Broadway Catering Corp. d/b/a Studio 54

National Labor Relations Board - Board Decisions

Mar 24, 1982

260 N.L.R.B. 1200 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LA13BOR RELATIONS H()ARD
Broadway Catering Corp. d/b/a Studio 54 and The-
atrical Protective Union Local No. 1, Interna-
tional Alliance of Theatrical Stage Employees,
AFL-CIO, CLC and Jess Herman. Cases 2-
CA-16027 and 2-CA-16064
March 24, 1982
DECISION AND ORDER
MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 23, 1980, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed exceptions and a supporting brief which
was adopted by the Charging Party Union, and
Respondent filed a brief in opposition to the Gen-
eral Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge's
finding that a stagehand unit is inappropriate for
collective bargaining and that therefore a bargain-
ing order is not warranted." Specifically, we find
that the disc jockeys, house board light operators,
disco light board operators, flymen, and preset
men, urged by the General Counsel as a separate
appropriate unit, do not possess a community of in-
terest so separate and distinct from Respondent's
other employees as to warrant separate representa-
tion.
The evidence shows that the stagehands are not
required to possess any unique skills or experience
in order to perform their jobs. The only "skills"
that appear necessary to perform the jobs of disc
'Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance (of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F;2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings
' In light of our unit finding, we find it unnecessary to decide whether
the Union had attained majority status when it demanded recognition and
bargaining. We also find it unnecessary to rely on the Administrative
Law Judge's discussion of the legal effects resulting from the absence of
Respondent's records from the evidence. Our unit finding is based on the
testimony of the General Counsel's witnesses and on the testimony of Re-
spondent's witnesses on matters not covered by the Gieneral Counsel's
subpenas.
260 NLRB No. 166
jockey, light board operator, or flyman are a sense
of rhythm and an ability to work in conjunction
with other employees. Counsel for the General
Counsel's own witnesses testified, in substance, that
with a general working knowledge of the system
and between 10 to 30 minutes of training, they
were able to perform their jobs.
As to supervision, the General Counsel contends
that the stagehands are separately supervised by
Paul Matheson and the witnesses generally agreed
that Matheson is the stage manager in charge of
the "technical aspects" of the stagehands' work.
However, the evidence shows that most personnel
matters, such as hiring, firing, changing schedules,
and discipline, are handled by or, at the very least,
discussed with either General Manager Overington
or one of Respondent's two owners before any
final decision is made. It is uncontroverted that
these individuals supervise all non-stagehand em-
ployees. Thus, even assuming without deciding that
Matheson is a supervisor under the Act, many as-
pects of the stagehands' terms and conditions of
employment are subject to supervision in common
with Respondent's other employees.
In addition, we find that Respondent's operations
are functionally integrated to a degree that pre-
cludes separate representation of stagehands. Con-
trary to the General Counsel, the evidence shows
that there is some interchange of job functions.
Non-stagehands occasionally clean the "stage" area
and also occasionally perform stagehand work. At
least two stagehands, Acker and Craddock, occa-
sionally work on non-stage electrical equipment
and perform general maintenance throughout the
facility. In addition, during renovations, which
occur approximately every 9 months, all employees
work together with minimal differentiation based
on job classifications. The evidence also establishes
that the "show" here is more than merely that pro-
duced by the work of stagehands. Respondent
strives to create an ambiance through music, lights,
props, scenery, and also through the participation
of many employees in an evening's festivities. Non-
stagehands and stagehands alike often mingle
and/or dance with patrons. The clothing and over-
all appearance of all employees help to create the
festive atmosphere Respondent desires. In short, an
evening's "production" is a combination of music,
lights, props, and interaction and contact among all
employees and between employees and patrons. It
is this unique nature of Respondent's business that
sets it apart from a traditional stage show and in
part distinguishes this case from those in which the
Board has found a stagehand unit appropriate.3
See, e g., S I lulags Over (;eorgla, Inc., 215 NL.RB 809 (1974)
1200
STUDIO 54
Thus, for all of the above reasons, we find that
Respondent's "stagehands" do not constitute a sep-
arate appropriate unit and that therefore a bargain-
ing order is not warranted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Broadway Ca-
tering Corp. d/b/a Studio 54, New York City,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMILNr OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hear-
ing in this proceeding was held at New York City, New
York, on various dates beginning on September 24, 1979,
and ending on June 2, 1980, on complaint of the General
Counsel against Broadway Catering Corp. d/b/a Studio
54, here called the Respondent. The complaint issued on
December 29, 1978, based on separate charges filed on
November 13 and December 1, 1978, by Theatrical Pro-
tective Union Local No. 1, International Alliance of
Theatrical Stage Employees, AFL-CIO, CLC, here
called the Union, and by Jess Herman, an individual.
The issues of the case are whether the Respondent dis-
charged four employees in violation of Section 8(a)(3) of
the Act, and whether it unlawfully refused to bargain
with the Union in violation of Section 8(a)(5). Briefs
were filed by the General Counsel and the Respondent.
Upon the entire record, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS O1: THE RESPONDENT
Broadway Catering Corp. is a New York corporation
which in New York City operates a public dance hall.
