United Artists Communications, Inc., Operating Capri Theatre

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Artists Communications,' Inc., Operating Capri Theatre and General Trades Employees Union, Local 5A and Local 1245, United Food and Commercial Workers Union, AFL-CIO, Party in Interest. Cases 2-CA-18996 and 2- CA-19121 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 19 March 1984 Administrative Law Judge Winifred D. Morio issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision and in answer to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,2 findings,3 and conclusions and to adopt the recommended Order.4 i The Respondent's name appears as amended at the hearing 2 The Respondent has excepted , inter alia, to the refusal of the judge to admit into evidence so-called "spotters reports" offered by the Re- spondent in support of its assertion that the discriminatees were dis- charged because of their misconduct rather than their union activities The judge refused to admit these reports into evidence on the grounds that they were not authenticated by the preparer of the report and the Respondent's sponsoring witness for the introduction of these reports was unable to identify any of the unnamed employees referred to in the re- ports as any of the unlawfully discharged employees The reports were placed in the rejected exhibits file We have reviewed them, and the judge's ruling in rejecting them , and we affirm the judge's ruling. a 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 4 We agree with the judge, for the reasons she discusses , that the Re- spondent's unlawful conduct (including particularly its discharge of 4 Local 5A supporters from a small unit which fluctuates in size from ap- proximately 10 employees normally to approximately 14 employees in the summertime, and its assistance to Local 1245, UFCW, AFL-CIO by threatening employees with discharge and promising them benefits to induce them to join that union ) is likely to leave a significant and persist- ent impact on the work force and has a strong tendency to undermine majority support for Local 5A and impede the election process We therefore find, in agreement with the judge, that the potential for con- ducting a fair election against this background of unlawful activity is poor, and the issuance of a bargaining order is therefore warranted to remedy effectively the Respondent 's unfair labor practices in these cir- cumstances It has not been the Board 's usual policy to consider subsequent em- ployee turnover in determining the propriety of issuing a bargaining order See Highland Plastics, 256 NLRB 146 (1981) (However, Chairman Dotson, in Marchese Metal, 270 NLRB 293 fn. 1 (1984), and Member Dennis, in her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985), have expressed their willingness to consider evidence of subsequent employee turnover in this context ) We are nevertheless 1. The judge found that Theater Manager Ronnie Williams unlawfully interrogated employee Jeanette Jimenez a few days before 14 July 1982 (all dates are 1982 unless otherwise specified). For the reasons set forth below, we affirm the judge's finding. Jimenez was alone with Williams in the latter's office. Williams asked Jimenez if she had "signed for the union," Jimenez asked Williams why he wanted to know , and he replied that the "company union was fighting in court with another union that was trying to get in, that the other union was from the Mafia. It was bad." Jimenez did not tell Wil- liams whether she had signed a union card. In Rossmore House5 (issued subsequent to the judge's decision), the Board reiterated the long- standing test for evaluating whether interrogations violate the Act : whether under all the circum- stances the interrogation reasonably tends to re- strain, coerce, or interfere with rights guaranteed by the Act.6 The Board in Rossmore House out- lined some factual elements that might be consid- ered in applying the Blue Flash test: (1) the back- ground, (2) the nature of the information sought, (3) the identity of the questioner, and (4) the place and method of interrogation . The Rossmore House decision involved the interrogation of an open and active union adherent. Subsequently , in Sunnyvale Medical Clinic,7 the Board stated that the analysis set forth in Rossmore House applied to all types of interrogations and that the question whether the employee involved was an open and active sup- porter was an additional relevant factor in evaluat- ing the total context of the interrogation. Applying the above framework for analysis to the incident in question, we note at the outset that, beginning in late 1981 and on several subsequent occasions, Jimenez had been told by former Thea- aware that certain circuit courts of appeals have expressed the view that such turnover is a relevant consideration in cases involving remedial bar- gaining orders In this regard we note that, while there has been a signifi- cant passage of time since the events here in question, there is no evi- dence before us to show whether (and if so, to what extent) there has been any employee turnover in the unit in question. In any event, the Re- spondent itself does not assert employee turnover as a reason for not issu- ing a bargaining order In agreeing with her colleagues that a bargaining order is appropriate, Member Dennis relies on the analysis set forth in her concurring opinion in Regency Manor Nursing Home, supra She emphasizes that the Re- spondent's hallmark violations were pervasive because the Respondent unlawfully discharged almost half the unit and repeatedly threatened em- ployees with discharge In light of the seriousness and extensiveness of the violations, and the small size of the unit, Member Dennis concludes that the passage of time by itself is insufficient to mitigate the need for a bargaining order 5 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985) 6 Blue Flash Express, 109 NLRB 591 (1954), cited in Rossmore House, 269 NLRB 1177, 1178 fn 20 7 277 NLRB 1217 (1985) (Member Dennis dissenting) In finding the interrogations in the instant case unlawful, Member Dennis relies on her Sunnyvale dissent 280 NLRB No. 119 UNITED ARTISTS COMMUNICATIONS tre Manager Mancuso (Williams' predecessor) that she would be discharged if she signed a union au- thorization card-precisely the information sought by Williams in the incident in question. The coer- cive effect of Williams' question against the back- drop of Mancuso's threats of discharge was com- pounded,by the fact that Williams , as theater man- ager; had virtually absolute authority . to hire and fire employees at will. Indeed, there is uncontro- verted evidence in the record that a 'new theater manager could discharge • the entire carryover crew, and hire all new employees of his 'own choosing. In this regard, Williams was in only his third week as manager when he interrogated Jimenez, a 9-month employee at. the time. Addi- tionally, although she had signed a Local-5A au- thorization card a few weeks earlier, Jimenez • was not an open and active union , supporter, and there was no reason for Jimenez to believe that her status as a Local 5A card signer had been disclosed to the Respondent at the time Williams questioned her in mid-July. Finally, we note that. Williams in- terrogated Jimenez alone, in his office,, a circum- stance which could serve only • to- heighten the other coercive aspects of this incident. Under all the circumstances, then, we agree with the judge that Williams' questioning of Jimenez had a reason- able . tendency to restrain, coerce, and interfere with . Jimenez in her attempts to exercise her rights under Section 7 of the Act. 2. The judge found that Williams also unlawfully interrogated employees Lucy Rosado and Yolanda Sanchez on 26 July following their return to the theater after, earlier - that day giving statements in the Hoard's Regional Office in connection with the unfair labor practice charges in this consolidated proceeding filed against the Respondent by Local 5A. For the reasons set forth below, we affirm the judge's findings. Rosado and Williams were alone in the latter's office. Williams asked Rosado whether she had signed with another union besides "his" (i.e., Local 1245, UFCW, AFL-CIO) and whether she knew anything about another union. Rosado told Wil- liams that she did not know anything about any union; Rosado then left. Subsequently, Williams called Sanchez into his office and asked her, "[W]hat was going on in court?" Williams also asked Sanchez, "[W]ho was there?" Rosado had earlier been threatened by then The- ater Manager Mancuso . In February, Mancuso told The judge found, and we agree, that this was an apparent reference to the representation hearing conducted in the Regional Office earlier that day in connection with Local 5A's petition to represent the instant employees. 1057 her that it was "lucky" that she had not signed a union' card because "if I did [Mancuso] would have to fire me automatically, because . [he] didn't' want anything to do with any unions." More recently, less than 2 weeks prior to the in- terrogations in question, Williams had threatened both Rosado and Sanchez with discharge if they refused to sign authorization cards for Local 1245, the company-favored union. Thus, following a threat of discharge by Mancuso if she signed' a card for any union, and a subsequent threat of discharge by Williams if she did not sign a card for Local 1245, Williams'. questions to Rosado whether she had signed a card for another union, and whether she knew anything about such a rival union, clearly had a tendency to restrain and coerce Rosado in the exercise of her protected right under Section 7 of the Act to join a union. Similarly, following a threat of discharge by Wil- liams if she did not sign an authorization card for Local 1245, Williams' questions to Sanchez about the representation proceeding involving Local-5A, and about who had attended the hearing , also had a tendency to restrain and coerce Sanchez in the exercise of her Section 7 rights. Indeed, earlier on the same day as these two interrogations, both Rosado and Sanchez had signed authorization cards for Local 5A, and -both had gone to the Board's Regional • Office to give statements in sup- port of Local 5A's unfair labor -practice charges against the Respondent. However, notwithstanding their involvement with Local ocal 5A, neither Rosado nor Sanchez was an open and active union support- er, and neither had reason to believe at the time of the interrogations by Williams that the Respondent had become aware that they, had signed cards for Local 5A (including the earlier cards they had both signed for Local 5A on 25 June). Also, we note that Williams interrogated Rosado and Sanchez individually, alone in his office, a cir- cumstance which we fmd had a tendency to aggra- vate the already coercive aspects of these incidents. Accordingly, under all the circumstances, we affirm the judge's conclusion that Williams unlaw- fully interrogated Rosado and Sanchez about their union activities, in violation of Section 8(a)(1) of the Act. 3. The judge found that the Respondent's obliga- tion to bargain with the, Charging Party, General Trades Employees Union, Local 5A, commenced on 14 July 1982. In this regard, the judge found that ' the authorization card majority -obtained by Local 5A on 25 June 1982 was not invalidated by the solicitation of those cards by then-Acting Thea- ter Manager Tola. We agree. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the judge notes, supervisory participation in the solicitation of authorization cards normally "taints" the cards, rendering them unreliable as in- dicators of employee support for a union. Howev- er, we agree with the judge that the normal rule does not apply to the unusual circumstances in this case. At the time Tola solicited the cards, he was scheduled for discharge, told the employees he was being discharged, and asked the employees not to tell management that he was soliciting cards. He explained to the employees that he was being dis- charged because a new theater manager was taking over, and told them that if he could be discharged for such a reason, "why can't an usher or a candy girl just, a new manager come in and just keep them for a week and fire them too, cause there was no Union they had no rights . . . . That's what I told them." Tola advised the employees of the ben- efits of joining Local 5A. He did not make any promises of benefits or threats of reprisals in regard to their employment in the course of his solicitation of the authorization cards. Indeed, three of the em- ployees who signed authorization cards for Local 5A had been strongly advised as recently as 4 months earlier by then-Theater Manager Mancuso against signing union cards. More specifically, in February 1982, Mancuso told employee Lucy Rosado that it was lucky that she had not signed a union card because Mancuso would have fired her "automatically" if she had. Mancuso told employee Jeanette Jimenez when she started her employment with the Respondent in late 1981, and again "sever- al times" thereafter, that she would be "fired" if she signed a union card. In February 1982, Man- cuso told employee Jose Cruz not to join a union because the Respondent's division manager, Jack Wauhop (Mancuso's immediate superior), "was against the Union . . . he didn't like the Union." Thus, at the time the employees were solicited by Tola to sign authorization cards for Local 5A in June 1982, they were well aware of the Respond- ent's strong opposition to unions, and had been threatened with discharge if they joined a union." They were also aware that Tola himself would soon be discharged and would therefore be incapa- ble of either rewarding them for signing a card, or punishing them for not doing so. Under these cir- cumstances, we agree with the judge that the po- tentially objectionable effects of card solicitation by a supervisor are not present in this case.10 There- fore, we affirm the judge's findings that, on 25 June 1982, Local 5A obtained uncoerced support among a majority (six of nine) of the employees in the unit found appropriate in this case, and that the 9 Mancuso's threats are not alleged to be unfair labor practices 10 See La Mousse, Inc, 259 NLRB 37, 42, 43 (1981) Respondent's obligation to bargain with Local 5A commenced on 14 July 1982, the date on or about which the Respondent embarked on its course of unlawful conduct.' 1 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Art- ists Communications, Inc., Operating Capri Thea- tre, East Meadow, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. " In Sarah Neuman Nursing Home, 270 NLRB 633 fn 2, 683-684 (1984), issued subsequent to the judge's decision herein, the Board reiter- ated the general principle that authorization cards directly solicited by supervisors are not counted in determining whether a union has obtained the support of a majority of the employees in a bargaining unit While we continue to subscribe to that general principle, we nevertheless find that the very unusual facts surrounding the solicitation of authorization cards by Acting Theatre Manager Tola in the instant case, as fully set forth above, mark an exception to the general principle reiterated in Sarah Neuman Member Stephens notes that , even if the validity of the authorization card majority obtained by Local 5A on 25 June 1982 were found to be tainted, a bargaining order would be warranted . The judge also found and the record establishes that Local 5A subsequently achieved , through new card solicitations , an unquestionably valid majority on 30 July 1982 By then, any trace of the taint that could be said to have affected Local 5A's initial organizational efforts, and its earlier group of signed authon- zation cards, would have been erased by intervening events Not only had Tola left the Respondent's employ, but the Respondent had, in the interim between Local 5A's two card solicitations , engaged in unlawful assistance to Local 1245 by threatening employees with discharge and promising them benefits to induce them to sign cards for that union rather than Local 5A Consequently, the unit employees who signed cards for Local 5A after these acts of unlawful conduct -many of whom had been the targets of that conduct-did so fully aware that the Re- spondent vehemently opposed Local 5A and their support of that union In such circumstances, Member Stephens would find that they signed those cards of their own volition in an atmosphere free of supervisory taint or any residue of such taint Accordingly, in the event that the Re- spondent's bargaining obligation could not be grounded on the 25 June card majority, Member Stephens would find that the bargaining obliga- tion would have commenced as of 30 July 1982, the date Local 5A un- questionably obtained a valid card majority Joel E. Cohen, Esq., and Ellen L. Dichner, Esq., for the General Counsel. Sidney S. Wolchok, F. C., of New York, New York, for the Respondent. Sol Bogen, Esq., of New York, New York, for the Charg- ing Party. Sarah E. Siskind, Esq. (Vladeck, Waldman, Elias, & En- gelhard), of New York, New York, for Local 1245, United Food and Commercial Workers Union, AFL- CIO. DECISION STATEMENT OF THE CASE WINIFRED D. MORIO, Administrative Law Judge. This case was tried at New York, New York, from March 7 through 10, 1983. The charge in Case 2-CA-18996, filed on July 19, 1982, by General Trades Employees Union, UNITED ARTISTS COMMUNICATIONS Local 5A (Local 5A) alleges that United Artists Eastern Theatres, Inc. (Respondent/Company) violated Section 8(a)(1) and (3) of the Act. That charge was amended on July 26 and October 29, 1982, to allege that Respondent violated Section 8(a)(1), (2), (3), and (5) of the Act. On September 17, 1982, Local A also filed a charge in Case 2-CA-19121, in which it alleged that Respondent violat- ed Section 8(a)(1), (2), and (3) of the Act. On January 21, 1983, a consolidated complaint was issued. The basic issues in this proceeding are whether Respondent unlaw- fully threatened and interrogated its employees, rendered unlawful assistance to Local 1245, United Food and Commercial Workers Union (Local 1245), discharged its employees because of their support for Local 5A, and whether a bargaining order is warranted, notwithstand- ing the existence of a collective-bargaining agreement be- tween Respondent and Local 1245. The answer filed by Respondent denies the commission of the alleged unfair labor practices. FINDINGS OF FACT 1. JURISDICTION The Respondent, a Delaware corporation , with vari- ous motion picture theatres in the city and State of New York, including the Capri Theatre located at 15 East Fordham Road , Bronx, New York, has been engaged in the operation of theatres displaying motion picture films for public viewing . Annually, Respondent, in the course and conduct of its operations , purchases and receives at its theatres located in New York State products , goods, and materials valued in excess of $50,000 from enter- prises located within the State of New York, which en- terprises in turn, each receive the products, goods, and materials directly from firms located outside the State of New York. