Fox Midwest Amusement Corp.

National Labor Relations Board - Board Decisions

Mar 18, 1952

98 N.L.R.B. 699 (N.L.R.B. 1952)

FOX MIDWEST AMUSEMENT CORPORATION 699
-named in the caption, excluding office employees , guards, professional
employees , managers , and supervisors a as defined in the Act.. .
[Text of -Direction of Election omitted from publication in this
volume.]
2 Doubt exists as to the status of the foremen within the employ of the Employers. Scant
testimony was adduced as to the supervisory nature of the foremen of some of the
Employers ; no testimony was taken as to others . We find that those foremen who meet
:the requirements of a supervisor as defined in Section 2 (11) of the Act are excluded from
the unit found appropriate . Those who do not so qualify and who perform the work of
fish handlers are included,
-Fox MIDWEST AMUSEMENT CORPORATION, Fox PLAINS THEATRES COR-
PORATION AND Fox MIDWEST THEATRES, INC. and KENNETH CARAWAY
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES & MOVING
PICTURE MACHINE' OPERATORS OF THE U. S. & CANADA, LOCAL No.
495 AFL; COFFEYVILLE CENTRAL LABOR UNION; BROTHERHOOD OF
PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL No.
211, AFL ; INTERNATIONAL -HOD CARRIERS' BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL No. 193, AFL; AND INTER-
NATIONAL UNION OF PLUMBERS AND STEAMFrrrERS , LOCAL No. 399
and KENNETH CARAWAY . Cases Nos. 17-CA366 and 17-CB-39.
March 18, 1952
Decision and Order
On September 5,1951, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent Unions and the Respondent Companies filed exceptions to the
Intermediate Report and the Respondent Companies filed a support-
ing brief.
The Board 1 has reviewed the rulings made bythe Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Members Houston , Murdock , and Styles].
98 NLRB No. 115
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case, and hereby adopts the findings,? conclusions , and recommen-
dations of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National -Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that : -
1. The Respondents, Fox Plains Theatres Corporation and Fox
Midwest Amusement Corporation, their respective officers, agents,
successors, and assigns, shall : -
(a) Cease and desist from:
(1) Encouraging membership in International Alliance of The-
- atrical Stage Employees & Moving Picture Machine Operators of
the U. S. & Canada, Local No. 495, AFL, or in any other labor organi-
zation of its employees, by discriminating in any manner in regard
.to their hire, tenure, or any term or condition of their employment,
except to the extent authorized by Section 8 (a) (3) of the Act.
(2) In any like or related manner, interfering with, restraining
or coercing employees in their right to refrain from exercising the
rights -guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1) Offer to Kenneth Caraway immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due and the right of reinstatement under the
terms of this Order.
(3) Post conspicuously at their theatres in Coffeyville, Kansas, at
such places where notices to employees are customarily posted and/or
%i here employees receive their pay, copies of the notice attached to the
2 As the Respondent Companies are an integral part of a multistate enterprise , the Trial
Examiner's finding that they are engaged in commerce within the meaning of the Act is in
accord * with the Board 's jurisdictional policy. - Gamble Enterprises , Inc., 92 NLRB 1528.
The Trial Examiner 's rejection , in footnote 15 of the Intermediate Report, of the Re-
spondent Companies ' contention concerning reinstatement and back pay is supported by
Oklahoma Transportation Company, 50 NLRB 907, enfd. 140 F. 2d 509 (C. A. 5).
We adopt the Trial Examiner's recommendation to dismiss the allegation relating to the
discriminatory transfer of Kenneth Caraway because no exceptions have been filed in this
connection.
FOX MIDWEST AMUSEMENT CORPORATION 701
Intermediate Report as Appendix A 3 Copies of said notice, to
be furnished by the Regional Director for the Seventeenth Region,
after having been duly, signed by authorized representatives of said
Respondent Companies, shall be posted immediately upon receipt
thereof and maintained by said Companies for sixty (60) consecutive
days thereafter.' Reasonable steps shall be taken by said Companies
to' insure that said notices are not altered, defaced, or covered by
any other material.
(4) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order, what steps
the said RespQndents have taken to comply herewith.
2. The Respondents, International Alliance of Theatrical Stage
Employees & Moving Picture Machine Operators of the U. S. &
Canada, Local No. 495, AFL; Coffeyville Central Labor Union;
Brotherhood of Painters, Decorators and Paperhangers of America,
Local No. 211, AFL; and International Hod Carriers' Building &
Common Laborers' Union of America, Local No. 193, AFL; their
respective officers, representatives, and agents, shall :
(a) Cease and desist from :
(1) Causing or attempting to cause Fox Plains Theatres Corpo-
ration and/or Fox Midwest Amusement Corporation, their respec-
tive agents, successors, or assigns, to discriminate against their
employees in violation of Section 8 (a) (3) of the Act.'
(2) Restraining and coercing employees of Fox Plains Theatres
Corporation and/or Fox Midwest Amusement Corporation, their
respective successors and assigns, in the exercise of their right to
refrain from any and all of the concerted activities guaranteed to
them by Section 7, except to the extent that such right may be affected
by • an agreement requiring membership in a labor organization as
a condition of employment as authorized by Section 8 (a) (3) of
the Act.
(b) Take the following affirmative' action, which the Board finds
will effectuate the policies of the Act :
(1) Notify Fox Plains Theatres Corporation and Fox Midwest
Amusement Corporation that they withdraw all objections to the
employment of Kenneth Caraway, and request said Companies to
offer him immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority and
other rights and privileges.
s This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" in the caption thereof, the words "A Decision and Order ." If this
Order is enforced by a decree of a United States Court of Appeals, the notice shall be further
amended by substituting for the words "A Decision and Order ," the words "A Decree of
the United States Court of Appeals , Enforcing an Order."
702 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
(2) . Post in conspicuous places .at their respective business offices
in Coffeyville, Kansas, where notices to members are customarily
posted, notices in the form attached to the Intermediate Report as
Appendix B 4 Copies of said notice, to be furnished by the Regional
Director for the Seventeenth Region, shall,'after being duly signed
by official representatives of the respective Respondent Unions, be
posted by each of said Respondents immediately upon receipt thereof
and maintained by it for a period of sixty (60) consecutive days
thereafter. Reasonable steps shall be taken by said Respondents to
insure that said notices are not altered, defaced, or covered by any
other material.
(3) Mail to the Regional Director for the Seventeenth Region
signed copies of the above-described notice for,posting, the Companies
willing, at the places in the Coffeyville theatres, operated by the
Respondent Companies, where Appendix A is to be posted.
(4) Notify the Regional Director for the Seventeenth Region
in writing within,ten (10) days from the date of this Order, what
steps the said Respondents have taken to 'comply herewith.
3. The Respondent Companies (other than Fox Midwest Theatres,
Inc.), their officers, agents, successors, and assigns, and the Respondent
Unions (other than Plumbers Local No. 339) shall, jointly and
severally, make whole Kenneth Caraway for any loss of pay he may
have suffered by reason of the discrimination against him in the maner
prescribed in "The Remedy" section of the Intermediate Report.
4a. The Respondent, International Alliance of Theatrical Stage
Employees & Moving Picture Machine Operators of the U. S. &
Canada, Local No. 495, AFL, shall cease and desist from restraining
and coercing employees in the exercise of their right, guaranteed by
Section 7, to refrain from assisting labor organizations, by threatening
employees with loss of employment because of their failure or refusal
to assist it in any National Labor Relations Board proceedings.
AND IT Is FURTHER ORDERED that the complaint be, and it hereby
is, dismissed as to Fox Midwest Theatres, Inc., and International
Union of Plumbers and Steamfitters, Local No. 339, and insofar as
it alleges a discriminatory transfer of Kenneth Caraway from a motion
picture operator's job to a maintenance job.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Kenneth Caraway on November 30, 1950, and
subsequently amended, the General Counsel of the National Labor Relations
A This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof, the words "A Decision and Order." If this
Order is enforced by a decree of a United States Court of Appeals , the notice shall be further
amended by substituting for the words "A Decision and Order ," the words "A Decree of
the United States Court of Appeals , Enforcing an Order."
