National Amusements, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1965

155 N.L.R.B. 1200 (N.L.R.B. 1965)

1200 DECISION TS OF NATIONAL LABOR RELATIONS BOARD
National Amusements, Inc. and Local 433, International Alliance
of Theatrical Stage Employees & Moving Picture Machine
Operators of the United States & Canada, AFL-CIO. Case No.
38-CA-33 (formerly 13-CA-6806). November 29, 1965
DECISION AND ORDER
On September 15, 1965,-Trial Examiner George J. Bott, issued his
Decision in the above-entitled proceeding, finding that. the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations be dismissed. There-
after, only the Respondent filed exceptions to the Trial Examiner's
Decision, together with a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case,2 and hereby adopts the Trial Examiner's findings, con-
chlsions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, National Amusements, Inc.,
its officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order, as so modified :
Delete. from the notice to be posted in the State of Iowa, the follow-
ing phrase- contained in the third paragraph of the Appendix attached
to the Trial Examiner's Decision :
except to the. extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a con-
1 The Respondent's request for oral argument is hereby denied, as the record , exceptions,
and brief adequately present the issues and positions of the parties.
2 In addition to the facts set forth in the Trial - Examiner's Decision regarding the busi-
ness of the Respondent , the record shows that during the past year Respondent derived
gross income in excess of $500,000 in the conduct of its interstate business operations.
155 NLRB No. 113.
NATIONAL AMUSEMENTS, INC. 1201
dition of employment as authorized in Section 8 (a) (3) of the
Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE -
Upon a charge of unfair labor practices filed on November 25, 1964, and amended
on January 11, 1965, against National Amusements. Inc., herein called Respondent or
Company, the General Counsel of the National Labor Relations Board issued a com-
plamt and notice of hearing dated March 30, 1965, alleging that Respondent had
violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended,
herein called the Act. Respondent's answer admitted certain allegations of the com-
plaint, but denied the commission of any unfair labor practices. A hearing was held
before Trial Examiner George J. Bott at Davenport, Iowa, on May 25 and 26, 1965,
at which all parties were represented. Subsequent to the hearing, General Counsel
and Respondent filed briefs which have been fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Maryland corporation engaged in the operation of motion picture
theaters in various States of the United States including Illinois and Iowa. Since
August 28; 1964, Respondent has owned and operated the Memri Drive-in Theatre at
Milan, Illinois; the Semri Drive-In Theatre at Silvis, Illinois; and the Oasis Drive-In
Theatre at Davenport, Iowa. These facilities are the only ones involved in this
proceeding.
During the year immediately prior to the issuance of the complaint, Respondent,
in the course and conduct of its interstate business operations, purchased and received
goods, foods, food products, and various supplies valued in excess of $50,000 which
were transported directly across State lines.
Respondent concedes, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that Local 433, International Alliance of Theatri-
cal Stage Employees & Moving Picture Machine Operators of the United -States &
Canada, AFL-CIO, herein called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The setting and the issues
Respondent agreed to purchase the Semri, Memri, and Oasis Theatres in early
August 1964, and began operating them immediately after it acquired title on
August 28, 1964. Prior to Respondent's acquisition, the Union represented the
projectionists, and had labor agreements covering them with the owner, Independent
Amusements, Inc., which expired shortly before the purchase. When Respondent
acquired the properties, it recognized the Union as the bargaining representative of
the projectionists, but it immediately reduced their wages substantially. General
Counsel contends that this reduction was without prior consultation and bargaining
with the Union in violation of the Act. In addition, he claims that Respondent uni-
laterally eliminated certain tasks which unit employees performed for the old owner
and ceased paying for such work. General Counsel also maintains that Respondent
bargained in bad faith with the Union by restricting the authority of its agents to
negotiate and by failing to meet at reasonable times. Respondent admits the uni-
lateral reduction in employee wages rates, but it contends, however, that its action
was taken only after the Union avoided bargaining with it. Respondent denies the
other allegations of omissions in its obligations under the statute. -
B. The refusal to bargain collectively with the Union
1. The appropriate unit and the Union's majority status
The complaint alleges and the answer admits that: All projectionists employed by
Respondent at the Memri Drive-In Theatre, the Semri Drive-In Theatre, and the
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oasis Drive-In Theatre, excluding office clerical and professional employees, janitors,
guards, and all other employees and supervisors as defined in the Act,` constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act. I find that said unit is appropriate as alleged.
