Cleveland Cinemas Management Co.

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 785 (N.L.R.B. 2006)

CLEVELAND CINEMAS MANAGEMENT CO., LTD.
346 NLRB No. 77
785
Cleveland Cinemas Management Company, Ltd. and
International Alliance of Theatrical Stage Em-
ployees of the United States and Canada, Local
160
Cleveland Cinemas Management Company, Ltd.,
Cleveland Cinemas, LLC, Shaker Square Cine-
mas LLC, and Cedar-Lee Theatre Company,
Single Employer and International Alliance of
Theatrical Stage Employees of the United States
and Canada, Local 160. Cases 8–CA–34971–1
and 8–CA–35072–1
March 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On November 10, 2005, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3

1 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(3) and (1) by failing to consider
for employment and/or refusing to hire three projectionists who had
been employed by Megastar, the Respondent’s predecessor, at the time
the Respondent replaced Megastar as the operator of a Cleveland-area
theater.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to provide the
appropriate remedy for the violation found, and in accordance with
Ferguson Electric Co., 335 NLRB 142 (2001), and Excel Container,
Inc., 325 NLRB 17 (1997). We shall also substitute a new notice in
conformity with the Order as modified. “[M]atters of remedy are tradi-
tionally within the Board’s province, and may be addressed by the
Board sua sponte.” R.J.E. Leasing Corp., 262 NLRB 373 fn. 1 (1982)
(modified decision). Thus, where, as here, an employer at impasse
unlawfully has implemented only part of its last best offer, the remedy
is to restore the status quo ante and require the employer, on request, to
bargain with the union. See Plainville Ready Mix Concrete Co., 309
NLRB 581 (1992), enfd. 44 F.3d 1320 (6th Cir. 1995). We shall there-
fore require the Respondent to restore the status quo ante by reinstating
the projectionists to the positions they occupied prior to the Respon-
dent’s unlawful implementation and making them whole for any loss of
ORDER
The National Labor Relations Board orders that the
Respondent, Cleveland Cinemas Management Company,
Ltd., Cleveland Cinemas, LLC, Shaker Square Cinemas
LLC, and Cedar-Lee Theatre Company, a single em-
ployer, Cleveland, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union, In-
ternational Alliance of Theatrical Stage Employees of the
United States and Canada, Local 160, as the representa-
tive of the employees in the appropriate unit described
below, by unilaterally implementing a proposal at im-
passe that is different from its last, best offer to the Un-
ion.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On the Union’s request, bargain in good faith with
the Union as the exclusive representative of employees in
the following appropriate unit:
All employees employed by the Respondent at its
Tower City, Shaker Square and Cedar Lee motion
picture theaters as moving picture machine operators
and projectionists, but excluding managers, assistant
managers, chiefs-of-staff, chief ushers, concession
attendants, ushers, doormen, ticket sellers, mainte-
nance crews, cleaners, guards, supervisors and all
other employees.

pay and benefits they suffered as a result of the Respondent’s unlawful
conduct.
The judge ordered the implementation of the Service Technician
Agreement. He did not order the restoration of the projectionist posi-
tion. Chairman Battista would adopt the judge’s remedy. The General
Counsel has not excepted to it, and the Respondent has excepted only
to the finding of a violation. The violation here was the failure to im-
plement the entirety of the Respondent’s last proposal. Thus, the sound
remedy, not protested by anyone, is to require the implementation of
that last proposal. That proposal was the one on the table at the time of
the lawful impasse, and that is the one that should have been imple-
mented. Further, there is no allegation or finding that the bargaining
leading up to the impasse was in bad faith. Accordingly, it makes no
remedial sense to place the parties back to where they were prior to the
start of that bargaining.
Plainville Ready Mix, supra, is not to the contrary. The violation
there was the implementation of certain provisions of the health and
wage plans, and thus the remedy was to rescind those implementations.
By contrast, the violation here was the failure to implement the Service
Technician Agreement. See sec. II,B, par. 13 of ALJD. It was not the
elimination of the projectionist positions. Consistent with that, the
judge ordered only the implementation of the Service Technician
Agreement, and the General Counsel does not except to that limited
remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD786
(b) Within 14 days from the date of the Board's Order,
offer the projectionists whose jobs were eliminated on
June 1, 2004, full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(c) Make the projectionists whole, with interest, for
any loss of earnings and other benefits resulting from the
Respondent’s unlawful implementation of the elimina-
tion of their positions. Backpay shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner
set forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful
elimination of the projectionist positions, and within 3
days thereafter, notify the projectionists, in writing, that
it has done so and that it will not use the elimination of
the projectionists’ positions against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities in Cleveland, Ohio, copies of the attached
notice marked “Appendix B.”4 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since June 1, 2004.

4 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with this Order.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the Federal labor law and has ordered us to post
and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT fail to bargain in good faith with the Un-
ion, International Alliance of Theatrical Stage Employees
of the United States and Canada, Local 160, as the repre-
sentative of the employees in the appropriate unit de-
scribed below, by unilaterally implementing a proposal at
impasse that is different from our last, best offer to the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on the Union’s request, bargain in good faith
with the Union as the exclusive representative of em-
ployees in the following appropriate unit:
All employees employed by the Respondent at its
Tower City, Shaker Square and Cedar Lee motion
picture theaters as moving picture machine operators
and projectionists, but excluding managers, assistant
managers, chiefs-of-staff, chief ushers, concession
attendants, ushers, doormen, ticket sellers, mainte-
nance crews, cleaners, guards, supervisors and all
other employees.