FOX MIDWEST AMUSEMENT CORPORATION 703
Board for the Seventeenth Region (Kansas City , Missouri), issued his complaint
dated May 14, 1951, against Fox Midwest Amusement Corporation , Fox Plains
Theatres Corporation , and Fox Midwest Theatres , Inc., herein called the
Respondent Companies , and against International Alliance of Theatrical Stage
Employees & Moving Picture Machine Operators of the U . S. & Canada,
Local No.' 495, AFL, herein called IAT'SE Local 495; Coffeyville Central Labor
Union, herein called Central Labor Union ; Brotherhood of Painters , Decorators
and Paperhangers of America , Local No . 211, AFL, herein called Painters
Local 211; International Hod Carriers' Building & Common Laborers' Union
of America , Local No . 193, AFL, herein called Common _ Laborers Local 193;
and International Union of Plumbers & Steamfitters, Local No. 339, herein
called Plumbers Local 339-the Union collectively being referred to herein
as the Respondent Unions . The complaint alleged that the Respondent Com-
panies engaged in unfair labor practices within the meaning of sections 8 (a) (1)
and (3) and 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act, and that the Respondent Unions engaged in unfair
labor practices affecting commerce within the meaning of Sections 8 (b)
( 1) (A) and (2) and 2 ( 6) and ( 7) of the Act.
With respect to the unfair labor practices the complaint alleged in substance
that: ,
1. On or about May 28, 1950 , the Respondent Companies transferred Kenneth
Caraway from his job as a motion picture operator to that of a maintenance
man, for the purpose of discouraging him and other employees from engaging in
activities protected by Section 7 of the Act, and thereafter, in violation of Section
8 (a) (1) and ( 3) continued him on the maintenance job until his discharge on
November 28, 1950.
2. On or about November 28, 1950 , the Respondent Companies in violation of
Section 8 . ( a) (1) and (3) of the Act discriminatorily discharged Kenneth
Caraway pursuant to demands of the Respondent Unions.
3. The Respondent Unions violated Section 8 (b) (2) and 8 (b) (1) (A) by
attempting to cause and causing the Respondent Companies discriminatorily to
discharge Kenneth Caraway. -
4. The Respondent, IATSE Local 495, in violation of Section 8 (b) (1) (A),
on or about February 5,1951, threatened employee Bernard Williams, an employee
of Respondent Fox Plains and/or Fox Midwest Amusement , with loss of employ-
ment and other reprisals if said Williams did not aid and assist in the effort of
the Respondent Unions to cause the discharge of Kenneth Caraway.
The Respondent Companies and the Respondent Unions filed answers in which
they denied generally the allegations of the complaint charging them with the
commission of unfair labor practices.
Pursuant to notice , a hearing was held at Coffeyville , Kansas, between May 28
and June 2 , 1951, and at Kansas City, Missouri , on June 4, 1951 , before Arthur
Leff, the undersigned Trial Examiner , duly designated by the Chief Trial Exam-
iner. The General Counsel , the Respondent Companies, and the Respondent
Unions were represented by counsel . Full opportunity to be heard, to examine
and cross-examine witnesses , and to introduce evidence was afforded all parties.
At the end of the General Counsel 's case a motion of the Respondents to dismiss
the complaint for insufficiency of proof was denied . At the close of the entire
case, the General Counsel moved to amend the complaint by striking therefrom
all reference to Plumbers Local 339 . The motion was granted . At that time
also, a motion of the Respondent , Fox Midwest Theatres , Inc., to dismiss the
complaint against it for lack of proof connecting it in any way with the alleged
unfair labor practices , was granted . Decision was reserved on a like motion
-704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made by the Respondent, Fox Midwest Amusement Company. 'That motion is,
now denied for reasons to be indicated below. Decision was reserved on a motion
by the Respondent Unions to dismiss the complaint for insufficiency. That motion
is disposed of in accordance with the findings of fact and conclusions of law
made below. Motions were granted to conform the pleadings to the prodf with
regard to minor variances. All parties were afforded opportunity to argue orally
upon the record and to submit briefs as well as proposed findings of fact and con-
clusions of law. After the hearing briefs were filed by the General Counsel
and by the Respondent Unions.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANIES
Fox Midwest Amusement Corporation and Fox Plains Theatres Corporation,
both Deleware corporations with their principal offices located at the same ad-
dress in Kansas City, Missouri, are wholly owned by Fox Midwest Theatres, Inc.,
a holding corporation which in turn is a wholly owned subsidiary of Twentieth
Century Fox Film Corporation, a producer and distributor of motion pictures
throughout the United States. Fox Plains Theatres Corporation is 1 of 16 cor-
porations wholly owned by Fox Midwest Theatres , Inc., that are engaged in
operating theatres in the States of Illinois, Missouri, Kansas, Nebraska, and Iowa.
Fox Plains Theatres Corporation operates theatres in some 8 or more cities in the
State of Kansas. Fox Midwest Amusement Corporation operates no theatres,
but is engaged in business as a service corporation. Under contracts with other
companies, such as Fox Plains, it performs various services, including the book-
ing and renting of film, bookkeeping services, negotiation. of theatre leases, legal
services, et cetera. The managers of the theatres operated by Fox Plains work
under the general supervision of the district manager of Fox Midwest Amuse-
ment Corporation. All purchases of supplies and materials, such as candy, pop-
corn, ushers' equipment, and repair supplies, are made by the Fox Midwest
Amusement Corporation for the accounts of the operating companies.
Fox Plains' gross annual income from all its theatre operations in the State of
Kansas is in excess of $600,000. Of this sum, more than $100,000 is derived from
admissions to its three theatres at Coffeyville, Kansas. The annual dollar
volume of purchases of candy and popcorn for the Coffeyville theatres-all re-
ceived from sources outside the State of Kansas-exceeds $10,000. The annual
receipts from the sale of candy and popcorn at such theatres is more than $15,000.
All pictures shown at the three Coffeyville theatres are rented from the Kansas
City, Missouri, film exchange of the major film producers, including Twentieth
Century Fox, Paramount, Universal, RKO, and Republic at annual rentals in
excess of $30,000. The total annual rentals of film for all theatres operated by
Fox Plains in the State of Kansas is in excess of $200,000.
It is found that the Respondent Companies are engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
It was stipulated, and it is found, that each of the Respondents named in the
caption of Case No. 17-CB-39 is a labor organization within the meaning of the
Act. The Central Labor Union is a coordinating body or federation composed
of local American Federation of Labor Unions that affiliate with it and are
represented in the Central Labor Union by delegates chosen by them.
FOX MIDWEST AMUSEMENT CORPORATION 705
III. THE UNFAIR LABOR PRACTICES
A. Background
All three moving picture theatres in Coffeyville , Kansas-the Midland, the
Tackett, and the Ismo-are operated by Fox Plains Theatres Corporation and
are serviced by Fox Midwest Amusement Corporation. James B. Fronkier is
the manager of all three theatres , and manages the theatres under the general
supervision of Ed Haas , the district manager of Fox Midwest Amusement Cor-
poration. Personnel matters at Coffeyville normally are handled by Fronkier,
but Haas, as district manager , has supervisory authority over such matters, in-
eluding the power to hire and fire employees at such theatres , a power which,
however, he seldom exercises.
For many years prior to 1950, control over the hiring, firing, and assignment
of moving picture machine operators and maintenance men at the Coffeyville
theatres was lodged in IATSE Local 495. Under contracts entered into between
the manager of the theatres and IATSE Local 495, it was agreed that the man-
ager was to employ only such employees in these categories as were supplied by
the Local. The last such contract was entered into on October 1, 1949, for a
term expiring October 1 , 1950. Management pursued a hands-off policy with
regard to employees covered by this contract . The contract merely specified
the number of operators to be employed simultaneously in the projection booths
in each of the several theatres and the total cost to the theatres for the operation
of the booths as well as for the maintenance of the theatres. The determination
of what particular individuals were to be hired, to what particular theatre and
work they were to be assigned, and on what shifts they were to work, was in
practice left fo Sid Caraway, a brother of the charging party. Sid Caraway
was the business agent, financial secretary , recording secretary , and treasurer
of IATSE Local 495, and also held corresponding offices in Common Laborers
Local 193. The men hired by Sid Caraway to work as projectionists or mainte-
nance men at the theatres were not always members of IATSE Local 495, but,
when they were not, they were required to pay fees to the Local while working.
A practice at times followed by Sid Caraway was to require the maintenance
man to substitute for him on Saturday and Sunday shifts in the projection booth
at the Ismo Theatre where he worked. For this extra work the maintenance
man would receive no extra pay, but the full wages would be paid to Sid Caraway
just as if he himself had worked during the time. In late 1948, the then main
teuance man, Kenneth Lee Caraway, a son of the charging party-and not to
be confused with him although their names are similar-protested this practice.
When he persisted in his protest , despite the warning of his uncle , he was sum-
marily deprived of his job.
