Sameric Copr.

SAMERIC CORP()RATIO() N Sameric Corporation and International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, Local 418. Cases 4-CA-10478 and 4-C.A- 10860 November 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING .-\NI) MIMBIFRS JILNKINS AND ZIMMI RMANX On July 18, 1980, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the rulings, find- ings. and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' 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, as modi- fied below, and hereby orders that the Respondent, Sameric Corporation, Pennsauken, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (b): "(b) In any other manner interfering with, re- straining, or coercing its employees in the exercise I The Adnimllirative Las" Judge included a larrlu cease-aid-desist prro'siin in hi, reco mmended Order, hut a hbl ad pro lo ionl il hi rniolice In 11lk(Inn l I'od, Inc, 242 NI. R 1357 I179), the lBoard held hat a broad order is arrated here a respondent I shoi lIi to have a procliN- Ilt I violate the Act. or has engaged i Iuch egregious or widespread miscolnduct a t dcmlonstrale a general dirteg:ild for the employces' full- dartinial st ,at orir rightI' We firld. a thile Adlrllnistratls e Lau Jdg ap peared ito do in ec -. that thihs ase falls ito that category) 'We tlhert fiore cnform the recommended Order ti the turdingl of the notice ap pecrldd to the dininistrative law Judge', )ecisioll h suhstitulillg i hroad csi-and-de,ll proslsiron for the lialro", orle The Administrative aw Judge neglected to order thalt lcment Newrmanl and Alhert Cook be made wkhole fr loss oif earnings as a result of their rarnsfer u.c aInlend the rcommlnitded Order It include such rclicl antd tonformi lie notice acciirdirgli ilackpal, and interest thereotn shall he computed in the maniner prescribed in I-' U 14 l/wlorth Co(mpav, 9(1 NlRB 281 (I1), ad lurid S,/ C'(rrprlsiol. 231 NRBI 651 (977) Sec. greraly l i'/mhiing 11calln ( 18 N R13 71t, (l1962) MSliher Jikilns wn d ton mpul tt erest IS e backpa ill ar- co rdancc u ilh his dissenl O/vnlpiu A-firt ul (rpwruclirsn, 250( NI RB 14i ( 1980) of the rights guaranteed them in Section 7 of the Act." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Make Clement Newman and Albert Cook whole for any of earnings or other benefits each may have suffered as a of his transfer, by paying him a sum equal to what he have earned absent the unfair labor practice, less any net interim earnings, plus interest." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX No I ic To EMIuI Ol lS POSTiD BY ORDIR OI- I Hi: NATIONA\I LABOR RI I.I'IONS BOARD An Agency of the United States Government WI- Will Nor discourage membership in, or activities on behalf of, International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, Local 418. by transferring employees, eliminating their shift, or promoting them to supervisor, nor will we in any other manner discriminiate with regard to hire and tenure of employment, or any term and condition of em- ployment, because employees engage in union activity. Wl v1i.i NO i any other manner interfere with, restrain, or coerce any employee in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. WIL wl.l restore the projectionist jobs at our Pennsauken Theater Complex as they ex- isted on September 6, 1979. WI: wi.i. offer to Clement Newman and Albert Cook immediate and full reinstatement to their former jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings or other benefits each may have suffered from the time of his transfer to the time of his reinstate- ment at the Pennsauken, New Jersey, theater, less net earnings during that period, plus inter- est. WL WIL., upon request, bargain with Inter- national Alliance of Theatrical Stage Employ- ees and Motion Picture Operators of the United States and Canada, Local 418, as the exclusive bargaining representative of all em- ployees in the appropriate unit defined below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is 253 NLRB No. 43 345 ) DECISIONS )1: NATIO()NAL I.AB()R R IAI()NS I()Akl) reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All projection employees employed at the Pennsauken, New Jersey, facility excluding guards and supervisors as defined in the Act. SAMIERIC CORPORATION DECISION S IAIIMINI ()O I I111 CASI JOI A. H[ARMAI/. Administrative Law Judge: This proceeding was heard before me in Philadelphia, I'enn- sylvania. on April 2, 1980), on an original unfair labor practice charge filed on September 10, 1979, and a coni- plaint issued on March 12, 1980, which, as amended. al- leged that Respondent violated Section 8(a)(3) and (1) of the Act by the transfer of employee Clement E Newman, by the layoff of employee Albert Cook, and hby the promotion of Newman to a supervisory position. all because the Union sought to represent Cook and Newman. The complaint further alleged that said unfair labor practices were "so serious and substantial . . . as to warrant the entry of a remedial order requiring Respond- ent . . . to recognize and bargain with the Union . In its duly filed answer, Respondent denied that any unfair labor practices were committed. After the close of the hearing, briefs were filed on behalf of the General Counsel, the Charging Party, and Respondent. Upon the entire record in this proceeding, including my opportunity directly to observe the witnesses while testifying and their demeanor, and upon consideration of the post-hearing briefs, it is hereby found as follows: FINI)INCS Ot FAC'I 1. JURISI)ICTIO N Respondent is a Pennsylvania corporation, engaged in the public presentation of motion pictures from various theaters located in Pennsylvania, Delaware, and New Jersey. During the year preceding issuance of the com- plaint, Respondent in the course and conduct of said op- eration grossed in excess of $500,000, and purchased, leased, or received films or other merchandise and equip- ment valued il excess of $50,000 which originated from outside the Commonwealth of Pennsylvania and the State of New Jersey. The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material herein, an employer engaged in commmerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. Tl .L ABOR OR(iANIZAIION INVOI.V.l) The complaint alleges, the answer admits, and I find that International Alliance of Theatrical Stage Employ- ees and Motion Picture Operators of the United States and Canada, Local 418, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. ItI A T.