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The parties admit and I find that Local 5A and Local 1245 are labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent, for several years, has operated a number of theatres in New York City, including the Capri Theatre located in Bronx County, which is the theatre involved in this proceeding. Respondent employs managers, assistant managers, projectionists, porters, cashiers, candy attendants, and usher/doormen at these theatres. The record reveals that managers and assistant managers are supervisory employees who are not cov- ered by a collective-bargaining agreement. The projec- tionists and porters, for many years, have been covered by separate citywide collective-bargaining agreements. These categories of employees are not involved in these proceedings. In June 1982 Local 5A commenced a cam- paign to organize the cashiers, candy attendants, and usher/doormen at the Capri Theatre. Respondent con- 1059 cedes that the usher/doormen were not represented at any theatre, including the Capri Theatre, but it claims that the cashiers and candy attendants at the Capri Thea- tre are covered by the citywide collective-bargaining agreement that it has had for years, initially, with Local 1111 United Food and Commercial Workers Union, AFL-CIO (Local 1111) and, at the present time, with Local 1245, a sister local, with whom Local 1111 merged in February 1981.1 The General Counsel con- tends that this agreement was not applied for some time to the cashiers and candy attendants at the Capri Thea- tre. Respondent agrees that the Local 1245 collective- bargaining agreement was not enforced at the Capri The- atre for a period of time, but it contends that this lack of enforcement does not establish that Local 1245 had aban- doned its representatives status at that location or that grounds exist to carve out this one location in face of the history of collective bargaining on a citywide basis. B. The Capri Theatre Background Jack Wauhop, a division manager for Respondent, tes- tified that there were about 10 employees employed in the pertinent categories at the Capn Theatre, prior to June 1982, although the figure did increase in the summer months. In June and July 1982 there were 9 and 14 employees, respectively, employed in those catagories. The parties stipulated that between January 1981 and July 1981 the only dues received by Local 1245 and its predecessor for employees in the cashier, candy attend- ant, and usher/doorman categories were dues remitted by Respondent on behalf of three employees. In August 1981 only the dues remitted by Respondent on behalf of one employee in the noted categories was received by the Union. Local 1245 did not receive dues from any source for the employees in stated categories between September 1981 and July 1982. The records of Local 1245 and its predecessor also disclose 14 cards which are designated for the cashiers, candy attendants, and usher/doormen employees at the Capri Theatre. These 14 cards show that health and welfare contributions were made by Respondent for one employee from February 1977 to October 1981 and for six employees from Sep- tember 1982 to the time of the hearing. There were no health and welfare contributions made at any time for the remaining employees. Thus, it appears from the records which are available that the collective-bargaining agreement, entered into by Local 1111 and assumed by Local 1245 about February 1981, was not enforced with respect to all the employees in the covered categories at the Capri Theatre for some years prior to the events which arose in this case. It is undisputed that it was not enforced with respect to any employee in those catego- ries between August 1981 and July 1982. According to Vincent DeVito, business manager for Local 1245, after the merger of the two locals in Febru- ary 1981, Al Lowenthal, a business agent, was assigned to administer the collective-bargaining agreement at sev- The most recent of these agreements expired in December 1982 and negotiations for a new agreement were in progress at the time of the hearing 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral locations, including the Capri Theatre. DeVito testi- fied that sometime thereafter Lowenthal advised him that he had secured authorization cards from the cashiers and candy attendants at the Capri Theatre and he did not pursue the matter further with Lowenthal. DeVito claimed that he first became aware that dues were not being deducted and health and welfare payments were not being made by Respondent when he was contacted by a Board agent, apparently in connection with the rep- resentation petition or unfair labor practice charges filed by Local 5A in June and July 1982. DeVito testified that although he was unaware that the contract was not being enforced at the Capri Theatre, Lowenthal should have known that dues were not being deducted and that health and welfare contributions were not being made. DeVito did not offer an explanation for Lowenthal's fail- ure to enforce the contract and Lowenthal, who had re- tired from his employment with Local 1245, was not called to testify.2 Stephen Tola, an assistant at the Capri Theatre, and Lucy Rosado and Jeanette Jimenez, employees at the theatre, testified that several months before the appear- ance of a Local 5A representative, an unidentified man did ask them to sign an authorization card for some union. These employees were uncertain about the name of the union but it appears that the man was a Local 1245 representative. Tola, Rosado, and Jimenez testified that Glen Mancuso, a former manager of the Capri The- atre, told them, at the time this man approached them, that if they signed authorization cards for the Union they would be fired. Mancuso was not called to testify. Tola testified that in his capacity as assistant manager, he ad- vised employees not to become involved with the Union because Wauhop did not want a union . It appears that the employees did not sign Local 1245 authorization cards, "they threw them away." C. The Unit The record establishes that Respondent's national headquarters is located in California . There is a regional office in East Meadow, New York, where Jack Wauhop, the division manager, is located . Wauhop has overall su- pervision for the theatres located in the Bronx, Brooklyn, Queens, Staten Island, and Manhattan . He hires and dis- charges the managers for the various theatres and he se- lects the films to be shown at each theatre. In addition, it is his responsibility to visit each theatre once a week, for about an hour, for a general inspection. It is clear that Wauhop is not involved in the day-to-day operation of the theatres under his supervision. Although the number of employees at the theatres varies, each theatre, basically, employs the same catego- ries of employees, i.e., a manager, assistant manager, pro- jectionist, porter, cashier, candy attendant, and usher/doorman. There is no interchange or transfer of employees among the various theatres. In the event of the absence of an employee , the manager calls an off- 2 The beef filed by counsel for Local 1245 indicates that coercive con- duct by Respondent was the reason for the failure by Local 1245 to en- force the contract, but there was no such evidence given during the hear- ing duty employee to fill the vacancy. The manager has total control over the day-to-day operation of the theatre. He hires, disciplines, supervises the employees on a daily basis, and discharges them when necessary . The assistant manager aids him with these responsibilities and fulfills the role of the manager on his days off. The record re- veals that the projectionists and porters perform only the duties associated with their respective classifications. However, the cashiers, candy attendants, and usher/- doormen do interchange duties on occasion and all the employees in these classifications are paid the same hourly rate. As noted, there are separate citywide collective-bar- gaining agreements for the projectionists and the porters. There is also the third agreement for cashiers and candy attendants which is at issue in this case , insofar as it re- lates to the Capri Theatre. In addition to the above facts which relate to the unit issue, the record reveals that Local 5A also filed a representation petition in Case 2- RC-19387 in which it sought to represent the usher/- doormen at the Valentine Theatre, which also is located in Bronx County. These employees have not been repre- sented at any theatre . On December 3, 1982, the Region- al Director for Region 2 issued a Decision and Direction of Election for the unit sought. Although the Respond- ent contended that only a citywide unit was appropriate, based on the history of citywide units for other catego- ries, the Regional Director found the unit limited to the one location to be appropriate. That decision was ap- pealed to the Board and the appeal was denied on De- cember 28, 1982. D. The Present Events Stephen Tola was employed by Respondent for about 1 year at the time he was discharged on June 29, 1982. During the time of his employment, Tola had been em- ployed as an usher for about 3 months, as an assistant manager for about 5 or 6 months, and as a manager for about a week or two before his discharge. In his capacity as assistant manager and as manager Tola exercised su- pervisory authority. Tola became a manager on a tempo- rary basis in late June 1982 when Glen Mancuso left his position as manager . Tola, aware of the company policy, knew that a new manager assigned to the theatre would hire his own staff and that he, therefore, would be dis- charged. Tola, contacted his uncle, Felix Ortiz, a Local 5A representative, and secured authorization cards which he distributed to the cashiers, candy attendants, and usher/doormen. Tola spoke to each employee, individ- ually, in his office and advised them of the benefits they would receive if they joined Local 5A. He also told the employees that he was being fired and if it could happen to him it could happen to them. He asked the employees not to disclose what he was doing to management. There is no evidence that Tola threatened any employee with discharge or other reprisal when he solicited them to sign the Local 5A authorization card. Yolanda Sanchez, Migdalia Baez, Jose Cruz, Maria Figueroa, Lucy Rosado, and Jeanette Jimenez, six of the nine employees then employed in the candy attendant, cashier, and usher/doorman categories, signed Local 5A cards, for UNITED ARTISTS COMMUNICATIONS Tola, on June 25, 1982. On that same day, a Local 5A representative delivered a written demand for recogni- tion to the theatre, which was received by Tola who then called Jack Wauhop and told him about the demand. Wauhop instructed Tola to advise Local 5A representatives, if they returned, that the employees at the Capri Theatre were represented. Tola thought that Wauhop mentioned Local 1245 as the Union represent- ing the employees. On July 12, 1982, Local 5A filed a representation peti- tion in Case 2-RC-19371 seeking to represent the cash- iers, candy attendants, and usher/doormen at the Capri Theatre. About June 30, 1982, Ronnie Williams became the manager at the Capri Theatre. Williams had been em- ployed by Respondent in various capacities, including as an assistant manager, at other theatres. Jeanette Jimenez, an employee, testified that a few days before July 14, 1982, Williams questioned her about whether she had signed a union authorization card. Jimenez did not re- spond to the question, but she did ask Williams why he wanted to know. Williams replied, "The Company Union was fighting another union that wanted to get in, the other union was from the Mafia. It was bad." Wil- liams did not specifically deny this testimony. Williams admitted that he contacted Al Lowenthal, a Local 1245 representative, on July 13 or 14, 1982, and requested him to come to the theatre for the purpose of