Kenneth Caraway,' brother of Sid, father of Kenneth Lee, and the charging
party in this proceeding, was one of the oldest employees at the Fox Theatres
in Coffeyville, and, until his expulsion in October 1950, a 'member of IATSE
Local 495 Kenneth began his employment with the Fox Theatres in September
1939, and was employed continuously thereafter until his discharge on November
29, 1950. Before May 1950 he had worked principally as a moving picture
machine operator , although on occasions he also worked as maintenance man for
the three theatres.
i Kenneth Caraway's full name is George Kenneth Caraway, but he is referred to in the
charge and complaint , was referred to at the hearing, and will be referred to in this Re-
port, simply as Kenneth Caraway, the name by which he is customarily known.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During 1949, the relationship between Kenneth Caraway and his brother,
Sid, became strained. The General Counsel would have it that the roots of
their differences lay in Kenneth's disapproval of Sid's action in causing Kenneth
Lee to lose his job and in his disagreements with Sid concerning the manner in
which Sid was administering the Local's affairs. Those factors may have con-
tributed to the growing animosity between the brothers, but I do not believe the
record supports a finding that these were the only or even the main reasons, at-
least not at the beginning. The record indicates other reasons as well, such as
a dispute growing out of a business venture in which they had been jointly in-
terested, as well as certain differences of a personal nature which the record
merely suggests but does not fully develop.
The antagonism between the brothers, however, became definitely enmeshed
with union affairs in November 1949. Kenneth previously had been working
a full-time shift as an operator at the Tackett Theatre. In November, when
a neighboring drive-in theatre closed for the winter months, Olin Hamlin, the
operator at that theatre, sought reemployment in Coffeyville where he had
previously worked. In order to take care of Olin Hamlin, Sid Caraway split
the Tackett shift on which Kenneth had been working into two parts, assigning
half the shift to Kenneth and half to Hamlin. As Kenneth was also denied the
privilege of working overtime, this resulted, in a very substantial reduction in
his earnings . At the same time, Sid Caraway retained his stepson, Ira Phelan,
as an operator on a full-time shift and overtime basis, although Phelan had been
hired only comparatively recently and at that time was not yet a member of
IATSE Local 495. He also retained on a full-time basis another nonunion man,
Wendell Crawford, who, too, was a relatively new employee. Another' op-
erator, Bernard William, also junior in service to Kenneth Caraway, was like-
wise retained.
Although the union contract contained no seniority provisions, Kenneth felt
he had been treated unfairly, for, next to Sid Caraway, he was the oldest em-
ployee in point of seniority. His protests both to the Companies and to his
Local proved of no avail. Kenneth then decided to take more positive action to
vindicate what he believed to be his rights. Under date of January 16, 1950, he
addressed a formal letter of complaint to IATSE Local 495, sending copies of
the letter to Theatre Manager Fronkier, to District Manager Haas , and to El-
mer Rhoden, president of the Fox Midwest Amusement Corporation , as well as to'
the Central Labor Union. In his letter Kenneth took a somewhat curious posi-
tion, probably for strategic reasons known best but to himself. Although aware
that Sid Caraway, as business agent of the Local, was responsible for the re-
duction in his workweek, Kenneth adopted the pretense that his grievance
lay against his employer, and was a matter for the Local to present and adjust.
He complained specifically that he had been discriminated against by his em-
ployer when his workweek rather than that of others had been reduced, and the
grounds he assigned were that his seniority and paid-up union membership had
been ignored in the selection. He also charged that the Company was violating
its contract with the Local by employing nonunion men as operators. He re-
quested the Local to "take immediate action on the Company and demand from
them all back pay due me and a reason for their discrimination."
As Kenneth Caraway should have expected, IATSE Local 495 took no action
on his grievance. Kenneth's letter was read at a meeting of the Central Labor
Union held on January 17. But after Sid Caraway vehemently expressed the
view that the matter was none of its business, and was strictly a local matter,
the Central Labor Union decided not to intervene. Irritated by his brother's
FOX MIDWEST -AMUSEMENT CORPORATION 707
action, Sidney Caraway, after the Central Labor Union meeting; remarked to
Kenneth, "Well, I will get your job for this."'
Two days later, on January 19, 1950, Kenneth filed with the Board a charge
against Fox Midwest Amusement Corporation, alleging a violation of Section
8.(a) (1) and (3) of the Act. Consistency apparently is not one of Kenneth's
virtues. In his letter to IATSE Local 495, written several days before, he had
complained that the Company was not giving effect to closed shop provisions
of its contract. But now before the Board he charged the Company with "giving
effect to an illegal union-shop contract with IATSE." Moreover and more
specifically, he charged that by reason of that contract, the Company had refused
to employ Lee Hamlin and had reduced Kenneth's income and working week
by 50 percent.
Simultaneously with the filing of Kenneth's charge against the Fox Midwest,
Lee Hamlin, apparently influenced at least to some extent by Kenneth, filed a
separate charge against IATSE Local 495, alleging a violation of Section 8 (b)
(1) and (2) of the Act. Lee Hamlin asserted in his charge that Local 495,
through its agent, Sid Caraway, had caused Fox Midwest to terminate his em-
ployment on September 21, 1949. He charged further that Local 495 was en-
forcing an invalid union-security agreement.
Sid Caraway's bitterness toward his brother increased as a result of the
filing of the charges. Sid regarded Kenneth's invocation of the Taft-Hartley
Act as a move, not only antagonistic to vital interests and established practices
of IATSE Local 495, but one detrimental to the labor movement of Coffeyville in
general. At a Local 495 meeting held on January 20, Sid sought to have Kenneth
withdraw his charges, arguing that his use of the Taft-Hartley law would destroy
the Union which it had taken him many years to build. But Kenneth did not
yield. Lee Hamlin, on the other hand, suffering a change of heart, filed with the
Board's Regional Office on February 3, 1950, a request for the withdrawal of his
charge. He stated in his request that he had signed his charge against the
Union without understanding its meaning or purpose, that the charges were
untrue, and that he desired to dissassociate himself from "a deliberate attempt
to perpetrate an injustice against Sid Caraway and Local Union 495." There-
after, the Regional Director consented to Hamlin's withdrawal of his charge.
But on' March 31, 1950, Kenneth Caraway filed his own charge against IATSE
Local 495, alleging that the Union, in violation of Section 8 (b) (1) and (2),
had entered into an illegal closed-shop agreement with Fox Midwest, and, through
its agent Sid Caraway, had by virtue of that contract caused a reduction in his
worktime for the period from November 30, 1949, to March 24, 1950.`
On April 17, 1950, an informal settlement agreement was executed with the
approval of the Regional Director disposing of the charges earlier filed by Ken-
neth Caraway against the Union and the Employer s - Under the terms of the set-
tlement, the Employer and the Union agreed to post notices providing in
substance that thereafter they would not give effect to such provisions of the
then current contract as vested authority in the business agent of Local 495 to
place men in jobs, and that membership in the Local would not be required as a
condition of employment, except in accordance with the provisions of Section
8 (a) (3). -•
2 According to Kenneth 's testimony , not specifically denied and which I credit in this
respect.
8 Lee Hamlin is a brother of Olin Hamlin and not to be confused with him.
4 It appears that about March 24 , 1950 , Kenneth Caraway was restored to a full-time
shift as an operator.
6 Fox Midwest Amusement Corporation signed as "the Employer." •
. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The transfer of Kenneth Caraway to a maintenance job
Beginning about January 1950 , Kenneth Caraway began to experience some
difficulty in having Sid Caraway, as financial secretary of Local 495 , accept his
union dues . On May 15, 1950, Kenneth , complaining to the secretary -treasurer
of the Local 's International that Sid Caraway had refused to accept his dues,
forwarded dues for 5 months to the International office. About 10 days later,
Kenneth Caraway was transferred from his job as a moving picture operator
to a job as the maintenance man for the three Coffeyville theatres . Although
the maintenance position paid precisely the same wages as the operator's, it
was somewhat less desirable from an earnings point of view because it did not
carry with it the opportunity of drawing overtime pay. Kenneth remained on
the maintenance job until his discharge on November 29, 1950 . The complaint
alleges discrimination in the transfer of--Kenneth to the maintenance job, and
in his continuance in that job thereafter.
When Theatre Manager Fronkier transferred Kenneth to the maintenance
job, he informed Kenneth that he was acting on instructions of District Manager
Haas. Kenneth at first protested the change , expressing his preference for
the operator 's job on which he had worked without interruption for some 5
years. After discussing the transfer with Haas , hewover, Kenneth indicated
his willingness to remain on maintenance work, provided he would not be obliged
to work Saturday and Sunday shifts for Sid Caraway, as his son and other
maintenance men had previously been required to do at times . Haas readily
gave him this assurance . After his original discussions with Fronkier and
Haas, Kenneth never thereafter requested the Companies to return him to an
operator's job.
