Paramount Pictures, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1946

69 N.L.R.B. 1155 (N.L.R.B. 1946)

In the Matter of PARAMOUNT PICTURES, INC. and TECHNICAL ENGI-
NEERS, ARCHITECTS, AND DRAFTSMEN'S UNION, A. F. OF L.
Case No. 21-C-2565.-Decided August 5, 1946
Mr. Charles M. Ryan, for the Board.
O'Melveny and Myers, by Messrs. Homer I. Mitchell and W. B.
Carman, of Los Angeles, Calif., for the respondent.
iIiss Katharb e Loomis, of counsel to the Board.
DECISION
AND
ORDER
On April 17, 1946, Trial Examiner Spencer issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On July 11, 1946, the
Board, at Washington, D. C., heard oral argument in which the re-
spondent participated.
The Board has considered the rulings of the 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 respondent's exceptions and brief and the entire
record in the case, and to the extent consistent with the Decision and
Order herein, hereby adopts the findings and conclusions of the Trial
Examiner, and finds merit in the respondent's exceptions.
1. The Trial Examiner found that certain statements set forth in
the Intermediate Report and made by Anthony Briganti, the chief
draftsman in the respondent's drafting room, were attributable to
.management and constituted interference, restraint, and coercion
within the meaning of Section 8 (1) of the Act. We do not agree.
The Trial Examiner, in attributing Briganti's statements to the re-
spondent, relied upon his prior finding that Briganti was a supervisor
having authority effectively to recommend the discharge of employees.
We are of the opinion that the record does not support the Trial Exam-
69 N. L. R. B., No. 141.
1155
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner with respect to Briganti's supervisory status. Briganti was a
draftsman who, in addition to his drafting work, had been delegated
the additional duty of making work assignments to employees by
Albert A. Zoulis, the head of the Engineering Department. The Trial
Examiner based his finding that Briganti had authority effectively
to recommend the discharge of employees on Briganti's testimony
that he recommended the discharge of George A. Gary, one of the per-
sons named in the complaint, to Zoulis who subsequently discharged
Gary. Although Zoulis also testified that Briganti made such a recom-
mendation on the basis of errors in some drawings that Gary had sub-
mitted, he did not indicate that it was among the duties of Briganti to
make such a recommendation or what weight, if any, he attached to it.
And Zoulis inspected the drawings himself and also consulted Loren L.
Rider, his immediate supervisor, before making the discharge.' In
these circumstances, and in the absence of other evidence indicating
that Briganti possessed authority to make effective recommendations
regarding the status of employees, the record does not warrant a find-
ing that Briganti was a supervisory employee within the meaning of
our customary definition. Nor is there any evidence that Briganti's
statements were ratified or authorized by any representative of man-
agement, or that any representative of management acted in such man-
ner as to lead the employees reasonably to believe that Briganti was
acting for or on behalf of the respondent. Briganti's claims to other
employees that he was speaking for Chief Engineer Zoulis, although a
suspicious circumstance, are not of themselves sufficient to establish
that he was in fact stating Zoulis' position or acting on his behalf. We
find that the statements of Briganti were not attributable to the re-
spondent and therefore did not constitute interference, restraint, and
coercion within the meaning of Section 8 (1) of the Act.
2. The Trial Examiner has found that the discharges of George A.
Gary and George A. Heap were discriminatory within the meaning of
Section 8 (3) of the Act. We do not agree. As the Trial Examiner
has indicated in his report, there is considerable evidence that, as con-
tended by the respondent, both these employees were discharged be-
cause the respondent was dissatisfied with their service. In reaching
his conclusion that the discharges were motivated by the respondent's
animosity toward employee organizational activities, rather than by
legitimate reasons, the Trial Examiner relied in large measure upon
the statements of Briganti. As we have found above, however, the
evidence fails to establish that Briganti's statements are attributable
to, or reflect the attitude of, the respondent. Upon the entire record,
In determining whether the recommendations of alleged supervisors are effective we
have considered whether the recommendations are given substantial weight and also
whether they are subject to independent investigation . See Matter of Douglas Aircraft
Corporation, Inc., 50 N. L. R. B. 784, and Matter of Toledo Edi8on Company, 63 N. L. R. B.
217.
PARAMOUNT PICTURES, INC. 1157
we are convinced that Gary and Heap were discharged because the
respondent was not satisfied with their services. Accordingly, we
find that discharges of George A. Gary and George A. Heap were not
discriminatory within the meaning of Section 8 (3) of the Act.
Inasmuch as we have reversed all the Trial Examiner's unfair labor
practice findings, we shall dismiss the complaint.
ORDER
Upon the basis of the foregoing findings of fact and the entire rec-
ord in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders that
the complaint against the respondent, Paramount Pictures, Inc., Los
Angeles. California, be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Charles M. Ryan, for the Board.
O'Melveny and Myers, by Messrs Homer I. Mitchell and W. B. Carman, of Los
Angeles. Calif., for the Respondent.
STATEMENT OF THE CASK:
Upon an amended charge duly filed by Technical Engineers, Architects and
Draftsmen's Union. A. F. of L., herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the
Twenty-first Region (Los Angeles, California), issued its complaint, dated
November 29, 1945, against Paramount Pictures, Inc., herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in unfair,
labor practices affecting commerce within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint and notice of hearing were duly
served upon the respondent and the Union.
With respect to unfair labor practices, the complaint as amended during the
course of the hearing, alleged in substance that the respondent: (1) from on or
about January 1, 1945, by statements and threats, expressed disapproval of the
Union. The Engineers and Architects Institute, herein called the Institute, and
Southern California Professional Engineering Association, herein called the
Association, labor organizations within the meaning of the Act; (2) on or
about March 31, 1945, discharged George A. Gary and on April 20, 1945, dis-
charged George A. Heap, employees of the respondent, because of their union and
concerted activities; and (3) thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.'
' The Board amended its complaint , with the consent of the respondent, to allege that the
Institute and the Association were labor organizations within the meaning of the Act, and
that the respondent 's unfair labor practices wete directed against the Institute and the
Association as well as the Union . In filing its amended complaint, Board's counsel inad-
vertently omitted the allegation of the discharge of Gary and Heap, and this was restored
upon the Board 's motion to correct the record , filed with the undersigned after the close of
the hearing . The issue of the discharges was properly raised in the original complaint,
was thoroughly litigated during the course of the hearing, and respondent 's counsel filed
no objection to the Board ' s motion to correct the record.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its duly filed answer, the respondent denied all allegations of unfair
labor practices.
Pursuant to notice a hearing was held in Los Angeles, California, on De-
cember 17, 18, 19, 20, and 21, 1945, before the undersigned, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel and participated in the hearing. All parties were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. After the testimony had
been taken, Board's counsel moved to conform the pleadings to the proof as
to minor details. The motion was granted without objection. The parties were
advised that they might argue before and file briefs with the under-
signed. Oral argument was waived. The respondent filed a brief with the
undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Paramount Pictures, Inc., is a New York Corporation engaged in the production,
distribution, and exhibition of motion pictures, with its principal office in New
York City and production facilities in Los Angeles, California. It is associated
with more than 100 subsidiary and affiliated corporations located both within
and outside the United States, which are primarily engaged in the exhibition of
motion pictures.
The respondent purchased more than 40,000,000 feet of film for use in the pro-
duction of motion pictures during the calendar year of 1943 from vendors oper-
ating in the city of Los Angeles. During the same period, it expended approxi-
mately $16,500,000 in the production of motion pictures. Prints of these motion
pictures were distributed by it through a series of exchanges maintained by it
and were exhibited in theaters through the United States and certain foreign
countries.
The respondent admits that the nature and relative scope of its business have
not substantially changed since 1943, and that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Technical Engineers, Architects and Draftsmen's Union, affiliated with the
American Federation of Labor, and Southern California Professional Engineer-
ing Association, unaffiliated, are labor organizations admitting to membership
employees of the respondent.'
The Engineers and Architects Institute, unaffiliated, is primarily an employ-
ment agency for its members. The undersigned is unable to conclude on the
basis of the showing made in this proceeding that it is a labor organization within
the meaning of the Act. The undersigned accordingly recommends dismissal of
the Board's allegation that it is a labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
The events in issue in this proceeding occurred in the respondent 's Engineering
Department between December 27, 1944 and April 21, 1945 . For some 19 years
2 These findings are based on a stipulation of the parties.
PARAMOUNT PICTURES, INC. 1159
this department has been under the supervision of Albert A. Zoulis, Chief Engi-
neer. Throughout the period in question, Zoulis had as his assistant, Anthony
Briganti.' There were 8 employees in the department, including Briganti.
The function of this department is to design, draft, and blueprint new struc-
tures, repairs, or additions to existing buildings, and various types of equipment
to be used as appurtenances thereto. The employees of the department are archi-
tects, engineers, and draftsmen, specially trained in their respective fields.
There is no showing of organizational activities among this group of employees
prior to January 1945. Such concerted and/or union activities as developed
thereafter were initiated and chiefly fomented by George A. Heap and George A.
Gary, the two employees alleged by the Board to have been discriminatorily
discharged.