soliciting employees to sign authorization cards for Local 1245. Williams claimed that the petition filed by Local 5A was not the reason he contacted Lowenthal, in fact, he testified that he was unaware of that petition. Wil- liams attributed his call to Lowenthal to his concern about the low wages paid to the employees at the Capri Theatre compared to the wages paid to the employees at the other Respondent theatres where he had worked. He also claimed that he contacted Lowenthal because a manager at a nearby theatre told him about Local 1245 and its representative, Lowenthal. Despite his concern about the low wages being paid to the Capri Theatre em- ployees and his lack of knowledge about which union represented the employees, Williams claimed that he did not speak to Wauhop about the problem until after he called Lowenthal. He then called Wauhop, told him what had happened, and at this point Wauhop expressed surprise that the contract was not being enforced at the Capri Theatre Williams testified that this was the first time that Wauhop had mentioned to him that Local 1245 represented the employees or that there was a collective- bargaining agreement covering the cashiers and candy attendants. On the other hand, Wauhop claimed that when Williams was assigned to the Capri Theatre he was told about the Local 1245 contract and the extent of its coverage. Williams and Wauhop not only disagree about when Williams first secured knowledge about the con- tract but they also disagree about the events on July 14, 1982. Williams testified that on that day, about the same time, both Wauhop and Lowenthal came to the theatre, although he did not know if their joint arrival was merely a coincidence. In any case, after they arrived all three went to Williams' office where they spoke to the 1061 employees, individually, about signing authorization cards for Local 1245. Williams conceded that during the meeting he urged the employees to sign Local 1245 au- thorization cards, and he also admitted that he told the employees that a failure to sign the authorization cards could result in their discharge. In addition, Williams told the employees that if they signed the authorization cards they would receive an increase from $3.15 an hour to $3.50 an hour. The employees signed the authorization cards for Local 1245. Although, both Williams and some of the employees state that Wauhop was present, Wauhop denied that he met with Lowenthal at the thea- tre, or was present when the employees signed the au- thorization cards.3 On July 26, 1982, a representation hearing was held at the Regional Office in connection with the representa- tion petition.' On that day an amended charge was filed with respect to unfair labor practice charges and employ- ees Lucy Rosado, Yolanda Sanchez, and Jose Luis Cruz were brought by Fellz Ortiz to the Regional Office to give statements in connection with the charges. Sanchez and Rosado both testified that Williams questioned them after they returned to work from the Regional Office. Sanchez claimed that Williams asked her what happened in court and Rosado testified that Williams questioned her as to whether she had signed a card for a union other than the company union. Williams denied that he questioned Sanchez and claimed that she came to him and told him she had to go to the Labor Board but he did not ask her why she had to go. Williams did not refute Rosado's testimony. In addition to the Board proceeding which it had insti- gated, Local 5A also secured new authorization cards about late July 1982. According to Feliz Ortiz, who se- cured the new authorization cards, the cards were signed on two occasions. Ortiz testified that he secured cards in front of the Capri Theatre from Miguel Villalba, Jerry Antomattei, and Reinaldo Jiraudo at the same time in late July 1982. The records reveal that Villalba's card was signed on July 26, 1982, and the cards of Antomattei and Jiraudo were signed on July 30, 1982. Ortiz testified that he also secured authorization cards from Yolanda Sanchez, Jose (Luis) Cruz, Lucy Rosado, Maria Fi- gueroa, and possibly Jeanette Jimenez, while driving them to the Regional Office in late July 1982. The cards of Sanchez, Cruz, Rosado, and Figueroa are dated July 26, 1982, and Jimenez' card is dated July 27, 1982. The authenticity of these cards is not in dispute. There were 14 employees in the contested unit about July 30, 1982, and Local 5A had secured 8 new authorization cards by that date. On September 14 or 15, 1982, Yolanda Sanchez, Lucy Rosado, and Miguel Villalba were discharged by Wil- liams. Jose Cruz was discharged on September 20, 1982. All four employees had signed cards for Local 5A. San- 3 Yolanda Sanchez and Jeanette Jimenez both credibly testified about Wauhop's efforts to have them sign a Local 1245 authorization card There were six authorization cards secured on July 14, 1982. Dues were thereafter deducted for Local 1245 4 Counsel representing Respondent in this proceeding also represented it at the representation hearing 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chez and Rosado had been questioned by Williams about the Union and the proceedings at the Board . Cruz had been present at the Regional Office with Ortiz when the representation proceeding was in progress . During the investigation of the unfair labor practice case , this writ- ten explanation was given , to the Region on October 14, 1982, for the discharges, "Sanchez, Rosado and Villalba were all discharged for observed or determined miscon- duct regarding the sale or allowance of admissions at the Capri Theatre in an improper and unauthorized manner." Thus, approximately 1 month after the discharges and during the course of the investigation of the unfair labor practice charges, the reason advanced for these three dis- charges was theft. However, Williams, who actually dis- charged the employees, did not agree that the employees were discharged for that reason. According to Williams, he discharged Sanchez and Rosado on September 15, 1982, because a spotter's report which he received indi- cated that these employees had violated a company rule which prohibited two employees from being in the cash- ier's box at the same time . Williams claimed that he knew it was Sanchez from the description contained in the report and he determined that it was Rosado because she was the cashier on duty at the time of the incident. Williams, initially, testified that Villalba was discharged for "palming" tickets but subsequently he stated that Vil- lalba was discharged for refusing to take a lie detector test. According to Williams, both Villalba and Jose Cruz were on duty at the time of the "palming" incident and both employees were instructed to take the lie detector test but only Cruz took it and he passed it. Williams tes- tified that some time after this incident a fuse blew in the box office when tickets were punched and as a result he told Maggie, who was the cashier on duty, and Cruz, who apparently was the doorman at the time, to allow patrons in without tickets but to keep a record of the number of people who came into the theatre. In the meantime, according to Williams, he left the theatre to secure fuses to correct the malfunction. When he re- turned, "he tore the tickets up, gave it to Jose Cruz and stuck them down in the ticket box. The rest I threw away." It appears that a spotter observed what had hap- pened and everyone, including Williams, took a lie detec- tor test. According to Williams, Cruz was not fired be- cause of this incident but he was fired either because he failed a lie detector test or because a report said he was "palming" tickets or something. Williams finally testified that he was not sure why Cruz was discharged. According to Wauhop, sometime in July or August 1982, he had a conversation with Milton Daly, Respond- ent's vice president, at Daly's office. Daly told him that he had received a spotter's report which stated that there was misconduct and theft at the Capri Theatre. The report did not name any particular employee or employ- ees but did provide descriptions. Wauhop recalled that the misconduct consisted of employees smoking while working, failing to be in uniform, failing to attend to their posts, "palming" tickets, and the presence of more than one employee in the cashier's box. Wauhop stated that he could not recall the names of the employees who were discharged or attribute any specific conduct to any particular individual, but he recalled that one employee, a woman, had left the cashier's box and was dancing in the lobby, an usher also was dancing in the lobby, and a third employee was in the cashier 's box when she was not supposed to be there. Wauhop testified that these three employees were not discharged for stealing and he could not recall if the fourth employee was discharged for "palming" tickets. The testimony of Milton Daly, Re- spondent's vice president and general manager, presents an even greater degree of confusion about the reasons for these discharges . On direct examination, Daly testi- fied that on September 20, 1982, he received a written spotter's report about an incident or incidents which al- legedly took place on September 13, 1982, at the Capri Theatre. He discussed this report with Wauhop who was in his office at the time for a regularly scheduled meet- ing. Wauhop had the payroll records of several theatres with him, including the payroll for the Capri Theatre, and after examining the payroll the two were able to as- certain the employees who were working on September 13, 1982, and who corresponded with the descriptions on the spotter's report.5 Daly recalled that there were three employees and an assistant manager6 involved in the al- leged misconduct on September 13, 1982, but during his testimony he could recall only the name of one employ- ee, Sanchez. Daly claimed that he directed Wauhop to discharge the four employees. Daly, repeatedly, denied that he spoke to anyone else about the discharges prior to September 20, 1982, when he received the spotter's report. According to Daly, he told Wauhop on Septem- ber 20, 1982, to discharge the employees because the report indicated that the employees were clowning around and he was running a business, he was not run- ning a playground, and if the employees, including the assistant manager, wanted to play they could work else- where. After repeated