. Kenneth 's transfer to maintenance was investigated by the Regional Director
for possible violation of the settlement agreement shortly after the transfer was
effected , the 60-day posting period having not yet expired . The Employer ex-
plained that the transfer was necessitated by a reduction in staff flowing from
the temporary closing of the Ismo Theatre. It was explained that management
had decided to terminate the employee youngest in service , Wendell Crawford,
who happened to be on maintenance at that time, and to transfer Kenneth to
.maintenance work because , of all remaining employees , he was most experienced
and best qualified for that job. This explanation satisfied the Regional Director,
and at the end of the -posting period he closed out in accordance ,with the settle-
ment agreement the cases which had been initiated by Kenneth's previously filed
charges.
The General Counsel in effect now contends that the explanation given at
that time to justify Kenneth Caraway's transfer to maintenance was not a true
one, and that the Regional Director was misled by his reliance on it. There is
some'support in the record for this contention .- Thus it appears , for example,
that Wendell Crawford , the former maintenance man, was not in fact terminated ;
that after Kenneth was transferred to maintenance , Crawford worked for several
months as an operator in the place of others who were on vacation ; and that
when the Ismo Theatre reopened in November, Crawford was retained as an
operator . In short, it appears that there was no actual` necessity at that par-
ticular time either to release Crawford or to transfer Kenneth out of the
operator's job he had theretofore regularly held: - •
It is, however , unnecessary to analyze in detAil_ the testimony bearing on this
point,. For even if the view most favorable to the General Counsel were accepted,
I am of the opinion that an unfair labor practice finding could still not be pred-
icated upon Kenneth 's transfer to' a maintenance ' job. To begin with, I am
not persuaded on the present state of the record that there is evidence sufficiently
FOX MIDWEST AMUSEMENT CORPORATION 709
substantial to support an inference of discrimination within the statutory pro-
scription . But there is an even more fundamental reason why an unfair labor
practice finding may not be made. The transfer was effected , as has been' found,
on or about May 25, 1950-May 24 is the date alleged in the complaint . This was
more than 6 months prior to the filing of the charges which gave rise to this com-
plaint . Clearly then , consideration of the transfer itself as an unfair labor prac-
tice is now barred by the limitations proviso to Section 10 (b) of the Act. This
the General Counsel does not dispute . He does assert , however , that because
Kenneth was continued on the maintenance job thereafter , the discrimination
carried into the 6-month period. With this assertion I am unable to agree.
It. might have had validity , had it appeared that after May 30 , 1950, Kenneth
had sought and had been discriminatorily denied an operator 's position.' But
that is not the situation. As has been shown, Kenneth Caraway, prior to May
30, 1950 , upon receiving Haas' assurance that he would not be required to work
for his brother, acquiesced in his transfer and never thereafter requested a re-
transfer to an operator 's position . In these circumstances , it can scarcely be said
that the Fox management engaged 'in any independent breach of its statutory
duty not to discriminate within the statutory limitations period.
For the reasons stated , dismissal will be recommended of the complaint's
allegations relating to illegal discrimination in the transfer of Kenneth Caraway
to a maintenance job.
C. The discharge of Kenneth Caraway
1. Factual analysis
After his transfer to maintenance, Kenneth Caraway continued to press his
claimed grievances against IATSE Local 495. Among other things, he enlisted
the aid of George H. Rice, business agent of the Local Carpenters ' Union and a
vice president of the Kansas State Federation of Labor, to intercede on his
behalf with the Local's International. He also directly requested the Inter-
national Office to investigate the local situation, and complained again that
the Local was refusing to accept his dues. Sid Caraway, as his testimony
reveals, deeply resented his brother 's conduct , correctly construing it as a
personal attack against him.
On September 5, 1950, Sid Caraway instigated the initiation of union expul-
sion proceedings . Kenneth was charged with falsely notifying the International
that the Local had refused to accept his dues and with making statements of
an intent to destroy IATSE Local 495. On October 5, 1950 , after a hearing by
the Local, Kenneth was found guilty of "working detrimental to the organiza-
tion ," and was expelled . Notice of Kenneth 's expulsion was given to Fronkier
as well as to all AFL affiliated locals which were requested to "please act accord-'
ingly." Kenneth's expulsion was taken up at a meeting of the Central Labor
Union on October 24, 1950, and upon Sid's motion, that body voted to send
notice of the expulsion to all affiliated locals and to the Fox Theatres manage-
ment. That same day the Central Labor Union sent notices to all local labor
organizations , to Fronkier , and, in addition , to the president , district manager,
and attorney of Fox Midwest Amusement Corporation.
On November 29, 1950, Fronkier discharged Kenneth Caraway . Fronkier-
simply told Kenneth that District Manager Haas had instructed him on the
telephone from Kansas City to let Kenneth go. Fronkier gave no other reason
for his action . When Kenneth charged that his brother Sid was behind it,
e Cf. Pennwoven , Inc., 94 NLRB 175.
998666-vol. 98-53-46
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fronkier denied that was so .7 That afternoon Kenneth wrote Fronkier, re-
questing a statement of "the reasons and cause of your firing me," but his
letter went unanswered.
The General Counsel asserts, and the Respondents deny, that the real cause of
the discharge was union pressure which was brought to bear upon the Fox
management after Kenneth's expulsion. To support his position, the General
Counsel relies in large part upon the following circumstantial evidence :
(1) The minutes of the Central Labor Union for the meeting of November
14, 1950, report the following action taken on motion of Sid Caraway :
Motion by Caraway seconded by Powell that the'President of the Central
Labor Union go to Kansas City with a delegation from the Motion Picture
Operators and try to find out the truth about their controversy. Motion
carried.
Sid Caraway while testifying in effect admitted that the "controversy" referred
to was that between IATSE Local 495 and Kenneth Caraway. The "contro-
versy," according to him related to the "ridiculous methods" Kenneth had
employed to attack Local 495 and other labor organizations, such as his charge
to the IATSE International that Local 495 had refused to accept his dues.
Sid Caraway's testimony on this point was rambling, vague, evasive and gener-
ally unsatisfactory. Just how it was hoped or expected to have the committee
find out in Kansas City the "truth" about the "controversy," the facts of which
were already fully known to him, Sid Caraway made no effort to explain.
And his explanation of the purpose of the committee, if accepted literally, I
find highly unpersuasive.. He testified that it was his purpose simply to have
some one from higher management "come down to talk to him (Kenneth) and
see if we couldn't straighten the man out through some friendly way that we
could stop him from doing this," since "there has not been anyone in town to
talk to Kenny or go to him to get any satisfaction that he will quit [his activi-
ties], and if he don't want to work the theatres, just to go somewhere else
and get a Job."
According to Caraway, the committee set up by the Central Labor Union
never functioned. There is no evidence to show that the delegation ever actu-
ally called on any Fox official at Kansas City. But there is evidence that a
delegation of the same composition did call on Manager Fronkier. Bernard
Williams, a member of IATSE Local 495, testified that several weeks before
Kenneth's discharge, Sid Caraway placed him on a committee, composed of
Jack Fogel, the president of the Central Labor Union, and 3 members of IATSE
Local 495, to call on Fronkier. At the meeting with Fronkier, Fogel, who
acted as the spokesman, told Fronkier without being specific that Kenneth
Caraway was going around "cussing Fox and Mr . Fronkier," and "if he is going
around saying these things, why, something is going to have to be done about
it." Fronkier refrained from expressing any position at the time.
I The findings made above concerning Fronkier's statements to Kenneth at -the time of
his discharge are based on Kenneth Caraway's testimony in respects not contradicted by
Fronkier . Caraway testified in addition , but Fronkier denied , that at one point in their
conversation Fronkier commented , "I just can't stand it any more , there have been too
many committees calling on me." I do not accept this part of Caraway's testimony. As
will more fully appear below, I regard much of Fronkier 's other testimony as unreliable,
and I believe that the discharge decision was motivated in substantial part by visits to
Fronkier from union committees . Nevertheless , I am inclined to view this part of Caraway's
testimony with some skepticism. Fronkler, I am satisfied , was aware at this time that
the discharge of Kenneth Caraway would probably involve the Companies in a charge of
illegal discrimination and was a matter to be handled with great care. And I believe him
too intelligent to have slipped into such a damaging admission . I am more inclined to
the view that Kenneth Caraway read into the conversation what he believed to be the fact.
FOX.MIDWEST AMUSEMENT CORPORATION 711
(2) The minutes of the Common Laborers Local 193 , of which Sid Caraway
was also business agent, report the following resolution at its meeting of Novem-
ber 17, 1950:
Cecil Wagner reported that Adam Schriner said Sid Caraway refused
to take his dues, said he was going to give his old dues book to Ken Caraway,
and Ken was going to use the government Taft-Hartley law and destroy
the labor union . Motion by Peres that a committee be appointed to call
on Ken and the manager to discuss Ken's action with Adam Schriner.
