North Dixie Theatre, Inc.

NORTH DIXIE THEATRE, INC. North Dixie Theatre, Inc., and its Wholly Owned Sub- sidiary Kilgore Amusement, Inc. and Mary Sue Di- amond. Case 9-CA-8529 September 15, 1975 DECISION AND ORDER On October 10, 1974, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a brief in support thereof. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that the Re- spondent did not violate Section 8(a)(1) and (3) of the Act by laying off cashier and usher Mary Sue Diamond during a strike by projectionists at its theaters. We find merit in the General Counsel's ex- ceptions to this finding. On May 17, 1974, the Union representing pro- jectionists at the Respondent's four theaters com- menced an economic strike. Miss Diamond's father, Frank Diamond, who was a projectionist at the Es- quire Theatre where his daughter also worked, com- menced picketing in front of the theater on May 17. Miss Diamond did not in any manner participate in the strike, but rather she crossed the picket line on May 17, 18, and 19 and made herself available to perform her cashier and usher duties. On May 19, Nick Moenssens applied for the projectionist's job at the Esquire Theatre. He was di- rected to the projection booth by the theater manag- er, Earl M. Hibbard, who instructed him to look over the equipment. Hibbard then left Moenssens alone in the booth. The Administrative Law Judge found that a man, who was later identified as Frank Diamond, entered the projection booth, identified himself as the regular projectionist at that theater, and said to Moenssens, "Are you the scabbie? I want to get a good look at you because you are taking my job away, and when I see you I am going to beat the shit out of you." Diamond left the booth but returned a few minutes later and said, "Do you have Blue Cross health insurance? I hope you do because you are going to need it." 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 ( 1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 307 After Diamond left, Moenssens came to the lobby and told Miss Diamond that he had been threatened by a man who "really looked big" and who said he was the projectionist. He added that perhaps he should forget about the projectionist's job, and that, because of the threats, he was afraid to walk home. Miss Diamond replied that perhaps she could drive him home and asked him where he lived. He gave her the address. She also told him that the projectionist was her father and "just don't believe what he says," that she did not think he would hurt him. She en- couraged him to go ahead and run the show, and she reiterated, "I don't believe anybody is going to do anything to you." Moenssens then told Hibbard about the threat. Hibbard telephoned Sam Levin, the Respondent's president, but neither of them could persuade Moenssens to stay. Later that day, Moenssens telephoned Levin and indicated he might reconsider his decision to quit,2 but stated that he thought Miss Diamond was a threat to his security because she might inadvertently reveal his address to her father. Hibbard testified that Levin telephoned him later that day and asked if Miss Diamond was Frank Diamond's daughter and if she was at the theater; Levin instructed Hibbard to let her go and to take her back when it is all over, saying, "she'll understand." Hibbard then told Miss Diamond that Levin had just telephoned and told him to have her laid off. When she asked why, he said, "due to the fact that your father is on strike, we feel that it would be better that you didn't work here at this time until the strike was over." In spite of Hibbard's denial, the Administrative Law Judge credited Miss Diamond's testimony that, in addition to making the above statement, Hibbard also said, "We were afraid that you might be able to finger someone." It is undisputed that the strike and picketing by a unit of the Respondent's projectionists, including Frank Diamond, was protected concerted activity. The fact that Frank Diamond may have engaged in certain unprotected activity during the strike in no way affects the protection afforded the strike and picketing. Thus, Frank Diamond's participation in protected activity cannot be ignored in a situation where, as here, the Respondent acts against a relative of a striker. The Administrative Law Judge found that Miss Diamond was laid off because of the Respondent's good-faith belief that Frank Diamond had engaged in strike misconduct. She further found that such misconduct constituted a valid defense to her layoff. We disagree with these findings. Although the Re- 2 The record does not indicate whether or not Moenssens had actually been hired to work at the theater 220 NLRB No. 49 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent contends that Miss Diamond was laid off because it was afraid she would inadvertently assist her father in carrying out the threats of violence attri- buted to him, there is no evidence of any word or deed by Miss Diamond which would have given the Respondent reason to believe that she would assist her father in carrying out such threats. To the con- trary, the evidence indicates that Miss Diamond at- tempted to persuade Moenssens to remain at the theater by allaying his fears that her father would carry out his threats. Nor does it appear that the Re- spondent had any reason to think that Miss Dia- mond was in any way involved in her father's strike activities. This brings us to the events immediately surrounding the layoff; namely, Levin's instructions to Hibbard and then Hibbard's remarks to Miss Dia- mond. The credited evidence is that Levin tele- phoned Hibbard on the day of the layoff and asked if Miss Diamond was Frank Diamond's daughter and if she was at the theater. Hibbard answered in the affirmative. Levin then instructed Hibbard to let her go and to take her back when the strike was over. There is no indication in the record evidence that Levin referred to Moenssens, or to Respondent's al- leged fear that Miss Diamond would help her father, during this conversation.3 Thereafter, Hibbard went to Miss Diamond and told her that she was being laid off. Miss Diamond asked why and Hibbard replied: ". . . due to the fact that your father is on strike, we feel it would