WE WILL, within 14 days from the date of the Board’s
Order, offer the projectionists whose jobs were elimi-
nated on June 1, 2004, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
CLEVELAND CINEMAS MANAGEMENT CO., LTD. 787
WE WILL make the projectionists whole, with interest,
for any loss of earnings and other benefits resulting from
the unlawful implementation of the elimination of their
positions.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful elimination of the projectionist positions, and WE
WILL, within 3 days thereafter, notify the projectionists,
in writing, that we have done so and that we will not use
the elimination of the projectionists’ positions against
them in any way.
CLEVELAND CINEMAS MANAGEMENT COM-
PANY, LTD., CLEVELAND CINEMAS, LLC,
SHAKER SQUARE CINEMAS LLC, AND CEDAR-
LEE THEATRE COMPANY, SINGLE EMPLOYER
Alan Binstock, Esq., for the General Counsel.
Stephen A. Markus and Fred Seleman, Esqs. (Ulmer and
Berne), of Cleveland, Ohio, for the Respondent.
John A. Galinac, Business Agent, of Cleveland, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On April 8,
2004, International Alliance of Theatrical Stage Employees of
the United States and Canada, Local 160 (the Union) filed a
charge against Cleveland Cinemas Management Company, Ltd.
(Respondent), in Case 8–CA–34971–1.
On September 30, 2004, the National Labor Relations Board
(the Board) by the Regional Director for Region 8, issued a
complaint alleging that Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act), when in
March 2004 it refused to consider for employment and/or re-
fused to hire Michael Yeagar, Thomas Draper, and James Mar-
cinek.
Respondent filed an answer in which it denied that it violated
the Act in any way.
On May 26, June 9, and September 16, 2004, the Union
filed a charge, a first amended charge, and a second amended
charge, respectively, in Case 8–CA–35072–1 against Respon-
dent and three other entities, i.e., Cleveland Cinemas, LLC,
Shaker Square Cinemas, LLC, and Cedar-Lee Theatre Com-
pany.
On October 14, 2004, the Board, by the Regional Director
for Region 8 issued a complaint alleging that the four entities
listed above are a single employer and that the entities, collec-
tively referred to as Respondent, violated Section 8(a)(1) and
(5) of the Act when on June 1, 2004, after reaching a lawful
impasse in contract negotiations, it unlawfully failed to imple-
ment that portion of its final contract offer that afforded service
technician work to the unit represented by the Union.
Respondent filed an answer in which it denied it violated the
Act in any way.
On October 14, 2004, the Board, by the Regional Director
for Region 8, ordered that these two cases be consolidated for
trial.
A hearing was held before me on June 6, 7, and 8, 2005, in
Cleveland, Ohio.
Based on the entire record to include posthearing briefs sub-
mitted by counsel for the General Counsel and counsel for Re-
spondent and considering the testimony of the witnesses and
their demeanor, I make the following
I. FINDINGS OF FACT
Respondent, Cleveland Cinema Management Company, Ltd.
is an Ohio limited liability company with an office and place of
business in Solon, Ohio, where it has been engaged in the op-
eration of movie theaters in the Cleveland, Ohio area. By con-
tract with Dolan Cinemas, LLC and 422 Company LTD, Re-
spondent assumed management of the Chagrin Cinemas, a 14-
screen movie theater, on April 9, 2004.
The unfair labor practices alleged in Case 8–CA–4971–1 in-
volve the Chagrin Theater.
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The unfair labor practice allegations in Case 8–CA–35072–1
involve four entities: Cleveland Cinemas Management Com-
pany, Ltd., which operates movie theaters in the Cleveland,
Ohio area; Cleveland Cinemas, LLC, that owns and operates
the Tower City Movie Theater, an 11-screen theater in Cleve-
land, Ohio; the Cedar-Lee Theater Company which owns and
operates the Cedar-Lee Theater, a 6-screen theater located in
Cleveland Heights, Ohio; and Shaker Square Cinemas, LLC
which owns and operates the Shaker Square Cinema Movie
Theater, a 6-screen movie theater located in Cleveland, Ohio.
For purposes of this litigation only Respondent admits that
the four entities listed above constitute a single employer. Re-
spondent further admits, and I find, that Respondent has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The 8(a)(1) and (5) allega-
tions in Case 8–CA–35072–1 involve negotiations between
Respondent and the Union regarding the three movie theaters
mentioned above, i.e., Tower City, Shaker Square, and Cedar
Lee.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case 8–CA–34971–1
As background for both this case and Case 8–CA–35072–1,
it should be noted that technology has rather dramatically
changed the job of movie projectionist. The testimony and
documents in this case demonstrate that being a projectionist is
not as complex a job as it once was. Because of technology
theater managers can also run several movie projectors at the
same time. Fewer and fewer people running movie projectors
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD788
can run film on more and more screens than in the past. I don’t
believe any party to this litigation would disagree with this.
In Case 8–CA–34971–1, it is alleged that Respondent vio-
lated Section 8(a)(1) and (3) of the Act when it failed to con-
sider for employment and/or refused to hire Michael Yeagar,
Thomas Draper, and James Marcinek.
Larry Dolan owns the Chagrin Theater which is a 14-screen
movie theater in Solon, Ohio. He contracted with Megastar to
operate the theater for him. Later he contracted with Respon-
dent to replace Megastar as the operator of the theater. Re-
spondent was due to take over operation of the theater on April
9, 2004.
