Cave Springs Theatre And Regency 8 Theatre

4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Multi-Cinema, Inc., d/b/a Cave Springs Theatre and Regency 8 Theatre and St. Louis Moving Picture Machine Operators Local No. 143 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO. Case 14-CA-18693 8 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 9 June 1987 Administrative Law Judge Ber- nard Ries issued the attached decision. The Re- spondent and the General Counsel filed exceptions and supporting briefs. 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, findings,' and conclusions2 and to adopt the recommended Order.3 ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings 2 Chairman Dotson notes that no exceptions were filed to the judge's conclusion that the Respondent instructed Paul Kilgore to lie to an inves- tigating agent of the National Labor Relations Board 2 In rejecting the Respondent's exception to the provision of the Order requiring that the three discrimmatees be offered reinstatement to floor manager jobs , we note that the evidence shows that floor manager jobs without supervisory duties clearly existed at the Regency 8 Theatre at the time that the Respondent decided to hire three new employees rather than offer the discriminatees transfers into the jobs Further, the Re- spondent did not show that the nonsupervisory tasks that originally com- posed those jobs no longer exist Hence, the Order requiring the discri- minatees' reinstatement as floor managers does not constrain the Re- spondent's choice of its supervisors With respect to the discrimmatees' failure to respond by 31 December 1986 to the Respondent's offer of employment as floor managers, Member Stephens agrees with the judge that the letters did not constitute good-faith offers of employment substantially equivalent to the jobs the discriminatees had been unlawfully denied and that, in any event, the dis- crimmatees and the Union's business agent met with representatives of the Respondent in early January to make it clear that the three were in- terested in reinstatement to nonsupervisory floor manager jobs of the kind that had existed when the Respondent opened the Regency 8 Thea- tre In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) The General Counsel requests a visitatorial clause We deny the Gener- al Counsel's request as unnecessary here ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, American Multi-Cinema, Inc., d/b/a Cave Springs Theatre and Regency 8 Theatre, St. Charles, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Michael T. Jamison, Esq., for the General Counsel. Robert J. Harrop, Esq. (Gage & Tucker), of Kansas City, Missouri, for the Respondent. Mark F. Miller, of St. Louis, Missouri, for the Charging Party. DECISION BERNARD RIES, Administrative Law Judge. This matter was tried in St. Louis, Missouri, on 5 February 1987, pursuant to a charge filed on 24 November 1986 and a complaint issued on 24 December 1986 and there- after amended on 29 January 1987. The complaint asserts principally that Respondent violated Section 8(a)(3) of the Act by failing and refusing to consider three employ- ees for employment at one of its theatres, and also violat- ed Section 8(a)(1) by virtue of certain coercive state- ments made to employees at various times. Briefs have been filed by the General Counsel and Re- spondent. I have carefully considered the briefs, the tran- script of proceedings,' and the exhibits. My findings of fact, conclusions of law, and recommendations follow. 1. THE TERMINATIONS AT CAVE SPRINGS; SECTION 8(A)(1) ALLEGATIONS Respondent is a Missouri corporation which operates motion picture theaters throughout the United States. In 1985, it purchased 12 theaters owned by RKO Century Warner Theatres in the St. Louis area (2 of them still under construction at the time) and, on a showing of ma- jority support, it agreed to extend recognition to the Charging Party Union, which had represented projec- tionists at 10 of those theaters for some period of time. A new collective-bargaining agreement covering projec- tionists at all 12 theaters expressly stated that it would not apply to any other theater owned by Respondent; the Union accepted that limitation, even though Re- spondent had put it on notice during bargaining of the planned construction of two more theaters, to be called the Northwest Square Ten and the Regency Eight. Re- spondent's negotiator spoke, however, of the possibility of entering into a separate contract for those two thea- ters at a future date. The Northwest Square opened in June, evidently to the accompaniment of some union picketing and media publicity owing to its failure to hire unionized projec- tionists. Sometime in 1986, Respondent decided to close its unprofitable Cave Springs Cinema theater, the closure to occur immediately prior to the opening of the new ' Errors in the transcript have been noted and corrected 287 NLRB No. 2 CAVE SPRINGS THEATRE Regency Eight about 26 November . Around the end of October, Respondent began to advertise for employees to work at the Regency, and also notified most of the Cave Springs staff (some 12-15 ushers, concessionists, and box office attendants) that they would be transferred en masse to the Regency. The three Cave Springs pro- jectionists and the Union , however, in conformity with the bargaining agreement, received letters, dated 11 No- vember, from John Gregory Hogue, the St. Louis dis- trict supervisor for Respondent, stating that the Cave Springs, and the employment of the projectionists, would be terminated effective 26 November.2 The complaint alleges that the refusal to consider for transfer to the Regency the three Cave Springs projec- tionists (Paul Potter, James Goebel, and Dennis White), while virtually all other employees were so transferred, was unlawfully related to their union affiliation. Al- though Respondent's brief attempts to persuade that this issue and other allegations depend solely on the credibil- ity of a single General Counsel witness named Paul Kil- gore, the fact is that other witnesses, both for the Gener- al Counsel and Respondent, gave vital testimony that supports the entire complaint. Mark Miller, the union business agent, testified that just prior to the mailing of the termination letters, he re- ceived a call from District Supervisor Hogue about the closing, in the course of which Hogue said that he would like to speak to projectionist Potter.3 When Potter called Hogue, the latter told him that the theater was being closed, but that he wanted to say that Respondent was very satisfied with Potter's work. Potter took the oppor- tunity to ask "if there was any chance of being trans- ferred down to the Regency like the other employees." Hogue replied that "that was between AMC and the Union," and the conversation ended there .' Potter re- ported this to Miller. On 12 November Miller called Re- spondent's attorney Beagle to complain that all the Cave Springs employees except the unionized projectionists were being transferred to the Regency (Beagle respond- ed, "Jesus Christ, I don't believe they did that"), and Beagle said he would look into it. On 17 November Miller received a call from Albert J. Boos, Respondent's vice president-Midwest division. Timothy McCafferty, president of Local 143, participat- ed in the call. Boos told the two that Respondent was not going to use "Union projectionists at the Regency just like we didn't at the Northwest." After some discus- sion, Miller said, "Well, basically what you are telling me is that you are not going to hire Paul Potter and these guys because-at the Regency because they are S The only other Cave Springs employees not transferred to the Re- gency were janitors, whose duties were performed at the latter establish- ment by an independent janitorial service. a Potter was the principal projectionist at Cave Springs, an 8-year vet- eran at that theater who worked from 43-1/2 to 70 hours a week, de- pending on the season. White was a long-time, but part-time, employee who, in the winter of 1986, was working primarily on weekends for about 12 hours per week. Goebel was putting in 5-10 hours a week at the time he was terminated along with the other two Respondent's brief is too limited in stating that it "employed full-time projectionists" under the terms of the bargaining agreement. * Significantly, Hogue confirmed Potter's testimony- "I said that would be between AMC and the Union and negotiations." 