, for what they did that night, addressing the company in large or small groups. Later that week, Doucette, Jr., received a $25-a-week raise. While the show was in Baltimore, Doucette decided that the set had to be changed so it could be hung in 1 day. After the show was hung in Baltimore, and with Davis' approval, Doucette and other carpenters cut 2 feet off the back end of the set. After leaving Baltimore, the show went to Pittsburgh, to Columbus, to Indianapolis, and then to Washington. In Washington, Doucette succeeded for the first time in hanging the set within 8 hours.? On March 5, the opening night in Washington, Davis told Doucette that he was "very happy ... I knew you could do it in the time we wanted, in one day. It was a great saving for the company." On this occasion, Doucette, Jr., received a $25 bonus and a promise of a similar bonus each time the show was hung in 8 hours-as it was during the rest of the Doucettes' employment. About March 26 or 27 (after the show had 6 However, owing to the physical limitations of both the theater and the this event occurred in March in Columbus, but gave an earlier date after set, a number of people were still unable to see the second level. examining a schedule showing that the Columbus run took place in r My finding as to the date and city is based upon Doucette's credited February. I believe Doucette , Jr.'s initial recollection of the date was more testimony, corroborated by Miss Fox. Doucette, Jr., initially testified that reliable. THEATRE NOW, INC. 531 moved from Washington to Cleveland), Doucette tele- phoned Davis, reminded him of their agreement regarding a $50 raise if within 6 weeks he hung the show in 1 day, and said that now he had hung the show in 1 day, he thought he was entitled to the raise . Davis agreed to the raise, which Doucette received in that week's paycheck. After the show left Baltimore, the Waissmans did not see it again until March 21 , when it was running in Washing- ton. There is no credible evidence that they had any complaints about the show there.8 The record fails to show whether the Waissmans saw the show in Cleveland, where it moved after leaving Washington. On Wednesday, April 18, Miss Fox, Production Supervi- sor Thomas C. Smith, and choreographer Patricia Birch came from New York to attend a matinee performance in Toronto, where the show had gone from Cleveland. Their visit was unannounced, but Company Manager Donald Antonelli made their hotel reservations and knew that they were coming. As to the condition of the show in Toronto, Smith credibly testified as follows:9 The show was "tired-look- ing" and "a little bit sluggish." The "performances were a little slow." The music was too slow in some places and too fast in others, so the choreography could not be done the way it was set. Some accessories which were supposed to be part of the costumes were not being worn (defects which were the responsibility of the wardrobe man and the production stage manager). Some of the performers were wearing the wrong hair styles (defects which were the 8 Miss Fox testified that Waissman complained to then Production Stage Manager Leddich that "the blacks had not been hung for masking" (that is, that the backstage area was inadequately concealed from the audience). However, Waissman was not asked about this incident, although according to his wife he was "very, very upset" about the matter. Davis testified that during the Washington run, one of the Waissmans (he did not remember which) complained to him that "certain pieces did not fly in or fly out as they previously had" and that "Certain masking and backing had not been there as it previously was in Boston ." Davis further testified that "the feeling was" that the changes would be undone with the next move (to Cleveland) if for financial reasons this was not done in Washington . However, neither of the Waissmans testified about any conversation with Davis about the Washington show at this time, or about any changes in flying pieces. Nor is there any evidence that any alleged changes were undone in either Washington or Cleveland . Accordingly, and in view of the witnesses' demeanor, I do not credit Miss Fox's testimony that in Washington, Waissman complained to Leddich about the masking, or Davis' testimony that in Washington one of the Waissmans complained to him about a failure to fly pieces and to use adequate masking. Doucette credibly testified without contradiction that in Washington one of the "hard legs" (wooden pieces of scenery) was left on the stage, instead of flying in and out, because the stage was too small to permit the flying operation, and that Frank Marino (who was taking over Leddich's job as production stage manager) asked about this. There is no evidence that any member of management reproved Doucette about the Washington show and, as noted , he received a $50 raise after the show went from Washington to Cleveland. 9 On the basis of the witnesses' demeanor, I credit Miss Fox's description of the defects in the show only to the extent that it was corroborated by Smith. In view of the statement by Respondents ' counsel that Miss Birch is an independent entrepreneur, I draw no inference from her failure to testify. 10 In addition, Smith testified that a particular panel (referred to in the record as "the Edsel panel "), which he believed important to the show's artistic effect, was not being used. Miss Fox testified that "there were panels not hung"; but the only unhung panel she specifically described was the Edsel panel. I discredit their testimony that a panel or panels were missing without proper authorization on the basis of their demeanor and the following facts : Smith did not specifically testify that he mentioned any missing panels to Doucette. Although the Doucettes (who testified prior to Smith and Miss Fox but were not called as rebuttal witnesses) were not responsibility of the hairdresser and the production stage manager). Some of the props, including the benches, were torn, badly patched, or inadequately maintained (defects which were the responsibility of the prop man and the production stage manager). In addition, some of the scene changes were slow; some of the scenery was not being adequately maintained; the masking was insufficient; and a crack which had developed in one of the panels during the Boston run had widened, probably as a result of repeated disassembly and assembly, and was now visible to the audience.10 The deficiencies described in this last sentence were under the jurisdiction of Doucette and the production stage manager. After the April 18 matinee performance, Smith and Miss Fox spoke to Antonelli and Marino about the poor appearance of the show.1" Smith admittedly discussed the painting of the scenery with Antonelli, who had had the authority to order it repainted. Doucette had not been present during the performance, and Miss Fox asked where he was. Antonelli and Marino told her that he had been in Detroit for a couple of days doing advance work, and that they thought he would return on Thursday, April 19.12 On April 18 or 19, Smith described to Marino all the defects in the show, including those within the jurisdiction of the wardrobe head, the head electrician, the head prop man, and the Doucettes. Smith made certain suggestions to Marino regarding the need for, and methods of, perform- ing prop maintenance and repair work outside of perform- ance hours. He also told Marino that some of the panels specifically asked about a missing panel or panels, Doucette, Sr. (a reliable witness in most respects) testified generally that with exceptions not material here, the entire set was used at all times . Further, Smith and the Waissmans testified, in effect, that Production Stage Manager Frank Marino (Doucette's immediate superior) was largely exonerated from blame regarding the missing panel or panels because Marino had not joined the show until the Washington run and told them that "He was told by Joe Doucette that that was the way he was given permission to hang it;" but neither of the Waissmans testified that any panel was missing from the Washington show, even though both of them saw it while both Marino and the original production stage manager (Leddich) were with the show. Further, it seems inherently unlikely that if a panel or panels had been unexplainedly omitted during all of the 19 previous performances in Toronto and part or all of the Washington run, not a single member of the entire road company would have drawn the matter to the attention of responsible management. Finally, although Frank Marino was still in the employ of Respondent Theatre and/or Respondent Grease at the time of the hearing , and although as to this and other matters discussed infra he possessed information highly material to the issues, he did not testify, nor was his absence explained. The same is true of Company Manager Antonelli, who (as will appear infra) likewise possessed information highly material to the issues . I infer that if Marino and Antonelli had testified their testimony would have been unfavorable to Respondents. N.LR.B. v. A. P. W. Products Co., 316 F.2d 899, 903-904 (C.A. 2); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Gyrodyne) v. N. L R. B., 459 F.2d 1329, 1335-1346 (C.A.D.C.). Because of the foregoing considerations and Doucette's demeanor, I credit his testimony that with exceptions not material here, he never had a conversation with Marino with respect to cutting some of the sets and scenery out of the show. 11 This finding is based on Smith's and Miss Fox's testimony, which I credit to this extent. However, for the reasons summarized supra at In. 10, and infra at In. 13, I do not credit their testimony that on this or a somewhat later occasion they complained to Marino about a missing Edsel panel or missing "pieces," and that Marino blamed Doucette. 