questioning by his counsel, Daly recalled that the four employees that he told Wauhop to discharge on September 20, 1982, were Sanchez, Vil- lalba, Rosado, and Cruz. Subsequently, Daly claimed that Cruz was not discharged on September 20, 1982, but was discharged after he received a report about him on September 20, 1982, from a polygraph service, Dale Sys- tems, which report indicated that Cruz had failed a poly- graph test which had been given to all employees be- cause of a money shortage at the Capri Theatre. During cross-examination after checking the payroll records, Daly admitted that Sanchez did not work on September 13, 1982, but he stated that at some point he ascertained that she had been at the theatre on that date. Daly fur- ther testified that Sanchez was discharged because she was in the cashier's box with the cashier in violation of Respondent's policy; Villalba was discharged for dancing in the lobby of the theatre; and Rosado was discharged because she was either "fooling" around or because she allowed another employee into the cashier's box. Daly denied that the employees were discharged for miscon- duct concerning the sale of the tickets or allowance of admission to the theatre and stated that he had not told 5 The report had not named any specific individual, as noted 6 After examining the payroll records during the hearing, Daly testi- fied that the assistant manager who was involved in the September 13, 1982 incident was R Camacho Jr UNITED ARTISTS COMMUNICATIONS 1063 his attorney that the employees were discharged for mis- conduct in connection with ticket sales. Daly, on redi- rect examination, compounded the confusion created by his earlier testimony about the reasons for the discharges. Daly now claimed that he recalled that the report he re- ceived from the spotter did state that the employees at the Capri Theatre were "palming" tickets. He recalled, also at this point in his testimony, that in addition to the written report which he received on September 20, 1982, he also had received a phone call on September 13, 1982, from the spotter who told him that the employees at the Capri Theatre were fooling around, there was a girl in the cashier's box, and the doorman was "palming" tick- ets. Villalba was not called to testify. Rosado claimed that she was not given a reason for her discharge. In fact, she testified that it was a fellow employee who initially told her that she had been discharged. She was informed by management that she had been discharged only when Ortiz asked Williams who was discharged and Williams pointed to her. Sanchez testified that Williams told her he was discharging her on instructions from Wauhop be- cause a spotter's report indicated that she was in the cashier's box on September 13, 1982, which was in viola- tion of company policy. Although Sanchez claimed she was not working on that day, she did admit that she had been at the theatre on that day and had been in the cash- ier's box with Rosado, "for a second." It is admitted that it is contrary to company policy for two employees to be in the cashier's box at the same time without the permis- sion of management. Sanchez also testified that after her discharge she had a conversation with Williams during which he told her that it was her fault everyone was dis- charged and he mentioned that she could be sued for being a member of two unions. According to Cruz, there had been money shortages in the candy concession beginning sometime after Williams became manager and in July or August 1982. Williams requested Cruz and another employee, who was the cashier at the time, to assist him in "covering" these shortages. In their efforts to cover the shortages, Cruz and the cashier, at Williams' suggestion, had participated in the "palming" of tickets on several occasions. Rosado testified that Williams had asked her also to assist in cov- ering the money shortages but she had refused to do so Williams denied knowledge about such a plan but he did admit, as noted above, that on the one occasion when there had been an electrical problem in the box office he had instructed the cashier and the doorman to allow pa- trons into the theatre without punching their tickets. E. Discussion 1. Whether the employees sought were unrepresented The first issue is whether the employees sought by Local 5A were unrepresented and whether, assuming that they were, they constitute a unit appropriate for col- lective-bargaining purposes in circumstances when Re- spondent's other employees in similar categories are cov- ered by a collective-bargaining agreement with another union. There is no dispute that a collective-bargaining agree- ment was entered into between the predecessor of Local 1245 and Respondent effective from December 30, 1980, to December 1982, which covered the cashiers and candy attendants at Respondent's various theatres. The usher/doormen were unrepresented. Respondent con- cedes that this contract was not enforced at the Capri Theatre for some months due, it claims, to an administra- tive oversight on the part of Local 1245. However, Re- spondent claims that the contract was enforced at the other theatres and, therefore, there has been substantial compliance with the terms of the contract and, under ex- isting Board law, this contract acts as a bar to any effort by another union to represent these employees. Respond- ent, in support of its argument concerning substantial compliance, cited Visitainer Corp., 237 NLRB 257 (1978); Douglas Public Service Corp., 62 NLRB 651 (1945); White Bros. Smelting Corp., 61 NLRB 340 (1945). These cases do not support Respondent's argument that compliance with the terms of an agreement at some locations of a company's operations constitutes substantial compliance with the terms of the contract at another location where it has not been applied. In Visitainer Corp., the contract in dispute covered only one location and the Board found the contract valid, although there had been minor variances from the contractual terms, because there had been total compliance with many of the contractual terms and substantial compliance with other terms. In Douglas Public Service Corp. and White Bros. Smelting Corp. the issue presented to the Board was whether the union was capable of fulfilling its responsibility to the employees as a collective-bargaining representative be- cause of internal problems. This case does not deal with either of these problems. Moreover, even if the cited cases did support Respondent's argument about substan- tial compliance, the evidence in this record is insufficient to establish that there had been substantial compliance with the contractual terms at the other theatres. Howev- er, assuming that there had been substantial compliance with the terms of the contract at the other theatres, it is conceded that this agreement was not enforced at the Capri Theatre between August 1981 and July 1982. Fur- ther, available union records indicate that there was lim- ited compliance with the terms of the agreement from its inception at the Capri Theatre. Thus, the records dis- close that dues were deducted for only three employees from January to July 1981 and health and welfare contri- butions were made for only two employees between Jan- uary and October 1981. Although, the exact number of employees at the Capri Theatre prior to June or July 1982 is not clear, Wauhop did testify that there were usually 10 employees in the noted categories. Respondent asserts that the contract was not enforced due to an administrative oversight by Local 1245. This assertion is not supported by the record. In fact, Local 1245 did not advance any explanation for its failure to enforce the agreement at the Capri Theatre. DeVito claimed that he did not know that the agreement was not being enforced. Lowenthal, who serviced the theatre, was not called to testify. However, DeVito did testify that it was Lowenthal's responsibility to know whether 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract was being enforced. Therefore, it can be presumed that Lowenthal knew that the terms of the agreement were not being complied with, but he failed to take action. There was no explanation offered for Lowenthal's failure to enforce the contractual terms. Local 1245 has cited several cases to support its assertion that its failure to enforce the collective-bargaining agree- ment at the Capri Theatre should not be grounds to set aside its contract. However, in Pioneer Inn, 228 NLRB 1263 (1977), Road Materials, 193 NLRB 990 (1971), and similar cases, there was evidence that the employees were aware of the existence of the union and the collec- tive-bargaining agreement. In this case the record reveals that these employees were unaware that a union alleged- ly represented them or that there was a collective-bar- gaining agreement. Assuming that Respondent in the in- stant case deliberately withheld this information from the employees this is not a defense to Local 1245's failure to enforce its contract at the Capri Theatre. Local 1245 was aware of the existence of the theatre and the employees but it failed to fulfill its bargaining obligation. Respondent further argues that this case must be con- trolled by the contract-bar principles, which were estab- lished to ensure industrial stability. These principles are, of course, well established by Board law. However, the rules presume a collective-bargaining agreement which, basically, is being enforced. Industrial stability must be balanced with adequate employee representation.7 It cannot be seriously argued that there was adequate rep- resentation in the instant case. It is undisputed that the contract was not applied at all for a year to the Capri Theatre employees in issue and, prior thereto, there was only a limited enforcement. It would be patently unfair to allow the Respondent, who deliberately withheld the benefits of the contract from these employees, to now rely on this contract to prevent these employees from being properly represented. In Silver Lake Nursing Home, 178 NLRB 478, 479 (1969), the Board did not find the multiemployer contract to be a bar when the evidence established that the employees failed to receive any of the benefits of the contract which purportedly covered all the terms and conditions of their employment. This case presents a similar situation. Accordingly, I find that the Local 1245's contract is not a bar to efforts by Local 5A to represent these employees. As noted, the usher/doormen have always been unrepresented. 