Seconded by Black. Motion carried.
It was admitted by Caraway that the "manager" referred to was Fronkier.
The purpose of- calling on Fronkier , he testified , was to "see if he could help
them get Kenny off their neck ." But Caraway was vague on the question of
what sort of assistance Fronkier could be expected to supply . Fronkier admit-
ted that the Common Laborers committee did call on him . It was his testimony
that the committee members simply informed him that Kenneth was seeking to
destroy their union and that they wanted to know if there was anything he
could do to help them . Ken Caraway testified , however , that in a conversation
with Caraway along about that time , Fronkier remarked , "Well , I believe that
we are going to have a little trouble. They may picket us ." Ken asked, "Who?"
And Fronkier replied , "The Common Laborers ." Fronkier did not deny making
the remarks attributed to him , but sought to explain them away as having
been based upon information he had picked up in a barber shop , from whom
he could not recall, but probably from one of the barbers . His explanation
lacked conviction. I find it difficult to believe that Fronkier would have accepted
and repeated idle rumor of possible picketing action against his company by
a union with which his company had no dealings and no , dispute, unless, of
course , he already had a foundation for fear from more reliable sources. I
think it far more likely, and I believe and find , that Fronkier 's expressed fear
of picketing by the Common Laborers was predicated at least in substantial
part upon statements made to him by the Common Laborers ' Local committee
which had visited him at about that time.
(3) The minutes of a meeting of Painters Local 211, held on November 20,
1950, contain the following:
Motion by Harry Bonham seconded by Paul Shaw, Jr., we put Fox Mid-
land Theatres on a "We do not patronize " list for hiring a non-union painter.
The events leading to that resolution are as follows : As maintenance man, it was
Kenneth Caraway's duty, among other things, to keep the seats covered , to main-
tain the plumbing and other equipment in good repair , and occasionally to do
minor painting such as painting the rest rooms . Such work had always been
performed by the Fox maintenance man without objection from other craft
locals. However , during the latter part of Kenneth 's employment , after his ex-
pulsion from IATSE Local 495, Fronkier often cautioned Kenneth whenever he
worked with pipe wrenches or the like to take care not to be seen , as Fronkier
did not want to run into trouble. In November 1950, the Ismo Theatre was being
renovated preparatory to its reopening on Thanksgiving Day. The major paint-
ing work was performed by an independent contractor. However , upon specific
instructions of Fronkier , the rest room was painted by Kenneth Caraway. Al-
though aware of this, the other painters present at the premises, members of
Painters Local 211 , made no objection at the time either to Kenneth or to Fron-
kier, nor did Painters Local 211. On November 20, 1950 , Sid Caraway , who had
no official connection with Painters Local 211, appeared at the meeting of that
Local , and before the meeting formally opened addressed its members. As
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears from the testimony of Ross Higgins, a union painter present at that
meeting, Sid Caraway called to their attention the fact that Kenneth, whom he
identified as the maintenance man, had painted the rest room. It itppears "that
Sid Caraway did not confine his remarks to that fact. Higgins, however, was
vague as to what else Sid said, professing to recall only that "He mentioned
there was some trouble coming up and one man had filed a complaint with the
Labor Relations Board." s At the formal meeting held after Sid Caraway's talk,
the above quoted resolution was passed.
(4) The minutes of a meeting of the Central Labor Union held on the evening
of November 28, 1950-the day before Kenneth was discharged-disclose the
following action taken on motion of Sid Caraway :
Motion by Caraway seconded by Powell that a committee be appointed to
call on Jim Fronkier of the Fox Theatres in regards to grievance turned in
by the painters on the Ismo Theatre. Motion carried. Committee, Fogel,
Vey, Rarrett, Price and Bonham.
This is followed by the minutes of a meeting held December 19, 1950-after
Kenneth's discharge-where the following action is recorded :
Motion by Carraway-seconded by Rice to concur in the action of com-
mittee and painters report on theatre job.
Painters report Fox-Midland Theatre taken off the unfair list. Committee
did not concur in Painters action of placing theatre on unfair list. Motion
carried. -
On the same day, a meeting of Painters Local 211 was held, at which, according
to the minutes of that meeting, a motion was made and carried to "take For
Theatres off unfair list."
Where a constituent local of the Central-Labor Union has a grievance against
an employer and. has placed him on an unfair list, it is usual for it *to seek the
Central Labor Union's concurrence in its action. Customarily a grievance'
of that character is reported to the Central Labor Union by a delegate to that'
body from the particular Local that has the grievance. The grievance is then'
investigated by the Central Labor Union which attempts to adjust it before
taking the concurring action of itself declaring the employer unfair and notifying
its member locals accordingly. No explanation was offered as to why in this
case, if the grievance presented to the Central Labor Union was really one of the
Painters' local against the Fox management, the grievance was not presented,
by a delegate of that Local rather than by Sid Caraway. As for Sid Caraway's
testimony that he did not know at the time he made his motion to the Central
Labor Union that the nonunion painting had been performed by his brother, r
find it, like much of his other testimony, unworthy of belief? It is contradicted
not only by the testimony of others, but also by his own assertion at another
point of his examination that "the grievance was Ken Caraway, he was con-
stantly raising hell. We was trying to keep him out of our hair." The reaL
grievance , I am satisfied , was not that a maintenance man unaffiliated with the
8 Higgins was called as a witness by the General Counsel to whom he had given a pre-
trial affidavit , but it was clear from his over -all testimony and demeanor at the hearing'
that he was reluctant to give testimony that night injure the Respondent 's case.. The
other witness on this subject , George M. Deller, financial and recording secretary of
Painters Local 211, called as an adverse witness, was patently vague and evasive, and'
offered nothing beyond what the minutes showed.
e Sid Caraway ' s over-all testimony was garrulous , garbled, contradictory , and evasive,
and marked by what I thought was a conscious effort to conceal or confuse the facts within
his, knowledge. A similar tendency not to reveal pertinent information that could not be
independently established by the General Counsel was apparent in the testimony of-other:
union officials who were called as adverse witnesses by the General Counsel
FOX MIDWEST AMUSEMENT CORPORATION 713
Fainters Local had painted the rest room-such painting had not been objected
,to in the past-but that the-particular maintenance man involved was Kenneth
Caraway whom the Fox Management was continuing in its employ despite the
previous advice of the Central Labor Union that he had been expelled from
IATSE Local 495. On all the evidence, I have no doubt that when the Central
Labor Union adopted Sid Caraway's motion it was aware that the real grievance
concerned Kenneth Caraway rather than the painting of a rest room, and that
the purpose of appointing a committee to take up the grievance with Fronkier
was to impose pressure on Fronkier, in the form of a threat or implied threat of
concurrence in the Painter's unfair listing, to get rid of Kenneth. That the real
grievance concerned the employment of Kenneth and that the grievance was
deemed fully satisfied with the discharge of Kenneth, is confirmed by the fact that
both the Painters Local and the Central Labor Union dropped their grievance
and refrained from further action after Kenneth was discharged 10
Kenneth Caraway testified that on the morning of November 29, 1950, before
his discharge that day, he observed a group of about four or five came out of the
Midland Theatre where Fronkier had his office. Included in this group, Kenneth
testified, were "Jack Fogel, Al Price, and I believe, Glen Latimer is all that I
can recall." Fogel was then president of the Central Labor Union and he as
well as Price were among those appointed the night before on the committee
to call on Fronkier. Kenneth Caraway's testimony in this respect stands un-
contradicted and is accepted. Although in a position to do so, the Respondents
made no effort to explain the presence that morning at the Midland Theatre
of Fogel and Price, who normally had no business there, during a time of day
when no shows were being run.
Except for the testimony just adverted to, in itself inconclusive, there
is no direct testimonial evidence that the Central Labor Union committee called
on Fronkier after its appointment at the evening meeting of November 28.
None of the committee members was called as a witness but Sid Caraway,
the only Union witness questioned on the point, testified, "I don't remember
of the committee calling on Fronkier." It was Sid Caraway's further testimony
that after its appointment- the Central Labor -Union committee came to the
conclusion that the grievance represented merely an extension of Sid's feud
with his brother, and for that reason decided not to see Fronkier or otherwise
perform the function for which it was appointed, reporting that fact to the
Central Labor Union at its next meeting." Sid Cadaway's testimony in that
respect was unconvincing. I think it clear that when the delegates to the
Central Labor Union originally adopted Sid Caraway's motion to appoint a com-
pnittee to call on Fronkier, they were already aware that the grievance grew
out of Sid's differences with Kenneth. Moreover, the minutes of the December
19, 1950, meeting of the Central Labor Union reflect action rather than inaction
by the committee. It seems scarcely likely that Sid Caraway would have been
the one to move "to concur in the action of the Committee" if the committee
had merely reported that it had failed to carry out the mandate of the motion
he had originally made.