When Megastar managed the Chagrin Theater there were
three classifications of workers in the theater—managers, pro-
jectionists, and floor staff.
Megastar employed three managers, i.e., a general manager,
a house manager, and an assistant manager. It also employed
three projectionists—two full-time projectionists, Michael
Yeager and Thomas Draper, who worked 35 to 40 hours per
week and a part-time or swing projectionist, James Marcinek,
who worked about 9 hours per week.
Megastar also employed floor staff. Floor staff consisted of
ushers, people who worked in the concessions, ticket takers,
etc.
Only the projectionists were represented by a Union. In this
case IATSE Local 160.
It is uncontested and not alleged as an unfair labor practice
that Respondent, when it took over the theater on April 9, 2004,
wanted to have the three managers, who were to be statutory
supervisors within the meaning of Section 2(11) of the Act, do
the projectionist’s work and the six jobs, i.e., three managers
and three projectionists would be reduced to three managers
who would do the projectionist work.
Respondent, in the person of Owner Jon Foreman and Direc-
tor of Operations Ken Young, hired the three managers who
worked for Megastar as managers. Tim Monde was kept on as
general manager, Brian Dunigan was kept on as house man-
ager, and David Smith was kept on as assistant or relief man-
ager. Prior to Respondent taking over the Chagrin Theater on
April 9, 2004, the three managers interviewed and hired the
floor staff.
Respondent’s owner and founder, Jon Foreman, testified that
the three managers were kept on because he understood that
they were doing a satisfactory job. There is no evidence in the
record to refute this. For example, no one from Megastar, no
representative of Owner Larry Dolan, or Larry Dolan himself,
or any employee at the Chagrin Theater claimed that the three
managers who were kept on or any one of them were doing a
bad job.
Since Respondent was hiring statutory supervisors to do
manager and projectionist duties and not promoting its employ-
ees to management positions, it was not unlawful for it to dis-
criminate in hiring based on union affiliation. If, on the other
hand, Respondent hired all the employees in the theater and
was deciding who to promote to management from within the
ranks of its own employees then it could not discriminate based
on union affiliation in deciding which of its employees to pro-
mote to management. Yeager, Draper, and Marcinek, however,
were not employees of Respondent when it decided to hire the
Megastar managers to be its statutory supervisors and to run the
projection equipment.
It should be noted that only Michael Yeager ever submitted
an application. Neither Draper nor Marcinek did. Monde,
Dunnigan and Smith, all of whom were hired, did submit appli-
cations.
It appears Respondent was a successor to Megastar, i.e., run-
ning the same business, in the same location with the same
equipment and with a majority of the same people employed by
Megastar. But because the statutory supervisors were chosen
not from the ranks of Respondent’s employees but from the
outside, I must conclude as a matter of law that the Act was not
violated in Case 8–CA–34971–1. See Pacific American Shi-
powners Assn., 98 NLRB 582, 597–598 (1952).1
It could well be that the union represented projectionists
would have made better “manager/projectionists” than those
hired but that it is not the test. Yeager and Draper also testified
that it seemed like Respondent really didn’t want them and that
well may be the case but there was still no violation of the Act.
The record, I note, is devoid of evidence that after Yeager,
Draper, and Marcinek left the Chagrin Theater that the theater
fell apart in terms of films not being shown properly and on
time.
B. Case 8–CA–35072–1
As noted in the first part of section III,A, above, the occupa-
tion of movie projectionist has been reduced in complexity by
technology.
It is not alleged that Respondent violated the Act by elimi-
nating so-called dedicated projectionist positions and assigning
projectionist work to managers who were statutory supervisors.
Respondent advised the Union that it wished to eliminate the
dedicated projectionists’ positions at three separate theaters and
have that projection work done by managers who would be
statutory supervisors. Respondent recognized the obligation it
had to bargain over the effects of this decision on the bargain-
ing unit employees.
The three movie theaters were the Tower City Theater with
11 screens, the Shaker Square Theater with 6 screens, and the
Cedar-Lee Theater with 6 screens.
The parties met three times, May 12, 17, and 25, 2004. Each
time they met a Federal mediator from the Federal Mediation
and Conciliation Service (FMCS) was present.
Respondent was represented at the negotiations by Jon
Foreman and Attorney Stephen Markus. The Union was repre-
sented by Business Agent John Galinac and Local 160 Presi-
dent William Taggart.
The separate collective-bargaining agreements at each of the
three theaters had expired. At Tower City it had expired on
April 30, 2000, and at the Cedar-Lee and Shaker Square thea-
ters it expired on December 31, 2002. The negotiations in May
2004 involved all three theaters.

1 I resist the General Counsel’s suggestion that I not follow this case.
The General Counsel may want to argue the merits of reversing this
case to the Board through the exceptions procedure.
CLEVELAND CINEMAS MANAGEMENT CO., LTD. 789
It is conceded by the parties to this litigation that a lawful
impasse in negotiations had been reached.
When lawful impasse is reached the employer is allowed to
make unilateral changes in working conditions. Even after
impasse, such changes must “not [be] substantially different or
greater than any [offers] which the employer . . . proposed dur-
ing the negotiations.” Atlas Tack Corp., 226 NLRB 222, 227
(1976), enfd. 559 F.2d 1201 (1st Cir. 1977). Often times it is
said that the employer can implement its last best offer to the
Union.
