Royal Development Company, Limited

National Labor Relations Board - Board Decisions

Sep 3, 1981

257 N.L.R.B. 1168 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Royal Development Company, Limited and Joseph
E. Schmidt. Case 37-CA-1597
September 3, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 9, 1981, Administrative Law Judge
Joan Wieder issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, counsel for the Gener-
al Counsel filed limited cross-exceptions and an an-
swering brief to Respondent's exceptions, and Re-
spondent filed an answering brief to the General
Counsel's cross-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 2 of the Administrative Law
Judge and to adopt her recommended Order.
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
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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 her find-
ings.
In par. I of the Administrative Law Judge's findings of fact, she found
that Respondent is a Nevada corporation. Respondent excepts to this
finding, asserting that it is a Hawaii corporation and that it admitted same
in its answer to the complaint. Inasmuch as the General Counsel has not
excepted to this assertion and there is no evidence to the contrary, the
findings of fact regarding Respondent's business are hereby corrected to
read that Respondent is a Hawaii corporation.
2 We agree with the Administrative Law Judge that Respondent vio-
lated Sec 8(a)(1), (3), and (4) of the Act by discriminatorily refusing to
rehire Joseph E. Schmidt both because he engaged in union and other
protected concerted activities and because he filed an unfair labor prac-
tice charge with the Board. We note, however, that the Administrative
Law Judge used the causation test set forth in Wright Line, A Division of
Wright Line, Inc., 251 NLRB 1083 (1980), to analyze Respondent's moti-
vation for both the 8(a)(3) and the 8(a)(4) complaint allegations. In the
absence of proof that Respondent relied on any legitimate reason for re-
fusing to employ Schmidt, we find no need to decide here whether the
Wright Line test of dual-motivation discharges is appropriate for analyz-
ing 8(a)(4) cases.
Member Jenkins would not. contrary to the Administrative Law
Judge, rely on Wright Line, to find the 8(a)(3) violation because she
found the asserted lawful reasons fr the discharge to be pretextual. thus
the only genuine reason for the discharge is unlawful, and the Wright
Line analysis, designed to weigh more than one genuine reason, is irrele-
vant and misleading.
257 NLRB No. 149
hereby orders that the Respondent, Royal Devel-
opment Company, Limited, Honolulu, Hawaii, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity 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 ordered us to post this notice.
WE WILL NOT refuse to hire or otherwise
discriminate against employees because they
engaged in protected concerted activity, in-
cluding the filing of grievances under the col-
lective-bargaining agreement and the filing of
unfair labor practice charges with the National
Labor Relations Board.
WE WILL NOT discourage membership in the
Union, or any other labor organization, by dis-
criminating against employees in regard to
their hire and tenure of employment or any
terms and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer Joseph E. Schmidt immedi-
ate employment to a position in which he
would have been employed had we not dis-
criminated against him or, if such position no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or
other rights, and make him whole for any loss
of earnings he may have suffered due to the
discrimination practiced against him, with in-
terest.
ROYAL DEVELOPMENT COMPANY,
LIMITED
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge: This case
was head before me at Honolulu, Hawaii, on August 5
and 6, 1980,' pursuant to a complaint issued by the Re-
'All dates herein refer to 1979 unless otherwise indicated.
1168
ROYAL DEVELOPMENT COMPANY, LIMITED
gional Director for the National Labor Relations Board
for Region 20 on March 14, and which is based upon a
charge filed by Joseph E. Schmidt, an individual, in Case
37-CA-1597 on January 17, as amended on March 11,
1980. The complaint alleges that Royal Development
Company, Limited (herein called the Company or Re-
spondent), has engaged in certain violations of Section
8(a)(1), (3), and (4) of the National Labor Relations Act,
as amended (herein called the Act), by refusing to hire
Schmidt because he filed a charge with the Board, filed
grievances, and engaged in other concerted protected ac-
tivity.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were filed on behalf of the General Counsel and Re-
spondent.
Preliminary Matters
On December I , Schmidt filed a motion to strike Re-
spondent's brief based upon Respondent's failure to serve
him with a copy of its brief in contravention of the re-
quirements of Section 102.42 of the Board's Rules and
Regulations, as amended. Respondent, in reply to the
motion, dated December 12, does not assert that Schmidt
is not a proper party or that it effected service on
Schmidt. Rather, it is concluded that the Board agent
acting on behalf of the General Counsel was Schmidt's
representative and that service upon the Board constitut-
ed service on the Charging Party. Respondent's reply
further noted that a copy of its brief was being forward-
ed to Schmidt in the event he wished to assist the
Board's agent in the preparation of any exceptions to the
decision. In reply, the Charging Party asserts his inde-
pendent right to participate in the proceeding, which Re-
spondent, by its actions, failed to recognize. The Charg-
ing Party claims that the failure to comply with Section
102.42 has prejudiced Schmidt "in [his] efforts to police
Respondent from taking liberties with the record evi-
dence."
In a subsequent correspondence dated December 18,
Schmidt indicated that he received a copy of Respond-
ent's brief several days after he filed the motion to strike
the brief; and alleged that Respondent "has intentionally
withheld a copy from me in the hope of prejudicing my
rights in this case, preventing me from having a copy of
the brief in my personal possession to work with at lei-
sure and, should I be so inclined, to file a reply." The
Charging Party further asserts that a "rapid scan" of Re-
spondent's brief "indicates to my mind that substantial
and excessive liberties have indeed been taken with the
record evidence by counsel for Respondent." The
Charging Party did not file a brief, nor did he request
leave to file a reply brief to discuss the "substantial and
excessive liberties" Respondent allegedly took with the
evidence of record.
Considering that Schmidt did receive a copy of Re-
spondent's brief, albeit late; that the Charging Party did
not file a brief nor indicate an intent to file a brief; and
since the Rules and Regulations do not provide for the
filing of reply briefs, Schmidt's avowed intent to review
Respondent's brief before determining if he would indeed
file a reply is a course of action not contemplated in the
applicable Board Rules and Regulations; and consequent-
ly, it is concluded that Schmidt failed to show that he
was prejudiced by Respondent's failure to serve him
with a copy of its brief. Under these circumstances, Re-
spondent's failure to timely serve Schmidt with a copy of
its brief does not require that the brief be struck. Ac-
cordingly, the motion is denied.
Another preliminary matter relating to briefs is the
late-filed addition to Respondent's brief, dated October
22, 1980, and received October 27. Although there was
no motion to strike filed by any party regarding this ma-
terial, in order to insure rational and timely pleadings
and processing of the proceeding, this material will not
be considered in this matter.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a Nevada corporation
which operates a chain of movie theaters out of its main
office and place of business located in Honolulu, Hawaii.
