Fox-Art Theatres, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 812 (N.L.R.B. 1986)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fox-Art Theatres, Inc. and Philadelphia Moving
Picture Machine Operators Union Local No.
307 a/w International Alliance of Theatrical
Stage Employees of the U.S. and Canada. Cases
4-CA-14631, 4-CA-14631-2, and 4-CA-
14735.
28 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 18 June 1985 Administrative Law Judge
Robert T. Wallace issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 11 and
conclusions and to adopt the recommended Order.
tive-bargaining contract, by acting unilaterally in effect-
ing changes in terms and conditions of employment, and
by denying the Union's requests for financial data. Also,
Respondent is alleged to have violated Section 8(a)(1)
and (3) of the Act by discharging a member of the
Union.
The case was tried before me in Philadelphia, Pennsyl-
vania, on 19 and 20 February 1985. On the entire record,
including my observation of the demeanor of the wit-
nesses, and after due consideration of briefs filed by the
General Counsel" and Respondent, I make the following
FINDINGS OF FACT AND ANALYSIS
1. JURISDICTION
Respondent, a Pennsylvania corporation, with offices
in Narberth, Pennsylvania, is engaged in the operation of
six motion-picture theaters located in or near Philadel-
phia. During a representative 1-year period, it had gross
revenues in excess of $500,000, and it purchased and re-
ceived goods and materials valued in excess of $5000 di-
rectly from points outside Pennsylvania. It admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
that the Charging Union is a labor organization within
the meaning of Section 2(5) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Fox-Art
Theatres, Inc., Narberth, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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.
Margaret Brogan, Esq., for the General Counsel.
Howard R. Flaxman, Esq. (Fox, Rothschild, O'Brien &
Frankel), of Philadelphia, Pennsylvania, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. On
charges filed by the Philadelphia Moving Picture Ma-
chine Operators Union Local No. 307 a/w International
Alliance of Theatrical Stage Employees of the U.S. and
Canada on 3, 10, and 23 October 1984, as amended, con-
solidated complaints were issued on 16 November and 27
December 1984 wherein, as amended, it is alleged that
Respondent Fox-Art Theatres, Inc. violated Section
8(a)(1) and (5) and Section 8(d) of the National Labor
Relations Act by failing to sign an agreed-upon collec-
II. BACKGROUND
Respondent acquired the theaters on 1 July 1983. At
that time the Union was the exclusive representative of
all projectionists employed there and it continued as such
during all times material herein. Those circumstances are
admitted by Respondent. It also admits having assumed
obligations as employer under a 3-year collective-bar-
gaining agreement which its predecessor (Ellis) had ne-
gotiated with the Union. The agreement contained an ex-
piration date of 31 December 1983 with no provision for
automatic renewal.
A. Negotiation Sessions-8 December through 18
April
Meetings for the purpose of negotiating a new agree-
ment took place on 8 December, 11 and 17 January, and
18 April. During that period (and on through 30 Septem-
ber) Respondent continued to pay projectionists the
hourly rate of $7.18 called for in the Ellis contract, but
as of 1 January 1984 (and perhaps earlier), and without
prior knowledge or consent of the Union, it stopped
making the monthly payments into the Union's pension
plan and its, welfare and insurance fund which were re-
quired under the contract.2
At the conclusion of the third negotiation session no
significant breakthrough had been achieved. The union
representative, Local President Fernando Evangelista,
had sought to retain all provisions in the Ellis contract,
' Accompanying the brief filed by the General Counsel is a motion to
correct the transcript of trial in several respects . The requested changes,
all editorial in nature, are warranted. Accordingly, the motion is granted.
a The lawfulness of this action is not at issue in this proceeding, no
charge having been filed with respect thereto within the 6-month limita-
tion period set forth in Sec 10(b) of the Act.
278 NLRB No. 115
FOX-ART THEATRES 813
except those dealing with hourly wage rates , and in lieu
of the latter he proposed increases which varies in size
depending on Respondent's preference as to duration of
the new contract, i.e., a 6-month term would entail a 35-
cent increase , 1 year involved a 35-cent increase for the
first 6 months and another 35 cents during the second,
and for a 3-year contract he proposed a 40-cent increase
each year . As in prior sessions , Remy Fox , Respondent's
vice president, chief of operations, and sole negotiator,
did not reject the proposals outright . Instead, he said he
would discuss them with his brother Stephen , Respond-
ent's president ,3 but he reiterated a previously expressed
opinion that Respondent could not afford any increases
in wages in light of reduced attendance at the theaters.
