General Cinema Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1974

214 N.L.R.B. 1074 (N.L.R.B. 1974)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Cinema Corporation and its wholly owned
subsidiary, Gentilly Woods Cinema, Inc.' and Inter-
national Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada, Local Union 293A and
International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the
United States and Canada , Projectionists Local No.
293, Party to the Agreement . Case 15-CA-4778
November 20, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On February 25, 1974, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the Respondent, the Par-
ty to the Agreement, and the General Counsel each
filed exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
This case involves competing requests from Local
293 and Local 293A to fill three projectionist posi-
tions at Respondent's new twin movie theater at the
Gentilly Woods shopping center in New Orleans,
which opened on March 29, 1973. In opening the
new theater, General Cinema set up a wholly owned
subsidiary, Gentilly Woods Cinema, Inc., General
Cinema Corporation, which has theaters throughout
the country, opened two theaters-Lakeside Cinema
and Oakwood Cinema-in New Orleans in 1967 and
entered into contracts with Local 293. In 1970, new
3-year contracts were agreed to between Local 293
and each theater. In December 1970, Howard Spiess,
General Cinema's general manager, orally promised
Local 293 that its members who had been laid off
because of automation of the projection booths at
Lakeside and Oakwood would have prior claim for
jobs when General Cinema opened a new theater.
On September 13, 1972,3 Local 293A wrote to
General Cinema that it was composed of black mem-
Respondent 's name appears as amended at the hearing
2 The Respondent has requested oral argument This request is hereby
denied as the record , the exceptions, and the briefs adequately present the
issues and the positions of the parties
3 Unless otherwise stated all events occurred from September 1972
through March 1973
bers and has been excluded from holding jobs in pre-
viously all-white theaters and in recently opened
theaters catering to mixed racial patronage. The let-
ter stated that the new theater under construction
was located in a black area and that several civic
organizations were interested in seeing that Local
293A would obtain the jobs. The letter concluded by
requesting "award of the job of Motion Picture Pro-
jectionist at your Gentilly Woods Cinema I and II to
Local 293A, with working conditions, wages, and
other terms of contract open to negotiations." Spiess
responded on October 2, stating that this was his first
knowledge of another local and that he was taking
the request under advisement.
On October 17 and November 17, Local 293 con-
tacted Spiess concerning the referral of its members
as projectionists. On October 25 and February 22,
Local 293A asked for a reply to its earlier request.
Local 293A's position had been supported by organi-
zations in the black community which put pressure
on the Respondent to hire blacks. Spiess then called
the assistant president of the International and asked
what to do. The assistant president said, "Deal with
293." Spiess called Local 293, asked for referrals, and
proposed that the terms of the Oakwood contract ap-
ply to the new theater. On February 23, Local 293
referred former employees of the Lakeside theater
who began work on February 25. On March 27,
Spiess wrote to Local 293 confirming that the Oak-
wood contract terms would apply at Gentilly Woods.
General Cinema owns the Gentilly Woods, Lake-
side, and Oakwood theaters. Accounting and person-
nel records are kept in the Boston office, and payroll
checks are prepared there. Spiess supervises the hir-
ing of managerial personnel and negotiates all the
labor contracts. The three theaters place joint adver-
tisements, use a common training manual, have simi-
lar layouts and equipment, provide standard uni-
forms, and centrally purchase interchangeable mer-
chandise. Employees may be interchanged, although
interchange of projectionists is accomplished through
the Union's hiring hall.
The contracts for the Lakeside and the Oakwood
theaters were entered into on the same day, signed
by Spiess, and differ from each other only in respect
to hours, guaranteed wages, and a few other provi-
sions. However, each theater had a different con-
tract, none of which applied to new operations. The
Oakwood contract (which was adopted at Gentilly
Woods) specifically provided that it applied to Oak-
wood only. That contract provided also that employ-
ees shall become members of Local 293 within 30
days, that members shall remain members, that Re-
spondent shall give the Local notice of vacancies,
and that the Local's seniority rules shall apply.
214 NLRB No. 147
GENERAL CINEMA CORPORATION
The record shows that, at the time of the events in
issue , Local 293 had 96 members and Local 293A
had 8. Local 293 historically represented white pro-
jectionists at white theaters, and Local 293A repre-
sented black projectionists at black theaters. Until
December 1972, when it accepted its first black
member, Local 293 had a policy of referring black
projectionists to Local 293A. Local 293A has never
had a policy of excluding whites but had no white
members until 1973 largely because it offered lower
wages and fewer jobs. Local 293 now represents pro-
jectionists at theaters with predominately white pa-
trons, at mixed theaters, and at most of the recently
opened theaters. Although Local 293 admitted that
the existence of two locals, one white and one black,
is inconsistent with the intent of the Civil Rights Act
of 1964, attempts by Local 293 to effectuate merger
with Local 293A had not succeeded. In an October
meeting, Local 293 offered merger terms which were
rejected primarily because of seniority problems. Lo-
cal 293 offered seniority based on continuous length
of credited service, defined as work for employees
abiding by agreement with Local 293, but with over-
riding preference to members previously employed
by an employer. Thus, referrals on this basis would
place the members of Local 293A at the bottom of
the seniority list, particularly when referrals were
made to theaters which Local 293 had represented.
The Respondent contends, inter alia, that the case
should be dismissed on the grounds that the Board
cannot make its remedial machinery available to Lo-
cal 293A;4 that the complaint was erroneously al-
lowed to be amended to include racial matters;' and
that the General Counsel failed to provide it with the
appeals memorandum in prejudice to the preparation
of its case.' On the merits the Respondent contends
that it was an innocent party with no knowledge of
any discrimination by Local 293, relying on its 1970
4 N L R B v Mansion House Center Management Corp, 473 F 2d 471
(C A 8, 1973), cited by Respondent , does not apply here since individual
members of Local 293A stand to benefit from the Board 's processes, not the
Local itself Moreover , the record herein does not show that Local 293A has
enfaged in discrimination
On the first day of hearing, the Administrative Law Judge permitted the
complaint to be amended by adding that the Respondent 's acts were based
on union membership and racial considerations The Administrative Law
Judge, citing Respondent's indication that it needed time to prepare a de-
fense on the racial issue , postponed the trial for 2 weeks We find that
Respondent had ample opportunity to prepare its defense and was not
prejudiced by this matter
Respondent cites Sears, Roebuck & Co, v N L R B, 346 F Supp 751
(D C D C, 1972), affd. without opinion 480 F 2d 1195 (C A D C, 1973),
cert. granted 420 U S 920 (1975) The district court, as affirmed by the
court of appeals, held that parties are entitled to such memoranda under the
Freedom of Information Act The Board respectfully declines to adhere to
that decision until such time as the Supreme Court has acted We also find
that the Respondent has not shown that it was prejudiced in the preparation
of its case since the complaint , as amended , fully sets forth the legal issues
involved
1075
commitment to hire laid-off employees and on the
International's decision in the matter. Respondent
argues that Gentilly Woods theater was an accretion
to the existing theaters and that recognition of Local
293 was lawful. Respondent excepts to the Adminis-
trative Law Judge's finding that it desired to hire at
least one black projectionist. Local 293 takes sub-
stantially the same position as Respondent, stating
that Gentilly Woods is a natural accretion citing em-
ployee interchange, integration of operations, cen-
tralized administration, identical working conditions,
integration of product, and common control over la-
bor relations; and that, since Respondent legally rec-
ognized Local 293, it follows that the referral of
members of Local 293 is likewise lawful. Local 293
argues that once the recognition was found to be le-
gal the racial matters should have been deferred to
Federal court' It contends that the Administrative
Law Judge's recommendation that Respondent hire
one black projectionist is erroneous . We find these
exceptions to be without merit.