It further admits that during the past year, in the course
and conduct of its business, its gross volume exceeded
$500,000 and that annually it purchased and received
goods and materials valued in excess of $10,000 from
suppliers located outside of the State of Hawaii. Accord-
ingly, it admits and I find that it is an employer engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that International Alli-
ance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada,
AFL-CIO, Local No. 665, hereinafter called the Union,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, between January , 1973, and August 15,
1979, operated the Sunset Drive-In, the Waialae Drive-
In, the Royal in Waikiki, the Royal Marina, the King,
and the Queen Theaters.2 The Charging Party worked
for Respondent at all their theaters since 1973 and was
assigned as a regular projectionist until November 1978,
when he was laid off because Respondent's operating
schedule was reduced. 3 After November 1978, Schmidt
2 According to Frank R. Miller, a vice president and an admitted su-
pervisor with Respondent, after August 15. 1979, the Company ceased
operating the Queen Theater. Operations of the Queen Theater were con-
ducted for a portion of the time here pertinent by another company,
Golden Harvest, pursuant to a lease agreement which included a sublease
by Golden Harvest to Yuclan.
3 There is no contention that this layoff was improper
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was employed by Respondent as a regular relief and
casual projectionist until August 15, 1979. 4
After Schmidt's layoff by Respondent in 1978, Vito
Petroni s scheduled him "for a regular 6 number of hours
at the Queen Theater." The Union does not have a con-
tract with the operator of the Queen Theater. The
record does not clearly reflect the actual ownership
and/or operator of the Queen Theater on the dates perti-
nent herein. Initially, Miller testified that beween Janu-
ary 1, 1977, and August 15, 1979, Royal Development
operated the Queen Theater and, after August 15, 1979,
Respondent severed its relationship with the Queen The-
ater. The actual operation of the Queen Theater appears
to be pursuant to a lease between Respondent and
Golden Harvest Hawaii, Ltd., who operated the theater
during Schmidt's 1978 and 1979 employment until ap-
proximately August 14, 1979, when the lease expired.
The theater was then sold to Yuclan. The new operator
of the theater fired Schmidt. No representative of either
Golden Harvest or the new owner, Yuclan, testified and
there is no allegation that Schmidt's discharge on or
about August 15, 1979, from, employment at the Queen
Theater violated the Act.
Schmidt's immediate supervisor during 1978 and 1979
was Petroni, the Company's chief projectionist, who pre-
pared the work schedule for the theaters owned by Re-
spondent plus those theaters owned by Golden Harvest,
Nippon, and Yuclan. 7 During March or April 1979,
Schmidt was assigned work as a relief projectionist by
Petroni at the King Theater to act as partial replacement
for the regular projectionist, Derek Parker, who was ill.8
Parker died without returning to work and his full
schedule was reassigned to regular projectionist David
Ohata9 on August 15, 1980. This reassignment terminated
Schmidt's employment with Respondent and he has not
been rehired. The General Counsel contends that the
failure to rehire Schmidt is motivated by his having en-
gaged in concerted protected activity.
4 As defined in sec. 13 of the contract between Respondent and the
Union:
(a) A regular projectionist shall be defined as a projectionist who is
regularly assigned a minimum of 30 hours per week during a calen-
dar month. Each regular projectionist shall be offered a minimum of
36 hours per week.
(b) A regular relief projectionist shall be defined as a projectionist
who is regularly assigned a minimum of 3 shifts per week during a
calendar month. Medical and dental benefits shall be on a contribu-
tory basis.
(c) All other projectionists shall be deemed casual projectionists and
shall not be eligible for fringe benefits, except the pension plan.
5 Petroni is Respondent's chief projectionist and the Company admitted
the allegation in the complaint that he is a supervisor within the meaning
of the Act.
6 Thirty hours a week. However, the Queen was not considered to be
one of Respondent's theaters.
' The Union does not have a hiring hall; so, according to Petroni, pur-
suant to the Union's request, since 1972 Petroni used the list he had avail-
able through the Company to schedule the projectionists for these other
theater owners.
I Two other projectionists were also assigned to replace, in part,
Parker.
'Ohata is senior to Schmidt and the assignment of Parker's schedule to
him is not alleged to be violative of the Act.
B. The Alleged Concerted Protected Activity
The agreement between the Company and Union pro-
vides, in article IV, for a grievance procedure. Pursuant
to this provision, Schmidt presented a series of griev-
ances and/or complaints about Petroni and the method
he employed in scheduling projectionists. The first griev-
ance was filed with Petroni. Petroni was not listed as a
member of the grievance committee. It appears that prior
to presenting these complaints Petroni and Schmidt were
friends. During 1978, commencing around June 15,
Schmidt mailed a grievance to Petroni asserting that one
projectionist, Arthur Wheeler, was scheduled to work
between 50 and more than 60 hours a week at the Royal
Marina Theater, where Schmidt was working only an
average of 24 to 26 hours per week. Schmidt protested
what he referred to as the favoritism being shown
Wheeler to his prejudice at the theater and he requested
that he be assigned about 40 hours per week.
On June 20, 1978, Schmidt wrote Miller, stating that
he was filing a grievance protesting the handling of the
June 15 grievance by the chief projectionist, Petroni,
who failed to supply a written response, and when
Schmidt tried to discuss the matter with Petroni tele-
phonically, Petroni assertedly stated, "You have no right
to file any grievance" and then "slammed the phone and
hung up on me." A copy of the original grievance was
enclosed and Miller was informed that Schmidt request-
ed that the June 15 grievance be handled at the second
step of the grievance procedure. Copies of both these let-
ters are sent to the Union's business representative,
Sammy K. Arashiro.
On June 30, 1978, Schmidt sent another letter to
Miller stating that he had not received a reply to his
June 20 grievance or the initial grievance of June 15,
1978. The letter continues as follows:
I expressed concern to you as to whether or not
Mr. Petroni's actions represented Company policy
and a carrying out of your intentions as to the treat-
ment of employees. To elaborate on this further,
sometime during the month of March, I was verbal-
ly informed by Mr. Petroni that he was-and I
quote verbatim-"Second in command in the Com-
pany" under yourself. It is reasonable to assume
that employees will accept statements made to them
by supervisors to be correct, especially in the ab-
sence of any official memorandums to the contrary
from management.
I must emphasize to you again that I am con-
cerned as to whether or not Vito Petroni's actions
represent Company policy. This is going to be one
of the factors which will determine how I will fur-
ther pursue the case of the initial grievance, if it be-
comes necessary for me to do so.
You are presently engaged in the task of trying
to rescue a floundering Company and getting it on a
paying and profitable basis. As a man with a person-
al background in small business, I fully understand
more so than most people, probably, what you are
going through and what some of the problems are. I
1170
ROYAL DEVELOPMENT COMPANY. LIMITED
certainly don't want to be one who will add to
these problems.
Although I don't have a direct financial interest
in Royal Development, if I did there is something
over which I would be extremely concerned at the
present time, in the light of facts which are known
to me. And it is this: Vito Petroni occupies a full-
time position with a competing company. I "guessti-
mate" that he will earn about $25,000 or more this
year from Consolidated Amusement. While I cannot
say for certain whether or not there is a conflict of
interest situation, there is an old saying: "No man
can serve two masters."
While there is no documentation relative to the dispo-
sition of these grievances, Schmidt asserts that prior to
sending the June 30, 1978, letter, he received a letter
with a different schedule for the projectionists at the
Marina Theater, which he considered to be in response
to the June 15 grievance. However, when asked if the
June grievance was resolved under the grievance arbitra-
tion provision of the contract, Schmidt stated that the
"Union sided with the Company and ruled against me."
