United Artists Eastern Theatres, Operating Valentine Theatre

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Artists Eastern Theatres, Operating Valen- tine Theatre and Local 5-A, General Trades Employees Union. Cases 2-CA-19160, 2-CA- 19254, and 2-CA-19406 16 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 19 November 1984 Administrative Law Judge Eleanor MacDonald issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Respondent has excepted, inter alia, to the judge's recommenda- tion that it be required to offer reinstatement to Felix Melendez, Gabriel Menard, and Luis Vega The Respondent contends that the dischargees admitted to misconduct which would preclude returning them to work Melendez and Menard admitted accepting gratuities from theatergoers to permit. them to see a second movie without additional charge Vega, however, confessed only to admitting an exemployee to the theater so he .could see the manager-an act the Respondent concedes was not suffi- ciently serious to warrant his discharge We find no ment in the Respondent 's contention The judge correctly found that the Respondent failed to show it. had a policy or practice of discharging employees for accepting gratuities On the contrary, Division Manager Jack Wauhop, in discussing the employees' admissions, threat- ened transfer and a possible demand for restitution but not discharge Also, the Respondent did not immediately discharge those who admitted accepting gratuities but instead waited over 2 weeks to do so In any event, although Manager Ben Rosenberg was then aware of their misconduct, he testified that he discharged Melendez and Menard for other reasons In Melendez' case, Rosenberg cited "unsatisfactory work," consisting of tardiness,. lethargy, and "slacking off" Rosenberg said he discharged Menard for a "[s]ullen attitude" and because he was "[a]rgumentative on occasion " The Respondent also demonstrated that it was willing to overlook its employees' misconduct in exchange for their forgoing union activity In response to employee David Paduani's concern regarding an impending polygraph test, Manager Rosenberg told Paduani that hig job was secure, even if he failed the test, because' he had quit union membership Al- though Paduani was told that he failed the polygraph test on 12 October 1982 and was discharged in November for "unsatisfactory work," he was rehired in 1983 at reduced hours Also, following Melendez' having ad- mitted his misconduct to a polygrapher, the polygrapher solicited an offer from Division Manager Jack Wauhop to Melendez of an assistant manager's position conditioned upon Melendez' giving up his union activ- ity Rosenberg later urged Melendez to accept the offer, although Rosen- berg then knew of Melendez' admission Under these circumstances, the Respondent cannot raise its employees' misconduct as a reason for barring their reinstatement Cimpi Transporta- tion Co, 256 NLRB 1064 fn 3 (1981), Adams Delivery Service, 237 NLRB 1411 fn 2 (1978). enfd 623 F 2d 96 (9th Cir 1980) We shall amend Conclusion of Law 2 by replacing the word "retalia- "tion" with the word "discharge," and Conclusion of Law 5 by replacing the phrase "more onerous working conditions" with the word "transfer" to conform more closely to the relevant complaint allegations and the AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 2. "2. By threatening its employees with discharge if they supported the Union, the Respondent has violated Section 8(a)(1) of the Act." 2. Substitute the following for Conclusion of Law 5. "5. By threatening its employees with transfer if they continued to support the Union, the Respond- ent has violated Section 8(a)(1) of the Act." ORDER The National -Labor Relations Board adopts the recommended Order of the' administrative law judge as modified below and orders that the Re- spondent, United Artists Eastern Theatres, Operat- ing Valentine Theatre, Bronx, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) Threatening its employees with discharge if they support the Union." 2. Insert the following as paragraph 1(e) and re- letter the subsequent paragraphs. "(e) Threatening its employees with transfer if they continue to support the Union." 3. Substitute the attached notice for that of the administrative law judge. - judge's findings We shall amend the Order and issue a new notice to em- ployees for the same reason - APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose - not to engage in any of these protected concerted activities. 275 NLRB No. 25 UNITED ARTISTS THEATRES 159 WE WILL NOT offer you inducements to abandon your support for Local 5-A, General Trades Em- ployees Union. WE WILL NOT threaten you with discharge if you support the Union. WE WILL NOT ask you to engage in surveillance of union activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten you with transfer if you continue to support the Union. WE WILL NOT discharge or otherwise discrimi- nate against you for testifying in a National Labor Relations Board proceeding, or for supporting Local 5-A, General Trades Employees Union, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Felix Melendez, David Paduani, Gabriel Nieves, Luis Vega, and Gabriel Menard immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. UNITED ARTISTS EASTERN THEA- TRES, OPERATING VALENTINE THEA- TRE DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in New York, New York, on May 7 and 8, 1984. The complaint alleges that Respondent, in violation of Section 8(a)(1), (3), and (4) of the Act, inter- rogated and threatened employees, directed its employ- ees to refrain from supporting the Union, asked its em- ployees to engage in surveillance, offered inducements to its employees if they would abandon the Union, retaliat- ed against its employees, and discharged its employees for union activities. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following' FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation with various motion picture theaters in the city and State of New York, including the Valentine Theatre located on East Fordham Road, Bronx, New York, is engaged in the op- eration of theatres displaying motion picture films for public viewing. Annually, Respondent derives gross rev- enues in excess of $500,000 and purchases and receives at its various operations goods and materials in excess of $50,000 from enterprises in New York State which enter- prises purchase and receive these goods and materials di- rectly from firms located outside the State of New York. I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and that Local 5-A, General Trades Employees Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Testimony of Felix Melendez Felix Melendez testified that he was employed at Val- entine Theatre from December 1977 until October 27, 1982. He was hired as an usher by Manager Ben Rosen- berg at a rate of $2 65 per hour. In May 1981 he was promoted to head usher at an hourly rate of $3.35, and eventually he received a raise to $3.50 per hour.2 In late August 1982 Melendez met Felix Ortiz, an or- ganizer for the Union, in front of the Valentine Theatre. On August 31, Melendez signed an authorization card for the Union and Ortiz gave him blank cards for distri- bution to other employees. Melendez gave these cards to employees Gabriel Nieves,3 Gabriel Menard, David Pa- duani, and Luis Vega, and they all signed cards on August 31, 1982, in Melendez' presence. Later that evening, Melendez returned the completed cards to ' The General Counsel's unopposed motion to correct the transcript is granted. 2 Melendez worked 6 days per week for a total of 36 hours The record shows that he was paid for 40 hours per week for performing cer- tain extra duties such as making up the schedule In the week ending Sep- tember 16, 1982, at his request, Melendez reduced his hours to only 3-1/2 hours in a 5-day week According to Melendez, he was paid for 34 hours for the first 2 weeks after this change and then he was paid for only the 31-1/2 hours he actually worked At the outset of the trial herein, a claim was being advanced that Melendez' compensation was reduced from 34 hours to 31-1/2 hours in response to his union activities, described below However, documentary and testimonial evidence presented by the Re- spondent shows that when Melendez asked to change to a 5-day-per- week schedule, Rosenberg no longer relied on him to perform any extra duties and the bonus was eliminated from his weekly wages The records support the Respondent's position, they show that Melendez continued to receive a bonus after his efforts on behalf of the Union commenced and that the extra pay was discontinued only after he requested to work a 5- day week Moreover, the General Counsel's brief makes no mention of the issue concerning Melendez' pay and I infer from this that the alleged violation has been abandoned. I find that there was thus no violation of the Act with respect to the decrease in Melendez' pay s Nieves is Melendez' brother 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ortiz. The Union then commenced a representation pro- ceeding in the Regional Office. Melendez was present at the representation hearing on September 10 and he testi- fied at an adjourned date on September 29, 1982. Ac- cording to Melendez, 1 week or so after he testified at the representation hearing, Rosenberg asked him what benefits the Union was offering him. On October 9, 1982, Melendez attended an usher's meeting held in the alley near the theater around 7 p.m. Rosenberg announced that on October 12 a polygraph test would be given to all employees and that anyone who failed the test would lose his job. Before this meet- ing, Paduani had told Melendez that Rosenberg had promised him that even if he failed the test he would not be fired. Melendez asked about this promise to Paduani at the usher's meeting; however, on this occasion Pa- duani denied telling Melendez about it . Rosenberg told Melendez to stop harassing the employees to join the Union, and Melendez replied that Rosenberg was the one who should stop harassing the employees. On October 12, Jack Stern, a polygrapher employed by Dale Systems and hired by Respondent, administered a polygraph test to Melendez. Before the test began, he asked Melendez what benefits the Union was offering him. Melendez said he did not wish to discuss the Union but only wanted to take the test. Then Stern conducted the test, asking whether Melendez had taken any money, had let anyone into the theater through the front or back doors without a ticket, had palmed tickets, or had stolen anything from the theater.4 Melendez answered "no" to the questions. While he was administering the test, Stern told Melendez that he was lying. After the test was over Stern told Melendez that a long time ago he had given a test to someone who was lying and that the person had finally admitted the lie and Stern "had him locked up." Stern also said that Melendez was "a wise guy . . . a slick guy" and that Stern would have a "cross" on him. Stern told Melendez that he had failed the polygraph test; then he administered a second test to Melendez. Later that day, Melendez saw Stern in front of the thea- ter and asked if he had passed the second test. Melendez told Stern that Stern had upset him. Stern replied that he only wanted to find out who was stealing and Melendez said "ask Rosenberg . . . he should know." Stern said a lot of money was missing and the Company wanted to know who had taken it. Stern suggested that Melendez must have taken some money in all the time he worked at the theater and he mentioned the sum of $600. Melen- dez said "No," but in response to further questions he admitted that he had received about $200 from people who have been admitted to one movie and who paid him to be allowed to watch a second movie without purchas- ing another ticket.5 Stern and Melendez then went into an office in the theater where Stern wrote out a state- ment for Melendez to sign. Melendez copied over the statement while Stern told him "that'll clear the poly- graph test up because that money is not really anything." Stern asked Melendez why he had not become an assist- ant manager in all the time he had worked for the thea- ter. Melendez replied that he had never gotten the offer. Stern then called Jack Wauhop, district manager of Re- spondent, and told Wauhop "I've got a good man here. He's been with [the theater] a long time, why don't you get him to be assistant." While Melendez was writing the statement Wauhop spoke to him on the phone and said he would see Melendez on Thursday. Melendez asked why he had never received an offer before. Wauhop said he had just become district manager and that he would do something