Alternatively , Fox proposed continuation of the status
quo under the old contract for 6 months or, if the Union
agreed to a reduction of guaranteed minimum hours
from 4-1/2 to 3 on weekdays and from 10 to 7 on week-
ends, for a full year . Neither proposal was acceptable, to
the Union.
The next bargaining session took place on 18 April,
the 3 -month delay being due to mutual inability of the
parties to get together on an earlier date . Fox, Evange-
lista, and Smith, an aide of the latter, were present. Both
sides claim that an agreement was reached after about 3
hours of bargaining but they differ as to its terms. Fox
states that he offered- to extend the Ellis contract with a
28-cent increase in rates to $7.46 per hour , either for 10
months or 1 year, retroactive to 1 January . He also
claims the offer was conditioned expressly upon reduc-
tion in guaranteed minimum hours as proposed earlier, as
well as upon approval by his brother.
On the other hand , Evangelista and Smith both testi-
fied that no conditions were mentioned and that the pro-
posed 10-month extension to 311 October was accepted
subject to ratification by union members . Ratification
was obtained on 7 May and Evangelista claims he so ad-
vised Fox about a week later.
Nearly 4 months passed without further communica-
tion between the Union and Fox , during which period
no wage increase or other benefit was paid , retroactively
or otherwise .4 However , during the last week in August
Evangelista found time to phone Fox and urged him to
put into effect the retroactive 28-cent increase. When
Fox asked for a draft of the contract , Evangelista had
one prepared (G.C. Exh . 6), which reflected his version
of the agreement on 18 April , and he delivered it to Fox
on 6 September .5 The latter declined to sign , asking for
3 Stephen Fox did not testify and there is no evidence as to what
duties he performed as president . Nor does he appear to have had any
direct involvement with events described herein . Accordingly , the name
'Fox" as used subsequently in this decision refers only to Remy.
4 Evangelista explains that he did not react earlier due to "heavy
scheduling of other negotiations going on "
5 Included in the document were provisions, which carried forward
from the Ellis contract language, regarding the employer 's duty to make
pension and health/welfare payments . At various times during the negoti-
ations and also by letter dated 8 February (G C Exh. 7) union represent-
atives urged Fox to remedy past failure to abide by those provisions.
Also, and apparently anticipating that Fox would sign on 6 September,
Evangelista added to the draft agreement a clause to the effect that all
retroactive pay shall be paid on that or on the next day.
time to review it "with the Board." Later, by letter
dated 12 September (G.C. Exh . 3), he rejected the docu-
ment . The letter reads as follows:
The management of Fox Enterprises, Inc. has
had the opportunity of reviewing the above propos-
al which was delivered to our office on September
6, 1984.
I was hopeful as I pointed out in previous meet-
ings that the management of Fox Enterprises, Inc.
would ultimately ratify this proposal . Unfortunately,
ratification at this time is not possible . Fox Enter-
prises, Inc. officially must reject your proposal.
The labor agreement between Local #307 and
Ellis Theatres expired on December 31, 1983. Since
that time the business climate of the motion picture
exhibition industry has changed drastically . Because
of intense and increased competitive pressures, the
theatres covered by your proposal have undergone
severe deterioration. Therefore , the terms of that
agreement must be drastically modified.
Please contact me as soon as possible, hopefully
within five (5) days, to continue our discussions and
hopefully reach an agreement.
For his part, Fox claims not to recall being informed
of ratification by Evangelista in May . According to him,
he first learned that fact in late August when Evangelista
so advised him by phone and offered to bring over the
new contract . Also, he states that the document as deliv-
ered did not reflect his proposal on 18 April in that it did
not reduce guaranteed, minimum hours and did not elimi-
nate disparate hourly rates at one of the theatres. Fur-
ther, he observes that his brother , who "had the ultimate
decision," rejected the contract.