It was tacitly assumed during the hearing that the Union was the statutory repre-
sentative of the projectionists employed by Respondent's predecessor at the time
Respondent acquired the theaters. It is also clear from Business Agent Short's testi-
mony, as well as Robert Danico's, who was the principal stockholder and allso
managed the theaters before the purchase, that the Union had labor agreements
covering the projectionists and supplied them to the theaters. As a matter of fact,
Respondent itself implicitly conceded these facts when it began operating the prop-
erties by recognizing the Union as the bargaining agent of the employees involved
and commencing negotiations with it. In addition, the complaint alleges, and the
answer admits that the Union was certified on November 12, 1964, by the Regional
Director of the Board as the statutory representative of the employees in the above
unit.
I find, it.. accord with the allegations of the complaint, that the Union is, and at all
times since at least August 1961 has been, the exclusive bargaining representative of
the employees in the appropriate unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act. -
2. The alleged unilateral reduction in wages, inadequate delegation of authority
to negotiate, and failure to meet at reasonable times
Local 433 Business Agent Edward Short notified Robert Danico, then' principal
owner and manager of the theaters here involved, 60 days prior to the expiration of
the Union's contracts with Independent Amusements, Inc.,-that the Union wished to
bargain for a new contract, and the parties met on June 2, 1964. At the time of this
meeting the projectionists were receiving an hourly rate of $4.90 at the Memri and
Oasis Drive-Ins and $4.55 at the Semri. During the meeting the-Union presented
demands for a 10-percent increase in the hourly rate, a pension plan, and certain
vacation benefits. According to Short, and I credit him, Danico indicated that the
theaters might run on a yearly basis, and though he thought the demand for the stated
increase was "out of line," he appeared to be receptive to some sort of a pension
arrangement. A meeting was scheduled-for July 5, 1964, -but Danico canceled it.
On August 5, 1964, Respondent National Amusements, Inc., entered into a pur-
chase and sale agreement with Independent Amusements,- Inc., pursuant to -which
Respondent purchased the three theaters. Settlement was effected on August -28,
1964. On or about August 6, Short reached Danico by telephone, requested a bar-
gaining meeting, and one was arranged for August 10. Short testified that the meeting
was substantially a "rehash" of the earlier session, except that the Union dropped its
demand for a 10-percent increase and substituted a request for an increase of 12, 11,
and 10 cents per hour in the respective years of a 3-year agreement. Again, according
to Short, Danico seemed receptive and indicated that an agreement might be reached.
Respondent took title to the theater properties on August 28, 1964, but between
early August and August 28 a number of significant events occurred. Danico stayed
on with Respondent as its agent and manager of the theaters after the purchase.
Although he met with the Union on August 10, he did not mention the sales agree-
ment of August 5. Between August 10 and 29 Business Agent Short made at least six
telephone calls to Danico before he was able to reach him and arrange for another
meeting on September 2. Edward Redstone, Respondent's treasurer, who participated
in the labor negotiations in this case, was in Davenport on August 5 when the sales
agreement was executed and returned, on or about August 26, for the closing where he
remained until August 29. On August 23, 1964, Short received a letter dated
August 20 from Redstone advising him that Respondent had purchased the theaters
and would commence operations on August 28. In the letter Redstone told Short
that Respondent wanted to employ men from the Union, but he protested that the
rates under the expired contracts were "discriminatory" and urged the Union to
supply men-at "scales and conditions which are prevalent under your jurisdiction."
Short called a meeting of the Union's executive board after receiving Redstone's
letter, and then tried to reach Danico again. On August 25, 1964, Short acknowledged
Redstone's August 20 letter and stated that he would contact Redstone- soon for a
meeting. When Short finally was able to reach Danico by telephone on August 29,
Danico agreed to meet and mentioned that Matthew Lima, the new owner's repre-
sentative, had been in the city for some time. Short asked why he had not been
informed of this, and Lima got on the telephone. Lima invited Short to get his com-
mittee together for a meeting, and the parties met on September 2. - --
NATIONAL AMUSEM NTS,, INC. - 1203
On August 31, Short telegraphed Redstone at his Boston office 1 advising him that
he had been unable to arrange a meeting with Danico until August 29 and "urgently"
requesting Redstone to attend. On the same day Short got a telegram from Redstone
in response to Short's-letter of August 25 in which he had told Redstone that he would
contact him for a meeting. In this wire Redstone told Short that his letter of the 25th
left Respondent "no alternative but to unilaterally establish wage scales and condi-
tions for your men ...." Although the Redstone -telegram of August 31 states that
Respondent intended to fix wages unilaterally, it is clear from Redstone's own testi-
mony that he had already fixed and established the new rates, effective as of August 28,
when he met with Danico in Davenport for the closing on August 26 or 27.