2. The appropriate unit It is basic Board law that a single location is presump- tively appropriate in the absence of a controlling history of collective bargaining on a broader basis." In the in- stant case, as set forth above, I do not find that there exists a history of collective bargaining for the employ- ees sought by Local 5A. Further, the record reveals that Wauhop, Respondent's division manager, visits each the- atre within his jurisdiction only once a week, for ap- proximately 1 hour. It further reveals that the day-to-day operation of Respondent's theatres, including the Capri Theatre, is under the direct supervision of the manager NLRB v Marriott Corp., 693 F 2d 904 (9th Cir 1982) 8 Penn Color, Inc, 249 NLRB 1251 (1980) at each location. Although labor relation policies may be formulated on the national level, it is the manager at each location who has the full responsibility for the hiring, firing, the discipline, and supervision of the em- ployees sought to be represented by Local 5A. In addi- tion, the record reveals that employees sought by Local 5A receive the same rate of pay, work common hours, interchange job duties, and, generally, share a communi- ty of interests. Further, the record establishes that there is no interchange between the employees of the Capri Theatre and the employees of the other theatres at other locations. Respondent contends that the Board has recognized that similar job skills, operating procedures, and job clas- sifications are factors that tend to make an areawide unit more appropriate. In support of this argument, Respond- ent cited several cases. However, there are crucial differ- ences between the facts in the cited cases and the facts in the instant case. In White Castle System, 264 NLRB 267 (1982), the Board found areawide units to be appropriate. The Board, in arriving at its conclusion, based its find- ings on the lack of autonomy over the day-to-day oper- ations by the supervisory personnel at each restaurant, the significant amount of employee interchange, the common terms and conditions of employment, and the prior bargaining history. In the instant case, there is total autonomy by the individual manager with respect to hiring, firing, discipline, and supervision of employees. Further, there is no employee interchange between thea- tres, the terms and conditions of employment differ, and the evidence establishes that the employees sought by Local 5A were not represented during the last few years. In Tufts College, 229 NLRB 523 (1977), also cited, the Board found that the smallest appropriate unit consisted of all police officers located at two campuses of the em- ployer. The Board, in making that finding, again relied on the fact that all police officers were subject to common personnel policies, all hiring was subject to a universitywide program, and employee benefits were based on universitywide seniority. These factors are not present in the instant case. In NLRB v. Solis Theatre Corp., 403 F.2d 381 (2d Cir. 1968), the court in refusing to find a single theatre to be an appropriate unit, stated, "It is of marked significance that Interboro sets a single labor policy for the entire circuit, which has resulted in similar wages, hours and working conditions for all its employees." It is evident from this record that this is not true in this case, the employees at the Capri Theatre did not receive the benefits of the Local 1245 contract, which benefits, Respondent contends, were given to em- ployees at the other theatres. Moreover, the court in Solis also found that the local manager had little or no authority about labor matters, a situation clearly not true in this case. In sum, I find that the cashiers, candy at- tendants, and usher/doormen, the only unrepresented employees at the Capri Theatre, constitute an appropri- ate unit for collective-bargaining purposes. 3. Local 5A's majority status When Local 5A demanded recognition on June 25, 1982, six of the nine employees in the unit found appro- UNITED ARTISTS COMMUNICATIONS priate had signed authorization cards for Stephen Tola. Tola at the time was acting manager and he had been as- sistant manager for about 5 or 6 months prior thereto. As stated above, the manager and the assistant manager, when acting as manager, exercised supervisory authority over the employees in the unit. It is undisputed that Tola, at the time he secured the cards, was a supervisor within the meaning of the Act. Tola credibly testified that, at the time he solicited the cards, he told the em- ployees that he was being fired and asked them not to tell the Respondent that he had solicited them to sign an authorization card. Respondent has cited several cases which state, basically, that supervisory participation in soliciting authorization cards "taints" the cards. Howev- er, while the basic proposition is true, the Board also has held that supervisory solicitation does not always invali- date an authorization card. In a recent case, Melba Thea- tre, 260 NLRB 18, 22 (1982), in which the issue also was supervisory solicitation, the administrative law judge, with Board approval, cited the following language from an earlier case:9 This Board has long recognized that a supervi- sor's involvement in organizational activities will taint a union's card majority only where the super- visor's participation may be said to have deprived employees of the opportunity to exercise free choice in selecting a bargaining representative. In explicating this principle, [the Board has] pointed out that at a minimum it must be affirmatively es- tablished either that the supervisor's activity was such as to have implied to employees that their em- ployer favored the union or that there is cause for believing that employees were coercively induced to sign authorization cards because of fear of super- visory retaliation. This same concept was stated also in Gary Aircraft Corp., 220 NLRB 187 (1975); Turner's Express, 187 NLRB 106 (1971); and Stevenson Equipment Co., 174 NLRB 865 (1969). In this case the employees testified, without con- tradiction, that they had been threatened by Mancuso with discharge if they joined a union. They were also told that Wauhop did not want a union. Thus, the em- ployees were well aware of management's attitude toward unions. They were also aware that Tola was not speaking for management, in view of his statement that he was being discharged. Moreover, they could not have been induced into signing cards because of any retalia- tion by Tola if they failed to sign, in view of his sched- uled discharge. In this case, the objectionable effects that are possible because of solicitation by a supervisor could not occur. Accordingly, I find that the six cards signed by the employees were valid authorization cards and that on June 25, 1982, Local 5A represented an uncoerced majority of employees in the unit found appropriate. It should be noted that Local 5A also secured 8 uncoerced authorization cards in late July 1982 at a time when there were 14 employees in the unit. 9 El Rancho Market, 235 NLRB 468, 473-474 ( 1978), enfd mem 603 F 2d 223 (9th Cir 1979) 1065 4. Assistance to Local 1245 Although Wauhop denied that he was present at the theatre when Lowenthal, the Local 1245 representative, was at the theatre, Williams testified that Wauhop ar- rived with Lowenthal and the three then went to Wil- liams' office at which time they urged employees to sign authorization cards for Local 1245. Sanchez and Jimenez also confirm that Wauhop urged them to sign an authori- zation card for Local 1245 and Williams admitted that he threatened the employees with discharge if they failed to sign a card for Local 1245. Although the Local 1245 contract was effective in January 1981 this concentrated effort to have the employees sign authorization cards for Local 1245 occurred only after Local 5A filed a petition to represent these employees. I do not credit Williams' explanation that it was concern for the employees that caused him to contact Lowenthal. Nor do I credit that the presence of Lowenthal and Wauhop at the Capri Theatre a day or two after Local 5A filed its representa- tion petition was a mere coincidence. Rather, I find that this rush to enforce the terms of the collective-bargain- ing agreement after it had been dormant almost from its inception was caused by the demands made by Local 5A. Respondent and Local 1245 had been satisfied to deny the benefits of the Local 1245 collective-bargaining agreement to these employees. They should not be al- lowed now to use the agreement to further thwart the efforts by the employees to seek valid representation. In Gilbert-Robinson, Inc., 193 NLRB 279 (1971), affd. 471 F.2d 656 (8th Cir. 1972), the facts were similar to those existing in the instant case. There had been a failure to enforce the terms of a collective-bargaining agreement, including the contract's union-security provision, until the advent of another union. The Board adopted the ad- ministrative law judge's decision that these belated ef- forts to assist the contractual union constituted a viola- tion of Section 8(a)(2) of the Act and that the threats of discharge which accompanied the solicitations interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by the Act and, thereby, violat- ed Section 8(a)(1) of the Act. Accordingly, I find that Respondent by soliciting its employees to sign authoriza- tion cards for Local 1245 violated Section 8(a)(2) of the Act. I also find that by threatening its employees with discharge if they failed to comply with the solicitations and by promising them benefits to induce them to sign, Respondent violated Section 8(a)(1) of the Act. 5. The interrogation and discharges Jimenez and Rosado both testified that Williams ques- tioned them about their sympathies for Local 5A. Wil- liams did not deny the interrogations. Sanchez credibly testified that Williams interrogated her about her partici- pation in the Board proceedings. Although Williams denied that he questioned Sanchez and claimed that she volunteered the information, I do not credit his testimo- ny. Williams' lack of credibility was evident throughout his testimony. Interrogation of employees by an employ- er about their union activities always contains the poten- tial danger that