Wehrenberg Theatres, Inc. d/b/a Melba Theatre and Skyvue Drive-In

DECISIONS O()F NATIONAL LABOR RELATIONS BOARD Wehrenberg Theatres, Inc. d/b/a Melba Theatre and Skyvue Drive-In and Local 143, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada. Case 14-CA-14498 February 9, 1982 DECISION AND ORDER BY MI.MBI RS FANNING, JENKINS, AND ZIMMI RMAN On April 21, 1981, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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, as modified herein, and to adopt his recommended Order. 2 The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging its employee, Richard Hol- lander, on November 20, 1980. Although in reach- ing this finding, the Administrative Law Judge omitted certain facts pertinent to a consideration of Respondent's conduct, we agree with the Adminis- trative Law Judge's conclusion that Respondent unlawfully discharged Hollander. Respondent operates a number of movie theaters in the St. Louis, Missouri, area. Involved in this proceeding are its Melba Theatre and its Skyvue Drive-In, located in De Soto, Missouri. The Melba Theatre, an indoor facility, customarily operated between September and May. The Skyvue Drive- In generally opened in March and closed between September and November. I Respilidelt has excepted to certail credihility finldirigs made h, the Administratire I aw Judge It is the Board's estahlished policy nlot ito overrulc aln adlrlinistraltisve law Judges resoluti llnls ssiilh respect It crcdi- hilily unless the clear preptonderaince of all of' the relcs all esiderlcz on- Onces us Ihat the resolutions are irnc'rrecl Sitidur/d Div Ha1l IPriju('i.. Inc, 91 Nl RB 544 (15()). eilfd 188 F2d 352 (3d Cir 1'51) , We have carefully eanmined Ihe record ad ld II no basis for reversing his /llidings. 2 For the reasons sect Forth in his dissentinig oijlniols ill ilovlU ,ftidi)lw. hi., 213 Nl RH 797 (1978), atll P'urlga oy (s rv'¢t' ((arvo In.. 194 Nl RH lh (1971). M hember Jenkins sosuld nriot inlcludel Rn Piierce in the Iit finding s s a resull. onl, one enlployee remajnilng in the unlit. Mclnher Jenkins wotlid not join his colleagues inr finding that Respoindent violated Sec 8(a)(5) of the Act when it refused to hargainl with the Utnron. nor wouid he issue a hargainitlg order (See .Soronmu-:laurin Puhli/shi/g ( o.. 172 NLtRH 025 (I 6h8) ice does. ho'wever, agree with ithe 8(a)(3) siolation fiutund ill this priccedi tg.i r id sould issue a hargaininlg order if hc cionsldi ered Ron I'ierce to he inclaudd in the unlit Throughout the year, Respondent normally em- ployed three projectionists. During the spring and fall overlap periods, there were generally 15 pro- jectionist shifts. Claude Pierce, an admitted super- visor, worked six shifts per week at the Melba The- atre. A second projectionist worked at the Melba during Claude Pierce's day off and also took four to five weekly shifts at the Skyvue Drive-In. The third projectionist worked two to three weekly shifts at the Skyvue Drive-In. During the period when only one theater was open, Claude Pierce generally worked six shifts and the two remaining projectionists alternately worked during Claude Pierce's day off. In early 1980, prior to the Skyvue Drive-In's reopening, Respondent employed Claude Pierce as its primary projectionist and su- pervisor. Claude's sons, Ron and Mike, were the second and third projectionists. In the summer of 1980,3 Respondent broke with tradition and did not close the Melba Theatre. It kept the theater open for a showing of the popular film "The Empire Strikes Back." Throughout this period, the Skyvue Drive-In was also open. When combined, the numerous daily showings of "The Empire Strikes Back" and the customary evening showings at the Skyvue Drive-In produced 21 pro- jectionist shifts. To handle the increased workload, Claude Pierce hired Keith Singer in June, when the special film showing began. Throughout the summer, Singer worked with Claude Pierce at the Melba Theatre. In September, Singer returned to college. When he left, Respondent did not termi- nate him and it was understood that, when Singer returned for weekends, he could request to work at the theaters. At the Skyvue Drive-In, Ron Pierce was the pri- mary projectionist during the summer of 1980. He generally worked all seven shifts a week. Mike Pierce, the second projectionist, worked only when Ron could not. Sometime in the late summer, Mike Pierce informed Claude Pierce that he no longer wanted to work at the theaters and would come in only if an emergency warranted it. Thereafter, Richard Hollander asked Claude Pierce for a job. In September, Pierce hired Hollander, and Mike Pierce stopped working at the theaters. At this time, "The Empire Strikes Back" was still showing at the Melba Theatre, and the Skyvue