12 My finding as to this conversation about Doucette is based on Miss Fox's testimony. Because the inquiry seems natural under the circum- stances, I credit her testimony that it was made, although Smith did not corroborate it. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were being dropped and raised too slowly (this being Marino's responsibility) and that additional masking should be hung-a matter under Doucette's jurisdiction. Smith told Marino that Smith and Miss Fox were going to discuss the cracked panel with General Manager Davis, because Davis (rather than Marino or Smith) would have to authorize its replacement.13 Marino told Smith and Miss Fox that he was having some trouble in getting along with Doucette.14 On Monday, April 16, Doucette had gone to Detroit (the location of the next run) to perform "advance work." He did not return until after the evening show on Wednesday, April 18.15 On Thursday, April 19, Antonelli telephoned Doucette at his Toronto hotel and told him to come to the theater. When Doucette arrived, Antonelli called him to the office alone, and told him that Miss Fox had said that the sets were dirty and should be fixed. Antonelli told Doucette to telephone Davis in New York and see what could be done about it. Doucette then telephoned Davis and told him the set should have been painted and touched up. Davis "gave the okay to do it. That's if that was what [Miss] Fox wanted, he wanted the sets in perfect condition." Thereafter Miss Fox told Doucette that the paint was coming off, that the set should have been painted and some seats should have been reupholstered. Doucette replied " ...we were going to do it, but we didn't have the money to do it in Detroit for the opening in LA." On April 18 or 19, Miss Fox and/or Davis authorized a "paint call" (the engagement of employees to repaint the set), although the work would have to be done on Good Friday and, therefore, at overtime rates. Doucette did not have the authority to issue a paint call, or otherwise spend money, without his superior's approval; but Marino and Antonelli did. Also on April 19, Smith asked Doucette about the absence of black masking. Doucette replied that "there was a problem in hanging it the way it had been hung in Boston." Smith replied that he was aware of the time problem but felt that the masking could have been hung by using particular techniques outlined by Smith. Smith also asked him to "find another way of hanging the palm trees." Smith did not mention the cracked panel to Doucette.16 The deficiencies described to Doucette during these 13 My findings in this paragraph up to this point are based on Smith's testimony, which I credit to this extent because of the indirect corroboration afforded by the credited testimony regarding the defects found . However, because of the uncontradicted testimony showing Marino 's expressions of surprise and regret at the Doucettes' discharge, Marino's unexplained failure to testify, and Smith's demeanor, I do not credit Smith's testimony that Marino told him that Doucette had given Marino the impression that it was all right not to use the black masking about whose absence Smith was complaining. 14 This finding is based on the testimony of Smith and Miss Fox, which I credit to a limited extent because of the indirect corroboration afforded by Doucette's uncontradicted testimony regarding Marino's postdischarge remarks to him ("We finally got where we could work together"). However, I conclude that Smith and Miss Fox (as well as Davis; see text reference for In. 30, infra) were somewhat overstating Marino's complaint Marino unexplainedly failed to testify, and the record is barren of evidence that management ever asked Doucette to be more cooperative with Marino Because Davis and the Waissmans planned by their own testimony to retain Doucette until the show had moved to Los Angeles, a date almost 2 months away, it seems to me that a strenuous complaint by Marino would have naturally led management to make such a request even accepting Respondents' contention that the decision to discharge the Doucettes was conversations were corrected by the time the show opened in Detroit, its next destination. Through Marino, Smith also gave general "notes" (inferentially, written warnings) to Doucette, Jr., about "some of the patterns that were too slow," in Toronto and, subsequently, in Detroit.17 Smith testified that in Detroit "It was better but not perfect." Miss Fox admitted that she had never told Doucette, Sr., that she was dissatisfied with his work. Waissman admitted that he had never told Doucette, Sr., that he was unhappy with the condition of the set. Davis admitted that he never told Doucette, Sr., that the Waissmans were dissatisfied with his work. Doucette testified that except for the April 19 conversations, while he was working with "Grease," management never told him that it was dissatisfied with his work, or warned or reprimanded him about it. Except to the extent that Doucette's testimony in this respect may be inconsistent with findings previously made, I credit such testimony. Smith, the Waissmans, and Davis testified about various conversations among them which allegedly occurred at various times after Smith and Miss Fox had seen the April 18 matinee performance in Toronto and allegedly led to a decision by the Waissmans on April 23 to discharge the Doucettes. These alleged conversations are discussed infra at sec. II, C, 1, a. 2. The Weeden grievance On or about Friday, May 25, when the show was about to leave Detroit, sound man Bob Weeden was given 2 weeks' termination notice for reasons immaterial here. On May 25, Weeden complained about this by telephone to Doucette, who was performing advance work in Cincinnati for the run to begin there on May 28. During this conversation, and during another conversation upon Doucette's May 26 return to Detroit, Doucette advised Weeden that if he thought his discharge was wrong he should talk to the union business agent. Weeden thereupon telephoned Detroit Business Agent Warren Wilson. Wilson told both Weeden and Doucette that the Union's New York business office is closed on Saturdays and he could do nothing, and advised Weeden to call Edward Vignale, made on April 23. IS This was Doucette's second visit to Detroit to perform advance work He was unable to perform any work during the first visit , because of an unscheduled rehearsal of the show then playing in the Detroit theater. On the basis of his demeanor and the testimony in this respect , I conclude that at least on the second occasion he spent somewhat more time in Detroit than was necessary to discharge his duties. However , Miss Fox's testimony shows that she was consciously exaggerating when allegedly telling Davis, Smith, and Waissman that Doucette had been absent for 4 days. 16 My findings as to Doucette's conversations with Antonelli, Davis, and Miss Fox are based on Doucette's credited testimony In view of Antonelli's unexplained failure to testify and the fact that Davis' denials of the telephone conversation were somewhat uncertain , I do not credit such denials. I discredit as improbable Miss Fox's testimony that she did not speak to Doucette at all on this occasion, particularly in view of her credited testimony that after seeing the April 18 matinee performance she asked where he was. My findings as to Doucette's conversation with Smith are based on Smith's credited testimony , not specifically denied by Doucette. 17 This finding is based upon Smith's credited testimony that he gave the notes to Marino, who told him that Marino had given the notes to Doucette, Jr. While Marino did not testify, Doucette, Jr., was not asked whether he received such notes or was ever reprimanded. THEATRE NOW, INC. the Union's Cincinnati business representative, when Weeden reached that city. On Tuesday morning, May 29, after the show had been hung in Cincinnati, Doucette telephoned Vignale and asked him to come to the theater to talk to Weeden. Vignale agreed to come down before the show began that evening, and asked Doucette to arrange a conference between Vignale, Antonelli, and Marino. Doucette thereu- pon made such arrangements , advising Marino that Weeden wanted to know why he had been fired. When Vignale arrived at the theater, he conferred with Weeden about the matter. Thereafter, Doucette introduced Vignale to Marino, Antonelli proposed that the conference be held in his office. At this point, Vignale asked Doucette to sit in on the conference.18 Accordingly, Doucette joined the group. Marino asked why Doucette had to be there; Doucette replied that he was brought in with Vignale to sit and listen, just as Antonelli was there to sit and listen. Vignale asked why management wanted to fire Weeden. Marino replied that Weeden was incompetent, that "the sound was not up to par in Detroit," and that "I don't want him any more. I just want him to go, and that's