I accept Evangelista's version and so find that there
was a meeting of minds on 18 April . 6 , In this respect I
note that in his letter to Evangelista, dated 12 Septem-
ber, Fox does not say the document lacked agreed-upon
conditions . On the contrary, he states that he had hoped
Respondent "would ultimately ratify this proposal" (em-
phasis added), thereby conceding that the draft did in
fact embody the agreement reached on 18 April. Fur-
ther, I am not persuaded that Fox made approval of his
brother a condition precedent to effectiveness of the
agreement . In that regard , I fmd no incongruity between,
on the one hand, testimony of ' both Evangelista and
Smith that at negotiating sessions , which preceded 18
April Fox claimed need to consult with his brother and,
on the other hand , their assertion that he made no such
statement during the session on 18 April . The earlier
meetings involved proposals made by the Union, where-
as the proposal found to have been accepted by Evange-
lista at the 18 April session was initiated by Fox.
I conclude that in refusing to sign a ' written contract
embodying the agreement reached on 18 April Respond-
ent violated its duty to bargain in good faith.' I also find
6 Having closely observed Evangelista , I have concluded that his long
delay in reacting to Fox's failure to implement the, agreement was due to
nothing more than a propensity to procrastinate and be disorganized
7 H.J Heinz Co. e NLRB, 311 U.S. 514 (1941).
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it acted in a manner prescribed by Section 8(d) of the
Act and in contravention of its bargaining obligation
under Section 8 (a)(5) by failing to pay, retroactively to 1
January 1984 , the 28-cent increase in hourly wages as
well as amounts due for pension and health/welfare ben-
efits, as provided in that agreement, without consent of
the Union.8
B. Further Negotiations
Not receiving any response to his letter request for an
early meeting , Fox phoned Evangelista on 17 September
and again expressed his desire to meet . Evangelista was
willing, but stated that he was 'very busy, and would call
back to propose a date. Not hearing from him, Fox
phoned on 24 September , and this time Evangelista
agreed to a meeting but not until 4 October because "I
had some 'very important commitments ." Fox then told
him that owing to "continuing and adversive [sic] com-
petition and declining business conditions " the hourly
wage of all projectionists would be reduced to ' $4.50 ef-
fective on 1 October, and he added that he was available
to meet at any time. Evangelista again stated that his
schedule did not permit a meeting earlier than 4 October
and he urged postponement of any reduction. Fox de-
clined and the hourly wages in fact were reduced to
$4.50 on' l October. Here too I find a unilateral midterm
modification without consent of the Union in violation of
Section 8(a)(5) and Section 8(d).
On 4 October Evangelista, accompanied by Union At-
torney Rosenthal , met with Fox at the latter's office. Ac-
cording to Fox, Evangelista maintained that a valid con-
tract was in effect until 31 October and proposed a new
contract to begin on 1 November either for a term of 18
months at $7.60 an hour ($7.18 plus 28 cents plus 14
cents) or for 3 years at status quo ($7.46) for the first
year, $8.10 for the second , and $8.30 for the third. Fox
rejected both proposals stating that due to "adverse eco-
nomic conditions resulting from severly reduced attend-
ance at the theatres and consequent loss of revenue" he
could not afford any more than the $4.50 being paid to
the projectionists.
'Rosenthal then asked to see documents pertinent to
that claim . According to his credited and uncontradicted
testimony:
I said to Mr . Fox that I had no idea in what
way they maintained their financial records and
I [asked] . . . "what kind of records do you
keep?" and . . . [he] . would not give me an answer
... So I said well you must . . . keep, for example,
income records baded on receipts be it weekly,
monthly or daily . . . and ... he wouldn't give
... [any information] to us.
Then I also said you must have records which show
how much money you're spending on bills and
things of that sort, your overhead. And again I
[asked] . . . how you keep . . . those, and that [re-
quest] was refused. . . . He wouldn't tell us how
8 See C ' & - S Industries, 158 NLRB 454 (1966), Golconda Corp. v.
NLRB, 474 F 2d 49 (6th Cir. 1973), enfg. 195 NLRB 609 (1972).
they were kept and he refused to show us the
records.
And I also said that you must . . . maintain .. .