Drive-In was also still open. From his hire until his dis- charge in mid-November, Hollander worked ap- proximately three shifts per week at the Skyvue Drive-In. 4 ' All dates are in 1980 unless it is otheruise indicaled 4 (laiude Pierce testified that, uhenl he hired Hollander. he did not tell hilil tl;l hs jobh would last only throlugh the fall of I(80 Pierce testifed Contrinued 260 NLRB No. I 18 MELBA THEATRE On October 16, Claude Pierce and his son, Ron, met with a representative of the Charging Party Union and signed authorization cards. Claude Pierce left a blank authorization card for Richard Hollander, who signed it on October 18 in Ron Pierce's presence." By letter dated Octer 22, the Union demanded recognition by Respondent. Re- spondent rejected the Union's request in a letter dated November 6. On two occasions early in November, Claude Pierce met with Respondent's vice president, A. R. Parker, in St. Louis. Parker told Pierce to "get rid" of Richard Hollander when he closed the Skyvue Drive-In for the winter. On November 16, Claude Pierce closed the Skyvue Drive-In. At the time the drive-in closed, Claude Pierce disregarded Parker's instruction and began scheduling Hollander for work at the Melba Theatre. Ron Pierce was also to work at the Melba Theatre. On November 20, a special courier from Respondent's St. Louis office delivered an envelope to Claude Pierce. Pierce had never before received correspondence from Re- spondent delivered in this manner. The envelope contained a note from Vice President Parker which directed Pierce to sign the enclosed letter ad- dressed to Richard Hollander." Pierce did not sign the letter; instead, he handed it to Hollander and said he did not agree with it. The letter stated, niler alia, that Hollander was separated from Respond- ent's employ, and that no commitment as to future hiring could be made. This was the first time in the 18 years that Claude Pierce had managed the De Soto theaters that a projectionist had been laid off or terminated. Following Hollander's separation, Respondent employed only Claude and Ron Pierce at the De Soto theaters, although, as noted, it was Respond- ent's practice in the past to employ three projec- tionists throughout the year. In situations where neither Claude nor Ron Pierce could work, Re- spondent could not call on Keith Singer, who, during this period, was generally away at college. thal he thllught he Illi )Hollander tlhat Hollander might wvork It Ihe Melba Theatre henil the Sks.uclr I)ri'e-ln clo,ed for the 'ilnier H1A1- lander testified that Claude P'ierce told him , hen he as. hsred thal. when Ihe drive-in cloSed. depending (on Ihe amorunt of time Ron l'iwrLC wanted to work. Hollander night i.ork I nighl a week al IhC Melha Theatre The Adminisrati. e I .a Judge did not pas, orn his ciliinlmll t The Administrative l.aA Judge found, and Ae agree. that C'laude Pierce's Involismenltl In the securing of the liuthorization cardi (id inot laint the Urnio\ll' nlajorls support rctlri lcd hb the card, ` The envelope sient to l(lulecR 'ire also inclulded a )ctter to (l laudc I'lerce wheich described Ron i'Irce'r its aln "Assisltnl Manager" and ifMted various alleged super,-. rs dutlic, prssicised hb such "Asssist(an Mlliag er " The Adinmilstratl.e I as, Judlge ou and and vs agree. that Rep,lpot ent's letter concerninr g Ron I'icrces ;i}}c gtf superxlsorn stat us nlrc l) ic fecgs an attempt by , Rcepoldctil to confer on Rgi P'icrce thi aIppearallrC oaf sucli status ill order tl suilpporl hl, excluolsioll iroill h}) ut ill A 5\ lid 11c Administrative .gai Judge , , t. reC I d Rc, pondetllt' a.ittempt tr deIls Ron I'ietrec vtnpl oec liltit Singer worked only when he came home to visit. That fall, he worked on a few weekends and during his Christmas vacation. Nor could Respond- ent depend on Mike Pierce's assistance; even when called on in an emergency during the months fol- lowing Hollander's dismissal, Mike Pierce some- times refused to work. After Hollander's dismissal, Mike worked only a few times during the month of December. Based on the above, we conclude that Respond- ent discharged Richard Hollander in retaliation for the employees' support for the Union, and not, as Respondent contends, because Respondent had closed the Skyvue Drive-In for the winter and needed to reduce the number of projectionists it then employed. Respondent does not dispute that it had traditionally employed three projectionists at the De Soto theaters, and that it had never before ordered the dismissal of one of its projectionists. Instead, Respondent has asserted that at the time it ordered Claude Pierce to dismiss Hollander it em- ployed five projectionists at the De Soto theaters and sought, by discharging its newest hiree, Hol- lander, to return to the