Redstone answered Short's August 31 telegram, requesting his presence at negotia-
tions, by wire of September 1, stating that ". . . our representative Mr. Robert Danico
has been authorized to meet with you ...... On September 2, Short, International
Vice President Upton, and the union committee met with Danico and Lima.
As the September 2 session commenced, Short started discussing the Union's last
request for a wage increase and a pension plan, but Lima interrupted him to announce
that he had a message from Redstone to the effect that, as of August 28, the hourly
rate for projectionists was $3 at the Memri and Oasis and S2.75 at the Semri. Lima
added that those were his "orders," and, when the committee attempted to discuss
the matter, he said, "There is the telephone, go ahead and call Mr. Redstone." The
Union also tried to discuss other subjects, such as vacations and a pension plan, but
Lima said he had no authority to talk about those matters. Lima did not testify, and
Upton testified credibly that Lima disclaimed authority to bargain and said the only
authority he had was to tell the Union what Redstone said about wages. Danico
admitted that, as far as the new rates of $3 and $2.75 were concerned, he had no
power to go above those figures in that meeting. The Union protested that Danico
had appeared to agree with the substance of their demands in the earlier meetings, but
Danico replied that at that time he was "wearing two hats" and was only wearing one
now-Redstone's.
Short made several telephone calls to Danico after the September 2 meeting trying
to arrange another bargaining session, but he was unable to reach him. A meeting
was finally arranged for October 15 by Union Vice President Upton after Redstone
wrote him in early October suggesting one.
Redstone was present at the October 15 meeting and offered the Union a rate of
$3.80 per hoar at the Memri and Oasis and $3.30 at the Semri. The Union offered to
extend the old contract for 1 year. On October 20, 1964, Short wrote Redstone
rejecting his October 15 offer. Subsequently, Short tried to reach Danico by telephone
on several occasions, but could not. He left his telephone number with Danico's
secretary, but his calls were not returned.
The Union had filed a petition for certification with the Board in October 1964, and
an election was held among the projectionists on November 3. Danico was present
at the Board election, and Union Officer Gordon Stoddard testified credibly that
Union Counsel Marvin Andich requested Danico to meet and asked him how much
authority he had to negotiate. Danico replied that he could go only as far as what
Redstone had already offered. Danico said he did not remember the conversation,
but I find that it occurred. Shortly after the election, Short asked Damco for a
meeting. Danico conceded that he thought he told Short to get in touch with Red-
stone, as Short had testified.
Short immediately wrote Redstone for further talks, in line with Danico's sugges-
tion, and asked Redstone to fix a date of his own choosing. Redstone replied, on
November 9, that he was over his head in commitments, but would, as soon as he
could, be in touch with Short to set up a meeting. Short then tried to reach Danico
several times by telephone, but, except on one occasion, he was unsuccessful and
Danico did not return his calls.
The Union filed an unfair labor practice charge against the Respondent on Novem-
ber 23, 1964 , and on November 30, 1964, Short telegraphed Redstone demanding a
meeting within 2 weeks. Short's demand was answered by Respondent's counsel who
wrote, on December 7, 1964, that Redstone's schedule had tied him up with no free
time available, -but that counsel was sure -that Redstone would communicate with
Short "as soon as-possible."
Short testified credibly that after he got the above letter from Respondent's counsel
he telephoned -Damco three- or four times each week-without success until he finally
i Respondent's principal office is in Boston, lifassachusetts, and, according to Respond-
ent's brief, all of its officers reside in Massachusetts.
213-8D9-66-vol. 155-77
1204 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
reached him sometime after late December ' 1964. Short asked for a meeting and:
Danico said he would refer his request to Redstone . Danico severed his connections
with Respondent on January 15, 1965.
On February 1, 1965, Short again wrote to Redstone , reminded him of-his Novem-
ber 9, 1964, promise to contact Short when he was not so busy, and asked that negotia-
tions begin as early as possible . Redstone promptly replied , stating that he had not
done so before because the Union had filed unfair labor practice charges against the
Respondent. He commented that he had concluded it would be, therefore, "inappro-
priate" to meet until the National Labor Relations Board had disposed of the charges,
but he added that Respondent was, nevertheless, "ready and willing to negotiate at a
mutually convenient time."
Short wired Redstone on February 6, 1965, insisting that negotiations resume, and
Redstone, in a February 8 response , agreed to meet "no later than the week beginning
February 22nd," but he also suggested that, if Short wanted things to move faster, he
would come to Boston.