On July 26, 1978, Schmidt filed an unfair labor prac-
tice charge alleging that the Company reduced his hours
of employment and changed his job classification because
of his union activity, including the filing of grievances;
and that for the preceding 6 months, a member of man-
agement has functioned as the union shop steward in vio-
lation of Section 8(a)(l), (2), and (3) of the Act. On
August 16, 1978, the Regional Director of Region 20 dis-
missed the charge. The dismissal was not appealed.
On October 6, 1978, Schmidt sent a letter to Herbert
Alameda, president of the Union, demanding that the
Union file a written grievance on his behalf with the
Company seeking 3-1/4 hours' backpay since he received
an assignment and pay for only 32.75 hours while the
contract provides that a regular projectionist be offered
at least 36 hours' work per week.
On October 9 and 11, 1978, Schmidt made a similar
written demand of Alameda for 3-1/4 hours' backpay for
the pay periods ending October 3 and 10, respectively.
On October 12, a similar demand was addressed by
Schmidt to Alameda for the months of May through
September plus the weeks of October 3 and 10, 1978.
The total backpay claimed was $855.84.
On October 13, Miller hand delivered to the Union the
following missive:
GENTLEMEN:
Since it has come to our attention that Joseph
Schmidt has once again filed a grievance against us,
we would like to state that this grievance has no
merit and is simply a repeat of previous grievances
which have no foundation.
According to our contract, Mr. Schmidt is enti-
tled to and we must give him thirty-six (36) hours
of employment each week. The scheduling of these
hours is our prerogative according to the contract.
We feel that there has been no attempt on our
part or by our representative, Vito Petroni, to not
show good faith and cooperation with Mr. Schmidt;
rather, we have made him friendly overtures and
offered him additional shifts at various theatres,
which was unsatisfactory to him. °
Mr. Schmidt's contention represents an attempt
to subvert the contract and his continual harrasse-
ment [sic] " can no longer be tolerated.
On October 17, 1978, Schmidt demanded that the
Union file a grievance for 3-1/4 hours' backpay for the
pay period ending October 17, 1978. Similar written de-
mands were made on October 24 for the work week
ending October 24, and October 31 for the work week
ending October 31. There was no documentary evidence
persuasively demonstrating that these letters were or
were not communicated to the Company unlike the prior
grievances mentioned in Miller's October 13, 1978, letter.
Miller, on November 17, 1978, sent the following
letter to the Union:
Gentlemen:
Due to the discontinuance of the matinee policy
at the Marina and Royal Theatres, there will be a
reduction in the number of work shifts available to
the regular projectionists. Therefore, we have had
to eliminate all casual and relief projectionists. It
has also become necessary to change the status of
Joe Schmidt from that of a "regular" projectionist
to that of a "regular relief' projectionist in accord-
ance with Section 10 of the contract referring spe-
cifically to his lack of seniority; he being the last
man hired.
We are preparing a new work schedule for all of
our theatres and you as well as the projectionists
will receive the new schedule one week prior to the
effective date.
It would be appreciated if you would convey the
above to Joe Schmidt by a copy of this letter.
The last paragraph of this letter is indicative that Re-
spondent had cognizance of Schmidt's grievances and
infers knowledge of the grievance filed subsequent to
October 13, 1978.
During the summer of 1979, approximately in July,
Schmidt informed other projectionists that a memo
issued regarding the volume to be set while showing the
film "Rocky" should not have to be followed, that each
projectionist should determine the appropriate sound
level. This activity by Schmidt was related to Petroni by
several of the projectionists. As will be discussed more
fully hereinafter, Schmidt was characterized by Petroni
as constantly complaining about regulations, the rules set
by the Company stating "how projectionists should oper-
ate, and complaining that Petroni's scheduling of projec-
tionists was based upon favoritism." Schmidt testified,
without refutation, that he continued to complain to Pe-
troni that he was practicing favoritism in his scheduling
to Schmidt's disadvantage from June 1978 until August
"' The number and nature of these offers were not mentioned on the
record.
" The person or persons assertedly harassed were not disclosed on the
record.
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1979. In addition to complaining about favoritism in
scheduling, Schmidt complained to Petroni about Petroni
being overbearing and intolerant.
C. The Alleged Improper Refusal To Hire Schmidt
While Schmidt was still working at the Queen The-
ater, Respondent hired, in March or April, three projec-
tionists on a casual basis to substitute at the King Theater
for Derek Parker, who had become ill. Schmidt was one
of the casual projectionists employed at this time and he
was given two of Parker's six shifts. The testimony re-
garding what occurred after Schmidt was employed as a
casual projectionist at the King Theater is very disparate.
It is undisputed that in July 1979 there was a change
in the shift schedule at the King Theater, and one of
Schmidt's shifts was assigned to David Ohata, who was
senior to Schmidt. Shortly before August 15, Petroni
told Schmidt that all of Parker's shifts were being given
to Ohata who was employed by Respondent as a regular
projectionist. Parker had died leaving an opening for a
regular projectionist at the King Theater which Ohata
was assigned. The date and cause of Parker's death was
not established on the record. It is undisputed that
Schmidt was the last full-time projectionist laid off by
the Company.
1. Schmidt's version of the events leading to his
termination and subsequent occurrences
According to Schmidt, in March or April 1979, Pe-
troni telephonically informed him that Parker was on
sick leave and that there appeared to be an opening for a
full-time projectionist and suggested that Schmidt return
to Royal Development on that basis. Schmidt inquired if
there actually was a permanent opening since Parker was
on sick leave. Accordingly, Schmidt suggested that he
return to work at the King Theater on a part-time basis
until the matter of Parker's return was resolved. Petroni
adopted Schmidt's proposal. Shortly before August 15,
Petroni called Schmidt and told him that David Ohata
had requested and was being given Schmidt's only shift
at the King Theater for Ohata had seniority. No other
reason for the schedule change was given and Schmidt
did not file a grievance about the loss of employment for
he did not know that there was a possibility of impropri-
ety of motive in the Company's decision at that time. 12 It
'2 Art. , sec. 10, of the contract provides as follows:
Seniority shall be based on continuous service as a regular projec-
tionist with ROYAL DEVELOPMENT COMPANY, LIMITED
and its predecessor. When a regular relief projectionist is classified as
a regular projectionist this projectionists past years of continuous
service shall be recognized and credited toward seniority on the
basis of total hours worked. Each 36 hours worked shall be equiva-
lent to one () week seniority. When such seniority is equal, the date
of employment with the old Consolidated Amusement Company,
Ltd. shall determine seniority. All layoffs and rehiring of employees
under this agreement shall be in accordance with the rule of senior-
ity; that is. on a layoff, the last employee hired shall be the first to be
laid off, and on a rehiring, the last employee laid off shall be the first
to be rehired, provided that the employee is qualified to perform the
requirements of the job. The Company shall determine the qualifica-
tions of all employees for the job and shall consider recommenda-
tions from the Union. Where all of the qualifications (such as ability,
performance, punctuality. attendance, physical and mental fitness)
are relatively equal, seniority shall govern.
is undisputed that Ohata is senior to Schmidt and he was
employed by Respondent as a full-time projectionist
working at two drive-in movie facilities owned by Re-
spondent prior to assuming Parker's duties. Petroni in-
formed Schmidt that he should not worry about the loss
of the shift because he would be making up a new shift
and would schedule Schmidt to work somewhere.
