Moving Picture Projectionists Local 150

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 288 (N.L.R.B. 1975)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moving Picture Projectionists Local 150 , Internation-
al Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United
States and Canada (Mann Theatres Corporation of
California) and Paul K . Barath . Case 31-CB-1482
July 18, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS KENNEDY
AND PENELLO
On February 28, 1975, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
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 as
modified herein and to adopt his recommended Or-
der.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Administrative Law Judge: This case
was heard before me at Los Angeles, California, on No-
vember 11, 1974, pursuant to a complaint and notice of
hearing issued on September 24, 1974, by the Regional Di-
rector of the National Labor Relations Board for Region
31.' The complaint alleges violations of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act, as amended,
hereinafter called the Act. The charge giving rise to the
instant complaint was filed on February 12. Counsel for
Respondent presented closing argument and briefs were
timely filed with me on December 9.
Upon the entire record in this case, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Mann Theatres Corporation of California, hereinaf-
ter called the Company or Mann, is engaged in the busi-
ness of operating motion picture theatres for the general
public.
In the course and conduct of its business operations,
Mann annually has a gross volume of business in excess of
$500,000 and annually purchases goods in excess of $5,000
directly from outside the State of California for use within
the State of California.
Upon these facts, which are not in dispute, I find that at
all times material herein, the Company has been an em-
ployer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
' We agree with the Administrative Law Judge's finding that
Respondent's decision that it was required to post the five-shift
projectionist's position at the Fox-Wilshire Theatre for bid, on the ground
that it was contractually mandated in light of Gillum 's retirement, was
based on a reasonable interpretation of the contract and of the legal obliga-
tion of Respondent as the collective-bargaining representative of unit em-
ployees ; and that, consequently , the record does not establish by a prepon-
derance of the evidence that Respondent violated its duty of fair
representation to Paul Barath by acting in an arbitrary and capricious man-
ner. The nature of Respondent 's ruling as to Barath 's entitlement to the
five-shift projectionist's position on June 18 , 1973, is too ambiguous for us
to conclude that the conflict in the positions taken by Respondent on June
18 and July and August 1973 sufficiently supports a finding contrary to the
above. In making the above findings , we do not rely on the Administrative
Law Judge's interpretation of the collective-bargaining agreement , his find-
ings as to the relative rights of the historical claimants to the job, or his
inference that the June 18 determination by Respondent regarding Barath
was merely an interim ruling.
Assistant Business Agent Farley's statement to employee Barath regard-
ing his claim to the five-shift position that, if the matter were not settled and
the infighting did not end , the "theater will go dark" is of such obviously
limited impact and significance that it does not warrant our finding a viola-
tion of the Act. Cf. Pepsi-Cola Bottling Co of Los Angeles, 211 NLRB 870
(1974) (interrogation).
It is conceded, and I find, that at all times material here-
in, Moving Picture Projectionists Local 150, International
Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and Canada,
hereinafter called the Respondent or the Union, has been a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this case are whether (1) Respon-
dent violated Section 8(b)(1)(A) of the Act by putting up
for bid the job allegedly held by Paul Barath at the Fox-
Wilshire Theatre of the Company; by attempting to award
i Unless otherwise specified , all dates herein refer to the calendar year
1974.
219 NLRB No. 68
MOVING PICTURE PROJECTIONISTS LOCAL 150
Barath's alleged job at said theatre to another employee
and member of the Respondent; by ordering Barath to
give up his claim to said job and by awarding said job to an
employee and union member, Milt Rubin, brother of
Respondent's president; and/or by threatening Barath that
Respondent would withdraw its members from the Fox-
Wilshire Theatre, forcing its closure, if Barath did not give
up his claim to his job; (2) Respondent's conduct and ac-
tions were arbitrary and unfair and violated Barath's right
to fair representation; and (3) by virtue of its conduct
aforesaid, Respondent, in violation of Section 8(b)(2) of
the Act, caused or attempted to cause the Company to
discriminate against Barath and other employees in viola-
tion of Section 8(a)(3) of the Act.
B. Pertinent Facts
1. Background facts
a. The operative collective -bargaining agreement
The Company assumed control of National General
Theatres in May 1973. National General had been a party
to at least two successive agreements with Respondent cov-
ering the period of July 1, 1967, to January 31, 1975. The
first such agreement was effective from July 1, 1967, to
July 1, 1970. At the expiration of that collective -bargaining
agreement in 1970, the terms of the agreement were ex-
tended pending negotiations . A new agreement between
National General and Respondent was ultimately executed
in August 1972, and wages were made retroactive to the
expiration of the prior agreement . The most recent agree-
ment was made effective from August 1, 1970, to January
31, 1975. The Company became bound by its terms when it
assumed control of National General. The agreement con-
tains , inter alia, provision for seniority groupings and for
the filling of vacancies in "open regular jobs " by a nondis-
criminatory bid process based solely on seniority.
b. The union hierarchy
At relevant times during the calendar year 1974, Frank
Rubin served as president of Respondent; Frank McBryde
served as business manager; Ralph Kemp was secretary-
treasurer of Respondent ; and George Farley was
Respondent 's assistant business agent . During the calendar
year 1974, the executive board of Respondent consisted of
these elected officials and Edward Blahy, Gerald Donnel-
ly, Harold Goldstein , Paul Husted , and Arthur Minjarez.