traditional three employees. Respondent asserts, too, that it had hired Hollander to help with the extra shifts created by the special showing of "The Empire Strikes Back." When this movie ceased playing, Respondent argues, the reason for Hollander's employment ceased also. The facts, as described above, however, establish the pretextual nature of Respondent's contention that it dismissed Hollander for business reasons. Contrary to Respondent's assertion, it effectively employed only three projectionists in De Soto before it fired Hollander. As indicated above, nei- ther Keith Singer nor Mike Pierce was a reliable backup projectionist during the fall and winter months of 1980. Following Hollander's discharge, only two projectionists, Claude and Ron Pierce, re- mained. They received only minimal assistance from Mike Pierce and Keith Singer. It is noted that Respondent contends that its aim was to return its projectionist staffing to its customary level of three; Respondent has not contended that it sought to reduce the number of employees to less than the number it traditionally employed. That Hollander's dismissal left only two projectionists renders Re- spondent's contention implausible. Moreover, the timing of Hollander's and Singer's hiring demon- strates that Respondent hired Singer, not Hol- lander, to cover the added work which resulted from "The Empire Strikes Back" showings; Re- spondent hired Richard Hollander, instead, to fill the position held by Mike Pierce, who no longer wanted( to work at Respondent's theaters. 19 DECISIONS OF NATIONAL I AHBOR RELATIONS BOARD Respondent's otherwise unexplained break with its tradition of not discharging projectionists at a season's close, a change in its practice which ren- dered its De Soto theaters comparatively under- staffed, can be explained only in light of the Union's recent request for recognition. Respond- ent's unprecedented direction that Claude Pierce dismiss Hollander, the manner in which Respond- ent communicated that direction to Pierce, and the dismissal's proximity in time to the Union's request for recognition indicate that Respondent was not acting to reduce its projectionist complement. These facts indicate instead that Respondent's dis- missal of Hollander was in response to the Union's request for recognition. That Respondent sought to erode its employees' support for the Union after the Union had requested recognition is also illus- trated by Respondent's letter to Claude Pierce which attempted to designate Ron Pierce as a stat- utory supervisor. As noted, Claude Pierce received this letter along with Hollander's illegal notice of termination. Based on all the above, we conclude in agree- ment with the Administrative Law Judge that Re- spondent dismissed Richard Hollander soon after the Union's request for recognition in order to re- taliate against its De Soto projectionists for their support of the Union and to erode the Union's sup- port among its projectionists. We further conclude that, by such conduct, Respondent violated Section 8(a)(3) and (1) of the Act, and also that a bargain- ing order is warranted on the facts of this case as described by the Administrative Law Judge. 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Wehrenberg Theatres, Inc. d/b/a Melba Theatre and Skyvue Drive-In, De Soto, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 7 In accord.ance i. ih his disscni if? O)i'npi l'ci(,d (!;rpral iot, 250 NIRB 14I i (1' ), MNicliber Jenkin,s vuoild ;saird inlcrcl iII tiI hialkpa.N duic hascd on tllhe frmula ic (,frth thercin APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT discourage membership of our employees in or support of Local 143, In- ternational Alliance of Theatrical Stage Em- ployees & Moving Picture Machine Operators of the United States and Canada (herein the Union), or any other labor organization, by discharging any of our employees or discrimi- nating in any manner in respect to their hire and tenure of employment or any term or con- dition of employment, in violation of Section 8(a)(3) of the Act. WF WILL NOT refuse to recognize or bar- gain collectively with the Union as the exclu- sive bargaining representative of all our em- ployees in the unit described below with re- spect to rates of pay, wages, hours, and other terms and conditions of employment: All projection employees employed by us at our De Soto, Missouri, Melba Theatre and Skyvue Drive-In facilities, excluding office clerical and professional employees, guards, and supervisors as defined in the Act and all other employees. WE WI.L NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act. Wt. wii. offer to Richard Hollander imme- diate and full reinstatement to his former posi- tion or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights and privileges previously enjoyed, and make him ,whole for any loss of pay he may have suf- fered, with interest. WI. wi.t., upon request of the Union, bar- gain collectively with it as the exclusive repre- sentative of all of our employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WI ;IRIRNBI(R(, Tit(AT' Ri-.S, INC. I)/B/A MtF s. TIII A I RI ANID SKYVU1 DRIV' -IN 20 M EB1A lI IATRE [: DECISION SIATI-FMILNI 01 Iilt CASEt FIN)ING(S 01 FAc'I ANI) CON(I USIONS O0 LANw BFlNJAMIN SC eI I SIN(Il.R, Administrative Laws Judge Respondent Wehrenberg Theatres. Inc., a corporation duly authorized to do business under the laws of the State of Missouri, with its principal office and place of business in St. Louis, Missouri, is engaged in the retail moving picture business ow ning and operating numerous movie theaters in the vicinity of St. Louis and, in partic- ular, the tw o theaters in olved herein, Melba Theatre and Skyvue Drive-in, both located in De Soto. Missouri. During the 12 months preceding the issuance of the com- plaint, a representativ e period, Respondent in the course and conduct of its business operations derived gross rev- enues in excess of 500,000 and rented and caused to be transported and delivered at its St. L ouis, Missouri. place of business, films, goods. and materials valued in excess of 550,000, of which films, goods, and materials wvere transported and delivered to its St. Louis place of busi- ness directly from points located outside the State of Missouri. I conclude, as Respondent admits, that it is nowV and has been at all times material herein an emplov- er engaged in commerce withlin the meaning of Section 2(2), (6), and (7) of the Act. I further conclude, as Respondent admits, that Charg- ing Party Local 143, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of United States and Canada (herein called the Union), is a labor organization within the meaning of Section 2(5) of the Act. On October 16, 1980,2 Claude Pierce, manager of both Melba and Skyvue and an admitted supervisor under Section 2(11) of the Act, and his son, Ron, met at the Union's office and signed cards authorizing the Union to represent them as their collective-bargaining representa- tive. Claude brought a blank card back with him and left it for employee Richard Hollander, who signed the card on October 18 in Ron's presence and returned it to the Union. The Union's president, believing that the Union represented a majority of the projectionists at both the- aters,' demanded recognition from Respondent by letter dated October 22. By letter dated November 6, Respond- ent, by its attorney, replied that it doubted the Union's status as representative of "an uncoerced majority of em- ployees in a unit appropriate for collective bargaining," and rejected the Union's request. Shortly thereafter, as was customary because of cold and inclement weather, Skyvue, an outdoor theater. was closed for the winter on November 16; and on Novem- ber 20, Claude gave to Hollander the following letter, which read (including typographical errors) as follows: z The relevant dockel entries are ars filloh's t'he charge was filed on December 3. 198); the complaint issued on Januar) 13. 1981 and the hearing was held (on February 23. 1981. in S t luls% Missouri 2 All dales set filrth herein refer to the year 1980. unless otherwise stated :' The Union represents solely proleclionists. It is the bargaining repre- sentalive a al l of Respondent' other 22 Iheaters In the St I.oui', area I just wanted to confirm our discussion on your separation from our De Solo Theatre. I appreciate your work efforts and wish the job could have lasted longer, but that is something beyond anyones control. Likewise, I can't make any sort of commit- ment to you as to hiring. The best I can do is wish you the best of luck in the future and hope you find a replacement job quickly. First, Respondent contends, s ithout any explication. that Hollander was laid off, and not discharged, as the General Counsel alleges. The law is well settled that a discharge will be found if Respondent's letter "-sould logically lead a prudent person to belie e his tenure has been terminated." Ridgew'n , 7rucking Cornpavy. 243 NLRB 1048, 1049, fns. 5 and 6 (1979), enifd. 