(;I.I) NI AIR ABOR RA(T I I(IS A. Ihe lvstues The critical issue i this proceeding relates to whether Respondeit egaged i independent uinfair labor prac- tices of sufficient gravit to justify a remedial order pur- suant to .L.lR.B. . Gisscl PackinRg Co.. Inc.. 395 US. 575 (1969) requiring Respondent to recognize and bar- gain with the Union as exclusive representative of the Iwo projectionists at its P'ennsauken, New Jersey, theater complex. The request for such relief is founded on allegations that Respondent shortly after discovery of union activi- ty, embarked on all effort to destroy the two-man unit, first by the transfer of Clement Ncwman, the full-time projectionist at that location. The unlawful campaign to assure against organization was allegedly furthered when Respondent subsequently laid off Albert Cook, New- man's relief man and the only other employee in the unit and then subsequetly restored Newman to Pennsauken,. but witlh supervisory authority sufficient lo place Newman in an excluded category. Respondent defends orn grounds that the General Counsel has failed to prove a proscribed motivation and that treatment of Newman and Cook was based on the exercise of business judge- ment uninfluenced by union considerations. 13. Background Respondent operates a chain of motion picture theaters in P'ennsylvania, New Jersey, and Delaware. Many are multiscreen opera, ions. William Sarris, Respondent's di- rector of operators, is entrusted with overall operating responsibility. lie oversees seven division managers, whose authority is tailored to geographic districts. The instant proceeding involves two separate facilities-the Eric Pennsauken Theater, which is a three-screen oper- ation conducted in two separate, but apparently adjoin- ing buildings, and the Black Horse Pike Drive-in, herein referred to as the Drive-li. Both the Drive-In and the Pennsauken theater are located in Respondent's South New Jersey district, which is under the supervision of Division Manager Eugene Sussman. At the Pennsauken complex some 12 employees are engaged in the performance of a variety of theater relat- ed functions. At the time of the events given rise to this proceeding, none were covered by a collective-bargain- ing agreement or represented by any labor organization. However, the record includes some indication that at one time the Union represented projectionists at that lo- cation. On August 23, 1979,2 Clement Newman, a full-time employee, assigned to the Pennsauken location, with re- sponsibility for projection booth operations, and his relief man, Albert Cook, signed a designation, stating as fol- lows: We the following operator employees of Sameric Corporation, Pennsauken Theater, Pennsauken, Appr)iim;llcl, I() scrcls arr ill.cd al 65 diffrcnt locatiions v All Jtres refer m 1979, unless olhlcv,,is idicated 346 SAMIERIC CRIP()RAI I()N New Jersey. designalte Motion P'ictures l.ocal 418 to represent us for purposes of negotialting wages hours and conditions under the National l.ahor Re- lations Act, as amended. O()n August 2. 197, a petition was filed by said LUnion il Case 4-RC 13824. seeking all election il a Ullit of "all projection employees"' at that location. he number of employees ill tile unit was designated therei ;its "2.":' "With knowledge that organization activity was under- way at Pennsaukei, Respondent, o September 6. trails- ferred New\;rnan to the I)rive-lln Thereafter. il carly De- ceiber. Cook rh ( hiad rclieLed Newmanli olnc shift per week since MaN 1977. w;s inllormed that his services in that regard were terminated. At this point, the specific employees sought in the petitlion were no longer engalged at the Pennsaukenl facilit) Later, on December 23, Ne nlaln Las reassiglled to te iPIennsaukeln theater. but with additional authority rendering him a supcrvisor within the meaning of the Act. C C onelulidnr Islndings 1. IThe alleged discrinination a. 1ih Iranst'r /N .'(i ut1 Prior to th eents here ils issue, Newnk an had worked for the Respondent off andi on dating back to 1969. Since 1972, Newsman. except for one interv;al. worked exclu- sivcely at Pennsauken. Thus, on January 14, 1976, Newman was shot ini the course of a robbery at that lo- cation. Following a period of recuperltion and a brief as- signment as a relief man, Newman returned to Pennlsau- ken where he worked continuousIy until transferred oil September 6, 1979. At the inception of his assignment to Pennsauken, Newman was formallyv classified as "man- ager-operator." As such, Newman had the authority to hire and fire and was responsible for all operations in- cluding projection, ticket sales. cash handling, deposiling, and the preparation and filing of reports. 4 On May 30. 1977, however, an expansion at Pennsau- ken produced a significant change in Newman's status. O()n that date, one of the theaters was "twinned, convert- ing the two buildings into a three-screen operation. Con- temporaneous therewith on instruction from his division manager, Newman's duties were limited almost entirely to those of a projectionist. The balance of the theater's operation was handled by another manager, also assigned permanently to Pennsauken. Thereafter, Newman neither possessed nor exercised authority to discipline, hire, fire, handle receipts, or engage in any of the other functions. which are referred to as "first floor" theater operations.5 :' See G C Exh 3 4 The prehearlng affidavit of SarriN indicales that during this period Newman was "in charge lf one of Ih two huldings , a that localion See GC Exh. 2, p I " Respondent's iontention that hetween May 1977 and Seplember . 