5 members of the Union ." Boos replied, "Yes, that is right."5 Boos was not called as a witness, and the testimony of Miller and McCafferty stands undenied and unexplained on the record. Miller and McCafferty were good wit- nesses, and there is no reason to disbelieve their testimo- ny that Boos made such a broad admission; similarly, as noted earlier, Potter's testimony that Hogue rejected his request for a transfer to the Regency by saying that the matter was "between AMC and the Union" was cor- roborated by Hogue. In and of itself, such evidence is di- rectly probative of a Respondent mindset which, in de- ciding whether to offer employment at the Regency to the Cave Springs projectionists, was solely guided by the union affiliation of the three employees.6 Respondent presented other testimony, however, pur- porting to show a legitimate reason for refusing to con- sider the three projectionists for employment at the Re- gency, the reason being that there were to be no "pro- jectionists" as such-that the projection work was all performed, or intended to be performed , by the Regency "managers," a system which, according to the estimate of Thomas Wolery, the newly appointed general manag- er of the Regency, is in effect in more than 90 percent of Respondent's theaters in the United States.? It may first be pointed out that even assuming the truth of this allegation, it does not squarely meet the claim that the refusal to consider the three men for em- ployment was union related. In addition to the "floor manager" positions to be discussed below, other regular staff jobs (ushers, etc.) were available when Respondent began hiring the Regency complement in October.8 When Potter spoke to Hogue in November about the possibility of transferring "like the other employees," he did not say anything about transferring only as a projec- tionist. Hogue, as described above, essentially agreed that he told Potter in that call that the question of a transfer was "between AMC and the Union," but he also went on at the hearing to say that he did not give "any con- sideration" to offering the three projectionists a staff po- sition because he "didn't think they would want to-tear tickets and serve popcorn." This alleged decision on Hogue's part to not even offer such employment to the three projectionists based on his own unarticulated judg- ment of their scale of values seems quite questionable. s McCafferty recalled the question as "Now , let me understand you. The reason that you are not going to let the men out at the Cave Springs transfer is because they are affiliated with the Union ," and the answer was yes. 6 Both Miller and McCafferty placed Boos ' statement in the context of a conversation in which the latter spoke of "losing money " at the smaller theaters It might be argued that Boos mistakenly believed that if he hired union-affiliated projectionists at the new theater, Respondent would be required to pay them union scale, however , not only was Boos not brought forward to make such an explanation , but it also seems most im- probable that a man in his position so believed. On the face of the evi- dence given by Miller and McCafferty, Boos was directly saying that the three would not be hired because they were union members , and this concern was repeated, as we shall see, by statements subsequently made to other employees ' There is no evidence as to the total number of such theaters 8 The 8-theater complex employs a total of about 35 concessionists, 10 box-office employees, and 15-17 ushers, working various shifts and num- bers of hours. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is true that the record shows that the three were earning $11.15 per hour under the bargaining agreement, while the other Regency staff positions probably paid only minimum wages, but it is also true that most em- ployees believe that some income is better than no income,9 even if one were to assume that the three would be anxious to get back into projection work as, Hogue testified, he thought they eventually would, at one of the organized theaters under the hiring-hall provi- sion of the bargaining agreement.10 While Potter worked at Cave Springs full time, White, as noted above, was a part-timer who, in the fall of 1986, was only working for about 12 hours on weekends, and Goebel was employed for only 5-10 hours per week prior to his discharge. The probability that they would prefer some work to none seems strong; moreover, if they were to accept such po- sitions, Respondent would be in the happy situation of having available to it in an emergency some experienced projectionists. Despite these obvious humanitarian and practical considerations, Hogue did not even suggest that they might want to work in a staff position. Goebel testified that he called Hogue on 12 November and asked if he "could transfer like all the other employ- ees"; Hogue replied that his "services were not required at the Regency Theater." White testified that he placed a similar call to Hogue on 19 November, but this time Hogue more cautiously said that "he would get back with" White. Two days later, Hogue called White to say that the latter was "welcome to apply but [t]here were no positions available at this time in the area of floor ushers or managers [sic]." When White asked about pro- jectionist positions, Hogue replied, "We only hire man- agers, floor managers in that area " Hogue essentially confirmed these accounts, but added that when he called White back, he also contacted Goebel "after thinking about it"; and he told Goebel as well as White that if they were interested in a "management position" at the Regency, they could apply and would be considered for any future openings i I As indicated, Hogue and Wolery testified that Re- spondent's general operational procedure (at least for un- organized theaters) is to have all the projection-related work performed by the managers. This is evidently an effort (and not necessarily an unlawful one, if handled 9 "A lesser skilled job with less pay and/or reduced benefits may not be as attractive, but it is better than no job at all " Arlington Hotel Co , 273 NLRB 210, 215 (1984) io In point of fact, while the opportunities for employment under the contract seemed to be narrowing (the new Northwest Square and the Re- gency were concededly not covered by the contract, the Cave Springs was closed, and according to Local President McCafferty, Boos men- tioned in the telephone conversation on 17 November that McCafferty's own place of employment, the Woods Mill Theater, one of the organized establishments, might be closing soon for financial reasons), the record does show that thereafter, the three employees obtained some work through the hiring hall i i Although, as shown, Hogue testified that he called Goebel, who was not expecting a call, as well as White, who was, "after thinking about it," when he was subsequently asked about his hesitation in re- sponding directly to White, Hogue somewhat contradictorily answered, "It is obvious that I consulted with counsel At the time I wanted to know exactly the words I should use since members of the Union were closely listening to the words that I said " Such an explanation makes clear that Respondent viewed through a union-hued prism the possibility of employment of these three employees at a nonunionized theater properly) to avoid employing rank-and-file projectionists who would be subject to union organization. It is hard to know whether this testimony about the general applica- bility of this procedure, although not contradicted, is ac- curate, in view of evidence that a number of senior man- agers did not know how to operate the projection booth.12 Moreover, the policy is apparently a flexible one. as earlier noted, in negotiating the bargaining agree- ment, Boos had held out to Miller the possibility of ne- gotiating a separate contract for the two yet-to-be-con- structed theaters; and Hogue conceded that in speaking to Potter about a transfer to the Regency, he had said it was a matter "between AMC and the Union and negotia- tions." But however the other theaters may be operated, the record as a whole is convincing that it was Respond- ent's intention to hire at the Regency some "managers" who, while perhaps eventually possessing supervisory status, would nonetheless exercise from the beginning a core function of operating, overseeing, and maintaining the projection room and related machinery and facilities. The record shows that two of the young people who responded to Respondent's advertising for jobs at the Regency were 21-year-old Paul Kilgore, whose applica- tion stated that he was interested in "management," and Doug Kirkendoll, 20 years of age at the time, who listed on his application a desired position as "usher/pro- jectionist" and wrote that he was seeking a salary of $3.35 an hour "for part-time employment to pay for col- lege costs " Although not explored at the hearing, Kir- kendoll's application shows that someone inscribed on it, with a different pen, an arrow pointing toward the word "projectionist." Kilgore and Kirkendoll were hired as "floor managers," at a salary for Kirkendoll, according to some writing at the top of his application, of $3.75 an hour and, as Kilgore testified, at $4.25 for him. Respondent's testimony was that four levels of "super- vision" were employed at the Regency when it opened. the general manager, five salaried "full-time" (40 hours per week) managers (James Kinsey, Tammy Baymiller, Chris Davenport, Helen Carmichael, and Craig Bal- singer), three "floor managers" (Kilgore, Kirkendoll, and Tom Luther), and a staff "supervisor" for each category of employee (such as an "usher supervisor") selected by the other managers from the personnel in those catego- ries. After being hired on 28 October, and before the Re- gency opened officially on 26 November, Kilgore and 12 Helen Carmichael, a "full-time manager" for Respondent at Cave Springs and then the Regency, testified that of the five such managers originally at the latter theater, neither she nor Craig Balsinger had ever had any experience in operating the projection equipment The record, however, does not disclose the prior employment locations of the two, and they conceivably had worked only at organized theaters with recog- nized rank-and-file projectionists But Respondent's witness Patrick Campbell, a "floor manager" at the new Northwest Cinema, also testified that "[o]ut of all the managers who were at Northwest, there was only Mr Medjo [the general manager], Mitch Bryson, and myself that were able to run the booth proficient and I was given the job to train all the managers in the booth " Although the same unknown quantity as to the background of the other managers may operate in the case of Campbell's testimony as in the case of Carmichael's, the pattern at least suggests the possibility that Wolery is off the mark in estimating that management handles all projection work in over 90 percent of Respond- ent's theater chain CAVE SPRINGS THEATRE Kirkendoll were sent to the Northwest Square complex for training for perhaps 2-3 weeks. Although it is