After another telegraphic demand from the Up-ion for negotiations and a response
from Redstone that the ware was "inflammatory," the parties met on February 17,
1965. Danico had been replaced by Cramn, the new district manager, and he accom-
panied Redstone to the meeting. The Union's demands and the Respondent's counter-
proposals were discussed, but no agreement was reached. Gordon Stoddard, a union
official, testified credibly, and without contradiction, that Redstone commented that,
since unfair labor practice charges were pending, he had some doubt that his offer
was firm.
Following the February 17 meeting, the parties wrote each other giving conflicting
interpretations about what happened at the meeting . Short, in his letter, said the
Union was ready to meet in Milan, Illinois, at one of the theaters , on March 8, 1965.
Redstone replied that he would be-in touch with Short "before my next trip to your
area," and he asked that Short send him an agenda of what he wanted to discuss.
Redstone followed up this request with a letter on March 18, asking Short for a reply.
Short sent the agenda, stating, however, that Redstone was quite familiar with the
Union's demands. In this letter, Short again suggested a date for a meeting, this time
March 30, 1965, but the parties did not get together until April 8, 1965, when they
met in the presence of a Federal conciliator.
At the April 8 meeting Redstone repeated his earlier offer of $3.80 per hour for
two drive-ins and $3 for the other , and there was some discussion of pensions and
other matters, but, according to Short, the meeting was mostly a "rehash" of earlier
meetings. The parties met again in the presence of the conciliator on April 22, and
District Manager Cramn was Respondent's only representative present. Cramp told
the Union that he had been instructed by Redstone to make the same wage offer as
before, but to pay it retroactively to August 28, the date the Respondent took over
the properties. Cramn said, however, teat he had no authority to discuss pensions,
vacations , or premium pay. There is some suggestion in Redstone 's testimony that
the Federal conciliator suggested arbitration, and that Respondent agreed to it, but it is
clear from the record that there was never an understanding about the scope of the
matters to be arbitrated, and many issues were still unresolved. -
The April 22, 1965, meeting was the last time the parties met prior to the hearing
in this case . On May 9, 1965 , Redstone wrote Short, accused him of "innumerable
inaccuracies" in a recent letter, and stated that further discussions should be post-
poned ". . . until we meet at the forthcoming hearing before-the National Labor Rela-
tions Board."
The above findings are for the most part based upon undisputed testimony or docu-
ments. There are some exceptions , however. Danico indicated that he and Redstone
tried to reach Short by telephone sometime during Redstone 's visit to Davenport, on
or about August 26, for the closing. His testimony is vague and uncertain, however.
He said they telephoned Short's home , but he was not there , and Danico could not
recall if a message was left or if he tried to reach Short again. He also testified that
he could not "remember" any call from Short that he did not return, and stated that
it was his practice to return all his telephone calls. Redstone also said that when he
arrived in the area "... we left a message for Edward Short at various places to get
in touch with me so we could discuss matters since we were taking over ..." but that
he did not hear from Short. I do not credit Redstone or Danico if they were imply-
ing that they tried to reach Short by telephone before the properties were transferred
to Respondent. Redstone testified that he was ready to leave the area when Short
telephoned Danico, which would have been August 29 . This is consistent with Short's
testimony that he finally reached Danico on that date after many unsuccessful
attempts, and it also fits with Redstone 's testimony that Danico did not-want-to make -
any telephone calls to the Union before the Respondent took title. I find that Short
NATIONAL AMUSEMENTS, INC. 1205
made the- efforts to reach Respondent that he testified to and that Respondent 's repre-
sentatives purposely avoided communicating with him until August 29, when Danico
accepted Short's call and told him Lima was present.2
3. Analysis and conclusions with respect to the conduct found above
Respondent's contention in its brief that the Union was not the exclusive bargaining
representative of the projectionists until it was certified by the Board on November 12,
1964, and that, therefore, Respondent was not obligated to deal with it as the statutory
representative is without factual or legal foundation. The Union had contracts for
a number of years with Respondent's predecessor covering the projectionists which
did not expire until shortly before Respondent acquired title to the theaters. Damco,
the manager of and principal stockholder in the seller, met with the Union and
discussed a new labor contract before the sales agreement was executed, after it was
executed , and before Respondent acquired title at the closing and after Respondent
began actual operation of the properties on August 28. There was no real fracture
in the employer-employee relationship when Respondent acquired the theaters. It
took over its predecessor's assets, operations, and employees without any appreciable
change, and all this is evidence of the continuity of the "employing industry." As
soon as Respondent commenced operations it distributed a notice to all employees
which advised them that they "should continue their usual duties and consider their
employment continued by the new owners . Although Danico testified that he
may have made a mistake in issuing this notice in reference to projectionists and said
he told the Union that the notice was not intended for them, it is clear that, if he
erred, he erred only in not advising the projectionists that the advice in the notice
about "terms and conditions" remaining the same did not apply to them. Indeed,
everything Respondent did with reference to projectio. ists is consistent with its desire
to continue their employment, but reduce their rates. As a matter of fact. Redstone's
August 20 letter to Short, advising him that Respondent had purchased the theaters,
informed Short that Respondent wished to have men supplied to it by the Union but
at lower rates. Finally, the projectionists continued to work for Respondent after
the purchase , and Respondent recognized their Union as their bargaining representa-
tive. The whole record demonstrates that there was a mere change in ownership
here and that when Respondent recognized the Union as the projectionists' statutory
representative, as indeed it was, Respondent did what it was legally required to do.3
Respondent's substantial reduction in the wages of the projectionists without first
advising, consulting, or bargaining with the Union appears to have been a clear viola-
tion of its obligations under the Act .4 Although Respondent met with the Union on
September 2, which was less than a week after it had acquired ownership to the prop-
erties, it had, however, already decided during-Redstone's trip to Davenport; or cr
about August 26, that the wage rates would be reduced on August 28, and it-contented
itself during the September 2 meeting with merely announcing that the charge had
been made. Respondent's unilateral action vas a serious undercutting of the empic)-
ees' bargaining representative. Respondent's defense that the Union avoided its
obligation to bargain about the issue, thereby excusing Respondent's unilateral action.