1979. New;man was a supervisor withim the meaning of Sec. 2 11) of tIh Act. is lacking n nlerit hough classlfied as a manager-opcratorl" Nc- man', dutecs during that time framle werc lnilitd essen ialll to het mlanlll operalion f prilecilln equiplrnlI he on nly evidelce thi h;l h prfkornmed work ousidte of the protiectlln hooths .as limited to hls iccasintal aissist ance in he handhing if large crw d of patirons. acl ili5 i hilch ha;rdNt Indicativc if uperlsiory siaus Furthermore. allhough N man (dil ()Oi September 6, New ialn's 7-year assignnlent to It nnsaukelLn ended ,ith his transftcr to the )ric-ll. 1ib 'sar of background it is oted that N,,itlal's cllplo - nlitll \il RKcspondenlt lad includetl d a spill ts mnlllager ot' it drive-inl theater. roml tlis, and his utside cnlplovnileni wtitl a nIllinenanllce contracter which se'rviced drive-ir s, Ne nar:ln \tas reputed to have considerabl e abilit \vitll respect to that type of operation. In Miy I 7i . Sarris x\ias promoted from tdivisicii nlSillagner t dirCtor o opcr- ations. Iln his ne , ciapacit. he was O(OliI tlo liscovr thilt conditions ilat thel B3lack Horse Pikc l)ri\c-In \vre i a state of dleterioration Ili late June, Ne'Amall joinied Sarris. at tih lttcr's r e- qucst, i a isit t that site. Nerninll dtcscribed hlt lih ohtelrCd as follw\s: .. Ihc [[)rix-In] \ais going to pot just going dov tl hill the nllager there jlUst didn't see like he cared " cWhe Ncrew ntl a rcrtedl iti Sarris Ihat something had to h done ahoit con(litions Iat the I)ri\-ln, Sarris asked Newman if Ie as iitcrsted ini managing tlhe )ri\-ln Nc\main replied Ill t Icga- tivc. Sarris then requested that N ktiini thilnk athoullt it. but the latter responded: "It don't dio no godi t think abotit it . . I don't , ali it. 1J[IIc\ir. Nte\ lua did subs -ucrutitl agree to think it oxer.'; itdllllt ilJi i11 o e, si h ; ,li oljd c)O lci .11 ill '[ipl,\ct ' %\hol hti lit..-'.l\ 1111I;c111ni 't \ - it rl r II ti'CI.t 'l 1 t'1 T\11 r1'I tIIrIiit )lll rl i;l st 1I.11'\ II lll t L t ftl Fill i aftiol ,-t "'t1 tn1 'i " I Ira ll . N'ktn.Il'\ I1In 1 allnll , ., II 11 m ton }Ilt nlit to lrole'll( l V<'t''l , ,1% plr ilatlt 10) Irlxt rllk ll trwll it, dl ',1i1 Iil/li.lgit \% is' tlltl iC It' h.'-l Is iai,,i. \n . t 1.11FH 111.1i Nit% I11Ii \li1 Itic' lte'' d Ito 11 IIh tlllIl 1n Thr,,l- h ., pcrs-ll . irr ilfillr , it ll l 21t t1.1'cit '\*1. , n 11 1 til a I , h ' IF III I, llal ,l I I I It 1 Ii Tc.;l r \ llll l r 1, } .it 11 .II 1 i ;iolger1'fill t llh rsl h .i i I sttI-jn l rl 1 l Illi lllf liltl eltal It aN .lr; ili hcl1i plltnt a1l XLIpL'r iSlD \ :mIt'lwrl i, I dIId 1l1 hClt'C Sarlls. %11l st,i ,I 11h1T ciiJ', Ill 'ltltinillC I 1 (iiiiss \ sh 11 -11 h C\ciii trolil t Ilhtl r 1',loils, 1 tills )t'L'I'OI, 11Do.1 hi, ao1 ,iIon? 'd,lS rcplclLt ol,11h arglwrlltlll. ,Mid 'st1t-sretlrlg tesillr lll. sh, t 'll i, li tr i1ef a ax lI. \%ts rdt(luiCt l l 1 11c ' lie IrupltllsiJbJle or 111, iiltefilillrr t rioni, eslilt or b tt \,t iI r'th pu 'l 1,t epCLIiiCs i f he irnclln ,lidlaC- k tli. 11 .n l till in. all ll ti 1 Iii ,l, s hl h1l) S li s iouiJ l utC he trlni alarc it iN all cato llfn rCspo 1lh ili dl at t' IIII111lk l dilintg hack to 977 A that time. Sarrls was dlslon llminrager ha.se il ltaTrihburg. ilatilg r-,pons,ihi]llt fr theattrs In upstalce t)ittrls tiliia Not oil d I prfcr he LtilmlnOll if Nernman, hut I infer that o ctn version (i f l)lensiukt.1n It a hrec-,,cren operarion I t, sepatile hbuil- Ings Ill 177, tew Idcrland, ere Imposed oii loca;ll slpeir\,lill tllicl wiarrantd 1i deterTrn atlon l bhy highfr levtel nlalagmenl t hat Pelrtisairke he manlled h a theatetr nalnager. tl charge of theatelr perations. ai .1 prolectinlisl itl il authotiy irl contlectlln wlth the former t1 is n11 conclusion Ihal helvten Mav 1977 and Septleilher 6. 197 ). Nevnulltll 1 Iher possetssed nor exerclsed supersisior aulhoriltv Lf B ( I[o.rd.a ,Stuie he-utre,. In . 221 NLRH 782. 783 (1975). wherei a lidnlaglreprol jeclionlsm was foilund It he a upervissor hbased on his tipssesNlon aInd actal; excilise iof authoirils eftclltvetl to recotrinmlend hiring. to grail time off and to directl ellpoycs Inl their work Ctontrary to Respotldetnl. Ihls deci sien. while. coneilstlel ltlh the (eneral Cunscl's lnce-sslli that Newmanl wal ;i supel-isor alfCer )ecember 23. 1979. and that the tlhcr managers at the Penllsauken healler. ri name, )aggett andti. his sticcessor. Richard )Davis. held Iha;. same status, that decisio-ln I itapposllte tll rc spec t Ihe slatus if Ne, mall prior to Seprtember t ` Insf.ar as thetr Iestimonly Is in contlic . I aiccptr the acoulnt il Nelwman s cer that f Sarris Sarris testified that Nwnman at thal tilnl agreed to accept the transfer hut requested time to Ihik abounl II AI Ihough ll wuillnsss re unified in the iew Itlat n Junle theh )rl e-ln needed tiinedlale atlictriion,. it Is plai Ih:lt hSarris trlade fill tt'ltpl 1t follow up hi' Jilte CI'Tlersatiln ulth Nc. ian cIitncernlnig 1he I)rlse ll until Septrbcher (I) Ii NiIan ;agreed It tlic I rains'r. II is Ilbil dbtll 1ilat Sarris w, tInt hitc' dct'iat'i util aftc'r Ihe util If tlcido ert ir sCasit-lon iill peakc hrt rssitgrllrig Nnlari Not also t)tIItII L(tIanilgCtr Siss- .147 DECISIONS OF NATIONAL LABOR RELATIONS BOAkD On September 6, Sarris informed Newman that he would be transferred. This took place after Sarris had learned that a petition had been filed with respect to Pennsauken. Thus, following the June visit to the Drive-In, the very next conversation concerning the transfer between Newman and