Respondent's general argument that the "floor managers" are immediately vested with superviso- ry authority, testimony to support this claim is very ten- uous. The General Counsel's witness Kilgore testified that when he interviewed for the job, full-time Manager Balsinger told him that the work would consist of "run- ning the projection booth . . probably anywhere be- tween 30 and 35 hours." In a subsequent interview with Wolery, which the complaint alleges to have been un- lawful in part, "the first thing" Wolery asked was if Kil- gore "had a union card" or had "ever been a member of a union"; Kilgore said "No." Kilgore also answered Wo- lery's question whether Kilgore "had any desire to ever work for a union" by saying "No," to which Wolery re- sponded, "Good " Wolery then told Kilgore that "the floor manager's primary responsibility would be to run the projection booths." Kilgore, who was interested in the possibility of assuming managerial duties, asked if the job entailed any such duties, to which Wolery answered "No," saying, however, that there would be "some day, at some time " Kilgore also saw Wolery append to Kil- gore's application a piece of removable adhesive note- paper with the words "No union card" followed by an exclamation point; the note was gone when the applica- tion was produced pursuant to the General Counsel's subpoena. Wolery's denial of having had a discussion about unions with Kilgore in the interview was not very im- pressive- asked if he had participated in such a discus- sion, and whether he had inquired into Kilgore's posses- sion of a union card, Wolery rather weakly replied, "Not that I know of" and "Not that I remember ." His subse- quent, more affirmative, characterizations of any such questions as "quite foolish" and "idiotic" for someone as "fairly astute politically" as he does not, in my view, re- habilitate the tellingly tentative character of his first de- nials. Since there are other areas in which Kilgore's credibil- ity is crucial, I will explain here why I consistently find him to be more trustworthy than Respondent's witnesses. For one thing, his personal demeanor was compellingly bright and sincere. For another, some of his testimony which was denied or contradicted by certain of Re- spondent's witnesses was substantially confirmed by others. Third, a close study of the record leads me to think that Kilgore is an almost compulsively truthful in- dividual. Thus, his employment application poses the question, "Have you ever used marijuana`'" Kilgore answered, "I'm not sure." This seemed humorous at first, but with further consideration came the realization of how safe, how invulnerable, it would have been for Kilgore simply to answer "No " Instead, he was obviously reluctant to blithely take the most convenient route (perhaps rationa- lizing to himself that even if he did use some substance identified to him as marijuana, he was in no position to positively state that it indeed was that substance). Again, when the application asked if he ever had been treated for a "nervous condition," Kilgore answered "Yes" and explained, "Under a lot of financial stress/Given tranq. 7 to help me sleep (past)." Again, how easy it would have been merely to answer "no" (the application does not ask for the names of physicians consulted in the past); one wonders how many applicants would have bothered to give an affirmative reply in such circumstances and for such a reason? Finally, we will see later that Kilgore alleges that the Respondent put him under such pressure, on 9 January 1987, to make misrepresentations to a Board agent that he summarily quit the job. Respondent admits to having had an interview with Kilgore that day, but claims that it was innocuous. Respondent does not, however, attempt to explain why Kilgore, a married man, should have so abruptly left his employment without even having the prospect of another job, t 3 and it is only his version of the events which make sense of such behavior. Working from this conclusion, I feel confirmed in my judgment that, overall, Kilgore's testimony about earlier incidents should be trusted. The persistent questioning by Wolery about the union background and sentiments of applicant Kilgore, made especially pointed by Wolery's expressed approval of Kilgore's stated disinterest in unions and by his notation on the employment application of Kilgore's nonaffiliation with a union, plainly had a tendency to coerce Kilgore in the exercise of his Section 7 rights and was, as the amended complaint alleges, violative of Section 8(a)(1) of the Act. In that first interview, according to the credited testi- mony of Kilgore, Wolery told him that his "primary re- sponsiblity" at the Regency would be "to run the projec- tors and the maintaining of the projection booths," al- though, as noted, Kilgore also testified that, in answers to his question about supervisory duties, Wolery stated "there would be some day, at some time." Wolery testi- fied that he had told Kilgore that he "would" possess su- pervisory authority, not just "possibly" do so; but, in sig- nificant corroboration of Kilgore, Wolery also testified, "[a]t that time it was going to be my judgment when and where that would happen." He further said that he told neither Kilgore nor Kirkendoll "any details" of the su- pervisory responsibilities with which they might some day be vested. The failure to do so was, on its face, in direct contravention of what District Manager Hogue testified he had "order[ed]" Wolery to ,tell the new "floor managers"-"I gave Mr. Wolery specific orders that these people have the power to hire and fire. They have complete supervisory ability." This seems entirely unlikely: Wolery admittedly said virtually the opposite (Wolery is, incidentally, a veteran in the business whom Hogue "trust[s] completely"). Kirkendoll, testifying for Respondent, said that Wolery told him that he "would be supervising the 13 He is currently working as a cashier at a grocery market No appar- ent purpose can be discerned to explain why he would fabricate a pack of lies about Respondent-he has no known interest in the Union or the fate of Potter, Goebel, and White, whom, so far as the record shows, Kil- gore is not even acquainted with Moreover, given his ambition with re- spect to managerial employment , he is probably not enhancing his chances at such employment by giving this testimony Respondent's brief refers to Kilgore's motive as a "mystery " I would resolve the mystery by concluding that he chose to be honest 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD people on the floor and that I would also be running the projectors." He further testified that when he com- menced employment, he was told no more about his su- pervisory authority than that he "would have the power to supervise. That is it." This is, as can be seen, not con- sistent with Wolery's own account of his separate (but presumably similar) interview with Kilgore. Kirkendoll exhibited a clear partisanship toward Respondent, even though he made some important concessions. E.g., he testified that no one ever told him that he had the au- thority to discipline others (although he believed that he did), and it was only "eventually" that he heard (from an usher) that Respondent maintains a written disciplinary system. 14 Before they went to work at the Regency, Kilgore and Kirkendoll were trained in projection booth operation at Northwest Square by Patrick Campbell, a Northwest floor manager who had been promoted to that position (from usher at another theater) when Northwest opened on 6 June. It was intended that, after this training, the two new employees and a Northwest floor manager named Tom Luther (an experienced projectionist) would be transferred to the Regency. The contemplated scope of their duties at the Regency is in dispute. It is Respondent's position that these trained floor manager-operators would in turn train the other Regency managers in projection work, and thereafter all such work would be divided among the floor and full- time managers. However, on his last day of work at Cave Springs, employee Goebel conversed with full-time Manager Carmichael, who was transferring to the Re- gency, about the managerial setup at that theater, and she told him that there would be about nine managers, of which "three of them only did projection and that is all they did." Carmichael, testifying for Respondent, sub- stantially corroborated Goebel on cross-examination: "I said they would be doing projection work." 15 She also 14 It is in this area that Kilgore uttered the single piece of testimony that gave rise to any question in my mind about his veracity He was asked on cross-examination whether he had ever "signed a timecard for another employee prior to December 8", although he could not recall having done so, Kilgore said that it was "very possible" that he did even though he "wasn't supposed to " When I examined him further on this point, Kilgore again stated that although he could not recall having done so, it is possible that he signed a timecard "when a manager was busy and someone needed to leave," even though prior to 8 December (when, as we shall see, things changed), he did not believe that he was author- ized to do so No timecard was in fact produced to document that he did sign one This testimony has not, after consideration of all the factors weighing in his favor, changed my assessment of Kilgore The "floor managers," the full -time managers, and the general manager, wore similar uniforms and badges bearing the word "Manager " It is not difficult to imagine an usher approaching Kilgore, dressed in his managerial garb, and saying that he was unable to find a full-time manager and had to leave, and to conceive of Kilgore, seeing no harm in doing so, agreeing to initial