On August 15 or 17,'3 Schmidt telephoned Petroni at
the Pearl Ridge Theater and inquired when he would be
scheduled for more work for Royal Development.
Schmidt was discharged from his position at the Queen
Theater on or about August 14. At that time, Petroni
told Schmidt that he would be unable to give him any
work with Royal Development because "Mr. Miller was
thoroughly and completely fed up with me and did not
want to have anything further to do with me . .. that I
had dragged him [Miller] through hell with all that non-
sense with the National Labor Relations Board, and I
was completely wrong in all of that and I had no case to
begin with.... He [Petroni] said that I had caused Mr.
Miller an enormous amount of trouble in the past . . .
that Mr. Miller had a file on me three inches thick at the
office, and I asked Mr. Petroni what was contained in
this file, and I was told that that was none of my busi-
ness." Petroni did not define the "trouble" Schmidt
caused by reference to specific grievances, he only speci-
fied the filing of a charge with the Board. Schmidt as-
serts that Petroni did not say during this conversation
that either Miller or Petroni did not want to reemploy
Schmidt because of the accusations he made concerning
Petroni, nor was there any reference to Schmidt's com-
petence as a projectionist. The Charging Party denies
telling Petroni to lay off employees to make a place for
him during this conversation, claiming that he simply in-
formed Petroni that he felt he had seniority over some
casual or relief operators who had been scheduled to
work and he should be given their shifts. It is undisputed
that the contract does not require consideration of se-
niority in hiring casual and relief projectionists. Schmidt
asserts that Petroni, during earlier conversations, indicat-
ed that he considered seniority in scheduling casual and
relief projectionists. However, he did recall that Petroni
stated during this conversation that he believed that the
Company would be subject to grievances if he "bumped"
employees to make room for Schmidt.
Also on August 17, 1979, Schmidt filed a grievance
with Miller which stated:
A few days ago, I attempted to discuss this with
Mr. Petroni in a telephone conversation. Mr. Pe-
troni said: "I will be unable to ever get you a full-
time position or give you any work with the Com-
pany again because Mr. Miller is completely fed up
with you and doesn't want to have anything what-
soever to do with you. You have caused him an
enormous amount of trouble in the past and we
0 Schmidt was unclear as to the dates some of the conversations oc-
curred however, given the number of conversations and the elapsed
time, such lack of accuracy, standing alone, does not destroy or impair
his credibility.
1172
ROYAL DEVELOPMENT COMPANY, LIMITED
have a file on you three inches thick at the office."
[Emphasis supplied.]
Mr. Petroni has hired a considerable number of
other projectionists. I have both Company seniority
and Union seniority over all of these individuals,
and my rights of seniority conveyed under the col-
lective bargaining agreement have been unilaterally
and summarily denied and taken away from me by
Mr. Petroni.
I hereby protest the apparent termination of my
employment with the Company by Mr. Petroni, and
ask that I be immediately restored as a Regular Pro-
jectionist with the Company, receiving full fringe
benefits.
As Mr. Petroni is your official spokesman and to
all visible appearances possesses full management
authority for the Company, I also desire to have an
opportunity to discuss your attitudes towards me (as
expressed for you by Mr. Petroni), with you in
person, in a meeting at which the Union Steward,
Henry Yamamoto, shall be present, and at least one
officer of the Union. I am unable to understand
your attitude, I believe it is completely unjustified,
and if it is truly as it has been represented to me, it
may be the product of inaccurate information given
to you.
I also desire to be given the opportunity to exam-
ine the purported file "three inches thick" that is
maintained on me in the office, in order that any
misinformation therein may be corrected.
The next conversation between Schmidt and Petroni
occurred on or about August 18, 1979.1' Schmidt claims
Petroni indicated he was dissatisfied with his "situation
in life," that he was "tired of doing Frank Miller's dirty
work, and he was tired of being lied to by Miller."
There was no elaboration concerning the cause of the as-
serted dissatisfaction. Petroni then repeated "that there
would be no work for [Schmidt] in Royal Development
. . . he emphasized again that I was not to be hired be-
cause of all the 'trouble' I've caused." Schmidt then in-
quired if his work had been unsatisfactory and requested
Petroni to tell him if anything was wrong with his work.
Petroni reiterated his prior statement that Miller had a
3-inch thick file on Schmidt.'5 Petroni also stated the
question of Schmidt's reemployment was now out of his
hands and was an issue solely between Schmidt and
Miller. Also during this conversation, Petroni, according
to Schmidt, stated that there was nothing seriously
wrong with his work. Schmidt then informed Petroni
that the issue of his competence could be very important,
and he may ask Petroni to testify on his behalf one day.
In reply, Petroni said: "[I]f he was ever asked he could
verify that I [Schmidt] was a competent projectionist." It
was also asserted that Petroni said, "he had been in-
" Schmidt's affidavit does not mention a conversation occurring on
August 17; it is probable that the Charging Party confused these conver-
sations and that this conversation occurred on August 18. Schmidt indi-
cated that he confused the dates and subject matter of these conversa-
tions.
5 During a subsequent conversation, Schmidt again asked Petroni what
the file contained and was told only his letters and complaints, nothing
else, that there was nothing derogatory in the file
structed by Mr. Miller that I was not to be hired, and I
was not to be scheduled anywhere."
On August 23, 1979, Miller responded to Schmidt's
August 17 grievance as follows:
Your request for immediate restoration as a regu-
lar projectionist with Royal Theatres is being
denied. Seniority governs the granting of preference
of employment only when all qualifications of all
candidates for the position are relatively equal.
Such is not the case in your situation and I shall ex-
ercise and accept the responsibility for the right to
hire Royal's projectionists.
I cannot respond to the other conclusions, refer-
ences, conversations and attitudes contained in your
letter as they do not relate to facts nor was I pres-
ent or a party to such inter-actions between yourself
and Mr. Petroni.
On August 25, Schmidt again telephoned Petroni to
confirm his prior opinion about the quality of Schmidt's
work and Petroni told him "that there is nothing that
could possibly be so wrong with my work as a projec-
tionist to justify the way I was being treated." Schmidt
then repeated his inquiry as to why he was not being
hired and Petroni said he "was not to be rehired because
he [Petroni] had been told by Mr. Miller that I [Schmidt]
was not to be scheduled. "They then discussed the
schedule Petroni was preparing, to be effective Septem-
ber 1, when Petroni said, "that in his opinion I was the
projectionist who should be working whatever relief or
vacations that might be available and that he was going
to put my name down on their schedules with a note in-
dicating that I was the projectionist who ought to be
working. But he said that Miller would not like this."
Also during this conversation when the subject of
Schmidt being scheduled for work was again raised, Pe-
troni said, "I am out of this now and it's between you
and Miller." Additionally, Petroni indicated that the
Company's file on him did not contain any derogatory
material.
Subsequent to August 25,16 Schmidt and Petroni had
several conversations about the grievances he filed and
during one discussion Petroni stated that there would not
be any work for him. Also during this conversation Pe-
troni stated that Schmidt did not have seniority. Schmidt
also testified to various other conversations occurring in
September and October during which the Company ap-
parently took the position that seniority was not in issue
but rather that Schmidt was not qualified. According to
Schmidt, the question, by the Company, regarding his
qualifications did not arise until well after he was told he
would not be reemployed on August 15.
