Prime Time Post, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1496 (N.L.R.B. 1985)

1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prime Time Post , Inc. and International Alliance of
Theatrical Stage Employees , AFL-CIO. Case
31-CA-11932
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 16 November 1984 Administrative Law
Judge Harold A. Kennedy issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief and the Respondent filed a brief in
answer to the General Counsel's exceptions.'
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' Respondent 's brief to the Board consists of a letter stating that the
Respondent is a defunct corporation which exists only as a legal entity
with no employees , that it is financially unable to continue litigating this
matter, and that its brief filed with the judge is incorporated by reference
in the letter
2 In agreement with the judge , we find no meet to the General Coun-
sel's claim that the Respondent was somehow obligated to contribute to
the Motion Picture Health and Welfare Fund and the Motion Picture In-
dustry Pension Plan (herein the IATSE Trust) pursuant to the Charging
Party's basic agreement As found by the judge, at no time did the Re-
spondent assume the contractual obligations its predecessor had with the
Charging Party Further, although the collective -bargaining agreement
entered into between IATSE Local 695 and the Respondent refers to
IATSE Local 695 and the Charging Party as representative, it requires
only that the Respondent provide medical and welfare benefits pursuant
to an "in house" plan and does not require that it make any contributions
to the IATSE Trust In light of this, it is unnecessary to determine
whether the Charging Party is a joint representative with IATSE Local
695
DECISION
A. Introduction
HAROLD A. KENNEDY, Administrative Law Judge.
The amended complaint in this unfair labor practice pro-
ceeding issued on February 16, 1984, by the Regional
Director for Region 31 of the National Labor Relations
Board, following the filing of a charge by the Interna-
tional Alliance of Theatrical Stage Employees, AFL-
CIO on February 24, 1982. It alleges that Respondent,
Prime Time Post, Inc., violated Section 8(a)(1) and (5) of
the National Labor Relations Act. The complaint (pars.
12, 13, and 14) avers that:
(a) at all times since January 1, 1981, and continuing to
date, Respondent, as successor to Mobile Video Systems,
has bound itself to trust agreements established pursuant
to certain IATSE Basic Agreements, and obligated itself
to make trust fund contributions on behalf of a unit of
employees.
(b) commencing on or about September 1, 1981, and at
all times thereafter, Respondent has failed and refused to
make contributions to these trust funds with respect to
its employees in the unit.
(c) Respondent engaged in such acts and conduct
without prior notice to the IATSE Union and without
having afforded the Union an opportunity to negotiate
and bargain as the exclusive representative of Respond-
ent's employees with respect to the effects of such acts
and conduct.
The General Counsel contends that Respondent,
having purchased the assets of Mobile Video Systems,
having employed Mobile Video's employees, and having
carried on the same business operations at the same loca-
tion without hiatus, is a successor. The General Counsel
asserts that by communicating with the trust fund, filing
trust fund reports, and making trust fund contributions,
Respondent recognized the existence of the underlying
trust agreement and bound itself to those underlying
trust agreements. Accordingly, says the General Counsel,
the making of trust fund contributions was an initial term
and condition of employment at the time when Respond-
ent began operations. Respondent's subsequent refusal to
make trust fund contributions, according to the General
Counsel, constituted a unilateral change in existing terms
and conditions of employment.
Respondent employer argues that it was not a succes-
sor to Mobile Video Systems because Mobile Video did
not have a legitimate collective-bargaining relationship
with IATSE and Respondent's acquisition of Mobile
Video's postproduction facility did not result in a "sub-
stantial continuity of the employing industry." Respond-
ent also argues that even if it were found to be a succes-
sor to Mobile Video, it did not violate the Act by sus-
pending trust fund contributions because it did not have
an obligation to bargain with IATSE when the suspen-
sion occurred; and, further, even if Respondent did have
an obligation, it was unaware of it. Finally, Respondent
claims that it has always been ineligible to make contri-
butions under the IATSE trust fund rules.
This matter was heard on May 8 and 9, 1984, in Los
Angeles, California.
After careful consideration of the briefs filed and the
whole record, I find the allegations were not sustained.
The complaint is, therefore, dismissed.
B. Summary of Case
The record establishes by the pleadings, admissions, or
essentially undisputed facts that:
1. Respondent is now, and at all times material, an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act. The company, a New York corporation with an
office and place of business in Los Angeles, California,
annually purchases and receives goods or services valued
in excess of $50,000 directly from suppliers located out-
side the State of California.