for Melendez and arrange for him to have a commission "if everything will be dropped with the union." Melendez replied that he doubted this would be possible "because I have a lot of other people behind me." Wauhop asked him to think about it and Melendez promised to do so.6 In mid-October, Rosenberg twice spoke to Melendez in the theater lobby and said "for the statement, they're going to have that against me." Melendez told Rosen- berg that he occasionally accepted $1 to permit patrons to switch theaters "but that's like ... to get something to eat." Melendez denied stealing anything or doing any- thing wrong. About this time Melendez overheard Rosenberg telling Paduani "if he admitted that he took $200 imagine how much more he took." Melendez con- fronted Rosenberg and said "the biggest crook here is you, not me." Rosenberg replied, "[W]e all are." Soon after this, Rosenberg urged him to accept the assistant manager's job. On October 27, 1982, Rosenberg fired Melendez for "unsatisfactory work." After reading his statement given to Stern, Melendez testified that all of it was true. The statement says, inter alia, that Melendez made about $200 by permitting "a customer to go from show to show without a ticket." It goes on to say that "as of this day . . . I'll be straight as I'd like very much to be an assistant manager and make more money. The only reason a guy steals here is be- cause we don't get paid. Wouldn't steal or want any unions we just want a chance." B. Testimony of David Paduani David Paduani worked at the Valentine Theatre as a doorman beginning in 1981. About 1 week after he signed a card for the Union, Rosenberg told him he should have spoken to him before signing. Rosenberg said, "[T]he company's a big company and they're not going to tolerate something from a union like that. It won't do nothing to help us, and that eventually every- body was going to get fired." Paduani said he did not want to be fired and, at Rosenberg's suggestion, he agreed to get out of the Union. Rosenberg told Paduani 4 A palmed ticket would not be placed in the receptacle kept to collect used tickets but would be retained and resold to a patron by an employ- ee The employee would keep the fee for the resold ticket S The Valentine Theatre is a "triplex" in which three different movies are shown Admission to one movie does not permit admission to either of the other two, a separate ticket must be purchased for each movie 6 Melendez testified that in the summer or fall of 1981, Wauhop had stated at an employee meeting that it was acceptable to permit patrons to go from one theater to another without purchasing a new ticket when the theaters were not too busy because the longer the patrons stayed in the theater the more money they spent at the candy stand According to Me- lendez, problems and fights often occurred when employees caught pa- trons switching theaters and directed them to buy new tickets UNITED ARTISTS THEATRES not to worry, he would talk to Wauhop and tell him Pa- duani was leaving the Union. Rosenberg told Paduani to watch the other 'employees and let him know "anything they do." About I week later when Paduani accompa- nied Rosenberg to the bank, Rosenberg said, "that he knows the guys were giving me a hard time but not to worry about them because they're going to give them a polygraph test and that he knows that they're not going to be • able to pass it and they're going to get fired." When Paduani asked what would happen to him, Rosen- berg told him not to worry because he had informed Wauhop that Paduani was out of the Union and his job was secure. About 3 weeks after he signed the union card, Paduani was approached by the cashier, a woman named Dawn, who offered him $100 for 100 tickets.' Paduani under- stood that he was to palm the tickets and turn them over to the cashier for resale on her own account. He refused the offer even though Dawn assured him that blame could he shifted to Felix (Melendez). , Paduani attended the meeting of October 9, 1982. He testified that Rosenberg said, "We bite the hand that feeds us," and that all those who failed the upcoming polygraph test would be fired. When Paduani later asked Rosenberg about his own job, -Rosenberg said his job was secure because Rosenberg had told Wauhop that he was out of the Union. Paduani took the polygraph test and denied reselling tickets or taking money to admit people. After the test was completed, Stern told him that he had failed the test and urged him to sign a ,statement admitting his mis- deeds. Paduani insisted that he told the truth, and even- tually he left without signing a statement. Paduani was discharged in November' 1982. Rosenberg told him he had failed the polygraph test "real bad." When Paduani protested that he could not be hired on the basis of a polygraph, Rosenberg said he was being discharged for "unsatisfactory, work." He was rehired by the theater sometime in 1983, but for 10 fewer hours per week than before. C. Testimony of Gabriel Nieves Gabriel Nieves worked as an usher at the theater from June 1981 until his discharge in 1982. After the employ- ees signed union cards, according to Nieves, they occa- sionally talked about the Union in the upstairs lobby. On one such occasion, Rosenberg told them not to talk about the Union while they were working but to talk outside. Nieves also testified that if he discussed the Union in the theater while he was off duty, Rosenberg would tell him to go outside to talk about the Union. Before Nieves signed the union card, he observed the assistant manager and his girlfriend reselling tickets. He was alerted to the situation when patrons coming into the theater presented him with tickets that were not in numerical sequence. From this he deduced that tickets had been palmed by a previous ticket taker and given to the cashier to be resold.8 Nieves brought this situation to ' Paduani identified Dawn as the assistant manager's girlfriend 8 When ticket palming occurred, the patron would be given a torn or cut stub that did not relate to the ticket being palmed The palmed ticket 161 Rosenberg's attention three times in one day, and Rosen- berg told him he would tell Wauhop about it. However, Wauhop did not credit the allegations. A few days later, Nieves and Gabriel Menard told the manager that the cashier had made an improper offer to an usher. The