Heap was employed by the respondent as a structural engineer on or about
December 27, 1944. At the time of his employment. he advised Zoulis, who,
intcrviewed and hired him, that he had a connit;uent to work on a proposed
national defense project when and if work was begun on the project. Heap
testified that Zoulis advised him that the respondent was planning an extensive
post-war building program and could make use of his services on a permanent
basis.' Zoulis testified that he advised Heap that any "movie" job had a degree
of uncertainty and that there was no assurance of permanent employment because
of the very nature of the busiiiess. While it is entirely likely that Zoulis may have
commented on the vagaries of employment in the motion picture industry, the
undersigned is convinced that the only contingency which actually qualified
Heap's employment was his own prior commitment.
George Gary, a structural designer and president of the Institute, was employed.
by Zoulis on or about January 20, 1945. It was his credible testimony that Zoulis
advised him on the occasion of his employment that if they "were able to work
out satisfactorily" there was no reason why Gary "shouldn't consider it as a
permanent job."
Both Heap and Gary were hired at a wage rate of $2.50 an hour or $100 for a
40-hour week. No mention was made of overtime pay on the occasion of the
hiring of either.
A week or two after he was employed, Heap, upon receiving his pay check,.
noted that although he had worked a substantial amount of overtime, his pay
for this overtime work had been computed on a straight time basis. He imme-
diately complained to both Briganti and Zoulis that on the basis of his experience
in other engineering departments, he felt that lie was entitled to time and a half
pay for overtime work. Zoulis promised to take the matter up with higher man-
agement and later informed Heap that the respondent was not required to pay
employees of its Engineering Department time and a half for overtime work.
Heap replied that he intended to take the matter up with the Wage and Hour
Division of the Department of Labor. Zoulis told him to go ahead.' At or about
8 Briganti , as Zoulis ' assistant , acted as an office manager , assigning work to employees
of the department , reviewing that work , and reporting on it to Zoulis. It is also clear
from Briganti ' s testimony in connection with the discharge of Gary, set forth hereinafter,
that he had the authority effectively to recommend the discharge of employees . The under-
signed finds that he was a supervisory employee whose acts and statements are attributable
to management.
° This testimony was indirectly corroborated by respondent 's witness and industrial rela-
tions manager, Charles Boren, who testified : "Beginning in around January, 1945, new
ideas and concepts for postwar expansion of the studio were conceived in a general man-
ner," and that later plans 'were made for the "expansion of our facilities" and the "develop-
ment of new equipments which were peculiar to the motion picture industry."
Y, Heap testified creditably that he also told Briganti that he intended to file a claim for
overtime pay, and Briganti replied, "well, go, ahead, but keep me out of it ... I have a
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this time, Heap visited the office of a representative of the Union and became
a member of this organization. His membership card bears the date January
8, 1945. He testified that he joined the Union, an A. F. of L. affiliate, because
"all the studio employees at Paramount, were members of A. F. L. Unions, with
the exception of one group," and he thought "it was the only organization that
could bring about a correction of the conditions, that the other organizations were
too weak to get recognition." ° He testified that he advised Briganti and Zoulis,
as well as the employees of the department generally, of his affiliation with the
Union. Briganti and Zoulis denied that they were so advised or had knowledge
of Heap's affiliation with the Union. Heap also testified that he gave applica-
tion blanks for membership in the Association to both Briganti and Zoulis 7
Briganti admitted that he had heard of the Association but denied that Heap so-
licited him to join it. Zoulis testified that lie had never heard of the Association
prior to the hearing.
It is clear that Heap was open and aggressive in his organizational activities ;
it is consistent with his entire behavior as disclosed by the record that he would
inform Zoulis and Briganti of his union affiliations. The memorandum which
he filed with Zoulis at the time of his employment clearly states his affiliation with
the Association. In view of these circumstances, the undersigned is unable to
credit Zoulis' denial that he had ever heard of the Association prior to the hearing,
and finds that both Zoulis and Briganti were advised by Heap of the latter's union
affiliations in the manner testified to by Heap.
Prior to the date of Gary's employment, Heap had already discussed the mat-
ter of overtime pay with his fellow employees but it does not appear that they
had taken any concrete steps as a group to seek an adjustment of this and other
grievances. A few days after Gary was employed, some of the employees in
the department received their weekly pay checks and there was a renewal of
the overtime pay discussions. Gary told his fellow employees that he believed
they were entitled to time and a half pay for overtime work, and suggested
that "it would be more effective if it came to an issue of overtime if they
were members of an organization and had the organization act for them."
He obviously had in mind the Institute, and at the instigation of Gary and Heap
all the employees in the department, including supervisors Zoulis and Briganti,
were solicited to join the Institute. Zoulis and Briganti were invited to attend
an Institute dinner, and Briganti attended and was introduced to members of
the Institute by Gary. All employees except Zoulis and Briganti became affil-
iated with the institute.' It appears that initially the employees hoped to
enlist the support of Briganti and Zoulis in furthering their objectives,' and
were hesitant in "bypassing" Zoulis in a direct appeal to higher management.
After having made a verbal protest to both Briganti and Zoulis in the matter of
special arrangement under which I am paid time and a half for all my overtime work. Mr.
Zoulis fixed it for me."
6 Heap apparently had reference to the Institute and the Association , of which he was
also a member.
I Application for membership in the Association requires the applicant to state that lie
had not had delegated to him "managerial responsibility" with respect to hiring and dis-
charge of employees . Heap testified , however , that its by-laws provide that a supervisor or
executive may become a member but may not have a vote in the organization . He testi-
fied, "I was soliciting Zoulis with the idea of getting him to do something to clean up con-
ditions through organized effort, intelligent effort."
6 Briganti testified that he desired affiliation with the Institute and would have affiliated
with it except for the cost.
O For example , Heap ' s testimony : "I was soliciting Zoulis with the idea of getting him to
do something to clean up conditions through organized effort, intelligent effort."
PARAMOUNT PICTURES, INC. 1161
overtime pay, and having received substantially the same answers previously
given Heap, Gary advised Briganti that the employees were going "to do some-
thing about it.f 10
Shortly thereafter, in February, the non-supervisory employees designated a
committee composed of Heap, Gary, and Oren Branscombe , and architectual
draftsman, to represent them for the purpose of attempting to adjust their vari-
ous grievances with management ." The Committee through Briganti arranged
for a conference with Zoulis." It appears that all the employees attended this
conference. Gary acted as spokesman , and there was a general discussion con-
cerning overtime pay and working conditions, with Branscombe and other em-
ployees participating in the discussion . While it does not appear that the re-
spondent was advised at any time of the formation or existence of the Committee,
this meeting with Zoulis clearly represented joint action by the employees and
must have been recognized as such by him. This meeting occurred on or
about February 28.
Unable to obtain its objectives through Briganti and Zoulis, the Committee was
obviously confused and uncertain as to further procedure. While both Heap and
Gary affiliated with the Union, none of the other employees followed their ex-
ample in this respect, and it is not claimed that the Union or the Association at
any time intervened in behalf of the employees or was requested to do so. The
employees relied principally upon the Institute, of which Gary was president.
"It was a ticklish proposition," Gary testified, "and I was in a dual relation there,
being active on the outside organization [the Institute] at the same time as an
employee of the firm." He further testified that Branscombe proposed that the
Committee should approach higher management directly, whereas Heap suggested
asking an officer of the Institute to intervene in their behalf. Gary agreed that
he would get in touch with Roy Frisen, vice-president of the Institute, and ask
him to make an appointment with the Studio management in order that the Com-
mittee might "lay these things on the table and see if there wasn't an amicable
way to settle it."
Gary accordingly arranged for Frisen to meet with the group of non-supervisory
employees outside the plant during a noon recess. After Frisen arrived the
group went to a nearby restaurant. According to Gary, the subjects discussed
with Frisen were the overtime pay issue, "which was the biggest bone of
contention," and ideas for "putting the department on a better basis with a par-
10 Gary testified : "We didn't know at the time what we were going to but we were going
to take it up and get advice from people that could instruct us." Heap testified that he
urged the employees to "join any organization which the majority of the employees felt
would serve their interests best ." Briganti testified , "The discussion there was because
we didn't have a bargaining agent ; I would say the rank and file of the room didn't have
a bargaining agent. That there was a possibility of everybody joining that group and in-
stituting the Institute as a bargaining agent for the draftsmen at Paramount." He fur-
ther testified that Gary and Heap participated in these discussions, some of which took
place during working hours.
11 In discussion with other employees, Heap found that there was no vacation allowance
for service, no sick leave, that the employees were "docked" for holidays, and that whereas
they received no extra compensation for overtime work, some of the crafts received time
and a half . Heap and Gary each testified that Briganti advised them that by arrangement
with Zoulis he drew extra compensation for overtime work.
32 Heap testified credibly , "we talked to Mr. Briganti and told him that conditions in
the department had reached such a state we would like to meet Mr. Zoulis and discuss the
problem." Heap further testified that Gary, as spokesman, advised Zoulis "that the em-
ployees had wanted to get together with Mr. Zoulis to discuss the general working condi.
tions in the department as related to overtime and general working conditions, and also
as to the conduct of the engineering work which we did there."
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticular classification to each individual in that department, so that the jobs
could be more efficiently handled." Frisen agreed that he would attempt to make
an appointment with Charles Boren, respondent's personnel manager.
That same afternoon, Gary and Briganti engaged in a conversation during
which Briganti asked Gary "what was going on," and Gary replied that in the
.matter of overtime pay the employees had gone as far as they could "through
him and the regular channels of the office," and that he had asked Frisen "on be-
half of the employees in that department who were members of the Institute to
take the matter up with management himself." Briganti replied that "Mr. Zoulis
was sick of this overtime agitation" and that he (Gary) "had better stop it.""