Moreover, during the calendar year 1973-a time rele-
vant to the events herein-the officers of Respondent
were: C.G. Hattenhauer, president; Douglas Graham, vice
president; Walter Phillips, secretary-treasurer; Frank Mc-
Bryde , business agent; and George Farley , assistant busi-
ness agent . During the same calendar year , Respondent's
executive board consisted of its elected officers and Ed-
ward Blahy, Harold Goldstein, Max Hollingsworth, Harry
Seeling , and Frank Waters, Jr.
289
c. Barath's background
Paul Barath has been a member of Respondent since
1960. Barath was initially employed by National General
in 1964, as a projectionist. He commenced working at Fox-
Wilshire on a five-shift basis on June 13, 1972.3 Barath
terminated his employment at Fox-Wilshire on February 2,
1974.
Prior to working at Fox-Wilshire, Barath had served as a
projectionist at the Fine Arts Theatre on a three-shift ba-
sis; and divided two shifts between the Bruin and Victory
Theatres. These latter jobs had been obtained through the
Union. As discussed more fully below, the Fox-Wilshire
job was obtained through direct transfer arising from dis-
cussions between Barath, on the one hand, and Harold
Wyatt, district manager of the Company and one Hertz,
the Company's vice president, on the other. This telephone
discussion had been followed by a written request from the
Company to the Union requesting Barath's assignment.
d. Barath's Fox-Wilshire assignment
The assignment of Paul Barath to the job as projectionist
at the Fox-Wilshire Theatre had its essential origin in a
telephone call Barath received from Harold Wyatt on May
26, 1972. As above found, in May 1972, Barath was work-
ing as a projectionist 3 days a week at the Fine Arts The-
atre, and 1 day per week at the Victory Drive-In Theatre,
and the Bruin Theatres, respectively. The Fox-Wilshire was
utilizing a five- and a four-shift arrangement for pro-
jectionists at the time in question. The five-shift job was
not manned, but Ralph Moelle was assigned to the four-
shift projectionist job.
Preparatory to contacting Barath at the Fox-Wilshire,
Wyatt spoke by telephone to George Evans, the Union's
then incumbent business agent. This conversation tran-
spired a few days prior to May 26. In speaking with Evans,
Wyatt declared that he desired to transfer Barath who was
serving as "relief" or "swing" projectionist at the Fine Arts
and the Bruin Theatres to a job as "regular" projectionist
at the Fox-Wilshire Theatre. Evans raised no objection.
In later speaking with Barath by telephone on May 26,
Wyatt informed Barath that he had a promotion for him
and that he desired Barath to "go to the Fox-Wilshire."
Wyatt informed Barath that he would be assigned to the
five-shift job at Fox-Wilshire and that he could work six
shifts if he desired to do so. Barath stated that he wished to
give the matter some consideration because of his under-
standing that there had been problems with personnel and
equipment at the Fox-Wilshire. Wyatt assured Barath that
he would take the steps necessary to put the equipment in
proper operating condition. Wyatt further asserted that he
could not allow Barath time to consider the matter for he
was sending a telegram to the Union that evening to "stop
a bid." Thereupon, Barath stated that he would accept the
Fox-Wilshire assignment if Wyatt would assure him that
he could return to the Fine Arts job if he desired to do so.
Wyatt gave Barath these assurances and the conversation
ended.3
2 Barath had worked intermittently at Fox-Wilshire in a relief capacity
during 1971
3 During the course of the conversation . Vice President Hertz of the Com-
Continued
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the following telegram was dispatched to Re-
spondent over Wyatt's signature:
We are requesting Mr. Paul Barath be assigned the
position of regular projectionist at the Fox-Wilshire
Theatre, Beverly Hills. This job was formerly held by
Robert Stowe. Mr. Barath has been employed for the
past seven years at our Fine Arts and Bruin Theatres
as regular relief projectionist. We know that Mr. Bar-
ath is not only qualified, but is very reliable which is
extremely important during this exclusive prestige en-
gagement at this theatre.
This telegram was received by Respondent on May 26 °
e. The background of the Barath assignment
Harold Wyatt, who served as secretary to the employer
negotiating committee during the 1972 negotiations, credi-
bly testified that clause 52 of the agreement gave the Com-
pany the right to transfer projectionists from one company
facility to the other. The provision relied on by Wyatt
reads as follows:
At any time that a theatre company wishes to transfer
one of its projectionists from one theatre to another
theatre operated by that company, the projectionist
shall receive at least one week's notice of such trans-
fer. If the projectionist concerned is not willing to ac-
cept the transfer, the matter shall be referred to the
Grievance Committee.