be bet- ter that you didn't work here at this time until the strike is over." Even if Hibbard told Miss Diamond that the Respondent was "afraid that she might be able to finger someone" (as she testified and the Ad- ministrative Law Judge credited), the fact that un- equivocally he denied this remark is persuasive that the Respondent did not sufficiently separate Frank Diamond's alleged misconduct from his participation in protected activity to permit the conclusion that Miss Diamond's layoff because of her relationship to her father can be attributed solely to her father's al- leged misconduct. In any event, the significance of this remark is minimal in the absence of any indica- tion that Levin, at the time he instructed Hibbard to layoff Miss Diamond, or for that matter at any time 3 This finding is predicated on the credited testimony of Hibbard who gave the only specific account of this conversation . Levin testified at the hearing but did not give a specific account of this conversation. Our dissenting colleague agrees with the Administrative Law Judge's in- ference that Levin must have told Hibbard about Moenssens' fear "because Moenssens had expressed this concern only to Levin and not to Hibbard." It is not at all clear that Moenssens expressed this concern only to Levin and it appears from Moenssens' own testimony that he "told the manager [Hibbard] about this." It is clear, however, that Hibbard did not recommend to Levin that any action be taken against either Frank Diamond or Miss Diamond. Under the circumstances, we find that the inference drawn by the Administrative Law Judge is unwarranted. other than at the hearing, attributed his decision to the alleged fear that Miss Diamond would "finger someone" or otherwise assist her father in carrying out an alleged threat. The absence of such testimony, in the face of the undisputed fact that Respondent's manager, Hibbard, attributed the layoff "to the fact that your father is on strike," convinces us that Re- spondent made the layoff, at least in part, because Miss Diamond was the daughter of a striker, and thereby violated the Act .4 THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has discriminated against employee Mary Sue Diamond by laying her off on May 19, 1974, wholly or in part for the con- certed protected activity of her father, Frank Dia- mond. We shall therefore order the Respondent to offer her immediate and full reinstatement to her for- mer position, or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of pay she may have suffered as a result of this discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date of the discrimination to the date of reinstatement, less her net earnings during such period, in accor- dance with the formula prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum to be added to such backpay, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Ridgely Manufacturing Company, 207 NLRB 83 (1973) (the discharges of Doris Cook and Shawanne Cook); The Colonial Press, Inc, 204 NLRB 852, 858 (1973) (the layoff of Carol Nice); Superior Micro Film Systems, Inc, and/or Wilfred W Burgart and Jesse Guido, Partners d/b/a B G. Manage- ment Company, 201 NLRB 555 (1973) (the discharge of Gary Daugherty) Also see Tri-State Stores, Inc, 185 NLRB 829, 832-834 ( 1970) (discharge of Ilse L lliff). Our dissenting colleague advances the analogy that if one were to apply our finding consistently "then, in the event an employee , who was engaged in a lawful strike, were to enter the plant and blow it up he could not be discharged because, at that time, he was also engaged in protected activity." The analogy seems misplaced First, we are not being asked to review the alleged misconduct of Frank Diamond for the purpose of determining whether or not it provides a lawful basis for disciplining him. In fact, as indicated earlier, the record is devoid of any indication that Respondent took any such action against Frank Diamond . Second, there is no allega- tion, nor does the record show, that Miss Diamond engaged in any miscon- duct In these circumstances, we are certain that our dissenting colleague did not intend to suggest , by this analogy, that a determination that striker Frank Diamond engaged in misconduct would foreclose a finding that Respondent's retaliation against a relative of his could not violate the Act. NORTH DIXIE THEATRE, INC. 309 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, North Dixie Theatre, Inc., and its wholly owned sub- sidiary Kilgore Amusement, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, discharging, or otherwise discrimi- nating against any employee in regard to his or her hire, tenure, or terms and conditions of employment, so as to discourage membership in, affiliation with, sympathy for, or lawful activity on behalf of any la- bor organization. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer Mary Sue Diamond immediate and full reinstatement to her former position or, if her posi- tion no longer exists, to substantially equivalent em- ployment, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the unlawful action against her in the manner set forth in the section in this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises at Cincinnati, Ohio, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER PENELLO, dissenting: Contrary to my colleagues, I would adopt the Ad- ministrative Law Judge's Decision and dismiss the complaint alleging a violation of Section 8(a)(1) and (3) of the Act. Respondent's president, Levin, testified that he de- cided to lay off Miss Diamond after Moenssens had called him and explained his fears regarding both Frank Diamond and his daughter. Levin did not want to maintain a situation where other projection- ists would leave when threats were made .6 Based on credited testimony, the Administrative Law Judge found that Hibbard, in following Levin's directive, approached Miss Diamond and informed her that Levin had called him and told him she was laid off. She asked why, and Hibbard replied, ". . . due to the fact that your father is on strike, we feel that it would be better that you didn't work here at this time until the strike was over. We were (sic) afraid that you might be able to