manager and assistant manager did not want to believe the story and later Rosenberg said to Nieves, "It was a cheap chance you took by organizing the Union." Nieves recalled that at the October 9 meeting, after Rosenberg told the ushers that if they failed the poly- graph test they would be fired, he pointed at Nieves and Menard and said that if they did not have jobs they had better start looking. Nieves did not take the polygraph test; he was a minor at the time and his mother refused her permission. Rosenberg discharged Nieves on October 27. He told Nieves that because he did not take the test, the Compa- ny did not trust him. Nieves was eventually rehired by Respondent and was still on the payroll at the time of the instant trial. D. Testimony of Luis Vega Luis Vega worked as an usher at the theater from April 1982 A few days after he signed a card, Rosen- berg asked him if he "signed the card for the Union." Vega responded that this was confidential. Rosenberg re- plied, "[Y]ou're wasting you fucking time." On the day that Melendez was discharged, as Vega came to work Rosenberg met him at the door and asked him if he was a member of the gang. Vega asked, "[W]hat are we taking about?" Rosenberg named Melendez, Nieves, and Menard, and Vega said, "No, why?" Rosenberg said, "Because they're going to fire you too." Vega then told Rosenberg that-he was working to support his children. A few weeks before the election of January 4, 1983, Rosenberg called Vega to his office and told him, "[I]f I knew what was best for me I would vote against the Union." He said, "If the union would win I would lose my job, exactly." Vega voted and served as an observer for the Union in the election. About 1 week after the election, .Vega was given a lie detector test in Rosen- berg's office by Jack Stern. After the completion of the test which included questions such as whether Vega palmed tickets and let people in without paying, Stern told Vega he had two spotters' reports to the effect that Vega let people go from one theater to another.9 Al- though Vega asked Stern to show him these reports, Stern refused. Vega told him, "I don't believe you . . . I know I passed." Stern then asked Vega to sign a paper admitting that he took $3 to admit a patron without a ticket, but Vega refused. Vega told Stern that he had once admitted a former coworker named Santanna to see the manager about another job and Stern insisted that Vega sign a document admitting that he let one person into the theater without permission. Stern said that if Vega failed the polygraph test he could keep his job would be sold to a new patron by the cashier, but its number would not be in sequence with those being dispensed properly e A subsidiary of Dale Systems known as FA Investigation sends an undercover employee posing as a patron and known as a spotter to ob- serve operations at the theaters from time to time 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only if he signed the document. Vega was shocked to hear that he might lose his job because he has two chil- dren to support, so he signed the statement for Stern. The statement, given to Vega by Stern and copied over by Vega, did not mention that Santanna was a former coworker nor that he was waiting to see the manager. Vega protested to Stern that the statement was incom- plete, but Stern said not to worry about that. On January 23, 1983, Vega spoke to Rosenberg in his office; Rosenberg said, "If I know what's good for me I will sign against the Union and not for it." Rosenberg also told Vega that a customer had accused Vega of palming tickets and reselling them . At Rosenberg's re- quest, Vega turned out his pockets. No tickets were found and Rosenberg apologized to Vega. On January 27, 1983, Rosenberg fired Vega for "unsat- isfactory work." Vega protested that he had been told he was a good worker and that he had been working double shifts. E. Testimony of Gabriel Menard Gabriel Menard worked as an usher at the theater be- ginning October 25, 1974. He testified that at the Octo- ber 9, 1982 staff meeting Rosenberg told the employees that they were foolish to think a big company would "let a few people like us start a union ." Rosenberg looked at Menard and Nieves and said they should start looking for work. Rosenberg told the ushers that if they failed the polygraph test they would be fired on the spot. On October 12, Menard was given a polygraph test in Rosenberg's office by Jack Stern. Before Stern adminis- tered the test, he told Menard the men were foolish to join a union "and expect to work all our lives and then get fired." After Stern administered the test, Menard asked if he had passed and Stern said, "[Y]ou passed the polygraph test." Then Stern brought up the Union again but Menard said he did not wish to answer more ques- tions once the test was over. After that point Stern showed Menard a written statement admitting that Menard had improperly taken $400 during his employ- ment. Stern said that only he could determine the results of the test. Menard signed the statement after copying it out in his own hand because he had recently had a child born and he could not afford to be out of work. About 1 week later, Menard saw Wauhop at the thea- ter. Also present were Nieves, Melendez, and Raoul Vega. Wauhop told the men that based on the statements he had obtained, the Company could prosecute them and force them to make restitution. He asked them "what our paycheck would look like at the end of the week, when the union dues got to it." Wauhop also asked them how they would like to be transferred to a theater in Harlem where they would be "the only light skinned person for miles." On October 27, Rosenberg fired Menard. Menard's affidavit given to a Board agent on Novem- ber 2, 1982, states, inter alia: After the test was over Stern asked me if I would like to have him tell my manager to his face that I had passed the test. I told him that that would not be necessary and that I would take his word for it. He told me I had passed . I told Stern I didn't un- derstand why we were being put through this when we caught the Assistant Manager's girlfriend. He said it was to catch the real thieves. He also said no-one in the place could say I had never taken candy and not paid for it or something like that. I told him that that was true. He then asked me if in my four