2. International Alliance of Theatrical Stage Employ-
ees, AFL-CIO (IATSE) and Local 695 of IATSE are
274 NLRB No. 218
PRIME TIME POST 1497
labor organizations within the meaning of Section 2(5) of
the Act.
3. James A . Osburn has been at times material business
representative and an agent of Local 695.
4. The following named persons have been employed
by Respondent in the positions indicated : Jerry Bergh,
vice president and treasurer ; Alan Lubell, president;
Eugene Wolkoff, secretary ; Cathy Miller , office manag-
er; and Howard Zuckerman , vice president of operations.
5. The following described employees of Respondent
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the
Act:
Included: All videotape editors, videotape ma-
chine operators , maintenance engineers, audio
mixers, vault technicians , technical directors, audio
control operators , film transfer technicians, televi-
sion engineers and technicians , audio 2 technicians,
telecine technicians and laser reproduction employ-
ees.
Excluded: All other employees, including but not
limited to office clericals , guards, and supervisors as
defined by the National Labor Relations Act, as
amended.
6. Respondent purchased certain assets of Television
Complex, Incorporated, d/b/a Mobile Video Systems,
namely the assets involved in that phase of Mobile Video
Systems business which related to its postproduction
video tape facility. However, Respondent did not pur-
chase the assets of Mobile Video Systems which related
to Mobile Video Systems' production business involving
the use of a large tractor trailer, a mobile video vehicle.
7. Respondent employed the majority of the employ-
ees involved in the postproduction tape editing business
at Mobile Video Systems.
8. Respondent carried on the same business operations
of the postproduction tape editing facility without a
hiatus but not the operation of the mobile video produc-
tion truck business.
Television Complex, Inc., doing business as Mobile
Video Systems (MVS), had operated two lines of busi-
ness in the television industry. The first was a production
unit which included a 40-foot tractor and trailer fully
outfitted for remote television production with cameras,
tape machines, lighting equipment, etc. This unit would
travel throughout the country covering sporting and
other events. The second line of business was the oper-
ation of a postproduction videotape editing facility locat-
ed at 6410 Santa Monica Boulevard , in Los Angeles,
California. MVS employed approximately 18 employees.
On July 22, 1977, MVS' vice president of operations,
Howard Zuckerman, signed an "Agreement of Consent"
which was part of the 1976-1979 IATSE Basic Agree-
ment (Green Book). Zuckerman concurrently signed an
agreement to contribute to the Motion Picture Health
and Welfare Fund (Welfare Fund) and the Motion Pic-
ture Industry Pension Plan (Pension Plan-both referred
to as IATSE Trust). These agreements were signed on
the basis of signed authorization cards without an NLRB
election. Sometime in the late summer or fall of 1980,
MVS traded its mobile unit used for production purposes
for certain postproduction equipment.
On October 21, 1980, MVS' then vice president,
Lester Kirshner, executed another "Agreement of Con-
sent" and an agreement to contribute to the IATSE
Trust Fund which were part of the 1979-1982 IATSE
Basic Agreement. Prior to this time, Zuckerman had in-
formed IATSE's representative, Josef Bernay, that the
management of MVS was changing. During the first
week in November 1980 Jerry Bergh, the future vice
president and chief operating officer of Prime Time, vis-
ited the MVS facility as a consultant to Alan Lubell, an
owner of MVS and later of Prime Time Post.
On January 1, 1981, Respondent purchased the remain-
ing assets of MVS and continued to operate the business
as a postproduction facility. Respondent remained in
business until September 23, 1983, when all of its assets
were sold to CCR Video. During the 2 years and 9
months of its operation, Respondent added a third edit-
ing bay to its existing facility and leased the necessary
equipment to add an off-line editing capability to its busi-
ness.
The acquisition of MVS by Respondent caused no dis-
ruption in work production. MVS employees involved in
postproduction duties continued to perform their same
job functions for Respondent at the same wage rates.
On January 8, 1981, Respondent sent a letter to the
Motion Picture Industry Pension Plan notifying it that
MVS had changed its name to Prime Time Post. Also on
this date Jerry Bergh sent a letter to the Pension Plan re-
garding MVS's delinquent account and enclosed a 20-
percent payment of the delinquent amount. On January
19, 1981, a promissory note was executed by Bergh and
Lubell for the remaining amount.