Robert Stowe, to whom reference was made in the May
26 telegram, above, had been employed on a five-shift ba-
sis at the Fox-Wilshire for a number of years. He was ter-
minated by Wyatt in July 1971, and the Union filed a
grievance challenging the termination. An arbitrator's deci-
sion issued on May 5, 1972. In the interim, between July
1971 and May 5, 1972, the Union supplied projectionists to
Fox-Wilshire. These projectionists included Ralph Moelle,
Milton Rubin, Frank Rubin, and Richard Smith. The lat-
ter three were terminated by Respondent in early 1972, and
these terminations-including that of Milton Rubin which
is singularly relevant in light of evidence subsequently con-
sidered-were subjected to the grievance procedure. The
Milton Rubin grievance was resolved by a determination
having the practical and mutually understood effect of re-
lieving the Company of the obligation to employ Rubin in
any capacity other than as a relief projectionist.
In the meantime, Ralph Moelle was employed at the
Fox-Wilshire in the regular five-shift projectionist job pre-
viously held by Stowe. Moelle continued in this capacity in
June 1972, following the grievance determination adverse
to Stowe. Wyatt was aware of no bid for the five-shift job,
and the determination was made in May 1972 to employ
Paul Barath. As found, pursuant to the telephone contact
pany was on the telephone extension and participated in the telephone con-
versation to the extent of supporting and reiterating Wyatt's request and
representations to Barath.
4 The foregoing is based on the credited testimony of Paul Barath and
Harold Wyatt, as well as documents in evidence.
initiated by Wyatt, Barath commenced work at the Fox-
Wilshire in the five-shift job on June 13, 1972. Following
Barath's employment at Fox-Wilshire, Moelle filled the
four-shift projectionist position.
f. Further historical tracings-the five-shift position
Prior to 1967 at the Fox-Wilshire Theatre there were em-
ployed three regular projectionists. Two worked five shifts
and one worked four shifts. Robert Stowe and Dale Gillum
were assigned to the five shift jobs, and Joe Keller held the
four-shift assignment. Stowe had top seniority, and Gillum
was second in seniority. Subsequently, in December 1969,
Gillum was elected to the position of assistant business
agent, and accordingly left his job at Fox-Wilshire. There-
upon his job was opened for bid with the description: tem-
porary regular job until A.B.A. [assistant business agent]
returns or terminates. Gillum served as assistant business
agent until December 1972, when he was defeated in the
election. Thereupon, he requested from the Company and
was granted a 6-month leave of absence. Gillum never re-
turned to his Fox-Wilshire job. In approximately May 1973
he advised the Company and Union of his decision to re-
tire. With respect to leaves of absence, the collective bar-
gaining agreement provides:
Projectionists elected or appointed to serve on be-
half of the union shall receive credit for such period of
union service including their seniority rating and, like-
wise, shall be entitled to return to the place of their
last employment upon the conclusion of their service
on behalf of the union.
Projectionists who have been unable to work be-
cause of sickness, leave of absence of six months or
less, signed by management, Military Service or vaca-
tions, shall be entitled to return to their last place of
employment.
In the meantime, as found, in 1971 Stowe was terminat-
ed and in November, Keller-the regular four-shift pro-
jectionist-was pensioned. His job was phased out. Wyatt
testified that, assuming Gillum had sought to return from
his union position to the five-shift job at Fox-Wilshire, he
would have been entitled to the assignment. This, accord-
ing to Wyatt, would have been true even in the face of the
phaseout of Keller's four-shift job, and in the then prevail-
ing circumstance wherein the projectionists' duties had re-
mained the same, save for the use of one instead of two
five-shift projectionists in the booth .5
2. The alleged unlawful conduct
a. Moelle claims the five-shift position
Paul Barath entered upon his five-shift job at the Fox-
Wilshire on June 13, 1972, and matters proceeded without
5 Harold Wyatt credibly testified to the above In interrogating Wyatt,
counsel for the General Counsel endeavored to show that Gillum 's leave-of-
absence request had not received the necessary written approval of the
Company Although Wyatt could not confirm the fact of written approval,
he testified convincingly that, in effect, the leave of absence received full
company acceptance and was viewed as having been fully bona fide.
MOVING PICTURE PROJECTIONISTS LOCAL 150 291
apparent incident until approximately May or June 1973
when Dale Gillum made known his intention to retire.6
In June 1973, upon learning of Gillum's decision to re-
sign his employment, George Farley, assistant business
agent of the Union, called Gillum by telephone for the
purpose of obtaining "exact data" with respect to Gillum's
former position at Fox-Wilshire. At the time he contacted
Gillum, Farley knew that there was a five-shift and a four-
shift projectionist job at Fox-Wilshire at that time. Farley
also knew that Barath was working 5 days and that Moelle
and Milton Rubin were working the 4-day shift.7 Farley
testified, however, that in invoking the bid procedure, he
concluded that the 5-day shift belonged to Gillum, and it
was his shift that was put up for bid.