years working there I had never taken a bribe. I had told him that I had let some people go from one movie to another and that I'd made money doing it. He asked me if I'd be willing to sign a statement and I said yes. He wrote out a statement saying I had taken four hundred dollars from customers who were friends of mine who went from one movie to another. This was all it said. He told me to copy the statement in my hand- writing and to sign it . He told me it would look better on my record and that since I had already passed the polygraph test it would make me a cleaner person. I copied it down and signed it and gave to Stern. F. Testimony of Jack Wauhop Jack Wauhop is the division manager of Respondent's 18 theaters in the city of New York. In the last 5 or 6 years, Dale Systems has provided polygraph services to Respondent. Wauhop stated that polygraph tests are given annually to managers and assistant managers; tests are given to nonmanagerial employees when a spotter's report indicates a problem in a certain theater . The only spotter's report for the Valentine Theatre produced at the instant trial was a report dated September 13, 1983, indicating a problem with cleanliness , an usher on a per- sonal telephone call, and the presence of the manager in the booth with the cashier . When questioned by the General Counsel under Rule 611(c), Wauhop could not recall what event led to the ordering of the polygraph tests of October 12, 1982 . He later testified, however, that his superiors had ordered him to have polygraph tests administered because of "a lot of discrepancies." Wauhop did not personally arrange for the spotter's report or the polygraph tests: a member of his staff made the calls. According to Wauhop, Stern reported to him that Me- lendez had answered the polygraph questions accurately and he also reported that he had a signed statement from Melendez. Wauhop stated that he talked only to Stern when Stern called him and had not spoken to Melendez. G. Testimony of Ben Rosenberg Ben Rosenberg has been the manager of the Valentine Theatre for 5 years. Rosenberg testified that at the meet- ing of October 9 he informed the ushers and doormen that a polygraph test would be given. He denied telling them that if they did not pass the test they would be dis- charged. Rosenberg testified that he discharged Menard because "his work was unsatisfactory." Rosenberg gave Menard a letter of introduction written on company stationery to a Mr. Cleveland, the person in charge of candy conces- sions for the Respondent, asking Cleveland to help UNITED ARTISTS THEATRES 163 Menard become a video game technician. Rosenberg could not recall when this letter was written; however, he testified that it was during 1982 while Menard was employed by Respondent. Rosenberg testified that after Melendez testified in the representation proceeding he and Melendez had a con- versation about the Union. Rosenberg could not recall who raised the question but he remembered that the two had discussed what benefits the Union could offer. On October 27, 1982, the day Rosenberg discharged Menard and Nieves, Melendez asked Rosenberg what was hap- pening. Then Rosenberg discharged Melendez as well He told the latter his work was "unsatisfactory." Rosen- berg testified that Melendez had been tardy numerous times in 1982 On one occasion in September or October 1982 Rosenberg had told Melendez "he was slacking off." Rosenberg could not recall what, if anything else, had been said on this occasion. Rosenberg stated that in September and October 1982 his relationship with Melendez was "cold." Melendez was "lethargic" and he "did very little work on his own." Rosenberg denied telling Melendez that it was permissible to permit patrons to go from one theater to another without buying a new ticket. He has never caught any of his employees permitting this to occur. Rosenberg denied asking Vega whether he had signed a card for the Union; he could not recall telling Vega he was wasting his time with the Union. While the Union was organizing the theater "rumors were flying hot and heavy." At that time Rosenberg told Vega that he was part of a "clique" with Melendez. In January 1983 Rosenberg was told by a youth who hung around the theater that Vega had uncut (palmed) tickets and was admitting people to the theater. i ° Rosen- berg confronted Vega immediately but Vega had no palmed tickets about his person. Rosenberg discharged Vega for "breaking company policy." This was before he learned of Vega's polygraph test. The decision to dis- charge was made by Rosenberg on the basis that Vega had admitted unauthorized people into the theater with- out tickets. Rosenberg denied telling Paduani that he should have consulted the Company before he signed for the Union, and he denied asking Paduani to spy on the other em- ployees. He and Paduani often talked about the Union and Paduani told him he had not joined the Union. Rosenberg denied telling Paduani that employees who failed the polygraph test would be discharged, nor did he and Paduani ever discuss the fact that the cashier had tickets for sale improperly. Rosenberg told Paduani that he had failed the polygraph test. He discharged Paduani upon Wauhop's instructions, but he did not know why Paduani was discharged. Eventually, Paduani was re- hired. Rosenberg denied discussing the Union with Mendard or Nieves. Rosenberg testified that he discharged Nieves for smoking while in uniform and on duty . He was later reemployed by Respondent. Rosenberg denied telling Menard he would be fired if he failed the polygraph test. 10 This youth was later employed by Respondent and was ultimately discharged for palming tickets He did discuss the Union with him "indirectly" at the meeting in the alley on October 9. There were rumors flying and Rosenberg was annoyed with the ushers, but he did not threaten to fire them. However, he could not recall exactly what he said. He discharged Menard for his sullen, argumentative attitude. Rosenberg could not recall the reason he gave for the discharge on Menard's personnel record. On redirect examination, Rosenberg testified that Wauhop told him the results of the polygraph tests before employees were discharged and that Wauhop said he did not want Melendez, Menard, or Nieves working for him. However, on cross-examination Rosenberg had stated that the