Although Respondent started out negotiations with the Union
with the intent that it be limited to effects bargaining over the
decision to eliminate the dedicated projectionist positions and
have statutory supervisors run the projection equipment Re-
spondent modified its position and requested the Union to ac-
cept a service technician agreement, which the Union had
agreed to with another movie theater chain, in lieu of having
dedicated projectionists at the theaters. The Union wanted both
dedicated projectionists positions and a service technician
agreement. Respondent’s position was a “quid pro quo,” i.e.,
the Union gives up on the projectionists positions and repre-
sents a unit of service technicians which would consist of 40
hours of work per week for two service technicians to cover all
three theaters. See Plainville Ready Mix, 309 NLRB 581
(1992), enfd. 44 F.3d 1320 (6th Cir. 1995). I agree with the
General Counsel that this case controls in this situation.
Respondent put its proposal regarding the service technician
agreement in writing and presented it to the Union on May 17,
2004. See General Counsel’s Exhibit 18. A copy of Respon-
dent’s proposed service technician agreement is attached to this
decision as Appendix A.
On June 1, 2004, Respondent partially implemented its last
best offer, i.e., it eliminated the dedicated projectionist posi-
tions and had that work done by statutory supervisors, but it did
not implement the service technicians agreement which was
Respondent’s very own proposal.
I find that Respondent violated Section 8(a)(1) and (5) of the
Act when it failed to implement its proposal regarding the ser-
vice technician agreement.
Respondent objects and claims that the service technician
agreement would be an unlawful prehire agreement, but it is not
at all clear who the service technicians would be if the service
technician agreement had been implemented. It is quite possi-
ble that the service technicians would be some of the same
union represented projectionists who worked at the three thea-
ters.
Again, the service technician agreement was the proposal of
Respondent and not the Union. Having proposed it and now
saying it would be illegal would be similar to a person about to
be sentenced for killing his or her parents throwing himself or
herself on the mercy of the court because he or she is an or-
phan.
Respondent also argued that the Union did not want the ser-
vice technician agreement, but the Union didn’t want it in lieu
of representing the traditional unit of projectionists. It is incon-
ceivable that the Union should prefer to represent no one at the
three theaters rather than a unit of two service technicians.
REMEDY
The remedy for this violation should include a cease-and-
desist order, the posting of a notice, and a requirement that
Respondent recognize and bargain in good faith with the Union
and implement the service technician agreement which is at-
tached to this decision as Appendix A.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Sections
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act
when it failed and refused to implement the Service Technician
Agreement after reaching lawful impasse in negotiations with
the Union.
4. The above violation of the Act is an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommended Order omitted from publication.]
APPENDIX A
MANAGEMENT'S PROPOSAL—May 17, 2004
AGREEMENT BETWEEN CLEVELAND CINEMAS MAN-
AGEMENT CO., LTD. AND LOCAL NO. 160 OF THE
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES AND MOVING PICTURE TECHNICIANS,
ARTISTS AND ALLIED CRAFTS OF THE UNITED
STATES AND CANADA EFFECTIVE JUNE 1, 2004 TO
MAY 31, 2006
TABLE OF CONTENTS
ARTICLE I COVERAGE AND PURPOSE………………….1
ARTICLE II UNION SECURITY……………………………1
ARTICLE III VACANCIES AND REFERRALS……………2
ARTICLE IV MANAGEMENT RIGHTS …………………..4
ARTICLE V NON DISCRIMINATION……………………..4
ARTICLE VI HOURS AND WAGES ………………………5
ARTICLE VII TRAVEL PAY……………………………….6
ARTICLE VIII VACATION ………………………………..6
ARTICLE IX PENSION …………………………………….7
ARTICLE X HEALTH AND WELFARE …………………..7
ARTICLE XI DUTIES ………………………………………7
ARTICLE XII EMERGENCY CALLS …………………….8
ARTICLE XIII TERMINATION OF EMPLOYMENT …….8
ARTICLE XIV GRIEVANCE AND ARBITRATION ……...9
ARTICLE XV NO STRIKE/LOCKOUT …………………..10
ARTICLE XVI HEALTH AND SAFETY…………………..10
ARTICLE XVII SUCCESSORSHIP………………………...11
ARTICLE XVIII MODIFICATIONS ……………………….11
ARTICLE XIX CONFORMITY TO LAW …………………11
ARTICLE XX WAIVER OF RIGHTS ……………………...11
ARTICLE XXI TERM OF AGREEMENT …………………12
AGREEMENT
THIS AGREEMENT, made the 1st day of JUNE, 2004 by
and between CLEVELAND CINEMAS MANAGEMENT CO.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD790
LTD (hereinafter referred to as the “Employer”) and LOCAL
NO. 160 OF THE INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES AND MOVING
PICTURE TECHNICIANS, ARTISTS AND ALLIED
CRAFTS OF THE UNITED STATES AND. CANADA (here-
inafter referred to as the “Union”).
ARTICLE I
COVERAGE AND PURPOSE
1.1 The parties are entering into this Agreement for the pur-
pose of providing service and maintenance to theatre projection
and sound equipment as hereinafter described. This Agreement
supersedes and replaces any Collective Bargaining Agreement
with the Union covering employees who work at the Tower
City, Shaker Square or Cedar Lee theatres.
1.2 This Agreement shall apply to and cover service techni-
cians employed by the Employer at the Tower City, Shaker
Square and Cedar Lee motion picture theatres. Such service
technicians shall, unless otherwise specifically designated, be
referred to hereinafter as “service technicians, technicians, pro-
jectionists or employees.” Specifically excluded from coverage
shall be all managers, assistant managers, chiefs-of-staff, chief
ushers, concession attendants, ushers, doormen, ticket sellers,
maintenance crews, cleaners, guards, supervisors; and all other
employees.