George Farley further testified that he was not aware of
the telegram of May 26, 1972, which at all relevant times
had been on file with the Union, and by which the Compa-
ny requested Barath's transfer to the Fox-Wilshire, describ-
ing the job as the "regular projectionist position formerly
held by Robert Stowe."8
In any event, on or about June 18, 1973, Ralph Moelle
made known to Barath his intention to claim the 5 shiftjob
at Fox-Wilshire. Moelle based his claim on the theory that
when Stowe left the five-shift job at Fox-Wilshire, it was
rightfully claimable by Gillum, who, instead of claiming
the job, had taken an authorized leave of absence. At the
time in question, Moelle was working the four-shift job and
it was apparently Moelle's theory that he succeeded to
Gillum's five-shift job rights. Barath did not agree and
Moelle took the matter to the executive board. A meeting
was scheduled for June 18.
Prior to the convening of the June 18 meeting of the
executive board Moelle entered into an angry dialogue
with Barath and struck him. This was witnessed by Milton
and Frank Rubin, and several other individuals. Frank Ru-
bin sided with Moelle and threatened to "send [Barath] to
the hospital." Frank Rubin also chased Barath around the
room and unsuccessfully endeavored to strike him with a
chair. This was witnessed by Frank McBryde and George
Farley, a union business manager and assistant business
manager, respectively.
In due course, the executive board convened. With
C. G. Hattenhauer, president of the Union, presiding, Bar-
ath presented his case. Barath's presentation was brief and
received no rebuttal. Moelle's claim was rejected by Hat-
6 Barath testified that approximately 2 weeks after commencing his em-
ployment at Fox-Wilshire , he made an appearance at a meeting of the exec-
utive board of the Union and expressed a desire to return to the Fine Arts
job. He was told , in effect, that the incumbent could not be removed, except
by proper bid, and to do otherwise would constitute unlawful discrimina-
tion
7 Farley surmised that Moelle and Rubin were "giving up a day" to Bar-
ath and that there was a question being raised on that score . It is common
practice in the industry for a projectionist working 5 days to voluntarily
"give up" a day to a projectionist employed on fewer shifts.
8 Farley explained that he had not been officially in office in 1972 when
Barath first took the Fox-Wilshire job, but he conceded that the telegram
was on file in the office of the Union both at the time he made the call to
Gillum in June 1973, and later in July and again in October when the job in
question was put up for bid . Frank McBryde , Respondent 's business man-
ager , made a similar representation of lack of personal knowledge concern-
ing the telegram and made a similar concession of its existence in the union
files at all pertinent times.
tenhauer. There appears to have been no discussion by
members of the Board. Hattenhauer ruled, in effect, that
Barath was rightfully occupying the five-shift job and that
Moelle was serving in Gillum's stead in the four-shift,lob.
Subsequently, on July 31, the five-shift projectionist job
at Fox-Wilshire was placed up for bid. The job description
applied read merely, "5 days." With respect to bidding, the
collective-bargaining agreement provides:
Any projectionist who has been assigned to a regular
job and thereafter leaves such job by reason of sick-
ness, Military Service, leave-of-absence of 6 months or
less, signed by management in writing, vacations, or
the closing of the theatre shall return to such job with-
in 2 weeks after being available for work. If the above
is not complied with, the union shall notify such pro-
jectionists by mail, according to clause 4, that the job
or jobs are open for bids, according to clause 4.
After learning that the five-shift job had been placed up
for bid, Barath did nothing for approximately I week, be-
lieving the action of the Union to have been undertaken
through error. However, after the passage of a week, Bar-
ath went to the offices of the Union and spoke with George
Farley, assistant business agent. Barath informed Farley
that the Union had made a mistake in putting the Fox-
Wilshire job up for bid. Farley stated that the Union had
not acted through error but that it was "just a question of
time" before Barath would be losing the job. Farley added
that Barath would then work the swing shift and then
would lose that job also. Barath asked Farley why he was
losing his job and Farley stated that when Stowe left the
five-shift Fox-Wilshire job the position "automatically be-
longed" to Dale Gillum. Barath asked to see Frank Mc-_
Bryde, business agent for the Union. He asked Farley to
accompany him to McBryde's office. The three men con-
ferred together. In speaking to McBryde, Barath stated
that he had been legally transferred to the Fox-Wilshire job
and that the executive board had approved the transfer.
McBryde asserted that there was nothing he could do and
that the executive board was handling the matter. Mc-
Bryde added that there was a similar case pending before
the National Labor Relations Board on behalf of a mem-
ber who had been "bumped." McBryde advised that he
should take the matter to the executive board. McBryde
asked Barath why he did not bid for the job, and Barath
stated he would not do so because Moelle's seniority was
superior and he, Barath, would consequently have no
chance of winning the bid. Moreover, Barath asserted that
he would not bid for the job because it was his job. During
the course of the conversation, McBryde characterized the
action as a "bump."9
Some weeks later, during the month of August, Barath
appeared before the full executive board of the Union.