Precisly what action, if any, Frisen took with reference to arranging a con-
feiQnce with management, or in seeking to represent employee members of the
Institute, does not appear. It appears from Gary's testimony, however, that
Frisen informed him that he (Frisen) had been "unsuccessful in obtaining a meet-
ing with management or arranging a meeting with management" and that he
"withdrew from the entire matter."
Beginning March 12, 1945, a jurisdictional strike occurred in the respondent's
and at various other motion picture studios." ' This strike lasted until on or
about October 30, 1945, and appears to have involved all the respondent's em-
ployees except a group of about 100 which included the employees of the Engineer-
ing Department. During the early days of the strike there was a great deal of
confusion and discussion among employees of the department as to whether or not
they should cross the picket line. On the second day of the strike, a representa-
tive of the striking union entered the department and requested the employees to
join the strike. After discussion, it was agreed that Heap and Branscombe
should go out to the picket line and discuss the matter with the union representa-
tive in charge there. Heap and Branscombe accordingly saw this union repre-
sentative and advised him that inasmuch as the employees of the Engineering
Department were engaged in permanent construction and therefore were not in-
volved in the jurisdictional dispute, there appeared to be no reason why they
should join in the strike.
On March 14, I-leap addressed a letter to the president of a Local of the Screen
Set Designers, one of the striking unions, in which he listed the- names and ad-
dresses of all employees of the department, including Briganti , and gave a brief
description of their job classifications and duties. The letter was not self-explana-
tory but stated that it was being sent "for obvious reasons." Heap gave a copy
of the letter to each of the employees whose name was listed therein. He testified
that his purpose in sending the letter was to enable the employees of the Engi-
neering Department to pass through the picket line without being molested. It
does not appear, however, that he explained his purpose to the employees gener-
ally, since Benjamin Ashley, a structural designer, testified that he understood
that "it was the purpose of the letter to attempt to induce the employees to
organize." Heap testified that Briganti, when shown the letter, said that
"he wanted his name kept out of it, that he was on the side of management,"
that if Heap was "smart" a man of his "ability should be on the side of manage-
ment," and that he "was going in to see Mr. Zoulis about it right away."
Shortly thereafter, according to Heap, Briganti returned and said that he had
talked to Zoulis and Zoulis had authorized him to "fire" Gary and Heap "and any
other damn man in the office in order to stop this organization work." Ashley
testified concerning the incident that Briganti said "words to the effect that if
they didn't stop that organization there, he would fire Heap and Gary and every-
"These findings are based on Gary's credible testimony.
14 See Matter of Columbia Pictures Corp., 64 N. L. R. B. 490, for detailed matter re-
lating to the strike.
PARAMOUNT PICTURES, INC. 1163
body else that had anything to do with it." u Gary testified: "He [Briganti] told
us that he had been authorized by Mr. Zoulis to fire myself and Mr. Heap and
anybody else if this organization didn't stop."
Briganti did not deny in toto the incident of the letter. He did deny that he
threatened the discharge of any employee and that he told Heap that Heap should
be on the side of management. He testified that there was a great deal of con-
fusion in the office and discussion among the employees on whether or not to
Join the strike, and that "George Gary was all for organizing the boys and walk-
ing out." He admitted that he was "a little bit riled about it" and told Gary
"to forget that business and get the hell back to his desk and do the work he was
supposed to do for Paramount, and forget the strike that was going on." "I also
said," Briganti further testified, "that A. F. L. members who chose to stay in on
the lot and another group of A. F. L. men who chose to go off the lot, that was
their business. There was nobody in our organization that had anything to do
with the strike or had anything to do with the A. F. L. organization and it wasn't
our business to go out on any strike, or to even consider the picket line at that
time."'e He later testified, however, that he told the employees that if they
wanted to go out on strike, they ought to be represented by a union, that he felt
it would be a good time for them "to try to get into the set designers' union, so
that if we did go out on a strike we would have a basis for striking."
The undersigned believes that Briganti, like Ashley, misconstrued the purpose
of the Heap letter and inferred that it was written for organizational purposes.
The undersigned does not credit Briganti's testimony, quoted above, to the effect
that he suggested affiliation with the Set Designers' Union in order to have a
basis for striking.14 This testimony clearly was an afterthought and is incon-
sistent with his earlier testimony which shows his actual disapproval of par-
ticipation in the strike by employees of the Engineering Department, and censure
of Gary because the latter "was all for organizing the boys and walking out.,, %a
In view of the entire context of the incident, as disclosed by the record, and
upon his observation of the witnesses, the undersigned credits the mutually
corroborative testimony of Ashley, Heap, and Gary, and finds that Briganti made
the statements attributed to him by these witnesses.
15 Ashley testified that the strike "occasioned considerable argument around the drafting
room , and prior to the strike there had been no particular disturbance because of organiza-
tion work or anything else, and then the strike got us started up." Be further testified on
cross-examination :
Q. What occurred after the strike in connection with organizational work that had
not been going on before in the drafting room?
A. Well, it brought it to a head.
Q. Well, what evidence was. there that it had been brought to a head? Were the men
in the drafting room talking about the strike?
A. Yes, there was a great turmoil, a lot of talking and argument and so forth.
le Zoulis testified concerning the incident : Mr. Brigand came into the office and said,
"These men out in the drafting room are about ready to walk off the job." I Inquired why.
He said, "Because of the strike." And I said, "If they don't want to pass through that
picket line , they don't have to. But I cannot understand why they should be concerned,
because they, are not affiliated with any union."
17 The undersigned is also unable to credit Briganti's testimony to the effect that he was
eager to affiliate with an A. F. L. union which would admit him to its bargaining unit.
The undersigned believes that such eagerness for union affiliation would have been rewarded
by actual affiliation had it existed. As a matter of fact, Heap testified credibly that Bri-
ganti gave as his reason for not participating in the strike, his affiliation with the Office Em-
ployees' Association which had a no-strike clause in its contract with the respondent.
18 Gary testified that although advised by the Institute that it did not approve of its
members crossing the picket line, he felt that employees of the Engineering Department
should continue on their jobs.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 15, Loren L. Rider was made chief engineer of the Engineering De-
partment. Personnel Director Boren testified that the change was made because
of an expansion of the Engineering Department and that Rider "was given
authority to organize the department in a manner which he deemed most efficient
and compatible with the program that was generally outlined." The department
under Rider was divided into two divisions, with Zoulis heading one division as
plant engineer, with responsibility for "routine maintenance" and studio altera-
tions "of not too large a character," whereas Charles Lutens was placed in charge
of "large scale projection of the properties and mechanical developments." Zoulis
continued to occupy his same office and to exercise immediate supervision over
the employees involved herein.
In late March, the employees' committee composed of Branscombe, Heap, and
Gary, decided that Gary should make an appointment with Rider for the purpose
of discussing wages, hours, and other conditions of employment in the Engineering
Department. Gary testified concerning the Committee's decision in this matter:
. . . it was decided that inasmuch as the representative of the Institute
had been unsuccessful in obtaining a meeting with management . . . and
that he had advised me that he withdrew from the entire matter, that I
should go to Mr. Rider, who had recently been appointed as the chief engineer,
in the capacity as president of the Engineers and Architects' Institute, to
lay the matter before him and see if we could straighten it out.
On March 30, during the noon hour, Branscombe and Heap accompanied Gary to
the building where Rider had his office and then returned to their work. Gary
entered Rider's office and on being advised that Rider was out and would not
return until about 2: 00 o'clock, left a card bearing his name as president of the
Institute, with Rider's secretary. Jack Barter, an employee whose office was
in the Engineering Department, was present at Rider's office at the mime time
that Gary called and left his card.
When Heap and Branscombe had returned to the Engineering Department,
after leaving Gary at Rider's office, Briganti approached Heap and asked him,
"What in - - hell is Mr. Gary doing over at Rider's office?" Heap replied
that he did not know, whereupon Briganti said, "He knows he doesn't have any
business going over there." Later that same afternoon, Briganti again
approached Heap and said that he (Briganti) "knew damn well Mr. Gary had
been over to Mr. Rider's office," that Barter had seen him over there, and that
he understood that Gary had told Rider "plenty." Still later, that same day,
Briganti told Heap that he was going to discharge Gary, and further stated to
Heap, "He [Gary] is only the number one man in the organization and this
applies to you and every other man in the organization." Gary was discharged
on the following morning, and Heap's employment was terminated about 3
weeks later 18
10 These findings are based on Heap 's credible testimony . Briganti admitted that he had
a conversation with Heap in which be questioned the latter concerning Gary's visit to
Rider ' s office. When first questioned concerning the conversation by respondent 's counsel,
he testified that he was not going to "rack" his brain "on a thing so long ago." Later,
he testified that he was disturbed by Gary ' s absence from work during working hours, and
that he "was wondering why he [ Gary] had to go over to Mr. Rider's office." Zoulis denied
that he had knowledge of Gary ' s visit to Rider's office . In view of the close association
which existed between Zoulis and Briganti , the latter 's custom of reporting even minor
incidents involving Gary to Zoulis , and the fact that Zoulls admittedly consulted Rider on
Gary's discharge , the undersigned is unable to credit Zoulis' denial.