1.3 If at any time the Union is unable to refer applicants
deemed qualified in the sole judgment of the Employer, the
above obligation will be inapplicable and the Employer may
unilaterally establish terms and conditions of employment for
running of the equipment and routine service and maintenance
of projection and sound equipment until such time as a quali-
fied Union applicant is found.
ARTICLE II
UNION SECURITY
2.1 All service technicians currently members of the Union
shall be required, as a condition of continued employment, to
remain members of the Union during the term of this Agree-
ment. All service technicians hereafter engaged shall be re-
quired, as a condition of continued employment, to become and
remain members of the Union on and after the thirtieth (30th)
day following the beginning of their employment. A service
technician who fails to become or to remain a member of the
Union as herein provided shall be dismissed by the Employer
immediately upon demand of the Union. Nothing contained
herein shall, however, require the Employer to discharge or in
any way to discriminate against any service technician who has
been denied membership or has had membership in the Union
terminated for any reason other than the failure of such em-
ployee to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership.
The Union shall indemnify and save the Employer harmless
against any and all claims, demands, suits and other forms of
liability, including reasonable attorneys' fees, that shall arise
out of or by reason of action taken or not taken by the Em-
ployer at the request of the Union for the purpose of complying
with any of the provisions of this Article.
2.2 Each employee covered by this Agreement to whom
membership in the Union is not available shall be required as a
condition of employment, beginning on the thirtieth (30`h) day
following the beginning of such employment, to pay to the
Union a service charge, exclusive of initiation fees, as a contri-
bution toward the administration of this Agreement and the
representation of such employee. The service charge shall be in
the same amount and payable at the same time as the Union's
regular dues and fees.
ARTICLE III
VACANCIES AND REFERRALS
3.1 The Employer shall give the Union an opportunity equal
to other sources to refer applicants for all vacancies for posi-
tions coming within the scope of this Agreement; but it is
agreed between the parties hereto that hiring of employees
hereunder shall not be inconsistent with any applicable state or
federal laws.
3.2 The Employer will inform the Union of the nature and
type of work to be performed and such other information
deemed necessary by the Employer to enable the Union to refer
applicants who possess the skills, experience and qualifications
required by the Employer.
3.3 The minimum qualifications for any service technician
referred by the Union shall include, but not be limited to, the
following:
A. The ability/skill required to perform the following on the
projection and sound equipment in the Employer's motion pic-
ture theatres:
i. Routine maintenance as required/recommended by
the Employer, equipment manufacturers and industry
standards.
ii. Troubleshooting of projection and sound equip-
ment/systems.
iii. Film projector/console service, including:
a. Projector targeting and image alignment.
b. Repair and replacement of all drive-train and film-
path components.
c. Shutter timing. 2
d. Film guidance hardware alignment and repair.
e. Xenon bulb replacement and alignment.
f. Screen luminance readings.
g. Reflector, ignitor, power supply and related com-
ponent service and replacement.
h. Lens and turret repair and alignment.
i. Automation and failsafe/cue detector operation, re-
pair and replacement.
iv. Sound system service, including:
a. A-chain alignment.
b. B-chain alignment (auditorium equalization).
c. Sound pressure levels.
d. Analog and digital processor operation, repair and
replacement.
e. Amplifier replacement.
f. Crossover (electronic and passive) re-
pair/replacement.
g. Analog and digital reader repair, alignment and re-
placement.
CLEVELAND CINEMAS MANAGEMENT CO., LTD. 791
h. Assistive listening device repair and replacement.
i. Speaker component replacement.
B. The working knowledge and ability to properly use the
following tools:
i. Analog and digital oscilloscopes. Real-time analyz-
ers (RTA’s). 3
iii. Various SMPTE and Dolby test films.
iv. Sound pressure meter.
v. Light meter (one (1) degree spot meter).
vi. Basic hand tools (wrenches, screwdrivers, etc.).
3.4 The Employer reserves the right to accept or reject any
applicant, but shall do so in a non-discriminatory manner. Each
applicant may be interviewed by the Employer and may be
requested to complete a pre-employment application form and
pass a background check. In addition, the applicants may be
skill tested on the Employer’s premises. This test will be ad-
ministered jointly by the Employer and a representative from
the Union.
3.5 The probationary period by the service technician will be
sixty (60) days and the Employer reserves the right, with the
Union's approval, to extend such probationary period for up to
an additional thirty (30) days. During this time, no reason for
dismissal is necessary, no two (2) weeks’ notice is necessary
and the discharge is not subject to the grievance procedure.
ARTICLE IV
MANAGEMENT RIGHTS
4.1 The Employer retains the right to manage and control all
aspects of the theatre operation, including, but not limited to,
the employment, work schedule and assignments of employees;
discipline; and termination of employees. Furthermore, the
Employer has the right to enforce reasonable appearance stan-
dards for employees covered by this Agreement and determine
the qualifications required for service technicians.
4.2 The Employer shall have the right to perform all work
covered by this Agreement in excess of the guaranteed mini-
mum hours listed in Article VI with supervisory personnel; and
the performance of such work by said employees shall not be
subject to the provisions of this Agreement. The Employer has
the right to request the service technician to train supervisory
personnel in the proper operation of the theatre's projection and
sound equipment. The Employer maintains the right to have
designated outsource professionals perform any projection,
sound or facilities-related services, without limitation, as long
as said work does not impact the minimum hours listed in Arti-
cle VI.