is without support in the record. Redstone wrote Short on A ugast 20 advising him
of the purchase, but complaining about the union scale, and Short got- the letter on
August 23. Short called a meeting of the Union's executive board to discuss the
matter, and he acknowledged Redstone's letter on August 25, stating that he would
contact Redstone for a meeting soon. In addition , Short kept trying to reach Respond-
ent's local representative, Danico, with whom he had been dealing all along. There is
nothing in the Union's action to support a finding of avoidance of its obligations, but,
to the contrary, Short appears to have been acting reasonably and expeditiously in
his prompt reply to Redstone and attempts to reach Danico. There was no bad faith
shown on the Union's part, and certainly no waiver of the Union's right to be consulted
2 Redstone's August 20 communication to Short was silent about Lima's presence in the
area and Redstone 's visit for the August 28 closing. -
3 Chemrock• Corporation. 151 NLRB 1074. In the Chemroek case , the purchaser did not
actually employ the employees in question . but here the projectionists continued to work
without interruption, which makes the case stronger for an application of the rule. Re-
spondent does not contend, and it clearly no longer may be contended , if it ever could, that
a purchaser of a going business may "spin off" the union . See X.L.H.B. v. Albert Armato
and Wire t Sheet Metal Specialty Co., 199 F. 2d 800 (C.A. 7).
4 N.L.R.B. v. Ben- a Katz, etc., d/b/a Williamsburg Steel Products Co., 369 C.S. 736;
Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843 ( CA. 5) ; Kenneth B. McLean, d/b/a
Ken's Building Supplies v. _KL.R.B., 333 F. 2d 84 (C.A. 6) ; N.L.R.B. T . Wonder State Mfg.
Co., 344 F . 2d 210 (C.A. 8).
1206 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
about the rate at which its members would be employed .5 On the other hand, it
appears that Respondent acted hastily in setting the rates, installing them, and then
announcing the fact to the Union just a few days after-it started operating the business.
I find, and conclude, that by such unilateral acts Respondent violated Section 8(a) (I)
and (5) of the Act.
Respondent's duty to bargain included the obligation to appoint a negotiator with
real authority to negotiate and a willingness to meet at reasonable times and places.
The law requires an employer to apply himself to collective-bargaining sessions with
the same degree of diligence and promptness as he does in his other important business
interests, and his reluctance or apparent disinterest in this area or his failure to
appoint an agent to negotiate fundamental issues is evidence of lack of good faith in
the bargaining process .6 But, as I have found in greater detail above, aside from
Redstone himself who attended a few meetings, Respondent assigned negotiators who
had no authority to bargain or discuss such important issues as pensions or vacations
and who admittedly could only communicate to the Union Redstone's position on
wages. When Short finally reached Danico on August 29, Danico told him that
Respondent Representative Lima was present, and Liana then agreed to meet with
the Union on September 2. On September 1, Redstone wired Short, in reply to
Shorts request that Redstone personally attend the session, and stated that Danico
was Respondent's representative and authorized to meet with the Union. Yet when
the September 2 meeting began, Lima immediately told the Union that his "orders"
were to announce the wage cut, and he told the union representatives to telephone
Redstone if they wished. In addition, Lima confessed lack of authority to discuss
pensions or vacations, and Danico admitted that, as far as the wage rates already
unilaterally established were concerned, he was powerless to go above the set figures.
