General Cinema Corp.

National Labor Relations Board - Board Decisions

Apr 28, 1977

229 N.L.R.B. 329 (N.L.R.B. 1977)

GENERAL CINEMA CORP.
General Cinema Corporation and its wholly owned
subsidiary, Gentilly Woods Cinema, Inc. and
International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the
United States and Canada, Local Union 239A 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
April 28, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On February 3, 1977, following a partial remand of
this case from the United States Court of Appeals for
the Fifth Circuit, Administrative Law Judge Marion
C. Ladwig issued the attached Supplemental Deci-
sion in this proceeding. Thereafter, the Respondent
and the Party to the Agreement each filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommendations.
Accordingly, we shall modify the Board's Decision
and Order of November 20, 1974,1 by specifying that
Frederick Dobard is entitled to backpay.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the recommendations of the
Administrative Law Judge and hereby orders that
the Respondent, General Cinema Corporation and
its wholly owned subsidiary, Gentilly Woods Cine-
ma, Inc., New Orleans, Louisiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Board's Decision and Order of November 20,
1974, reported at 214 NLRB 1074, as modified
below:
1. Substitute the following for paragraph 2(b):
"(b) Make Frederick Dobard whole for any loss of
earnings he may have suffered by reason of Respon-
229 NLRB No. 53
dent's discrimination against him in the manner set
forth in the 'Remedy' section of this Decision."
2. Substitute the attached notice for that attached
to the original Decision and Order.
1 214NLRB 1074.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize International Alliance
of Theatrical Employees and Moving Picture
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 bargaining,
unless and until it has been selected by our
employees in an election conducted by the
National 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 modifications,
extension, renewal, or supplement to said agree-
ment, but, WE WILL NOT prejudice the assertion by
employees 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 nonmembers are
discriminated against by giving preference in
referrals to members, except as authorized by
Section 8(a)(3) of the National Labor 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 Frederick Dobard whole for
any loss of earnings he may have suffered by our
discrimination against him.
GENERAL CINEMA
CORPORATION AND ITS
WHOLLY OWNED
SUBSIDIARY, GENTILLY
WOODS CINEMA, INC.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: On
November 20, 1974, the Board issued its Decision and
Order (214 NLRB 1074 (1974)), finding that the Company,
the Respondent, violated Section 8(a)(1), (2), and (3) of the
Act by (a) recognizing Local 293 as the bargaining
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of projectionists at its new Gentilly Woods
theater before any projectionists were hired, (b) signing a
contract (containing a union-security clause) with Local
293 at the new theater, which was not an accretion to the
Company's Oakwood and Lakeside theaters, and (c)
acquiescing in the discriminatory practice of Local 293 (the
white projectionist local) "in the operation of its hiring hall
and seniority provisions" of "preferring its own members
to those of Local 293A [the black local] on the basis of
wholesale and notorious racial discrimination." The Board
found "to be without merit" both the Company's exception
to the finding in my February 25, 1974, Decision (214
NLRB at 1082) "that it desired to hire at least one black
projectionist" at its new theater, and Local 293's conten-
tion that my recommendation (214 NLRB at 1085) was
erroneous that the Company be required to "hire one black
projectionist" at the new theater. Under "Remedy," the
Board stated, "We shall also order the Respondent to make
whole the lost wages of any person illegally denied
employment because of its discrimination," as determined
at "the compliance stage of this proceeding."
On January 22, 1976, the Court of Appeals for the Fifth
Circuit, 526 F.2d 427, 428-429, enforced the Board's Order
"in all respects save the provision as to backpay," and
remanded the case to the Board for further proceedings to
determine: (I) whether any particular person or persons
claims or is entitled to backpay, and (2) if so, whether
Respondent is absolved by its obligation to Local 293 to
award the jobs to those projectionists who had been laid off
at either the Lakeside or Oakwood theaters.
On June 18, 1976, the Board issued an Order Remanding
to the Regional Director, "for further proceedings pursuant
to the Board's compliance procedures and in accordance
with the Court's judgment." The Regional Director issued
a notice of hearing on July 12, 1976, and the supplemental
hearing was held in New Orleans, Louisiana, on October
12, 1976.