During his testimony Schmidt admitted that he and
Petroni had strongly differing opinions on some points
but that they could get along. Schmidt did not know of
any other projectionist for Respondent that accused Pe-
troni of showing favoritism in scheduling. From June
1978 to August 1979, Petroni never complained or ex-
"s Schmidt could not recall the exact dates: he opined one conversation
occurred a few days before September I I
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressed dissatisfaction about Schmidt's work as a projec-
tionist, although once Petroni mentioned that Schmidt
should make an effort to be at work on time and Petroni
did make an occasional remark about Schmidt's neatness
at his worksite. The approximate dates of these remarks
was not a matter of record, hence the inference that
these remarks are supportive of Respondent's assertion
that Schmidt's work was unsatisfactory cannot be made
for their relevance as to time and import has not been
established.
2. Respondent's version of the events leading to
Schmidt's termination and subsequent occurrences
Prior to discussing Respondent's rendition of the facts,
the validity of Petroni's affidavit, particularly page 5a,
will be determined. Throughout much of his testimony,
Petroni attempted to disavow portions of the affidavit
presented by him to the Board's agent during the hear-
ing. In particular, Petroni contends that he did not make
the statements on page 5a thereof. This disclaimer is not
credited based upon Petroni's admission that the name
Herb Alameda was written on page 5a by his hand; the
admission that initials appearing next to two written
modifications on the page were his, although he would
not admit to writing these initials; the fact that the affida-
vit would not make sense substantively without this
page; and the fact that Petroni tried to disavow or miti-
gate the import of this as well as other portions of the
affidavit although he admitted being instructed to read it
carefully before signing and stated that he complied with
those instructions. Therefore, page 5a of the affidavit is
found to be an original integral part of the statement Pe-
troni made to a Board agent.
According to Petroni's testimony, when Parker
became ill, Schmidt was one of several relief and casual
projectionists scheduled to assume Parker's shifts. Ohata
was one of those working some of Parker's shifts at the
King Theater as well as working shifts at two of the
Company's drive-in theaters. It is undisputed that Ohata
had more seniority with the Company than Schmidt.
The third projectionist that was assigned to assume a
portion of Parker's work was Jack Hazel, who had been
working as a relief operator at the King Theater about a
year before Parker's illness, or since late 1977 or early
1978.
Contrary to Schmidt's testimony, Petroni asserts that
he did not offer Schmidt Parker's shifts as a regular pro-
jectionist until after Parker died. In support of his ver-
sion, Petroni averred that he did not know whether
Parker would return to work since he did not know the
nature of the illness, hence he had no opening to fill.
Since Schmidt was the last regular projectionist laid off,
Petroni decided that he had to offer him Parker's shifts
when the opening did occur. Ohata, at the time of Park-
er's death, was number 4 on the seniority list while, ac-
cording to Petroni, Schmidt was number 12.
Schmidt, Petroni asserts, refused to take the regular
projectionist position at the King Theater because he had
the job at the Queen Theater. Accordingly, Ohata was
offered the regular projectionist position at the King
Theater and Hazel was retained as the relief operator.
Schmidt lost the two shifts he had been working at the
King; one was assumed by Ohala in July, and the second
by Ohata on August 15, 1979.
Why Ohata, who was very senior to Schmidt, was not
offered the job initially was not explained on the record.
Also unexplained is why Schmidt, who was working at
the Queen Theater which, although unsure, Petroni be-
lieved "would count as seniority for Royal Develop-
ment,""' required reinstatement over Ohata on a priority
basis. Another unanswered matter is that Petroni, in his
affidavit, mentioned that Joe Schmidt simultaneously
worked at two theaters on a full-time basis during 1975;
but for some unexplained reason he would or could not
duplicate this work schedule in 1979. Petroni indicated
that generally when he offers shifts to projectionists, he
attempts to fit in existing assignments with newly sched-
uled work and failed to state that a similar practice was
not possible in the case of Schmidt's work at the Queen,
and the offer of regular work at the King. In fact, the
genesis of Schmidt's complaints was the seeking of addi-
tional scheduled hours, and no basis for a change in this
attitude was demonstrated herein.
Initially, Petroni testified that when he gave Ohata the
full-time projectionist job at the King, he offered
Schmidt the relief shifts Ohata was previously assigned
at the drive-in theaters and asserts that Schmidt stated he
did not want the relief shifts, that he wanted to work at
the King or Marina Theaters. Petroni clearly testified
that he offered Schmidt Ohata's relief shifts when he
gave Ohata the full-time job at the King Theater. How-
ever, later in his testimony, Petroni stated that after of-
fering Schmidt the full-time position, which he turned
down, the Company met its contractual obligations to
him and there was no longer any work available for him,
they had no further obligations to him. If there was no
work available and Respondent had met all its responsi-
bilities to Schmidt solely by offering him the regular po-
sition at the King, then why did Petroni claim to have
offered him Ohata's regular relief schedule. Furthermore,
Petroni later testified that the Company offered Schmidt
a lot of different shifts at the time Ohata took over Park-
er's regular projectionist position, then testified he of-
fered him the two shifts formerly handled by Ohata, one
at the Royal Sunset and the other at the Waialae; subse-
quently, he modified his prior testimony and said he did
not recall stating he offered Schmidt a lot of different
positions, and did not recall exactly what was offered, if
anything, after his alleged refusal of Parker's job. This
inconsistent contradictory testimony, as noted herein-
after, leads to an inference that the decision to not hire
Schmidt was improperly motivated.
After Schmidt lost his position at the Queen Theater,
Petroni stated that he could not offer him any position
because there was no work for him in August 1979.
However, in his affidavit, Petroni stated:
Beginning in August 1979 and to the present time as
I have already mentioned certain opportunities for
employment have come up as a relief projectionist.
I probably would have scheduled Joe Schmidt for
' Page 2 of Petroni's affidavit.
1174
ROYAL DEVELOPMENT COMPANY, LIMITED
this work except for the fact that the company no
longer wants to employ him.
Petroni admitted telling Schmidt that Miller no longer
wanted him working for the Company, "for Mr. Miller
was aggravated with Mr. Schmidt because of his con-
stant complaining and his harassment of Mr. Miller," but
denies ascribing as the basis for the decision not to hire
Schmidt reasons such as his filing charges against the
Company with the NLRB or filing grievances. On page
5a of Petroni's affidavit, the following statement appears:
There are essentially two reasons why Royal De-
velopment does not want Schmidt as an employee;
one, Mr. Miller has told me he has grown tired of
all the trouble Schmidt has caused over the years.
This trouble has resulted in Schmidt filing griev-
ances against the company as well as charges
against the company with the NLRB. Miller has
told me he is not upset over the fact that the griev-
ances and NLRB charges are filed by Schmidt but
rather that the grievances and the charge have no
basis in fact and that the allegations made by
Schmidt in the grievances and the NLRB charge
were completely untrue. In fact all of Schmidt's
grievances have been found to lack merit and the
NLRB charge was dismissed for lacking merit.