finger someone." We agree with the Administrative Law Judge's inference that Levin, when instructing Hibbard to lay off Miss Diamond, must have told Hibbard about Moenssens' fear of Miss Diamond's inadvertently revealing his address, because Moenssens had expressed this concern only to Levin and not to Hibbard, yet Hibbard related this concern to Miss Diamond. It is well established that one violates the Act by laying off or discharging an employee in order to discourage a relative from engaging in concerted pro- tected activity. But that is not the case here. There is no evidence whatsoever that Miss Diamond's layoff was related to her own or her father's protected con- certed activities. Such a relationship is, of course, es- sential in order to bring this matter within the cover- age of the Act. To the contrary, there is overwhelming evidence that her layoff occurred be- cause of the Respondent's fear that she might inad- vertently assist her father in the unprotected strike activities which the Respondent, in good faith, be- lieved he had engaged in, and the record affords no basis for concluding that he did not in fact make the threats of physical violence attributed to him. However, my colleagues conclude that, even if Hibbard told Miss Diamond that the Respondent was "afraid that she might be able to finger some- 6 In addition to Levin's concern over the incident at the Esquire Theatre, his credited testimony was that he had received reports that projection equipment in all the theaters had been rendered inoperative , that he had received a report that another of his struck theaters, the 20th Century, had 'In the event that this Order is enforced by a Judgment of a United been fire bombed, with injuries to persons and clothing ; and that, when States Court of Appeals, the words in the notice reading "Posted by Order nonstriking personnel at a third struck theater went to see what happened at of the National Labor Relations Board" shall read "Posted Pursuant to a the 20th Century, the pickets threatened their lives. Such testimony demon- Judgment of the United States Court of Appeals Enforcing an Order of the strates Levin's fear of widespread strike-related violence and supports his National Labor Relations Board." stated motive in laying off Miss Diamond 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one," his denial of the remark indicates that the Re- spondent did not sufficiently separate Frank Diamond's misconduct from his protected activity of participating in a strike and picket line to permit a conclusion that Miss Diamond's layoff can be attri- buted solely to her father's misconduct. The logic of this eludes me. The issue is not what Hibbard said but what Respondent's motive was, and there is no question but that Hibbard was merely carrying out the directive of Levin who, without consultation with Hibbard, made the decision to lay off Miss Diamond because of his own fears of strike violence' and Moenssens' fears for his personal safety. Further, Hibbard's denial of the statement was discredited by the Administrative Law Judge, there is no basis for reversing that credibility resolution, and I do not un- derstand my colleagues' attempt to rely on such dis- credited testimony. But, even if the denial had been credited, that statement to Miss Diamond would at most be violative of Section 8(a)(1), but it could not establish a fact contrary to the clear preponderance of the evidence.' The burden of proving that an employee has been laid off wholly or partially because someone has en- gaged in protected activity rests with the General Counsel, yet the General Counsel has presented no evidence which might meet this burden. Without any basis whatsoever, my colleagues conclude that, since Frank Diamond's misconduct occurred at a time when he was also engaged in protected activity, the Respondent's motive in laying off Miss Diamond, in spite of evidence to the contrary, must have been wholly or partially because of Frank Diamond's pro- tected activity. If one were to apply such a rationale consistently, then, in the event an employee, who was engaged in a lawful strike, were to enter the plant and blow it up he could not be discharged because, at that time, he was also engaged in protected activi- ty. This logic is inherently unsound. Whenever a striker has engaged in misconduct, he does not spend every moment engaging in this unprotected activity. Of course, his other activity would be protected. But it has never been held or contended that an employee may never be laid off or discharged for misconduct as long as he has also engaged in protected activity. The General Counsel must establish that the layoff or discharge was motivated by the individual's en- gaging in the protected activity rather than the mis- conduct. Such a motive cannot merely be presumed simply because some of the misconduct occurred in the course of otherwise protected activity. I realize that Miss Diamond has not, herself, en- gaged in any misconduct and that she has instead See In. 6 Wagner-Wood Company, 148 NLRB 963, 968 (1964). suffered because of the unprotected activity of her father. Yet, any employee can be laid off or dis- charged for good cause or no cause at all, and no violation of Section 8(a)(1) and (3) of the Act exists absent a showing that the termination was related to one's own or someone else's protected concerted ac- tivities. No such showing has been made here. Ac- cordingly, I would adopt the Administrative Law Judge's Decision and dismiss this complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act and has ordered us to post this notice. We intend to carry out the Order of the Board, the judg- ment of any court, and to abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT lay off, discharge, or otherwise discriminate against any employee in regard to his or her hire, tenure, or terms and conditions of employment, so as to discourage membership in, affiliation with, sympathy for, or lawful ac- tivity on behalf of any labor organization. WE WILL offer Mary Sue Diamond immediate and full reinstatement to her former position or, if it is no longer in existence, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges, and make her whole