IRS quarterly records at the very least, and that
... [request] was refused.
At the trial Fox explained that he would not give any
information because he viewed the Company 's books and
records as "private."
The next session did not take place until 16 Novem-
ber,9 Fox having been immobilized as a result of an
injury. Again, Evangelista and Rosenthal came to Fox's
office . They proposed: (1) a 3-year contract (retroactive
to 1 November) with an hourly rate of $7 . 58 ($7.46 plus
12 cents) for the first year, $7.68 for the second, and
$7.78 for the third year; (2) retention of all benefits con-
tained in the Ellis contract; and (3) inclusion of a provi-
sion for resolving disputes by recourse to the American
Arbitration Association.
In response , Fox reiterated his claim that the Company
could not afford to pay any more than $4.50 an hour,
and he proposed a 1-year contract at that amount retro-
active to 1 January and subject to reductions in guaran-
teed minimum hours as he previously proposed.
At that point Rosenthal once more asked for access to
financial records and, again, Fox refused to make any in-
formation available . Instead, he suggested that projec-
tionists could ascertain whether business was, good or
bad simply by, viewing the size of the audience through
portholes in the booth.
To achieve a breakthrough Rosenthal inquired: "What
if we reduce our demands by one dollar for each of the
three years." When Fox asked whether- that was an offer,
he responded "yes." Whereupon Fox said he would "go
up a nickle" to $4.55 an hour . With that the union repre-
sentative left.1O
It is well established that failure to provide date rea-
sonably required by the employees ' bargaining represent-
ative in fulfillment of its bargaining tasks-including
access to the employer 's books and records to confirm an
employer 's claim of poverty or economic inability to
meet wage demands-is contrary to an employer's bar-
gaining obligations under Section 8(a)(5) of the Act."
Accordingly, by its blanket refusal 'to provide any infor-
mation to the Union relevant to its claim of economic
hardship resulting from declining revenues Respondent
violated that obligation.
Further, I fmd that Respondent had no intention of
bargaining in good faith with the Union on and after I
November. This is apparent from the pattern of unlawful
conduct shown on this record , 12 as well as its patently
9 Between 9 and 25 October Respondent was served with the unfair
labor practice charges which gave rise to this proceeding
10 The initial complaint in this proceeding was served on Respondent
shortly after the negotiation session on 16 November. Although the par-
ties met on several subsequent occasions, their talks were in the nature of
settlement discussions and no progress was made towards a new agree.
ment. I
11 NLRB v. Truitt Mfg. Co., 351 U S 194 (1956), Curtis-Wright Corp.,
347 F. 2d 61 (3d Cir . 1965).
12 Borg-Warner Controls, 128 NLRB 1035 (1960); Coachman's Inn, 147
NLRB 278 (1964), enfd. 357 F 2d 134 (8th Cir. 1966)
FOX-ART
flippant response to the Union's attempt to narrow differ-
ences in the key area of hourly wages.
C. Alleged 8(a)(1) Violations
Irwin Kamner, a long-time member of the Union,
worked as a projectionist at one of the six theaters (the
Crest) for 12 years prior to being fired on 16 October.
He testified that Manager Winter approached him on the
job sometime during the last week in September and told
him that "the theatre was going non-union , would only
pay $4.50 an hour, [and] if we stayed away from the
Union then he'd give us $5.00." That account is substan-
tially corroborated by Winter who testified that Fox,
after giving him advanced warning of the wage reduc-
tion , asked his assessment as to whether projectionists
would stay on at the $4 .50 rate. He replied that he did
not know , adding that he would ask them . His testimony
continues : "So I went up to Mr . Kamner . I explained the
fact that, as of 1 October, the rate would be $4.50 an
hour, and [I asked] `would he stay on working?' He said,
`I don 't know . I'll have to think about it.' I said, `Well,
with your experience, I ,will try to get you, you know,
later on, some extra money."'