622 F.2d 1222 (5th Cir. 1980). Here, the omission of the word "layoff' is obh ious; and, although there is perhaps an in- kling of future employment, the letter announced that Respondent could not make any commitment "as to hiring." not recall or reinstatement. Further. the letter implies a discharge in the word "separation" and in the wish that Hollander's "'job could have lasted longer." There is nothing in the letter to indicate that Hollander would be rehired when Skyvlie reopened in the spring. I find that the letter was intended to effectuate the dis- charge, not the layoff. of Hollander and wvas so interpret- ed by Claude Second. Respondent claims that there is no proof that Hollander's discharge violated Section 8(a)(3) and (1) of the Act. I find and conclude otherwise. It had never been a practice to lay off any projectionist in the 18 vears that Claude managed the two theaters, and it vwas wholly unique for Respondent's vice president, A. R. Parker, to prepare the November 20 letter and to direct Claude to deliver it to Hollander. Because Parker did not testify, it may be inferred that there was no reason for his actions other than Hollander's union activities. Parker spoke s ith Claude after Respondent received the Union's demand for recognition ' and told him to "get rid" of Hollander after Skyvue closed. Because the Union's demand was made only after Hollander had been hired in early September, Respondent could well have assumed, through a process of elimination involving at most four employees within the appropriate unit, that Hollander, its most recent employee, was part of the Union's claimed majority. And, in order to destroy what- ever basis the Union still might have had for its claim. Parker wrote to Claude" defining the functions of "As- sistant Managers (at the present time your son Ron)" in a manner that would make it appear as if they were super- visors and thus were excluded from the application of the Act. C4 laude testified that this coni.er,,aion took place I or 4 weeks prior to todlander's lermit nlalln, i hich A. ould place It sornewhtre hetvcecn ()iIhber 21 and 301 [ i it'. B eu of Responderlt ' , urltLUItLI ind precipitate ai- tlnS I li i ti thil tIe fon'rTrsa3ti n occurred coIser to ()c tober i30 or at least after Respondenti had receved the U;rnll s demnand letter :' Ihis letter as well .as the one prepared fior Iransmlttal to fllliander sere hiandl diellvered to Claude hy speciaal courier. ,s lhl s',ould 1lo t dClls r the d¢ncunitens to aorlyIne hbt Claude Ncvcr belfore had Respondent oIl- rllllii,.itcd \s ith ('lm de in tilS nnalller 21 I)1 C ISI()NS ()F NAI ()ONAI. I AH()R REL.ATIONS H()ARD The discharge of Hollander without anly reason and Respondent's definition of the terms of employment of the other employees could have meaning only in light of the Union's demand for recognition. Although Hlol- lander's union adherence was not directly klnown to Re- spondent (other than to Claude, who in this instance \ as aligned with the interests of the employees), Respondent knew that there were union activities being engagel in. That is sufficient know ledge ini these circumstances. Third, Respondent contends that, at all of its other theaters, the Union has been recognized as its employees' bargaining agent and that there hav e been amicable labor relations, without union animus, throughout its oper- ations. IHowever, the precipitate discharge of Hollander cannot be easily explained consistent with it lack of animus. The discharge vas the coup de grace which was intended to discourage employees from supporting the Union. The General Counsel argues that this single discharge is sufficient to support a bargaining order under .N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), which dictates that tile Board weigh the quality and quantity of the violations in order to decide whether their lingering effects can be cured by the relief which the Board normally grants in the circumstances (here, backpay, reinstatement, and a notice, with the Uniion having the right to petition for an election) or whether the interests of the Act are better served by utilizing the cards signed by a majority of employees ii the appropri- ate unit as proof of the Union's majority status. Before proceeding to any other issue it must be determined whether the Union had such a majority, the appropriate unit being stipulated herein as: All projection employees employed by the Re- spondent at its De Soto, Missouri, Melba Theatre and Skyvue Drive-In facilities, excludinig office clerical and professional employees, guards, and su- pervisors as defined in the Act and all other em- ployees. The record shows that there were at least five protjec- tionists during the year preceding the Union's demand. one of whom, Claude, was admittedly a supervisor. An- other was Claude's second son, Mike, as to whom the record shows declining employment since early summer 1980 when Mike first indicated to Claude that he had an- other job and, later, when Mike stated that he would work as a projectionist only if absolutely necessary. That statement led to the hiring of Hollander and from Octo- ber to December 1980 Mike worked only I night.' I find that Mike removed himself from regular employment and was, at the time of the union