Its annual gross revenues are in excess of $500,000. It
also annually purchases goods and materials valued in
excess of $5,000 either transported and delivered to it di-
rectly from out-of-state sources or received from within
state sources which in turn receive the goods from out of
State. I find that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVO.VEI)
I find that Theatrical Protective Union Local No. 1,
International Alliance of Theatrical Stage Employees,
AFL-CIO, CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
This case is divisible into three parts: (1) Did the two
owners of the Company, in charge and operating it on a
daily basis, violate Section 8(a)(l) of the Act by a
number of coercive statements-interrogations, threats of
discharge, threats of physical violence, promises of finan-
cial benefits to induce abandonment of union activities,
etc., when the employees started an organizational cam-
paign early in November 1978? (2) Did the Respondent
discharge four employees then because of their union ac-
tivities, and thereby violate Section 8(a)(3)? As to these
two questions, the evidence-consisting almost entirely
of oral testimony-is clear enough to make possible de-
finitive resolution. (3) Did the Union represent a major-
ity of the employees in an appropriate bargaining unit so
that it can be said the Respondent violated Section
8(a)(5) by refusing to bargain with it? As to this question,
it is twofold: First there is the matter of whether, as the
General Counsel contends, a unit limited to only a por-
tion of the employees at work in this place is appropri-
ate, or whether, as the Respondent would have it, all of
them must be joined in a single unit. The second is
whether, if the limited unit can be deemed appropriate
under Board law, just which employees were in that unit
at the critical time of demand and refusal and did a ma-
jority of them timely authorize the Union to represent
them?
The Respondent denies commission of any unfair labor
practices.
B. The Locale
The Company runs a public dance hall in an old the-
atre building converted into a broad flat floor space. A
thousand, and sometimes as many as 1,800 persons in a
single night, pay to come to dance. There is a large bar,
with bartenders serving drinks, both at the bar and by
bringing them to customers on sofa couches here and
there where the dancers sit and rest. The music is sup-
plied by someone continuously playing phonograph
records. There are lights in the place, hundreds of them,
floating on and off, in all colors. Some are in the ceiling,
some in the sidewalls, some reflect from glass and mir-
rors that decorate the place. Attached to the ceiling are
a number of metal strips from which decorative boards,
or "scenes," are hung, sometimes lowered almost to the
floor. These pictures, or background decorations, as
some of the witnesses called them, are controlled from
the side of the room by rope pulleys. An employee,
called a fly rail man, causes them to move up and out
over the heads of the dancers, and then lowers or raises
them by pulling a rope with a balanced weight at his
end. The pictures are changed from evening to evening,
and sometimes even during a single all night session,
from midnight to dawn.
Near the phonograph, off on one side of the large
room, there are light boards; these have buttons and
switches which control the many lights everywhere.
There is an employee always in attendance at each board
while the dancing is going on. There are other employ-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees also: Busboys who circle the room carrying glasses
and cleaning the place; ticket sellers near the entrances; a
hostess, security guards, and even a dishwasher, some-
body said.
C. Necessary Preliminary Comments on the Nature of
the Evidence
Certain unusual circumstances prevailing at this hear-
ing, and the way the case was tried by both the General
Counsel and the Respondent, make it necessary to com-
ment at the outset upon the nature of the proof offered
by both sides.
First: The basic theory of illegality underlying the
8(a)(5) part of the case is that this dance hall is to be
deemed the same thing as a theatre. In a theatre the
Board has long held that a unit of stagehands is appropri-
ate for bargaining purposes, albeit it does not include all
the employees of the theatre. Six Flags Over Georgia,
Inc., 215 NLRB 809 (1974). The General Counsel there-
fore asks that the man who plays the phonograph
records, the man who switches the lights on and off, plus
the man, or two, who "fly" the many decorative pictures
over the heads of the dancers, may bargain collectively
with the Company, and never mind whether the other
employees who circulate all over the hall care to join in
or not. With this, the major issue seems to be establish-
ment, by Board fiat for the first time, of a parallel be-
tween a dance hall and a theatre, and therefore the em-
ployees who testified for the General Counsel para-
phrased everything they talked about in theatrical terms.
The man who works the phonograph is called a "disc
jockey"; the man who fixes the lights and switches is
called a "preset man"; the man who pulls the ropes to
raise and lower pictures over the heads of the dancers is
called a "fly man"; the men who turn the lights on and
off are called "light board operators" or "disco board
operators." And again and again the witnesses spoke of
their theatrical education, their prior theatre experiences,
and even about their aspirations to become Broadway or
Metropolitan Opera stagehands. They even referred to
the entire dance hall as "the stage," with the 1,000 cus-
tomers as "the actors." But descriptive words will not
change realities. The end result was a confusion of con-
clusionary generalities covering hundreds of pages of tes-
timony.
Second: Throughout the hearing, six full days over a
3-1/2-month period, the two owners of the Company-
Ian Schrager and Stephen Rubell-the principal defense
witnesses, were brought to the courtroom from a Feder-
al prison by United States Marshalls who continuously
sat in attendance. They were serving an extended sen-
tence for income tax fraud. A result was an understanda-
ble tension among the other participants, including the
lawyers on both sides. With this, much of the question-
ing of witnesses, both on direct examination and cross-
examination, was argumentative, general, conclusionary,
and unclear. Of course the witnesses, each side having an
ax to grind, continued the pattern, and spoke as much in
heated and conclusionary terms as they did factually. In
sum, there is a resultant ambiguity with respect to some
of the essential facts which must underlie any unfair
labor practice finding.
Third: In the face of a valid subpoena duces tecum-
denial of a motion to quash having been sustained on
appeal to the Board-the Respondent refused to produce
its records; covered by the proper subpena were all em-
ployment records covering the critical period in ques-
tion. Both the owners-Schrager and Rubell-also re-
fused to honor valid subpoena ad testijtcandum at the
start of the hearing when called as witnesses by the Gen-
eral Counsel. Later, when the General Counsel had put
in most of his case-in-chief, they changed their minds,
but by that time their credibility had already become
somewhat impaired.
Why the General Counsel chose not to seek enforce-
ment of subpenas in the district court to compel produc-
tion of the employment records, I do not know. But
absent those records-which presumably would have
shown directly who worked when-all the record con-
tains is the vague and very ambivalent recollections of
witnesses who only worked part of the time while the
dance hall was in operation, and who testified as much
as a year and a half after leaving the place.