for any loss of pay which she may have suffered as a result of the discrimination against her. NORTH DIXIE THEATRE, INC., AND ITS WHOLLY OWNED SUBSIDIARY KILGORE AMUSEMENT, INC. NORTH DIXIE THEATRE, INC. 311 DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding, heard at Cincinnati, Ohio, on August 15, 1974, pursuant to a charge filed on July 5, 1974, and a complaint issued on July 18, 1974, presents the question of whether the layoff of the Charging Party, Mary Sue Diamond, in connection with the alleged strike-related activities of her father, Frank Diamond, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and counsel for the General Counsel (herein- after the General Counsel), I make the following: FINDINGS OF FACT 1. JURISDICTION AND THE UNION'S STATUS AS A LABOR ORGANIZATION North Dixie Theatre, Inc., and its wholly owned subsid- iary Kilgore Amusement, Inc., are each Ohio corporations which at all relevant times have been affiliated in business with common officers , ownership, directors, and office staff and with common labor policies formulated and ad- ministered by the common officers of both corporations. It is conceded that these corporations constitute a single em- ployer within the meaning of Section 2(2) of the Act, and they are hereafter collectively referred to as Respondent. Respondent operates several movie theatres in the Greater Cincinnati, Ohio, area, including the Esquire Theatre in Cincinnati. During the year preceding the issuance of the complaint, a representative period, Respondent had gross revenues exceeding $500,000; rented films and purchased goods and supplies valued in excess of $3,000 from sup- pliers located outside Ohio and caused such goods to be shipped directly to its Ohio locations; and leased films at a cost in excess of $50,000 from firms located in Ohio, which firms, in turn, leased and caused said films to be shipped to their respective locations in Ohio directly from suppliers located outside Ohio. I find that, as Respondent concedes, it is engaged in commerce within the meaning of the Act, and that exercise of jurisdiction over its operations will effectuate the policies of the Act. Moving Picture and Machine Operators Local 327, In- ternational Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Cana- da, AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts In the latter part of March 1974, Respondent hired Mary Sue Diamond as a cashier and usher at the Esquire The- atre. She obtained this job with the assistance of her father, Frank Diamond, who was that theatre's regular projection- ist and a member of the Union. So far as the record shows, Miss Diamond is not a member of nor in any respect inter- ested in any union. On Friday, May 17, 1974, the Union began an economic strike of projectionists at four theatres operated by Re- spondent, including the Esquire Theatre.' That day, Miss Diamond reported to work at her usual hour for Friday, 6 p.m. At about 7:15 or 7:30, Theatre Manager Earl M. Hib- bard drew her attention to the fact that Frank Diamond was standing in front of the theatre and was putting on a jacket which stated that the Union was on strike. Miss Dia- mond credibly testified that this was the first time she learned about the strike? She remained on the job until, somewhat earlier than her regular quitting hour, Hibbard sent her home. The show did not operate that evening, and Respondent had to refund all the ticket money to pros- pective patrons. On Saturday, May 18, Miss Diamond reported for work at her usual hour for Saturday, 6 p.m. When she opened the box office, her father donned the "on strike" jacket and began to picket the theatre. The show did not operate that evening. On Sunday, May 19, Miss Diamond reported to work between noon and 1 p.m., her usual hour for Sunday. That same day, Nick Moenssens, a music student, applied for the projectionist's job at the Esquire Theatre, and was told to report to the theatre that afternoon to look at the equip- ment and see whether he could run it. When he arrived, Hibbard took him up to the projection booth, told him all Hibbard knew about the equipment, and then left Moens- sens alone in the booth. Moenssens located various pro- jector parts which had been hidden in various parts of the booth. After about 10 minutes, he got one machine togeth- er and began to operate a test run. Moenssens credibly testified that he went to the pro- jection booth sometime between 1 p.m. and 3 p.m. When running, the projection machines can be heard from the theatre manager's office. Theatre Manager Hibbard credi- bly testified that between I and 2 p.m., Frank Diamond 1 Respondent's counsel averred in his opening statement, "To the extent that the work stoppage was the expression of an economic activity . it was a protected activity within the meaning of the Act. However . . . there was no notice given of the work stoppage It was a wildcat walkout in violation of the existing agreement between the Union and the Company However, that likewise would have no relevancy to the issues that are pres- ently presented." Respondent's president testified that the struck theatres' written contract with the Union "had expired, two years before we had come in there and there was no contract as such We simply took over whatever there was," and that when taking over the theatres Respondent had not made any specific arrangements with the Union to continue the predecessor's contract. The record contains no evidence regarding the alleg- edly "wildcat" nature of the strike, nor any evidence bearing on the legal siginificances of any lack of notice thereof to Respondent. She and her father did not live together, and regularly met only at work and on Sunday mornings On May 17 , after her superior told Miss Diamond to go home for the day, Frank Diamond told her that he had not advised her of the strike in advance because he "didn't want to involve [her] in it. It was none of [her] business. It was Union business " Miss Diamond credibly testified that "the whole family used to meet at Sunday morning at break- fast and that Sunday [May 19] we decided not to have breakfast together Everybody dust stayed at home . . . [Frank Diamond] said if anything ever comes out of [the strike], then we will not converse about anything to do with the Union or why [he was] on strike or anything like that." 