Hattenhauer was presiding. In support of his presentation,
Barath proffered a letter dated August 20, 1973, which he
9 Barath testified that for "bumping" purposes Gillum' s seniority became
preemptive but it achieved no per se priority for bidding purposes. This
explanation does not rule out the fact that as between Moelle and Barath,
Moelle would prevail against Barath in a bid for the five -shift job. Of
course, Moelle had no way of knowing, in advance , whether an individual
with greater seniority than he would bid for the job
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had written to the executive board. The letter was read
aloud to the board by its secretary. In substance, the letter
averred that after more than a year in his Fox-Wilshire
assignment as regular projectionist he was being "bumped"
and that the term was being employed as a technicality.
Barath asserted in his letter that he was a transfer, having
been sought out by management and placed in the position
at the request of the management. The letter made the con-
tention that at no time had the Union advised him that his
job at Fox-Wilshire was not a permanent one.
Additionally the letter contained the following pertinent
paragraphs:
George Farley tells me he called Dale [Gillum.]
"Dale, what shall I do with your job?" Dale states he
automatically had become the regular projectionist
and so the Local set up the bid.
Dale is retired. He does not claim the job for him-
self . . . only for someone else.
As late as June 18, 1973, at the time of my appear-
ance before this Executive Board, you established
Ralph Moelle was the swing-man.
During the course of the meeting, Hattenhauer asserted
that the job which Barath was filling properly belonged to
Gillum. In response, Barath showed the members of the
executive board the telegram of May 26, 1972, which the
Company had sent to the Union concerning the assign-
ment of Barath to the Fox-Wilshire position. Moreover,
Barath again pointed out that he had never been told that
the job which he was filling was not a permanent one. The
executive board adhered to Hattenhauer's pronouncement
that the job in question properly belonged to Gillum.
In the meantime, the bid for the five-shift job at the
Fox-Wilshire was won by one Billings. Wyatt, on behalf of
the Company, was notified of this by receipt in the mail of
an acceptance form naming Billings as the successful bid-
der. Wyatt notified the Union that he was rejecting Bill-
ings . Barath continued to man the five-shift projectionist
job at Fox-Wilshire. Moelle resigned in the aftermath and
Milton Rubin filled his four-shift position.
On October 30, 1973, the job again was placed up for bid
with the job description "5-days." Milton Rubin was the
successful bidder and was referred to the Fox-Wilshire job.
He was initially rejected by Wyatt but was permitted to
take the job where he remained for 2 or 3 months before
leaving the job voluntarily. 10
George Farley testified that in October Barath's senior-
ity position was N 5 and Milton Rubin held N 14. He
testified that on this basis Barath would have successfully
bid the Fox-Wilshire job.l t
Upon learning from Milton Rubin that he had success-
10 Harold Wyatt testified that Ralph Moelle was referred to the job as the
successful bidder and was rejected . Documentary evidence in the record
suggests that the successful bidder was, in fact , Milton Rubin . I therefore
conclude that Wyatt 's recollection with respect to Moelle was, in this re-
gard , inaccurate . Moreover , on the basis of the same documentary evidence,
I reject Barath's related testimony to the effect that Bob Schwartz initially
prevailed in the October 1973 bidding.
"Farley conceded , however, that there was no way by which Barath
would have known in advance that his bid would have prevailed against all
bidders
fully bid the five-shift job at Fox-Wilshire, Barath spoke
with George Farley. Farley informed Barath that Milton
Rubin had in fact won the bid and that Rubin wanted to
change the schedule of work. Barath asserted that he would
not change the schedule because the job was his and that
he would continue to hold down the five-shift assignment.
Farley responded that if the matter were not settled and
the in-fighting did not end the "theatre will go dark." Far-
ley further stated that only the National Labor Relations
Board could straighten the matter out for Barath. He said
that the Local was not going to do it.
Barath remained on the five-shift assignment at Fox-
Wilshire and during the months of November and Decem-
ber endeavored without success to meet with the executive
board to resolve the question of his entitlement to the five-
shift assignment."
Finally, in mid-January 1974, Barath was cited to appear
before the executive board. He did so, and the composition
of the executive board had changed by reason of the inter-
im elections which had transpired. Frank Rubin had be-
come president of the Union and the presiding officer of
the executive board.
The citation which had been served on Barath was for
the purpose of requiring him to surrender his shift to Mil-
ton Rubin. At the convened meeting of the board, Frank
Rubin served as the principal spokesman. Rubin asserted
that at a previous meeting of the board, the board had
decided that Milton Rubin was the successful bidder for
the five-shift Fox-Wilshire job. Barath asserted that man-
agement had rejected Milton Rubin and management had
sent letters to this effect.13 Thereupon, Frank Rubin stated,
"I'd like to see them turn my brother down."