Furthermore, Petroni admitted telling Schmidt that
Miller had informed Petroni that Miller had grown tired
of all the trouble Schmidt had caused over the years.
The affidavit continues as follows:
The second reason why the company no longer
wishes to employ Joe Schmidt is because, in my
opinion and in the opinion of Frank Miller, he is
just not a competent projectionist. Certain incidents
have occurred over the past years that have led us
to draw this conclusion. Some of the matter I have
talked about already. For instance, Joe Schmidt
seems to occupy a lot of his time in the booth with
some sort of personal projects. For instance, I know
that at some of the locations he has brought in a
typewriter and he will do typing while he is in the
projection room.
Although Petroni denies Schmidt's contention that the
chief projectionist considered him competent, Petroni
never claimed that he told Schmidt that one of the con-
siderations in the decision to not hire him was lack of
competence or any other reason related to the perform-
ance of his duties as a projectionist.
Both Miller and Petroni attempted to explain the deci-
sion not to hire Schmidt because of Schmidt's repeated
harassment of Petroni. Miller depicted the harassment as
being much more problematical than Petroni. For exam-
ple, Miller testified that Petroni often bothered Miller
during the weekends to complain about Schmidt's trou-
blesome complaints. Petroni's testimony did not entirely
support Miller's statements. Although Petroni did say
that he was becoming very upset over Schmidt's repeat-
ed complaints, only Miller initially raised the specter of
Petroni resigning his position as chief projectionist, and
Petroni did indicate that he would have assigned
Schmidt some work if not for Miller's directive that
Schmidt not be hired, a statement that tends to dispel
any visions assertedly held by Petroni of inability to
work with Schmidt or of a decision by Petroni to avoid
all future contact with Schmidt, even if he had to resign
his position.
Furthermore, the statements by Petroni, which I credit
as consistent and inherently probable, to the effect that
he would have offered Schmidt a job "except for the
fact that the Company no longer wants to employ him"
contradicts Miller's and Petroni's other testimony that
there was no work to be offered; and, that they did not
have any vacancies that Schmidt could fill.
Respondent asserts that Schmidt's activities were
solely for his own aggrandizement and, hence, were not
concerted. There is no question but that the collective-
bargaining agreement which Schmidt sought to have en-
forced, including the scheduling of a specified number of
hours, was in effect at the time the grievances were
lodged in this case. See Interboro Contractors, Inc., 157
NLRB 1295 (1965), enfd. 388 F.2d 495 (2d Cir. 1967),
which stated:
[T]hat complaints made for such purposes [enforc-
ing] the provisions of the existing collective-bar-
gaining agreement are grievances within the frame-
work of the complaint that affect the right of all
employees in the unit and thus constitute concerted
activity which is protected by Section 7 of the Act.
(See further, Alleluia Cushion Co., Inc., 221 NLRB
999 (1975).)
The protection accorded employees under Interboro Con-
tractors, Inc., is not dependent upon either a correct in-
terpretation of the contract or the validity of the com-
plaint. John Sexton & Co., a Division of Beatrice Food Co.,
217 NLRB 80 (1975); and The Singer Company, Climate
Control Division, 198 NLRB 870, fn. 5 (1972). That sever-
al of the grievances dealt with Petroni's method of as-
signing work to Schmidt alone does not remove the ac-
tivity from the protection of the Act since the subject
matter is grievable under the contract which permits dis-
cussions of wages, hours, and other terms and conditions
of employment with a bargaining unit member's immedi-
ate supervisor. Therefore, this activity of filing a griev-
ance is protected by Section 8(a)(1) of the Act. See The
Detroit Edison Company, 241 NLRB 869 (1979).
D. Position of the Parties
Initially, Respondent contends that the decision to
refuse Schmidt further employment after August 15 was
based upon Miller's concern over losing Petroni's serv-
ices. As indicated above, Petroni's testimony does not
support these contentions, as Petroni's willingness to
assign schedules to Schmidt but for Miller's decision in-
dicates, as well as the failure of Petroni's testimony to
adequately support his employer's testimony.
Respondent also argues that the General Counsel
failed to make a prima facie showing that the filing of the
grievances and the charges with the Board was a "moti-
vating factor" in Respondent's decision not to hire
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schmidt. To support this position, Respondent argues
that Miller did not know about the grievances Schmidt
filed with the Union, but not with the Company. Their
argument is not persuasive based on the following:
Schmidt wrote to Miller on June 20, 1978, informing him
of a previously filed grievance and enclosed the griev-
ance; Schmidt sent another letter to Miller on June 30,
1978, stating that he had not received a reply to his June
20 grievance. There was no question that the Company
received the unfair labor practice charge filed by
Schmidt on July 26, 1978. On October 13, 1978, Miller
wrote to the Union admitting that he had been informed
that Schmidt had "once again filed a grievance against
us." On November 17, 1978, Miller wrote the Union re-
garding some scheduling practices and the last paragraph
of the letter stated: "It would be appreciated if you
would convey the above [information] to Joe Schmidt by
a copy of this letter." As discussed above, these missives
demonstrate that Miller had knowledge of the grievances
Schmidt filed with the Union. Additionally, Respondent
contends that Schmidt's repeated complaints to Petroni
relative to Petroni's manner of scheduling and overseeing
projectionists was the principal basis for its decision not
to rehire Schmidt, amply demonstrates knowledge of
Schmidt's activities. Therefore, there was no need, con-
trary to Respondent's contention, for counsel for the
General Counsel to call a union representative equally
available to both parties to support Miller's own admis-
sion plus the documentary evidence that he had knowl-
edge of the grievances Schmidt filed with the Union.
It is further argued that the remoteness in time be-
tween the filing of the grievances and unfair labor prac-
tice charge and the decision to not hire Schmidt is per-
suasive that the decision was not in retaliation for
Schmidt's alleged protected concerted activities. Remote-
ness in time from the alleged concerted protected activi-
ty is not sufficiently probative to "gainsay discriminatory
intent" in all circumstances. See Butler-Johnson Corpora-
tion, 237 NLRB 688 (1978). Additionally, it is undisputed
that Schmidt continued to raise the issues contained in
his written grievances; i.e., alleged favoritism in schedul-
ing projectionists. Miller's allegation that continuation of
the complaints to Petroni, who was not on the grievance
committee, shows a continuation of behavior which was
not remote in time from the decision not to rehire
Schmidt. Therefore, if these activities are found to be
protected concerted activities, there is no remoteness in
timing between the filing of grievances and the decision
not to hire.
It is contended by Respondent that the General Coun-
sel failed to prove Respondent held antiunion animus. As
slated in Auto-Truck Federal Credit Union, 232 NLRB
1024, 1027 (1977): "The presence or absence of animus is
an aid in determining the motive for the discharge, but
not dispositive of itself. L The ultimate question always
remains: What was the actual motive?"