demand, only the most casual of employees. [le may not be included within the appropriate unit. Another employee, Keith Singer, although employed five or six shifts weekly in the summer, left for college in I No payroll records were introduced in evidence. I his indling is based on the testimony of Claude, who recalled that Mike recetied a paycheck in December and was unable to remember if Mike .orked im October and Novemhber. If he had additional and regular empliinsmetI. surely Respondent would have produced esidence Iot that effect Septemiber. Thereafter, he worked some weekends and o er the Christmas holidays. Claude could recall only that lie "worked several times" but could not remember ho w many I he general Board rule is that "college stu- dents w ho perform full-time unit \wsork during the suiimmer months as well as part-time unit work on a regu- lar basis during the remainder of the year are to be in- cluded in the unit . The determinative criteria as to whiether students are to be included in a unit appears to be the regularity of their part-time employment [wvhich may be as little as I day per week.]" Centurv Moving & Storagc, Inc., 251 NLRB 671, 681 (198()) and cases cited therein. Although I am satisfied that Singer was an em- ployee during the summer, he maintained no regularity of employment once he wenlt to college and worked only sporadically thereafter. He is not an employee w\ithin the appropriate unit. 7 These filidings leave two employees within the unit, Ron arid Hollander, both of wihom signed cards author- izing the Union to act as their collective-bargaining agent. Respondent argues, however, that the cards are tainted because of Claude's participation in their sigiing. Hoswever, in El/ Rcanlco Vlurket, 235 NLRB 468, 473-474 (1978), erinf(. 03 F.2d 223 (9th Cir. 1979), the Board stlated: T his Board has long recognized that a supervi- sor's involvement in organizational activities will taint a union's card majority only where the super- visor's participation may be said to have deprived employees of the opportunity to exercise free choice in selecting a collective-bargaining repre- sentative. In explicating this principle. [The Board has] pointed out that at a minimum it must be affir- matively established either that the supervisor's ac- tivity was such as to have implied to employees that their employer favored the union or that there is cause for believing that employees were coercively induced to sign authorization cards because of fear of supervisory retaliation. Although the precise nature of the events which gave rise to the attempt of Claude and the two employees to seek the aid of the Union was not fully elicited, appar- ently there was some dispute about the reduction of their wages, which caused Claude and the employees to be equally upset. The three of them were, therefore, taking sides against Respondent and there is no cause for belief in this record that either Ron or Hollander were fearful of retaliation from Ron's father. Having found, therefore, that the unit consists of two employees, both of whom signed cards, I find and con- clude that the Union represented, as of October 22, an uncoerced majority of Respondent's employees and that Respondent violated Section 8(a)(5) and (1) of the Act Responderil' aulhoiriries ll support of a contrary result are distin- guishahlc Here, Singer removed himself from regular emplorymenl be- causc olf his atnendance at college: Mike. because of his oean personal de- sires As ;I result, neither hald regularily of emphlymenlt nor availability for rcgulalr or evenL irregular cnplipmtnii opporlrlllunies f-irlhermore, Ihat both swoirked sporaditallI is aitribulable solely Io t he unaa.ailahility tor Aork Io tilll;laIder. E. ho t hi, hal heenI disch targed 22 MEI-13A THEATRE by refusing to recognize the Union and to bargain with it. Instead, by terminating the employment of Hollander, Respondent discharged one-half of its employees. result- ing in a unit of one employee, which the Board has long held cannot constitute an appropriate bargaining unit. Further, as noted above, Respondent made a concerted effort to remove even Ron from the unit by designating him a supervisor. I am not persuaded that he is such. Rather, he is primarily a projectionist w ho has some duties during the periods of time Claude is not present at one of the two theaters. -HowAeser, Claude is on call, 24 hours a day; and, in agreement with the General Coun- sel, I find that Ron has no actual supervisory responsibil- ities. Pacific Drive-In Ilheatrce, Corp.. 167 NLRB 661 (1967), Sameric Corporarion, 253 NLRB 345 (1980). In these circumstances, the termination of one of two employees within the unit is most effective in destroying election conditions for a long period of time, and