it." Doucette asked Marino to give a more specific reason, but Marino refused. This was the only remark made by Doucette during the conference. Vignale said that he would have to talk to his office about the matter, and Antonelli said that he would have to talk to Davis "to find out if it would be okay to terminate." The meeting then broke up. That same day, May 29, Antonelli advised Davis by telephone that various named persons, including Doucette, had met at the theater to discuss Weeden's discharge. Davis asked Antonelli why Doucette was present, and Antonelli replied that he did not know. Later that day or on the morning of May 30, Davis telephoned Doucette and asked why he was "getting involved in this." Doucette replied that he had only advised Weeden of his rights, and that Weeden was entitled to this information. Davis said, "... okay, you advised the man of his rights. Now let's let them take care of it." After consulting by telephone with Union President Walter Diehl in New York, Vignale came back to the theater on the afternoon of May 30 for a further conference with management. The same four people met again, while the show was in progress. Vignale said that the Union could not get Weeden's job back, but the notice.had to be given out on Sunday, June 3, because this was the end of a week; that Weeden was entitled to be paid through the Denver show, which wag to terminate on June 10; and that he was entitled to I week's vacation pay. Marino said that he did not know anything about the vacation. Marino replied, "I just spoke to Mr. Diehl and that's the way it is." Marino said, " . . . we don't need [Weeden] for Denver, he's done here as of Saturday night." Vignale replied that as long as Weeden received his pay and his vacation this was "fine" with him. Management agreed to this arrangement. Doucette was present during 18 Vignale testified that he extended this invitation because " ... the carpenter is like the ex officio head of the crew, like the steward of the crew, if there's problems. Each department has their department head, but if there's any particular department with respect to talking to management, 533 this conference, but said nothing. Because Weeden was performing his professional duties while the conference was in progress, Vignale waited until the show was over and then reported to him what had happened. Thereafter, Weeden told Vignale that Antonelli had said Weeden had to go on to Denver and work out the engagement there. On June 1, Vignale came back to the theater again. Vignale asked Doucette to accompany him in the meeting with Antonelli and Marino. Doucette replied that he did not want to go in because he was getting too deeply involved and was afraid he would be fired. Doucette added, "After we go into LA, they don't need me, they are going to have a run there." Vignale remarked that Doucette was "kidding," and insisted that he attend the meeting. This meeting was attended by Vignale, Doucette, Marino, Antonelli, and (perhaps) Weeden. Vignale asked why he had not been told previously that Weeden would have to work in Denver. Marino replied, "I just got a hold of my New York office and the man has to work in Denver." Vignale replied that he guessed Weeden would have to work in Denver as long as he was being paid for it. Weeden did not leave the show until the end of the Denver run, at which point he was replaced by the original sound man who had set the show up in New York. When Weeden was paid off he received 1 week's vacation pay. Davis agreed to this payment in order to allay the Union's suspicions, conveyed to him in New York, that the selection of Weeden's discharge date had been affected by a desire to prevent him from accumulating enough service to receive vacation pay in accordance with a recent agreement with the Union. 3. The Doucettes' discharge Davis testified that while the show was in Denver (between June 5 and 10), "I made my telephone call . . . to find out the availability" of a new carpenter. Davis made this phone call some 6 weeks after the late April meetings during which management allegedly decided to discharge the Doucettes, and from 4 to 9 days after the last Weeden grievance meeting. After the opening night in Los Angeles, on June 12, the Waissmans told either Doucette alone, or a group of touring company members including Doucette, that the show looked "beautiful" or "wonderful." On Sunday, June 17, the first Sunday after the Los Angeles show was hung, Antonelli called Doucette, Sr., into Antonelli's office backstage, closed the door, sat down, and said, "I got to let you and your son go." Doucette said, "You got to be kidding." Antonelli said, "No. I got to do the dirty work. I got to pay you off and your son off." Doucette asked for the reason. Antonelli said, "I don't know. I don't have a reason. I was told to pay you off, to terminate you and your son." Doucette asked, "Why are you terminating my son?" Antonelli replied, "Because he is your son." Antonelli gave Doucette the Doucettes' paychecks, both of which (as required by the Doucettes' employment con- talking to the Union, getting back and forth, he had a responsibility, he is sort of the steward of the crew in name like and I figured that Joe had called me about Mr. Weeden and I know Joe over a period of years." 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracts) included 2 weeks' pay in lieu of notice, and said, "I'm sorry. There's nothing I can do with this. It's out of my hand, it's coming from Mr. Davis." Doucette asked if it would be all right to call Davis in the morning.19 Antonelli replied, "I wish you would call Mr. Davis and he will tell you the reason." Doucette, Sr., then left Antonelli's office and told Doucette, Jr. (who was then performing his professional duties) that they had been fired and paid off, adding that he "really didn't quite believe it." At the end of the show, Antonelli approached Doucette, Jr., and said, "I'm sorry for what has happened. I am going to miss you and your father." 20 On the following day, June 18, Doucette telephoned Davis for an explanation of the discharge action. What Davis said in reply is the subject of conflicting evidence which is discussed hereafter. On June 19, when the Doucettes returned to the Los Angeles theater to retrieve some personal belongings, Marino approached Doucette, Sr., and asked why Dou- cette, Jr., was so "mad" at and "bitter" toward Marino. Doucette, Sr., replied that Marino must have had some- thing to do with the discharges. Marino said, "I had nothing to do with it. I just heard about it Sunday afternoon. I was just as surprised as you were. We finally got where we could work together. I just don't believe it." 21 As required by union rules, the individual hired as the new carpenter was paid as such from the time the Doucettes were terminated , although he was unable to join the show for 2 or 3 weeks and the job was actually performed by a local carpenter in the meanwhile. The new carpenter had worked in "bus and truck shows" (smaller versions of large shows), with Davis as general manager, for about 5 years. Davis testified that he had given the Doucettes 2 weeks' pay in lieu of notice (totalling about $1,700) because he feared sabotage if they worked out their notice. The first charge herein was received by Respondent Theatre about June 20 or 22. By letter dated June 26, 1973, addressed to the Board field attorney assigned to the case, Respondents' attorney stated, inter alia: The two (2) complaining employees were hired for the Touring Company, I believe in Cincinnati, Ohio and toured with the company pursuant to their written contract with the Producer. The employees were discharged without cause in California, were paid two (2) weeks salary and furnished transportation as per their contracts. 11 In response to your oral inquiry, we must emphati- cally state that these two employees were dismissed without cause. As stated to you on the telephone, the employer did have suspicion of wrong doing on the part of each employee, but there is absolutely no credible evidence which can be offered in support of 19 The Doucettes were discharged about 10 p.m. Los Angeles time-that is, about I a.m. New York time. 20 My findings in the foregoing paragraph are based on the Doucettes' undenied and credited testimony. Antonelli unexplainedly failed to testify. Davis testified that Antonelli had known "for some time" that the Doucettes would be terminated on June 17, but could not recall when Davis this suspicion. The employer and its agents categorical- ly and affirmatively stated that these employees were not discharged "because of their membership and activities" in any union. All of the officers of Waissman & Fox, Inc., Kenneth Waissman and Edward H. Davis, are present- ly in London, England and will not return until after July 9th. On behalf of the employer, we agree to submit any or all of these persons having knowledge of the facts for your inquiry here in New York after their return. Respondents' attorney, who signed this letter and whose office is in New York, testified that when the charge was filed, the Waissmans and Davis were in England ; and that when he wrote the letter, "I knew none of the facts and none of the particulars with respect to the charge. I did know that Mr. Doucette had been discharged. I knew he had been discharged pursuant to the terms of a written agreement which