polygraph test results had nothing to do with the discharges and that he did not know the test re- sults when he discharged the employees. Melendez was called as a rebuttal witness by the Gen- eral Counsel. He denied that he was criticized for his work by Rosenberg in the weeks before his discharge. Discussion and Conclusions I note that Stern was not called to testify and that the employees' testimony concerning the administration of the polygraph tests is unrebutted. A. Conversation of Early October Between Rosenberg and Melendez Both Melendez and Rosenberg testified in this pro- ceeding that shortly after Melendez testified in the repre- sentation case on September 29, 1982, the two men dis- cussed the Union . I credit Melendez' testimony that Rosenberg asked what benefits the Union was offering. Although the complaint alleges this as an unlawful inter- rogation, the General Counsel has not shown that this conversation was unlawful, and I find that no violation occurred. B. Conversation on October 12 Between Wauhop and Melendez I accept Melendez' version of the events surrounding the administration of the polygraph tests on October 12, 1982. Stern was not called to testify; thus the testimony that he asked Melendez about the Union before giving the test is not contradicted. Further, Melendez' written statement admitting to Stern that he had taken $200 to permit customers to go from theater to theater can hardly be characterized as self-serving, and the rest of this statement corroborates Melendez' testimony that Wauhop mentioned both an assistant manager's position and Melendez' efforts on behalf of the Union to Melen- dez while the statement was being written. Wauhop did not seem to recall much about the phone conversation of October 12, 1982; the questions posed to him were lead- ing questions, and I am not convinced that Wauhop testi- fied from a genuine recall of the events. I find that Me- lendez was more reliable and I shall credit his testimony. Therefore, I find tht Wauhop promised to arrange a pro- motion for Melendez if Melendez would drop the Union. This constitutes a violation of Section 8(a)(1) of the Act. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discharge of Melendez There is no question on the record herein that Re- spondent was well aware of Melendez' efforts to bring the Union to the Valentine Theatre. As the only employ- ee to testify on behalf of the Union in the representation case, Melendez was clearly identified as a major force in the Union's campaign. I find that the General Counsel has established Respondent's hostility toward the Union: Wauhop tried to dissuade Melendez from supporting the Union, and Rosenberg made many anti-union comments as shown by the testimony of other employees. I do not credit Rosenberg's denials of the testimony against him because I do not find him to be a credible witness: he gave shifting and contradictory testimony and he could not recall many things about which he was called to tes- tify. Respondent learned that Melendez admitted taking money from theater patrons on October 12, yet it waited until October 27 to discharge him. There is absolutely no explanation, if Respondent did indeed fire Melendez for being little better than a thief, for the fact that Respond- ent was willing to tolerate his continued presence in the theater for over 2 weeks. It is reasonable to find that Re- spondent did not discharge Melendez so long as it hoped he would abandon his efforts on behalf of the Union. Melendez testified that Rosenberg told him he was fired for "unsatisfactory work," and Rosenberg at first testified that Melendez' unsatisfactory performance con- sisted of tardiness, lethargy, and slacking off. Rosenberg did not mention that Melendez was fired for taking money from theater patrons who wished to go from one theater to another without purchasing a new ticket. Rosenberg also stated that the polygraph tests had noth- ing to do with the discharge of any of the employees and that he did not know the circumstances surrounding the tests when he discharged the employees. On redirect ex- amination, however, Rosenberg changed his testimony and stated that Wauhop told him of the results obtained by Stern's testing before the employees were fired and told him that he did not want Melendez, Nieves, or Menard working at the theater. This changing testimony reveals a grave inconsistency which goes to the very core of Melendez' discharge. I note that Wauhop did not testify as to his role in Melendez' discharge. I do not be- lieve any of Rosenberg's testimony about Melendez' dis- charge and I infer that Melendez was discharged for his union activity and for his testimony in the representation case. This constitutes a violation of Section 8(a)(3) and (4) of the Act. Although Respondent's brief argues that proceedings before the Government of the United States should not be used to return to work an employee who has admitted taking money from patrons, Respondent has not ad- dressed the issue that must be decided before any idea of reinstatement is examined . That is, Respondent has not shown that employees who accept gratuities from pa- trons are usually discharged pursuant to company policy. There is absolutely no evidence in the record before me that Respondent has a practice of discharging employees found to be permitting patrons to go from theater to the- ater in exchange for tips. In fact, the only credible evi- dence in the record on this point tends to show that under certain circumstances where patrons might become unruly if asked to purchase a second ticket, man- agement would overlook the situation. i i Thus, on the basis of this record, where I have found that Respondent discharged an employee for engaging in union activity, there is no basis for considering whether Respondent would have discharged the employee for misconduct alone even if there had been no union activity. See NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). I must take it, therefore, that accepting gratuities is not a dischargeable offense My conclusion is supported by the fact that those employees who admitted accepting gratu- ities were not immediately discharged by Respondent. Further, as will be seen below, I find that Wauhop dis- cussed their admissions with some employees but did not say they could be or would be discharged for their