I find that the lasting impact cannot be mitigated by anything short of a bargaining order. Occ idental Paper Corporation, 227 NLRB 719 (1977). The impact of Respondent's ac- tions could hardly be misunderstood by Hollander, upon his return to employment, or by Ron, who may be well aware that his union activities may *well be a threat to his and his father's livelihood. In the circumstances, the em- ployee sentiment demonstrated by the union authoriza- tion cards is better protected by the issuance of a bar- gaining order, effective as of November 20, 1980, the date on which Respondent discharged Hollander. Cas Walker's Cash Stores Inc., 249 NLRB 316, fn. 3 (1980). Furthermore, because I have found Respondent's viola- tion to be egregious, I shall also recommend the issuance of a broad cease-and-desist order. Hickmott Foods,. Inc., 242 NLRB 1357 (1979). In addition, having found that Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the pur- poses and policies of the Act. Specifically, I shall recom- mend that Respondent be ordered to offer Richard Hol- lander reinstatement to his former position, or, if such position no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or any other rights and privileges previously enjoyed, and to make him whole for any loss of earnings he may have suffered since the date of his discharge, computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).R THE EFF CtI OF rTH UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, occurring in connection with Respondent's operations described above. have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to "See, generally, Isv Plumbing d& leating Co., 138 NLRB 716 (1962), In connection with compliance with this Decision, I credit Ron', testimo- ny that, while only Melba was operating, he and Hollander wsould haie alternated their duties as projectlonists lead to labor disputes burdening and obstructing com- merce and the free flow thereof. Upon the foregoing findings of fact, conclusions of law, and the entire record. and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 The Respondent, Wehrenberg Theatres. Inc., d/b/a Melba Theatre and Skyvue Drive-In, De Soto, Missouri, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership of its employees in or support of the Union. or any other labor organization, by discharging any of its employees or discriminating in any manner in respect to their hire and tenure of employment or any term or condition of employment, in violation of Section 8(a)(3) of the Act. (b) Refusing to recognize or bargain collectively with the Union as the exclusive bargaining representative of all employees in the unit described below with respect to rates of pay, wages, hours, and other terms and condi- tions of employment: All projection employees employed by Respondent at its DeSoto, Missouri, Melba Theatre and Skyvue Drive-In facilities, excluding office clerical and pro- fessional employees, guards, and supervisors as de- fined in the Act and all other employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Richard Hollander immediate reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights and privileges previously enjoyed, and make him whole in the manner provided above for any loss of pay he may have suffered from the date of his unlawful discharge, until the date of such offer of reinstatement. (b) Upon request of the Union, bargain collectively with it as the exclusive representative of all of Respond- ent's employees in the unit described above with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at Respondent's places of business at De Soto, Missouri, copies of the attached notice marked "Appen- 9 In the es'ent no exceptions are filed as provided by Sec 112 46 of the Rules and Regulations of the National l.abor Relations Board. the find- ings, colclusions, and recomnmended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the HBoard and become its findings, conclusions, and Order. and all objections thereto shall he tdeemed saired for all purposes 23 I)DFC ISI()NS (): NATIO()NAI. I.AII()R RII.A'IONS BO()ARD dix.""' Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representatives, shall be posted by it im- mediately upon receipt thereof, and be maintained hy "' In1 Ihe . .,l I1h1I Ibis ()rdlcr is 1[ill'Iced h\ t JLudIgrnIlill ;1 a 11111.'d qstaltcs ( ow d I1 liit ,. ', n rds Ilr 1 tl'. Imic1.' ledili/ 1oML'd [' ()Oido lIc NationI llol Rc.laln(ms 'oilrl. shaJll rIcad "I','e d ]11r l lInl to, ., Jtlgmll l .'1 1 J' te ll , td11 S l:L's 'l C illt oIf ApIp.IIx IFlllt'iLill, iJll ()rldcr o, lhc Niltw)111l I .h r Ra cillhlll\, 11lid" - Respondent for 60 consecutive days thereafter, in con- spicuous places, including any places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 24