Sarris did not occur until Thursday, Sep- tember 6. The accounts of Sarris and Newman as to pre- cisely what was said on that occasion while not entirely symmetrical are substantially so. Under either account, the urgency with which Sarris acted is evident. Thus, ac- cording to the credited account of Newman, he first learned that Sarris wanted to speak with him when Dis- trict Manager Sussman informed him of this fact at the Pennsauken theater. Sarris, after a brief telephone con- versation with Newman, drove from company headquar- ters to Pennsauken to meet personally with Newman.H Upon his arrival, Newman was informed of Sarris' desire to transfer him to the Drive-In. Newman indicated "I don't want it." Sarris implored "but we need you down there . . . you are the only one that can straighten it up." Newman rejoined "... there are other people that can straighten it up besides me." Sarris disagreed, indi- cating that Newman was the only one qualified, and stated "you are going." Newman ultimately inquired as to whether he would be fired if he refused to go. Sarris said, "yes," going on to ask "are you turning down a transfer?" Newman indi- cated that he was, whereupon Sarris stated "you are fired." At this point, Newman telephoned his wife. After the phone conversation, Sarris told Newman to get Suss- mar's testimony that during that summer he made repeated appeals to Sarris and Shapiro, Resplondent's owner. as well, for assistance in bring- ing the Drive-ln up to par 7 Sarris, when questioned as t whether he was aware of union activity prior to his decision ir t tranlsfer Newmen. first denied sane, incredibly testifying that he had decided in June Io effect the transfer his cffort lat deception was plainly undermined by Sussman's testimony that Sairis in the interim told hini that plans to transfer Newman had been aborted In any event. Sarris. wher cnfrotled with an inquiry as t whether he had received a telephone call prior 1io September 6 from a Board agent conll- cerning the election petition, testllfied "it is possible but I did ot know, who the peltlitilners were" When confronted with his sworn prehearing affidavit, he admitted that he had received such a telephone call i ad- vance of the transfer [i addition to this general know ledge of union ac- tivity) Sarris had a basis for suspecting that the prolectionists were the subject thereof Thus, i Sumeric (orporation, 242 NLRH 1214 (1979), the Board ordered Respondenl to eecute a contract covering "motion pic- ture machine operators" at its Morristown and Cherry Hill theaters. In June 1979. Alanl Haus, a business agent of the Union, met with company representatives concerning compliance with that order Haus testified that at that meeting he referred iti Pennsauken as among "feslering" prob- lems, and that the straight projection operations there were being per- formed by an individual that "had been a member of our local " Sarris cut off Haus at this point, limiting discussion to the contract issue; the Union obliged Sarris acknowledged that such a meeting took place, and also that the Pennsauken theater was mentioned. However, he claims that the Unir had mentioned no individuals but simply pointed out that it had had problems with Sarris' "predecessor" in connlection with that the- ater in the past I credit Haus It is also noteworthy that Board precedent acknowledges that the Union inolved here represents separate units of projectionists employed by Respondent in at least three other theaters " Division Manager Sussman testified that it was somewhat unusual for Sarris t personally iform an enmployec of a transfer. Normally, such manners are relayed by the divisilon manager. Indeed, after transferring Newman Sarris elected to discharge the manager of the Drive-lin Denni- son However, he did not do so personally, but instructed Sussman to inform Dennison. man and Richard Davis, the manager of the Pennsauken complex. Sarris did so, and, in their presence, Sarris an- nounced: "I just fired Mr. Newman." As shall be devel- oped more fully below, Newman then referred to a prior conversation with Sussman i which the latter informed Newman that he would not he transferred to the Drive- In that season. Sarris disputed that this could have oc- curred. Newman then asked for 2 weeks before going to the Drive-In.9 Sarris refused the request, and Newman receded. Newman accepted the transfer and reported to the Drive-In the next evening By way of defense, it is averred that the transfer of Newman involved the exercise of business judgment un- influenced by knowledge acquired with respect to the Union's organizational interest. In this respect, Respond- ent relies entirely on the uncorroborated testimony of Sarris. Assessment thereof, however. against other indis- putable record fact, including testimony of Division Manager Sussman, leads to the conclusion that the al- leged business justification was so patently false as to en- force, rather than allay, the inference of discrimination urged by the General Counsel herein. Sarris' initial attempt at deception related to insistence that he decided to transfer Newman in June. Admittedly, however, he had no further communication with Newman concerning the transfer until September 6. During the interim, Division Manager Sussman continu- ously complained to Sarris and Shapiro, Respondent's owner, concerning the deplorable conditions in the Drive-In. And while the transfer issue remained dor- mant, Sussman in July and August spent 3 weeks at the Drive-In heading an effort by employees drawn from other theaters to improve physical conditions at that lo- cation. I Yet, by September 6, after union activity had become manifest, the transfer issue was revitalized by Sarris with such intensity that he would have, and in fact professed to, discharge a longstanding, good employee to enforce the transfer. As for the