Frustration of bargaining by inadequate delegation was also demonstrated by
Danico's candid response to Attorney Andich's inquiry about his authority, when he
met him at the Board election on November 3, that he could go only as far as what
Redstone had already offered, yet Danico was acting for Redstone because Redstone
was unavailable. Finally, with respect to authority, in Respondent's last meeting with
the Union in the presence of a Federal conciliator on April 22, 1965, District Manager
Cramn, the only representative of Respondent present, said he had been instructed
by Redstone to make the same wage offer (to be paid retroactively,- but instructed,
nevertheless), but he had no authority to discuss anything else-, including pensions,
vacations, or premium pay.
Respondents negotiators appointed by Redstone could not act, and they were
difficult to reach when Redstone, who was involved in other matters and was too busy
to bargain, referred the Union to his agents. Respondent agreed to purchase the
theaters on August 5, but Short found it impossible to reach Danico by telephone until
August 29. After the September 2 meeting, Short again tried to contact Danico on
several occasions, but could not, and he had similar experiences with Danico after
the October 15 meeting, because, although he left his name and telephone number
with Danico's secretary, his calls were not returned. Danico referred Short to Red-
stone on November 3, when Short asked him to bargain, but when Short wrote
Redstone, Redstone said he was over his_ head in business commitments. Redstone's
unavailability caused Short to try Danico again, but once more Danico did not return
his telephone calls. As the year wore on, Short made other efforts to arrange meet-
ings. His November 30, 1964, wire to Redstone was answered by Redstone's lawyer
who said Redstone had no time available. Again Short was back to Danico, but when
he finally reached him, Danico sent him back to Redstone. By this time around
January 15, 1965, Danico had severed his connections with Respondent, and Short
tamed his attention to reaching Redstone.
Respondent's replies to Short's efforts to arrange meetings, from February 1, 1965,
to the time of the hearing in this matter, appear lackadaisical and evasive. In short,
and for example, Redstone wrote Short in February that it would be "inappropriate"
to meet until the Board disposed of the Union's charges of unfair labor practices; later
5 Respondent's assumption that the Union would not agree to a reduction would not
.excuse its failure to meet and attempt in goad faith to resolve the wage issue. Armstrong
Cork Company v. N.L.R.B., supra, footnote 4.
6 See N.L.R.B. v. Fitzgerald Mills Corporation, 313 F. 2d 260, 267 (CA. 2), cert. denied
375 U.S. 834 ; N.L.R.B. v. Harold Hibbard and Ben R. Stein, d/b/a Hibbard Dowel Com-
pany, 273 F. 2d 565, 568 - (C.A. 7) ; J. H. Rutter-Rex Manufacturing Company, Inc., 86
NLRB 470; "M" System, Inc., Mobile Home Division, Mid States Corporation, 129 NLRB
527, 549 ; Insulating Fabricators, Inc., 144 NLRB 1325, 1327-1329.
NATIONAL AMUSE UIENTS, INC. .1207
in the month, Redstone suggested that Short come from Davenport to Boston, if he
wanted things to move faster; and, on May 9, 1965, Redstone -told Short that further
e.7bargaining should be postponed until the parties met at the hearing in this cas
Ihave already found that Respondent violated the Act by its unilateral reduction of
the wage rates. Such unilateral action frustrates the bargaining process and often it
will show bad faith and "disclose an unwillingness to agree with the union." 8
Respondent's action in assigning agents to represent it in bargaining who had no
power, o negotiate but only to carry messages to the Union, taken with its avoidance
of its duty to meet with the Union at reasonable times, which, I think the record
shows, is substantial evidence that Respondent has also refused to bargain in good
faith in these respects as alleged, and when considered in connection with the uni-
lateral wage cut, this conclusion is, in my view, inescapable .9 I find, and conclude,
that Respondent, as alleged in the complaint, engaged in dilatory and evasive bargain-
ing tactics by failing to meet at reasonable times to confer in good faith with the
Union with respect to the negotiation of an agreement, and by failing and refusing to
designate a representative in negotiations with full authority to enter into a final and
binding collective-bargaining agreement, and that by such conduct Respondent vio-
lated Section 8 (a) (5) and (1) of the Act.
4. Other alleged unilateral changes in conditions of employment
The General Counsel 's complaint as originally issued contained an allegation in
paragraph 11(a) that Respondent unilaterally eliminated repair work of employees
in the unit , on or about August 28 , 1964. During the course of the hearing, General
Counsel amended the complaint to add to paragraph 11 the allegation that Respondent
also unilaterally eliminated repair work on March 15, 1965. According to General
Counsel , the evidence which would support this new allegation would be found in
the testimony of Kenneth Benedict , employed as a projectionist at the Memri
Theatre, and who was then on the stand.