Upon being told by the International to deal with
Local 293, Spiess called Local 293, asked for refer-
rals, and proposed that the Oakwood contract be
adopted at Gentilly Woods. Thus, Respondent rec-
ognized Local 293 as bargaining representative of its
projectionists at a time when Respondent had not
hired any projectionists. This constitutes premature
recognition in its barest form. It has long been settled
that premature recognition or recognition of a nonre-
presentative union, absent accretion, unlawfully as-
sists the union, regardless of the employer's good
faith or the absence of a question concerning repre-
sentation.'
There can be no accretion here because of the sep-
arate corporate existence of Gentilly Woods and be-
cause the Oakwood contract was specifically limited
to that theater. Even assuming that Oakwood, Lake-
side, and Gentilly Woods would form the basis for
an appropriate unit, Gentilly Woods is not an accre-
tion since its projectionists alone would constitute an
appropriate unit.' Accordingly, we find that Respon-
dent prematurely recognized Local 293 and thereby
violated Section 8(a)(1) and (2) of the Act.
Respondent also entered into a collective-bargain-
ing agreement containing both a union-security
7 The record shows that the separate locals issue is subject to suits brought
under Title VII of the Civil Rights Act of 1964 by both Local 293A and
Local 293
8 Max Factor and Company, 118 NLRB 808 (1957), Dura Corporation, 153
NLRB 592 (1965), Lianco Container Corporation, 173 NLRB 1444 (1969)
The reason , as stated by Mr Justice Stone , is that "once an employer has
conferred recognition on a particular organization it has a marked advan-
tage over any other in securing the adherence of employees " N.L R B
v Pennsylvania Greyhound Lines, Inc, 303 U S 261, 267 ( 1938), enfg I
NLRB I
9 See Melbet Jewelry Co, Inc, 180 NLRB 107 (1969)
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clause and a hiring hall provision. The contract pro-
vided that Local 293's seniority provisions should ap-
ply and that the Local should be notified of vacan-
cies. The practice under the Oakwood contract,
which was adopted by Gentilly Woods, was to staff
projectionists with referrals from the Local. Since
Local 293 was not lawfully recognized, the contract
was unlawfully entered into. "Quite apart from other
conceivable situations, the unlawful genesis of this
agreement precludes its partial validity." 10 Under
such circumstances, Respondent's entering into a
contract containing a union-security clause and a
hiring hall provision violates Section 8(a)(1), (2), and
(3) of the Act."
There remains for consideration whether Respon-
dent additionally violated Section 8(a)(3) and (1) of
the Act by participation in a discriminatory hiring
hall. For the reasons below, we find that it did. As
indicated, the record establishes that Respondent
staffed its projectionist positions with referrals from
Local 293.12 Thus, the Respondent has delegated hir-
ing to the Local through the use of the Local's exclu-
sive referral hall. Such a hiring hall arrangement is
not unlawful per se, but may become so if operated in
a discriminatory manner unrelated to legitimate
union concerns."
The record shows that Local 293 has discriminated
against blacks. Those who applied were referred to
Local 293A, and until December no black had been
admitted to membership in Local 293. Local 293 did
not send job bids to Local 293A and, at least until
December, had not placed blacks on a job. During
the proposed merger discussion, Local 293's position
with respect to seniority was such that members of
Local 293A would be placed on the bottom of the
seniority list, particularly so far as placement at Gen-
tilly Woods was concerned. Although no member of
Local 293A sought referrals through Local 293, the
discriminatory nature of Local 293 is so apparent
that it had the natural consequence of making any
such request an exercise in futility. In these circum-
stances, we find that Local 293 has effectively denied
access to its hiring hall by members of Local 293A
because of their race.
10 International Ladies' Garment Workers Union, AFL-CIO [Bernhard-Alt-
mann Texas Corporation] v N L R B, 366 U S 731, 737 (1961)
11 Young & Greenawalt Co, 157 NLRB 408, 411 (1966), Mr Wicke Ltd
Co, 172 NLRB 1680, 1682 (1968) Member Fanning does not rely on the
presence of the hiring hall in the contract in finding this violation
12 The Respondent 's contention that it hired the projectionists because
they had previously been employed at the Lakeside theater is not estab-
lished on this record Spiess made no requests to the Local but accepted
those who were referred Absent special circumstances , Board law would
not prohibit Spiess from following through with his agreement The record
establishes , however , that Spiess did not attempt to do so
13 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v
NLRB,365US 667 (1961)
Respondent contends that it lacked knowledge of
any discrimination and should therefore not be held
accountable. However, it is settled that, if an employ-
er vests a union with the power to hire in his behalf,
he is responsible for the hiring hall's practice of dis-
crimination,14 especially if he knew, or should know,
what those practices are.15 Here Spiess was informed
by the International's vice president that the "A" in
Local 293A stood for black, by groups from the com-
munity that racial matters were involved, and by Lo-
cal 293A, in its letter requesting recognition, that it
represented only predominantly black theaters. It
would be naive for this Board to conclude from the
facts in this record that the Respondent neither knew
nor had compelling reason to surmise that Local 293,
in the operation of its hiring hall and seniority provi-
sions, was preferring its own members to those of
Local 293A on the basis of wholesale and notorious
racial discrimination. Thus, we find that the Respon-
dent, through acquiescence in the practices of Local
293, discriminated in regard to the hire of employees.