the timecard 's The complaint alleges that Respondent, through Carmichael, violat- ed Sec 8(a)(1) by stating that Respondent would not allow the projec- tionists to transfer from Cave Springs to Regency 8 "because these em- ployees were members of Charging Party " As noted above, Goebel testi- fied that on his final workday, he was discussing the situation with Car- michael Goebel said that it was a shame that someone with Potter's se- niority was out of a job She commented that "they are not going with union people down there and that is why [they] weren't transferred " Goebel also testified that he asked Campbell, "If they are not, you know, going with projectionists down there, who does it"" and Carmichael re- testified that at the beginning of the Regency operation, there were certain employees classified as floor managers whose "main responsibility was working with the booth and working with other managers to show us how to use it . . . [and who also had] some duties in making sure . . the ushers did the show breaks correctly and show starts." As far as Kilgore and Kirkendoll being trained to act as a "supervisor" while at Northwest, such training was, if anything, osmotic. Although, as indicated, Kirkendoll testified that Wolery had told him that he "would be su- pervising the people" as well as running the projectors at Regency, Kirkendoll further stated that the training in the former category consisted of "all the managers at [Northwest] . . . instruct[ing] me on how to watch the floor. And then a lot of it was just watching them and what they did " While at Northwest, according to Kilgore and the complaint, Wolery again violated the Act by a remark to Kilgore. The latter testified that his curiosity about the questions Wolery had put to him about unions led him one day, while Wolery happened to be present at the Northwest, to inquire about the subject. Wolery "said if I valued my job, I wouldn't talk about the union." Kil- gore said that he was given the same admonition by Dennis Medjo, general manager of the Northwest Tell- ingly, Respondent witness Kirkendoll gave support to this assertion by testifying, on cross-examination, that he also had a conversation with Medjo in which the latter "just told me it was a touchy subject there and that he did not, you know, want the employees mentioning it- mentioning a union problem." i 6 On the basis of Kil- gore's credited testimony, I find that, as the complaint asserts, Respondent unlawfully "informed an employee not to talk about unions and threatened him with loss of employment should he concern himself with unions." i 7 11. THE TRANSFER TO THE REGENCY After training for a few weeks at the Northwest, Kil- gore, Kirkendoll, and Luther were transferred to the Re- plied, "Managers " She further told him that there would be nine manag- ers and "three of them only did projection and that is all they did " Carmichael testified that she had told Goebel that the Regency "was not using a union projectionist That it would be ran [sic] by management staff," and also that she herself "would be doing projection work " She also conceded , however, that she told him that three of the managers at the Regency "would mainly be doing projection work " What Goebel heard , in other words, was that three so-called "managers" would pri- marily be engaged in projection , but they would not be "union people " This indication that three individuals at the Regency would "mainly" be performing projection work, but that they would be referred to as "man- agers" and definitely would not be "union people," plainly, and reason- ably, must have indicated to Goebel a discriminatory scheme, and there- fore violated Sec 8(a)(1) of the Act, as alleged 16 Respondent's brief repeatedly emphasizes the question, "If Mr Kil- gore was warned about talking about unions , why wasn't Mr Kirken- doll'" A good question, perhaps, until one reads the transcript 17 I should note that, at the time Wolery made this coercive statement, Kilgore and Kirkendoll were not supervisors within the meaning of Sec 2(11) of the Act, as indicated above, Wolery conceded that he told Kil- gore in the hiring interview that his assumption of any supervisory duties would be based upon Wolery's "judgment when and where that would happen," and it obviously had not happened by the end of the training period at Northwest CAVE SPRINGS THEATRE gency about a week before it opened on 23 November.18 Kilgore and Kirkendoll spent the first week preparing the projection booths (of which there are four, with two projectors and two platters, or spliced reels of film, in each booth) and purchasing supplies . When the theater opened, the undisputed managerial staff consisted of General Manager Wolery and the five full-time managers earlier identified . At first, Kilgore testified, he and the other two floor managers concentrated on projection duties-"building up" movies (splicing together a number of reels and putting them on a platter, and at- taching the initial trailers), 19 threading each showing of each film, making sure that the apertures of the projec- tors are clean, starting the films, checking the sound in the auditorium, preparing slides for showing between films, "tearing down" the films (also a one-time function after the final showing of a film), and maintaining the projection booths. Carmichael confirmed that Kilgore, Kirkendoll, and Luther "mainly" performed the booth work for the first "couple of weeks until the rest of the management . . . was able to . . . sit down and learn the equipment." On 26 November Respondent was served with the charge in this case, relating to the failure to transfer Potter, Goebel, and White to the Regency. It was around the first part of December , Kilgore testified, that "the full-time managers would come in with us and we would, you know, put them through the steps of thread- ing the machines." Some of them had had prior training on slightly outdated machinery and only needed a re- fresher course; apparently the only full-time managers who had no experience were Carmichael and Balsinger. The training evidently did not proceed in any depth: Carmichael testified that at the time she transferred from the Regency on 3 January, she had learned only how to thread the machines , put the trailers on, and make splices . She also said that after starting her first film on 8 December, she thereafter started perhaps "three, four" shows a day, and on weekends "probably around eight to ten."20 Before reaching the events of 8 December , we should consider another conversation between Kilgore and Wolery at a time described by Kilgore as "early Decem- ber." As the two were walking through the Regency, Kilgore, still interested in the nature of the problem about unions, again asked Wolery about it, and was told that there was some kind of conflict between the Union and AMC. Wolery then asked if Kilgore knew a Jeff Daley. Kilgore replied that he had heard of him as a floor manager at Northwest, but that he was gone before Kilgore began training there . Wolery warned, "Don't end up like him. We fired him because he snitched to the Union." Wolery denied having had any such conversation with Kilgore, but, in describing Jeff Daley's short career with Respondent, gave enough detail to make Kilgore's ac- count of the conversation seem most plausible . Wolery 18 Luther had previously been employed at the Northwest and, at least by 3 January, according to the testimony of Carmichael, had left the Re- gency and returned to the Northwest 19 This is done only once for the duration of the showing of the film. 20 On weekends, there are 6 starts of 8 films, or 48 showings, per day 9 testified that Daley had "a habit of rumormongering which I didn't think was a good trait for management" (the "rumormongering" consisting of talking to the staff about the inadequacies of other managers ). It was only after Daley's termination, Wolery said , that he "heard anything about him in relation to the Union or any union." And what he heard, Wolery testified on cross, was that Daley "was going to the Union and telling them that the [Northwest] part-time managers, full-time [sic] managers or whatever you want to call them really didn't have any supervisory responsibilities." Given this admitted context and my preference for Kilgore's testimony, I recommend that Respondent be found to have violated Section 8(a)(1) in early December when Wolery manifestly threatened Kilgore that he should not, in the words of the complaint, "end up like another employee who had been fired for having gone to the Union." Kilgore testified that during the first few weeks of his employment at the Regency, he spent most of his time on projection work, and when he was not so engaged, he and Kirkendoll would "stand around" in the lobby, not really doing anything unless a full -time manager had to go to the office, at which times they "would keep an eye on things." District Supervisor Hogue testified that during this period , he observed the two watching and in- structing the ushers and making sure they were "break- ing the doors correctly." Respondent's brief ridicules Kilgore's claim that he was simply "standing in the lobby," but both Wolery and Carmichael essentially con- firmed Kilgore's testimony, the former by stating on cross that "[e]arly on, Kilgore and Kirkendoll were just standing there and perhaps did not appear to be observ- ing or watching what the other staff were doing,"21 and the latter by saying that when they were in the lobby, the two "floor managers" were "basically just standing there." Kilgore testified that about 8 December , Wolery told him that Kilgore, Kirkendoll, and Luther were going to be promoted to "part-time managers," the reason being that "the Union and the Labor Relations Board felt that a floor manager