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,
Local 293, and Local 293A, I make the following:
FINDINGS AND CONCLUSIONS
A. Entitlement to Backpay
On February 22,' the date the Company prematurely
recognized Local 293 (the white local) as representative of
future projectionists at Cinema I and II in the Gentilly
Woods shopping center (near a black residential area),
Local 293A (the black local) sent the Company a telegram,
stating that visual observation indicated that construction
of the new theater is near completion, that it is "impera-
tive" that we meet with your representative regarding
staffing the theater "with necessary projectionists," and
stating, "It is important that our people be aboard before
installation of any of the projection equipment." (Previous-
ly, on September 13 and October 25, Local 293A had
submitted written requests for this work.)
I All dates are from September 1972 through March 1973 unless
otherwise stated.
On the same day, February 22, General Manager Spiess
telephoned International Assistant President Walter Diehl
and asked, in effect, which local to deal with. Diehl
responded, "Deal with 293." Immediately, Spiess granted
unlawful recognition to the white local, telephoning
Business Agent Thadius Autin and advising him, "we are
ready to go with the installation." On February 25, after
getting approval from members at a special meeting, Autin
referred himself and Hunter Stewart (both members of
Local 293 and former company employees) to the new
jobs. (The membership also approved the assignment of the
swing man at the Company's Oakwood theater to the relief
job at the new theater.) Autin and Steward began working
full time at the Gentilly Woods theater when it opened on
March 29.
Meanwhile, General Manager Spiess agreed to meet with
Local 293A. In preparation for this meeting, Local 293A
members met and decided the priority (by industry
seniority) of the members who sought employment at the
new theater. Business Agent Frederick Dobard was at the
top of the "bid" list. Company and Local 293A representa-
tives met on March 28 (1 day before the opening). In the
meeting, as Dobard credibly testified at the 1973 hearing,
Local 293A Attorney Robert Delaney stated, "We are here
to make a bid on the theater in Gentilly." (At the remand
hearing 3 years later, Dobard did not recall just how this
reference to a bid was made.) Although Spiess did not
recall a specific reference to a bid, he testified at the
hearing that he began by telling Local 293A "that we felt
that we are not able to do any negotiations at this time but
we wanted to extend the courtesy of meeting with them for
the purpose of discussion and we were here for that
purpose only and explained our position." The union
leaders "were rather taken aback," and one of them asked
"by what authority was I not able to negotiate." Again they
were surprised when Spiess advised them that upon
"instructions by Mr. Walter Diehl ... I was to negotiate
with Local 293." Further, as Spiess testified, Company
Attorney Donald Meyer interrupted and stated, "We aren't
in a position to discuss any employment of their people."
Thus, because of its unlawful recognition of Local 293,
the Company would not discuss the Gentilly Woods
projectionist jobs with Local 293A, and clearly prevented
the black local from presenting its bid for the job. Business
Agent Dobard, who headed the list, was well qualified. At
age 44, he had 27 years' experience as a projectionist. He
was also a trained television repairman. He was able to
read electronic schematic diagrams and to change the
printed circuits used in the automated equipment. He made
repairs on the projection equipment where he worked,
buying parts himself at the electronic parts wholesaler. He
had been shown the automated equipment at the Oakwood
theater and had studied the diagram. He credibly testified
that "This type of equipment can be operated by just most
any operator who would get in there with an installation
procedure when its first installed or if he has any ability
... it could be taught to him very easily." It was
customary for the factory representative to train the
projectionists at the time of installation. (Autin testified
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GENERAL CINEMA CORP.
that he spent 2-1/2 or 3 weeks at the new theater, between
February 25 and March 29, as the equipment was being
installed. I also note Spiess' testimony that the Company
does not check the credentials of the projectionists referred
to it. Only I of 14 projectionists who had been trained in
New Orleans to operate the Company's automated equip-
ment had proven to be incompetent.)
As found (214 NLRB at 1075-76, 1079-82, 1085), the
Company desired to hire a black projectionist, but failed to
do so-acquiescing in the white local's unlawful referral
practice which was based on "wholesale and notorious
racial discrimination." The General Counsel contends that
"but for" the Company's discrimination, "Dobard was the
individual who would have been hired as a full-time
projectionist" at the new theater, and that he is therefore
entitled to backpay. (Although Dobard was employed, the
Company's wages were substantially higher than his wages
at a black theater.)