And finally, for most of the employees who worked in
this place, employment was on an irregular basis. There
are no fixed, continuing, regular schedules comparable to
the usual commercial employment. Some people work a
day now and a day then; some come for a few days and
then leave to return at their convenience. Often the em-
ployees decided among themselves who would work cer-
tain days of the week and who would just sit by and
wait. Many are students elsewhere. Some even work at
other places, apparently their other employment also
characterized by complete irregularity. Further, some are
paid hourly while others receive a fixed amount for a
day's work regardless of how many hours they put in. In
the face of all this, company representatives said all the
employees punch timecards. But they were not brought
to the hearing, with the result that it is impossible, de-
spite the unending talk, to really know who worked
when.
Despite these continuing vagaries throughout the
record, people did work, were paid, and were employ-
ees, whatever their status at any given time might have
been. And, more important, four of them were fired, for
the Respondent admitted as much when, in defense, it
stated its affirmative basis of discharge for just cause.
D. Violations of Section 8(a)(1)
Union activities among the employees started on No-
vember 3, 1978, when six of them met at the restaurant
with two union agents. All six signed union authorization
cards that day. Mitchell Acker, the principal activist
who started things, testified that, for a consecutive
number of days starting on November 4, Schrager, the
owner, interrogated him about the union activities.
Schrager asked him: "Have you spoken to anybody
about the Union." Acker said "No," and spoke about
union activities going on in another dance hall called
Zenon, where he also worked at that time. Later the
same evening, Schrager told Acker "there was room for
me to make lots of money . . . I'm raising a family. He
did give me job security . . . He'll double my salary."
1202
STUDIO 54
Later that same evening Schrager found occasion to tell
Acker "he heard terrible things about me," and that he
should come back to see him again. Acker returned later
the same night, and talked to Rubell, who asked him:
"Are you trying to bring the union in here?" and "if we
had signed anything." Again, Acker said no.
On Tuesday, Paton, an employee who used to prepare
a schedule of assignments later to be approved by
Schrager, called Acker at home to tell him he "would
not be working until future notice unless I spoke with
Mr. Schrager." So Acker came to Schrager's office and
the manager told him: "You have a really big mouth . ..
I heard you were talking about the union .... He
asked me if I would join the union." When Acker did
not answer, Schrager "kept persisting about my joining
the union . . . 'I could understand you wanting to join
the union, but it cannot be under this roof.' . . . if I
wanted to join the union, then we will shake hands, and
we will be friends now, but that I could not work for
him anymore." When Acker asked, "Does that mean I'm
fired," the boss answered, "Well, kind of." Schrager also
said to the man that day, according to Acker's testimo-
ny, "If you're betraying me, we'll be enemies . . . And if
you're not dead, you're going to be in a lot of trouble."
On November 8, as Acker continued to testify, he saw
a letter with the Union's name on the mast head, deliv-
ered to the secretary's office. A few minutes later
Schrager called him to the office and said, "The last time
you told me that you didn't sign anything. You said that
you had nothing to do with the Union. How come now
you say differently?" When Acker answered, "After the
threats, I changed my mind," the manager continued:
"Who else signed the cards." Acker then told him and
listed the five following names-Jess Herman, Toby
Scott, Reginald Craddock, Billy Paton, and Nicole
LeBrun.
Again the next day, November 9, while he sat at a
table in the dance hall, Rubell said to Acker: ". . . if I
would renounce the union, that he would double my
salary. That he would give me a raise. And that no
matter what it cost, even if it cost a half a million dol-
lars, he will not have the union in here. He said the
union will not win." When Acker again asked, "Does
that mean I'm fired," Rubell answered, "Well, maybe not
today or tomorrow."
Reginald Craddock, another employee who also
signed a union card on November 3, testified that on No-
vember 11 Rubell "Just said that he didn't like me any-
more because I signed a union card." When Craddock
asked "what union card?" Rubell said, "I know you
signed one. I trusted you and I don't know why you did
this. You are foolish." Again 3 days later, Rubell "...
asked me again why I signed the union card and that I
was foolish.... That he was going to have me work
extra days. I was going to be paid more money. He
didn't expect me to sign the union card." "I think he did
mention that now since I signed the card I probably
wouldn't work any extra days." On the 15th, again, still
according to Craddock, Rubell told him he "Didn't un-
derstand why I lied about signing the card and why I
signed it. Again he was going to have me work more
days. Since I signed the card he would think about it."
Craddock continued to testify that on the 19th, as he
was changing the lights in the place, Schrager said to
him, ". . . he didn't want that color in the light. Just like
he wants the union out." Later that night Schrager also
told Craddock: "He didn't know why I signed the union
card. He was going to have me work more days. If I
wanted to work to make extra money that he would let
me work extra time. He also mentioned if the union lost
would I quit and I told him no. And if the union lost
would I fight to get it back in? I said no."
Another employee who signed a union card was Wil-
liam Paton. He also said Schrager questioned him a
number of times about the union activity. Both on No-
vember 4 and on November 5 Schrager called him to the
office to ask what he knew about the Union. Each time
Paton spoke only of what was going on at the Zenon
Dance Hall. On the 6th, Paton was showing his tentative
work schedule to Schrager, when others were also pres-
ent. When Schrager again asked what he knew of the
Union, Paton started to discuss the schedule, but the boss
said: "... that he had to think about it.... He didn't
like the idea that the union might come in. He said some
of the nonunion companies already working at Studio 54
would not be able to work there.... That I was to put
together a schedule and get it back to Ian in a day or
two." This talk ended with Schrager telling Paton to put
together the schedule and give it to him in a day or two.
There was more questioning of like kind in the following
days by Schrager of this employee, but there is no point
in detailing it repeatedly.
What is important is that on November 8, as Paton
said, he started to explain in the office why in his opin-
ion a union might be a worthwhile thing. It was at this
point that Schrager told Paton to remove Acker, Scott,
and LeBrun from the schedule and to advise them of the
fact right away. Paton did that. Before leaving the office
Paton asked Schrager, "What's this with these threats
against Nicky [LeBrun] and Mitch [Acker]." Schrager's
answer was that "it was ridiculous. He didn't mean those
things."