Union member Arnold Goldberg worked about 5
years as a projectionist at another of the theaters (the
Bala). During the last week in September he became
aware of the new $4.50 rate effective 1 October by read-
ing a notice to that effect posted on the office bulletin
board . Disturbed by that news and by a rumor that his
relief man had been offered an additional 50 cents to stay
on after 1 October, he approached Threater Manager
Yarrow and inquired: "What's this I hear that you of-
fered Ron $5.00 to stay on as a projectionist ?" He claims
Yarrow replied : "If you stay on here you'll get $5.00 an
hour too." Goldberg responded with a noncommittal
"Oh" and the conversation ended. But he stayed on the
job, and in late October he became disturbed once more
on noting he was being paid at the hourly rate of $4.50,
and again he approached Yarrow asking : "I thought we
were getting $5.00 an hour if we stay on?" Then, accord-
ing to Goldberg, a dialogue ensued which, in effect, was
as follows:
YARROW: [That was only] if the Union strikers,
and you stay on, then you get $5.00 an hour.
GOLDBERG : So in other words if we screw the
Union and be loyal to Fox whose cutting our pay
almost in half we get $5.00?
YARROW: My hands are tied , I can 't do anything.
For his part, Yarrow testified he told "the office" that
all of his projectionists had talked about leaving and that
he would try to get them to stay . He recalls telling
Goldberg in late September : "I'd like to keep you . . . I
would try to get you another 50 cent increase . . . I
can't make you any promises . . . don't hold me to it
I have to talk to the bosses first." He denies that
there was any mention of a strike during that conversa-
tion. Although initially stating he could not recall any
other conversation with Goldberg regarding wages, he
later testified that he had had such a conversation,
during the course of which he told Goldberg that he
THEATRES 815
could not do anything for him. He did not deny any por-
tion of Goldberg 's account of the second conversation.
He stated that there are no longer any projectionists at
the theater who are members of the Union, the last
member having quit in December.
My analysis of the foregoing testimony boils down to
this: Apprehensive of being faced with a strike as a result
of the drastic reduction in wages effective on 1 October,
Fox instructed Managers Winter and Yarrow to persuade
as many projectionists as possible to remain on the job in
the event their Union called for a strike ; he authorized
the managers to offer a 50-cent wage increases as an in-
ducement; 113 and in conveying that message the manag-
ers acted as agents of management14 within the meaning
of Section- 2(2) of the Act , "5 and by virtue of their posi-
tions could reasonably be perceived as such by Kamner
and Goldberg.) 6 Accordingly , and in each instance, I
find interference with employee rights through a promise
of benefit in order to discourage support for a union ac-
tivity (a strike) in violation of Section 8(a)(1) of the
Act.17
D. Kamner's Discharge
On Tuesday , 16 October , Kamner reported to work,
arriving as usual about 15 minutes before the 7 p.m.
showtime . He was met in the lobby by Theater Manager
Winter who barred his way and told him that he was no
longer employed there because "this is not a Union
house anymore ." No other reason for his termination
was given . That account of Kamner is corroborated by
Winter who states that he acted pursuant to instructions
given . earlier that day by Fox ; '8 and the latter , in turn,
does not dispute Winter's testimony . Indeed he adds: "I
told Winter that he was at liberty to employ other opera-
tors and that he did not have to go through the Union."
Winter promptly implemented those instructions by
hiring his teenage son and Squires, an individual who
had been ousted from the Union for nonpayment of
dues. 1 s
13 This act of sanctioning direct dealing with employees on wage rates
at a time when contract negotiations were going on is further evidence of
Respondent 's bad-faith bargaining on and after I November.
14 Longshoremen , 79 NLRB 1487, 1507 (1948)
15 I also find the managers were supervisors within the meaning of
Sec. 2(11) Among other indicia of that status , they are shown to have
lured employees and to have exercised considerable discretion in super-
vising them and in seeing that operations went smoothly.