PARAMOUNT PICTURES , INC. 1165
Conclusions with respect to interference, restraint, and coercion
The respondent argues that conceding that Briganti made all the statements
attributed to him by the Board's witnesses, no finding of unfair labor practices
can be based thereon since it is not shown that the respondent had knowledge
that employees of its Engineering Department were affiliated with any organiza-
tion except the Institute, and with respect to that organization, not only were
Briganti and Zoulis invited to affiliate with it, but the record contains no showing
of managerial hostility toward it. The undersigned has found that both Bri-
ganti and Zoulis were aware of Heap's union affiliations, but attributes no partic-
ular significance to this as an isolated factor. The undersigned also agrees
that the record establishes no bias on the part of the respondent toward the
Institute qua Institute. It is not required, however, that it be shown that the
respondent had knowledge of the actual affiliatiq.n of its employees or knew that
they were affiliated with any labor organization, in order to substantiate an
allegation of interference, restraint, and coercion. It is sufficient if it be shown
that the respondent's statements were directed generally against its employees'
concerted or union activities. The undersigned believes that Briganti's state-
ments, set forth in detail above, were premised on the belief and knowledge that
the employees were engaging in concerted and organizational activities, and
had the reasonable effect of discouraging such activities. Obviously, such state-
ments did not lack coerciveness because they may not have been directed against
affiliation with any particular labor organization.
The respondent further argues that inasmuch as the respondent is shown to
have collective bargaining agreements with labor unions covering substantially
all of its employees outside the Engineering Department, "there neither was nor
could have been any motive" on its part "for any anti-union attitude with respect
to the organization of the employees in the Engineering Department." The un-
dersigned agrees that respondent's history of collective agreements with labor
organizations is material in an evaluation of its conduct as viewed in the instant
situation, but is unable to agree that it is of sufficient probative weight to over-
come the positive evidence of its opposition, through Zoulis and Briganti, to the
concerted and organizational activities of the small group of employees in the
Engineering Department. The respondent may be conceded to have had no bias
against unions as such and still be held in violation of the Act because of its
supervisors' efforts to frustrate the employees of the Engineering Department in
their concerted effort to obtain extra compensation for overtime work and im-
proved working conditions in that department. -
Finally, the respondent urges that Briganti's statements made during the early
days of the strike, and his later statement following Gary's visit to Rider's office,
were directed solely to neglect of work during working hours. Admittedly, there
was confusion in the office during the early days of the strike and much discus-
sion among the employees pro and con the strike. Briganti, by his own admis-
sions, participated in these discussions. The extreme character of Briganti's
statements, and his singling out of Heap and Gary as the particular targets of
his threats, as well as the circumstances which precipitated the statements,
convince the undersigned that the threat of discharge was not intended to be
merely an admonition to cease organizational activities during working hours
and was not so understood by the employees, but was an unqualified threat of
discharge if the employees (lid not cease in their organizational activities.
In making his threat Briganti ostensibly spoke for management and the employees
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would reasonably conclude that he did so. His later statement to Heap, follow-
ing Gary's visit to Rider's office, that Gary was only the "number one" man
marked for discharge, was a threat which is reasonably attributed to Briganti's
growing apprehension over the concerted efforts of the employees to achieve a
better organization of the department and an improvement in wage and working
conditions.
Upon consideration of the entire record, including the discharge of Gary and
Heap, discussed hereinafter, the undersigned finds that Briganti's statements
(1) that "Mr. Zoulis was sick of this overtime agitation" and that he (Gary)
"had better stop it"; (2) that Zoulis had authorized him to discharge Gary and
Heap "and any other damn man in the office in order to stop this organization
work" ; (3) that if Heap was "smart" he would be on the side of management,
coupled with the threat that he (Briganti) "was going to see Mr. Zoulis about it
[Heap's letter to the Screen Set Designers] right away" ; and (4) that Zoulis had
authorized him to discharge Gary, coupled with the threat of further discharges,
are attributable to management and constitute interference, restraint, and co-
ercion within the meaning of Section 8 (1) of the Act.
B. The discharges
1. George Gary
Gary was a structural designer of some 17 years' experience in the engineering
field at the time of his employment by the respondent. He had worked as senior
structural engineer on the construction of the Pentagon Building in Washington,
D. C., and as a structural designer on other Government, as well as private, con-
struction jobs. While employed by the Government, he had a Civil Service status
of Senior Engineer. He was recommended for employment with the respondent
the Institute, of which he was president, by Heap, and he also submitted letters
of recommendation from companies for whom he had previously worked. He
was employed on January 20, 1945, and discharged on March 31, 1945. The re-
spondent's position, as developed during the hearing and as argued in its brief,
is that it discharged Gary because he was incompetent.
Soon after his employment, at Briganti's solicitation, Gary agreed to "coach"
the latter in structural design and on at least three occasions visited Briganti's
home outside working hours for this purpose. While admitting that he could not
qualify as a "design engineer," Briganti testified that Gary's explanation of
engineering problems was confused and, at times, erroneous, and that as a re-
sult of these meetings he came to doubt that the latter was competent. He
further testified, however, "We started out on engineering problems, but they
would finally wind up in discussions about how the office should be run and
how I should conduct myself in the office, how I should handle the men in the
office," and when questioned by respondent's counsel, "Subsequent to the first
lesson, how much time would you say was spent in engineering problems?" he
testified, ". . . we would get into a problem and then we would go off on a tan-
gent regarding conduct of the office. I imagine we spent about probably 15 or
20 minutes." It would appear from this testimony that Briganti had little
opportunity at these meetings to form an opinion as to Gary's ability as a
structural designer.
Briginti further testified that when Gary had completed drawings on his
first assignment at Paramount, the fabricator in detailing it did not understand
some of the details and was "continually" calling the office for Gary. He ad-
mitted that "in design there is apt to be that type of discussion," but testified
that it seemed to him that it was "rather unusual" the number of times Gary was
PARAMOUNT PICTURES, INC. 1167
called on the project. He later testified, "I can't say that he [Gary] was called
more than three times . . . " Zoulis, apparently referring to the same assign-
ment, testified that Gary's drawings contained numerous errors and caused dif-
ficulties in their execution but admitted that he did not speak to Gary about
the latter's faulty workmanship. Gary testified credibly and without con-
tradiction that he was complimented for his work on this project by Iver Burke,
who apparently was in charge of its execution. Burke did not testify.
Aside from the foregoing, in substantiation of its position that Gary was in-
competent, the respondent relied principally on (1) an incident when, according
to Briganti, Gary "blew up" and destroyed two or three days' work, and (2)
errors allegedly made by Gary in certain drawings relating to Stages 15 and 16.20
Concerning the former incident, Briganti testified :
Well, I was sitting at my table, and I heard an awful commotion at the
end of the room Mr. Gary was working, and I heard the rattling and tearing
of paper and grumbling. I looked up, and George Gary had torn up the
work that represented about two or three days' work, and I asked him,
I said, "What the hell is wrong with you?" He says, "Oh, I can't work in
this place. There is too much confusion. A guy can't even think. There
is always a lot of humbug and confusion here. A guy can't concentrate on
what he is doing."
Briganti admitted that the work on which Gary was engaged at the time "re-
quired some very strenuous stress diagramming," and that the office was noisy,
Briganti further testified that following the incident he had a conversation
with Heap during which the latter stated that he was sorry he had recommended
Gary for employment and that if he were in Briganti's place he did not think
that he "would stand for it very long." During the same conversation,,
according to Briganti. Heap stated that Gary had been sick over a period of
years and was recuperating from that illness, and that Gary was having a
little "family trouble."
Heap denied the statements attributed to him by Briganti, and testified that
he had no knowledge that Gary at any time had had "family troubles" or had been,
ill. He testified concerning the incident in question that Gary was engaged
on some "stress analysis work" which required concentration and quiet, whereas
the place where he was working was "as noisy as a boiler factory," and that he
suggested to Briganti that since Gary was situated in a noisy part of the office,
that he be given some drafting work requiring less concentration while he (Heap)
would take over the work Gary was then engaged on.
Gary admitted that he destroyed a sheet of paper which represented from
one to three and a half hours' work when, due to the noise and confusion about
him, he failed to execute correctly a stress diagram on which he was working.
He also admitted that he felt "exasperated" and "turned around and asked how in
the hell anyone was expected to do any constructive work with this racket
going on." He denied that he had any protracted illnesses or "family troubles,"
or had had any discussion with either Heap or Briganti concerning such matters.
The undersigned credits Gary's testimony. Admittedly, he was engaged in
work requiring concentration, skill, and precision. Admittedly, he was working
under difficult and trying conditions. The paper which he destroyed did not
represent two or three days' work but only a few hours', and since it contained
an error which was cumulative and could be corrected only by starting a new
diagram, its physical destruction was of no moment. The undersigned believes
20 A stage is it large barnlike structure which is soundproofed and otherwise equipped.
for the making of motion pictures.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is obvious that normally , Briganti, with knowledge of the difficulty of ac-
complishing a stress diagram in an atmosphere of noise and confusion, would
have made due allowance for those conditions , and would have attached little
significance to the incident . 21 The undersigned also accepts Heap's denials of
the statements attributed to him by Briganti . Heap was acquainted with Gary's.
ability at the time he recommended the latter for employment ; it is inconsistent
with the relationship of these two men, as reflected by the entire record, that
he would make the derogatory statements concerning Gary which were attributed
to him by Briganti.