The situation described falls squarely within the pro-
visions of the statute, in that the Respondent by dis-
crimination in regard to hire encouraged member-
ship in Local 293. Accordingly, we find that the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(1), (2), and (3) of the Act by prematurely
recognizing Local 293 and entering into a union-se-
curity and hiring hall agreement with it, we shall or-
der the Respondent to cease and desist therefrom
and withdraw and withhold recognition from Local
293 until such time as it is certified. We have also
found that Respondent violated Section 8(a)(3) and
(1) of the Act by discrimination in regard to hire in a
manner encouraging membership in Local 293. Ac-
cordingly, we shall order the Respondent to cease
and desist therefrom. We shall also order the Re-
spondent to make whole the lost wages of any person
illegally denied employment because of its discrimi-
nation. Since the record does not establish what per-
sons, if any, are entitled to backpay or when any
backpay should commence or terminate, we shall
leave such determination to the compliance stage of
this proceeding. Backpay and interest are to be cal-
culated in the manner set forth in F. W. Woolworth
14 Morrison-Knudsen Company, Inc, Walsh Construction Company, and
Perini-Quebec Inc, d/b/a Robinson Bay Lock Constructors, A Joint Venture,
123 NLRB 12 (1959), enfd 275 F 2d 914, 917 (C A 2, 1960), cert denied
366 U S 909 (1961)
15 Southern Stevedoring and Contracting Company, 135 NLRB 544 (1962),
enfd 332 F 2d 1017, 1019 (C A 5, 1964)
GENERAL CINEMA CORPORATION
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Locals 293 and 293A are labor organizations
within the meaning of Section 2(5) of the Act.
3. By recognizing Local 293 as the exclusive repre-
sentative of its projectionist employees at a time
when no employees had been hired and said labor
organization did not represent a majority of pro-
jectionists and by executing and maintaining a col-
lective-bargaining agreement with Local 293 contain-
ing union-security and hiring hall provisions, the Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1),
(2), and (3) of the Act.
4. By maintaining in effect an arrangement and
practice with Local 293 under which nonmembers
were discriminated against by giving preference in
referral for employment to members, thereby encour-
aging membership in Local 293, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
General Cinema Corporation and its wholly owned
subsidiary, Gentilly Woods Cinema, Inc., New Orle-
ans, Louisiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Recognizing or contracting with Local 293, or
any successor thereto, as the representative of its pro-
jectionist employees at the Gentilly Woods twin
movie theater for the purpose of collective bargain-
ing, unless and until said labor organization has been
certified by the National Labor Relations Board as
the exclusive representative of such employees.
(b) Giving effect to or in any way enforcing the
collective-bargaining agreement with Local 293, or
any modification, extension, renewal, or supplement
thereto; provided, however, that nothing herein shall
1077
require the Respondent to prejudice the assertion by
employees of any rights they may have thereunder.
(c) Acquiescing in, maintaining, or utilizing a hir-
ing agreement with Local 293 or any other labor or-
ganization under which nonmembers are discrimi-
nated against by giving preference in referrals to
members, except as authorized by Section 8(a)(3) of
the Act.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Lo-
cal 293 or any successor labor organization as the
exclusive representative of its projectionist employees
at the Gentilly Woods twin movie theater for the
purposes of collective bargaining, unless and until
said labor organization has been certified by the Na-
tional Labor Relation Board as the exclusive repre-
sentative of said employees.
(b) Make whole those persons, if any, for any loss
of earnings they may have suffered by reason of
Respondent's discrimination against them in the
manner set forth in the "Remedy" section of this De-
cision.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amounts of
backpay due under this Order.
(d) Post at the Gentilly Woods twin movie theater,
New Orleans, Louisiana, copies of the attached no-
tice marked "Appendix." 16 Copies of said notice, on
forms provided by the Regional Director for Region
15, after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
16 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
1078 DECISIONS OF 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 hereby notify our employees that:
WE WILL NOT recognize International Alliance
of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States
and Canada, Projectionists Local No. 293, as the
exclusive representative of our projectionist em-
ployees for the purposes of collective bargain-
ing, unless and until it has been selected by our
employees in an election conducted by the Na-
tional Labor Relations Board.
WE WILL NOT give any force or effect to the
collective-bargaining agreement entered into
with the above-named Union, or to any modifi-
cations, extension, renewal, or supplement to
said agreement, but
WE WILL NOT prejudice the assertion by em-
ployees of any rights they may have under such
agreement.
WE WILL NOT acquiesce in, maintain, or utilize
a hiring agreement with the above-named
Union, or any other union, under which non-
members are discriminated against by giving
preference in referrals to members, except as au-
thorized by Section 8(a)(3) of the National La-
bor Relations Act.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL make whole those persons, if any, for
any loss of earnings they may have suffered by
our discrimination against them.
GENERAL CINEMA CORPO-
RATION AND ITS WHOLLY
OWNED SUBSIDIARY GEN-
TILLY WOODS CINEMA,
INC.
DECISION
STATEMENT OF THE CASE
293A on February 26 and amended at the trial, and the
complaint was issued on August 24.
For many years, Local 293 represented white, and Local
293A represented black, projectionists in New Orleans.
This case arose when the Company,2 which had contracts
with Local 293 at twin theaters in two white sections of the
city, prepared to open twin theaters in a shopping center
near some black residential areas and refused to hire any
black projectionists. The primary issues are whether the
Company (a) discriminatorily refused to hire one or more
black projectionists because of nonmembership in Local
293, and (b) illegally recognized and supported Local 293
when Local 293A was claiming recognition, in violation of
Section 8(a)(1), (2), and (3) of the National Labor Rela-
tions Act.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel, the Company, and
Local 293, 1 make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a Massachusetts corporation, operates
motion picture theaters in various States and, with Gentilly
Woods Cinema, Inc., operates Cinema I and II in the Gen-
tilly Woods Shopping Center in New Orleans, Louisiana.
The Company annually receives revenue in excess of
$500,000 from customers, and receives goods and materials
valued in excess of $50,000 directly from outside the State.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that Locals 293 and 293A, affiliated
with International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada, herein called IATSE or the Interna-
tional, are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In 1967, the Company opened twin theaters, called Cine-
ma I and II, in the Lakeside and Oakwood shopping cen-
ters, located in white sections of New Orleans. At that
time, when it signed contracts with Local 293 covering the
projectionists, and in 1970, when it signed new 3-year con-
tracts, the Company was not aware of the existence of Lo-
cal 293A (Local 293 had been a white local in New Orle-
ans since it was chartered in 1913. Local 293A was char-
tered for black projectionists in 1939, in the same
geographical area. Local 293 had 86 members, and Local
293A had 8 members.)
On March 29, 1973, the Company opened a third Cine-
ma I and II in the Gentilly Woods shopping center, located
near Pontchartrain Park and the Desire Project, where the
residents were predominantly black.