16 See Aircraft Plating Co, 213 NLRB 664 (1974).
17 United Oil Mfg Co., 254 NLRB 1320 ( 1981).
18 Pursuant to the instructions winter also terminated another union
projectionist, Maier , about 16 October Maier opted not to participate in
this proceeding; and, at the request of the General Counsel, the charges
and complaint were amended to delete references to him A third
member of the Union, Scott, "quit" about 30 October, and the circum-
stances of her departure also are not of record
19 At the trial the General Counsel asked and was granted permission
to amend the complaint to add an allegation that Respondent violated
Sec. 8(a)(5) by not hiring replacement projectionists through the Union
However, the Ellis contract contains no provision in that regard and the
evidence fails to establish any practice whereby Respondent or his prede-
cessor undertook to hire only through referrals from the Union. Accord-
ingly, the "hiring hall" allegation will be dismissed,
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances Kamner 's membership in the
Union is shown to have been a motivating factor in his
discharge. Accordingly, it is incumbent on Respondent
to establish that the firing would have occurred in any
event, i.e., even apart from his involvement with the
Union.20
In attempting to meet that burden Respondent claims
that Fox acted out of frustration arising from a series of
derelictions occurring during the Friday through
Monday period immediately preceding Kamner's dis-
charge. Projectionist Scott had been scheduled to work
on Friday, Saturday, and Sunday, and Kamner had duty
on Monday . 2 i However, Scott was absent on Friday
evening without prior notice , and substitute operator
Maier arrived 45 minutes late, with the result that Winter
had to prepare the film and the show started 10 minutes
late. On Saturday no operator showed up and Winter
had to run the film. The Sunday matinee went fine but
the evening performance was plagued with multiple film
breakages (allegedly Scott's fault) and the show ran a
half hour late . And on Monday evening Kamner was
absent without prior notice and his substitute , Maier, ar-
rived a half hour late, in consequence of which the show
started 10 mimutes late.
I am not persuaded that Kamner-a man who had
worked at the theater for over 12 years, who testified
without contradiction that he had never been late or rep-
rimanded, and who was characterized as a "great opera-
tor" by Manager Winter-would have been fired for a
single dereliction , i.e., not calling in the name of his sub-
stitute and seeing to it that the substitute arrived on time.
Indeed, Fox concedes (Tr. 362) that his concern was not
with any one individual but with the overall poor per-
formance of union operators during the period in ques-
tion; and he states (Tr. 341) that he instructed Winter to
"immediately get other operators ... [without having to
go] through the Union"; and, as noted above , he does
not deny having told Winter "this is not a Union house
anymore." In effect, therefore, Fox is affirmatively
shown to have ordered Kamner 's termination regardless
of fault on his part and solely because he was a member
of the Union-a classic violation of Section 8(a)(3) of the
Act.22
CONCLUSIONS OF LAW
I find that Respondent violated Section 8(a)(1), (3),
and (5), and Section 8(d) of the Act in the particulars
and for the reasons stated above, and that it is not shown
to have violated the Act in any other respect. I further
20 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert denied 455 U S. 989 (1982).
21 Scheduling was flexible in the sense that projectionists were allowed
to trade workdays with one another or to secure a substitute operator
through the Union and the absentee or the Union was expected to give
management advance notice of substitutions
22 1 find no ment in Respondent 's contention that any inference of un-
lawful motivation is dispelled by the fact that Fox did not also order dis-
charge of union operators employed at other theatres As stated in Nach-
man Corp v NLRB, 337 F.2d 421, 424 (7th Cir. 1964), " it is well
established that a discriminatory motive, otherwise established, is not dis-
proved by an employer's proof that it did not weed out all union adher-
ents." Here, by "firing the Union" from one theatre Fox effectively con-
veyed a chilling message to projectionists at others
find that those unfair labor practices and each of them
have affected , are affecting, and unless permanently re-
strained and enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent had engaged in unfair
labor practices, I fmd it necessary to order it to cease
and desist therefrom , and from further infringing on em-
ployee rights in any like or related manner , and to take
certain affirmative action designed to effectuate the poli-
cies of the Act. Such affirmative action will include (1)
signing and abiding by the collective-bagaining agree-
ment reached on 18 April 1984 until such time as it is
superseded by another agreement reached after good-
faith bargaining with the Union as exclusive representa-
tive of an employee unit consisting of
All stage employees and moving projector opera-
tors employed, by Respondent at its theatres in Phi-
lidelphia, PA and vicinity,
or until modified or terminated in compliance with the
provision of Section 8(d) of the Act; (2) indemnifying
unit employees for any loss of wages and benefits they
may have incurred as a result of Respondent's unlawful
unilateral failure to observe terms an conditions of the
collective-bargaining agreement reached on 18 April
1984; (3) making available to the employees' bargaining
representative, on request, books and records reasonably
necessary to permit them to conduct informed bargaining
and to verify Respondent's claim of economic inability to
meet wage and benefit demands; and (4) making Irwin
Kamner whole for any loss of earnings or other benefits
he may have suffered as a result of the discimination
practiced against him. Sums due employees , or to the
Union on their behalf, shall be computed, with interest,
in accordance with the principles set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950); and Florida Steel
Corp., 231 NLRB 651 (1977); see generally Isis Plumbing
Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The Respondent, Fox-Art Theatres, Inc., Narberth,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to sign a collective -bargaining agreement
reached on 18 April 1984 between it and the Union as
exclusive bargaining representative of its employees in
the above-described bargaining unit.