With reference to Gary's work on Stages 15 and 16, Briganti testified that
when the former submitted a first draft of his drawings on this project, he called
Gary's attention to a "few discrepancies " and suggested that he "start all over
and draw the thing over." Briganti further testified that about a week prior to
Gary 's discharge on March 31, Gary submitted his second and final drawings
on the project, consisting of two sheets, with the statement that they were com-
plete. These drawings were received in evidence. Concerning the alleged
first draft, Briganti testified that it was not now in existence and he did not
know "what happened to it." According to Briganti , Gary 's final drawings con-
tained numerous errors and after examining these himself he turned them over
to Heap who also remarked "about the inaccuracies in the drawing." Heap
did not deny this testimony and it is credited. Briganti admitted, however, that
it was customary to have such drawings checked by an engineer. On cross-
examination , Briganti also admitted that in assigning the work to Gary, he failed
to include a cable duct and that the omission of this detail necessitated a re-
drafting of the project.' When first called to the witness stand, Briganti testi-
fied that after Gary had submitted the drawings in question he assigned Gary
to another job and that the redrafting of the project to include the cable duct
was assigned to another employee. When recalled by the respondent for fur-
ther examination, however, he admitted that the redrafting of the project was
assigned to Gary: "rather than go into the ramifications of trying to fix up this
drawing, we started him [Gary] off with the new drawing with the cable duct
included."
Briganti testified that after Gary had submitted his drawings and he had
had them checked by Heap, he recommended Gary's discharge to Zoulis "because
of the mariner in which he turned out these drawings ," and suggested to
Zoulis that a new man be hired to take Gary's place. Zoulis testified that
Briganti told him that Gary had "turned in a sheet that was filled with errors ;
that it had been returned to Mr. Gary to do over again ; that Mr. Gary had
done it over again ; that Mr. Heap had checked it. It still contained errors.
It could not be submitted for estimate." 23 Zoulis also testified that Briganti
recommended Gary's discharge and stated that Gary had turned in the drawings
as his final work on the project.
Ernest C. Hillman, a structural engineer and witness for the respondent in
substantiation of its claim that Gary was incompetent, testified that the draw-
21 Briganti first testified that he did not report the incident to Zoulis at the time of its
occurrence : "I sort of dismissed the issue for the moment and forgot about it." He later
testified that he did report it to Zoulis prior to the time he recommended Gary ' s discharge.
Zoulis also testified that Briganti reported the incident to him.
22 Briganti testified on cross -examination : "The cable way thing was something I had
completely forgotten about . . . It didn't enter my mind until Mr. Zoulis called it to my
attention , until I showed him these drawings."
23 Obviously , since the drawings complained of did not include the cable duct, omitted
through Briganti 's negligence , and had to be redrafted , there would be no occasion for sub-
mitting them "for estimate."
PARAMOUNT PICTURES, INC. 1169
ings in question contained numerous errors, some of which were errors of
omission "which, granted, can happen to anybody," and that he considered
the work "Incompetent" for one in Gary's position. Admittedly, he never saw
the drawings on which his testimony was based until shown them by respond-
ent's counsel shortly before the hearing. Both Briganti and Hillman referred
specifically to the errors which the drawings contained. On cross-examination,
Hillman admitted that his analysis of the drawings was based on the assump-
tion that Gary had been supplied with all the information necessary to make
the drawings, and that he had had "sufficient time to complete the drawing
and had turned it in as a completed drawing," but further testified, "whether
the drawing is complete or not, there are certain details there which should
have been indicated correctly the first time." "
Gary, while admitting that the drawings contained certain minor errors, tes-
tified that he never at any time submitted them as complete." He also testified
that the drawings in question were his first drawings on the project. In view of
Briganti ' s admission on cross-examination that because of his failure to advise
Gary concerning the inclusion of a cable duct, it was necessary to make new
drawings for the project, the confused and inconsistent character of Briganti's
testimony, and upon his observation of the witnesses, the undersigned is con-
vinced that the drawings relied upon by the respondent do not represent finished
drawings and were not submitted by Gary with this representation. The under-
signed also credits Gary's testimony that these were his first drawings on the
project. The undersigned believes that Briganti's reference to a second draft
related to Gary's redrafting of the project to include the cable duct which, due
to Briganti's oversight, was omitted from the first, an assignment first denied
by Briganti and later admitted. As a matter of fact, Gary was engaged in
making drawings to include the omitted cable duct at the time of his discharge.
This work was completed by Louis Mash, an employee hired some two weeks after
Gary's discharge.
Both Briganti and Zoulis testified that Gary's discharge was decided upon
several days prior to the actual discharge, at the time when Gary allegedly sub-
mitted his final drawings on Stages 15 and 16. Briganti testified that he recom-
mended Gary's discharge at that time, but suggested that he be permitted to
continue until the last day of the week, at which time he should be advised that
the respondent was "through with him." Zoulis testified that after receiving
Brigand's recommendation, he reported the entire matter to Rider and Rider
advised him, "If those are the conditions, I agree with you, we should release
the man." Rider did not testify. Zoulis also testified concerning the discharge
that he had been advised previously by Briganti of the incident, discussed above
when Gary "blew up," and of Gary's use of the company's telephone during
'* In this connection , Hillman referred to what he called a "small detail" which called
for an angle or structural shape which could not be procured on the market . He admitted
that such an error did not involve safety but testified that "the use of an angle of that size
would be one contributing factor that the man was not experienced or competent to do this
type of work." Gary testified, however, that as a draftsman he had nothing to do with
the inclusion of this particular type of angle plate , though he admitted that he may have
made an error in transferring the data. Gary 's testimony is credible . His chief function
on the project was that of a draftsman , and in making up the drawings he necessarily
relied on the engineer 's design sheets, calculations and sketches , and the architect 's draw-
ings. If there were errors in these sources, they would appear through no fault of Gary's
in the drawings.
a' Gary testified credibly that if he had not been required to start the drawing over, to
include the cable duct , he would have " made additional details to satisfy both the checking
front an architectural and engineering standpoint , and to clarify matters which the checkers
or others who might use the drawing indicated were not sufficiently clear."
701592-47-vol. 69 75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working hours.26 Presumably, all of these matters entered into the discharge,
since Briganti testified that Gary was discharged for a "series" of reasons,
of which he named the errors in structural drawings as "one of the important
ones."
On the morning of March 31, following his visit to Rider's office on the pre-
vious day,' Gary was called to Zoulis' office. Zoulis advised him, "We are re-
organizing and sending some of the work out," and "You just don't fit into the
new organization set-up." When Zoulis admitted that the respondent would
continue to require a structural designer, Gary asked why, since he had "been in
training and had experience along that line" he did not "fit in," but Zoulis refused
to discuss the matter further. He advised Gary that he was allowing the
latter an extra week's pay and hoped that he would be "friends." He also told
Gary that "Mr. Heap is leaving also." 28
Conclusions
The incidents apparently relied upon by the respondent to establish Gary's
incompetency are, in the main, trivial and supported chiefly by the testimony of
Briganti whom the undersigned has found to be an unreliable witness 2° Admit-
ted that Gary used the respondent's telephone during working hours for the
transaction of business of the Institute, there is no evidence that he did so after
being instructed not to. Briganti's testimony, apparently given for the purpose
of showing that Gary was incompetent in his first assignment, finally simmered
down to an admission that the telephone calls respecting the work, first described
as coming "continuously" and as "rather unusual," were no more than three in
number and that "in design there is apt to be that type of discussion." Zoulis
also testified that there were errors in Gary's first drawings but admitted that he
said nothing to Gary about them. In fact, it appears that at no time prior to
Gary's discharge did Zoulis, the head of the department, criticise Gary or advise
him that he considered the latter's work unsatisfactory. Briganti's testimony
concerning the incident when Gary destroyed a paper representing from 1 to 3
hours work, was a transparent exaggeration of a minor incident. The only
showing that the undersigned is able to regard as consequential, is the matter of
errors appearing in the drawings which Gary made about a week prior to his
discharge.
The undersigned believes that there were a number of errors in the drawings,
and that if they had been executed by Gary in the capacity of a structural designer
and had been submitted as complete drawings, they might very well raise some
doubts as to Gary's ability. It has been found, however, that Gary's function in
making the drawings was primarily that of a draftsman, and that some of the
errors appearing in the drawings may very well be attributed to the sources
upon which he necessarily relied in drafting them. More important is the fact
that he did not submit the drawings as complete and that, due to Brigand's ad-
29 Briganti testified that on several occasions Gary used the company's telephone for
receiving or making calls in connection with the Institute , and that this occurred during
working hours . He spoke to Gary about the matter and there is no showing that Gary
thereafter at any time used the telephone during working hours.
24 The Rider incident Is discussed in Section III (A ), supra.
sa These findings are based on Gary 's credible testimony. Zoulis gave a somewhat dif-
ferent, but less convincing, version of the interview and denied that he told Gary that
Heap was leaving.
2s The respondent did not set forth its affirmative defense in its answer to the Board's
complaint , and respondent 's counsel at no time during the hearing specifically stated the
matters relied upon to establish its affirmative defense.