2 The Company, General Cinema Corporation, is admittedly a joint em-
ployer with its wholly owned subsidiary, Gentilly Woods Cinema. Inc The
style of the case was corrected at the trial
MARION C. LADWIG, Administrative Law Judge: This
case was tried at New Orleans, Louisiana, on October 2,
16, 18, 19, and 24, 1973.' The charge was filed by Local
i All dates are from September 1972 until June 1973 unless otherwise
stated
GENERAL CINEMA CORPORATION
B. Refusal To Hire Black Projectionists
1. Requests from segregated locals
On September 13, when the Gentilly Woods Cinema I
and II theaters were under construction, Local 293A wrote
the Company a letter, requesting award of the job of mo-
tion picture projectionist to members of that local. The
letter stated that Local 293A "has a long record of satisfac-
tory performance," and that it "presently is composed of
all non-white membership" and "has been excluded from
holding jobs in theatres which were previously all-white,"
and from holding jobs in numerous new theaters catering
to mixed racial patronage. After mentioning the Civil
Rights Act of 1964 and the Public Accommodations Title,
Local 293A stated, "Your new twin theatre . . is located
in an area which has a very large percentage of black popu-
lation which will obviously result in a like percentage of
black patronage," and that "Several black civic leaders and
organizations, elected officials [and) neighborhood groups
have an interest in the welfare of Local 293A and have
assured us that they are interested in seeing that we obtain
our entitlement of the jobs in the New Orleans Area." The
letter concluded that Local 293A had "members who are
out of work and available for immediate assignments," and
requested award of the projectionist job "with working
conditions, wages, and other terms of contract open to ne-
gotiations," and a reply "in the very near future."
General Manager Howard Spiess (the Company' s assis-
tant vice president in charge of personnel and labor rela-
tions), credibly testified that upon receipt of the letter,
"Immediately I picked up the phone and called ... Mr.
Walter Diehl . . . Assistant International President of the
IATSE," told him about the letter, and asked "what this is
all about." Diehl responded, "this is New Orleans and this
is a black local," and explained that the "A" in 293A
"stood for black local ." Spiess asked, "O.K. What do I do?
I have a tentative appointment to be in New Orleans
on this trip" (to see Local 293 Business Agent Thadius
Autin). Diehl said, " I suggest that you cancel your appoint-
ment ." Spiess then called Autin and canceled the appoint-
ment, without explanation.
Shortly thereafter, on October 2, General Manager
Spiess answered Local 293A's letter, stating that this was
his first knowledge of a projectionist local other than Local
293, and stating, "We are taking your letter under advise-
ment." Having heard nothing further from the Company,
Local 293A again wrote Spiess On October 25, requesting a
reply. Spiess did not respond.
Meanwhile, on October 17, Local 293 Secretary Edmund
Buras wrote General Manager Spiess regarding whom to
refer projectionists for these new theaters. On November
17 (following an unsuccessful merger meeting, discussed
later), Local 293 Business Agent Autin wrote Spiess, advis-
ing that the projectionists formerly employed at Lakeside
Cinema I and II and Oakwood Cinema I and 11 "who were
temporarily involved in a cutback due to automation, are
now available for employment as projectionists in your
new Gentilly Woods Theatre," and requesting an early re-
ply
Thus, for months before the March 29 opening of the
1079
Gentilly Woods Theaters, Local 293 was seeking the em-
ployment of white, and Local 293A of black, members as
the projectionists. In the meantime, the local black com-
munity had become involved, seeking the employment of
black managers and other blacks at the new theaters. On
November 10, representatives of three groups of the
NAACP sent the Company a letter, with copies to "Long
Shoreman Association," the Urban League, and the
EEOC, stating that the New Orleans NAACP "is vitally
interested in the new twin theaters . . . in the Gentilly area
... that this location is one of the densely populated
Black areas in the city," and that "the majority patronage
of these theaters will be Black moviegoers." The letter
urged that the Company "cooperate in providing employ-
ment to those Black men and women who have the proper
training and experience." The Company promptly re-
sponded, assuring them in writing that it "is an equal op-
portunity employer and this policy is followed in our the-
atres throughout the Country. Also be assured that equal
opportunity for employment will be given to all who qualify. "
(Emphasis supplied.)
2. Conflicting commitments
By February, as the new theaters were nearing comple-
tion, the Company had not decided whether to hire white
or black projectionists.
On the one hand, the Company had been dealing with
Local 293, which sought the employment of its white mem-
bers. Neither of the 1970-1973 Local 293 contracts cover-
ing the Lakeside and Oakwood theaters applied to future
theaters, and the Oakwood contract (the terms of which
the Company later negotiated for the new theaters) specifi-
cally provided, in paragraph 25, "That this contract applies
to Oakwood Cinema 1 and 2 (automated) only." However,
four jobs in the Lakeside and Oakwood theaters had been
eliminated in August 1970, when the projection booths
were automated, and as General Manager Spiess credibly
testified, he had promised Business Agent Autin in a De-
cember 1970 meeting that "if the opportunity occurred in
future developments here in New Orleans," or "if and
when I had a new theaterfor [the laid-off projectionists] to
come in . . . that they would have prior claim on the
work." When Spiess made this oral promise, several
months after the four terminations had occurred, he was
not aware that the new theaters would be located near
large black residential areas, or that there would be quali-
fied black projectionists seeking employment. Neither was
he aware that black projectionists had been denied mem-
bership in Local 293, and therefore denied referrals for
employment at Lakeside and Oakwood, as well as at other
white and mixed theaters in the city.
On the other hand, Local 293A was seeking employment
of its black members, claiming that the new theaters were
located in an area with a very large percentage of black
residents, and stating that it "has members who are out of
work and available for immediate assignment." Further-
more, the black community was becoming aroused, and
was applying pressure on the Company to hire blacks. In
response, the Company had given assurance in writing that
equal opportunity for employment would be given "all who
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualify." (The Company at no time questioned the qualifi-
cation of the black members of Local 293A.) The Compa-
ny obviously sought to prevent black hostility, and a possi-
ble black boycott of the theaters.
Thus the Company, without knowledge of all the cir-
cumstances, had made an oral commitment to Local 293 to
give first choice to the former white employees , but later
gave a written assurance to the black community to afford
equal employment opportunity to "all who qualify," which
would include the qualified black projectionists repre-
sented by Local 293A.
The Company decided what course to follow by contact-
ing the locals ' International.
3. "Who do I call?"
On February 22, General Manager Spiess received a
telegram from Local 293A, stating that the Gentilly Woods
theaters were nearing completion and that "It is imperative
that we meet with your representative in regard to staffing
theaters with necessary projectionists " before the installa-
tion of the projection equipment. A decision had to be
made.
Spiess telephoned IATSE Assistant President Diehl (pre-
sumably after receiving this telegram) and urged , "We are
now up a point where it [is ] necessary to install the equip-
ment and where do we go from here . . . who do I call to
use people?" (Emphasis supplied .) Diehl , who was seeking
a merger of the two locals, responded , "Deal with 293."
That was the end of the conversation
Spiess telephoned Local 293 Business Agent Autin,
called for projectionists , and proposed the terms of the
Oakwood contract to apply to the new theaters. Local 293
held a special meeting on the night of February 23, and
referred two former Lakeside employees , Business Agent
Autin and member Stewart Hunter , as the regular pro-
jectionists at the Gentilly Woods theaters, and the Oak-
wood swing man to work also as the Gentilly Woods swing
man when the new theaters opened . Autin and Hunter be-
gan working for the Company about February 25, as the
equipment was being installed , but retained their old jobs
at other theaters in the event "something went haywire."