Benedict testified -that, prior to August 28, 1964 , he was required to perform cer-
tain tasks of maintenance of equipment , in addition to his principal duty of operating
the projector, and that he was paid for the hours put in at his work. According to
him, from March 10, 1965 , on, the Respondent has not paid him for so -called prepara-
tory or maintenance time, and he said this matter was never discussed with the Union,
except in the September 2, 1964, meeting with Danico and Lima during which the
Respondent's representatives said that "... they didn't care for us to do the field work
and the speaker work."
In my opinion , the testimony on this issue is unclear and the record not developed
to an extent which would support a finding of violation . First of all, there is abso-
lutely no evidence that Respondent unilaterally altered working conditions by elimi-
nating this type of work - on August 28, 1964, as first alleged. Benedict's testimony
was not very clear, and he complicated matters by injecting a claim that he was not
paid for a number of hours of work which he did sometime in January 1965 , but, in
any case, he seemed to testify that he did the same work after August 28, 1964, as he
did before and continued to do so until March 1965. In addition , Danico, who
remained with Respondent as manager of the theaters until January 15, 1965 , testified
that, although Redstone wanted him to take the preparatory and maintenance work
away from projectionists and have it done by lower paid employees , he resisted his
instructions for fear of labor trouble , and made no change of any kind in the projec-
tionists ' duties before he left Respondent . Danico's testimony was coherent, and
logical, and it rang true . I find that there was no unilateral change in working condi-
tions, on or about August 28, 1964 , as alleged in the complaint.
Benedict also testified that he performed preparatory and maintenance work "in
March and thereafter" for which he was not paid, and this seems to be somewhat
inconsistent with the theory that Respondent eliminated the work, although it is
possible that employees could have continued to do their old tasks without payment.
Nevertheless , there is confusion in the principal witness' own testimony which makes
it unclear whether the work was actually eliminated aud, if it :were , when it happened,
and these factors added to others , makes me unwilling to find that there was a uni-
lateral change , on or about March 15 , 1965, as asserted in the amendment. One of
the additional factors, for example, is that there is no reference - in Business Agent
7 Filing of a charge by a union or of a complaint by the Board does not relieve an
employer of his obligation to bargain. N.L.R.B. v. Jones Furniture Manufacturing Co ,
Inc., 200 F. 2d 774 (C.A. 8). -
8 N.L.R.B. v. Benne Katz, etc., d/b/a Wiidiamsburg Steeb Products Co., supra, footnote 4.
9 Cf. N.L.R.B. v. Wonder State Mfg. Co., supra, footnote 4.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Short's or International Vice President Upton's testimony to elimination of work or
failure to pay for work done, and-it would seem that the Union's chief negotiators
probably would have resisted and mentioned these changes in negotiations, if they
had occurred. Another factor working against the theory of unilateralness is that
there is some reference in the testimony and exhibits to preparatory and maintenance
work, which indicates that there had been some discussion and consultation between
the parties about the issue from the time Respondent began to operate the properties.
Benedict himself said there was reference to this problem in the September 2, 1964,
negotiations, and Business Agent Short testified that the issue was also discussed, but
-very briefly," at a meeting on April 8, 1965. which was, he said, a "rehash" of a
March 17 meeting. A letter from Redstone to Short, dated February 19, 1965, makes
an offer relating to repair work and states that it is a reiteration of an offer made
before, but Short°s reply makes no reference to the subject. Shorts letter of March 23,
1965, to Redstone does not complain about recent alleged elimination of work or
failure to pay for work done although the agenda he attached suggests as a bargaining
item "guaranteed booth and preparation time." Finally, there are references to
"speaker repair" time authorized by Respondent in a statement Respondent asked
employees to sign on April 11, and, on April 21, 1965, Redstone mentioned the sub-
ject again in a letter to Short, indicating that the number of hours of repair time
authorized had been fixed from the time the parties had their first meeting in Septem-
ber 1964. Despite these references in the communications to the problem, the
genesis, background, or context of the issue remain cloudy. In short, I am unable
to determine, if, when, or how much Respondent changed working conditions, and
how much consultation and discussion there was about it. I find, and conclude, that
General Counsel has not established by a preponderance of the evidence that Respond-
ent unilaterally eliminated repair work of employees in violation of the Act as
alleged in the complaint as amended.
IN. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in viola-
tion of Section 8 (a) (1) and (5) of the Act, it will be recommended that the Respond-
ent cease and desist therefrom and take certain affirmative action designed to effectu-
ate the policies of the Act.