the employees will be coerced. Texas In- dustries v. NLRB, 336 F.2d 128, 133 (5th Cir. 1964). This 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can be true even when the interrogations are not accom- panied by threats or promise of benefits. Freuhauf Corp., 237 NLRB 399 (1978). In the instant case, Jimenez, Rosado, and Sanchez were aware from earlier statements by Mancuso that this Employer did not want its employ- ees to engage in activities on behalf of a union and they were aware of the threats of discharge for such activi- ties. In these circumstances, I find that these interroga- tions were coercive and as such violative of Section 8(a)(1) of the Act. Pace Motor Lines, 260 NLRB 1395, 1406 (1982). Sanchez, Rosado, Cruz, ana Villalba all signed author- ization cards for Local 5A and Sanchez, Rosado, and Cruz were present at the Board's Regional Offices in late July 1982 when the representation hearing based on the Local SA petition was in progress. Representatives of Respondent were also present at the Regional Offices and participated in these proceedings. The four employ- ees were discharged in September 1982. The reason ad- vanced for the discharges are numerous and differ de- pending on which Respondent representative advances the reason. The letter forwarded to the Board by Re- spondent's counsel, during the investigation of the case, states that Sanchez, Rosado, and Villalba were dis- charged because of conduct involving the sale of tickets. Williams, who discharged the employees, denied that they were discharged for that reason. He claimed that he received a spotter's report concerning employee miscon- duct and he determined that the report referred to San- chez and Rosado and he discharged them because they had both been in the cashier's box at the same time. He, initially, claimed that he discharged Villalba for "palm- ing" tickets, although subsequently he claimed that he did not know if Villalba had been involved in that con- duct. He also testified, at another point, that Villalba was discharged because he refused to take a lie detector test. Williams was unsure why Cruz was discharged, although he knew that Cruz had failed a lie detector test, Wauhop could not recall the name of the employees who were discharged, but he knew that they were discharged for dancing in the lobby, smoking, being out of uniform, being in the cashier's box, or general fooling around rather than working. The conflicts created by the testi- mony of Williams and Wauhop were not resolved by Daly's testimony. It is undisputed that Sanchez, Rosado, and Villalba were discharged on September 15, 1982. However, Daly testified that he did not receive a spot- ter's report concerning misconduct by employees at the Capri Theatre until September 20, 1982. Daly repeated that testimony on several occasions and was certain that he had not discussed the discharge of Capri employees with anyone before that date. When he rece.ved the report he told Wauhop, who was in his office, to dis- charge the three employees and the assistant manager who was also engaged in the misconduct. Daly asserted that Wauhop was able to decide who the spotter's report referred to by examining a payroll record which he had with him and comparing the records with the descrip- tions contained in the report. Wauhop, however, testified that he looked at the payroll records in Williams' office after the discharges. Daly claimed, initially, that the em- ployees were not discharged for misconduct in connec- tion with the sale of tickets. He was emphatic about that fact and did not know how his attorney could have given that information to the Board . He was adamant that the employees were discharged for fooling around. After a luncheon recess, Day resumed the stand and to and behold, he suddenly remembered that in addition to the written report which he had received on September 20, 1982, he also had received a telephone communica- tion from the spotter on September 13, 1982, the very day the alleged misconduct occurred.1 ° This feeble at- tempt by Daly to explain how the employees were dis- charged 5 days before he claimed he received the writ.. ten report underscores the lack of truthfulness about all his testimony. In addition, to attempting to bolster his testimony about the spotter's report Daly, after the luncheon recess, subsequently recalled that the employ- ees were discharged for being in the cashier's box, for fooling around, and for "palming" tickets. To say the least, this sudden recollection was not convincing. The record is replete with these contradictions by Respond- ent witnesses about the reasons for the discharges. Thus, the record reveals that the employees were discharged for misconduct over the sale of the tickets or they were not discharged for that conduct. They were discharged for "palming" tickets or not for that reason. They were discharged for "clowning" around or for smoking or not being in uniform, or for none of those reasons . Sanchez and Rosado were discharged for being in the cashier's box and Wauhop was able to identify them after he checked descriptions on the report with payroll records in Daly's office before they were discharged or in Wil- liams' office after they were discharged. It may be that there were spotter's reports but I am not convinced that these reports were the cause of the discharges . In sum, both from my observation of the demeanor of Williams, Wauhop, and Daly, and from the contradictions and ob- vious falsehoods contained in their testimony, I do not credit that Sanchez, Rosado, Villalba, and Cruz were discharged for any of the reasons advanced by Respond- ent. Although Cruz admitted that he was involved in "palming" tickets, he testified that he did so at the direc- tion of Williams. I credit his testimony. Williams admit- ted that he directed Cruz to "palm" tickets but he stated that he did so on only one occasion because of an electri- cal shortage in the cashier's box. I observed Williams during the time that he gave this explanation. My obser- vation convinces me that he was a totally untrustworthy witness who would not hesitate to fabricate any story to protect himself. Although Sanchez did admit that she was in the cashier's box with Rosado, I do not credit that Respondent discharged these employees for that reason. Wauhop and Daly were unable to identity any specific employee and were unable to pinpoint their al- leged misconduct. In these circumstances, I find that the reasons advanced for the discharges were pretexts and 10 Of course, this sudden recall of the telephone conversation on Sep- tember 13, 1982, does not explain why he waited until September 20, 1982, to tell Wauhop to discharge the employees who had already been discharged. UNITED ARTISTS COMMUNICATIONS that in fact the employees were discharged for their union activities.'' However, assuming that Respondent did have nondis- criminatory reasons for the discharges, this record fails to establish that Respondent would have discharged the employees for those reasons absent their activities on behalf of Local 5A. In NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983), the Supreme Court ac- cepted the Board's standards set forth in Wright Line,' 2 to determine whether there is a violation when a dual motive exists for a discharge. Under Wright Line, it is the burden of the General Counsel to establish a prima facie showing sufficient to support the inference that the pro- tected conduct was a motivating factor in the employer's decision to discharge. When this is established the re- spondent must demonstrate that it would have dis- charged the employees even in the absence of the pro- tected activity . In the instant case the General Counsel has established that Sanchez , Rosado, Cruz, and Villalba were active on behalf of Local 5A, that Respondent was aware of the sympathies of these employees, as evi- denced by the interrogations and the efforts to have the employees sign authorization cards for Local 1245, and that Respondent opposed its employees' activities on behalf of Local 5A. Thus, a prima facie showing has been established . Respondent has come forward with not one reason for the discharges but several contradictory ones. It is difficult to believe that there would be this multiplicity of contradictory reasons for the discharges, if Respondent had been motivated by nondiscriminatory considerations. In sum, I do not credit Respondent's rea- sons but find that Sanchez, Rosado, Cruz, and Villalba were discharged for their activities on behalf of Local 5A, in violation of Section 8(a)(3) and (1) of the Act.'3 6. The bargaining obligation As noted above, I have found that the appropriate bar- gaining unit consists of the candy attendants, cashiers, and usher/doormen employed at the Capri Theatre and I have further found that since about June 25 , 1982, Local 5A has represented an uncoerced majority of the em- ployees in that unit . The General Counsel seeks a bar- gaining order to remedy the unfair labor practices. Ac- cordingly, it is necessary to decide whether the unfair labor practices committed by Respondent, as set forth above, were sufficiently widespread and serious under NLRB v. Gissel Packing Co., 395 U.S. 575 (1960), to war- rant the issuance of a bargaining order. In Martin City Ready Mix, 264 NLRB 450 (1982), the Board stated that it is necessary to explicate the reasons for issuing a bar- gaining order, including reasons why a fair election cannot be held. In the instant case Respondent engaged in the type of conduct which is likely to leave a signifi- cant and persistent imprint on its employees.'' Respond- 11 Professional Air Traffic Controllers Organization, 261 NLRB 922, 932 (1982); Kay Fries, Inc., 265 NLRB 1077 (1982). 