was not a true manager."22 He was told 21 Wolery also testified that "more than once," perhaps "eight, nine times" in a "six, seven hour shift," when he saw Kilgore "standing in the lobby," he instructed him "what to look for . in specific areas " I am very dubious about this rate of recidivism, especially since he went on to say that Kilgore was "very good" about following such instructions after "once" being told what to do. 22 The inconsistency and uncertainty disclosed by the record with regard to the usage of such terms as "floor manager" and "part-time manager" heighten the ambiguity of the status of the occupants of such positions Full-time Manager Carmichael , for example, stated on three oc- casions during her testimony that she regarded the two terms as synony- mous. Hogue testified that there is no difference between them other than that floor managers are not allowed to count cash , it would follow, from his description of the authority of "part -time" managers, that floor man- agers "have the power to hire and fire . . and every supervisory duty a full-time manager would have" except for counting cash . This, of course, except for the authority to count cash, equates floor managers, part-time managers, and full-time managers, and also contradicts Wolery's quoted testimony that the Regency floor managers had no supervisory authority until such time as would be his "judgment when and where that would happen." Continued 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the three would have to take polygraph tests and get security clearances, after which Respondent "would be getting us involved in other aspects of the theater, but we were told that our primary responsibility would still be the projection booths, running the projectors, the maintenance of the booth and what have you " On that day, Wolery had Kilgore and Kirkendoll fill out new employment applications, showing the "Position Applied For" as "Management" and "Manager." Al- though the dates signed at the end of the applications by Kilgore and Kirkendoll reflect the true signing date of 8 December, on both applications another hand has insert- ed, in a "Date" blank at the top of the applications, "10/25/86." After 8 December, Kilgore testified, he was vested with more supervisory-like attributes. He was given an office key (although, for some unknown reason, Kirken- doll and Luther were not), he helped to count cash about three times; he would assign the temporary head usher or head concessionist and make sure at the end of the evening that the concession stand was clean. Wolery told him that he could discharge an employee if he ob- tained the approval of a full-time manager. He also was told that he could write disciplinary warnings, and did so thereafter on two occasions; he was told by Wolery that he could assign jobs, monitor work performance, and in- struct; he once replaced an ill full-time manager; he was told by Wolery that he had the authority to approve the use of a pass by an employee's friend; he signed time- cards; and he assisted Wolery in compiling lists of assign- ments. This panoply of authority was vested in Kilgore after a total of approximately 7 weeks on the job. Kilgore further testified that his time spent in operat- ing projection equipment after 8 December declined from 85-95 percent to perhaps 70-75 percent. But his testimony makes it clear that he, Kirkendoll, and Luther The confusion about what Respondent's witnesses were expected to say about the extent of their authority led to frequent retractions or dilu- tions (Kirkendoll on direct "Yes" to "Have you ever handled any cus- tomer complaints?" (Tr 233) and on cross his first "complaint handled" was a customer who "seemed happy" and just "wanted to make a sug- gestion" about the "popcorn not being spread evenly enough with butter" (Tr 252), Campbell on direct "Yes, I have" to "Have you ever had occasion to fire anybody" (Tr 263) and on cross "No I said I had the input I didn't say I fired anybody " (Tr 272) (which input had also happened "many" times when he was merely the head usher at the Vil- lage Theater), Campbell on direct saying that when he was appointed floor manager at the Northwest, he was "specifically" told I could hire and fire, but to use that power wisely" (Tr 260), but stating on cross that, as a floor manager , he had recommended that several employees be fired, which some were and others were not ("Mr Medjo has the final authority but a floor manager has his input ") (Tr 272, 275)) It also led to some very silly testimony such as the experienced Gener- al Manager Wolery tentatively saying that he "would doubt" that, with- out Wolery's approval, Kilgore and Kirkendoll had the power to disci- pline veteran full-time Manager Kinsey if they saw him acting improper- ly, although Kinsey, possessed of the "same" supervisory authority, could have disciplined them (because, interestingly , Kinsey was "overall re- sponsible for the booth ") In like vein was the testimony of Kinsey, who had in fact issued written warnings to Kirkendoll (for dropping a reel of film), Luther, and, he thinks, Kilgore, and who "would say" that they would also have the power to write him up, although they would have to get Wolery's approval first The record shows that although Kilgore and Kirkendoll, theoretically equal in authority to the full-time supervisors, were hired at $4 25 and (apparently) $3 75 per hour , the salaried full-time managers earned from $275 to $375 per week (or $6 87 to $9 37 per hour) continued to handle the more sophisticated aspects of op- eration of the projection booths, although the full-time managers occasionally performed the least complex oper- ations.2 3 Although the record shows that, like Kilgore, Kirken- doll also filled out a new application on 8 December, he did not testify to any meeting with Wolery in which he was endowed with new authority However, their testi- mony was in agreement that in January, at around the same time, they had separate meetings with Wolery with regard to the present case. According to Kilgore, on 9 January 1987, he was called into Wolery's office; Managers Kinsey, Daven- port, and Baymiller were also there. The managers began discussing what needed to be done in the way of the pro- vision of keys and security codes to put Kilgore and Kir- kendoll on a par with the "level of access that the full- time managers have to the building," and also spoke of the two "part-time managers" becoming "more involved in the rest of the theater." Wolery told Kilgore that the latter was scheduled to meet with Hogue on 12 January to discuss an interview with a Board agent that Kilgore was to have on 14 January. These meetings were news to Kilgore. Wolery stated that he wanted Kilgore to be able to say yes if he was asked if he had "been doing other things and had other responsibilities other than running the pro- jection booth." Wolery went on to say that if anyone asked if Wolery "had said anything bad about the Union . . just use your own judgment." Kilgore testified that although Wolery laughed when he said this, Kinsey, who was not laughing, commented, "Just lie." Wolery quickly replied that he had been a "strong Baptist" during his life, that he knew "how serious perjury is," and that he did not "expect Kilgore to do that. Just use your own judgment." In later examination, Kilgore re- called that Wolery had also stated, "Of course, we want you to . . . tell the truth," which is inconsistent with "Just use your own judgment." Kilgore, who testified that he had been "bothered" by the past efforts to "cover up my actual job responsibil- ities," felt that he "couldn't go along with it any longer." He asked Wolery "if the only reason we were being given all this access and all these responsibilities at this time was because I had to meet with the Labor Relations Board on Wednesday and he said yes." Wolery told Kil- gore that what they were doing was not "shady" and 23 Although Hogue testified that all the work involved is simple, that conclusion is brought into question by the testimony of other Respondent witnesses The fact that Hogue went out of his way to compliment Potter on doing an "outstanding job" at Cave Springs implies that there is a range of expertise Patrick Campbell's reference to only three managers at Northwest being capable of "run[ning] the booth proficient" suggests that skills are required , and Wolery explained that full -time Manager Kinsey had been assigned as overall "booth manager" (each major area of employment-concessions, ushers, etc --was assigned a full-time man- ager of its own, allegedly on a rotating basis) because "[h]is strength was in the projection area," and Kilgore and Kirkendoll did not have "the background and experience of Mr Kinsey" When asked to whom he "reported," Kirkendoll first named Kinsey, although after further ques- tioning, he said that if he had an immediate supervisor, he "guessed" it would be Wolery CAVE SPRINGS THEATRE 11 stated, "It is what the Company wants us to do and we have to do it "24 Later that evening, feeling that he could not partici- pate in this conspiracy, Kilgore, still at the theater, called a friend for some advice. He detected that someone was listening on another telephone; he left the projection booth and, seeing Davenport, began to ask her if she had been on the phone She interrupted to say that she had tried to warn Kinsey not to listen in Kilgore quit that evening Wolery called him twice thereafter, once to find out "exactly why I was quitting" and the second time to say that what Kilgore was doing "wasn't going to do anybody any good, especially not" Wolery. Respondent's witness Kirkendoll was fully supportive of Kilgore with respect to a similar interview. In a sepa- rate meeting with Wolery in early January, Kirkendoll