The Company argues that Dobard would not be entitled
to backpay. It first contends that Dobard failed to file an
application with the Company at the theater-ignoring the
evidence that the Company hired projectionists in New
Orleans solely through Local 293 (which referred only its
own members). The Company next argues that Dobard
"never filed a bid . . . for himself (or, for that matter, for
any other member of Local 293A)"-ignoring General
Manager Spiess' own testimony showing that he and the
company attorney clearly precluded any discussion of jobs
for the black projectionist and made any presentation of a
bid an exercise in futility.
I find that Local 293A Business Agent Dobard would
have been one of the two full-time projectionists hired at
the new Gentilly Woods theater on March 29 in the
absence of the Company's discrimination, and agree with
the General Counsel that Dobard claims, and is entitled to,
backpay.
(In its brief, Local 293A seeks backpay "in a sum equal
to the wage of a full-time projectionist at the Gentilly
Woods Cinema I & II," apparently on the theory that if the
Company had not discriminatorily refused to hire Dobard,
one of Local 293A's unemployed members would have
replaced Dobard at the black theater where he worked.
Thus, as a direct result of the Company's discrimination,
the unemployed member suffered a loss in the amount of
the black theater's wages, which would be deducted as
interim earnings from Dobard's wages at the new theater.
However, the General Counsel seeks only the loss of
earnings suffered by Dobard. Also, in the absence of any
issue at the remand hearing concerning when the Compa-
ny's backpay obligation terminates, I do not rule on
whether Dobard's backpay continues until the Company
offers him employment at the Gentilly Woods theater. I do
note that Autin, one of the two projectionists hired there in
1973 instead of Dobard, had previously transferred from
the Company's Oakwood theater to the Lakeside theater,
nearer his home.)
B. Effect of Prior Promise
In August 1970, when the Company installed automated
projection equipment at its Oakwood and Lakeside
theaters, the Company laid off four Local 293 members
(including Autin and Stewart). One of the laid-off employ-
ees, Harold Ballam, filed charges against the Company and
Local (in Cases 15-CA-3899 and 15-CB- 115), challeng-
ing the legality of the contractual and bylaw provisions,
applying union seniority. Following the issuance of a
consolidated complaint on October 9, Local 293 amended
its bylaws on November 16 to substitute "industry" for
"union" seniority, and a settlement agreement was signed
by the parties and approved by the Regional Director on
November 25, providing for Ballam's reinstatement with
backpay. On December 7, 1970, Local 293 signed an
addendum of agreement (which was later executed by the
Company on December 26), providing for the reinstate-
ment of Ballam and making contract changes to effectuate
the terms of the settlement.
About December 7, 1970, after agreeing to the terms of
Ballam's reinstatement, Business Agent Autin asked
General Manager Spiess if any arrangements could be
made for the other laid-off employees. As Spiess credibly
testified at the hearing, he promised Autin that "if the
opportunity occurred in future developments here in New
Orleans," or "if and when I had a new theater for [the laid-
off projectionists] to come in . . . that they would have
prior claim on the work." Thus, after the parties had signed
the November 25 settlement agreement and after the
Company and Local had agreed to the terms of Ballam's
reinstatement, the Company gratuitously promised, orally,
to give the three remaining laid-off employees a prior claim
to jobs when General Cinema opened a new theater. (Now,
in its brief, the Company asserts that the "agreement" to
rehire the laid-off employees "was the consideration for the
settlement of the Ballam litigation." This is clearly an
afterthought. The settlement agreement had been executed
nearly 2 weeks earlier, and the terms of Ballam's reinstate-
ment had already been agreed to. Autin testified at the
hearing that this "agreement" was reached "During the
meetings right after the Ballam case wasfinalized [emphasis
supplied ].")