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to that office to pick up his paycheck. Still according to Hibbard's credible testimony, Frank Diamond then went into the hallway and turned toward a stairway which is down the hall and leads into the projection booth. The theatre exit through the lobby and into the street is reached from the other end of the hallway. Moenssens credibly testified as follows: While the ma- chine was running, a "really gruff looking man came in, [who] looked like he was over 200 pounds" and was in his mid or late fifties.3 Moenssens' visitor looked at him and said, "Are you the scabbie?" Moenssens "just looked at him and . . . smiled," whereupon the visitor said, "I want to get a good look at you because you are taking my job away and when I see you I am going to beat the shit out of you." The visitor then left the booth. Moenssens turned off the machine, but he remained in the booth. A few minutes later, the visitor returned to the booth and said, "Do you have Blue Cross health insurance? I hope you do because you are going to need it." At some time during these con- versations, Moenssens' visitor identified himself as the proejctionist e After the visitor's reference to Blue Cross insurance, Moenssens went down to the lobby and asked Respondent's ticket taker, whom the record identifies only as "Joe," where the theatre manager was. "Joe" replied that he was upstairs in the office. Moenssens said that he had "been threatened with some very serious threats .. . against [his] personal welfare." At that time, Miss Dia- mond, whom Moenssens did not then know anything about, was sitting on a bench on the other side of the lob- by. Moenssens sat down beside her and said that a man who "really looked big" had threatened to beat him up, that he did not want a broken jaw, and that maybe he should just forget about the projectionist's job. He ex- plained that he was "just trying to make a few bucks to go to school," whose name he mentioned. Moenssens further said that, although he lived within walking distance of the theatre, the threats had made him afraid to walk home. Miss Diamond said that perhaps she could drive him home, and asked him where he lived. He "more or less" told her. Moenssens stated that "the man" who threatened him "said he was the projectionist here" and that Moens- sens "didn't want to monkey around with him." Miss Dia- mond said that the projectionist was her father, and "just don't believe what he says," that she did not think he would break Moenssens' jaw. Moenssens said, "I really don't want to get mixed up in any kind of Union stuff." Miss Diamond told him to go ahead and run the show, "I don't believe anybody is going to do anything to you.,, Moenssens replied no, that he was going home. Moenssens then told Theatre Manager Hibbard that Moenssens had been threatened and did not feel that he should work there "considering the nature of the strike" (see infra). Hibbard thereupon telephoned Sam Levin, 3 Moenssens is 23 years old, is 6 feet I inch tall, and weighs between 170 and 180 pounds. I so infer from Miss Diamond's testimony, in effect corroborated by Moenssens, that he so stated in reporting the exchange to her a few minutes later. S My findings in the foregoing paragraph are based on a composite of Miss Diamond's and Moenssens' mutually corroborative testimony Respondent's president, that Moenssens was leaving. Levin asked to speak to Moenssens, who told him that the pro- jectionist had come into the booth and threatened Moens- sens. Hibbard and Levin offered Moenssens a pay increase and a security guard if he would stay. Moenssens refused, and left the theatre about 10 minutes later 6 Later that afternoon, Moenssens telephoned Levin, indi- cated that he might reconsider his decision to quit, but said that he thought Miss Diamond was a "threat to [his] securi- ty" because she might inadvertently reveal his address to her father, the regular projectionist. A little later that day,7 Levin telephoned Hibbard. The only direct, specific ac- count of their conversation is Hibbard's testimony (see su- pra, fn. 6, infra, fns. 8 and 11). According to Hibbard, who I am satisfied was trying to tell the truth to the best of his memory. Levin "asked if [Miss] Diamond was Frank Diamond's daughter, the projectionist, if she was there and I told him, yes, and he said, let her go and take her back when it is all over. He said she'll understand." However, for the reasons set forth infra (fns. 8 and 11), I conclude that Levin made some reference to Miss Diamond's ability to "finger" other replacement projectionists for Frank Dia- mond. Hibbard then told her that Levin had just called him and told him that she was laid off. When she asked why, he said "due to the fact that your father is on strike, we feel that it would be better that you didn't work here at this time until the strike was over. We were afraid that you might be able to finger someone." 8 Miss Diamond replied that her duties gave her no time to do such a thing. She then went outside and told her father, who was picketing outside the theatre, that "they just laid me off." Because she was "upset" at her layoff, she did not refer to the pro- jection-booth incident. He replied, "well, I expected they would do that." She credibly testified that she had never subsequently discussed the projection-booth incident with her father. She ascribed this omission to her father' s state- ment that "the strike was his concern." Frank Diamond did not attend the hearing, nor was his absence explained. Miss Diamond was in the hearing room throughout the trial, but did not testify that Moenssens' description of his visitor was inconsistent with her father's physical appearance. At the time of the hearing the strike was still in progress, and Moenssens was apparently work- ing as a projectionist in another of Respondent's theatres? Levin credibly testified that, on the day the strike began, 6 My finding that this Moenssens-Levin conversation occurred is based on the credited testimony of Moenssens, whose memory I regard as more reliable than that of Hibbard (who in effect denied that this conversation took place) and Levin. My findings as to its content are based partly on Moenssens testimony and partly on that of Levin, who was mistaken, I believe, in attaching the remarks in the text to a conversation with Moens- sens later that day r I so infer from the probabilities of the situation. The witnesses' testimo- ny about times, standing alone, is consistent with but not demonstrative of that finding. 