was told that he would be "pushed along faster" because of the "current situation," t e., "the Labor Board would have a meeting and that there was complaints about- from the Union about the people not being transferred over" In a subsequent meeting with Hogue, Kirkendoll was told "the same thing"-"because of the Union com- plaints I would move my time up from what would take normally a year."25 The complaint alleges that on 9 January, Respondent violated Section 8(a)(1) when Kinsey "requested an em- ployee to provide false testimony to the Labor Board re- specting Respondent's antiunion statements." I conclude that Kinsey did tell Kilgore to "just lie." I also believe that Kinsey's instruction was not effectively overridden by Wolery's statement that he wanted Kilgore to "tell the truth," since, not only did he confuse the issue by saying "Just use your own judgment," but also, in a sub- sequent part of the conversation, Wolery showed that he expected employees to shade the truth when he told Kinsey, who had not actually torn down a film at the 24 As noted, Wolery had responded to Kinsey's "Just lie" comment by a remark condemning perjury However, when a question came up doing this meeting about whether any of the full-time managers had "built up or tore down a film," and Kinsey said he had partially broken a film down into two large reels while at the Regency, Wolery told Kinsey, "Well, if asked, I think you should say yes " 25 Wolery confirmed that he had met with Kilgore as described, but he denied that his admitted reference at that meeting to "additional duties, managerial duties" had anything to do with the Union's complaint The combined testimony of Kilgore and Kirkendoll effectively refutes this claim, as does the admission of Kinsey that at Wolery's meeting with Kirkendoll, Wolery had said that Kirkendoll's "duties and responsibilities would have to be sped up" (Kinsey could not recall any reason being given by Wolery for the "speed-up") Wolery and Kinsey both denied that Kinsey told Kilgore to "lie," but Kinsey, unlike Wolery, recalled that there was some "casual conversation" about Kinsey having broken down a film into two parts As there was no other apparent reason for such a topic to have arisen other than the one of preparation for deceit of the Board agent testified to by Kilgore, I conclude that these admissions by Kinsey further confirm Kilgore's account of the session Adding to my general sense of the unreliability of much of Respondent's testimony is Hogue's explanation of why he had scheduled a personal meeting with Kilgore to precede Kilgore's interview with the Board agent "I wanted to talk to Paul Kilgore and tell him to tell the truth " Why Hogue thought that Kilgore might lie to the Board, or why this simple injunc- tion could not have been given by telephone, is not articulated in the record Furthermore, although Hogue testa ied that he told Wolery to "speed up" the acquisition of authority by the floor managers because he was overstaffed at the Regency with full-time managers, Kirkendoll testi- fied that both Wolery and Hogue told him that his responsibilities were being accelerated "[b]ecause of the Union complaining " Regency, to say, "if asked," that he had done so. There can be no doubt that instructing an employee to lie to a Board investigator acts as a restraint upon the Section 7 rights of employees, and I therefore conclude that the complaint allegation has been sustained.26 I am convinced by the foregoing that the General Counsel has established that Respondent's refusal to con- sider the three alleged discrminatees for employment at the Regency was based on a concern that their affiliation with the Union might give rise to the danger of infecting that location with unionitis. I see no need to recapitulate all my findings in order to demonstrate that had Goebel, Potter, and White not been represented by the Union, the likelihood of an offer to them-experienced projec- tionists who knew their way around a movie theater-to serve as "floor managers," or at least in other capacities, was great.27 Respondent makes a limited argument that "[t]he Na- tional Labor Relations Act does not cover supervisors. Discrimination with respect to supervisory positions is not lawful," with certain exceptions to this rule, none of them applicable to this situation. As a factual matter, as concluded above, the position of "floor manager" was not a "supervisory" position at the time Kilgore and Kirkendoll were hired. It has been pointed out that the evidence shows that the two were hired and trained basically as projectionists, and even Wolery testified that he told Kilgore that he would have no supervisory authority until Wolery exercised his "judgment when and where that would happen." Re- spondent's witness Patrick Campbell testified that he had been with Respondent for 5 years, starting as an usher, later becoming head usher, and not being appointed a "floor manager" until June 1985-4-1/2 years after his original employment. Kirkendoll testified that both Hogue and Wolery told him in January that "because of the Union complaints I would move my time frame up from what would normally take a year, you know " But even if the floor manager position in fact had in- volved genuine supervisory responsibilities from the start, the discriminatory refusal to promote an employee to a supervisory position is a violation of Section 8(a)(3). Thus, in St. Anne's Hospital, 245 NLRB 1009, the Board 26 As discussed earlier, it is my belief that Kilgore was not a statutory supervisor as defined by Sec 2(11) of the Act at the time the earlier re- marks made to him were uttered I also think that Respondent cannot claim that it was talking to a supervisor on 9 January, because it is clear to me that, starting on 8 December, Respondent was attempting to essen- tially clothe two very young, very inexperienced, and very junior projec- tionists with supervisory-like trappings in order to deceive the Board, and that these two young men were not actually endowed with any of the indicia of authority set out in Sec 2(11) "in the interest of the employer" and "requir[ing] the use of independent judgment " In these circum- stances, I would require more than a few disciplinary write-ups by Kil- gore to satisfy Respondent's burden of establishing that the "part-time managers" were actually considered to be Sec 2(11) supervisors In any event, the 9 January violation found here would be just as offensive to employee rights even if the instruction to lie to a Board agent was ad- dressed to a supervisor rather than an employee 22 In so finding, I also conclude that Respondent has in no way shown that, aside from the union-inspired motivation, it would not in any event have hired them for any of these positions See Wright Line, 251 NLRB 1083, 1089 (1980) Indeed, Hogue made a special effort to express to Potter his appreciation of Potter's work 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quoted from and reaffirmed the holding in Pacific Ameri- can Shipowners Assn., 98 NLRB 582, 597 (1952). A refusal to accord an actual employee the normal consideration for promotion to a higher position, albeit that of supervisor, based on protected con- certed activity during such employment, would clearly be a violation of the rights of nonsuperviso- ry employees. Accord. Little Lake Industries, 233 NLRB 1049, 1057 (1977); Richboro Community Mental Health Council, 242 NLRB 1267, 1268 28 Respondent argues that when the three employees in- dicated that they "were interested in the floor manager position, the Company accepted their applications and eventually made them an unconditional offer of employ- ment in the floor manager position ." This refers to letters to the three dated 24 December 1986, signed by Hogue, and reading as follows: This letter will advise you of American Multi- Cinema, Inc.'s unconditional offer to you, effective immediately, of employment at the Regency Thea- tre in the position of floor manager. At present there are three floor manager positions, one at 20 hours per week, one at 25 hours per week, and one at 30 hours per week. The pay rate is $4.25 per hour. The duties of a floor manager involve the fol- lowing: recommending the hiring and firing of staff employees; scheduling, supervising, and disciplining staff employees; performing certain staff functions such as operating the concession stand , taking tick- ets, and cleaning the auditorium between shows; opening and closing the theatre; operating the com- puter equipment; monitoring the quality of the audi- torium environment; ordering, counting, and stock- ing inventory; carrying out promotional programs; preparing for and supervising crowd control; han- dling customer complaints, operating projection equipment; and other duties as directed by the gen- eral manager or managers. This offer is unconditional and its acceptance will not in any way affect any right you may have in connection with Case No. 14-CA-18693 currently pending before the National Labor Relations Board. However, in the event you decline to accept this offer, American Multi-Cinema, Inc, will contend that your refusal to accept the employment in the position of a floor manager precludes any claim that you might have for back pay in connection with the aforementioned National Labor Relations Board case. If you desire to accept said employment, please advise Mr Woolery, [sic] General Manager at the Regency Theatre, or Mr. Hogue, St. Louis District Manager, on or before December 31, 1986 If the company has not heard from you by that date, we 28 The narrow holding in Parker-Robb Chevrolet, 262 NLRB 402 (1982), enfd 711 F 2d 383 (D C Cir 1983), is not to the contrary will assume that you are not interested in the prof- fered employment The record does not show when the