Testifying in defense, Schrager and Rubell denied. in
meticulous detail, almost every one of the above-listed
interrogations, threats, bribery promises to induce aban-
donment of any union idea, etc. I credit the employee
witnesses, and reject the sworn testimony of the two
owners wherever they are contradicted on this record.
Both Schrager and Rubell admitted they were opposed
to having a union represent their employees, and that
they told the employees this was their determination.
Schrager said he did not remember saying he would
"have nothing to do with the union under the roof of
Studio 54," but that he "might have" asked had anyone
signed a union card. He said "maybe" he did tell Crad-
dock he wanted the color of the lights out just as he
wanted the Union out: "maybe" he asked "if the Union
lost would he [Craddock] fight to get the Union back
in." Asked had he inquired of Paton what he knew about
the Union, Schrager answered: "I don't remember. I was
trying to find out at this point what union was involved,
if any. Which union was trying to come in." He also
could not recall had he questioned Jess Herman about all
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this. Rubell too said he only questioned employees about
their union activities to learn which union was involved.
A no less relevant factor on this question of credibility
is the fact that both Schrager and Rubell stand convicted
felons guilty of a serious crime involving direct moral
turpitude. Dishonesty in so serious a matter bespeaks dis-
honesty in others.
I find that by Schrager's conduct in interrogating
Acker and Paton about their union activities, in question-
ing Acker about the union activities of other employees,
in promising Acker a higher rate of pay as inducement
for discontinuing union activities, in threatening to dis-
charge Acker if he persisted in his union activities, in
threatening Acker with personal physical violence be-
cause of his union activities, and in telling Craddock he
would be denied additional work if he continued his
union activities, the Respondent violated Section 8(a)(l)
of the Act.
I also find that by Rubell's conduct in offering a
higher salary to Acker to induce him to abandon his
union activities, in telling Acker he would be discharged
if he continued his union activities, in questioning Crad-
dock as to whether he had signed a union card, and in
telling Craddock that he, the owner, knew the employee
had signed a union card, the Respondent violated Sec-
tion 8(a)(l) of the Act.
E. Violations of Section 8(a)(3)
1. Nicole LeBrun
LeBrun worked on one of the lighting boards during
the dance periods, changing lights on and off here and
there. She started in September. She was also one of
those who signed union cards, and had worked 5 days a
week for some time. Her testimony is that on Sunday,
November 5, Paton called her to say she was not to
work that Sunday and that she should talk to Schrager
because there was "rescheduling going on." She came to
the office the next day where Schrager asked what she
knew about the Union. When she said she did not know
much, he told her it was a "father and son" affair and
that she might therefore lose her job for being a woman.
Schrager then went on that "they had fought unions
before and he would not let the union come in . .. . He
told me if I was loyal to Studio 54 I could make more
money. He said he knew I was not happy with the
amount of money I made but if I was loyal to the Studio
that I could make more money." Schrager then asked
what her schedule was, and when she told him he said
she "could go back to work on that same schedule." As
she was leaving, still according to LeBrun, the owner
said, "If I was lying to him he would kill me."
LeBrun worked as usual the next week but when she
reported per schedule the following Sunday, November
12, she was told someone new was taking her place.
Schrager told her that night that "schedules were being
changed and they were trying out new people and they
would keep in touch with me." LeBrun had always
worked in accordance with a prearranged schedule, and
had never had to call in to learn whether she was to
come to work or not. After the 12th, she called in a
number of times, always when she thought she was
scheduled, but was always told there was no work for
her. She worked on only 4 days between November 11
and 20, only after calling in to ask. She was never called
again.
For reasons already stated, I do not credit Schrager's
denial, either that he threatened this woman with physi-
cal violence or with discrimination in employment be-
cause of her union activities. I find that by his question-
ing of her as to her knowledge of union activities, by his
promise of more money if she refrained from union ac-
tivity, and by his threat of physical violence, the Re-
spondent violated Section 8(a)(1) of the Act.
I also find entirely unpersuasive Schrager's assertion,
at the hearing, that the reason why he "discharged
LeBrun" was because her maintenance work, i.e., adjust-
ing the light board or timely reporting necessary correc-
tions to be made on it, was "inadequate." He said he
could not recall having brought these now asserted fail-
ings to her attention at any time. I find, all things consid-
ered, that the Respondent discharged LeBrun as a move
to curb the union activities then going on, and thereby
violated Section 8(a)(3) of the Act.
2. Jess Herman
Herman worked in this place from August to Novem-
ber 27, 1978. He talked at length about the kind of work
he did. During September, while the hall was closed for
a week or so for "refurbishing," as the witnesses said, he
"installed lighting effects, worked on the rigging, things
of that nature." After that he was offered a job as "pre-
set" man. Asked what that meant, Herman said it was
"Basically . . . various jobs such as filling air compressor
cannons, maintaining the mylar drop . . . whatever
maintenance had to be done...." He worked about 5
days a week.
Herman also signed a union card on November 3. On
November 14 and 15, Schrager called him to the office
to ask "what was going on with the union thing and how
did I fit into it." Herman asked the owner to explain
what he meant, and Schrager continued "he was going
to do whatever he could to keep the union from coming
in." The conversation closed with the employee explain-
ing "the other side of the situation."
At the close of his shift on November 27, Michael
Overington, the supervisor, told Herman he was being
discharged because of a "cut back on the overhead."
When Herman asked who had decided this, Overington
said it was Schrager.
Testifying in defense, all Schrager said about this man
is that he could not recall having spoken to him, that he
did discharge a man because "there was no need for that
person's service," and that it was "either Richard Toby
or Jess Herman."