PARAMOUNT PICTURES, INC. 1171
mitted oversight, a drafting of the project was required. Contrary to Briganti's
testimony when he was first called as a witness, the redrafting of the project was
assigned to Gary and the latter was engaged in that work at the time of his dis-
charge. The undersigned is not unmindful that Hillman testified that regardless
of whether or not the drawings were complete, certain errors appearing therein
indicated incompetency in one holding such a position as Gary's. The under-
signed is unable, however, to regard Hillman as a completely disinterested wit-
ness since, as will be seen hereinafter, his firm was given a contract by the re-
spondent on a project originally assigned to Heap. In any event, Hillman's
testimony was based largely on the erroneous assumption that the drawings were
complete, and without knowledge of the circumstances under which the drawings
were made and the elements of collaboration 30 which entered into their execu-
tion. Admittedly, the respondent did not rely on Hillman's opinions when dis-
charging Gary, since Hillman never saw the drawings in question until respond-
ent's counsel showed them to him shortly prior to the hearing.
Assuming, however, that there were an uncommon number of errors in the
drawings and that these were reasonably attributed to Gary, the undersigned
is convinced that this was not the motivating cause of the discharge. It has
been found that Gary's concerted and organizational activities were well known
to both Zoulis and Briganti and that Briganti, on being advised by Gary that
the employees were seeking the intervention of the Institute in pursuance of
their claims for overtime pay, warned the latter that Zoulis was "sick of this
overtime agitation" and that Gary "had better stop it." It has also been found
that Briganti told the employees of the Engineering Department that Zoulis had
authorized him to discharge Gary and Heal) and others if they did not stop their
organizational activities. The undersigned believes it is of particular significance
that Gary was discharged on the morning following his visit to Rider's office on
the afternoon of March 30. Gary had previously advised Briganti that the em-
ployees had gone as far as they could through him and the "regular channels of
the office," and intended to take the matter of their grievances to higher manage-
ment. Rider had only recently been made head of the department, supplanting
Zoulis in that capacity. It is clear from Briganti's statements to Heap, that he
was disturbed over Gary's visit to Rider's office. His announcement to Heap,
after inquiring of the latter why Gary had gone to Rider's office, that he had
been authorized by Zoulis to discharge Gary, was confirmed on the following
morning when the discharge was issued.
To offset the reasonable inferences arising from this sequence of events, both
Zoulis and Briganti testified that the decision to discharge Gary was reached
several days prior to the actual discharge. It is not convincing to the under-
signed, however, that had the decision to discharge Gary been definitely deter-
mined at that time, he would have been retained for several days thereafter,
without notice or intimation that lie was marked for discharge. Nor is it likely
that the respondent would have assigned Gary to the redrafting of the project
on Stages 15 and 16 if it was already convinced, on the basis of,prior drawings
on this same project, that he was so incompetent that his discharge was required.
Upon the basis of the entire testimony and record, and from his observation
of the witnesses, the undersigned finds that the respondent discharged Gary
because of his concerted and union activity, in violation of Section 8 (3) of the
Act, and thereby interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
51 See footnotes 24 and 25, supra.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. George Heap
(a) The respondent's claim that his work was unsatisfactory
The respondent in its original answer to the Board's complaint admitted the
discharge of George Heap but denied the allegations of unfair labor practices.
Near the close of the hearing, the respondent amended its answer to deny to
allegation of the discharge. In its brief filed with the undersigned, it contends
that "preponderance of the evidence is that Heap was not discharged but that
his employment was terminated by mutual consent," but further argues that
the "evidence demonstrates conclusively that Heap's work at Paramount was
unsatisfactory to it, and his termination resulted from perfectly proper motives
and reasons."
As previously stated, Heap was employed by Zoulis on December 27, 1944, as
a structural or designing engineer. He was a registered civil engineer with
some 28 years' experience in the field of engineering, and had worked on many
important engineering projects3' At the time of his employment by the respond-
ent he submitted letters of recommendation from the Aluminum Company of
America and numerous other business concerns. Zoulis, although a licensed
civil engineer, held no degree in engineering and clearly had far less experience
in the engineering field. Briganti appears to have had little or no experience in
structural engineering since he testified that soon after Gary was employed
lie spoke to the latter of wanting to be able to further himself "in the engineering
profession," inasmuch as he "would like to he able to figure or learn a little some-
thing about structural design." Briganti further testified that he depended on
Heap wholly for his "knowledge of structural engineering." It is clear from
the foregoing that Zoulis and Briganti necessarily relied upon Heap's superior
knowledge and experience in the engineering field for a solution of engineering
problems handled by the department.
Zoulls testified, however, that, on the. first job to which Heap was assigned,
he was impressed by the latter's "slowness of execution and the lack of originality
in thinking." "The nature of the problem," Zoulis testified, "was to consider
alterations to the existing trusses, to change their position and to reinforce them
so that they could sustain a composition roof and a sprinkler system and some
acoustical material." Heap, after an analysis of the existing trusses, advised
Zoulis that the "trusses would not figure to carry the additional load," and
could not be used. Zoulis then directed Heap to design new trusses and Heap
did so. Admittedly the construction was executed on the basis of Heap's analysis
and plans . There is no showing that Heap's analysis of the existing trusses was
erroneous or that there was any basis for Zoulis' conclusion that he lacked
"originality in thinking" with reference to this project, or that any responsible
engineer would have proceeded otherwise 3' ,
The respondent's contention that Heap's work was unsatisfactory rests princi-
pally upon his work in connection with Stage 5. This stage was an old building
which had been in existence since prior to the major earthquake in 1933. Heap
31 For example , Heap was chief structural engineer, with supervision over some 75 de-
signers and draftsmen , on $50,000,000 Aluminum and Extrusion M111 projects ; assistant
manager of engineering and structural engineer on the design of industrial buildings and
miscellaneous structures for Magnesium Plant, costing approximately $ 135,000 ,000 ; design-
ing engineer on Oceanic Airports , a "confidential" project, apparently of a military nature,
of an estimated approximate cost of $100,000,000 ; etc.
3' Heap testified that Zoulis instructed him to use the existing trusses but that after
analyses he found they would not sustain the "additional live load" according to the re-
quirements of the municipal building code, and that he refused to sign his name to any
plans which violated the code unless Zoulis was able to show him a letter of waiver from
the code authority.
PARAMOUNT PICTURES, INC. 1173
was assigned to this work in early February and it appears to have been his
major assignment during the period of his employment with the respondent.
Zoulis testified that the nature of the problem involved was "to consider the
possibility of improving the existing structure for reenforcement and other addi-
tions to make the stage more desirable for production use," and that among
the improvement contemplated was the installation of a grid system, an improved
duct system, and the lowering of the floor 4 feet in order to lend additional height
to the structure.
Gary was assigned to work with Heap on the project and Briganti, also,
participated jointly with them. Heap testified credibly that Briganti told him
that about $10,000 had been allotted for the proposed work and that they were
to see what they could do on the basis of this sum of money.
After a preliminary analysis of the existing ,structure, based on original plans
which admittedly were sketchy and incomplete, and personal observation, Heap
reported that the building was unsafe "as far as meeting the requirements of
the building laws for seismic design." He next prepared plans and computations
for reinforcing the existing structure to make it conform with his conception of
the building code. These were submitted to Briganti who incorporated Heap's
analysis and recommendations in a memorandum which Briganti signed and
which was submitted to Zoulis jointly by Briganti, Gary, and Heap. Zoulis
admittedly raised no specific objections to Heap's recommendations but sug-
gested that "every possible solution" should be sought in order to make the
existing structure "work." Heap testified in this connection, "Mr. Zoulis
thought we ought to go ahead and work out some design to make the stage
conform to what the company wanted, and also make it sanitary as far as the
Los Angeles building code was concerned." Further work was then undertaken
on the project which, according to Heap, consisted of "working out details as to
how to put in new steel columns, and as to how new ventilating and heating
system could be fitted under the floor, and as to how a new cat walk could be
constructed in the plane of the lower court of the building; general calculations
that went along with that work." After some 10 days or 2 weeks spent on
this further work, the additional data and plans were summarized and sub-
mitted to Zoulis, who complimented Heap on his work but stated that it did
not solve the problem "from a financial standpoint." n Heap then suggested the
substitution of concrete columns for strengthening the walls, and made other
recommendations for accomplishing the desired purposes at less cost. Following
tnis conference with Zoulis which Heap described as "a group of gentlemen
sitting down at the table, trying to solve a problem, an engineering problem,"
Heap began work on a plan for the substitution of concrete columns but before
he had finished he was taken off this work and assigned to a new job.
It is clear that at all times that he was engaged on the Stage 5 project,
Heap adhered to his original position that the existing structure was unsafe
and did not conform to the municipal building code. Admittedly, he advised
Zoulis that he would not sign any plans which did not, in his opinion, conform to
the code, unless a waiver was obtained from the code authority. It further
appears that Heap's proposals for strengthening the structure in order to execute
the proposed alterations involved an expenditure of approximately $100,000.
As previously stated, on March 15 Rider was made chief engineer and head
of the Engineering Department. Zoulis testified that he advised Rider that
progress on the Stage 5 project was "slow and unsatisfactory" and that he
83 Zoulis testified that Heap 's plans called for the removal of practically all the walls
of the stage . Obviously, this would call for an expenditure far in excess of the $10,000
which, according to Briganti , was allotted for the work.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
felt "the men who are doing the job do not have a satisfactory solution for it."
Rider replied„ "Well, let's plug along with it and get as much done as you can."