Respondent also argues that Schmidt's failure to con-
test his layoff in November 1978, after the grievance and
unfair labor practice charges were filed, is akin to an in-
"" See further Terry Industrie oj1 Virginia, Inc., 164 NtlRR 872, 874
(1967), enfd 403 F 2d 633 (41h Cir. 9h ): N.I..R.B. s1. Marh ('oal (Con-
pany, Inc.. 322 F.2d 311. 313 (9th Cir. 1963).
tervening uncontested discharge; citing Rappaport Exhib-
its, Inc., 224 NLRB 1558 (1976). The Rappaport decision
was based upon a determination that the intervening dis-
charge was not unlawfully motivated, 19 nor was the deci-
sion to not rehire the alleged discriminatee. Specifically,
the decision in Rappaport found that the failure to rehire
was not based, in whole or in part, upon the discrimina-
tee's filing grievances. Accordingly, Schmidt's failure to
protest the layoff based upon his uncontroverted testimo-
ny that he believed the action was proper at the time is
not found to be a waiver of any right as inferred by Re-
spondent and the Rappaport decision is found inapplica-
ble to this proceeding.
Also contended by Respondent is that Schmidt's
"grievances and gripes" were not protected concerted
activity, because they were purely personal in nature and
would not benefit other employees. Respondent cited
National Wax Company, 251 NLRB 1064 (1981), which
held:
In order for activity to be protected by the Act,
it must be concerted in nature. In the present case,
Stephany's complaint was an individual one. He
sought a wage increase only for himself. His re-
quests were so predicated not on a collective-bargaining
agreement but on a promise he claimed had been
made to him. His endeavors were commenced with-
out prior support by fellow workers and no evi-
dence was introduced to show that Stephany ever
even attempted to communicate with or involve
any other employees in the matter protested.
In certain circumstances, we have found that "os-
tensibly individual activity may in fact be concerted
activity if it directly involves the furtherance of
rights which inure to the benefits of fellow employ-
ees." [Emphasis supplied.] Anco Insulations, Inc., 247
NLRB 612 (1980). See also Alleluia Cushion Co.,
Inc., 221 NLRB 999 (1975). Any indirect relation-
ship to such rights of other employees, however, is
too remote to turn a personal protest into a concert-
ed protest. See Anco Insulations, Inc., supra; Taber-
nacle Community Hospital & Health Center, 233
NLRB 1425 (1977).
Schmidt's initial complaints were pursuant to article
IV of the contract and clearly related to "wages, hours
or other conditions of employment or with regard to in-
terpretation of this agreement . . ." Employees, under
Section 7 of the Act, have the protected right to file and
process grievances. Thor Power Tool Company, 148
NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965);
Caterpillar Tractor Company, 242 NLRB 523 (1979); and
John Klann loving and Trucking Co. v. N.L.R.B., 411
F.2d 261, 263 (6th Cir. 1969), cert. denied 396 U.S. 833
(1970). 21'
1 There is no basis to mIake a similar fil:ding herein, since he hasis for
the dismissal of tile first charge filed h Schmidt is, properly, Iot a
matter of record
"' The merit or lack f nril of the grievance r immaterial and will
not he discussed herein See Sc a-l.t nd .crvric,. In(.. 240 N[ RI 1146
(1979)
1176
ROYAL DEVELOPMENT COMPANY, LIMITED
That Petroni was not a member of the grievance com-
mittee does not obviate the potential efficacy of the com-
plaints telephonically related to him by Schmidt. The
grievance committee hears grievances at the third step;
there is no requirement that service upon such members
of the grievance committee is a condition precedent to
the filing of a grievance. In fact, the contract permits the
filing of oral grievances to individuals not necessarily
listed as members of the committee, such as filing griev-
ances with theater managers. Accordingly, it is found
that, unlike the cited case, National Wax Company, supra,
the Charging Party's requests were predicated upon the
collective-bargaining agreement and hence are protected
concerted activities. Additionally, Schmidt tried to com-
municate with other employees relative to the directive
regarding showing the film "Rocky."
Respondent's argument that Miller's testimony that he
was not irritated by Schmidt's filing of grievances and
the unfair labor practice charges is also found to be un-
persuasive.
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be availa-
ble that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise, no person accused of
unlawful motive who took the stand and testified to
a lawful motive could be brought to book. Nor is
the [administrative] trier of fact . . . required to be
any more naif than is a judge. If he finds that the
stated motive for a discharge is false, he certainly
can infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at
least where, as in this case, the surrounding facts
tend to reinforce that inference. [Shattuck Denn
Mining Corp. v. .. L.R.B., 362 F.2d 466, 470 (9th
Cir. 1966). Accord: Folkins v. V.L.R.B., 500 F.2d
52, 53 (9th Cir. 1974); Famet, Inc. v. NL.R.B., 490
F.2d 293, 295 (9th Cir. 1973), and cases cited there-
in.]
Finally, there is a "very narrow standard of
review in Board decisions. The Court must affirm
any Board decision to the extent that it rests on
findings of fact for which there is substantial evi-
dence in the record." [N.L.R.B. v. Broadmoor
Lumber Co., supra, 578 F.2d at 241.]
In fact, in this case, the credited evidence of Pe-
troni's affidavit contains an "outright confession" of
unlawful purpose for Respondent's refusal to hire
Schmidt which "eliminates any question concerning
the intrinsic merits as to . . . the individual dis-
charges . . . or other causes suggested as the basis
for the discharge. See NL.R.B. v. Ferguson, 257
F.2d 88, 92 (5th Cir. 1958); %.L.R.B. v. Globe Prod-
ucts Corp., 322 F.2d 694, 696 (4th Cir. 1963);
ANL.R.B. v. John Langen Bakery Co., 398 F.2d 459.
463 (2d Cir. 1968), cert. denied 393 U.S. 1049. See
also Apollo Tire Co., Inc., 236 NLRB 1627 (1978).
That Petroni used the term "trouble," but did not
specify what acts were exactly encompassed in the term,
is also argued by Respondent to indicate the specious
nature of the allegations. The use of the term "trouble"
is found, in the context of this case, including Petroni's
admission in his affidavit, to be a euphemism for
Schmidt's concerted activities of grieving about protect-
ed subjects as defined in the collective-bargaining agree-
ment and filing the unfair labor practice charge. Accord-
ingly, the use of the term colors the Company's prior de-
cision not to hire Schmidt with discriminatory motiva-
tion. See Roadway Express. Inc., 239 NLRB 653 (1978);
and N.L.R.B. v. Hertz Corp., 449 F.2d 711, 714 (5th Cir.
1971).
Analysis and Conclusions
Section 8(a)(3) of the Act makes it illegal to discour-
age or encourage membership in any labor organization
by discrimination in regard to hire or tenure of employ-
ment, or with respect to any term or condition of em-
ployment. Section 8(a)(4) of the Act makes it illegal to
"discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under
this Act." "Discrimination in hiring is akin to discrimina-
tion in firing" and is equally violative of Section 8(a)(4)
and (1) or Section 8(a)(3) and (1) of the Act as here ap-
plicable. See Phelps Dodge Corp. v. N.L.R.B., 313 U.S.
177, 187 (1941). There is no question that refusal to hire
is discrimination. Therefore, the motive for the discrimi-
nation is the dispositive issue in this proceeding. The test
for determining causation for discrimination in cases
turning on employer motivation was stated in Wright
Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980), as follows:
First, we shall, we shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
"motivating factor" in the employer's decision.
Once this is established, the burden will shift to the
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct.