(Their other jobs were reassigned when the new theaters
opened on March 29.) On February 26, Spiess sent Local
293A a telegram, stating that Gentilly Woods Cinema I
and II "will be staffed by former employees of our Lake-
side and Oakwood theaters." On March 27, Spiess wrote
Autin a letter , confirming the understanding that the terms
of the Oakwood contract would apply at Gentilly Woods
4. Majority of blacks hired
Although the manager (who was transferred in to carry
out company policy) and the three projectionists (two full-
time and one part -time) were white , most of the employees
hired to staff the new theaters were black (including an
assistant manager and a cashier). Yet the black community
continued to apply pressure for the hiring of "significant"
black employment , including the manager and the pro-
jectionists.
On February 23, before the NAACP learned of the all-
white staffing of the projection booth, NAACP representa-
tives wrote General Manager Spiess a second letter, pro-
testing the hiring of a white manager . The letter read, in
part:
Our initial correspondence informed you of our
concern that blacks be hired in all capacities . . . You
informed us of your good faith and a follow -up tele-
phone call from your representative further indicated
fair play... .
We are slighted by [your hiring a white manager].
We feel that you have not operated in good faith with
us and we do not intend to simply ignore this blatant
slap in the face. Direct redress of grievances has al-
ways been our key to community accountability.
... We know that you already have two theaters in
New Orleans , one in Lakeside and the other in Oak-
wood-both these shows have totally white employ-
ment (with the exception of a black porter). . . . In a
city whose population is 48% black and an area of 85%
black population status , this issue will certainly be
brought before the community.
. . . We only ask for fairness . If it doesn't come
across the table , we have no choice but to plan other
actions which have proven so effective in the past.
Company representatives met on March 13 with repre-
sentatives of the NAACP (to whom Local 293A members
had complained ), and with a black State Representative.
As credibly testified by Company Division Manager Wil-
liam Wilson, NAACP Representative Claude Gasper in-
sisted that "he wanted us to hire a black manager and a
black projectionist." Wilson answered , concerning the lat-
ter, "As far as black projectionists were concerned, we
were supplied projectionists by the International .. .
IATSE, and I had nothing to do with that . . . [T]hey
didn't make any bones about the fact that they wanted us
to hire a black manager and black projectionists and noth-
ing else would be accepted. I explained to them that we
had a black assistant manager and that 80% of our staff
was black. And the answer that I received was that this was
unacceptable, that they wanted a black manager and black
projectionists." After about an hour, "one of the gentlemen
from the NAACP said, and I quote, `You will be hearing
from us' ... in what we thought was a very threatening
tone and I don't mind telling you we were very concerned,
very upset, when we left that meeting that night."
The black boycott followed. On opening night, March
29, black pickets appeared and distributed handbills read-
ing:
GENERAL CINEMA CORPORATION
BOYCOTT!!! BOYCOTT!!!
GENERAL CINEMA CORP.
OWNER OF GENTILLY WOODS TWIN THEATERS
Located in a Majority Black Area
HAS UNFAIR HIRING PRACTICES
OF QUALIFIED BLACKS
They Have Refused to Enter Negotiations with Black
Labor
They Refuse to Employ Us in Managerial Capacities
WE ARE THE MAJORITY PATRONS
WE SHOULD BE THE FIRST EMPLOYED
(The picketing was later enjoined.)
On March 28, 1 day before the opening, General Man-
ager Spiess and his counsel met with Local 293A, and re-
ported that IATSE Assistant President Diehl had instruct-
ed Spiess to deal with Local 293. Spiess' counsel denied
that this was a racial matter, and Spiess stated that he had
no objection whatever to hiring blacks.
1081
by the contract (i.e., at Lakeside and at Oakwood), by pro-
viding:
In hiring persons to perform services covered by the
terms of this Agreement, the Employer shall grant pref-
erence in employment to those employees who have
previously been employed as moving picture machine
operators for said employer within the Greater New
Orleans area. [Emphasis supplied.]
Both the Lakeside and Oakwood contracts contained a
similarly worded provision.
At the time the Company agreed to these revised provi-
sions, it was not aware of Local 293's long history of ex-
cluding blacks from membership and referrals. (In fact,
sec. 8 of the seniority provisions state that the selection of
employees for jobs shall be on a nondiscriminatory basis
and not affected in any way by race.)
b. Discriminatory application
5. Company knowledge of discriminatory referrals
a. Contractual provisions
The Company's August 1970-August 1973 contracts
with Local 293, covering the Lakeside and Oakwood theat-
ers, provided in paragraph 19, "That the Mangement here-
by agrees to abide by the seniority rules of this Union." In
November 1970, Local 293 revised the seniority provisions
in its bylaws, which previously had based seniority on
membership in the local. (The bylaws were revised as a
result of the October 1970 complaint against the Company
and Local 293 in Cases 15-CA-3899 and 15-CB-1115,
which were settled in November 1970 on the basis of the
Company and Local 293 agreeing to be jointly and sever-
ally liable for the payment of $1,000 in backpay to Harold
Ballam , a Local 293 member who had been terminated
under the seniority provisions based on union member-
ship.) In December 1970, the Company and Local 293
agreed to an addendum to their contracts, stating that
"paragraph 19 . .. relating to the seniority rules of the
Union is changed to the extent that the seniority rules of
the Union ... have been revised to provide that any pref-
erence in hiring, layoffs, reinstatement and other terms of
employment shall be based on objective consideration not
related to union membership. Henceforth, the seniority of
all qualified operators will be based on objective standards
such as length of credited service in the industry and on the
job, work for signatory contractors and residents of the
Greater New Orleans area." (Emphasis supplied.) Section
1, article 11, of the Local 293 revised bylaws provides that
seniority "shall commence on the date of employment in
the industry and be equal to his continuous length of cred-
ited service in the industry." (Emphasis supplied.) Section 1
then defines "credited" service as limited to "work for an
employer signatory or abiding by an agreement with Local
293. " (Emphasis supplied.) The following section 2 of the
seniority provisions, however, subordinates this "industry"
seniority (so limited) to company seniority, when employ-
ing projectionists to work in any existing theater covered
Upon receipt of Local 293A's September 13 letter and
upon contacting the International about the existence and
status of the segregated locals, the Company was placed on
notice that the contractual and bylaws seniority provisons
were illegal in their application. (The Company relied on
Local 293 for referral of all projectionists. Section 9 of the
bylaws seniority provisions, incorporated by reference in
the Lakeside and Oakwood contracts, provides that Local
293 "shall be notified of all vacancies and new positions
and all eligible employees will be notified. Such vacancies
and new positions shall be filled by a system of bids, and
the Employer shall select the most senior applicant to fill
the job.")