authorized his discharge without cause." Counsel did not state the source of the information on which he based this letter.22 C. Analysis and Conclusions 1. Whether unfair labor practices have been shown a. The reasons for the Doucettes ' discharge Doucette testified that when he called Davis on June 18 and asked why he and his son had been discharged, Davis replied that he "was mad at [Doucette] for bringing the IA representative into Cincinnati, that was causing [Davis] troubles . . . he said [Doucette] should have minded [his] own business and [he] should never have got into that part of it." According to Doucette, he then asked, "Why is my son going? He had nothing to do with it. He never attended none of the meetings," and Davis replied, "Because he is your son . . . I was going to fire you three weeks prior, I was going to fire you in Cincinnati, but I needed you for the opening in LA, but now I don't need you." In view of the evidence regarding Doucette's participation in the processing of Weeden's grievance, this statement (if Davis in fact really made it) renders almost unassailable the contention of counsel for the General Counsel that Doucette, Sr., was discharged because Davis resented the help Doucette, Sr., provided the Union and Weeden in support of Weeden's grievance, and that Doucette, Jr., was discharged because of his kinship to Doucette, Sr. Davis, on the other hand, testified that during this conversation Doucette, Sr., asked why he had been given his notice and stated that "this was unexpected and I don't understand," told him this. 21 My findings in the foregoing paragraph are based on Doucette's undenied and credited testimony. Marino unexplamedly failed to testify. 22 There is no evidence that Antonelli or Manno, neither of whom testified, was abroad or otherwise unavailable during this period. Smith returned to New York from England 3 days before counsel wrote this letter THEATRE NOW, INC. 535 to which Davis replied that "the producers have not been happy' for- a `long tin .1,123 It is apparent that this alleged statement is inconsistent with the General Counsel's contention regarding the motive for Doucette Sr.'s dis- charge, but furnishes some support for Respondents' principal contention that the Waissmans decided to discharge Doucette, Sr., because they were dissatisfied with his work 24 Accordingly, highly relevant to resolving this critical clash in the testimony is Respondents ' evidence about who decided on the discharges, when the discharge decision was reached, and why it was reached. Upon analyzing such evidence, and because Doucette, Sr.'s demeanor on the witness stand impressed me much more favorably than Davis', I credit Doucette's version of the conversation.25 I reach this conclusion notwithstanding my further finding that the Waissmans were seriously concerned (financially, artistically, and emotionally) about the condition of the Toronto show and were annoyed at Doucette's coincidental absence; that Miss Fox conveyed this concern to Waissman and both of them to Davis; and that this concern included (although it extended far beyond) deficiencies within Doucette's jurisdiction. Thus, Davis' version of the June 18 interview represents that the decision to discharge Doucette, Sr., was made by the Waissmans ; and Respondents' witnesses (Davis, the Waissmans, and to some extent Smith) testified that the Waissmans made this decision notwithstanding Davis' advice to the contrary. Further, those witnesses testified that this decision was finalized during a series of conversations which allegedly occurred between April 18 (when the show was in Toronto) and April 23 (the opening night in Detroit, but, by the time the show reached Detroit, the participants in these conversations were all in New York). Yet, Davis' prehearing affidavit stated, inter alia: I made the decision to discharge Joseph F. Doucette, Jr. and Joseph F. Doucette. In mid-May, I came to the conclusion that it would be to the best interests of the Grease Company to terminate the employment of both Doucettes. I, at this time, discussed this conclusion with [the Waissmans ] and the three of us agreed to terminate their employment as soon as replacements could be found and at a time that the Company would not suffer, namely after the Los Angeles opening. (In mid-May the road show was in Detroit, Michigan.) 26 Moreover, the reasons tendered by the Waissmans for their alleged decision to discharge Doucette lack plausibili- ty in view of the retention of all other members of the road company, although the credited testimony of Production Director Smith (called by Respondents) establishes that Production Stage Manager Marino and the other depart- ment heads were at least as blameworthy as Doucette for the deficiencies in the Toronto show. The genuineness of these reasons is further drawn into question by the uncontradicted testimony that Company Manager Anto- nelli told Doucette that he did not know why Doucette was being terminated and Production Stage Manager Marino told Doucette that he was surprised by the discharges, although Smith and Miss Fox admitted that they had spoken to both men about the deficiencies in the Toronto show-in considerable detail to Marino, and including a discussion with Antonelli about the painting of the scenery. Further, the testimony of Respondents' witnesses leaves Doucette, Jr.'s discharge somewhat in the air. Davis testified that he did not recall discussing Doucette, Jr., during the June 18 conversation with Doucette, Sr., although the circumstances render highly probable, to say the least, Doucette, Sr.'s testimony that he asked about the matter. Furthermore, Waissman was the only witness called by Respondent who testified that Doucette, Jr., was even mentioned during the April 23 conference, and Waissman's memory was "very cloudy" about whether a decision was reached that day to terminate the son as well. Moreover, Waissman's testimony is confused if not internally inconsistent, and is also inconsistent with certain parts of Smith's testimony, regarding Doucette, Jr.'s alleged responsibility for the slowness of the flies, with virtually an eventual admission in the testimony of both witnesses that the production stage manager was the one really at fault. Finally, Davis' admission that his phone call to obtain a new carpenter was made on June 5 or later is difficult to reconcile with the contention that the discharge decision was made as early as April 23, particularly in view of the scarcity of competent road show carpenters which required Davis to accept a carpenter with "bus and truck" experience only; 27 but creates a logical time sequence 23 Davis so testified on direct examination . On cross-examination, he testified that he had never told Doucette that the producers were dissatisfied with his work ; and that ,if' Davis gave Doucette any reason for his termination, " ... it was a phrase such as general dissatisfaction." 24 Respondents' explanations for the discharge of Doucette, Jr., are discussed infra. 25 1 note that Doucette, Sr.'s testimony that Davis tendered kinship as the reason for Doucette, Jr.'s discharge is to some extent corroborated by the uncontradicted evidence that Antonelli had previously given Doucette, Sr., a like explanation. 26 When this portion of Davis' affidavit was drawn to his attention at the hearing, he testified, inter alia, that the termination decision was made in May. He admitted that he "must have" told the Board agent that "I made" the decision, but added, . in Toronto, the week before this, Mr. Waissman and Miss Fox-decided to fire Mr . Doucette and I prevailed upon them to wait so we could discuss it further So, I made my own decision at that point in Detroit that their wishes were going to prevail." He tendered, as an attempted explanation of the "mid-May" date in the affidavit, that this was a recollection of when the show was in Detroit, which followed Toronto; but he offered no explanation of why he deemed the Detroit location important when the alleged decision was made by management ,personnel while they were in Cincinnati and (on the date of the Detroit opening) in New York. As an attempted explanation of his statement that "I" decided on the discharges, he testified that he "had a personal dissatisfaction from the very beginning But I overlooked it constantly because I felt that I had no way-the job was getting done." Davis conceded that he gave the statement in the presence of Respondents' counsel, and that both read it before Davis signed it. I am not satisfied with his purported explanation for the inconsistencies between his sworn testimony and his sworn statement. There are certain seeming additional inconsistencies between Davis' affidavit and portions of his testimony regarding his hiring authority and his June 18 conversation with Doucette about the reasons for his discharge. Because Davis was not asked about these possible discrepancies, I do not rely thereon even though counsel for the General Counsel offered these portions of his affidavit into evidence at the request of Respondents' counsel. III A Wigmore on Evidence §§ 1025-29, pp 1020-32 (Chadbourn rev. 1970). 