Since it has been found that Respondent refused to bargain in good faith with the
Union as the exclusive representative of the employees in the appropriate unit
described herein, it will, therefore, be recommended that Respondent be ordered to
bargain collectively, upon request, with the Union as the exclusive representative of
the employees in the appropriate unit, and, if an understanding is, reached, embody
such understanding in a signed agreement.
Having also found that Respondent refused to bargain with the Union in violation
of the Section 8(a)(1) and (5) of the Act by unilaterally cutting the wages of the
employees in the unit, it shall be recommended that Respondent restore the wage
rates that existed prior to its unilateral action, and make whole each of said employ-
ees, with interest at 6 percent, for any loss of pay each may have suffered as a result
of the wage cut.t0
It will also be recommended that Respondent preserve and, upon request, make
available to the Board, payroll and other -records to facilitate the computation of
the amounts of back wages.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
20 East Bay Union of Machinists, et al. (Fibreboard Paper Products Corp.) v. N.L.R.B.,
379 U.S. 203; N.L.R.B. v. Central Illinois Public Service Company, 324 F. 2d 916 (C.A. 7) ;
Chensrock Corporation , 151 NLRB 1074; Cascade Employers Association, Inc., 126 NLRB
1014: Isis Plumbing & Heating Co., 138 NLRB 716.
NATIONAL AISTESEMENTSi _\X. -- 1209
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All projectionists employed by Respondent at the Memri Drive-In Theatre, the
"Semri Drive-In Theatre, and the Oasis Drive-In Theatre, excluding office clerical
-and professional employees, janitors, guards, all other employees, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. At all times since August 1961, the Union has been, and now is, the exclusive
representative of all the employees in the aforesaid unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union as above found on or about August 28,
1964, and thereafter, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent, National Amusements, Inc., its officers,
.agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive representative
of its employees in the appropriate unit found herein.
(b) Instituting changes in the wages, hours, and other terms and conditions of
-employment of its said employees without first consulting with and bargaining with
the Union concerning such changes.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which -I find will effectuate the policies
•of the Act: -
(a) Bargain with the Union, upon request, as the exclusive representative of the
=employees in the appropriate unit found herein with respect to wages, hours, and
other conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Restore to the employees in the unit whose wage rates were reduced on or
about August 28, 1964, the wage rates they were being paid prior to the reduction,
-and make said employees whole for any losses they may have suffered as a result
of said reduction in the manner described in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
=examination and copying, all payroll records, social security payment records, time-
,cards, personnel records and reports, and all other records in Respondent's posses-
sion necessary for the computation of lost earnings due hereunder.
(d) Post at its theaters involved herein copies of the attached notice marked
"Appendix." 11 Copies of said notice, to be furnished by the Regional Director for
Region 38, shall, after being duly signed by Respondent's representatives, be posted
by Respondent 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 Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Decision, what steps Respondent has taken to comply herewith.l2
"In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall he substituted for the words "the Recommended Order of a
`Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
,Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
:and Order."
"In the event that this Recommended Order be adopted by the Board. this provision
-shall be modified to read: "Notify the Regional Director for Region 38, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith."
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX -
No nCE-To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
RAE WILL bargain collectively in good faith with Local 433, International
Alliance of Theatrical Stage Employees & Moving Picture Machine Operators
of the United States & Canada, AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described below with respect to rates, of pay,
hours of employment, and other conditions of employment , and, if an under-
standing is reached, embody such understanding in a signed agreement. The
bargaining unit is:
All projectionists employed at the Memri, Semri, and Oasis Drive-In
Theatres, excluding all other employees and supervisors as defined in the
Act.
We WILL NOT institute changes in wages or other terms or conditions of
employment in the aforesaid bargaining unit without first consulting with and
bargaining with the above-n_a_med Union.
4VE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees - in the exercise of the right to self-organization , to form labor
organizations , to join or assist the aforesaid Union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a) (3) of the- Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL revoke the unilateral wage changes instituted as of August 28, 1964,
revert to the wage rates existing immediately prior thereto, and make whole
our employees for any loss of pay they, may have suffered by reason of the
wage cut. -
NATIONAL AMUSEMENTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title) -
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Citizens
Building, Fourth Floor, 225 Main Street, Peoria, Illinois, Telephone No. 673-9287.
-The Faeth Company and United Steelworkers of America, AFL-
CIO. Case No. 17-CA-2647. November 29, 1965
DECISION AND ORDER
On August 25, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that allegations of other unfair labor practices
set forth in the complaint had not been sustained. Thereafter, the
155 NLRB No. 119.