4.3 The Employer's failure to exercise fully any right under
this Agreement shall not result in a waiver of such right, nor
affect its ability to exercise such right at a future date.
ARTICLE V
NON-DISCRIMINATION
5.1 The Employer and the Union agree not to discriminate in
any way against any employee or Tplicant for employment on
account of membership or non-membership in the Union or on
account of race, religion, creed, color, national origin, sex, age,
sexual orientation or disability as defined by federal standards.
5.2 Employee means all persons covered by this Agreement,
whether male or female, and the use of masculine pronouns or
other masculine terms shall include males and females.
ARTICLE VI
HOURS AND WAGES
6.1 The Employer agrees to schedule a minimum number of
hours per week for the Covered Theatres as detailed below. The
Covered Theatres shall be defined as the Tower City, Shaker
Square and Cedar Lee theatres. The Employer reserves the right
to assign the shifts of the technicians employed under this
Agreement. If the Employer determines that any employee,
including a prospective employee, is not qualified to perform
the work required and the Union is unable to provide a quali-
fied employee within a thirty (30) day period, the guaranteed
number of hours will be reduced by the number of hours listed
for the service technician vacancy.
Market Hours Per Week
Effec-
tive
If Operat-
ing Three
Theatres
If Operat-
ing Two
Theatres
If Operat-
ing One
Theatres
Approximate
Weekly Break-
down (If Operat-
ing Three Thea-
tres)
6/01/04 40 35 20 Lead Service
Technician: 20-32
hours
Swing Service
Technician: 8-20
hours
6/01/05 35 30 15 Lead Service
Technician: 20-32
hours
Swing Service
Technician: 8-20
hours
6.2 A shift shall normally consist of a minimum of four (4)
hours, unless hereinafter specifically stated otherwise.
6.3 The Employer may assign supervisory personnel to oper-
ate the projectionist booth at any time during operating hours;
however, the Employer shall schedule service technicians for
no less than the hours called for in Section 6.2 above. Supervi-
sory personnel shall not be covered by this Agreement and their
wages shall be determined by management.
6.4 Work schedules shall be determined by theatre manage-
ment and provided to the Union by the Wednesday preceding
the start of a payroll week. If the work schedule is changed
after Wednesday, the hours shall be in addition to those already
on the schedule.
6.5 If the Employer closes all three (3) of the Covered Thea-
tres, the lead service technician will receive severance pay in
the amount of two (2) weeks of pay.
6.6 Service technicians shall be paid in accordance with the
following hourly wages rates: A. Effective June 1, 2004: Fif-
teen Dollars ($15.00) per hour.
A. Effective June 1, 2004: Fifteen Dollars ($15.00) per hour.
B. Effective June 1, 2005: Fifteen Dollars and Twenty Five
Cents ($15.25) per hour.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD792
6.7 All time shall be paid in one (1) minute increments. The
service technician is required to record his time, at the direction
of the Employer, using written, mechanical or electronic means.
ARTICLE VII TRAVEL PAY
7.1 The Employer may require any service technician t) re-
port to different locations during any work shift.
7.2 The service technician will be required to provide his
own vehicle for travel between locations during a work shift.
The service technician will be compensated at the Internal
Revenue Service rate per mile. Mileage from the service tech-
nician’s home and first theatre to be worked on that scheduled
day shall not be included nor will mileage be incurred from the
last location of the day to the service technician’s home. This
reimbursement includes both transportation and additional in-
surance costs.
7.3 Became the travel allowance includes reimbursement for
insurance expenses with respect to an employee traveling from
one location to another, the parties agree that the employee is
solely responsible for obtaining and maintaining adequate li-
ability and casualty insurance covering his vehicle during travel
from one location to another location in the course of the em-
ployee’s employment. The Employer shall not be responsible
for any damage to the employee’s vehicle or property or any
third-party bodily injury or property damage liability which
may arise as a result of the employee’s ownership, use or op-
eration of any personal vehicle used in the course of employ-
ment.
ARTICLE VIII VACATION
8.1 The lead service technician and swing service technician
for the Covered Theatres shall be eligible for vacation pay.
8.2 The Employer’s maximum obligation toward vacation
pay shall be limited to eighty (80) hours per year for each year
of the Agreement. All vacation requests must be submitted to a
designated representative of the Employer at bast three (3)
weeks prior to the vacation period. All vacations are subject to
the review and approval of the Employer. Service technician
employees shall be compensated at the normal hourly rate for
vacation pay. In order to receive vacation pay, vacation time
must be taken. The business agent shall assume the complete
responsibility for designating the proration of vacation pay to
the employees and the Employer agrees to pay the employees
as directed by the Union. The Union shall provide a qualified
service technician to replace a vacationing technician. Pension
and health and welfare contributions are to be paid to the tech-
nician on vacation.MANAGEMENT'S PROPOSAL – May 17,
2004
ARTICLE IX
PENSION
9.1 The Employer shall contribute to the Greater Cleveland
Moving Picture Projector Operators Local 160 Pension Fund an
amount equal to five percent (5%) of each employee's gross
wages for any week or part thereof for which said employee
receives pay, effective from the first (1St) day of employment.
9.2 Such payments shall be made on or before the thirtieth
(30th) day of the month following the calendar month in which
the payments accrue. The Employer hereby agrees to become a
party to the Agreement and Declaration of Trust establishing
the Greater Cleveland Moving Picture Operators Local 160
Pension Fund.