It does not appear, however, precisely what Zoulis would have regarded as a
"satisfactory solution" of the problem. Heap testified that while he was working
on the project, the respondent was constantly changing its plans with reference
thereto, and Zoulis admitted that there were "several problems" in connection
with the project. Briganti also testified in this connection :
Q. You had in mind several things that you were considering, sort of
considering around back and forth in your minds about what you were
going to do with Stage 5, did you not? -
A. That is right.
On or about April 1, Rider placed Charles Lutens, a structural engineer,
in charge of large scale projects, including the alterations of Stage 5. Lutens
suggested contracting out the work to the engineering firm of Hillman & Knowles.
The decision to contract out this work was reached during the first week in April,
according to Zoulis. Pursuant to directions, Heap submitted the work he had
done on Stage 5 to Hillman. From that date until his discharge be was assigned
to other work.
Hillman, who has been referred to previously in connection with Gary's
discharge, gave extensive testimony concerning plans executed by his firm
for alterations in connection with Stage 5. He was first asked to prepare
the "design drawings" to alter the structure by lowering the floor 4 feet. After
an analysis of the existing structure, Hillman advised the respondent that it
would be possible to gain the additional height of 4 feet by lowering the
floor, without structural or code complications, provided the respondent was
"satisfied with the present function of the structure , the superstructure." Hillman
further testified, "They were notified at the same time that the walls and wall
framing would not meet with present code requirements. I would like to make
that clear." He admitted that he was not asked to give his opinion of the srtucture
as it then stood, without changes. Only some 5 days after Hillman had
started his analysis and plans for lowering the floor 4 feet, Lutens proposed to
gain additional height by raising the roof as well as lowering the floor, and
Hillman advised him that this would require that the existing structure be
"materially. altered." Hillman's firm then proceeded to make the design draw-
ings for the raising of the roof as well as the lowering of the floor, and it was
not until June 19, that the completed drawings and plans were submitted
to the municipal building authority and a building permit issued." Admittedly
the plans as finally approved called for changes in the superstructure as extensive
as those proposed by Heap, and called for an expenditure of approximately $95,000.
Work was actually commenced on the project only some 2 or 3 weeks prior
to the hearing. This delay, according to the respondent, was due to the strike
which started early in March and lasted until on or about October 30. As
seen above, however, a building permit was not secured until June 17, and
this delay would not seem to be attributable to the strike. Hillman testified
that he had been advised that the work is now proceeding on the original plan
for lowering the floor only, but when questioned by respondent's counsel if
' Hillman first testified that working drawings were filed with the building authority for
"plan checking" within a month after work was started on the project , but later admitted
that it was probably about June 19 that the plans were actually filed and the permit issued.
The plans as completed consisted of some 15 sheets of blueprints and 36 sheets of calcu.
lations . Hillman admitted that he thereafter filed 2 sheets of corrections suggested by the
code authority , but testified that this was not unusual.
PARAMOUNT PICTURES, INC. 1175
he now had pending with the municipal building department plans for lowering
the floor only, he further testified : "We have no plans on file, but it is tt e
intention to file a change order or alteration to the original plan for permission
to do only the operation of lowering the floor and not raising the roof." (Em-
phasis supplied.) The circumstances under which a permit may or may not
be obtained, and the precise nature, extent and cost of the alterations now
being undertaken, do not appear in the record. The undersigned believes it is
clear, however, that Hillman's firm never completed a set of drawings which
called for the lowering of the floor only and that no building permit was
issued on the basis of such a plan."
(b) The respondent's claim that Heap was not discharged but quit by
mutual agreement
The respondent bases its contention that Heap was not discharged but quit
principally upon alleged conversations between Briganti and Heap which
occurred at or about the time Heap did his last work on Stage 5. According
to Briganti, Heap stated that he was not satisfied "with things the way that
Paramount does," and agreed to Briganti's suggestion that he resign, staying
only long enough to enable the respondent to get a man to take his place.
"So at that time," Briganti testified, "I went to Mr. Zoulis and explained to
him what I had said to George, and Mr. Zoulis said, well, that was swell, and
we proceeded getting a new man." Zoulis testified similarly concerning his
conversation with Briganti.
A few days before Heap's employment was terminated, the respondent
employed Louis Mash. On or about April 14 or 15, according to Briganti, he
told Heap that Mash had been employed to take Heap's place. Briganti tes-
tified that Heap became very angry on receiving this information, referred
to Mash as "that dirty Jew bastard," and said that he would not work with
Mash and was leaving at once. Briganti further testified that he "persuaded"
Heap to stay long enough to give Mash the information "that was necessary
to take on his work." Briganti testified that at the time he spoke to Heap
concerning Mash, he (Briganti) did not know that the respondent had decided
to contract out the work on Stage 5.
Heap admitted that lie was dissatisfied with the organization of the Engineer-
ing Department and that he considered Zoulis incompetent both as an engineer
and as the head of the department, but denied that he at any time agreed to
quit his job or that he advised any representative of management that he
intended to quit. He specifically denied statements attributed to him by
Brigand. He testified credibly that on an occasion when Briganti accompanied
him to the office of Hillman & Knowles, Briganti asked him if he could get
another job and he replied that he would not quit. Heap admitted that
Briganti talked to him concerning Mash and that he told Briganti that he was
acquainted with Mash, but denied that he referred to Mash in abusive terms
or told Briganti that he would not work with Mash. According to Heap, whom
u The following is an excerpt from Hillman 's testimony upon being questioned by the
undersigned :
Q. Did you actually execute designs for lowering this stage 4 feet?
A. Yes, sir.
Q. You executed and delivered that to the company?
A. That is right. That was completed in connection with increasing the height of
the building as well.
Q. You did complete the design?
A. As one project we completed our services.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the undersigned credits, Briganti told him that Mash was being hired to assist
him in place of Gary who had recently been discharged. As has been seen,
Mash actually completed the drawings on which Gary was engaged at the
time of his discharge.
Mash reported for work on Monday, April 16. On April 20, Zoulis advised
Heap that the company had decided to contract out all their structural engineer-
ing work and that there would not be any further structural engineering for
him to do, and that he should know at this time that he did not "fit into the
organization." Heap asked for his availability certificate and final pay check,
and told Zoulis that he considered that he had been discharged 3g On April
23, Heap returned for his final check which was not available on the date of
his discharge, and on this occasion saw R. T. Hunter, respondent's assistant
industrial relations manager, and severely criticised the management of the
Engineering Department. Hunter testified that Heap stated that he had quit,
and that in his criticisms of the Engineering Department, he referred to its
violation of municipal code requirements, and failure to pay time and a half
for overtime work. Subsequent to his discharge Heap filed a complaint with
the appropriate government agency relative to overtime pay earned during his
employment with the respondent, and received additional compensation from
the respondent on the basis of his complaint. Heap also advised the municipal
building authority that the respondent was not complying with the building
code, and that responsible engineers employed by the respondent frequently
quit because of conditions existing in the Engineering Department.
On the basis of the entire evidence and upon his observation of the witnesses,
the undersigned is convinced that Heap did not voluntarily relinquish his em-
ployment with the respondent but, to the contrary, was discharged. His dis-
satisfaction with the management of the Engineering Department was admitted;
in fact, his efforts to organize the employees of the department stemmed from
his dissatisfaction and desire to improve his own lot and theirs by bringing about
better wage and working conditions. The undersigned is convinced that Brig-
anti's version of an amicable agreement by which Heap was to surrender his em-
ployment and thus make way for a new employee, is not worthy of credit. Heap's
actions, subsequent to his discharge, are inconsistent with such an amicable agree-
inent and with a friendly leavetaking, as testified to by Zoulis. It is also clear
from Heap's undisputed and credible testimony that from the date of the sever-
ance of his employment on or about April 20, until July 1, he was without work,
although he registered with the usual employment services. This circumstance
strongly militates against a conclusion that he voluntarily surrendered his em-
ployment with the respondent" Finally, the circumstances under which Heap's
employment was terminated were peculiarly within the orbit of respondent's
knowledge at the time it filed its original answer to the Board's complaint,
and in that answer it admitted the discharge.
3 These findings are based on Heap's credible testimony. Zoulis testified that he told
Heap that he was sorry the latter was leaving, and that the respondent would be very
happy to help him at any time and would like to have him call on the company if he needed
its help. According to Zoulis, Heap "left very friendly."
31 Briganti testified that within 3 weeks of the termination of his employment, Heap
called "somebody's office" regarding the military project on which he was committed to
work when and if the project was begun, and asked "when and how soon they thought the
thing was going to start ." Briganti further testified , " It was definite in his [Heap 's] mind
that the project was going to start pretty quick, and he was going to leave Paramount."
While Heap may very well have made such a telephone call, there is no basis in the record
for Briganti's conclusion that Heap was advised that the project was about to start. The
facts app( aring herein, indicate the contrary.
PARAMOUNT PICTURES, INC.