8 Although Hibbard denied saying anything about her being able to "fin- ger" other employees or projectionists for her father, I credit the testimony of Miss Diamond, whose memory impressed me as better than Hibbard's, that he did in fact make such a remark. On the basis of this finding, Levin's testimony that Moenssens told him Moenssens feared that Miss Diamond would inadvertently reveal his address to her father, and the absence of evidence that Moenssens told this to Hibbard, I infer that Levin relayed this to Hibbard when telling him to lay off Miss Diamond. e In giving testimony , Moenssens withheld his address and was not asked NORTH DIXIE THEATRE, INC. he received reports that the projection equipment in all the theatres had been rendered inoperative by dismantling or like means. According to his further credible testimony, on the following day, May 18, when Respondent had man- aged to start putting on a performance at another struck theatre (the 20th Century), he received a report that the theatre had been fire bombed with injuries to persons and clothing; that when Respondent's nonstriking personnel left another struck theatre (the Ambassador) in the neigh- borhood and went to the 20th Century to see what had happened, the pickets threatened their lives; and that such threats caused the Ambassador personnel, one of whom had been working for Respondent for 20 years, not to want to come back,10 B. Analysis and Conclusions Levin testified that Respondent laid off Miss Diamond at the Esquire Theatre on May 19, 1974, because Moens- sens had reported being threatened by the projectionist and had expressed fear that his daughter would inadver- tently tell him Moenssens' address, Levin believed that her father would similarly threaten any other replacement pro- jectionist, and Levin feared that if such a projectionist learned of the Diamonds' relationship he would quit for the same reason Moenssens left. Counsel for the General Counsel asks me to discredit Levin's testimony in this re- spect, and to conclude instead that "Respondent retaliated against Miss Diamond because of her father's lawful strike activities." In addition to urging that Levin's testimonial explanation was never tendered to Hibbard or Miss Dia- mond (a contention previously rejected in Sec. II, A), the General Counsel relies on the fact that Miss Diamond was laid off for the duration of the strike rather than perma- nently, and on Respondent's failure to take personnel ac- tion against Frank Diamond himself. However, these cir- cumstances, if anything, serve to corroborate Levin's testimony. Any desire by Frank Diamond to inflict a beat- ing on a substitute projectionist might well be increased by Frank Diamond's discharge during the strike, but diminish if not disappear once the strike was over. Moreover, Levin's testimony about his motives for laying off Miss Diamond gains support from the uncontradicted evidence that at the Ambassador, also victimized by vandalism which Levin believed attributable to strikers whose identity he did not know, Respondent retained in its employ a the- atre manager who was the wife of a "very very militant" union member. Accordingly, I credit Levin's testimony re- garding his motives for laying off Miss Diamond." The to name the theatre where he worked. However, Respondent's counsel elic- ited from him the name of the college which he was attending. 10 Levin's testimony that he received these reports was admitted for the purpose of showing his motive for his subsequent conduct, and not for the purpose of showing that these events in fact occurred. 1 I attribute to Levin's poor memory, and his tendency to generalize, the inconsistency between his testimony and Moenssens ' regarding the number of telephone conversations between them prior to Miss Diamond's layoff, and Levin's failure to testify that he told Hibbard about the possibility that she would "finger" other replacement projectionists. Nor do I find Levin's testimony about his motive for laying off Miss Diamond to be suspect be- cause of the opening statement of Respondent 's counsel that the layoff decision was based in part on the Diamonds' living together , whereas her 313 question then remains of whether her layoff for such rea- sons violated the Act.-I conclude that it did not. In contending that Miss Diamond's layoff was unlawful, the General Counsel relies on, inter alia, cases holding un- lawful the discharge of a union activist's relative, or sup- posed relative, for the purpose of punishing the activist for his own protected activity.12 These cases are inapposite, however, because the activity for which Frank Diamond was allegedly being punished through his daughter's layoff was not protected union activity 13 but, rather, was activity for which he himself could lawfully have been separated. ° Particularly because the strike was still in progress at the time of the hearing, the mere absence of evidence that Re- spondent ever expressed unwillingness to take back Frank Diamond himself does not establish that Respondent had already condoned his strike misconduct-and, therefore, could not have lawfully terminated him-when laying off Miss Diamond." Nor is there merit to the General Counsel's contention that the evidence fails to show that the individual who threatened Moenssens was in fact Frank Diamond. I infer that Moenssens' visitor was in fact Frank Diamond from the uncontradicted evidence that Frank Diamond partici- pated in the strike; participated in the May 19 Esquire picketing both before and after the May 19 projection- booth incident; at or about the time of this incident was present in the theatre manager's office, from which the op- eration of the projection machines could be heard and the projection booth was readily