9.3 It is understood and agreed that the said Agreement and
Declaration of Trust and said Pension Fund and its Rules and
Regulations shall comply with all applicable laws and that the
Pension Fund referred to herein shall be such as will qualify for
approval by the Internal Revenue Service of the U.S. Treasury
Department so as to permit the Employer any income tax de-
duction for the contributions paid hereunder.
ARTICLE X
HEALTH AND WELFARE
10.1 The Employer shall contribute to the Greater Cleveland
Moving Picture Projector Operators Local 160 Health & Wel-
fare Fund an amount equal to five percent (5%) of each em-
ployee’s gross wages for any week or part thereof for which
said employee receives pay, effective from the first (1St) day of
employment.
10.2 Such payment shall be made on or before the thirtieth
(30th) day of the month following the calendar month in which
the payments accrue. The Employer hereby agrees to become a
party to the Agreement and Declaration of Trust establishing
the Greater Cleveland Moving Picture Operators Local 160
Health & Welfare Fund.
10.3 It is understood and agreed that the said Agreement and
Declaration of Trust and said Health & Welfare Fund and their
rules and regulations shall comply with all applicable laws and
that the Health & Welfare Fund referred to herein shall be such
as will qualify for approval by the Internal Revenue Service of
the U.S. Treasury Department so as to permit the Employer any
income tax deduction for the contributions paid hereunder.
ARTICLE XI
DUTIES
11.1 The service technician shall provide service and main-
tenance of theatre projection and sound equipment, as assigned
by the Employer. These duties may include, but shall not be
limited to, operation (non-routine/requested), maintenance,
service, installation, removal and moving of all theatre-based
projection and sound equipment, including screens, screen
frames, speakers, curtain and masking motors, all types of lamp
houses, rheostats, motor generators, rectifies, film build-
up/teardown equipment, amplifiers, processors, spotlights and
slide projectors.
11.2 The service technician may be required to complete
daily and preventative service and corresponding reports as
directed by Employer’s representatives. The service technician
will not be required to perform any work for which a building
permit or code inspection is required.
11.3 The Employer shall furnish the tools and equipment
necessary for the service technician to perform the requested
duties. The service technician is solely responsible for said
tools and equipment and must return all Employer-provided
items upon request or termination of employment.
11.4 The Employer shall furnish a twenty-four (24) hour
pager which the service technician is obligated to wear and
CLEVELAND CINEMAS MANAGEMENT CO., LTD. 793
respond to all calls and pages received, except on approved,
prearranged days off. The service technician is responsible for
responding to pages in accordance with the following priority
policy: Emergency “911” calls/pages require a return call from
the service technician within thirty (30) minutes between the
hours of 10:00 a.m. and Midnight. Non-emergency calls/pages
require a return call within one (1) hour during the service
technician's normal schedule and within twenty-four (24) hours
otherwise.
11.5 The service technician may be required to wear and
maintain a uniform provided by the Employer.
ARTICLE XII
EMERGENCY CALLS,
12.1 If a service technician is called back for work or is
called to a theatre for emergency repairs outside of his sched-
uled hours, he shall be paid a two (2) hour minimum or time
worked, whichever is greater at the regular hourly rate.
12.2 The Employer maintains the right to assign the service
technician projection or sound equipment related tasks for the
remainder of the two (2) hour minimum after the emergency
situation has been resolved.
ARTICLE XIII TERMINATION OF EMPLOYMENT
13.1 The Employer agrees that when desiring to terminate
the services of a service technician represented by the Union
and who is employed on a weekly basis, such employee shall
be given two (2) weeks’ notice or paid two (2) weeks’ wages in
lieu thereof, except in the case of cause (i.e., evidence of drink-
ing alcoholic beverages, dishonesty, incompetence, insubordi-
nation, unauthorized use of film video tapes or equipment
and/or illegal use of drugs); in which case, no notice or pay
shall be required. The Employer has the right to discharge any
service technician during the probationary period as stated in
Article III, Section 3.5 without cause and without giving the
said two (2) weeks’ notice.
13.2 Union employees shall give the Employer two (2)
weeks’ notice in case they desire to leave employment (except
in case of nonpayment of wages when due, which shall be suf-
ficient cause for immediate cancellation of relations).
13.3 The Employer shall furnish the Business Agent with a
copy of all discipline and termination notices. The Union shall
have the right to investigate and grieve all discharges provided
the grievance is filed within seven (7) days from the date of the
discharge. If the grievance is filed after the seven (7) day period
and/or the two (2) week salary or notice has been accepted, the
matter will be considered closed and not eligible under the
grievance procedure.
ARTICLE XIV
GRIEVANCE AND ARBITRATION
14.1 Any complaint or grievance arising under the terms and
provisions of this Agreement, or any difference between the
parties as to the interpretation or application of this Agreement,
shall be settled and determined by the dispute resolution proce-
dure herein provided.
14.2 It is agreed and understood that the Executive Board of
the Union may determine at any time that a grievance is with-
out merit and ineligible for further processing.
14.3 In the event a grievance as defined in Section 14.1
above arises, there shall be no strike or lockout, but such con-
troversy shall be settled by the employee(s) and the Employer
in the following manner:
A. STEP 1: The employee(s) concerned shall discuss the
grievance with the theatre manager within seven (7) days of its
occurrence.