(c) Conclusions
1177
The shifting character of the respondent's defense and its failure at any time
during the hearing to set forth specifically the grounds for its contention that
Heap's work was unsatisfactory, leaves the undersigned somewhat in doubt as to
precisely upon what grounds the respondent relies. In respondent's brief, how-
ever, it is argued chiefly (1) that "Heap's termination was the result of a mutual
dissatisfaction and, hence, mutual consent," an argument which the undersigned
had rejected, and (2) that I-leap's work on Stage 5 was demonstrably unsatis-
factory and sufficiently so to justify the termination of his employment. While
no issue of insubordination was raised at the hearing, respondent in its brief
refers to Heap's admissions that he repeatedly refused to design structures as
directed to by Zoulis. Heap's testimony in this respect, if isolated from the en-
tire context of the record, would be suggestive of insubordination, but Zoulis'
testimony regarding his relations with Heap, while tending to show that Heap's
work was unsatisfactory from an engineering standpoint, does not indicate that
he regarded the latter as insubordinate.' Since Heap was employed because of
his knowledge and experience as a structural engineer, it would be unreasonable
to assume, in the absence of an affirmative showing to the contrary, that on such
occasions as he advised Zoulis that the latter's proposals could not be executed
without violation of the building code, Zoulis would regard this as insubordinate.
In connection with Heap's work on Stage 5, the respondent complains that,
whereas he was given the specific problem of lowering the floor of the structure,
he reported after a preliminary analysis that the existing structure was not
safe as it then stood and did not conform to the code requirements. It would
appear that as a staff structural engineer Heap was bound to report his findings
in this matter to his superior and that he would have been negligent in perform-
ance of his duties had he not done so. It further appears that the lowering of
the floor was only one of many problems being considered by the respondent in
connection with proposed alterations of Stage 5, but it is a fair conclusion from
Heap's testimony, that it was his advice that this could not be accomplished
and at the same time be made to conform to the building code, without a sub-
stantial reinforcement of the existing structure. While Hillman testified that
the floor could be lowered without such substantial changes in the superstructure,
he was careful to explain that his opinion was not sought as to the safety of the
structure as it then stood, without changes, and that he advised the respondent
"that the walls and wall framing would not meet with present code require-
ments." Assuming, however, that Heap and Hillman differed as to code require-
ments as applied to new construction, Hillman's actual plans as finally submitted
and approved by the municipal authority called for a reinforcement of the super-
structure as extensive and as expensive as that proposed by Heap. Obviously,
the undersigned is not called upon to pass upon the respective ability as struc-
tural engineers of Heap and Hillman, but is convinced that there is nothing in
Hillman's testimony which reflects upon or detracts from Heap's skill and integ-
rity as a structural engineer.
It may be argued, however, that the fact that the project involving Stage 5
was eventually referred to an outside engineering firm is proof that the re-
sponilent was dissatified with Heap's work. Zoulis' testimony that this action
was taken because of a desire to get the construction under way as quickly as
38 Heap further testified, however, that there was never an unfriendly word spoken between
him and Zoulis with reference to the work to which he was assigned , and there is nothing
in Zoulis' testimony to indicate the contrary. Clearly, he never advised Heap that he
regarded the latter's attitude as insubordinate.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible , and because Heap had supplied no satisfactory solution of the prob-
lem, would indicate dissatisfaction with Heap 's work. However, as has been
seen, a building permit was not actually issued until months after Heap's dis-
charge, and in the interim the respondent had made a drastic change in its plans
for the alterations of the existing structure . It is also material in this connec-
tion that before Heap had completed his work on Stage 5, the Engineering De-
partment was reorganized , Lutens being placed in charge of large scale operations
including the alterations on Stage 5 , and that it was Lutens who suggested con-
tracting out the work . Lutens did not testify and there is no basis in the record
for determining what his general policy was with reference to contracting out
large scale projects . If haste was one of the primary considerations, it may
very well be that the work could be expedited by contracting it out to an engi-
neering firm, since Hillman admitted that from two to four employees of his office
worked on the plans in connection with Stage 5. In any event, the contracting
out of this work did not enable the respondent to dispense with the services of a
structural engineer, since contrary to Zoulis' statement to Heap on the occa-
sion of the latter's discharge , the respondent continued to employ structural
engineers , and both Zoulis and Briganti admitted that Mash was employed to take
Heap's place. The real key to Heap's discharge, the undersigned believes, is
found in Zoulis' statement to Heap that the latter did not "fit into the organ-
ization."
Zoulis was doubtless aware of Heap's dissatisfaction with the way the En-
gineering Department was run. Heap had voiced his criticisms to Briganti, and
had openly voiced his dissatisfaction to both Zoulis and Briganti with the failure
of the respondent to allow extra compensation for overtime work. Further-
more, it is clear that both Zoulis and Briganti knew that Heap, together with
Gary, was attempting to organize the department in furtherance of the
employees' collective desires with reference to wage and working condi-
tions. That Heap was identified with Gary as a leader in concerted and or-
ganizational activities is demonstrated by Briganti's statement linking their
names in his threat of discharge during the early days of the strike, his implied
threat when announcing Gary's discharge, and Zoulis' statement to Gary on
the occasion of the latter's discharge that Heap was "leaving also." Assuming,
therefore, that plausible reasons for Heap's discharge existed, these reasons are
so enmeshed with Heap's concerted and union activities, activities which caused
the respondent to threaten him with discharge, that the undersigned is convinced
that these activities were a determinant in the respondent's decision to discharge
him.
Upon the entire record and from his observation of the witnesses, the under-
signed finds that a motivating cause of Heap's discharge was his union and con-
certed activities, and that the respondent in discharging him violated Section 8
(3) of the Act, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 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 operations of the respondent described in Section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
PARAMOUNT PICTURES, INC.
V. THE REMEDY
1179
Since it has been found that the respondent has engaged in certain unfair labor
practices the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the respondent discriminated in regard to the
hire and tenure of employment of George A. Heap and George A. Gary by dis-
charging and refusing to reinstate them because of their concerted and union
activities,' the undersigned will recommend, in order to effectuate the policies
of the Act, that the respondent offer to them immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
rights and privileges, and that the respondent make them whole for any loss of
pay they may have suffered by reason of the respondent's discrimination against
them by payment to them of a sum of money equal to the amount which they
would normally have earned as wages, from the date of their discharge to the
date of the respondent's offer of reinstatement, less their net earnings40 during
said period.
Because of the narrow scope of the respondent's illegal conduct, limited to a
small group of employees in a single department, and on the entire record, the
undersigned is not persuaded that this conduct reflects a determination generally
to interfere with, restrain, and coerce its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and therefore the recommendations will be
confined to a correction of the conditions found to exist and to the posting of ap-
propriate notices to its employees in connection therewith.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Technical Engineers, Architects and Draftsmen Union, affiliated with the
American Federation of Labor, and Southern California Professional Engineering
Association, unaffiliated, are labor organizations within the meaning of Section
2 (5) of the Act.
2. By discriminating in regard to hire and tenure of employment of George A.
heap and George A. Gary, thereby discouraging the union and concerted activi-
ties of its employees, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act the respondent has engaged in,
m If the findings were based on concerted activities alone, the remedy would remain essen-
tially the same. In this connection, see the Board's rationale in the following cases where
it held that a discharge for concerted activities not only violated Section 8 (1) of the Act,
but also discourages membership in a labor organization in violation of Section 8 (3).
Matter of Rockingham Poultry Marketing Cooperative, Inc., 59 N. L. R. B. 486; Matter of
The, Sandy Hill Iron & Brass Works, 55 N. L. R. B. 1 ; Matter of Ever Ready Label Cor-
poration, 54 N. L. R. B. 551 ; Matter of Texas Textile Mills, 58 N. L . R. B. 352. See also,
Fort Wayne Paper Co. v. N. L. R. B., 111 F. (2d) 869, 870-871 (C. C. A. 7).
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent which would not have been incurred but for their unlawful
discharge and the consequent necessity of their seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon
Federal, State, county, municipal or other work-relief projects shall be considered as earn-
ings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Paramount Pictures, Inc., Los
Angeles, California, its officers , agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging employees from engaging in concerted and union activities,
by discharging and refusing to reinstate any of its employees or in any manner
discriminating in regard to the hire and tenure of employment or any term or
condition of employment ;
(b) Offer to George A. Heap and George A. Gary immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges in the manner set forth in "The
remedy" ;
(c) Make whole, in the manner set forth in "The remedy", George A. Heap
and George A. Gary for any loss of earnings they may have suffered by reason
of the respondent 's discrimination against them to the date of the respondent's
offer of reinstatement ;
(d) Post in the Engineering Department of its Los Angeles Studios copies
of the notice attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region , shall, after
being duly signed by respondent's representative, be posted by respondent immedi-
ately upon receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by respondent to insure
that said notices are not altered, defaced, or covered by any other material.
Notify the Regional Director for the Twenty-first Region in writing, within ten
(10) days from the receipt of the Intermediate Report, what steps the respond-
ent has taken to comply herewith.
It is further recommended that unless, on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., exceptions to the Intermediate
Report or to any other part of the record or proceeding ( including ruling upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy thereof with the Regional Director. As further provided in said Section 33,
should any party desire to argue orally before the Board, request therefor must
be made in writing within ten (10) days from the date of the order transferring
the case to the Board.
Dated April 17, 1946.
WILLIAM E. SPENCER,
Trial Examiner.
PARAMOUNT PICTURES, INC. 1181
APPENDIX A
NOTICE TO ALL EMPLOYEES
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 our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Technical Engineers, Architect and Drafts-
men Union, affiliated with the American Federation of Labor, Southern
Professional Engineering Association, or any other labor organization, to
bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE wILL oFEER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
George Albert Heap
George Albert Gary
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
Dated ------------------------
PARAMOUNT PICTURES, INC.,
By ------------------ -----------
(Representative ) (Title)
NOTE : Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.