27 During Doucette's April 19 conversation with Miss Fox about the condition of the Toronto show, she remarked that "this was a road show, (Continued) 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assuming (as contended by counsel for the General Counsel) that the discharge decision was motivated by Doucette's participation in the processing of the Weeden grievance over a period ending Friday, June 1. In short, in view of the foregoing considerations, the witnesses' demeanor, and the record as a whole, I do not credit Davis' version of his June 18 conversation with Doucette or the following related testimony: Miss Fox's testimony that on April 18 she told Waissman that she could not obtain a definite answer as to when Doucette was expected back 28 and told Davis there were "torn panels" and "panels . . . that [were] not hung" (supra, fn. 10); Waissman's testimony that on April 18 Miss Fox told him that "there are things that weren't hung" (supra, fn. 10) (specifically mentioning the Edsel panel, although Miss Fox did not specifically testify that she then mentioned that panel to Waissman); Davis' testimony that on April 18 Miss Fox asked him when Doucette was coming back,29 that between April 18 and 23 Marino told him that Marino felt he was "fighting" Doucette all the time (see, supra, fn. 14), and that after telling Doucette on May 29 or the morning of May 30 not to get further involved in the Weeden grievance he never learned about Doucette's subsequent participation therein; and the testimony by the Waissmans and Davis that on April 23 they agreed that Doucette, Sr., (and-according to Waissman alone-per- haps Doucette, Jr., as well) would be terminated after the show reached Los Angeles and Davis was told to find a new carpenter.30 I also discredit Waissman's testimony that on May 17 he told Marino that "we had already decided after that Toronto incident that [Doucette] was going to be replaced," and Smith's testimony that on May 23 or 24 Marino relayed this alleged conversation to him. Waissman's and Smith's testimony in this respect was not corroborated by Marino (who unexplainedly failed to testify) and is inconsistent with the uncontradicted testimo- ny that on June 19 he told Doucette that the discharges were a "surprise" and he had not learned about them until June 17, the day they occurred. I need not and do not determine whether the fabrications of Respondents' witnesses consisted of the testimony that the Waissmans wanted to discharge Doucette, or of the testimony that Davis was unsuccessful in his admitted efforts to induce them not to take such action. My conclusion that the Doucettes were discharged for the reasons tendered in Doucette's version of Davis' June 18 remarks is further supported by the action of Respon- dents' counsel in asserting, successively, that the Doucettes were discharged "without cause"; that they were dis- charged on "suspicion of wrong doing on the part of each employee, but there is absolutely no credible evidence which can be offered in support of this suspicion"; 31 that she didn't want it to be run like a bus and truck show ." I infer that the standard of work expected from the carpenter on the latter type of show is lower than from the carpenter on a road show. 78 Waissman testified, "She said they expect him back tomorrow." 79 This testimony was not corroborated by Miss Fox, who already knew the answer (supra, In. 28) In any event, I see no reason why she would expect Davis to know. 30 The Waissmans and Smith testified that no discharge decision was made before Smith left the conference , but Davis testified that the decision was made in Smith's presence. 3i Because these representations were made in a letter to the Regional Doucette, Sr., was discharged because of his entries on the so-called "yellow cards" used by the Union to assure that the local union had proper notice of the need for local stagehands for the show and that the show used what the Union regarded as a sufficiently large crew (br., p. 3); and that Doucette, Jr., was discharged in order to enable the new carpenter to select his own flyman (br., pp. 10-11). Neither Miss Fox, nor Waissman, nor Davis testified that the discharge decisions were in any way so motivated. Indeed, both Davis and Antonelli knew about Doucette's questioned "yellow card" practice before he began to follow it; Doucette's uncontradicted and credible testimo- ny establishes that management never complained to him about it; Davis did not learn of the Union's objections to this practice until after the alleged April 23 discharge decision; Doucette credibly testified that he believed his practice would save the employer money; there is no evidence that prior to his discharge any member of management thought otherwise; and the uncontradicted evidence establishes that at least in many locations it in fact did so.32 Moreover, the usual practice is to retain the assistant, because of his familiarity with the show, where the carpenter leaves a show before the end of the run; and Davis failed to explain why he did not do this 33 "The Company's vacillation and the multiplicity of its alleged reasons for firing [the Doucettes] render its claims of nondiscrimination the less convincing." N.L.R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5, 1965). Accord: N.LRB. v. Long Island Airport Limousine Service, 468 F. 2d 292, 295 (C.A. 2, 1972); Aloi Fora supra, 179 NLRB at 230. Assuming arguendo that Respondents' counsel has shown justifiable ground for the Doucettes' discharge, "the existence of some justifiable ground for discharge is no defense if it was not the moving cause." N.L.R.B. v. Wells, Inc., 162 F.2d 457, 460 (C.A. 9). Accord: N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F. 2d 352, 355 (C.A. 2, 1962), cert. denied 373 U.S. 950 (1963). b. Whether the discharges and Davis' assertions of the reasons therefor violated the Act (1) Whether Doucette, Sr., was an employee or was a supervisor I have found that Doucette, Sr., was discharged because of his participation, on employee Weeden's behalf, in the processing of the grievance based upon Weeden's dis- charge; and that employee Doucette, Jr., was discharged because he was Doucette, Sr.'s son. As discussed infra, the discharge of employees for these reasons would violate Section 8(a)(l) and (3) of the Act. Further, in response to my inquiry at the hearing, Respondents' counsel conceded Office from Respondents' counsel, they constitute admissions to be held against Respondents. Steve Aloi Ford 179 NLRB 299, 230. 32 Doucette eventually altered this practice because of the Union's protests. 33 Indeed, the assistant sometimes himself obtains the carpenter's job under these circumstances. Davis testified that he did not so promote Doucette, Jr., because he hired the Doucettes as a team and had doubts about the ability of the son, whom he hardly knew, to "deal with men." The practice of giving the carpenter the right to hire his assistant is followed for new shows, not shows which are already running. THEATRE NOW, INC. that Doucette, Sr., was an employee within the meaning of the Act. Nonetheless, during the hearing, I concluded that the evidence indicated that Doucette, Sr., might well have been a supervisor within the meaning of Section 2(11) of the Act and, therefore, not an employee within Section 2(3). At my request, the parties have briefed that issue. I conclude that Doucette was in fact a supervisor. Cf. Primrose Super Market of Malden, Inc., 178 NLRB 566, 568-569.34 Thus, Doucette, Sr., had the authority, in the interest of the employer and in the exercise of independent judgment. effectively to recommend the hiring of the flyman (the only other carpenter who was a permanent member of the touring company) and in fact induced Davis to hire Doucette, Jr., for that job.35 The record does warrant the inference, which I draw, that Davis gave weight to Doucette's recommendation partly because Doucette was a highly skilled worker and would have to work with the flyman, and that Doucette selected his son partly because of their blood relationship. However, Doucette's belief that his son was in fact well qualified for the job played a major part both in Doucette's recommendation and in Davis' willingness to hire Doucette, Jr., sight unseen and without (so far as the record shows) any independent investigation whatever. I am not persuaded that Doucette, Sr., lacked the requisite recommendatory authority by the contention of counsel for the General Counsel that the hiring of the Doucettes was, in effect, a "package deal." The granting or withholding of supervisory powers would ordinarily affect parties' willingness to enter into a contract of employment and the wages and other terms called for therein. See Setco Well Service Co., 171 NLRB 338, 339. Moreover, Doucette's participation in the decision about how many local carpenters to use in each location to perform the "advance work" and for each step in the hanging, operation, and dismantling of the set constituted participation in the only part of "hiring" the remainder of the carpentry department in which the employer had any voice; the local carpenters were selected by the local union. Further, it was Doucette who decided when to call for local carpenters to perform the "advance work." While I have found no cases on the point, I am inclined to think that Doucette's authority with respect to the hiring of the local 34 There is no contention or evidence that either Weeden or Doucette, Jr., was other than a rank-and-file employee The authority exercised by Doucette, Jr (who was familiar with the show), with