Despite Barath' s assertion that the board was taking his
job away, the board, under the direction of Frank Rubin,
ordered Barath and Milton Rubin to fill out new shift
cards which would have had the effect of changing their
respective days off and awarding 5 days of work to Rubin
and four to Barath. Milton Rubin filled out his card, but
Barath refused to do so. The meeting ended on this note.
Barath credibly testified that the effect of the change in
shift assignments was to relegate him to a 4-day shift posi-
tion and render him vulnerable to being replaced through
the subsequent operation of the contractual bid processes.
Soon after the meeting of the executive board, Barath
decided to terminate his employment. He dispatched a let-
ter of resignation to the Company, dated January 18, 1974.
The letter read as follows:
Due to a "manufactured" technicality by Local # 150
I have been tricked out of my regular five-day job, of
nineteen months, as Projectionist, at the Fox-Wilshire
Theatre. It has forced me to bid for another five-day
job to keep my present income. " Bumping" is prohib-
ited. I consider this an outright "bump" . . . by the
12 The testimony of Paul Barath suggests that although he appeared twice
to meet with the full executive board he was unable to have a meeting with
the convened board and had only fragmentary, ad hoc discussions with
members thereof
13 Barath's reference clearly was to management's initial rejection of Ru-
bin following the October bid This rejection was withdrawn, as found. This
was done on a showing that the contract did not permit summary rejection
of the type involved in Rubin's case.
MOVING PICTURE PROJECTIONISTS LOCAL 150
Executive Board. They made their decision final at the
January 14th, 1974 meeting.
While unwilling, yet with no alternative, I do advise
my position at the Fox-Wilshire will terminate Satur-
day, February 2nd, 1974.
Barath successfully bid for a job opening at another the-
atre and terminated his employment at Fox-Wilshire on
February 2, 1974.14
Conclusions
I am unable to conclude from the foregoing that Re-
spondent acted in an unlawful or in an arbitrary and capri-
cious manner with respect to Paul Barath's job rights at the
Fox-Wilshire Theatre. Rather, I am convinced and find
that, Respondent acted in good faith in fulfilling its con-
tractual obligations to supply projectionists to signatory
employers in a nondiscriminatory manner ; and endeav-
ored to properly apply the contractually mandated bidding
and referral procedures, and to abide by its legal obligation
to represent all unit members fairly. Such acrimony and
disputation as transpired between Barath, on the one hand,
and elected officials of the Union, on the other, arose, for
the most part, merely from the emotion and exuberance
normally to be expected in a clash of wills arising from
disputed job claims which question and test the judgment
and decisions of those in authority.
It is apparent on the record that the five-shift position at
Fox-Wilshire placed up for bid in 1969 was a five-shift job
to which Gillum was entitled. During his 3 years of service
as an elected official of the Union, he had the contractually
guaranteed right to return to and claim the five-shift job
which he had vacated. In the interim , a phaseout tran-
spired at Fox-Wilshire, having the effect of eliminating one
of the five-shift projectionist jobs. As a result of the phase-
out, one of the five-shift jobs remained, and the Company
and Respondent are in agreement in claiming that Gillum's
contractual rights to the remaining five-shift job survived.
Not until he exercised his option to retire did Gillum's pri-
ority entitlement disappear.
In the meantime , during the pendency of the grievance
process arising from the termination of Stowe (one of two
prephaseout five-shift projectionists at Fox-Wilshire)
Ralph Moelle served as a regular projectionist, working in
Stowe's stead. When Stowe's grievance was decided unfa-
vorably to him and he left the Company, Moelle continued
to be employed, but the Company exercised its right to
obtain an additional projectionist of its choice. Barath was
hired and he was selected by the Company to fill the five-
shift position. Meantime, Gillum's reemployment rights re-
mained viable, with Moelle harboring, apparently, the be-
lief or feeling that one of Barath's five shifts was properly
his.
The potential problem came to the forefront when Gil-
lum decided to retire rather than to pursue his job rights.
As a consequence, the position which Barath occupied and
14 Barath also testified that he had become disenchanted with having to
train projectionists assigned to the Fox -Wilshire . He testified this arose as a
direct result of management 's permissiveness in permitting operators to
"trade-off" shifts.
293
which had never been filled by bid, became the object of
concern on the part of the Union's agent, George Farley,
vested with the responsibility for properly and in a timely
manner, implementing the bid procedures, as specified in
the collective-bargaining agreement. At the same time, this
occurrence gave rise to what had apparently been a fester-
ing dispute between Moelle and Barath. In carrying out his
responsibilities, it was natural that Farley would contact
Gillum for his version of his prior job rights, and it was
equally understandable that Moelle, for his part, would
press his claim. This was the state of things in June 1973.
The depth of feeling between Moelle and Barath may be
gauged by the events which transpired prior to the June 18
executive board meeting at which Barath hoped to have his
job claim resolved. Moelle exercised his aggressions against
Barath and he gained verbal support from Frank Rubin-
at that point in time a rank-and-file union member. Offi-
cials of the Union looked on but they did not become in-
volved in the melee.