I credit Herman, and find that by the owner's ques-
tioning of the employee about his union activities, and by
his telling him he would do whatever he could to pre-
vent unionization among the employees, the Respondent
again violated Section 8(a)(l) of the Act. Schrager's gen-
eral, unsupported statement that Herman was "not
needed" is unconvincing on this total record. I therefore
also find the Respondent in fact discharged Herman in
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STUDIO 54
retaliation for his prounion attitude, and thereby violated
Section 8(a)(3).
3. Acker and Scott
The evidence proving discrimination-denial of fur-
ther employment-against these two men perfectly illus-
trates the insurmountable problem which the record as a
whole presents with respect to the two major issues to
be decided below: Whether the limited bargaining unit
was appropriate, and just how many employees were at
work in the unit at the significant moment. Unlike the
usual situation in a factory, or a department store, em-
ployment here is not on a regular, predictable, fixed
basis. A more fitting phrase in this case is that most of
the people worked "on call," with schedules always ten-
tative, employees coming and going, continuing changes
always caused by their outside interests, activities, and
even contemporaneous employment elsewhere. The pic-
ture is further complicated by the fact that the dance hall
is open to the public on a regular basis only five or six
nights a week. One night each week-almost every
week-there is also what the witnesses spoke of as "a
party"; i.e., the whole place is used by some fashion or-
ganization, or perhaps a private wedding group, when
many of the employees are sometimes paid by outsiders
and not by the Respondent at all. Although it does
appear that the Company's employees all punched time-
cards every time they worked for the Company itself,
there are no records of any kind in evidence. The gener-
al recollection of the employee witnesses as to when
they worked varies all over the record. Almost 2 years
after the events, they could hardly remember with any
precision.
This important reality as to the state of the record
shows in the testimony of these very two witnesses who
were illegally discharged. Acker said he last worked on
November 9; absent the company records, which the Re-
spondent refused to produce, of course I believe him. He
also said he worked during the day on November 7. Did
he come because he was scheduled? "I don't want to say
if that's the reason I came there . . . . It's just a place
where I work regularly. I was friends with the people
that I worked with there." But Acker also said that the
week before he had worked five nights for the dance
hall called Zenon. His explanation for this is that the
Zenon owner had offered him a job and he had accept-
ed. Next came this: "... I was hired and discharged-I
quit."
Scott started by saying he was an employee from No-
vember 2 to November 8. Later he explained he only
worked 3 days-Friday, Monday, and Wednesday. "I
wasn't sure I was going to get paid." Whatever uncer-
tainty this sort of testimony raises as to the status of this
employee at any given moment, it is a fact on this record
that he was an employee of the Respondent. He testified,
and no one contradicted him, that Overington, the super-
visor, had him sign a W-2 form at the end of one of the
night shifts.
Scott testified that during the night of November 8,
Rubell asked him had he "signed with the union," and he
said yes. When Rubell then asked him why he had
signed and Scott did not answer, Rubell said, "it was
silly and he would take care of me . . . this is going to
cost me a lot of money." At this point, still according to
Scott, Schrager cut in on the headset communication to
say "don't listen to Rubell," but Rubell went right on
with ". . . its silly. Its just going to lose your job."
Neither Acker nor Scott was ever recalled to work
after November 9. The established system being loose
and often changing as to who would work next, the re-
alities are that the Respondent got rid of these two
simply by never calling them back to work. Scott re-
turned on November 13 and again on November 19 to
ask the supervisor when he was supposed to report, only
to be told "the schedule was up in the air," and that he
would be called. But he never was.
In any event, whatever the Respondent's method was
to get rid of employees it no longer wanted, I find it did
discharge both Acker and Scott. The proof is direct as to
Acker, for when his lawyer asked him to explain "the
facts and circumstances surrounding that discharge,"
Schrager gave two reasons. One was that Acker was
"getting intoxicated." Without explaining details,
Schrager added he had heard about this weakness a few
weeks, a month, "maybe a little bit more," before the
discharge. Other than saying he had once spoken to
Acker about this "[i]n the fall of 1978," the witness could
not remember anything else. His second stated reason for
discharge is more revealing, and it is that he had heard
Acker was also working at Zenon and engaged in union
activities there. "And I didn't know that any of the
people were working over at-from our place were also
working over at Zenon, which is another reason why
Mitchell Acker was fired .... That's another one of
the reasons why Mitchell Acker got fired when I found
that out." When to this is added the many violations of
Section 8(a)(1) committed by Schrager-some of them
threats of discrimination voiced directly to Acker-the
conclusion that he fired the man because of his union ac-
tivities is inescapable. I therefore find the Respondent
violated Section 8(a)(3) by discharging Acker in Novem-
ber 1978.
As to Scott, the testimony by Paton that on November
8 Schrager told him to remove Scott from the schedule
stands uncontradicted. Schrager as a witness did not ad-
dress himself very precisely to this discharge allegation.
His general testimony at the hearing that there was a re-
structuring of the business going on, that the refurbishing
meant less staffing was required, and that ". . . in No-
vember . . . we had started to discharge some employees
and started to add others," leaves much to be desired.
Such conclusionary statements, unsupported by any ob-
jective justification, are very unconvincing. I do not
credit Rubell's general denial of having voiced any
threat to Scott; his position at the hearing was essentially
that he did not even recall who Scott was.
I find that Rubell did ask Scott whether he had signed
up with the Union, and that he did tell the man his union
activity would cause him to "lose your job." By each of
these statements voiced by the owner, the Respondent
violated Section 8(a)(l) of the Act. And I also conclude,
on the basis of the entire record, that Scott was in fact
discharged in violation of Section 8(a)(3).
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Section 8(a)(5)
I do not think this record can support a finding, as al-
leged in the complaint, that a unit limited to only some
of the employees of this employer constitute an appropri-
ate bargaining unit. The testimony is too confused to
make possible positive identification of some jobs as
against others. Unit descriptions, necessary for any unit
finding by the Board, list jobs, not persons by individual
names. The impossible ambiguity running throughout the
oral testimony starts right there. Ordinarily, the work a
man does is definable, distinctive, different from that of
employees in other categories. Here, the witnesses used
colorful adjectives of all kinds and ever changing, when
speaking of this man or that.