Of course, absent special circumstances, Board law
would permit General Manager Spiess to follow through
with his 1970 oral promise or agreement (whether or not it
was gratuitous). However, as contended by the General
Counsel, Spiess did not rely on this "agreement" in staffing
the new theater. In neither of his conversations with
International Assistant President Diehl (in September and
on February 22), when asking for advice about what to do
upon being faced with the black local's requests for the
jobs, did Spiess mention his promise to rehire the laid-off
white projectionists. He did not mention this prior promise
when calling Local 293 Business Agent Autin for referrals
(without specifying whom) on February 22, when talking to
the NAACP on March 13, or when talking with Local
293A on March 28. Upon being asked at the remand
hearing if he could not hire a Local 293A referral on March
28 because of his "commitment" to Local 293, he frankly
answered, "I don't think it's a question of commitment
made with 293, cause I was doing business with whom I
had been told to deal with at that point." Thus, Spiess was
not relying on his prior promise to rehire laid-off employ-
ees when calling Local 293 for referrals and when rejecting
Local 293A's requests for the jobs. He relied solely on the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision by the International to deal with the white local. I
agree with the General Counsel that inasmuch as the
Company did not rely on the "agreement" in staffing the
Gentilly Woods theater in 1973, the Company "should not
be permitted to rely on it now to escape financial liability
for [its] denial of employment to black projectionists."
Moreover, in this case, there were special circumstances
which prevented the Company from lawfully denying
employment to a black projectionist whom it desired to
hire at the new theater, and honoring the prior commit-
ment to the white local.
As found by the Board (214 NLRB at 1075), because of
the separate corporate existence of Gentilly Woods,
because the Oakwood contract (the terms of which were
applied to the new theater) was specifically limited to the
Oakwood theater, and because the Gentilly Woods
projectionists alone would constitute an appropriate unit,
the new theater was not an accretion to the Oakwood and
Lakeside theaters. (At the hearing, General Manager Spiess
testified that "by order of counsel," the parent corporation,
General Cinema, could not sign a master agreement
covering all of the theaters because of the existence of
separate corporations.) Thus, neither the Oakwood nor
Lakeside contract could cover employment at the new
theater, and there was no master agreement with an after-
acquired clause.
When General Manager Spiess made the oral promise to
Local 293 Business Agent Autin in 1970, Spiess was not
aware of the existence of the black local, or of Local 293's
racial discrimination in the operation of its hiring hall.
Although Spiess knew of the Company's plans "eventual-
ly" to build a third theater in the New Orleans area, and
there had been some conversations about building it at
Gentilly Woods, he was not sure that the new theater
would be located there. And, of course, he did not
anticipate the great pressure which the black community
would apply for the hiring of blacks at the Gentilly Woods
theater, located near a black residential area.
Thus the circumstances materially changed between
December 1970, when General Manager Spiess made the
oral rehire promise, and February and March 1973, when a
new corporation had been formed to operate the new
theater, when competing unions were seeking employment
of their members in a new bargaining unit, when Spiess was
aware of the white local's racial discrimination in making
referrals, and when Spiess unlawfully gave premature
recognition to the white local (upon advice of the
International), precluding him from hiring the black
projectionist he desired to employ.
The Company argues that there was a "legally binding
agreement" to hire the employees laid off from the
Oakwood and Lakeside theaters in 1970. To the contrary,
the General Counsel contends that whatever weight is
given to the 1970 "agreement," the Company's honoring it
under the circumstances would be "part and parcel" of the
Company's rendering illegal assistance to Local 293 on the
mistaken belief that the new theater constituted an
accretion to the Oakwood and Lakeside units.
After weighing all the arguments of the parties, I find
that under the special circumstances of this case, it was
unlawful for General Manager Spiess to follow through
with his 1970 agreement to hire the laid-off Oakwood and
Lakeside employees in the new bargaining unit-where
they had no recall rights-to the exclusion of a black
employee which Spiess desired to hire as a full-time
projectionist at the new theater.
Concluding Findings
In accordance with the Board's remand Order and the
court's judgment, I make the following determinations:
(I) Local 293A Business Agent Frederick Dobard claims
and is entitled to backpay.
(2) The Respondent is not absolved from its liability for
this backpay by its 1970 promise (upon which it did not
rely) to award the jobs at the new theater (which is found to
be a separate bargaining unit) to those projectionists who
had been laid off at either the Lakeside or Oakwood
theaters.
332