accessible; turned toward the projection booth, and away from the exit through the lob- by, when he left the manager's office; and just prior to the strike was the last man present in the projection booth, where the next person who succeeded in operating the pro- jection machinery (Moenssens) found various parts of it credible testimony shows that they had not lived together for a period of years beginning well before Respondent hired her and Levin testified that prior to his conversation with Moenssens he had not even known that she worked at the Esquire 12 Counsel cites the following cases in this category- Ridgely Manufactur- ing Company, 207 NLRB 83 (1973); J. P Chnapko, inc, 202 NLRB 252 (1973): Colonial Press, Inc, 204 NLRB 852 (1973): Vanella Buick Opel, Inc, 191 NLRB 805 (1971); Champion Papers, Inc, 158 NLRB 978 (1966), enfd 393 F.2d 388 (C A. 6, 1968). Cf. infra, In 21 13Cf Dofflemyer Bros., 101 NLRB 205, 206-207 (1952), enforcement de- nied 206 F.2d 813 (CA. 9, 1953), Marathon Electric Mfg. Corp, 106 NLRB 1171, 1179-80 (1953), affd. sub nom. United Electrical, Radio & Machine Workers of America (UE) 223 F 2d 338 (C.A.D C, 1955) 14 See, a g, Gulf Coast Portland Cement Co, 169 NLRB 47 (1968), Food Store Employees Union, Local 347, Meat Cutters (Davis Wholesale Co., Inc ), 165 NLRB 291, 313-314 (1967), enfd. and affd. 413 F 2d 407 (C.A.D.C., 1969), remanded in part 419 F 2d 719 (C A.D.C., 1969); The Firestone Tire & Rubber Company, 187 NLRB 54 (1970), enforcement denied 449 F 2d 511 (CA. 5, 1971). is Longview Furniture Company, 100 NLRB 301, 305-307 (1952), modified 206 F.2d 274 (C.A. 4, 1953), Merck and Company, Inc, 110 NLRB 67 (1954); Dubo Manufacturing Corporation, 148 NLRB 1114, 1119, (1964), enfd . 353 F.2d 157 (C.A. 6, 1965). ". condonation may not lightly be presumed." Complete Auto Transit Inc, 134 NLRB 652, 658 (1961) In all the cases cited by the General Counsel, the employer had at the very least affirmatively stated that it would reinstate the misbehaving strikers. As a matter of initial impression, I am receptive to a contention that a condonation showing sufficient to ban personnel action against Frank Dia- mond himself would likewise ban Miss Diamond's subsequent layoff for the purpose of punishing him for his condoned conduct However, I do not regard this proposition as being clear enough to warrant the General Coun- sel in assuming it without discussion ; and I find it unnecessary to reach a definitive conclusion as to its validity 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concealed. Moreover, Moenssens' visitor identified himself to Moenssens as the projectionist; and Miss Diamond, al- though present in the hearing room when Moenssens gave a physical description of his visitor, did not testify that this description was inconsistent with her father's appearance. Furthermore, because Frank Diamond would likely be more favorably disposed toward his daughter than toward the employer against which he was currently striking, the unexplained failure of either Miss Diamond or the General Counsel to call him as a witness leads me to infer that his testimony would not have been favorable to their cause.16 In my view, such evidence preponderantly points to Frank Diamond's guilt in the incident involving Moenssens, whom he had never met before, notwithstanding Hibbard's credible testimony that Frank Diamond "seemed to be good friends" with Charles Lloyd, who acted as projection- ist after Moenssens left and while the strike was still in progress. In any event, I conclude that because Respondent has shown by a preponderance of the evidence that in laying off Miss Diamond it acted in the good-faith belief that Frank Diamond had engaged in strike misconduct, and because such misconduct (if in fact committed) would con- stitute a valid defense to her layoff, her layoff could not be found unlawful unless the evidence preponderantly showed (as it plainly does not) that Frank Diamond had not in fact engaged in such misconduct. Under Board law and the weight of judicial authority, the burden of establishing in- nocence would devolve on the General Counsel if the issue were the propriety of similarly motivated action against Frank Diamond himself." Initially, in such a case, Re- spondent would have the burden of showing a fact which, if true, would be peculiarly within its own knowledge- namely, that its action was motivated by a good-faith belief that he had engaged in strike misconduct. While even such a showing would not conclude the issue if Respondent erred in its belief that it was Frank Diamond who threat- 16 Golden State Bottling Company Inc. d/b/a Pepsi-Cola Bottling Company of Sacramento v N.L R B., 414 U.S. 168, 173-174 (1973); Laborers ' Interna- tional Union of North America, AFL-CIO, Local No. 83 [Fry, Inc.], v. N.L R.B., 497 F 2d 1337, 1339 (C.A. 6, 1974), N.L R B. v. Ohio Calcium Company, 133 F.2d 721, 727 (C.A. 6, 1943); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) [Gyrodyne Co J v. N L R B., 459 F.2d 1329, 1335-39 (C.A.D.C , 1972). 17 Dallas General Drivers, Warehousemen and Helpers, Local Union No 745 [Farmers Cooperative Gin Association] v. N.L.R.B, 389 F.2d 553, 554-555 (C.A.D.C., 1968), and cases cited . See, however, Kayser-Roth Hosiery Com- pany, Inc. v. N.L R.B, 447 F.2d 396, 400 (C.A. 6, 1971), ("The alleged act and the particular striker's guilt thereof must be proven before the Compa- ny is justified in denying him reinstatement N L R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964); N L R B. v. Cambria Clay Products Co., 215 F 2d 48 (6th Cir 1954).") The Board had found in Kayser-Roth that the General Counsel had sustained his burden of proof with regard to this striker. 