(b) Unilaterally reducing unit employees' wages or
otherwise changing or eliminating their benefits includ-
23 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
FOX-ART THEATRES 817
ing contributions payable, on their behalf into the Union's
pension plan and its welfare and insurance fund, due
under the collective-bargaining agreement reached on 18
April 1984.
. (c) Failing to bargain in good faith concerning a suc-
cessor agreement to that reached on 18 April 1984 by,
among other things, refusing to provide economic infor-
mation and access to its books and records to an extent
necessary to permit the Union adequately to fulfill its
bargaining tasks.
(d) Discharging or otherwise unlawfully discriminating
against unit employees because of their membership in
the Union.
(e) Offering monetary or other benefits as an induce-
ment to keep unit employees from striking.
(0 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) Sign and abide by all terms and conditions of the
collective-bargaining agreement reached on 18 April
1984 until such time as it is superseded by another agree-
ment reached after good-faith bargaining with the Union
or until it is modified or terminated in compliance with
the provisions of Section 8(d) of the Act.
(b) Promptly make available to the Union information
and access to books and records needed to permit it to
evaluate, as an incident to its bargaining tasks, any claim
of economic inability to meet wage and benefit demands.
(c) Make whole unit employees for any loss of wages
and benefits they have incurred, and the Union for any
amounts due on their behalf, by reason of Respondent's
unlawful unilateral failure to observe terms and condi-
tions of the collective-bargaining agreement reached on
18 April 1984, in the manner set forth in the Remedy
portion of this decision.
(d) Offer Irwin Kamner immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and make
him whole for any loss of pay and other benefits he may
have suffered by reason of his unlawful discharge in the
manner set forth in the remedy portion of this decision.
(e) Remove from its files any reference to the unlawful
discharge and notify the emplo yeee in writing that this
has been done and that the discharge will not be used
against him in any way.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at each of the six theaters involved herein
copies of the attached notice marked "Appendix."24
24 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. -
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX .
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to sign the collective-bargaining
agreement which we reached on 18 April 1984 with the
exclusive representative of our projectionists, the Phila-
delphia Moving Picture Machine Operators Union Local
No. 307 a/w International Alliance of Theatrical Stage
Employees of the U.S. and Canada.
WE WILL NOT reduce or change your wages or bene-
fits under that agreement without consent of the Union.
WE WILL NOT discharge or otherwise discriminate
against you because of your membership in or activities
on behalf of the Union.
WE WILL NOT offer monetary or other benefits to keep
you from striking.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, at once make you whole for any loss of
wages and'benefits you have incurred, and the Union for
any amounts due on your behalf by reason of our failure
to observe the terms and conditions of the collective-bar-
gaining agreement reached on 18 April 1984.
WE WILL offer Irwin Kamner immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent postion without preju-
dice to his seniority and other rights and privileges, and
WE WILL make him whole, with interest, for any loss of
pay and benefits he may have suffered as a result of his
unlawful discharge.
WE WILL promptly make available to the Union infor-
mation and access to our books and records in order to
enable it to evaluate and respond to any claim or eco-
nomic inability to meet wage and benefit demands.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL promptly sign and abide by all terms and nated in accordance with provisions of Section 8(d) of
conditions of the collective-bargaining agreement the Act.
reached on 18 April 1984 until such time as it is super-
seded by another agreement reached after good-faith bar- Fox-ART THEATRES, INC.
gaining with your Union or until it is modified or termi-