Fronkier not only denied that the Central Labor Union committee had called
to see him, but also denied that he had any knowledge until after Kenneth
10I do not credit Sid Caraway's explanation that the grievance was dropped because of
the reluctance of the Central Labor Union to become involved in the "Caraway v. Caraway
fued ." Neither that body nor the Painters' Union had exhibited any such reluctance in
the past.
11 Asked what had led the committee to that conclusion, Sid Caraway testified, "I don't
know unless it was some of Kenny's snooping."
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caraway's discharge of the action taken by the Central Labor Union or of
the earlier action of the Painters Local placing his company on its unfair
list. According to Fronkier, the only union committee that called on him
was that of the Common Laborers Local 193. In that regard, however, I do
not consider Fronkier's testimony reliable, for it is at least at variance with
the credited testimony of Bernard Williams, later given and not specifically
denied by Fronkier, concerning the committee composed of Central Labor Union
President Fogel and members of the IATSE Local 495 which called on him about
the middle of November 1950. Nor do I find impressive Fronkier' s assertion
that it was not until after Kenneth's discharge that he first learned of the
Painters' unfair listing and of its presentation to the Central Labor Union
for concurrence. To begin with, Fronkier's testimony on that point was
vacillating and wholly lacking in conviction. At different points he testified
that his first "absolute" knowledge came at the hearing ; that he learned of it
possibly a week and possibly a month after Kenneth's discharge; that his in-
formation was based on rumors, but from what source he could not say because
he paid no attention to them ; and, finally, that his information came from Sid
Caraway although not until after Kenneth's discharge. I am unable to believe
that Fronkier was not kept informed, at least by Sid Caraway, with whom
he was in daily contact, of what was happening. It is clear that Sid Caraway's
purpose in persuading the Painters' Local to place the Fox Theatres on its "Do
Not Patronize" list and in invoking the Central Labor Union's concurrence ma-
chinery was to impose pressure on Fronkler to get rid of Kenneth Caraway.
As such pressure to be effective required Fronkier's knowledge, it seems to me
inconceivable that Sid Caraway would have withheld from Fronkier information
of what was happening before Kenneth's discharge and communicated it to him
only afterwards.
The inference I draw, that Fronkier was made aware of the union action
instigated by Sid Caraway and was sensitive to the resultant pressures, is
based, however, only in part on my disbelief of the testimony of Fronkier and
Sid Caraway to the contrary. It flows principally from my conviction that
the discharge of Kenneth Caraway at that particular time is not reasonably
explainable on any other basis. That conviction is rooted not only in the
above narrated history of events preceding the discharge, with particular
emphasis on the timing of the discharge in relation to such events, but also
in the unpersuasive reasons offered by the Company Respondents in an effort
to justify the discharge as one for legitimate cause. It is to an analysis of
these reasons that we now turn. _
As has been found above, Fronkier declined to give Kenneth Caraway any
reason for discharging him. This, while not in itself controlling, is a significant
circumstance to be weighed in the balance. It is true, as the Respondent
Companies assert, that an employer is not obliged in law to state a reason.
Yet experience teaches that an employer will not normally refuse to assign
a reason for his discharge action where a legitimate basis exists for it,
particularly where the employee has, as here, served him for upwards of 10
years.
Although silent at the time of the discharge, the Respondent Companies at
the hearing did attempt to establish the discharge action as one for cause.
Fronkier testified that he discharged Kenneth Caraway for two reasons : first,
because he was not properly performing his work in looking after the theatre
seats, and, second, because the controversy between the Caraway brothers was
causing disunity and squabbling among employees on his staff and creating a
bad morale problem. According to Fronkier, the decision to discharge Kenneth
FOX MIDWEST AMUSEMENT CORPORATION 715
was made on November 28, 1950. Fronkier testified that before taking action
he discussed the situation over the long distance telephone with District
Manager Haas, obtained his approval, and discharged Kenneth the following
day because it was the end of the payroll period. Haas corroborated Fronkier's
testimony concerning the time and manner in which the discharge decision
was made. It appears from his testimony that it was not a customary practice
for a theatre manager to consult him with regard to the discharge of employees.
It was done in this case, he testified, because of "extraordinary circumstances."
Questioned as to what he meant by "extraordinary circumstances," he stated
that "our legal department cautioned both Jim [Fronkier] and I to lean over
backwards in the Kenneth Caraway case to avoid any discrimination." Under
cross-examination, Haas fixed the time when he had been told to be careful
about discriminating against Kenneth Caraway as being "to the best of my
knowledge ... sometime in November, but I am not sure." However, on redirect
Haas was led to alter his testimony in that regard. He then stated that he had
been cautioned on April 17, 1950, at the time of the settlement disposing of the
earlier charges filed by Kenneth Carraway.
Elaborating on the first reason assigned by him, Fronkier testified that aboua
the beginning of November, approximately 4 weeks before Kenneth's discharge,
Haas had made an inspection of the Coffeyville theatres and at that time had
criticized Fronkier for the bad condition of the seats that Kenneth's job
required him to keep in good repair.' Within a few days after Haas' visit,
Fronkier added, he himself made a thorough investigation of the condition
of the seats, and on the basis of that investigation reached his decision several
weeks later to discharge Kenneth. Fronkier did not point to anything in
particular occurring on or about November 28 that would account for his
resolution to take action that -day. Nor did he explain why, if he determined
Kenneth Caraway was derelict in his duties at or shortly after Haas' visit, he
waited more than 3 weeks before reporting to Haas and requesting Haas to
approve Kenneth's discharge. Fronkier admitted he never spoke to or criticized
Kenneth Caraway about the condition of the seats during the period between
Haas' visit and Kenneth's discharge, or, for that matter, at any other time.
He also admitted that he never told Kenneth to do any additional work on the
seats. This is scarcely the normal reaction of a supervisor toward an employee
who he believes is not properly performing his work. Fronkier's explanation
that he refrained both from expressing his displeasure over the condition of
the seats and from giving Kenneth work instructions with regard to them
because he had been warned by Company counsel to lean over backwards in an
effort not to discriminate against Kenneth, is simply not credible. True, there
is evidence indicating that the seats in the theatres were not in the best condition.
But undisputed evidence shows that the condition of the seats was bad when
Kenneth was transferred to maintenance. The fact is that the seats were
old and needed replacement, and that in at least one of the theatres they were
replaced shortly after Kenneth's discharge. Significantly the Respondent's
own justification for shifting Kenneth from an operator's job to maintenance
work was that he was regarded as a good maintenance man. No evidence was
introduced to show that Kenneth ever refused or failed to obey any specific
work directions. And there is credible testimony from two disinterested wit-
nesses, J. B. Tackett and Allie Powers, that Kenneth was a competent main-
tenance man who recovered the seats whenever they -needed repair and under
12 It appears that Sid Caraway accompanied Haas and Fronkier on at least part of the
inspection tour. Haas was unable to explain the reason for Caraway 's presence.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose charge the seats were brought into a better state of repair than they
were in at the time he took over the maintenance job. On all the evidence, I am
unable to credit the assertion that Kenneth Caraway was discharged because.
he was not properly performing his duties.
The second reason assigned by Fronkier likewise fails to withstand scrutiny.
Fronkier stated this reason in general terms, but he was vague and indefinite
when asked to be specific. He was unable to supply any examples of disunity
or squabbling among employees other than the Caraway brothers, or otherwise
to support his assertion that the situation had created bad personnel morale.
The only specific example to which Fronkier could point was an occasion 'weeks
before the discharge when an argument of unstated nature and origin had
occurred at the Midland Theatre involving the Caraway brothers as well as
two other persons who were not identified but who apparently were not Company
employees. On that isolated occasion, Fronkier had easily managed to put
an end to the argument. And he had not reprimanded Kenneth for any part
he may have played in it. The record as a whole shows disunity between the
Caraway brothers, it is true. But that disunity was unrelated to and could have
bad no effect on their job performance ; for the nature of Sid's work as an
operator and Kenneth's as a maintenance man was not such as to throw them
into contact in their working relationship or to require on-the-job personal
harmony. The time lag between the isolated incident specified by Fronkier and
the discharge action is a significant circumstance militating against acceptance
of this as a true reason for the discharge. For if that were the reason, the
probability is that Fronkier would have reached his decision at or shortly
after the occurrence of the incident rather than weeks later. Even more
significant, however, is Haas' testimony reflecting that no mention was made
to him of this incident in particular, or of any disruption or organizational morale
in general , at the time Fronkier consulted him about Kenneth's discharge.
This, alone, I think, effectively refutes Fronkier's testimony at the hearing
that he was led to discharge Kenneth for the second reason stated.