General Manager Spiess obtained further knowledge of
the discriminatory referrals when he contacted Local 293
Business Agent Autin for projectionists, after " I was in-
formed with whom I was supposed to do business ." Spiess
recalled that it was in this conversation when he asked
Autin about the origin of Local 293A, and Autin stated
that Local 293A had been there for many years and "they
had handled those theaters which were designated black."
Spiess asked, "Well, what has happened to the other houses
that have opened up since?" Autin answered that the ques-
tion had arisen only once, at the Cine Royale, about which
Spiess testified there had already been testimony given ear-
lier in the trial. (Other witnesses had testified that through
the years, Local 293 had staffed the projection booths in
theaters with white audiences, and in theaters with
"mixed" audiences: i.e., with whites downstairs and the
blacks in the balcony. When segregated seating ended, and
blacks began sitting downstairs as well, resulting in a pre-
dominently black audience, Local 293 had turned the
theater over to Local 293A to staff the projection booth.
However, "So that in this manner I did receive the infor-
mation as to what had been the history of the black local in
New Orleans." (This conversation, which Spiess testified
was the only one he had with Autin, must have been before
the February 23 night meeting of the Local 293 member-
ship, when the referral of the former company employees
was approved, because Autin reported at the meeting
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about his conversation with Spiess concerning proposed
terms of a Gentilly Woods contract.)
Thus in 1970 , when it was not aware of the existence of
the black local or the exclusion of blacks from referrals by
the white local, the Company signed contracts with Local
293, the white local, agreeing to recognize "credited" ser-
vice in the industry , and to grant preference to former em-
ployees in "hiring persons to perform services covered by
the terms of this Agreement" (at Lakeside and at Oak-
wood). It was not until September 1972 that the Company
learned that there were segregated locals, and that the con-
tractual provision for recognizing "credited" service meant
credited white service , and giving preference in employ-
ment to former employees , when hiring employees at its
Lakeside and Oakwood theaters , meant continued discrim-
ination against blacks. The Company 's contracts with Lo-
cal 293 , and the seniority provisions in Local 293 's revised
bylaws ( incorporated by reference in the contracts ), clearly
ruled out any seniority earned by Local 293A's black mem-
bers while working for employers not "abiding by an
agreement with Local 293," and they clearly gave prefer-
ence in hiring at the Lakeside and Oakwood theaters to
projectionists previously employed by the Company when
there could be no black referrals.
Accordingly , the Company knew from the information
which it received from IATSE and from both Locals 293
and 293A that the revised contractual seniority provisions
were discriminatory as applied to qualified black pro-
jectionists , who had been segregated in a black local and
who were permitted to work only in black theaters.
6. Contention of the parties
The General Counsel contends that the Company, by
condoning Local 293 's discriminatory referral policy and
by refusing to hire any applicants other than members of
Local 293 , violated Section 8(a)(3) and ( 1) of the Act.
The Company contends that it acted reasonably in re-
questing and following the advice of the International as to
which local had jurisdiction , and that it "adopted the only
policy available to it under the circumstances and one that
is not violative of the Act." (I again find lacking in merit,
and reject, the various grounds asserted at the trial, and
reurged in the Company 's brief, for staying this proceeding
or dismissing the complaint.)
7. Concluding findings
This is clearly not a case in which the employer discrimi-
nated against black applicants because of their race. Cf.
Jubilee Manufacturing Co., 202 NLRB 272 (1973). The
Company was an equal opportunity employer which, fol-
lowing considerable pressure from the black community,
hired a majority of blacks in staffing its new theaters locat-
ed near black residential areas. Although it transferred in a
white manager (because of the importance of having a
manager who was trained in its policies and procedures), it
hired a black assistant manager and a black cashier. The
Company obviously wanted to avoid antagonizing the
black community-and to avoid a black boycott, which
later developed . Before deciding whom to hire as pro-
jectionists , the Company gave the NAACP written assur-
ance of equal opportunity for employment to "all who qua-
lify," which would include the qualified black projection-
ists whom Local 293A (the black local) was urging the
Company to hire . When the NAACP (to whom the Local
293A members complained) and a black State Legislator
continued to insist on the hiring of one or more black pro-
jectionists, the only reason the company representative
gave for not doing so was that "we were supplied pro-
jectionists by the International . . . IATSE ." Then a day
before the March 29 opening , the Company met with Local
293A and stated that it "certainly had no objection whatso-
ever to hiring any black person ." Under these circum-
stances, I infer that because of its long established policy of
equal opportunity and because of considerations of good
business , the Company desired to hire at least one black
projectionist.
I find that it is also clear that when the Company learned
that there were segregated projectionist locals in New Orle-
ans, and that Local 293 (the white local with whom it had
been dealing) was discriminating against blacks in the re-
ferral of projectionists , the Company did not consider itself
contractually or legally bound to deal solely with Local 293
or to give preference in hiring to former employees. The
Company left it to the discretion of the International (with
whom it dealt nationwide) to decide whether the white or
the black local hadjurisdiction to refer projectionists to the
new theaters.
Although the International's advice to deal with Local
293 was lawful (as discussed later), this advice did not ex-
cuse the Company from its legal objection not to discrimi-
nate against any applicant because of nonmembership in
Local 293 . The Company was then aware that the seniority
provisions in its contracts with Local 293 were being dis-
criminatorily applied against experienced , qualified black
projectionists-preventing the Company from hiring at
least one Local 293A member , whom I find it would other-
wise have hired . The Company was aware that Local 293
was denying black projectionists seniority for their service
in black theaters , and therefore denying them referrals to
white and mixed theaters on a nondiscriminatory basis. By
doing "business as usual" with Local 293, without requir-
ing that the white local further revise its seniority provi-
sions to give credit for service in black theaters as well as
white and mixed theaters , the Company became a party to
Local 293 's continued discriminatory referrals.
I therefore find that the Company denied employment to
a black projectionist , whom it would otherwise have em-
ployed , because of his nonmembership in Local 293, in
violation of Section 8(a)(3) and (1) of the Act . I also find
that by being a party to Local 293's continued discrimina-
tory application of seniority provisions in the collective-
bargaining agreements and the local 's bylaws, the Compa-
ny violated Section 8(a)(1) of the Act
C. Recognition of Local 293
Since 1967 , the Company had recognized and bargained
with Local 293 as the collective -bargaining representative
of the projectionists at the Lakeside and Oakwood theaters.
In 1973 , when the white and black locals (Locals 293 and
293A, which had jurisdiction in the same geographical
GENERAL CINEMA CORPORATION 1083
area) both sought employment for their members, the
Company was advised by the International to continue
dealing with Local 293. The Company followed this advice,
but in doing so (as found above) violated the Act by failing
to hire a black projectionist because of his nonmembership
in Local 293, and by doing "business as usual" with Local
293 and failing to require it to further amend the seniority
provisions in its bylaws (incorporated by reference in the
collective-bargaining agreements), in order to eliminate
discriminatory referrals.