Barath's claim to the five-shift position received at least
the gloss of official union sanction at the June 18 meeting
of the executive board. To be certain, the discussion that
took place was not an in-depth one. Barath's claim was
considered only briefly and was not fully aired by the exec-
utive board. There is reason enough on the record to infer,
as I do, that at this point in time, President Hattenhauer,
on behalf of the executive board, was not addressing him-
self to the fundamental issue of posting or bidding.
Hattenhauer's June 18 determination had, rather, the ap-
pearance of an interim resolution of the essentially narrow,
developing dispute between Barath and Moelle concerning
their personal, present entitlement, absent posting, to five
shifts, as opposed to four shifts. In light of the events of
July 31, it also seems reasonable to conclude that
Hattenhauer's ruling was not intended as the definitive
word on the matter, for Hattenhauer seems clearly to have
been a party to the July 31 posting. Moreover, he partici-
pated fully in the executive board determination that the
disputed job had been properly posted by reason of the
priority claim which Gillum had had -to it. There is no
reason to believe that Hattenhauer, who had been friendly
to Barath, had been improperly influenced to modify his
June 18 stand, or moved by vengeance during the ensuing
6 weeks. Rather, it seems clear, and I find, that
Hattenhauer's June 18 pronouncement was intended by
him to have a more narrow application than ascribed to it
by Barath and the General Counsel.-
Viewing the record in its full scope, the dilemma which
the Respondent faced was a very real one and not con-
trived. It was perfectly consistent for the Respondent not
to have raised the issue of the "permanency" of Barath's
tenure in the five-shift assignment, so long as Gillum was
in office or on leave, for, in essence, the 1969 posting had
declared the "temporary" nature of the vacancy which
served as the precursor for Barath's hire. When, in May
1972, Barath's services were requested by the Company,
there existed no present reason, for Respondent to lodge
objection. The job was not and could not then be manned
by Gillum. No objection was forthcoming. -
In sum, I find that Respondent's decision to post the
five-shift job on the ground that the posting was contractu-
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ally mandated in light of Gillum's retirement, was a rea-
sonable one. Stated otherwise, I find that it was a determi-
nation based on the reasonable interpretation of the con-
tract and of the legal obligations of Respondent as the
collective-bargaining representative of unit employees.
This interpretation was not arbitrary nor was it so substan-
tively deficient as to render it unfair or invidious, or to
taint either the July 31 or October 30 bid process itself, or
the fruits thereof.
However, the General Counsel characterizes the entire
bid procedure as merely an attempt, in derogation of the
collective-bargaining agreement to vitiate the valid transfer
of Barath accomplished pursuant to the collective-bargain-
ing agreement . In my view of the record, General Counsel
oversimplifies the matter. It is clear from the record that
Barath 's initial hire was accomplished in an unusual duali-
ty of circumstances having to do with the transitory, imper-
fectly defined status of both Gillum and Stowe. It is appar-
ent also that the transfer of Barath was preceded by
consultation between the Union and Wyatt on behalf of
the Company. It is further worthy of note that Wyatt, a
witness called by the General Counsel, testified that Gil-
lum had priority job rights and that the matter of his return
to the five-shift job would be subject to evaluation at the
appropriate time , based on all circumstances then prevail-
ing, including Gillum's wishes and plans. Clearly then,
Wyatt did not look upon the transfer of Barath-nor the
contractual transfer rights devolving to the Company-as
the indelible last word with respect to Barath 's entitlement.
In short, the General Counsel's theory of Barath's contract
rights and of the Union's obligation thereunder is not as
manifestly clear as the General Counsel argues that it is.
Indeed, I find that, when measured against both the record
and the reach and parameters of the collective-bargaining
agreement , the General Counsel's contract derogation ar-
gument must be found wanting.
Moreover, contrary to the General Counsel, there is no
showing of irregularity on the part of Respondent when the
Fox-Wilshire job was ultimately placed up for bid. Indulg-
ing the essential premise above articulated , and viewing the
record evidence relating to the actual posting and award of
the bids, I find that the bids were properly awarded and
the winners duly referred. 15 Such references as there are in
the record to an ambivalent labelling by the Union of its
actions with respect to Barath as "bumping ," on the one
hand, and contractual bidding, on the other, are too tenu-
ous and ill defined in the record to warrant a contrary
conclusion. Suffice to find, whatever dialogue transpired
between Barath and officials of the Union during the
course of, or separate from , convened meetings of the exec-
utive board, it is clear that the Union properly invoked the
contractual bid procedures, and it was the operation of
those procedures that served ultimately to force Barath's
resignation.