It is concluded that the General Counsel has made a
prima facie showing of discriminatory motive, not only
by the unusual existence of an admission by Petroni that
the filing of grievances and an unfair labor practice
charge were the basis for Miller's decision not to hire
Schmidt but also by the circumstantial evidence present
in the case.21
The employer did not initially inform Schmidt that he
would not be hired because he was considered incompe-
tent or less competent than others. That this alleged
reason was not originally mentioned to Schmidt raises
the inference that the alleged reasons for the discharge
were pretext. Electroplating Specialities, 236 NLRB 534
(1978), and Inland Miotors, 175 NLRB 851 (1969). Fur-
-' I mlam cllch cxlidclI e 1C aI' llii llon rilovallol sel dorn available.
lhc Board a!d iinfer unl;ihv ul illlent frim tllcc circumstacllcs surrounding
the dcharge Se \I .. R. B. (; ret Dnu Iruader. Inc.. 3 3 U.S 26
106'7); N.I B Jier P,,it ,.f/g C,.. 245 F 2d 783, 7 (5th Cir
1i57) .iand I,- , x/iiuCm . t..R 435 F 2d 917. 919 (Sth Cir
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther, the belated rendering of this reason for the failure
to hire is a familiar signpost of discriminatory intent. See
La-Z-Boy Tennessee, 233 NLRB 1255 (1977). Also, as dis-
cussed in the section reviewing Petroni's testimony, the
inconsistent explanation and application of seniority in
scheduling Schmidt and other projectionists for work is
strongly indicative of discriminatory motive. See Gerald
G. Gogin d/b/a Gogin Trucking, 229 NLRB 529 (1977),
enfd. 98 LRRM 2250 (7th Cir. 1978), wherein the court
specifically referred to the disregard of seniority.
Other indicia of the Company's unlawful motivation is
its vacillation between stated causes for its decision, such
as the unacceptable harassment of Petroni, and the alle-
gation of incompetence, cojoined with this multiplicity of
reasons, are factors rendering its claim of nondiscrimina-
tion less convincing. The record is devoid of any proba-
tive evidence supporting the contended incompetence of
the Charging Party. The Charging Party admitted he
was criticized for being late and lack of neatness was
also mentioned. However, when such critiques were
made was not placed in evidence, hence, the proximity
of these deficiencies to the adverse action has not been
demonstrated. The retention of an alleged incompetent
projectionist who was discharged only after lodging a
series of complaints regarding wages, hours, or other
terms and conditions of employment, cojoined with Pe-
troni's credited testimony that he would have continued
scheduling Schmidt, as a very senior employee, but for
Miller's instructions, contradicts Respondent's assertion
that their reductions in scheduling eliminated the need
for Schmidt's services. It is found that the reduction in
scheduling did not prevent the assignment of shifts to the
Charging Party, including Ohata's schedules, or other
relief or casual projectionists. For example, the conten-
tion that Respondent met its obligation to Schmidt by of-
fering him Parker's job is contradicted by Petroni's testi-
mony that Respondent subsequently offered Schmidt
Ohata's relief schedule at the two drive-in theaters.
Where Respondent's Company's avowed basis for action
is contradictory and unconvincing, it raises the inference
that the real reason a notice is unlawful. See The Bendix
Corporation, Research Laboratories Division, 131 NLRB
599 (1961); N.L.R.B. v. The Bendix Corp., 299 F.2d 308
(6th Cir. 1962), cert. denied 371 U.S. 827. Based on the
foregoing, it is concluded that Counsel for the General
Counsel has made the requisite prima facie showing of
discriminatory motive.
Respondent has not met its burden of demonstrating
that the same action would have occurred in the absence
of the protected conduct. While not specifically argued
by Respondent, it is inferred by their evidence that they
considered Schmidt's conduct unnecessarily disruptive of
Respondent's operations and so infringed upon the Com-
pany's right to maintain order and respect as to remove
the "protective shield of the Act." Charles Meyers Co.,
190 NLRB 448, 449 (1971). The absence of any warning
that such behavior could lead to discharge, Petroni's tes-
timony that he continued to be willing to schedule
Schmidt despite the alleged repeated difficulties he expe-
rienced because of Schmidt's repeated complaining; and,
the failure to detail with specificity how Schmidt's ac-
tions could be deemed unnecessarily disruptive, render
such a contention insufficient to overcome the evidence
of illegal motive, including Petroni's outright admission.
As stated in Prescott Industrial Products Company, 205
NLRB 51, 52 (1973):
The Board has long held that there is a line
beyond which employees may not go with impunity
while engaging in protected concerted activities and
that if employees exceed the line the activity loses
its protection. That line is drawn between cases
where employees engaged in concerted activities
exceed the bounds of lawful conduct in a moment
of animal exuberance or in a manner not motivated
by proper motives and those flagrant cases in which
the misconduct is so violent or of such a character
as to render the employee unfit for further service.
[Citing Bettcher Manufacturing Corporation, 6
NLRB 526; Soconoy Mobil Oil Company, Inc., 153
NLRB 1244 (1965).]
The evidence in this case does not support a finding
that Schmidt crossed that line; there was no violence or
threat of violence nor was there evidence that the activi-
ty was engaged in for improper motives or in bad faith.
Furthermore, there was no showing that Schmidt's ac-
tions were of such a character as to render him unfit for
further service.
Accordingly, I find that Respondent violated Section
8(a)(4), (3), and (1) of the Act by refusing to hire
Schmidt because he engaged in concerted protected ac-
tivity, including filing an unfair labor practice charge.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCIUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to hire Joseph E. Schmidt since August
15, 1979, because he engaged in concerted protected ac-
tivity including the filing of grievances and an unfair
labor practice charge, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
1178
ROYAL DEVELOPMENT COMPANY, LIMITED
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having been found that Respondent discriminatorily
failed and refused to hire Joseph E. Schmidt, I shall rec-
ommend that Respondent offer him immediate employ-
ment to a substantially equivalent position at which he
would have been hired had he not been discriminated
against, without prejudice to seniority or other rights
and privileges, and make him whole for any loss of earn-
ings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money
equal to that which he would normally have earned
from the date of the refusal to hire, less net earnings,
during said period. All backpay provided herein shall be
computed with interest on a quarterly basis, in the
manner described by the Board in F. W Woolworth Com-
pany, 90 NLRB 289 (1950), and with interest thereon
computed in the manner and amount prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 22
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 23
The Royal Development Company, Limited, Honolu-
lu, Hawaii, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to hire or otherwise discriminating against
employees because of their concerted protected activi-
ties, including the filing of grievances and unfair labor
practice charges.
21 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
:2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions. and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Discouraging membership in the Union, or any
other labor organization of its employees, by discriminat-
ing against them in regard to their hire and tenure of em-
ployment or any terms and conditions of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which the un-
dersigned finds will effectuate the policies of the Act:
(a) Offer Joseph E. Schmidt immediate employment to
a position at which he would have been employed had
he not been discriminated against or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to seniority or other rights or privileges
previously enjoyed, and make him whole for any loss of
pay due to the violation against him in accordance with
the manner set forth in The Remedy.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Decision.
(c) Post at its places of business, including all theaters
owned or operated by Respondent, copies of the at-
tached notice marked "Appendix. "2 4 Copies of said
notice, on forms provided by the Regional Director for
Region 20, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt
thereof and be maintained for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1179