respect to the local men on the "fly floor" (who had never worked on the show before it reached the local theater, and may not have even rigged or hung it) was merely that of a highly skilled with respect to the less skilled worker See Dubin-Haskell Lining Corp v N L R B, 375 F 2d 568, 570-571 (C A 4, 1967), modified on reconsideration 386 F 2d 306 (C A 4, 1967), cert denied 393 U.S 824(1968) as 1 would reach the same conclusion even accepting Davis' discredited testimony that he had only recommendatory authority, and that the final authority to hire resided in the Waissmans Sec 2(11) does not provide that the requisite effective recommendation must be made directly to the final hiring authority 36 See , e g , the cases cited infra at fns 38, 46 See also Ebasco Services, Inc, 181 NLRB 768, 769-770, Pioneer Drilling Co, 162 NLRB 918, 923, enfd in material part 391 F.2d 961, 962-963 (C A 10, 1968), Dewey Brothers, Inc, 187 NLRB 137, 142, enfd 80 LRRM 2112 (CA. 4, 1972) 37 See Oil City Brassworks v N L R B, 357 F 2d 466, 470-472 (C A. 5, 1966), cf General Engineering Co v N L R B, 311 F 2d 570, 573-574 (C A 9, 1962) 38 See, e g, Local No 207, International Association of Bridge, Structural, 537 carpenters constituted authority, in the interest of the employer and in the exercise of independent judgment, effectively to recommend hiring within the meaning of Section 2(11). Furthermore, Doucette was the only member of the touring company who was present when he and the carpenters sent out by the local union in the area for an "advance call" hung the rigging in preparation for the show's next intercity move. In addition, he was the head of the carpentry department, was the "boss" and "in charge" of the local carpenters, and told them how to take the scenery off the trucks and where to put it. It was Doucette who decided how to put the show into the various theaters, each of which was different. I conclude that Doucette also had the authority, in the interest of the employer and in the exercise of independent judgment, responsibly to direct the employees in the carpentry department. (2) Doucette, Sr.'s discharge It is hornbook labor law that by virtue of Sections 2(3) and (11) and 14(a) of the Act supervisors do not possess the protection which the statute affords to employees. Howev- er, it is clear that action detrimental to their interests may nonetheless constitute an unfair labor practice where it infringes on the statutory rights of employees. Thus, it has been held that an employer may not lawfully discharge or otherwise discipline a supervisor because he refused to commit unfair labor practices against employees, or because he testified at a Board proceeding or at a proceeding where a union was processing employee grievances, or in order to punish the protected activity of an employee who was the supervisor's relation, or in order to provide a pretext to terminate employees for protected activity.36 It may well be that such conduct is unlawful whether or not the employees knew about it.37 However, for the purposes relevant here, I deem it significant that such cases have frequently if not usually relied on the theory, inter alia, that such treatment of supervisors would likely put employees in fear that like conduct by them would lead to a like retaliation.38 Counsel for the General Counsel contends in his brief, "The test is whether the discharge of the supervisor and Ornamental Iron Workers v Perko, 373 U.S. 701, 707, Better Monkey Grip Co, 115 NLRB 1170, 1170-71 [enfd 243 F 2d 836 (C.A 5), cert denied 353 U.S 864 (1957)], Talladega Cotton Factory, Inc, 106 NLRB 295, 295-297 [enfd 213 F 2d 209, 215-217 (C A 5) ]; Jackson Tile Mfg Co, 122 NLRB 764, 767 [enfd 272 F 2d 181 (C.A 5, 1959)], Consolidated Foods Corp, 165 NLRB 953, 956-959 [modified 403 F 2d 662 (C.A 6, 1968)], Inter-City Advertising Company of Greensboro, N C, Inc, 89 NLRB 1103, 1106-08, 1133 [modified 190 F.2d 420 (C.A. 4) ], Modern Linen & Laundry Service, Inc, 116 NLRB 1974, 1975, 1986-87, Golub Bros Concessions, 140 NLRB 120, 127; Brookside Industrie.,, Inc, 135 NLRB 16, 25, enfd in material part 308 F.2d 224, 228 (C A 4, 1962), Leas & McVitty, Inc, 155 NLRB 389, 390, 398-399, enforcement denied 384 F 2d 165 (C A 4), Gainesville Publishing Co., Inc, 150 NLRB 602, 626-627, Dal-Tex Optical Co, Inc, 131 NLRB 715,730-731 [enfd 310 F 2d 58,62 (C A 5, 1962)], Oil City Brass Works, 147 NLRB 627, 629-630 [enfd 357 F 2d 466 (C A 5, 1966) ], Permian Corp, 189 NLRB 860, 864 [enfd 457 F 2d 512 (CA 5, 1972)], Thermo-Rite Mfg Co., 157 NLRB 310, 322 [enfd. 406 F 2d 1033, 1035 (C A 6, 1969)], Vail Mfg Co, 61 NLRB 181, 182-183, enfd. 158 F 2d 664, 666-667 (C.A 7), cert denied 331 U S 835 (under original Act). Brackets around court citations indicate that the court either rejected or failed to discuss the theory that the questioned conduct instilled fear in rank-and-file employees 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrains and coerces nonsupervisory employees ." Howev- er, counsel at the very least oversimplifies the problem. As the Fifth Circuit pointed out in Oil City Brass Works, supra, 357 F.2d at 470: Any time an employee , be he supervisor or not, is fired for union activity rank-and-file employees are likely to fear retribution if they emulate his example . But . . . if the fear instilled in rank-and-file employees were used in order to erect a violation of the Act, then any time a supervisor was discharged for doing an act that a rank- and-file employee may do with impunity the Board could require reinstatement. Carried to its ultimate conclusion, such a principle would result in supervisory employees being brought under the protective cover of the Act. Congress has declined to protect supervisors and the courts should not do by indirection what Congress has declined to do directly. Nonetheless, I do not conclude from this reasoning that under no circumstances can the Board find unlawful, because of the fear instilled in rank-and-file employees of like retaliation for like conduct, the discharge or disciplin- ing of supervisors for conduct protected by Section 7 where engaged in by employees. Rather, I conclude that the Act protects the employees against fears of retribution derived from such employer conduct (just as it protects employees from fears of retribution derived from discrimination against their fellows) so long as this result is reconcilable with other statutory ends, including the further congres- sional purpose of permitting employers to discharge or otherwise punish supervisors for engaging in Section 7-type conduct. The propriety of this approach is suggested by the interpretation afforded Section 8(b)(l)(A), which prohibits unions from invading the rights of employees under Section 7 in a fashion comparable to the activities of employers prohibited by Section 8(axl),39 and which was added to the Act at the same time as Section 14(a) and related provisions. In considering whether Section 8(bXl)(A) was breached by union conduct, whose evalua- tion need not take into account the employer's privilege to punish supervisors for Section 7-type conduct, the Board and the courts have uniformly found a union unfair labor pragice where the impact on rank-and-file employees of a union's treatment of supervisors had as a natural conse- quence restraint and coercion of employees with respect to their Section 7 rights .40 Furthermore, the Board held in A. 0. Smith Corp., 132 NLRB 339, 341-342, 393-394, not only that a union violated Section 8(b)(1)(A) by causing a supervisor's demotion to rank-and-file status because of dissident union activity (thereby illustrating to the rank- and-file employees their likely fate if they engaged in like conduct), but also that the employer violated Section 39 International Ladies ' Garment Workers' Union [Bernhard-Altmann] v. N.LR.B., 366 U.S. 731,738 ( 1961). 40'See, e.g., International Union of Operating Engineers, Local 18, AFL-CIO (C. F. Braun Co.), 205 NLRB No. 146; N.L.R.B. v Local 140, United Furniture Workers [Brooklyn Spring Corp.], 233 F.2d 539, 540-541 (C.A. 2); N.L.R.B. v. International Woodworkers of America [W. T. Smith Lumber Co.], 243 F.2d 745 (C.A. 5, 1957). See also New Power Wire & Electric Co. v. N.LR.B, 340 F.2d 71, 72-73 (C.A. 2, 1965); N.LRB v. Local 282, International Brotherhood of Teamsters [Lizza and Sons], 412 F.2d 334, 337-338 (C.A. 2, 1969), cert. denied 396 U.S. 1038 (1970). 8(aX2) and (1) by effecting such demotion because of the coercive effect of this action upon employee rights. While finding that the evidence failed to support the Board's conclusion as to the reasons for causing and effecting the demotion, the court of appeals agreed with the Board that if the supervisor's "demotion was an unfair labor practice and if `the employees should regard [his] demotion as symbolic of what would happen to them if they, in the exercise of their statutory rights, were to oppose [the incumbent union president ] and his ruling group,' the Board has jurisdiction." 