ac- tions; he only threatened retaliatory transfers and re- ferred to a possible demand for restitution. D. Rosenberg 's Conversations with Paduani and Paduani's Discharge Paduani testified that Rosenberg said that he should have spoken to Rosenberg before signing a card, and that the Company would not tolerate the Union and eventually all the employees would be fired. Rosenberg also urged him to abandon the Union and to spy on the other employees and he promised to save Paduani's job once he left the Union. Rosenberg fired Paduani on No- vember 4, 1982, for "unsatisfactory work." Rosenberg testified that he and Paduani often dis- cussed the Union, but he denied telling Paduani that he should have consulted him before signing a card and he denied asking Paduani to spy on the other employees. Rosenberg did not deny the other statements attributed to him by Paduani. Wauhop did not testify about Pa- duani's discharge; however, Rosenberg gave contradicto- ry testimony on this subject. He testified generally that when he discharged the employees he did not know the results of the polygraph tests. However, as to Paduani's discharge, he testified both that he told Paduani that he had failed the polygraph test and that he discharged Pa- duani upon Wauhop's instructions without knowing why the employee was fired. Not only is this testimony incon- sistent, it is so nonsensical as to defy belief. I cannot accept that Rosenberg, the manager of a large triplex theater with responsibility for its overall operation, would fire an employee of several years' service without knowing the reason Moreover, although in one version of Rosenberg's testimony Paduani is supposed to have failed the polygraph test, thus leading Rosenberg to be- lieve that Paduani was not an honest, trustworthy em- ployee, Paduani was nevertheless reemployed by Re- spondent and is still working at the theater, albeit at greatly reduced weekly hours Rosenberg offered no reason at all for reemploying Paduani. I infer from all " Melendez, whom I have found to be a credible witness, testified that this was a fact Rosenberg, whom I did not credit, denied it Wauhop did not testify about this issue UNITED ARTISTS THEATRES 165 this that Paduani was discharged as part of Respondent's campaign against the Union. As shown above, I do not credit Rosenberg's testimony. I find that Paduani, an un- sophisticated person who nevertheless was unshakeable and convincing under strong cross-examination by coun- sel for Respondent, was a credible witness and I shall rely on his testimony. Thus, I find that Respondent threatened and warned its employee and asked him to engage in unlawful surveillance in violation of Section 8(a)(1) of the Act and discharged its employee in viola- tion of Section 8(a)(3) of the Act. E. Discharge of Gabriel Nieves Nieves testified that Rosenberg made various com- ments to him about the Union and told him that he was discharged for failing to take the polygraph test. Rosen- berg denied discussing the Union with Nieves. However, Rosenberg admitted that he considered Nieves part of a "clique" with Melendez, Vega, and Menard, the other union supporters at the theater. He testified that he dis- charged Nieves for smoking on duty. On redirect exami- nation, Rosenberg changed his testimony and stated that he discharged Nieves on Wauhop's orders. I note that Wauhop did not give any reason for firing Nieves in his testimony. Neither Rosenberg nor Wauhop gave any ex- planation for rehiring Nieves and continuing him on the payroll. Moreover, Respondent's personnel data sheet taken from its files shows that Nieves was discharged by Rosenberg for being "uncooperative." It makes no men- tion of smoking. I have found above that Rosenberg is not a reliable witness. Nieves testified in a cooperative manner and his testimony withstood the scrutiny of a strong cross-exami- nation. I find that he is a credible witness and I shall rely on his testimony. Rosenberg's comments to Nieves show that Respondent was aware of Nieves' support for the Union. In view of Respondent's hostility to its employ- ees' union activities and the lack of a credible reason or explanation for Nieves' discharge, I find that he was dis- charged for his support of the Union and that this was a violation of Section 8(a)(3) of the Act. F. Rosenberg's Statements to Vega and Vega's Discharge Luis Vega testified that Rosenberg asked him if he signed a card for the Union, vulgarly told him he was wasting his time, asked him if he was a member of the gang with Melendez, Nieves, and Menard and finally told him he would be fired with the others. Rosenberg also urged Vega to vote against the Union or risk losing his job. Vega was fired by Rosenberg in January 1983 for "unsatisfactory work." Vega had told Stern that he once admitted a former employee into the theater for the purpose of seeing the manager about a new job. Rosenberg recalled telling Vega that he was part of a "clique" with Melendez during the Union's organizing campaign. He denied asking Vega about the union card. Rosenberg suspected Vega of holding uncut tickets based on information from a youth who was himself later dis- charged for engaging in the practice of palming tickets; however, Rosenberg never caught Vega holding any tickets. He discharged Vega for "breaking company policy," that is admitting unauthorized people into the theater without tickets. However, Rosenberg also claimed that he had not learned the results of Vega's polygraph test when he discharged him; in this connec- tion he did not explain how he had learned of Vega's ad- mission to Stern concerning the person admitted to the theater without a ticket. Respondent's brief admits that Vega's act in permitting one person into the theater does not constitute grounds for discharge. Instead, Respondent seems to rely on the fact that Rosenberg had heard that Vega had some palmed tickets about his person. Respondent urges that it is of no moment that Vega was found not to have the tickets in his possession. I note that Rosenberg testified that he himself made the decision to fire Vega and that it was because Vega had admitted an unauthorized person into the theater. Based on the contradictions in Rosenberg's testimony and on my previous finding that he is not a credible wit- ness, I do not credit Rosenberg. I further do not find that Vega was