timing of this alleged act of busi- ness judgment on September 6, the sole explanation of- fered by Sarris is found in the following excerpt from his testimony: Either the first, second or third day of September, 1 took a ride back there again in the morning, again found conditions bad and decided that was it, and I was going to move Clem over. At some pint in this discussion Newman observed an envelope in the office which Sarris described as being "about the Union wanting to get in Pennsauken .the operators' union wants to get in." Newman claims to hatve told Sarris "I want to be Union that is what I want." To this, Sarris responded No, you are taking a transfer or you are fired" Sarris admitted that there was reference Ito an envelope in this conversation and that Newman stated that the Union was negotiating for him. tie claims t have responded to this by idicatilg that union mem- bership was his right ad that it had nothing to do with anything else. He denied making ally statement to the effect that there would be no union at Pennsauken. Where in conflict, I credit Newman over Sarris " In addition to the above, in mid-Jul', Richard Dais, the manager of the Driveln, was transferred to Pennsauken as a manager/operator at that location Hte was replaced at the D)rlve-ln by his foirmer assistant manager. D)ennison Although mismanagement of the Drive-In had hecome evident prior to this reshuffing ot' personnel, this event was tob- siously unaccompanied by renewed interest in the transfer of Newman. 348 SAMERIC CORPORATION Such action at that time is naturally suspect when one considers the fact that outdoor theaters are highly sea- sonal and sustain a dramatic fall off in revenues after Labor Day when the school year resumes. But any shred of Sarris' credulity surviving his own hedging admission of this aspect of economic reality was erased by the fur- ther testimony of Sussman. As heretofore indicated, it was Sussman's responsibility to oversee both the Penn- sauken complex and the Drive-In. While acknowledging that conditions at the Drive-In became progressively worse during the summer, Sussman testified that he had a conversation with Shapiro, the owner of Respondent, in mid-June in which Shapiro expressed his unhappiness with the condition of the Drive-In and its "daily gross- es." Shapiro expressed that he wanted Newman to be transferred to the Drive-In and requested that Sussman discuss the matter with Newman. Sussman did discuss the matter with Newman, asking if he would accept the transfer as a personal favor to Shapiro. Newman indicat- ed that as a personal favor to the owners, he would oblige. However, because Shapiro was out of town, Sussman did not get back to him until early or mid- August. When he did so, Sussman, having continually complained to Sarris about conditions at the Drive-in and how unhappy he was with it, advised Shapiro of Newman's position. Shapiro responded as follows: We are not going to make any changes there; it is almost at the end of the seaaon and we are not going to put anybody in that we are going to have to carry all summer long.' I At this point, according to Sussman, he regarded the transfer as "a dead issue" and he informed Newman of this fact the following day. In addition, Sussman averred that, prior to September 6, Sarris had adopted a similar stance. Thus, Sussman acknowledged, from his sworn prehearing affidavit, that he first learned that the transfer of Newman was under consideration in mid-July, but that about 2 weeks later Sarris informed him that there had been a change of mind on the issue, "because it was too close to the end of the season." Finally, Sussman confirmed conditions at the Drive-In had improved by late August and that, during the period immediately prior to the Labor Day weekend or the end of August, he was not aware of any special problem at the Drive-In which was so unusual as to require the "emergency" transfer of Newman. 2 The justification for the transfer afforded by Sarris is deemed patently false. On the contrary, the September 6 reversal in Respondent's position to effect no changes at the Drive-In was sudden and delivered to a longstanding Ai This conversation would correspond to the time frame immediately after completion of work at the Drive-In by the "task force" headed by Sussman. 12 The unbelievable testimony offered through Sarris included his ex- presion that there was a possibility that the Drive-In would remain open all year. Aside from a lack of corroboration, there are suggestions in the record which collide with this aspect of Sarris' testimony The Drive-ln did in fact close on November 25. Furthermore. Sussman testified in June that Shapiro indicated that he was unhappy with "daily grosses" at the Drive-In. Sussman also testified that both Sarris and Shapiro in August indicated that personnel changes would not he made at the Drive-In be- cause it was too close to the end of the season and good employee with the ultimatum that he would be terminated if he persisted in his refusal to accept the transfer. It occurred at a time which, consistent with Sussman's testimony, was least opportune economically. The desperation and urgency with which Sarris acted is explainable on this record solely by the recent discovery of, and his desire to immediately neutralize, union activi- ty. I find that the September 6 transfer of Newman vio- lated Section 8(a)(3) and (I) of the Act.i : b. Elimination of Albert Cook's shift Cook since May 19, 1977, had regularly relieved the projectionist at the Pennsauken theater I day per week. He, together with Newman, had signed the union desig- nation which formed the predicate for the Union's elec- tion petition. Following Newman's transfer, and in early December, Cook's relief assignment at the Pennsauken theater was ended. This action was taken under condi- tions in which Respondent could readily deduce that Cook was one of the two projectionists in the unit when the election petition was filed. 