12 Wright Line, 251 NLRB 1083 (1980) 13 Windsor Industries, 265 NLRB 1009 (1982) 14 Martin City Ready Mix, supra 1067 ent, faced with the organizing efforts by Local 5A, em- barked on a campaign of interference and intimidation. The employees were subject to threats of discharge and promise of benefits not only by Williams , the local man- ager, but by Wauhop, the division manager . In the con- fines of the manager's office these employees , who were in their late teens, were faced with repeated demands by Williams and Wauhop to sign authorization cards for Local 1245 or face discharge . Respondent's argument that it sought only to enforce the collective -bargaining agreement it had with Local 1245 would be more persua- sive if it had sought to do so from the contract 's incep- tion. It did not do so and should not now be allowed to use this obviously false reason to explain its assistance to Local 1245 . Respondent followed this conduct with even more flagrant conduct, it discharged four employees for their activities on behalf of Local 5A. The Board has found the discharge of employees sufficient grounds to justify a bargaining order.'s Moreover, the fact that there are competing labor organizations does not fore- close the possibility of a bargaining order .1 6 According- ly, I find that a bargaining order is justified, effective from July 14, 1982, because Respondent's unfair labor practices had "a tendency to undermine majority strength and impede the election process." t 7 On the foregoing findings of fact, and on the entire record herein, and pursuant to Section 10(b) of the Act, I make the following CONCLUSIONS OF LAW 1. The Respondent is, and had been at all times materi- al, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Local 5A and Local 1245 are, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent by coercively interrogating its employ- ees about their union activities and sympathies has inter- fered with, restrained , and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act. 4. Respondent, by discharging its employees Yolanda Sanchez, Lucy Rosado, and Miguel Villalba on Septem- ber 15, 1982, and Jose (Luis) Cruz on September 20, 1982, because of their activities on behalf of Local 5A, has discriminated against them in order to discourage their membership in the Union of Section 8(a)(3) and (1) of the Act. 5. Respondent, by threatening its employees with dis- charge in order to induce them to sign authorization cards for Local 1245; by promising its employees im- proved benefits, in order to induce them to sign authori- zation cards for Local 1245; by recognizing Local 1245 as the exclusive collective-bargaining representative of its candy attendants, cashiers, and usher/doormen at the Capri Theatre; and by applying the terms of Local 1245's collective-bargaining agreement to these employees at a 15 Martin City Ready Mix, supra; Windsor Industries, supra, Crawford House, 238 NLRB 410 (1978) 16 Cos Walker's Cash Stores, 249 NLRB 254 (1980). 17 Gissel, supra at 613-614 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time when Local 1245 did not enjoy an uncoerced ma- jority status, violated Section 8(a)(2) and (1) of the Act. 6. All candy attendants, cashiers, and usher/doormen at the Capri Theatre, but excluding all office clerical em- ployees, guards, and supervisors as defined in Section 2(11) of the Act constitute a unit appropriate for pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 7. Respondent, by refusing since July 14, 1982, to rec- ognize and bargain with Local 5A as the exclusive repre- sentative of its employees in the unit described above, has violated Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 9. The Respondent has not engaged in any other unfair labor practices not specifically found herein. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged Yolanda Sanchez, Lucy Rosado, and Miguel Villalba on September 15, 1982, and Jose (Luis) Cruz on September 20, 1982, I shall recommend that Respondent offer them full and unconditional reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions with Respondent, without prej- udice to their seniority and other rights, privileges, and benefits and make them whole for any loss of earnings they may have suffered by reason of their discharge. Backpay due the discriminatees shall be computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and shall include interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). Having found that Respondent deducted dues from the salaries of the candy attendants, cashiers, and usher/- doormen employed at the Capri Theatre for Local 1245 since July 14, 1982, I shall recommend that such dues be returned to the employees. It will also be recommended that, on request, Re- spondent recognize and bargain with Local 5A as the ex- clusive collective-bargaining representative of the em- ployees in the unit found appropriate herein, and embody any understanding reached into a signed agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed's 18 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 ORDER The Respondent, United Artists Eastern Theatres, Inc., Operating Capri Theatre, East Meadow, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their activities and sympathies for General Trades Em- ployees Union, Local 5A or any other labor organiza- tion. (b) Discouraging membership in Local 5A or any other labor organization by discharging or otherwise dis- criminating against employees in any manner in regard to their hire or tenure of employment, because of their union activities or sympathies. (c) Threatening employees with discharge if they did not sign cards for Local 1245, United Food and Com- mercial Workers Union, AFL-CIO. (d) Promising employees that they would receive ben- efits if they signed cards for Local 1245. (e) Requesting employees to sign Local 1245 authori- zation cards or, in any other manner, assisting or contrib- uting support to Local 1245. (f) Recognizing Local 1245 as the exclusive collective- bargaining representative of the employees in the appro- priate unit described below, at a time when Local 1245 did not represent an uncoerced majority of the employ- ees. (g) Giving effect to the collective-bargaining agree- ment between it and Local 1245, effective December 1980, or to any extension, modification, or renewal there- of. (h) Refusing since July 14, 1982, to recognize and bar- gain with Local 5A, as the exclusive collective-bargain- ing representative in the following unit: All candy attendants, cashiers and usher/doormen at the Capri Theatre, but excluding all office cleri- cal employees, guards and supervisors as defined in Section 2(11) of the Act. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist Local 5A or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Yolanda Sanchez, Lucy Rosado, Miguel Vil- lalba, and Jose (Luis) Cruz full and unconditional rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights, benefits, and privileges and make them whole for any loss of earnings they may have suffered by reason of the discrimination, in accordance with the formula set forth in the remedy section of the decision. (b) Withdraw recognition from Local 1245 as the col- lective-bargaining representative of the candy attendants, UNITED ARTISTS COMMUNICATIONS cashiers, and usher/doormen employed at the Capri The- atre and cease giving effect to any collective-bargaining agreement with Local 1245 with respect to the employ- ees set forth above. (c) Reimburse the candy attendants, cashiers, and usher/doormen employed at the Capri Theatre for the dues deducted from their salaries for Local 1245 since July 14, 1982. (d) On request, recognize and bargain with Local 5A as the exclusive collective-bargaining representative of all employees in the appropriate unit described above and, if an understanding is reached, embody the under- standing in a written signed agreement. (e) 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. (f) Post at it Capri Theatre copies of the attached notice marked "Appendix."19 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 19 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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 or- dered us to post and abide by this notice. The Act gives employees the following rights: To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. 1069 WE WILL NOT coercively interrogate our employees concerning their union activities and sympathies. WE WILL NOT discharge our employees or otherwise discriminate against them in any manner in regard to their hire or tenure of employment because of their ac- tivities on behalf of General Trades Employees Union, Local 5A or any other labor organization. WE WILL NOT threaten our employees with discharge or promise benefits to induce them to sign authorization cards for Local 1245, United Food and Commercial Workers Union, AFL-CIO or any other labor organiza- tion. WE WILL NOT recognize Local 1245 as the exclusive collective-bargaining representative of the employees in the appropriate unit described below at a time when Local 1245 does not represent an uncoerced majority of our employees. WE WILL NOT give effect to the collective-bargaining agreement with Local 1245 for the candy attendants, cashiers, and usher/doormen at the Capri Theatre. WE WILL NOT give effect to the authorization cards signed for Local 1245 by the candy attendants, cashiers, usher/doormen at the Capri Theatre. WE WILL NOT refuse to recognize and bargain with Local 5A as the exclusive collective-bargaining repre- sentative for the employees in the following unit: All candy attendants, cashiers and usher/doormen at the Capri Theatre, but excluding all office cleri- cal employees, guards and supervisors as defined in Section 2(11) of the Act. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist Local 5A, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL withdraw recognition of Local 1245 and any successor thereto with respect to the candy attendants, cashiers, and usher/doormen employed at the Capri The- atre. WE WILL reimburse the candy attendants, cashiers, and usher/doormen employed at the Capri Theatre for any dues deducted for Local 1245 since July 14, 1982. WE WILL offer to Yolanda Sanchez, Lucy Rosado, Miguel Villalba, and Jose (Luis) Cruz full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of em- ployment and make them whole for any loss of earnings they may have suffered by payment to them moneys due, plus interest. WE WILL remove from the records of Yolanda San- chez, Lucy Rosado, Miguel Villalba, and Jose (Luis) Cruz any aeference to their discharges and advise them, in writing, that we have done so. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, on request, recognize and bargain with an understanding is reached, embody the understanding Local 5A as the exclusive collective-bargaining repre- in a written signed agreement. sentative in the appropriate unit described above and, if UNITED ARTISTS EASTERN THEATRES, INC., OPERATING CAPRI THEATRE