Before Lumbard, Chief Judge, Barnes,*fn* Circuit Judge and Smith, District Judge.
BARNES, C.J.: This is a petition for enforcement of an order of the National Labor Relations Board. It is before us pursuant to Title 29 U.S.C. § 160(e).
Originally, the respondent Combined Century Theatres, Inc.(herein called Century), took the position that it was a purely intrastate chain of neighborhood motion picture theatres not engaged in interstate commerce sufficiently to bring it under the coverage of the National Labor Relations Act. Hence it was subject to the New York State Act. Under the New York State Labor Act "closed shop" union-security provisions in collective bargaining agreements were not prohibited.
When the National Labor Relations Board asserted jurisdiction over the activities of the respondents (Combined Century Theatres, Inc., 1958, 120 NLRB 1379) a stipulation was entered into between the parties consenting to a remedial order eliminating the preferential hiring clause from the contract existing between respondents, and an order carrying that stipulation into effect was issued on March 11, 1959. That issue is no longer in dispute between the parties, and is not an issue herein. However, the existence of such an intent to maintain a "closed shop" contract so long as it was lawful to do so is a circumstance which existed at the time the employee's discharge (herein attacked and found illegal by the NLRB) took place. It adds background to what thereafter took place.
The sole issue presented at this time is whether the provisions in the supplemental decision and order of the Board, dated June 25, 1959, providing for the reinstatement of, and awarding wages to, one Steinberger, should be enforced.
Alfred Steinberger was employed by respondent Century as a motion picture projectionist. This employment was intermittent from 1947 to 1951, and full time thereafter. For some two years he was assigned to the Baldwin Theatre; thereafter, and until May 1955 t Union, but was referred to jobs by the Union's business agent under a "work permit" system which enabled nonmembers to obtain such work on payment of three per cent of their earnings to the Union. Steinberger had attempted to join the Union, but his application had been rejected.
In May 1955 one Berman, a Union member, returned from military service, and the Union's business agent Nagengast told Steinberger that Berman would replace him on the Alan Theatre job. Berman had worked with Steinberger at the Alan Theatre before the former's induction into the armed forces, and at that time had been replaced by one Elliott, who was on the job with Steinberger at the time of Berman's return. Steinberger asked Nagengast why Elliott would not be replaced by Berman, since Elliott had been originally assigned to handle Berman's job. Nagengast answered that Elliott was a member of respondent Union and had preference over Steinberger who was a nonmember.
Steinberger was due to start on his two week paid vacation on Monday, May 30, 1955. However, he asked the Union agent for work, and the union agent found temporary work for Steinberger on May 31, 1955, at the Bellerose Theatre, where Steinberger worked until Saturday, June 11, 1955.
On Friday, June 10, 1955, Steinberger asked the Union agent if he could not return to the Alan Theatre, and, in fact, reported at the Alan Theatre for work, but was denied access to the projection room by the theatre management, which deferred to the Union.
After Steinberger sought legal advice and his attorney had conferred with Union representatives, Steinberger was given employment commencing June 20, 1955, at the Baldwin Theatre, which continued until October 1955. The conditions of employment were similar as to pay, company benefits and working conditions at the Alan and Baldwin Theatres.
On October 28, 1955, Steinberger was dismissed for repeated violations of company regulations and rules relating to safety. The Regional Director refused to issue a complaint on Steinberger's charge that this October discharge was discriminatory, and this refusal was sustained by the Board's General Counsel.
The Board, however, did issue a complaint on the charge Steinberger's removal from the Alan Theatre job was a discriminatory discharge and in its supplementary order of June 22, 1959, directed respondents to cease and desist from the unfair labor practices found, and affirmatively, to offer reinstatement with back pay to Steinberger, and to post appropriate notices.
The single restricted issue is therefore whether there exists in the record substantial evidence that this was a discriminatory discharge. The Board so found, as do we.
Steinberger had testified that the Union's representative told him that Elliott was a "card man" and Steinberger a permit holder, and that ...