4 Cook's removal from Pennsauken occurred at a time when Newman's availability was imminent. The Drive-In closed on November 25, but Newman continued on at that location for several weeks, performing end of season maintenance. Upon conclusion thereof, Newman, though having worked for 7 years at Pennsauken, was not re- stored to that facility, but was made a relief man. ' Sarris testified that he alone decided to eliminate Cook's shift at Pennsauken. At times material, Cook was also engaged as a projectionist at Respondent's theater in Princeton. New Jersey. Billy Faye was the division man- ager with responsibility for the latter. Sarris claims that he had learned from Faye that Cook was not happy about driving to Pennsauken. Accordingly, Sarris claimed that he asked Faye if Cook could be used in Faye's own district, and when Faye responded in the af- firmative, he elected to utilize Newman as relief man at " The record also indicates that the discriminator) transfer of Newman paved the way for a realignment of the projection booth so as to defeat any possibility that the Board would sanction an election pursu- ant to the then pending petition In this connection, it is first noted that Sarris' testimony that Newman's position was filled by David Yates is re- jected. Instead, consistent with the testimony of Albert Cook, and a state- ment appearing in Sarris' prehearing affidavit. I find that, upon departure of Newman. Richard Davis assumed responsibility for operating the con- trol rooms at all three Pennsauken theaters on a regular basis. See G.C Exh. 2, p. 9. Furthermore. Respondent's testimony with respect to the December 22 discharge of Davis plainly establishes that during the period after September 6, Davis also retained his management responsibil- ity with respect to the entire Pennsauken operation. Thus, after the trans- fer, Newman was not replaced by a full-time projectionist Instead his duties were absorbed by the incumbent manager. who already held exempt supervisory status. Accordingly, the discrimination with respect to Newman was accompanied by change in jcb content which under es- tablished Board policy nullified the pending election petition since the unit was thereby reduced to one eligible employee, Cook See, e.g., Grand .4uo. Inc.. d/b/a Super Tire Stores, 236 NLRB 877, 882 (1978) In sum, the vacancy created by the discrimination against Newman was ac- commodated by elimination of a position that had existed since May 1977, a step which cannot he explained as anything other than a manipu- lative contrisance calculated to further Respondent's intention to avoid bargaining with the Union 14 See G.C Exh 3 's It will be recalled that after Sepembhcr Newman had not been re- placed at 'ecnnsaiken hby a full-time operatlr 349 DI)ECISIONS OF NATIONAL. IAB()R REATIO()NS O()AR) Pennsaukcn after the Drive-In closed, and to eliminate Cook's shift at that location. h Thus, elimination of Cook's shift was obstensibly to suit Cook's own convenience. Although he had per- formed that shift for in excess of 2 years, it does not appear that he had been consulted as to his desires in that respect. While Cook did resign from that position in 1978 because of excess driving expenses, his resignation was withdrawn after he was afforded a $10-per-shift in- crease. Further, Cook was informed in December that his work at Pennsauken had been terminated under somewhat mysterious circumstances. Thus, initially a cashier referred to such an understanding one evening when he appeared to work the relief shift. However, when Cook attempted to verify, Theater Manager Davis informed that he was still the relief man at Pennsauken. A few days later, however, Division Manager Faye made the following statement to Cook: "I understand you're not working Pennsauken anymore." Cook told Faye that he had received no firm information to that effect and would assume that there had been no change. Faye could give no confirmation, but simply indicated, "Well, that is just what I heard in the meeting that we had."7 It was not until the following week, when Cook received a phone call from Theater Manager Davis, that he received definitive information that he no longer would have the relief assignment at Pennsauken. Considering the union animus evident from the dis- criminatory transfer of Newman, together with the fact that Cook had performed his relief duties at Pennsauken since May 1977 and did not at any time proximate to De- cember 1979 seek change thereof either to a district man- ager or Sarris, the inference is warranted that this action, taken without consulting Cook, was linked inextricably with an overall pattern of unlawful conduct through which Respondent sought to assure against organiza- tion. Respondent thereby violated Section 8(a)(3) and (1) of the Act. ti aye did nriot tetif) John Schmidt a district manager in another area, who in September was in assignment to the Princeton theater. testi- fied that in the course of a conversation with Cook at that time, Cok mentioned that he disliked the long drive to Pennsauken Schmidt indi- cated that he did niot think that he reported the content of that conversa- tio t anyone Sarris, on the other hand. testified that Schmidt had in- formed him of this cnversation. I did not believe Sarris. l I credit the testimony f Cook. His account of the remarks of FIaye do nrt necessarily suggest that aye was party to a firm decision to ter- minate Cook's relief assignment at Pennsauken. 