This question of just what work so and so did at vary-
ing times during his employment is inextricably entwined
with the collateral question of majority status that
always goes hand in hand with the appropriate unit issue
in all 8(a)(5) proceedings. With the work that individuals
did from week to week, and even from day to day, ever
changing, it is equally impossible to pinpoint-on the
record as here made at least-just who was doing the
work alleged to be distinctive during the critical days
when the Company ignored the Union's bargaining
demand. In fact, it cannot even be said who was on the
current payroll at the time in any category-in or out of
the alleged appropriate unit. In sum, I shall recommend
dismissal of the refusal-to-bargain aspect of the complaint
because the evidence does not suffice to prove either the
appropriateness of a limited unit, or majority status
within a limited unit.
I am not unaware that some of these essential ques-
tions-how many people were doing what and when-
might possibly have been clarified had the employer's
records become part of the evidence. Unquestionably,
the Respondent stands to gain by the absence of these
records, which it refused to produce. Cf. International
Union, United Automobile Workers [Gyrodyne Company of
America] v. N.L.R.B., 459 F.2d 1329 (D.C. Cir. 1972).
But however that deliberate strategy may destroy the
credibility of the company witnesses when they spoke of
these matters, it cannot be substituted for that affirmative
proof, always a burden upon the General Counsel, to es-
tablish the facts necessary for any unfair labor practice
finding. A respondent appears in court against its wishes;
it bears no burden to prove anything, except it be to
rebut a prima facie case already made out by the pros-
ecution. It has long been the rule that unfair labor prac-
tice findings must be "supported by substantial evidence
on the record considered as a whole." N.L.R.B. v. Glen
Raven Silk Mills, Inc., 203 F.2d 946 (4th Cir. 1953), enfg.
101 NLRB 239 (1952).
The situation here cannot be likened to the adverse in-
ference, which is justified to destroy an asserted affirma-
tive defense advanced by a respondent when it refuses to
produce records said to prove its position. Compare In-
ternational Hod Carriers, etc., Local No. 41 (A. E. Ander-
son Construction Company), 129 NLRB 1447, 1454 (1961),
enfd. 295 F.2d 657 (7th Cir.). Absence of this Respond-
ent's records means there is a void, but the negative does
not supply the positive. Wherever any of the Respond-
ent's witnesses spoke about the employment status of
anybody, or testified at all on matters that could con-
ceivably have been clarified by its records, I do not be-
lieve a word they spoke. My decision here, albeit finding
the complaint unsupported, rests entirely upon all of the
testimony given by the General Counsel's witnesses.
The testimony by three employee witnesses who testi-
fied in support of the complaint covers 570 pages of tran-
script; the principal witness, Acker, alone spoke for 383
pages. I do not intend to repeat here everything they
said. It is the general picture that counts.
It will be recalled that when the people are dancing
during the night, one man plays a phonograph (called
disc jockey), a man operates each of the two electric
light control switchboards (called disc board operator
and light board operator), and sometimes one or two
men pull the ropes which control pictures and colorful
board drops which are suspended over the heads of the
dancers (called flymen). It is the people who do this
work who are said to constitute the limited bargaining
unit.
Repeatedly the witnesses spoke of a number of titles
attached to these men, as significantly descriptive of the
special kind of work they do when exercising their skill.
And, of course, the heart of the limited unit contention is
that these men work to help put on "the show." This
means it is their night work, while the "actors"-1,000
cash customers-are there, that the limited bargaining
unit can be understood and likened to a theatre. But to
see the testimony in proper prospective, it must also be
understood that people work in this place all day, in
great numbers, performing a great number of additional
chores also directly related to the running of this entire
business, or show. Maintenance of electrical equipment-
the place must be a general maze of wires, fixtures,
bulbs, and switches-is a major burden on everybody all
the time.
A number of the people who, when so scheduled,
work in the four named categories, also work during the
day. It is also contended that there existed one "job"
during the day that must be joined with the four listed
night jobs. That one is called the "preset man" on the
record. And again, the use of a phrase is the oral testi-
mony technique for separating one job from who knows
how many other employees who do the same kind of
work every afternoon, often for 5 or 6 hours straight.
Had the General Counsel asked for everybody except the
door ticket sellers, the security guards, the bartenders,
and the busboys, it might be possible even on this record
to just say they are out and all the rest are in. Instead, he
spoke of specific job titles-which are clearly no more
than descriptive adjectives used by the employee wit-
nesses-to sell the idea that employees in the five listed
categories are comparable to theatre personnel. In reali-
ty, the basis of selection seems to be certain specified
work performed and the employees who did that work,
all of them and only them, as constituting the limited
bargaining unit. And the best I can make of all this is
that that special work-called "stagehand" for conclu-
sionary reasons-is: Playing a record on a phonograph,
operating the two light switchboards near the phono-
graph, pulling the ropes which raise and lower the
1206
STUDIO 54
"scenes" all over the same hall, and "presetting"-what-
ever that means. Apart from the fancy phrase, all this is
adjusting the switchboards, checking defects in the elec-
trical equipment in them, and changing light bulbs.
We start with the phonograph. Again and again the
witnesses spoke of their theatrical experience, their other
employment as "stagehands" in this or that known the-
atre, and even, some, of their professional status as teach-
ers in the theatrical world. But all this man does here is
put one record after another on the phonograph and play
it. Others do it too, both guests and other employees,
albeit there seems to have been no regularity in anything
that went on during the night. Asked whether another
rank-and-file employee named Robin also played the
phonograph, Acker, the principal witness, answered she
did not do so "as an employee." It is this sort of testimo-
ny that leaves everything up in the air. When is an em-
ployee not working? Much was made of the fact that
with the very high decibel count in today's music, some
employees wore headsets in order to talk to one another
during the evening. It is argued that this wearing of
headsets also serves to tie the five categories into a sepa-
rate group. But again, there is frequent mention in the
record of others also wearing headsets during the night.