187 NLRB 562, 572 (1970) (Henderson). Moreover, Kayser-Roth involved unfair labor practice strikers , whose inclusion in a reinstatement order notwith- standing alleged strike misconduct turns on the remedial consideration of whether their misconduct outweighs the employer's and, therefore, may call for burden-of-proof rules different from those applicable where, as here, the issue is whether the employer's personnel action constituted a statutory vio- lation in itself. See J. H. Rutter-Rex Manufacturing Company, Inc, 158 NLRB 1414, 1418, 1448-49 (1966), modified 399 F.2d 356 (C.A. 5, 1968), employer's petition for cert denied 393 U.S. 1117, reversed in part 396 U.S 258 (1969). ened Moenssens (Burnup & Sims, supra, 379 U.S. 21).18 once Respondent had discharged its burden of showing good faith (as it has done here) the General Counsel could maintain his complaint only by preponderantly estab- lishing a fact which, if true, would be peculiarly within Frank Diamond's knowledge-namely, that he had not en- gaged in the misconduct alleged. This allocation of the bur- den of proof flows at least in part from equitable consider- ations. The essential problem presented by an ordinary Burnup & Sims-type case is that loss must somehow be allocated between two blameless parties-an employer who in good faith-seeks to exercise his right under Section 10(c) to discharge an employee for "cause," and an em- ployee who is in fact innocent of the misconduct ascribed to him. Where (as here) the employer has discharged the burden of showing subjective good faith (a matter pecu- liarly within its own knowledge), it is fair to permit the employee to prevail against his honest employer only if the employee, in turn, affirmatively proves that he himself is likewise innocent (a matter peculiarly known to him).19 These equitable considerations are applicable here with al- most equal force, because Frank Diamond's testimony is as a practical matter less available to Respondent than to Miss Diamond and counsel for the General Counsel. In- deed, even if this were not the case (for example, if Re- spondent had erred in believing them to be related), the same result is at least arguable from Burnup & Sims' refer- ence to the deterrent effects, on employee freedom to par- ticipate in protected activity, of discharge action "on false charges." The inhibiting effect of a layoff for a supposed relative's misconduct in a concerted-activity context would be less where (as here) the lawful reason which the employ- er advances therefor to the employee is not undermined by an affirmative showing of the supposed relative's inno- cence. Finally, counsel for the General Counsel contends that Miss Diamond's layoff was unlawful because "inherently destructive" of employee rights in that it discouraged Miss Diamond in the exercise of her statutory right to refrain from joining the strike.20 I do not agree that Respondent's conduct had or tended to have such an effect. After the strike began, Respondent continued to accept Miss Diamond's services until the Moenssens incident; so far as the record shows, Respondent continued to accept the services of all other nonstrikers at all material times; and Respondent told her that she was being laid off lest she "finger" someone-a statement on the heels of the conver- sation during which Moenssens revealed his address and school to Miss Diamond, learned that the projectionist was her father, told her that the projectionist had threatened him with a beating, and said that in consequence of the threat Moenssens was quitting the projectionist's job. Such circumstances made it wholly clear to Miss Diamond and the other nonstrikers that her layoff resulted from her abili- ty to help her father carry out his threats of violence to 18 Accord: Cambria Clay, supra at 53-54. 19 See Ohio Associated Telephone Co. v. N.L.R.B, 192 F.2d 664 (C.A. 6, 1951). 20 Counsel relies on N.L R B v. Great Dane Trailers, Inc., 388 U.S. 26, 32-34 (1967). NORTH DIXIE THEATRE, INC. prevent the operation of the theatre, and not from her will- ingness to help Respondent continue theatre operations during the strike 21 In view of my findings regarding the role played by the projection-booth incident in Respondent's decision to lay off Miss Diamond, I find it unnecessary to determine whether, even absent this incident, Respondent could law- fully have laid her off for the sole purpose of forestalling her from accidentally revealing substitute projectionists' identity to her striking father. Cf. Joseph Schlitz Brewing, supra; Celanese, supra at 725; Great Dane, supra at 33-34. 21 Counsel for the General Counsel further cites three cases which I read as holding unlawful the discharge of a union activist 's relative because the relationship had led the employer to suspect or anticipate protected union activity by the dischargee : J. P. Stevens & Company, Inc, 179 NLRB 254, 265-266 ( 1969), enfd. 441 F.2d 514, 519 (C.A. 5), cert denied 404 U.S. 830(1971); Carolina Quality Concrete Co., 193 NLRB 463, 468-469 (1971), Superior Microfilm Systems Inc., et a! d/b/a B. G Management Company, 201 NLRB 555 (1973), enfd . 485 F.2d 681 (C.A. 3). As is suggested by the General Counsel's contention that Miss Diamond's layoff infringed on her right to refrain from striking, this class of case is irrelevant here. Both Levin and Moenssens testified that they apprehended inadvertent "fingering," not "fingering" in a deliberate effort to help the strikers' cause Accordingly, they did not apprehend from her any conduct which would be concerted CONCLUSIONS OF LAW 315 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(1) or (3) of the Act by laying off Mary Sue Diamond. [Recommended Order for dismissal omitted from publi- cation.] activity so far as her rights were concerned. Cf. N L R.B v Union Carbide Corp, 440 F.2d 54, 56 (C.A. 4), cert denied 404 U.S. 826 (1971). In any event, a deliberate effort by Miss Diamond to identify replacement pro- jectionists for her father for the purpose of enabling him to threaten them with strike-related violence would not be protected activity by her. Cf. Jo- seph Schutz Brewing Co, 211 NLRB 799 (1974); Celanese Corporation of America, 95 NLRB 664, 725 (1951) Nor is there any evidence that Miss Diamond, who until her layoff reported for duty as usual throughout the strike, was in any respect concerned with its outcome. In view of this absence of any context of protected union activity by Miss Diamond (either actual, suspected , or apprehended), her layoff was not rendered unlawful by the absence of any blameworthy conduct ( even sus- pected or apprehended) by her, Cf Complete Auto Transit, supra at 659-660: N.L.R.B. v. McGahey, et al., d/b/a Columbus Marble Works, 233 F.2d 406, 413 (C.A 5, 1956)