'I he Cieneral Counsel and the Charging Party obsersve that C'ook was transferred because Respondent wished to avoid having both he and Newman emplhoyed at Pennsauken, as Newman's restoration at Pcnnsau- ken was contelmplated in advance of the Drive-ln's closing. Although there is n) direct evidence to this effect, their view is not wholly unten- ahle. Newman was a good employee, whio had been removed involuntari- ly from a location Ito which he had been assigned for the better part of 7 years Furthermore, Nesman's jiob in the priojection booth was nrot filled by a replacement. but his duties in that regard were simply added to the responsihilities f TIheater Manager Davis. In the circumstances, it is not larfetchedl tl asiuMnr that Respolndertn wuld seek to pacify Newman by rctulrlnlig hin Io Pennsauker- that is if it could do so without resur- recting the vulnerability of its projectionists t organizatit by the U nion c. he restoration of Newman to Pennsauken After the completion of shutdown operations at the Drive-In, Newman served as a relief man for several weeks. On December 23, Respondent discharged Rich- ard Davis, the manager of the Pennsauken complex. When designated to fill the vacancy, Newman was af- forded complete responsibility for all theater operations, including the right to hire and fire and discipline. The complaint alleges the restoration of Newman under those conditions violated Section 8(a)(3) and (1) of the Act. In this connection, it was my opinion that Sarris throughout his testimony deliberately sought to blurr the staffing of its theater so as to create the impression that Respondent does not employ individuals engaged exclu- sively in projectionist functions, He claimed that there is no such classification but that all local supervision and operators in the projection booth as well were all called manager/operators. I have heretofore discredited his tes- timony that prior to the transfer of Newman to the Drive-In, Newman's functions were limited to the pro- jection booth by virtue of a personal arrangement with the theater manager. In assessing Sarris' testimony in this regard one can take notice of the fact that the pattern of representation by the Union in the theater industry re- flects a historical interest in separate representation of projectionists. In any event, Respondent's theaters vary in size and management staffing thereof would not necessarily be as constant. However, it is the sense of the believable testi- mony, that in larger multiscreen operations two man- ager/operators would be involved, with one to two assis- tants. The Pennsauken operation, in two separate build- ings, at least physically, is one of Respondent's larger complexes. By virtue of a practice unaltered from May 30, 1977, to the inception of the instant organization effort, the Pennsauken theater was operated by two op- erator/managers who lacked overlapping authority. One, Newman, was assigned to the projection booth and was essentially restricted to screening activity. The other, first, an individual named John Daggett, and then his successor, Richard Davis, was responsible for remaining theater operations, including the hiring, firing, and disci- pline of employees. Upon transfer of Newman on September 26, that prac- tice was abandoned, and instead of employing two man- ager/operators with separate responsibility, Davis was entrusted with overall authority for all theater oper- ations, including operations of projection equipment. No credible explanation exists for this concentration of re- sponsibility in a single manager, a change in the estab- lished job lines effected only after the Union's interest in the projectionist had become manifest. Considering the credible evidence on this record establishing Respond- ent's propensity to frustrate any possibility of organiza- tion of projectionist at the Pennsauken theater, I find that the restoration of Newman as a supervisor was an extension of the overall unlawful scheme. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) in this respect. 35() SAMRIC C()RP)RA'I I()N 1 t R :nM A. Conlenotionulal Re rmedial Prosaionos Having found that the Respondent has engaged in cer- tain unfair labor practices, it shall be recommended that it he ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the pur- poses and policies of the Act. It having been fouind that Respondent violated the Act by discriminatorily transferring Newman and by thereaf- ter restoring him to the Pennsauken theater complex. hut in a nonbargaining unit position, and that Respondent, in the interim, discriminatorily relieved Cook of his respoli- sibility as a relief man in the performance of work within the collective-bargaining unit, Respondent shall be or- dered to restore their former positlions at the Pennsauken complex and to offer them immediate reinstatemen to the positions they held as of September 6. !979. B. 'he Bargaining Order The complaint in this proceeding alleges that the unfair labor practices, which have in fact been substanti- ated herein, "are so serious and substantial in character and effect as to warrant the entry of a remedial order re- quiring Respondent as of September 6, 1979, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of its employees in the unit." The Board's authority to award such relief has been confirmed in N.L.R.B. v. Gissel Packing Co., In(., 395 U.S. 575 (1969), with respect to flagrant and perva- sive unfair labor practices. In addition such authority exists with respect to a lesser pattern of misconduct where "the extensiveness of an employer's unfair labor practices in terms of their past effect on election condi- tions and the likelihood of their recurrence in the future . . .