B. STEP 2: If a satisfactory accord is not reached at Step 1,
the matter shall then be submitted to the Employer’s Director of
Operations or its designee and a Union representative within
seven (7) days following the conclusion of Step 1. The repre-
sentatives must have their final meeting within twenty-one (21)
calendar days after the issuance has been submitted to them.
C. STEP 3: If the grievance is not settled at Step 2, it shall
then be submitted to a grievance committee consisting of two
(2) representatives of the Union and two (2) representatives of
the Employer within seven (7) calendar days of the time Step 2
is concluded. The representatives must haw their final meeting
within fifteen (15) calendar days after the issue has been sub-
mitted to them.
D. STEP 4: In the event the matter cannot be disposed of be-
tween the parties, either side shall have the right to refer the
dispute to arbitration by serving written notice, within ten (10)
calendar days after the final meeting stated in Step 3 above, of
such intention on the other side.
14.4 In the event of arbitration:
A. The parties shall meet within fourteen (14) calendar days
for the purpose of selecting a mutually-acceptable arbitrator. In
the event that the parties cannot agree on a selection, then the
American Arbitration Association or Federal Mediation and
Conciliation Service shall be requested to submit a panel of
seven (7) names of arbitrators. Within five (5) calendar days
from the date the panel is submitted, the parties shall alternately
strike names from the list until one (1) arbitrator remains. The
American Arbitration Association or Federal Mediation and
Conciliation Service shall not have the right to select an arbitra-
tor who is not agreeable to both parties and the arbitrator as-
signed to hear the grievance shall not have the right to add to,
subtract from or modify any terms of the Agreement.
B. The decision of the arbitrator shall be final and binding on
both parties. Costs are to be shared equally. The arbitration
shall at all times proceed with reasonable dispatch.
14.5 The time limits stated above may be extended by mu-
tual agreement between the parties.
ARTICLE XV
NO STRIKE/LOCKOUT
15.1 The Union agrees that for the duration of this Agree-
ment and any extension thereof, it will not call or sanction by
employees or a group of employees or any other members of
the Union any strike or other slowdown or cessation of work or
picketing or handbilling in any form.
15.2 The Employer agrees that for the duration of this
Agreement and any extension thereof, it will not lock-out any
of its employees covered by this Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD794
ARTICLE XVI
HEALTH AND SAFETY
16.1 The Employer and the Union recognize the importance
of maintaining healthy and safe work conditions and both will
cooperate to that end. Accordingly, the Employer shall make
reasonable provisions for the safety and health of its employees
during working hours.
16.2 Any employee who is involved in or witnesses an in-
dustrial accident or injury shall immediately inform the Em-
ployer thereof and shall promptly complete such forms and
provide such statements as may be requested by the Employer.
ARTICLE XVII SUCCESSORSHIP
In the event of a sale, sublease, lease termination or perma-
nent closure of any of the theatres covered by this Agreement,
the Employer agrees to notify the Union as soon as possible and
shall pay any monies earned and owed at the time of closure to
employees or to any fund to which the Employer is obligated to
contribute. If a theatre is sold or subleased, the Employer shall
attempt to arrange a meeting between the Union and the new
owner or operator. If required by law, the Employer will nego-
tiate with the Union for a replacement unit for any one (1) of
the three (3) existing Covered Theatres.
ARTICLE XVHI MODIFICATIONS
This Agreement shall not be modified, added to or subtracted
from the parties except in writing signed by both the Employer
and the Union. Any attempted modification, addition or dele-
tion not in writing and signed by both parties shall be deemed
wholly invalid and unenforceable.
ARTICLE XIX
CONFORMITY TO LAW
19.1 This Agreement shall be subject to any applicable fed-
eral, state and local laws, rules and regulations and the invalid-
ity of any provisions of this Agreement by reason of any such
existing or future law or rule or regulation shall not affect the
validity of the surviving portions.
19.2 If the enactment of legislation or a determination by a
court of final and competent jurisdiction renders any portion of
this Agreement invalid or unenforceable, such legislation or
decision shall not affect the validity of the surviving portions of
this Agreement.
19.3 In the event any one (1) or more provisions of this
Agreement is or are deemed invalid or unenforceable by any
final decision of a court or governmental agency, that portion
shall be deemed severable from the remainder of the Agree-
ment and all such other remaining parts of this Agreement shall
remain in full force and effect. In such event, the Employer and
the Union will, at the request of either party hereto, promptly
enter into negotiations relative to the particular provisions
deemed invalid or unenforceable.
ARTICLE XX
WAIVER OF RIGHTS
Failure of either party to enforce any rights granted under
this Agreement or law shall not constitute a waiver by either
party of their right to assert such rights in other instances.
ARTICLE XXI
TERM OF AGREEMENT
This Agreement shall be in force and binding from the 1st
day of June, 2004 until the 31st day of May, 2006. In the event
either party wishes to amend, renegotiate or terminate this
Agreement, they shall notify the other party of their intent at
least sixty (60) days prior to the expiration of this Agreement.
Thereafter, the Agreement shall renew itself from month-to-
month unless either party shall give written notice to the other
party of its desire to terminate or change this Agreement at least
thirty (30) days prior to the expiration date or any date thereaf-
ter.
CLEVELAND CINEMAS MANAGEMENT CO., LTD
LOCAL NO. 160 OF THE INTERNATIONAL ALLIANCE
OF THE THEATRICAL STAGE EMPLOYEES AND
MOVING PICTURE TECHNICIANS, ARTISTS AND
ALLIED CRAFTS OF THE UNITED STATES AND
CANADA