Asked did he not also wear a headset when doing work
other than that of pulling the ropes, Acker's answer was:
"Not on a professional basis." "Just to converse with
someone at one of those stations."
The work of the "flyman," or "fly rail operator," is
likened to theatrical people who change the scenery be-
tween the acts on Broadway. And then it was stated-
one of the few clear and undisputed facts of record-that
the hanging of the scenery, the initial positioning of all
decorative postings and signs, is done by employees of
an outside independent contractor, not the employer of
the people involved in this case. All the flymen do here
is raise and lower the ropes from the side as they are in-
structed to do during the night. Employee Craddock,
after emphasizing that he had previously worked at the
Lincoln Theatre Center, added that when he started
pulling the ropes here, he had never done it before.
There was no need for him to have done it before, and,
except for the sound of the phrase, there is nothing con-
necting whatever he did at Lincoln Center with pulling
these ropes.
Acker described himself as an electrician, and also as a
carpenter. He is supposed to be included in the limited
unit because he worked as a "flyman." But he worked as
much during the day as he did at night when the danc-
ing was going on. And his daytime duties-often 5 or 6
hours-were at maintenance work, as the electrician that
he is. At times Acker tried to say he worked as a
"preset" man, adjusting and repairing only those electri-
cal fixtures tied intimately with the two electrical switch-
boards. But at times it was clear, from his own testimo-
ny, that he used to do just the usual maintenance work
always necessary in a place of this kind, with electricity
and lights without end.
Q. Were those people ever transferred into a po-
sition as a waiter or busboy, let us say?
A. No.
Q. Were they ever transferred in to other posi-
tions other than the position they worked normally?
A. Not unless there was an emergency. And if
they had to help somebody out.
What did he do when putting in a full shift during the
afternoon? "During the course of the day, if any lamps
that were burned out, light bulbs. A number of dimmers
that might've broken or anything that needs to be re-
paired. Or if there was a standard preset that had to be
done to get discotheque in operation every evening. And
this was just part of the normal procedure of just doing
maintenance work on the equipment."
Acker had worked mostly during the daytime before
the start of November, doing, as he said, general repairs.
If I put this together with the fact that about the end of
November, in a single week, he worked 5 full days for
another company somewhere else, it means that because
Acker happened to be assigned to do "fly rail" work
during the few days when the union activities occurred,
he must be viewed strictly as a "stagehand," and never
mind the fact he was really a jack of all trades.
Craddock is said to be part of the limited unit because
of the work he did as a "flyman" while the show was on
at night. From his testimony:
Q. Isn't it a fact that from time to time you
would do various types of work like fixing electri-
cal fixtures that might be located anywhere in
Studio 54?
A. Yes.
Q. And that was while you were working the fly
rail or the E-board operation, right?
A. Yes .... It was either before the club
opened or after or I came in another time or day.
The so-called preset man, whom the General Counsel
would include in the limited unit, was Jess Herman.
Acker worked with him, or in his place, at times. Again,
asked whether "there were people that were doing that
kind of work, replacing bulbs and fixing light fixtures"
he said, "Not on the stage. Nothing to do with the theat-
rical performance." How does one reconcile this with
the simultaneous claim that the whole place was "the
stage" and all the people present on any given night "the
actors"? What the witness was really trying to do was
achieve his end object of separating the few-whom the
Union would put into a separate bargaining unit-from
others who did the same work. A final quote will be
enough:
Q. Weren't there other people who prepared the
place for things that had to be done later?
A. In other areas of the studio, yes.
Paton, who called himself a "flyman," and used to pre-
pare the tentative schedules for who should work which
days, said there were times when a busboy or a waiter
used to operate the fly rail, and the two light switch-
boards.
Six signed union authorization cards were received in
evidence-four by the four employees who were fired
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Acker, Scott, Herman, and LeBrun) and two by Paton
and Craddock. It is argued by the General Counsel that
at most there were only four other employees in the lim-
ited unit about November, when the Union is said to
have mailed its demand letter to the Respondent.
This factual assertion that these 10 named, and only
these 10, were employed by the Respondent to do the
work of the "five categories" colorfully described by the
employee witnesses, rests on nothing more than Paton's
statement that it is so. He just called off those names.
With one of them-Acker-having worked only 1 day
that critical week ill November and 5 days at another
place where he was also employed, and with another-
Scott-having done only 3 days during that week, and
never before, one wonders: How many people were ca-
suals, part-timers, or just "on call," etc.?
The General Counsel did place in evidence a two-page
document from the Respondent's records. It was identi-
fied by Paton, who used to have something to do with
giving out the paychecks, as a computer printout. It
bears the date November 7. There is a list of names, with
an identifying number-700-appearing next to many
names. A great number of the listed names-in fact 37-
are labeled in that classification. Asked what did the
"700" stand for, Paton said: "The production people
working on the stage, or working with the stage, associ-
ated with the stage." After the exhibit was received in
evidence, Paton said "most" of the people named there
were not working in November 1978. As he looked at
the exhibit, and was asked about one name and another,
his memory failed. He said there was one disc jockey in
addition to those he named, but he could not remember
that particular name. He spoke of some of the employees
listed on the exhibit as having worked only 2 months
previously, when the place was renovated. Why such
names of employees who-if it be so-were not employ-
ees, should be on the November payroll no one offered
to explain.
On cross-examination Paton was asked about J. Mack,
whose name is on the exhibit, and said she used to do
"electrical work on the stage." He explained away an-
other "700" employee on the list-F. Mastroiani--as a
man who "did some acting. Musical comedy." But there
is no evidence at all throughout the entire record about
"actors," or any "stage," except it be the whole place.
With the "disc jockey" and the "disco board operator"
likened to stagehands because they served to generate an
overall ambience of theatrical entertainment, how do I
leave this man Mastroiani out of the limited unit?