[indicates] . . . that the possibility of erasing the ef- fects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight.""' Such a finding is warranted on this record. The credible evidence portrays an overall pattern of misconduct designed to isolate employees from and to totally frustrate, any organization activity. Indeed. Re- spondent's irreverence for its obligations under the Na- tional Labor Relations Act is evident not only upon this record, but through a recently compiled history of unfair labor practices at other locations. Thus, between March and September 1978, Respondent's unlawful rejection of the principles of collective bargaining is chronicled in Board decisions in which Respondent, in three distinct collective bargaining units, refused to execute agreements reached in negotiations. See Sameric Corporation, 240 NLRB 970 (1979); 241 NLRB 733 (1979); 242 NLRB 1214 (1979). In addition, in 1979, the Respondent entered a formal settlement agreement with the General Counsel and a sister local of the Charging Party, concerning its alleged interference with the processes of the National Labor Relations Board. See Sameric Corporation, Case 4-CA-9828. That Respondent's present management has not abated its past proclivity to engage in repeat viola- tions of the Act is evident by events giving rise to this " 395 S ai p hl4 proceeding. Thus, (In September 6. 1979. with knowl- edge of union activity, Respondent unla\,fully trans- ferred Newman, an act which, if unchallenged, itself would defeat the Union's opportunity for organization See Grand Auto, Inc.. d/h/a Super ire Stor'.s. 236 NLRH 877. 882 (1978). This transfer as contested by unfair labor practice charges filed on September 10. 1979. and a complaint issued by the Regional Director for Region 4 on October 24. 1979. The pendency of that proceeding did not deter Rspondentl's unlaful manipulative design. which swas augmented bh further discrimination \with re- spect to Cook in earls December 179, and wilh respect to Newman on Dccember 23, 1979. In these circum- stances, the likelihood that Respondent will abide by the las. in the future cannot be said to approach the relm of certainty. Apart from the foregoing questions exist as to wlhether Board conventional remedies are effective to adequately restore the utatus quo anel in which a free and fair election call be conducted By virtue of Respond- ent's unlawful course of conduct, the status of Cook and Newman as members of the bargaining unit"' has been altered materially. Whether they will accept their former positions pursuant to the reinstatement order recoin- mended herein is imponderable upon which redress of preexisting conditions is dependent. 2 In any event, the Board has in somewhat analogous, but far less compel- ling, circumstances concluded that a bargaining order was justified. See Occidental Paper Corp., 227 NLRB 719. 722 (1977). Accordingly, it shall be recommended that Respond- ent recognize and bargain in good faith with the Union as exclusive representative of the employees in the ap- propriate unit, and, to facilitate that order. restore not only the discriminatees heretofore named, but to reinstate the projectionist positions as they existed on September 6. 1979., consistent with findings made herein. CON( I SIONS 01I l.xU i. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by, on September 6, 1979, transferring Clement E. Newman from his position in the appropriate unit de- fined below, by on or about December 2, 1979, removing Albert Cook from said unit and by, on December 23. 1979, promoting Newman to a supervisory position, all to prevent organization of employees by the Union. 4. All projection employees employed at the Pennsau- ken, New Jersey, facility, excluding guards and supervi- sors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. k TFhe appropriatcnrt' of the ll nri imltcd ti tic prolctLnrt, cm plo.cd atl cllla:luktr l "i adlmiitd in e l Rcspliondent ' arl.r cr Sce (; C t-xh l(m) 2' Indeed, the I raitrnil aco.ordcd Ct-ik, ight clI h h Ikcri l to a grinlt o hnefit, miic , from all iIdlitlion, oil thl record. R. pOTlricliti' iil t ir I tha rgilrd lligh t "e¢l havc scrcd (ook" itcrst, 3i DECISIONS OF NATIONAL I.ABOR RELATIONS BO()ARI) 5. The Union, since August 23, 1979, is, and has been at all times material herein, the designated representative of a majority of the employees in the unit described above and is the exclusive bargaining representative of said employees within the meaning of Section 9(a) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, it is hereby recommend- ed: ORDER 2 2 The Respondent, Sameric Corporation, Philadelphia. Pennsylvania. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization by transferring employees, eliminating their work assign- ments, or conferring them with statutorily exempt au- thority, or by in any other manner discriminating with respect to their tenure or terms and conditions of the work. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the purposes and policies of the Act: (a) Offer immediate reinstatement to Clement Newman and Albert Cook to their former positions at the Penn- " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all (objcctions thereto shall be deemed waived for all purposes sauken theater complex, without loss of seniority or other rights and privileges, and restore at that location the projectionist positions occupied by Newman and Cook as of September , 1979. (b) Upon request, bargain with International Alliance of Theatrical Stage Employees and Motion Picture Op- erators of the United States and Canada, Local 418, as the exclusive representative of all employees in the ap- propriate unit, 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. The appropriate bargaining unit is: All projection employees employed at the Pennsau- ken, New Jersey, facility excluding guards and su- pervisors as defined in the Act. (c) Post at its theater complex in Pennsauken, New Jersey, copies of the attached notice marked "Appen- dix. "2 3Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the wwords n the nlice reading "Posted by ()rder of he National Labor Relatlils Hoard" shall read Posted Pur- suant to a Judgment of the United S;ltes Court of Appeals cnfoircing an Order of the National Labor Relations Board" 352