343 F.2d 103, 111-112 (C.A. 7, 1965). Moreover, the Board has held that the discharge of an alleged supervisor violated Section 8(a)(1) because "motivated by a desire to discourage union activities in general among the employees , rather than a concern that she, as an asserted supervisor, had signed a union card." Heck's Inc., 170 NLRB 178, 184, fn. 8.41 See also Fairview Nursing Home, 202 NLRB 318, fn. 2, fn. 34. Further, the Board has held a supervisor's discharge to violate Section 8(axl) because he "spoke for the striking body shop employees and, by his discharge, Respondent effectuated its decision to close the body shop operation because of the employees' union adherence. . . . [His] discharge ... was ,an integral part of a pattern of conduct aimed at penalizing employees for their union activities .' " Krebs and King Toyota, Inc., 197 NLRB 462, fn. 4. Moreover, in finding that an employer did not violate Section 8(a)(1) by discharging a supervisor for union activity and sending rank-and-file employees a letter about the matter, the Board relied on the fact that the letter gave the employees assurance against reprisal, and that they had no reasonable ground to fear a similar fate if they engaged in union activity. Texas Gulf Sulphur Co., 163 NLRB 88, 93-94. The reasoning of the foregoing cases, taken as a whole, leads me to conclude that the discharge of or other reprisals directed against a supervisor for engaging in conduct protected in an employee violates Section 8(a)(1) of the Act if (1) under all the circumstances, such punishment tends to lead rank-and-file employees reason- ably to fear that the employer will punish them for engaging in like conduct ; and (2) the employer has failed to take reasonable and timely steps to reassure his rank-and- file employees that they will not be punished for such conduct. This second requirement enables employers who have made such efforts at reassurance to discipline supervisors for Section 7-type activity even though the fact of the punishment and (perhaps) circumstances beyond the employer's control nonetheless tended to put the employ- ees in fear. In my view, such an approach effects a proper accommodation between employee rights and the congres- sional policy withholding from supervisors the protection afforded by Section 7 .42 On the basis of the foregoing principles , I conclude that 41 The court of appeals enforced the Board's order as to her on the ground that she was a rank-and-file employee, without reaching the ground adverted to in the text . Food Store Employees Union, Local 347, Amalgamat- ed Meat Cutters v. N.LR. B., 418 F.2d 1177, 1181 (C.A.D.C., 1%9). 42 In so concluding, I am aware that a number of cases have used language which might well point to an absolute privilege by employers to discharge supervisors for concerted or union activity and to enjoy the benefits of any consequent chilling effect on rank-and-filers' like activity. Among cases using language suggestive of this result are: Oil City Brassworks, supra, 357 F.2d at 468, 470; United Painting Contractors, 184 THEATRE NOW, INC. supervisor Doucette, Sr.'s-discharge because of his partici- pation in the Union's processing of employee Weeden's grievance violated Section 8(a)(1) because it would tend to instill in rank-and-file employees the fear that they too would be discharged or otherwise punished if they engaged in like conduct. There is no question that such conduct by rank-and-file employees constitutes protected union and concerted activity for which employees may not lawfully be discharged 43 Nonetheless , management frankly told Doucette, Sr., that he was being discharged for such activity, although it must have anticipated that he would at the very least relay this to employee Doucette, Jr., who was his son and the reasons for whose own discharge were interwoven with those for his father's. Moreover, management made no effort whatever to advise any of the rank-and-file employees that Doucette, Sr., had been subjected to discharge for this reason solely because of his supervisory status, and that management recognized rank-and-file employees' right to engage in similar conduct without fear of employer reprisal. Rather, management's concomitant discharge of Doucette, Jr., a statutory employee, both underlined the threat advanced by his supervisory father's discharge and blurred any distinction between their respective positions. Indeed, the record shows that management did not subjectively regard Doucette, Sr., as having any status other than that of a rank-and-file employee. The management representatives at the grievance meetings tacitly accepted him as a representative of the Union and of employee Weeden. General Manager Davis testified that after learning about Doucette, Sr.'s participation in the first Weeden grievance meeting, Davis in effect told Doucette, Sr., that he did not act improperly in advising Weeden of his rights. The Union's representative testified that he had brought Doucette, Sr., to the grievance meeting to act as "steward." Each of the Doucettes is a member of the same union local; and was party to the same form contract, which is the only contract "recognized" by the Union, was drafted by the Union, contains various provisions purporting to protect the Doucettes' union membership rights and the Union's own interests, and includes a provision for an arbitrator appointed by the Union. Furthermore, Respon- dents' counsel conceded at the hearing that Doucette, Sr., was an employee within the meaning of the Act. It was only after I raised a question during the hearing as to his status that any of the parties concerned became aware of the possibility that Doucette, Sr., was a supervisor rather than an employee. Accordingly, so far as both the impact NLRB 159,affd. 441 F.2d 266 (C.A. 4, 1971); Texas Co, 93 NLRB 1358, 1369-70 (dissenting opinion), enforcement dented 198 F.2d 540, 544 (C.A. 5); El Canonazo Supermarket, Inc., 171 NLRB 83, 89-91; N L.R.B. v. Fullerton Publishing Co., 283 F.2d 545, 550 (C.A. 9, 1960); Sopps, Inc., 175 NLRB 296, 297, 305-306 ; National Freight, Inc., 154 NLRB 621, 622. However, in none of these cases does it appear that the Board or the court was asked to evaluate the propriety of bringing into play the balancing principles set forth in the text . Further, the law as it has thus evolved does not render the discipline of a supervisor for union or concerted activity unlawful, without more; but the facts recited in most if not all of these opinions fail to suggest the existence of considerations , other than the mere fact of the discipline, which would tend to create reasonable employee fear. 43 Morrison-Knudsen, Inc., 149 NLRB 1577, enfd. 358 F.2d 411 (C.A. 9, 1966); Interboro Contractors, Inc., 157 NLRB 1295, enfd. 388 F.2d 495 (C.A. 4 1967); United Engineering Ca, 163 NLRB 81, enfd 401 F.2d 910 (C.A. 9, 1%8), cert. denied 393 U.S. 1084 (1969). 539 of and the motives for the discharges are concerned, this case is in reality precisely the same as if Doucette, Sr., had been an ordinary employee.44 For the foregoing reasons, I conclude that the discharge of Doucette, Sr., because of his activity in connection with the Weeden grievance violated Section 8(a)(1) of the Act. However, because of Doucette, Sr.'s supervisory status, I conclude that his discharge did not violate Section 8(a)(3). Fairview Nursing Home, supra, 202 NLRB 318. (3) Doucette, Jr.'s discharge I have found that Doucette, Jr., was discharged because of the union activity of his father, Doucette, Sr. As counsel for the General Counsel points out, a number of cases have found discharges to be unlawful where motivated by the union activity of relatives. Some of these cases appear to find the discharge unlawful on the ground that the union activity of a particular individual led the employer to suspect that his relatives were similarly active or were receptive to organizational efforts, and to discharge them on that suspicion.45 However, on the facts of this case, it would be speculative to suppose that management dis- charged Doucette, Jr., because his kinship with his father led management to fear that, like his father, he would assist employees in processing grievances if the occasion arose. Other cases find the discharge unlawful on the theory that the discharge of one was a means of punishing the other for his own union activity.46 However, this theory assumes that the latter's union activity was protected by Section 7, whereas Doucette, Sr.'s union activity was not so protect- ed. Guidance here, however, is provided by Golub Brothers, supra, 140 NLRB at 127-128, and by Consolidated Foods, supra 165 NLRB at 959. Both these cases held that the discharge of a supervisor by reason of the union activities of the supervisor's employee relative violated the Act because such a discharge could lead the employees reasonably to fear that they would be discharged if they continued to support the union. A fortiori, such a coercive result would obtain where, as here, the supervisor's union activities led not only to his own discharge, but to the discharge of his employee relative as well. Accordingly, I conclude that the discharge of employee Doucette, Jr. because of the union activities of supervisor Doucette, Sr., violated Section 8(a)(1) and (3) of the Act. 44 It is true that Doucette , Sr.'s supervisory status nught render his employer answerable for an unfair labor practice based on certain kinds of union activity which would be protected in an employee. However, I am satisfied that Sec . 8(a)(2) does not require an employer to bar a firstline supervisor from the degree of union activity engaged in by Doucette, Sr. See National Gypsum Co., 139 NLRB 916, 920-921. Moreover, in the instant case management did not refuse to discuss the grievance so long as the conference included Doucette , Sr.; rather, management did discuss the grievance and then discharged him for the grievance activity in which it had previously acquiesced. 