discharged for palming tickets since there is no testimony to support this assertion; it is raised only in Respondent's brief. I find that Vega is a reliable wit- ness. He testified consistently and with an open, coopera- tive demeanor. I therefore find that Respondent interrogated Vega and threatened him with discharge for engaging in union activities, and then discharged him in violation of Sec- tion 8(a)(1) and (3) of the Act. G. Statements Made to Gabriel Menard and Menard's Discharge Menard testified that both Rosenberg and Stern spoke to him about the Union. Although he was told he had passed the polygraph test, Menard, under pressure from Stern, admitted taking a total of $400 from friends to permit them to change theaters without buying a new ticket. Menard also testified that 1 week after the Octo- ber 12 polygraph test, Wauhop told a group of employ- ees including Menard that they faced prosecution based on their signed statements and that they could be forced to make restitution. Then Wauhop mentioned the deduc- tion of union dues from their paychecks and asked if they would like to be transferred to an area of the city where they would be a distinct minority. On October 27, Rosenberg fired Menard. Wauhop did not deny the statements attributed to him by Menard. Rosenberg testified that he discharged Menard for "unsatisfactory work," that is, Menard had a "sullen, argumentative attitude." However, Rosenberg also recommended Menard as an employee for another division of Respondent. Rosenberg denied discussing the Union with Menard. On redirect examination, Rosenberg changed his testimony and stated that he discharged Menard on Wauhop's orders based on the results of the polygraph tests. On the basis of Menard's uncontradicted testimony, I find that Wauhop threatened Menard and others with what he considered to be more onerous and less pleasant working conditions in connection with the union cam- 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paign. The juxtaposition of Wauhop's comments about union dues and transfers would reasonably lead an em- ployee to believe that there was a connection between union activity and changed working conditions in the mind of a high management official of Respondent. Thus, I find that Respondent threatened employees with transfers if they supported the Union; this constitutes a violation of Section 8(a)(1) of the Act. I note further that Wauhop mentioned prosecution and forced restitution in connection with the statements given to Stern by certain employees. He did not mention discharge. Wauhop did not testify about Menard's dis- charge although, according to one version of the event given by Rosenberg, Wauhop had ordered Rosenberg to fire Menard. Rosenberg also testified, inconsistently, that he both recommended Menard for another job and fired him for being sullen and argumentative. In view of these many inconsistencies, I do not credit Rosenberg's testi- mony and I find that Respondent discharged Menard be- cause it knew he supported the Union. This was a viola- tion of Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. By offering its employees inducements if they would abandon their support for the Union, Respondent has violated Section 8(a)(1) of the Act. 2. By threatening its employees with retaliation if they supported the Union, Respondent has violated Section 8(a)(1) of the Act. 3. By asking its employee to engage in surveillance of union activity, Respondent has violated Section 8(a)(1) of the Act. 4. By interrogating its employee about union activities, Respondent has violated Section 8(a)(1) of the Act. 5. By threatening its employees with more onerous working conditions if they continued to support the Union, Respondent has violated Section 8(a)(1) of the Act. 6. By discharging its employee Felix Melendez because he gave testimony in a Board proceeding and because he supported the Union, Respondent has violated Section 8(a)(3) and (4) of the Act. 7. By discharging its employees David Paduani, Gabri- el Nieves, Luis Vega, and Gabriel Menard because they supported the Union, Respondent has violated Section 8(a)(3) of the Act. 8. The General Counsel has failed to prove any other violations of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent having discriminatorily discharged its em- ployees, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, com- puted on a quarterly basis from the date of layoff to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 213 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi2 ORDER The Respondent, United Artists Eastern Theatres, Op- erating Valentine Theatre, Bronx, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Offering its employees inducements to abandon their support for the Union. (b) Threatening its employees with retaliation if they support the Union. (c) Asking its employees to engage in surveillance of union activity. (d) Interrogating its employees about union activities. (e) Discharging its employees for testifying in a Board proceeding and for supporting the Union. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the Act. (a) Offer Felix Melendez, David Paduani, Gabriel Nieves, Luis Vega, and Gabriel Menard full reinstate- ment to their former positions, dismissing, if necessary, employees subsequently hired to replace them, and if such former positions do not exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Felix Melendez, David Paduani, Ga- briel Nieves, Luis Vega, and Gabriel Menard for any loss of earnings they may have suffered as a result of their discriminatory discharges, in the manner set forth in the remedy section of this decision. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (d) Preserve and, on 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 Order. (e) Post at its theater copies of the attached notice marked "Appendix." i 3 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses to If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " UNITED ARTISTS THEATRES 167 employees are customarily posted . Reasonable steps shall (f) Notify the Regional Director in writing within 20 be taken by the Respondent to ensure that the notices days from the date of this Order what steps the Re- are not altered, defaced, or covered by any other materi - spondent has taken to comply. al. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.