Paton said he knew nothing about three other listed
names-K. Ross, J. Senter, and G. Turski. About still an-
other named employee-William Schwarzback-the wit-
ness said only he worked the "fly rail for a time," but
could not otherwise recall what he did. Could it be that
many of the people listed on that printout worked during
the period in question as did Craddock, one of the union-
eers? Craddock testified that before October he worked
only 2 days a week-"Whenever they needed me," and
between October and the following February 1979 "I
worked one night a week." If Craddock had status to be
counted in as part of the unit in this refusal-to-bargain
case, there must have been many others like him, and the
document in evidence strongly indicates just that.
I am unable to find on the basis of this testimony and
other evidence, just how many persons held employee
status with this Company that I week in November 1978,
or who they were by name. It will not do for the Gener-
al Counsel to argue that because the owners refused to
release their books (assuming-under the circum-
stances!!-that such records would be at all decipherable)
Paton's off-the-cuff restatement of what is no more than
the prosecution and complaint allegations, must be taken
as gospel. In a sense, this element in a refusal-to-bargain
case is like a Board representation proceeding-where
the Board must have the objective facts sufficient to find
majority status. Recalcitrance, deception, even misbehav-
ior by a party, cannot supply the necessary missing link.
I think it better, in a case of first impression, where the
Board is asked to establish a principle of representation
case law later to be applicable to a new and broadening
employment area, that it have before it a more reliable
picture of the business activity involved.
V. TIHE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
vI. THE REMEDY
The Respondent must be ordered to cease and desist
from committing such repetitive offenses in violation of
Section 8(a)(l) of the Act. It must also be ordered to re-
instate the four discharged employees to their former
employment and to make them whole for any loss of
earnings they suffered in consequence of the discrimina-
tion against them. In light of the extent of the unfair
labor practices committed, the Respondent must also be
ordered to cease and desist from in any other manner
violating the statute.
CONCi.USIONS OF LAW
1. By discharging Mitchell Acker, Richard Scott, Jess
Herman, and Nicole LeBrun for engaging in union and
concerted activities, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
2. By the foregoing conduct, by coercively interrogat-
ing employees concerning their union activities, by ques-
tioning employees concerning the union activities of
fellow employees, by promising employees increased
monetary benefits for work in return for abandonment of
union activities, by promising increased work assign-
ments to induce abandonment of the Union, by threaten-
ing to discharge employees in retaliation for their union
activities, by threatening employees with physical, per-
sonal violence to stop the union activities, and by threat-
ening to reduce the work hours assigned to employees in
1208
STUDIO 54
retaliation for the union activities, the Respondent has
engaged in and is engaging in violations of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Broadway Catering Corp. d/b/a
Studio 54, New York City, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against its employees because of their union activities.
(b) Coercively interrogating employees concerning
their union sentiments and activities.
(c) Questioning employees concerning the union activi-
ties of fellow employees.
(d) Promising increased monetary benefits to induce
abandonment of union activities.
(e) Promising employees increased work assignments
to induce abandonment of the Union.
(f) Threatening to discharge employees in retaliation
for their union activities.
(g) Threatening employees with physical, personal vio-
lence to stop their union activities.
(h) Threatening to reduce the work hours assigned to
employees in retaliation for their union activities.
(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 a labor organiza-
tion, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Mitchell Acker, Richard Scott, Jess Herman,
and Nicole LeBrun immediate and full reinstatement to
their former positions or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges.
(b) Make whole the four named employees for any
loss of pay or benefits they may have suffered by reason
of Respondent's discrimination against them in the
manner provided in F W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).2
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
' In the event no exceptions are filed as provided by Sec 1012 4 of the
Rules and Regulations of the National Labor Relations Board, Ihe find-
ings, conclusions, and recommended Order herein shall, as provided In
Sec. 102 48 of the Rules and Regulations. he adopted by the Board arid
become its findings, conclusions, and Order, and all obhjections thereto
shall be deemed waived for all purposes.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 11962)
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its place of business in New York City,
New York, copies of the attached notice marked "Ap-
pendix." 3 Copies of said notice, on forms provided by
the Regional Director for Region 2, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 2, in writ-
ing, w ithin 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
1'1 IS Hi-RI BH RECOMMENDED that the complaint be,
and it hereby is, dismissed with respect to the 8(a)(5) al-
legations.
In the event that this Order is enforced by a Judgment of a Uniled
States Court of Appeals, the swords in the notice reading "Posted by
Order of the National L abor Relations Board" shall read "Posted Pursu-
anl to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPI.OYEES
POSTFD BY ORDER OF rHE
NATIONAl LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE Wll.l. NOT discharge or in any other manner
discriminate against our employees because of their
union activities.
WE WVII. NOT coercively interrogate our em-
ployees concerning their union activities or senti-
ments.
WEI W'l 1 NOi question our employees concern-
ing the union activities of fellow employees.
WE WIl.l NOT promise increased monetary bene-
fits to employees to induce them to abandon their
union activities.
WE- WIIl NOT promise increased work assign-
ments to induce abandonment of union sentiments.
WiE Wn I NOT threaten to discharge employees in
retaliation for their union activities.
WV witl Not' threaten employees with physical,
personal violence to stop their union activities.
WI wil 1 NO'I threaten to reduce the work hours
assigned to employees in retaliation for their union
activities.
1209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization, to bargain
collectively through Theatrical Protective Union
Local No. 1, International Alliance of Theatrical
Stage Employees, AFL-CIO, CLC, or any other
labor organization, to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL offer Mitchell Acker, Richard Scott,
Jess Herman, and Nicole LeBrun immediate and full
reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights or privileges.
WE WILL make whole all four of those named
employees for any loss of pay they may have suf-
fered by reason of our discrimination against them,
with interest.
BROADWAY CATERING CORP. D/B/A
STUDIO 54
1210