2. Concluding findings
To sum up: In my considered judgment, the record as a whole and the fair
inferences to be drawn from it support the following conclusions of fact :
After Kenneth Caraway's expulsion from IATSE, Sid Caraway, as business
agent of that Local, determined-for the same reasons that had led him to insti-
gate Kenneth's expulsion-to induce the Respondent Companies to terminate
Kenneth's job as a maintenance man, a job over which the IATSE in the past
asserted jurisdiction. Because of his union's prior involvement in unfair labor
practice charges, Sid Caraway may have refrained from making an express
demand for Kenneth's discharge. However, he engaged in tactics, the purpose
of which, while perhaps at times thinly veiled, nevertheless had the clear and
unmistakable objective of influencing Kenneth's employer to terminate Kenneth's
job. Thus, Kenneth's membership or nonmembership in IATSE Local 495 was
hot a contractual condition of his employment and should have been a matter
of no concern to his employer. Yet Sid Caraway not only had IATSE Local 495
serve notice of Kenneth's expulsion on Fronkier but, to show that all of organized
labor in Coffeyville supported the Local's action, he also caused the Central
Labor Union to send notices of Kenneth's expulsion both to Fronkier, the local
theatre manager, and to the top company officials in Kansas City as well. When
this brought no result, Sid Caraway spurred on local labor organizations to other
action. On his motion, the Central Labor Union directed the president of that
body to accompany an IATSE delegation to visit company officials at Kansas
FOX MIDWEST AMUSEMENT CORPORATION 717
City regarding Kenneth. In the absence of a satisfactory explanation of the
purpose of the motion, and none was given, it is only reasonable to infer that
the. delegation was designed to appeal to higher company officials to take some
action that the local manager had failed or refused to take with regard to the
employment relationship of Kenneth. The record does not support a specific
finding that Kansas City was visited, but it does establish that this or a like dele-
gation called on Fronkier. At the meeting with Fronkier, the union representa-
tives left no doubt that it was their aim to induce Fronkier to discharge Kenneth.
The delegation, it is true, assigned as their reason that Kenneth had been "cuss-
ing Fox and Mr. Fronkier." A union, however, does not ordinarily go out of its
way to urge an employer to visit disciplinary action upon an employee for dis-
respect toward management. The implications were plain, and one that Fronkier
could not have failed to grasp, that the discharge was being sought for the
Union's own ends, and that the reason given was being offered as a pretext that
might be seized upon to effect the discharge under color of legality. This was
not the only union committee that visited Fronkier concerning Kenneth Caraway.
At about the same time Fronkier also received a committee call from the other
local union of which Sid Caraway was the business agent and dominating figure,
the Common Laborers Local 193. That committee complained that Kenneth
was seeking to destroy its labor organization, and left Fronkier with the impres-
sion that if he provided no help his theatres might be picketed. Here again
direct statements may have been avoided, but the implications were clear.:
Fronkier himself' had no interest in the controversy; his only connection with
the parties to it was that he employed Kenneth ; and he could assist in only one
way-by the exercise of his power of control over Kenneth's employment tenure.
When these committee visits brought no results, Sid Caraway devised other
pressure techniques. He induced Painters Local 211 to place the Fox Theatres
on its "Do Not Patronize" list because Kenneth Caraway had been permitted
to do minor painting work of a kind customarily performed by maintenance
men and which, when performed by a member of IATSE Local 495, had never
in the past been objected to either by the Painters' Local or by the Central
Labor Union. And he followed this up by invoking the Central Labor Union's
machinery for that body's concurrence in the Painters' "Do Not Patronize"
'listing. If concurred in, the adverse effect on theatre patronage might have
proved substantial; and the pending action thus represented a threat to the
business of the Respondent Companies. At that point, Fronkier, after con-
sultation with his superior in Kansas City, discharged Kenneth. After the
'discharge, the Painters' Local removed the Fox Theatres from its unfair listing,
and the Central Labor Union discontinued its concurrence procedures. Fron-
kier 's denial, that he was aware of the action of the Painters' Local and of
the supplementary action pending before the Central Labor Union, was uncon-
vincing.. No reason for the discharge was given Kenneth at the time it was
effected. And the reasons advanced at the hearing have been found implausible.
In the light of the timing of the discharge in relation to the events narrated
.above and inability of the Respondents satisfactorily to explain the discharge
action on any other basis, the only reasonable inference to be drawn from the
entire record is that the Respondent Companies, sensitive to the union pres-
sures Sid Caraway- had brought to bear, capitulated to them. The law
must by now be regarded as well settled that an employer's "acceptance of
the determination of a labor organization as to who shall be permitted to work"
is violative of the Act "where, as here, no lawful contractual obligation for
such action exists." u In discharging Kenneth Caraway, the employing com-
3 8 See Engineers Limited Pipeline Company, 95 NLRB 176, and cases there cited.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panies acted, it is found, as a result of union determination rather than their
own; they thus violated Section 8 (a) (3) and Section 8 (a) (1) of the Act.
And the action of the Respondent Unions in attempting to and eventually
causing the illegal discharge constituted on the part of each of them a viola-
tion of Section 8 (b) (2) as well as Section 8 (b) (1) (A) of the Act. It is
so found.
The question remains : What particular Company Respondents and what
particular Union Respondents are responsible for the respective violations found?
The Company Respondent, Fox Midwest Theatres, Inc., the record shows, is
merely a stock holding corporation which played no part in the unfair labor
practice violations. For that reason the complaint as against it was dismissed
on motion of the hearing. Fox Plains Theatres Corporation was conceded at
the hearing to be the employer according to payroll bookkkeeping records of
both Kenneth Caraway and Fronkier. It is clearly responsible. No like con-
cession was made with respect to Fox Midwest Amusement Corporation, a
corporation which services the theatres operated by Fox Plains. It appears,
.however, that Fronkier, the local manager, was supervised in his operations
by officials of Fox Midwest Amusement; that District Manager Haas, an offi-
cial of Fox Midwest Amusement, had supervisory authority over the hire and
tenure of employees of Fox Plains ; that Haas was in fact consulted and his
.authorization obtained on the discharge of Kenneth Caraway ; and that Fox
Midwest Amusement in effect acknowledged its status as an employer of per-
sonnel on the Fox Plains payroll, by executing the settlement agreement dis-
posing of the earlier charges filed by Kenneth Caraway. On all the evidence,
I am satisfied that Fox Midwest Amusement and Fox Plains shared and exer-
cised substantive rights of control over matters fundamental to the employment
relationship of theatre employees at Coffeyville. I therefore find that they
were joint employers and jointly responsible for the violation of Section 8 (a)
(3) and 8 ( a) (1), as found above. With regard to the Union Respondents
-named in the caption, the complaint was amended at the hearing to delete
reference to Plumbers Local 339. Each of the-others, it is found, participated
-in varying degrees in the eventually successful attempt to cause the discharge
-of Kenneth Caraway.. As they were joint participants in the attempt, they are
here found to be jointly responsible for the violation of Section 8 (b) (2) and
Section 8 (b) (1) (A), as found above.
D. Independent restraint and coercion by IATSE Local 495
Bernard Williams, a member of IATSE Local 495, testified : At the first Local
-meeting following the filing of charges in this proceeding, Sid Caraway advised
the members that within the next few weeks they could expect to be questioned
-by a Board field examiner. After expressing the need of all giving a consistent
story, Sid Caraway questioned each member individually as to whether he
"would stick together with the rest of them." All but Williams agreed to do so.
Williams told Caraway that if a field examiner called on him he would tell the
truth. That meeting was in December 1950. On or, about February 5, 1951,
Sid Caraway approached Williams while he was on duty at the projecting booth
of the Midland Theatre. Sid accused Williams of having given the Board an
affidavit on the case, and asked him to withdraw it. When Williams sought to
evade a direct answer, Caraway became persistent. In the course of his remarks,-
Sid Caraway reminded Williams of his job, his car, and his home, and also sug-
gested to him that if "he didn't like it around here," he should "take [his] card
and transfer it into some other local."
Williams' testimony in the respects outlined above stands uncontradicted and
unexplained. It is credited. The complaint alleges that by threatening Wil-
FOX MIDWEST AMUSEMENT CORPORATION 719
Hams "with loss of employment and other reprisals if Williams did not aid and
assist the Unions," IATSE Local 495 engaged in an independent violation of
Section 8 (b) (1) (A) of the Act. Three questions are involved : Is the Respond-
ent IATSE Local 495 chargeable with the remarks of Sid Caraway? Did the
remarks "contain" a threat or reprisal so as to bring them outside the area of
expression privileged by Section 8 (c) of the Act? If so, were they of a char-
acter proscribed by Section 8 (b) (1) (A) ? I think all three must be-answered
in the affirmative.