employees re- ceived the letters, clearly they were not received on Christmas Day The complaint in this case also issued and was mailed on 24 December, according to the affida- vit of service; delivery from St Louis to Respondent's attorneys in Kansas City was on 27 December and to Charging Party's attorney in Minneapolis on 29 Decem- ber. It is of interest that the three letters to the employ- ees are dated 24 December, while another letter to Busi- ness Agent Miller referring to the three letters and en- closing a copy of one is dated 22 December (although the letter to Miller is stamped as "Dec 29 Rec'd," pre- sumably by Miller's office in Ellisville, Missouri, he testi- fied that he received it on 26 December) Employer White's 25 November application states that his "Position Desired" was "Projection Relat." He also testified that when he applied, he was interested in a "re- lated position to a projectionist or projectionist per se," and was not interested in a "staff position" such as pop- corn or box office. But he further testified that he would have accepted a job "at $4.25 an hour in a nonsuperviso- ry position," and, as to a job so paid in a "supervisory position," he said "[t]hat would have to be discussed, be- cause I am not sure what the duties would be as a super- visor." He could not "really answer" what he would have done about a $4.25 job the duties of which "includ- ed supervising other employees . . disciplining other employees, directing them, assigning them, and what have you " When Hogue called employee Goebel on 24 Novem- ber to fill out an application "as a manager" (for which, Hogue had simultaneously said, "There were no posi- tions available"), Goebel replied that he "had no manag- er qualifications." Nonetheless, Goebel did go down the next day and fill out an application in which he listed "Position Desired" as "Position related to movie projec- tion " Potter gave no testimony along these lines. Business Agent Miller testified, however, that he and all three em- ployees met with Hogue, Boos, and Respondent's coun- sel on 7 January for a rather nonproductive discussion. Miller, speaking on behalf of the three employees, re- peatedly stated that they were "interested in a nonsuper- visory position that was the type they had at the Cave Springs" and he testified that he believed that the Regen- cy "floor manager" position was a nonsupervisory one- the employees "were interested in the job that we felt existed when the theater opened . . but the job that is outlined in that letter they felt was impossible for anyone to do." Whether the job as described in the letter is "impossi- ble to do" is beyond my ability to judge, but it is surely not the job that was offered to Kilgore and Kirkendoll when they applied for work in late October. As dis- cussed, Kilgore was told that his "primary responsibil- ity" would be to "run the projectors and the maintaining of the projection booths" and, in answer to Kilgore's ex- press question, that there would be supervisory dirties "some day, some time " Kirkendoll asserted that Wolery CAVE SPRINGS THEATRE said he would be "supervising the people on the floor and that I would also be running the projectors." While I do not believe Kirkendoll's reference to "supervising the people" because it contradicts not only Kilgore's tes- timony but also Wolery's, as earlier described, none of the three witnesses attested that the floor manager's duties were said, as Hogue's 24 December letter did, to have encompassed everything from "recommending the hiring and firing of staff employees"29 to "operating the concession stand, taking tickets, and cleaning the audito- rium between shows"30 to "operating the computer equipment" to "ordering, counting and stocking invento- ry" to "carrying out promotional programs." Respondent's brief contends that this offer was made in the sudden realization that its unspoken assumption was erroneous . ("The Company did not offer the floor manager positions to the Cave Springs projectionists be- cause it assumed that they would not be interested in a position that involved non-projectionist duties and paid a lower rate but would rather prefer to remain eligible for employment under the collective -bargaining agreement's referral system . When it was indicated these individuals were inierested in the floor manager position , the Com- pany accepted their applications and eventually made them an unconditional offer of employment in the floor manager position.") It is quite clear, however, that the letters, which, in the broad sweep of the duties de- scribed, might have discouraged even Horatio Alger, were simply an effort to terminate any future backpay li- ability and were calculated to invite rejection. I conclude that the failure and refusal to offer transfers to some position at the Regency was indicative of a desire to avoid hiring union-affiliated employees at the unorganized, and therefore pregnable, Regency com- plex. S 1 I further conclude that in hiring Kilgore and Kir- kendoll as "floor managers," Respondent actually intend- ed to hire employees who would principally be and remain in projection work, with perhaps the assumption of minor supervisory authority at some future time. Even though insufficient time elapsed between their hire at the end of October 1986 and Kilgore 's quit on 9 January 1987 to indisputably establish this conclusion, it seems fairly made. There was, for example, Kilgore's direct testimony that Wolery said the job would consist of "running the projection booth," with the possibility of some future supervisory duties . Full-time Manager Car- michael conceded that she had told Goebel that, at the Regency, there would be three managers who "would mainly be doing projection work," although other man- agers would do some of that work . Although Carmichael also testified that the three employees (Kilgore, Kirken- 29 It is worth noting that the hire -fire authority here is limited to "rec- ommending" such actions, contrary to Hogue's testimony that he had given Wolery "specific orders that these people have the power to hire and fire." 30 Hogue testified that such cleaning at the Regency was usher's work. 31 Such a concern was displayed when , e g , Boos told Miller that the three employees were not being transferred "because they are members of the Union," Wolery interrogated Kilgore at his hiring interview about his union activities and sentiment and attached the "no union card " stick- er to Kilgore's application and, as well , by the statement made to both Kilgore and Kirkendoll by Wolery and Medlo about the danger of even discussing unions at the theater 13 doll, and Luther) who handled the bulk of the projection work did so "just for a couple of weeks" until the rest of management was able to "learn how to do it," that is simply not so. Even Kirkendoll testified that he was de- voting half of his time to projection work in February; Kilgore testified that when he quit on 9 January, he was spending 70-75 percent of his time on projection work; and these percentages were, it should be recalled, main- tained against a background of Respondent's conscious effort since 8 December to make the "floor managers" appear to be more supervisory in nature , for purposes of the Board investigation. And as for Carmichael's later, and contradictory, testi- mony that the "principal reason" for Kilgore and Kir- kendoll being trained at Northwest and "coming over to Regency was to instruct the managerial staff in how to operate the projection room," that would have seemed a pointless exercise; any training needed by the other man- agers (most of whom had already had some experience in projection operation) could easily have been given to them by Kinsey, acknowledged by Kirkendoll to be the "booth manager" and the individual he reported to, so appointed by Wolery because his "strength was in the projection area." For the foregoing and other reasons as- signed above, it is , I think, eminently reasonable to con- clude that Kilgore and Kirkendoll were hired basically to serve as projectionists. Respondent's refusal to consid- er the three alleged discriminatees as possible candidates for the "floor manager" positions was due not to any un- spoken assumptions about their probable reactions, but in order to keep the Union away from the Regency 's door. CONCLUSIONS OF LAW 1. Respondent American Multi-Cinema, Inc., d/b/a Cave Springs Theatre and Regency 8 Theatre, Kansas City, Missouri, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. St. Louis Moving Picture Machine Operators Local No. 143, of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By discriminatorily refusing to 'offer to transfer em- ployees James O. Goebel, Paul Potter, and Dennis J. White to the Regency 8 Theatre in October 1986, Re- spondent violated Section 8(a)(3) and (1) of the Act. 4. By, through various agents, in November and De- cember 1986 and on 9 January 1987, impliedly telling an employee that he and other employees would not be considered for transfer because of their union affiliation; asking an applicant about his past and present member- ship and interest in a union and making a notation of the reply on the applicant's application form ; warning an em- ployee not to discuss unions on pain of losing his job; cautioning an employee not to chance losing his job as had another employee who had given information to a union; and instructing an employee to lie to the National Labor Relations Board, Respondent violated Section 8(a)(1) of the Act. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act THE REMEDY The appropriate remedy for the violations involving Goebel, Potter, and White is reinstatement (or perhaps instatement) and backpay. Although the testimony of Goebel, White, and Business Agent Miller suggests some uncertainty on the part of the three about their interest in being employed as "supervisors," the record shows that all three inquired, by telephone or written applica- tion, about employment at the Regency. It seems not un- reasonable to suppose that had they been approached in October 1986 and given a truthful version of what the jobs at the Regency would comprise-basically projec- tion room operation, with perhaps some minor supervi- sorial duties added later on-they might well have been interested in accepting the positions to see whether they found them to be agreeable. Whatever uncertainty arises from the discriminatory decision by Respondent not to allow the three an opportunity to make such an evalua- tion must, under Board law, be resolved against the wrongdoer. State Distributing Co., 282 NLRB 1048 (1987); NLRB v. Miami Coca-Cola Bottling Co., 360 F 2d 569, 572-573 (5th Cir. 1966) A question also exists whether Respondent would have hired all three employees as "floor managers" had it, in October 1986, afforded them the right to the impar- tial consideration to which the law entitles them The record shows that only two such "floor managers" were hired in October; it also shows, however, that Luther, a third, came to the Regency from Northwest with Kil- gore and Kirkendoll and left in early January The evi- dence is that the three discriminatees were employed for widely varying hours each week (as changed seasonally) under the bargaining agreement, and that is no reason to believe that even Goebel, who was working 5-10 hours a week at Cave Springs when it closed, could not have been given similar part-time employment at the Regency, had he so desired.32 Again, the principle espoused in State Distributing Co., supra, has applicability The claim that the 24 December letters constituted un- conditional offers of employment, thus terminating the running of backpay, must fail for several reasons. Such an offer must be "specific, unequivocal and uncondition- al," and must invite the employee to return to his "former or substantially equivalent position," Standard Aggregate Corp., 213 NLRB 154 (1974), and cases cited thereat. Because the three identical letters referred to three jobs with various hours (20, 25, and 30 hours per week), they can hardly be said to constitute "specific" propositions. Because they included an array of functions far in excess of the "floor manager" positions filled by Kilgore and Kirkendoll in October 1986, they plainly did not constitute the "former or substantially equivalent" jobs that Respondent unlawfully failed to offer to the three discriminatees in that month 32 It is evident that most of the employees, many of whom are stu- dents, do not work 40-hour weeks Finally, a valid offer must, in order to toll backpay, provide sufficient time for the discrimmatee to give de- liberate consideration to it These letters, dated 24 De- cembei, could realistically (if actually mailed on that date) have been received at the earliest on 27 December If received by then, the employees would have had only 4 days, until 31 December by the terms of the letter, to respond The Board has held that 4 days is not a "rea- sonable" period of time for consideration, Freehold AMC-Jeep Corp, 230 NLRB 903 (1977), and it would seem that such a period is particularly unreasonable when the job being offered is an unidentified one of three situations of varying length and what certainly must have been startling variety (the employees might have wished to know, for example, the frequency with which they were expected to "clean . . . the auditorium between shows" and "operat[e] the computer equip- ment," and what was contemplated by "carrying out promotional programs") Whether the offer was subsequently extended is, how- ever, a clouded question Miller, whose letter from Re- spondent was dated 22 December, testified that he did not receive it until 26 December. He spoke to the three discriminatees about it, but because "during the holidays most of our members are working because almost every theatre runs matinees and we felt it was almost impossi- ble to get together and, you know, make the deadline of the thirty-first," he sent Hogue a telegram saying that the three were "interested in employment at the Regen- cy" and asking to meet in January to discuss the offer. They met with Hogue, Boos, and Attorney Harrop on 7 January It appears from Miller's testimony that Re- spondent's agents considered the offer to still be viable, but for how long is uncertain It is my view that the 24 December offers were in- valid, at least for the first two reasons given above and, as well, because they were rather plainly not made in good faith Having found that Respondent unlawfully re- fused to consider James O. Goebel, Paul E. Potter, and Dennis J White for employment as "floor managers" at the Regency 8 Theatre in October 1986, I shall recom- mend that it be ordered to offer the three employees em- ployment at the Regency in positions similar to those ac- tually occupied by employees Kilgore and Kirkendoll when they commenced employment in that month, and to make them whole, at the rate of $4 25 per hour, less net interim earnings, from 26 November 1986 to the date of Respondent's valid offers of employment, with inter- est, in accordance with F. W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB at 651.33 In addition, I shall recommend that the traditional cease-and desist order be issued and that appropriate no- tices be posted Finally, the General Counsel has requested the inclu- sion of a visitatorial clause for the purpose of engaging in discovery, should that become necessary during com- pliance proceedings. Although the General Counsel has doggedly been seeking the routine inclusion of such a 35 See generally Isis Plumbing Co, 138 NLRB 716 (1962) The number of hours each employee might have worked during this period must nec- essarily be deferred to the compliance stage of this proceeding CAVE SPRINGS THEATRE clause in every case for a long time now, the Board has, almost without exception, rejected the request on the ground that the "circumstances" of the particular case did not warrant such relief. The one exception I have noted is Shoppers Choice, 280 NLRB 1306 (1986), in which the administrative law judge proposed such a clause on the generic ground that it "appears to be prac- tical, useful and even at times essential," and the Board silently adopted the recommendation. Shoppers Choice appears to be a sport case . Clearly, the Board has chosen in all the other cases to examine the "circumstances" before it will consider such a clause. Although I agree with the administrative law judge in Shoppers Choice, it is my duty to examine the issue on a case-by -case basis, as the Board has done . In this case, I perceive no reasona- ble basis for believing such a clause to be necessary. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed34 ORDER The Respondent, American Multi-Cinema, Inc., d/b/a Cave Springs Theatre and Regency 8 Theatre, Kansas City, Missouri, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discriminating against employees or applicants for employment because of membership in, representation by, or activities on behalf of St. Louis Moving Picture Machine Operators Local No. 143, of the International Alliance of Theatrical Stage Employees and Moving Pic- ture Machine Operators of the United States and Canada, AFL-CIO or any other labor organization. (b) Implying that employees would not be transferred to new jobs because of their union affiliation ; coercively interrogating employees about their union activities and sentiments; threatening employees, for assisting or dis- cussing unions, with loss of jobs; and instructing employ- ees to lie to the National Labor Relations Board. (c) 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 any labor or- ganization, to bargain collectively through representa- tives of their own choosing , to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid, 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 to James O. Goebel, Paul E. Potter, and Dennis J. White employment as floor managers, and make them all whole in the manner set forth in the remedy section of this decision. (b) 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- 34 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. 15 essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Regency 8 Theatre, St. Charles, Missou- ri, copies of the attached notice marked "Appendix."35 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Re- spondent's authorized representative, 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. as 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. Section 7 of the Act gives employees these 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. WE WILL NOT discriminate against any employees or applicants for employment to discourage membership in, representation by, or activities on behalf of St. Louis Moving Picture Machine Operators Local No. 143, of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO or any other labor organi- zation. WE WILL NOT indicate that employees will not be transferred to new jobs because of their union affiliation; WE WILL NOT coercively interrogate employees about their union activities and sentiments; WE WILL NOT threaten employees, for discussing or assisting unions, with loss of jobs; and WE WILL NOT instruct employees to lie to the National Labor Relations Board. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer employment as floor managers to James 0. Goebel, Paul E. Potter, and Dennis J. White, and make them whole for any losses suffered by them as a result of our discrimination against them , with interest. AMERICAN MULTI-CINEMA, INC., D/B/A CAVE SPRINGS THEATRE AND REGENCY 8 THEATRE