Once the bid procedures were operative, and the success-
ful bidders were referred, the Company properly exercised
its contractual rights in the selection process , by rejecting
the successful bidders referred to it. In the meantime Bar-
ath continued to work. In this context, the dispute between
Barath and Milton Rubin over entitlement emerged in its
ultimate form. Consistent with its earlier determination,
Respondent's executive board, in January, in effect, sus-
tained the propriety of the October bid procedure. The
General Counsel makes much of the fact that the winner of
the October bid was Milton Rubin whose referral was cer-
tified in January after his brother became Respondent's
president. As found above, no evidence of internal mani-
pulation by the Union of the bid process itself was ad-
duced, and I do not view the General Counsel's argument
as advancing that claim. No procedural irregularity, as
such, is charged. What is lost sight of in the General
Counsel's version of the evidence, is that the operative ratio-
nale and the foundational substantive underpinning of the
January action under newly elected President Frank Ru-
bin, was identical to that which supported the action of the
executive board in August, prior to the emergence of Frank
Rubin as president of the Union and a member of its exec-
utive board. Clearly, there is insufficient evidence to sup-
port the allegation of nepotism.
The General Counsel places great emphasis on the fact
that throughout the relevant series of events Respondent's
officers sought to influence Barath's decision through
threats and partisan dissuasion efforts. I view the record
somewhat differently. By the nature of the events, Respon-
dent was placed in the not entirely novel position of having
to choose fairly between members vigorously pressing con-
flicting claims for employment. Based on my personal ob-
servation of him , Barath was a man of strong will and
perseverance . I conclude he was untiring in his efforts to
retain what he sincerely believed to be his duly assigned
work schedule. In pursuing the matter , he created enmities
to which, the record reveals, Respondent's elected officers
reacted; but, at the same time, Barath also read into the
legitimate deliberations and persuasive attempts of the
Union, and its agents , an inaccurate and erroneous mean-
ing and dimension . The record reveals that one of these
agents-Farley, as distinct from rank-and-file members
Moelle and Frank Rubin-when pressed by Barath to ac-
cept his view of his job rights, made an utterance which, in
a technical sense , constituted a threat within the meaning
of Section 8(b)(1)(A). Thus , on its face , Farley's statement
that the "theatre will go dark" was an impermissible threat,
even though susceptible of being interpreted as nothing
more than heavily-handed rhetoric, easily understood as
such by Barath. 1 But, as I perceive them, the utterances of
union officials were calculated first , to persuade Barath as
to the finality of the executive board decision to place up
for bid the five-shift job, and, second, to reinforce the ne-
cessity that Barath accept the decision through a realistic
appraisal of the impact of his challenge upon his own and
other members' employment rights. In short , these were
statements calculated to convince Barath to accept the in-
evitable result of a valid internal decision of the Union and
not to tilt at windmills. They were not, however, indicative
16 In a similar category was Farley 's earlier reference that Barath's loss of
is Implicit in this finding is the further finding that no impropriety or employment at Fox-Wilshire was "just a question of time." This is not al-
irregularity attached to the selection of Milton Rubin or his subsequent leged as violative of Sec. 8(b)(I)(A) but rather was adduced to show alleged
referral . hostility toward Barath
MOVING PICTURE PROJECTIONISTS LOCAL 150 295
of a willingness or predisposition on the part of the Union
to rig the bidding procedures against Barath.
Finally, the General Counsel earnestly contends that Re-
spondent failed to affirmatively represent Barath's rights as
a unit member. In this regard, the General Counsel points
particularly to the fact that, in response to Barath's earnest
entreaties that the Union recognize the superiority of his
job claim, the Union nonetheless proceeded to place his
job up for bid and to counsel him merely to compete with
other bidders. The direct answer to this contention, howev-
er, is that to have assisted Barath in the manner he desired,
the Respondent would have transgressed against the rights
of other unit employees. Thus, the decision to place the job
in question up for bid having been a legally proper deci-
sion, the injury suffered by Barath became merely inciden-
tal and unavoidable, not actionable under the Act. Thus,
contrary to the General Counsel, and bearing in mind the
narrow scope of discretion which was available to Respon-
dent once the five-shift job at Fox-Wilshire was open to
bid, there is little substance in the record to support the
contention that Barath was deprived of fair representation
by the Union.
In sum, having found that Respondent engaged in no
conduct violative of the provisions of the Act, save by vir-
tue of a single threat uttered by Farley to Barath, and that
of an isolated and technical variety, I am convinced that
the issuance of a remedial order herein will not further the
purposes and objectives of the statute. Accordingly, I shall
recommend that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
2. The Company is, and at all times material herein has
been, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
3 By threatening Paul Barath that the Respondent
would cause the Fox-Wilshire theatre to go-dark if he per-
sisted in advancing his claim to the 5-shift projectionist
assignment at the Fox-Wilshire theatre, Respondent en-
gaged in conduct in violation of Section 8(b)(1)(A) of the
Act.
4. The utterance above referred to was isolated in nature
and when viewed in its entire context and setting must be
held to have been only technically violative of the provi-
sions of the Act. Accordingly, the public interest and ob-
jectives of the Act will not be served by issuing a remedial
order herein.
[Recommended Order dismissing complaint omitted
from publication.]