As business agent of IATSE Local 495, it is to be inferred in the absence of
other evidence-and there is none-that Sid Caraway was vested with the
powers of a general agent. Sunset Line and Twine Company, 79 NLRB 1497. It
is clear that in making his remarks to Williams, Caraway was acting not merely
in a personal capacity, but in furtherance of the interests of his Local which had
been charged with an unfair labor practice. As this was within the broad scope
of his authority as a general agent, it follows that responsibility for his statements
must be attributed to IATSE Local 495, the principal for which he was acting.
For statements to "contain" threats of reprisal, it is not essential that the
words take the exact form of a direct threat. It is enough if their substance,
considered in the context in which they are uttered, are such as reasonably to
imply reprisal if the requested action is not taken. Sid Caraway's reminder to
Williams of his job, his car, and his home, considered in the context of Caraway's
over-all remarks, was, I am pursuaded, deliberately calculated to convey, and
was reasonably to be understood as conveying, the implication that if Williams
failed to comply with Caraway's request he might expect to lose his job and with
it the fruits of his job-his car and his home. Bearing in mind that Caraway
was the one who had actually hired Williams and that Caraway had already
demonstrated his ability in the case of Kenneth to cause the discharge of
employees he did not want, I am convinced that, realistically assessed, Caraway's
remarks must be construed as containing the further implication that Caraway
would take measures to have Williams removed from his job if Williams refused
to cooperate with him.
Section 7 guarantees to employees, inter alia, the right to refrain from assist-
ing labor organizations. Section 8 (b) (1) (A) protects employees from restraint
and coercion by labor organizations in the exercise of that right. This does not
mean, of course, that a labor organization may not discipline its members for a
failure or refusal to assist it. The proviso to Section 8 (b) (1) (A)-saving
from impairment "the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership therein"-reserves that
right. But while a union may prescribe, enforce, and threaten enforcement of
its own internal regulations relating to membership in its own organization in
order to exact the aid and assistance of its members, it may not go further-in
the absence of a valid and applicable union-security provision-and damage or
threaten to damage a member employee in his job tenure. To threaten an em-
ployee, albeit a union member, with the loss of his job if he fails to assist the
union, is to transgress the statutorily protected right of employees to refrain
from providing such assistance. That is what IATSE Local 495, through Sid
Caraway, its business agent, did here. By such conduct, it is found, IATSE
violated the provisions of Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the activities of the Respondent Companies described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents (other than Fox Midwest Theatres,
Inc. and Plumbers Local 339) have engaged in and are engaging in certain unfair
labor practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondents Fox Plains Theatres Corporation and Fox
Midwest Amusement Corporation have discriminated in regard to the hire and
tenure of employment of Kenneth Caraway, it will be recommended that they
offer him immediate and full reinstatement to the position he held at the time
of the discrimination or to a substantially equivalent'position,14 without prejudice
to his seniority and other rights and privileges."
Having further found that the Respondent Unions (other than Plumbers Local
339) violated Section 8 (b) (2) of the Act, by causing and attempting to cause the
said Respondent Companies to discharge Kenneth Caraway, it will be recom-
mended that the said Respondent Unions notify the said Respondent Companies,
in writing, that they withdraw their objections to Kenneth Caraway's employ-
ment and that they request the Companies to offer Kenneth Caraway immediate
and full reinstatement to his former or substantially equivalent position without
prejudice to his seniority and other rights and privileges.
Having further found that the Respondent Companies (other than Fox Mid-
west Theatres Inc.) and the Respondent Unions (other than Plumbers Local
339) are responsible for the discrimination suffered by Kenneth Caraway, it
will be ordered that said Respondent Companies and said Respondent Unions
jointly and severally make Kenneth Caraway. whole for any loss of pay he may
have suffered as a result of the discrimination against him. Consistent with
the policy of the Board enunciated in F. W. Woolworth Company, 90 NLRB 289,
it will be recommended that the loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from the dis-
criminatory action to-in the case of the Companies-the date of a proper offer
of reinstatement, and to-in the case 'of the, Unions and each of them-a proper
withdrawal of objections to employment. The quarterly periods, hereinafter
called "quarters" shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum equal to that
which these employees normally would have earned for each quarter or portion
thereof, their net earnings (Crossett Lumber Company, 8 NLRB 440; Republic
14 See The Chase National Bank of the City of New York, ,an Juan, Puerto Rico, Branch,
65 NLRB 827.
11 Consideration has been given to the contention of the Respondent Companies that
Kenneth Caraway should not be ordered reinstated, because of certain testimony given by
him at the hearing. Under cross-examination , Kenneth was asked whether he wanted to
go back to work, and answered , "Well, yes." He admitted , however, that at one time
he had felt that even if he had been offered his old job he probably would not have accepted
it; at least "not unless [ he] could have gotten [his] job back as a projectionist later on."
I am unable to agree, that this testimony requires or justifies a departure from the Board's
usual reinstatement remedy. There is no evidence that Kenneth ever communicated to
the Respondents any disinclination to accept reinstatement or that the Respondents were
otherwise led to believe so and to act on such belief to their detriment. Nor may Kenneth
Caraway's testimony be read as an unequivocal declaration that he does not now
desire reinstatement to the job he held at the time of his discharge. As no unfair labor
practice has been found In Kenneth Caraway's transfer from his projectionist position to
the maintenance job, the Respondent Companies will not, of course, be required under the
recommended reinstatement order to offer him his old projectionist job.
FOX MIDWEST AMUSEMENT CORPORATION 721
Steel Corporation v. N. L R. B., 311 U. S. 7), if any, in other employment during
that period . Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter. It is also recommended that the Re-
spondent Companies be ordered to make available to the Board upon request,
payroll and other records to facilitate the checking of the amount of back pay due.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. International Alliance of Theatrical Stage Employees & Moving Picture
Machine Operators of the U. S. & Canada, Local No. 495, AFL ; Coffeyville Central
Labor Union ; Brotherhood of Painters, Decorators and Paperhangers of America,
Local No. 211, AFL ; and International Hod Carriers' Building & Common Labor-
ers' Union of America, Local No. 193, AFL, are each labor organizations within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Ken-
neth Caraway, thereby encouraging membership in the Respondent IATSE Local
495, the Respondents, Fox Plains Theatres Corporation and Fox Midwest Amuse-
ment Corporation, engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the said Respondent Companies have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By causing and attempting to, cause the said Respondent Companies to dis-
criminate against, Kenneth Caraway in violation 'of Section 8 (a) (3) of the,
Act, the Respondent Unions named in paragraph 1 hereof, have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
5. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the said Respondent Unions have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act. -
6. The aforesaid unfair labor,practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondents have not engaged in unfair labor practices, as alleged in
the complaint, by-the transfer of Kenneth Caraway from a moving picture op-
erator 's position to a maintenance -job.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendittions , of a Trial Examiner -of the .National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that : '
WE WILL NOT encourage membership in INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES & MOVING PICTURE OPERATORS OF THE U. S. &
CANADA , LOCAL No. 495 , AFL, or in any other labor organization of our em-
ployees, by discriminating in any manner in regard to their hire , tenure of
employment, or any terms and conditions of employment, except to the
extent permitted by Section 8 (a) (3) of the Act.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed in Section 7 of
the Act.
WE WILL offer Kenneth Caraway immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to any
seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of the discrimination against
him.
Fox MIDWEST AMUSEMENT CORPORATION
Employer.
By -------------------------------------------
(Representative ) (Title)
Dated --------------------
Fox PLAINS THEATRES CORPORATION
Employer.
By --------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix B
NOTICE
To ALL MEMBERS OF (NAME OF SUBSCRIBING LABOR ORGANIZATION TO BE INSERTED
HERE ) AND TO ALL EMPLOYEES OF FOX MIDWEST :'AMUSEMENT CORPORATION
AND/OR Fox PLAINS THEATRES CORPORATION •
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause Fox MIDWEST AMUSEMENT CORPO-
RATION and/or Fox PLAINS THEATRES CORPORATION to discriminate against
their employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT threaten employees with loss of employment because of their
failure or refusal to assist our labor organization in National Labor Relations
Board proceedings.*
WE WILL NOT restrain or coerce employees of said companies in the exercise
of rights guaranteed by Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by Section 8 (a)
(3) of the Act.
WE WILL make whole Kenneth Caraway for any loss of pay he may have
suffered because of the discrimination against him.
-------------------------------
(Labor Organization)
By --------------------------------
(Representative ) (Title)
Dated--------------------
This notice mist remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material,.
* This paragraph is to be inserted only in notice subscribed by IATSE Local 495.