The General Counsel contends, and the Company and
Local 293 deny, that the Company by recognizing and ob-
taining referrals from Local 293, unlawfully assisted Local
293 in becoming a majority union at the new Gentilly
Woods theaters. I disagree.
Although the projectionists at the new theaters were not
technically an accretion to a unit of projectionists at the
Lakeside and Oakwood theaters, because of the separate
contracts negotiated to cover the projectionists in each of
those twin theaters, the situation was much the same as it
would have been if the Company and Local 293 had nego-
tiated a master agreement to cover all its New Orleans
theaters, and had negotiated separate, individual agree-
ments to provide for specific operational hours, number of
projectionists, etc., at the different theaters. The Lakeside
and Oakwood contracts were on the standard IATSE con-
tract forms, with most of the added provisions identical.
The Company places joint ads, under the Company's
name, in the newspapers for the Cinema I and II theaters
in Lakeside, Oakwood, and Gentilly Woods, which show
the same films wherever possible. A common manual is
provided all three theater managers for training personnel,
and there are companywide rules for theater design and
layout and for concession stands. The projection booths
are equipped with similar equipment, specially designed for
the Company. The Company provides standard uniforms
for all employees, and centrally purchased merchandise is
interchangeable among the theaters. The accounting and
personnel records are kept in the Company's Boston office,
and payroll checks are prepared there. General Manager
Spiess personally negotiates all the labor contracts in New
Orleans, and supervises the hiring of all managerial person-
nel. The projectionists and other employees have the same
skills, functions, and working conditions in all the theaters,
and the managers, assistant managers, cashiers, and other
employees are interchanged when needed. The theaters are
located within a few miles of each other, in different direc-
tions from downtown. When the Gentilly Woods twin
theaters were opened, as customary when a new theater is
opened in a city, the Company and the contracting local
agreed to the contractual terms at an existing theater, and
confirmed the agreement by letter.
Local 293A, the segregated black local, represented none
of the Company's employees. Its only claim for recognition
was its black employment demands, based on the racial
pattern in the surrounding residential areas.
I note that the International was following the authoriza-
tion in its 1972 Constitution when deciding that Local 293
had jurisdiction over the Gentilly Woods projectionists.
Article 19, section 22, of the constitution provides that "if
there shall be a disagreement between local unions re-
specting their respective jurisdictions . . . such . . . dis-
putes shall be referred by the local unions to the Interna-
tional President for his decision and his decision shall be
binding upon the local unions involved."
I find that Local 293 was in the position of an incumbent
union, and that no real question concerning representation
was raised by Local 293A. I therefore find that the
Company's adherence to the jurisdictional decision of the
International did not constitute illegal support of Local
293. Accordingly, I reject the allegation of an 8(a)(2) viola-
tion.
D. Proposed Merger
Before deciding upon a necessary remedy, I take into
consideration the evidence concerning attempts to merge
the segregated locals, as proposed by the International.
In its brief, Local 293 contends that "the failure of the
two locals to merge is attributed to Local 293A which has
resisted all merger efforts by Local 293 and the Interna-
tional Union dating back to 1969." The evidence, however,
indicates considerable opposition by the Local 293 mem-
bership to referrals being made solely on the basis of "in-
dustry" seniority (including service in both white and black
theaters), and to sharing the available jobs with the black
projectionists.
By October 17, Local 293 learned about Local 293A's
attempt to place black projectionists at the new Gentilly
Woods theaters. On that date, Local 293 Secretary Buras
mailed to the membership a warning letter, reading:
A situation has just developed, that is of serious con-
cern to Local 293, and some kind of action has to be
taken as soon as possible, to try to offset this situation.
A SPECIAL MEETING is being called for Friday
October 22 at 11:50 P.M. . . . to take up any and all
matters concerning this situation, which may eventu-
ally cause Local 293 serious problems. So make every
effort to be present, as this concerns all of us. [Empha-
sis supplied.]
Also on October 17, Buras wrote Local 293A, stating that
IATSE Assistant President Diehl had recommended in a
recent telephone conversation that Locals 293 and 293A
merge , and requesting that Local 293A advise if it concurs
so that a meeting could be arranged. (Local 293A Business
Agent Frederick Dobard credibly testified that "every time
we make an attempt to get a job, they come up with a
meeting .") The Local 293 membership met on October 22
and discussed integration of the locals, "and who was
going to get the jobs." The merger meeting was held on
October 30. Apart from other areas of disagreement, no
merger was possible after it was revealed to Local 293A
that company seniority would prevail over industry senior-
ity. Referrals on this basis-even if "credited" service in
the industry included service in black theaters-would
place the eight black members of Local 293A, in effect, at
the bottom of the seniority list when referrals were made to
white theaters, where the white but none of the black pro-
jectionists had worked. (I discredit Local 293 Business
Agent Autin's testimony that he did not know until the
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 30 meeting that Local 293A was seeking work at
the new theaters-after first testifying , "I don 't think I was
really aware" of it until Local 293A's February 26 charge
herein was filed against the Company-and also his denial
that he recalled hearing any opposition from Local 293
members about sharing Local 293's work with black pro-
jectionists . He impressed me as being less than candid.)
The reluctance of Local 293 in sharing the work with the
black projectionists is also shown by the way the referrals
to the new theaters were handled, and by the manner in
which Local 293 Business Agent Autin persuaded the
membership to bypass the bidding procedure.
On February 22, when the Company suddenly asked Lo-
cal 293 for referrals (following the International's advice
that the Company deal with Local 293), the local for the
first time bypassed the bidding procedure required in the
seniority provisions in its bylaws. (As indicated above, sec.
9 of art. I I provides that all eligible employees will be noti-
fied of new positions, that the new positions shall be filled
by a system of bids, and that the employer shall select the
most senior applicant to fill the job .) In letters mailed to
members on February 22, Secretary Buras notified them of
a special meeting to be held the following night, February
23, at 11:59 p.m., concerning the Gentilly Woods Cinema.
(Contrary to Buras' testimony, it is clear that the required
5-day notice was not given for this special meeting .) At the
meeting, which was attended by about 18 of the local's 86
members, Business Agent Autin succeeded in getting unan-
imous approval for the selection-without bids-of himself
and member Stewart (both former employees of the Com-
pany) as the regular projectionists at the new theaters, by
falsely reporting to the members (as member Joseph Schla-
ter credibly testified) that
Mr. Spiess, Employer's Vice President, said on the ad-
vice of his attorney the only way we could get that
house and keep out the niggers was for Stewart Hunter
and me to go in. [Emphasis supplied.]
(I credit Spiess' denial that he ever made such a statement.)
Schlater was a senior member of the local, and had
greater industry seniority. At the time of this meeting, there
was nothing in the Lakeside or Oakwood contracts which
required the hiring of former employees at future theaters,
and the local had only a proposal from the Company for a
contract at Gentilly Woods. Schlater wanted one of the
new jobs for himself and, as elicited by the company coun-
sel on cross-examination, believed at the time that Autin
made the false report on the racial implications in order to
avoid placing the jobs up for bids and to overcome
Schlater's greater seniority. (Schlater impressed me as
being an honest witness, and more trustworthy than Autin
and other members who denied that Autin made such a
report.)