45 See, e.g., Everett L. Harper, 169 NLRB 320, 325; Washington Forge Inc., 188 NLRB 90, 97. 4e See, e.g., WIPO, Inc, 199 NLRB 649; Owens-Corning Fiberglass Corp., 146 NLRB 1492, 1495; Marathon Electric Mfg. Corp., 106 NLRB 1171, 1179-80, affd. 223 F.2d 338 (C.A.D.C.), cert. denied 350 U.S. 981 (1956). 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) The statement of the reasons for the Doucettes' discharge I have found that Supervisor Doucette, Sr.'s discharge for union activity, and employee Doucette, Jr.'s discharge because of their kinship, violated the Act because their discharge could lead the employees reasonably to fear that they would be discharged if they engaged in like conduct. From this it follows that General Manager Davis' statement that these were the reasons for the discharges, made to Supervisor Doucette, Sr. but under circumstances which would lead Davis to anticipate that the explanation would be relayed to at least employee Doucette, Jr., violated Section 8(a)(1) because that statement expressed in words the same threat which the discharges expressed in conduct. Under these circumstances, Respondents' admission that Respondent Theatre was an agent of Respondent Grease amounts to an admission that Davis was an agent of Respondent Theatre. Accordingly, Respondent Theatre had and exercised, through Davis, the power to hire and fire the Doucettes and to promise and give them wage increases.50 Further, the unfair labor practices herein were committed in the exercise of this discharge power, and were motivated by Doucette, Sr.'s activity in connection with a grievance settled (through Davis) by Respondent Theatre. Accordingly, I conclude that Respondent Theatre occupied joint employer status with Respondent Grease for purposes of this case, and is answerable for the unfair labor practices found.51 CONCLUSIONS OF LAW c. The extent to which Respondent Theatre is answerable for the unfair labor practices found Respondents conceded at the hearing and in their answer to the amended complaint that Respondent Grease occupied employer status with respect to the Doucettes and is answerable for any unfair labor practices found herein. Moreover, Respondents conceded at the hearing, as did Respondent Theatre in the answer to the original complaint, that RespondentTheatre is Respondent Grease's agent. Section 2(2) of the Act defines the term "employer" as including "any person acting as an agent of an employer, directly or indirectly"; while Section 8(a) states that it shall be an unfair labor practice for an "employer" to engage in the conduct therein described. Accordingly, Respondent Theatre's conceded status as Respondent Grease's agent is sufficient to warrant its inclusion in the cease-and-desist and notice-posting parts of the order herein.47 However, Respondents denied in their answer to the amended complaint the allegation therein that they occupied joint-employer status with respect to the Dou- cettes. While neither of the post-hearing briefs touches on the issue, its resolution may affect both the breadth of the order against Respondent Theatre48 and whether it is to be named in the backpay order.49 I conclude from the record as a whole that Respondent Theatre occupied (with Respondent Grease) joint employ- er status with respect to the Doucettes. Davis, who was admitted in the complaint to be an agent of Respondent Grease, was employed by (and, indeed, an officer of and stockholder in) Respondent Theatre; and was (so far as the record shows) the only person connected with Respondent Theatre who provided any services to Respondent Grease. 41 Marriello Fabrics, Inc., 149 NLRB 333, 346; Cache Valley Dairy Association, 103 NLRB 280. 48 Omaha Neon Sign Co., 170 NLRB 1385, 1391; West Coast Casket Co., 192 NLRB 624, In. 2, modified 469 F.2d 871 (C.A. 9, 1972). 49 Kartarik, Inc., I I 1 NLRB 630, fn. 2, enfd. 227 F.2d 190 (C.A. 8, 1955); cf. Senco, Inc., 177 NLRB 882, 895. 50 While I accept Davis' testimony that he signed Doucette, Jr.'s contract (naming Respondent Theatre as employer) through oversight , Doucette, Sr.'s action in making the entry after discussing at least his own employment with Davis, and Doucette, Sr.'s testimony that he "assumed" Respondent Theatre was the employer, evidence that to applicants, Respondent Theatre possessed the indicia of an employer . Moreover, Doucette, Sr.'s action in filing the original charge herein against Respondent Theatre alone (and not 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent The Grease Company is an employer within the meaning of Section 2(2) of the Act. 3. For purposes of this case, Respondent Theatre Now, Inc., occupies joint employer status with and is an agent of Respondent The Grease Company, and is an employer within the meaning of Section 2(2) of the Act. 4. International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada and Local 381 of that organization are both labor organizations within the meaning of Section 2(5) of the Act. 5. Joseph F. Doucette, Sr., is a supervisor within the meaning of Section 2(11) of the Act, and is not an employee within the meaning of Section 2(3). 6. By discharging Joseph F. Doucette, Sr., under circumstances constituting interference with, restraint of, and coercion of employees in the exercise of their statutory rights, Respondents have violated Section 8(a)(1) of the Act. 7. By discharging Joseph F. Doucette, Jr., Respondents have interfered with, restrained, and coerced employees in the exercise of their statutory rights, in violation of Section 8(a)(1) of the Act; and have discriminated in regard to tenure of employment to discourage membership in a labor organization, in violation of Section 8(a)(3). 8. By stating the reasons for such unlawful discharges, under circumstances where such statements were likely to be relayed to employees, Respondents have violated Section 8(a)(1) of the Act. 9. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6)(7) of the Act. naming Respondent Grease until after Respondent Theatre disclaimed employer status in the answer to the original complaint ), together with Davis' admission that laid-off employees seeking unemployment compensa- tion frequently regarded Respondent Theatre rather than Respondent Grease as their employer, indicates that Respondent Theatre also appeared to employees who had actually worked in the "Grease " company as constituting their employer. 51 West Texas Utilities Co., 108 NLRB 407,413-414, enfd. 218 F.2d 824 (C.A. 5), cert. denied 349 U.S. 953; Basic Management, Inc., 104 NLRB 1038, 1039-41; Fox Midwest Amusement Corp., 98 NLRB 699, 718; May Dept. Stores Co., 59 NLRB 976, 986-987, 992, 1043-45, modified 154 F.2d 533 (C.A. 8), cert. denied 329 U.S. 725. THEATRE NOW, INC. 10. Respondents' discharge of Joseph F. Doucette, Sr., did not violate Section 8(a)(3) of the Act. THE REMEDY Having found- that Respondents have violated the Act in certain respects, I shall recommend that they cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. While I see no reason to anticipate that Respondent Theatre will engage in similar unfair labor practices in connection with shows managed by its personnel other than Davis, the absence of credible evidence that the unlawful discharges herein were decided on by anyone connected with Respondent Grease other than Davis leads me to antici- pate that Davis may engage in like unlawful conduct when managing shows other than "Grease." Accordingly, I shall recommend that Respondent Theatre cease and desist from like or related conduct in connection with shows other than "Grease," where Davis is employed in connec- tion with those shows. I shall also recommend that Respondent Grease offer 52 This division of liability may be academic herein, because Respon- dents' counsel stated on the record that Respondent Grease had undertaken to hold Respondent Theatre harmless and is financially capable of doing so. However, the inclusion of Respondent Theatre in the backpay order does 541 reinstatement to the Doucettes, and that Respondent Theatre (which has no power to make such an offer over Respondent Grease's objection) request Respondent Grease in writing, with a copy to the Doucettes, to make such an offer. The Doucettes shall be made whole for any loss of earnings they may have suffered by reason of their unlawful discharge, by payment to them of a sum of money equal to that which they normally would have earned from the date of discharge to the date of a valid offer of reinstatement less their net earnings during this period, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondents shall bejointly and severally liable for the backpay which is attributable to the period prior to Respondent Theatre's request that Respondent Grease reinstate the Doucettes, plus 5 days thereafter. Respondent Grease shall be solely answerable for any additional backpay.52 I shall also recommend that Respondents post appropriate notices. [Recommended Order omitted from publication.] afford the Doucettes some additional financial security. Moreover, should this case eventually be considered by the Board, it may constitute a precedent for a case involving a show less successful than "Grease."