After this meeting, and after charges were filed herein
and with EEOC, Local 293 sent a letter (bearing no signa-
ture) to Local 293A members. The letter stated that Local
293 "has an integrated membership" (referring to the single
black projectionist-not a Local 293A member-whom
Local 293 had accepted as a member in December). The
letter stated that Local 293's
membership rolls are open to all operators , both black
and white. Therefore we are offering you immediate
membership in Local 293. Your present positions will
not be affected by your acceptance of membership in
Local 293, and you will be entitled to retain all your
seniority rights and privileges. No additional initiation
fees will be required, and all work will be provided on
a nondiscriminatory basis. [Emphasis supplied.]
The letter talked in terms of retaining "all your seniority
rights and privileges," clearly referring to seniority in the
black theaters, and made no mention of the outstanding
demand that company seniority would prevail over indus-
try seniority. In effect, Local 293 was offering to accept the
Local 293A blacks as members, but at the bottom of the
seniority list (because of company seniority), and without
any assurance of full industry seniority.
There was a later attempt in June at reaching a merger,
but by this time, Local 293A had filed an action in the
federal district court, seeking damages for past discrimina-
tion. At no time before the trial herein, has Local 293 of-
fered merger terms under which referrals would be made
solely on the basis of industry senionty-with credit for
service in black as well as white theaters for referrals to
both black and white theaters, and without reference to
company seniority.
I note that whereas Local 293 followed the policy before
December of referring black projectionists to Local 293A,
there was never an occasion for Local 293A to establish a
policy of excluding white members. The Local 293A wage
scale was lower, and until 1973, no white projectionist had
ever applied for membership because, in Local 293A Presi-
dent William Blair's words, "we never had anything to of-
fer." (In 1973, when two white projectionists applied, Local
293A approved both their applications. The International
approved the membership of the nonunion white pro-
jectionist, but did not approve the application of the other
white applicant, who was a senior Local 293 member who
said he applied for Local 293A membership because he
was angry at not being able to bid on the new jobs at
Gentilly Woods.)
The official policy of both Local 293 and the Interna-
tional is for a single , integrated local in New Orleans. In its
brief, Local 293 states, "The fact that there are two local
unions . . . one predominately white and the other black is
admittedly inconsistent with the intent of the Civil Rights
Act of 1964." On May 21, IATSE Assistant President
Diehl wrote Local 293A, stating that "The Civil Rights Act
of 1964 prohibits segregated locals and this Office does not
wish to continue such. . . .We are under pressure to dis-
continue such locals and we again request the locals meet
and reach a settlement." This letter was written in response
to a long letter written by Local 293A on April 26, com-
plaining about unfair treatment, particularly by Local 293
and a representative of the International. (The letter assert-
ed, among other things, that Local 293A had been refused
every request forjobs at new theaters since 1964; that Lo-
cal 293 had refused to turn over even some of the black
theaters; that "Local 293 in a desperate effort to cast off
their lily-white image tried to man the [99% black] Famous
Theater with a poor untrained and unqualified Negro
GENERAL CINEMA CORPORATION
(while the brother Local 293A has a qualified man unem-
ployed) and the poor soul could not get the show started
and was run off the premises by the owner"; that in order
not to turn over the downtown theaters, which "are rapidly
turning to black patronage," Local 293 "has signed unprec-
edented five year contracts with no provisions for step rais-
es . . . to prevent Local 293A from bidding on these jobs";
that employment by Local 293A members has dropped
from 16 to 8 jobs since 1964; that "let us the members of
Local 293A make it clear that we have been stripped of our
jobs, our dignity and our patiences and they have left us
with nothing to lose, but four broken down theaters, and
we intend, if we have to, to fight this injustice to the highest
court of this land regardless of the consequences.") Local
293A, which did not file a brief, proposed in that April 26
letter to the International that the jurisdiction of the two
locals be "based on a geographical area rather than race
and a permanent committee made up with equal member-
ship from each local to insure good communication be-
tween the two locals."
After weighing this background, I note that in his brief,
the General Counsel contends that an order should issue
requiring the Company to withdraw and withhold recogni-
tion from Local 293 at the Gentilly Woods theaters, and to
"offer employment, without regard to race or union affilia-
tion, as determined from lists of applicants to be solicited
from Locals 293 and 293A," as well as "award backpay for
any Local 293A applicant who would have been eligible
for, and willing to, accept employment at the new theater
when hiring began."
Having found that the Company's recognition of Local
293 at the new theaters was legal, I find it inappropriate to
order the Company to withhold recognition. I also find it
inappropriate to order the Company to offer employment
to applicants from lists to be solicited from the two locals,
for two reasons: first, this would tend to discourage a
merger of the segregated locals, and second, such a hiring
order could conflict with a possible forthcoming ruling by
the federal district court regarding how any past unlawful
discrimination by one or more of the involved organiza-
tions should be remedied. (Here, unlike the court case, only
the Company is a respondent.)
I find instead that it would effectuate the policies of the
Act for the order herein to be limited to remedying the
specific violations found and to permit the Company to
continue recognizing and bargaining with Local 293-leav-
ing the matter of a possible merger to the organizations
involved or to be resolved through litigation in the proper
forum.
CONCLUSIONS OF LAW
1085
1. By denying employment to a black applicant on Feb-
ruary 25, 1973, because of his nonmembership in Local
293, the Respondents engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2. By being a party to Local 293's continued discrimina-
tory application of the contractual seniority provisions-
through giving preference in referrals to Local 293 mem-
bers over black nonmembers-the Respondents unlawfully
restrained and coerced employees in violation of Section
8(a)(1) of the Act.
3. The Respondents did not give unlawful support to
Local 293 in violation of Section 8(a)(2) of the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondents to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
As found, the Respondents desired to hire a black pro-
jectionist, but refused to do so because of his nonmember-
ship in Local 293, the white local. It must be assumed that
in the absence of such discrimination, the Respondents
would have hired one of the eight projectionists on whose
behalf Local 293A and the NAACP had applied for the
new jobs. (Two of these eight were unemployed and anoth-
er two were working part-time.) I find it necessary to order
the Respondents to employ one of these eight black appli-
cants (his identity to be determined by agreement or at the
compliance stage of this proceeding), with backpay. (If the
person selected held a projectionist job at the time of the
discrimination, and his job would have been filled by an
unemployed or part-time projectionist, both he and the
person who would have replaced him shall be given back-
pay for any loss in earnings resulting from the discrimina-
tion.) The backpay shall be computed on a quarterly basis
plus interest at 6 percent per annum as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), from February
25, 1973, until the date employment is offered.
[Recommended Order omitted from publication.]