On January 16, 1981, Howard Zuckerman submitted a
letter to James Osburn, a Local 695 business representa-
tive, which states that Respondent agrees to recognize
Local 695 as the exclusive bargaining representative
based on a showing of a majority of signed authorization
cards by the employees. The letter also states that em-
ployees will be paid health and welfare and pension ben-
efits per the "basic I.A. contract."
Respondent continued to make trust fund contributions
until mid-1981. Between January 16, 1981, and June 1,
1982, Osburn met with several of Respondent's execu-
tives in an attempt to negotiate a contract. A collective-
bargaining agreement between Respondent and Local
695 was finally executed on June 1, 1982, by Jerry Bergh
and Osburn. Steward Dallas Jordan also signed the
agreement as a member of the employees' bargaining
committee.
On September 23, 1983, Respondent sold its assets to
CCR Video Corp., a company which has no relationship
to Respondent and is in no way a party to this litigation.
Bergh and Lubell have no involvement with CCR
Video. Respondent continues to exist as a corporate
entity, although it does not operate a business and it has
no employees
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Evidence
Seven witnesses were called by the General Counsel.
One of the witnesses, Gerald Bergh, vice president of
Prime Time Post, was recalled and questioned on Re-
spondent's defense.
David Pearce was employed by the Motion Picture In-
dustry Pension Plan as internal auditor during 1980 and
1981. Pearce testified that he had had a conversation
with Jerry Bergh, who he said had represented himself
to be one of the partners of Mobile Video Systems
(MVS) prior to the receipt of a letter dated January 8,
1981, advising that MVS had changed its name to Prime
Time Post (G.C. Exh. 2). Pearce stated that this conver-
sation concerned the ongoing delinquency for current
contributions and benefits for the current employees of
MVS under the terms of the agreement for the pension
plan as well as the Motion Picture Health and Welfare
Fund. Pearce explained that a "company data sheet"
form would be sent by the Trust to a new employer that
was party to its program in order to provide it with in-
formation regarding how the new company was orga-
nized, who the officers were, and the union affiliations of
the owner, if any. According to Pearce, such form
would be obtained "prior to Board of Trustee or board
director approval of any new signatory as party to the
plan." Pearce said that the form would be sent to current
signatories whenever it was heard that a sale, a reorgani-
zation, or a name change was taking place in order to
keep the Fund's files up to date.
Pearce identified a company data sheet submitted to
the Trust by Prime Time Post over the date of January
14, 1981 (G.C Exh. 3). The document is signed "J. E.
Bergh . . . V.P. Administration," and lists the following
officers of the company: Alan Lubell, president; Jerry
Bergh, treasurer; and Eugene Wolkoff, secretary. The
data sheet also lists Cathy Miller as office manager and
as a person authorized to act for Prime Time in submit-
ting reports and contributions.
Pearce also identified a letter bearing the letterhead of
Prime Time Post and addressed to James A. Osburn, the
business representative of Local 695 (G.C. Exh. 4). It is
dated January 16, 1981, and signed by Howard Zucker-
man. The letter states in substance that the signer had re-
viewed authorization cards signed by a majority of em-
ployees in the company's technical classifications, that he
accepts the cards as authentic, and that he recognizes
"Local 695 and the IATSE as the collective-bargaining
agency for these employees working in the technical
classifications." The letter indicates an intention on the
part of the Company to meet and negotiate with Osburn
and concludes with the following sentence: THE EMPLOY-
EES WILL BE PAID THE HEALTH AND WELFARE AND PEN-
SION BENEFITS AS PROVIDED FOR IN THE BASIC I A. CON-
TRACT
At the bottom of the letter the words, "Accepted and
agreed to by Local 695, I.A.T.S.E." appear, followed by
a signature of Osburn. Pearce indicated he thought a
term agreement was still in effect at the time and that
Prime Time considered itself bound to make contribu-
tions for employees' pension and health and welfare ben-
efits. He pointed out, however, that the Trust itself care-
fully stayed out of any negotiations
Pearce also identified a document captioned "Promis-
sory Note," dated January 19, 1981, and signed by both
J. E. Bergh and Alan Lubell (G.C. Exh. 5). By its terms,
"Mobile Video Systems/Prime Time Post, a California
Corporation" promised to pay the Trust (i.e., the Pension
Plan and Welfare Fund) $45,773.38, plus interest in 12
monthly installments commencing on February 15, 1981.
Pearce said the note was prepared under his direction
and that it was likely that he was the person who had
placed the "RECEIVED JAN 20 1981 M.P.I P.P." stamp that
appears on the document.
Pearce explained that pension plan benefits are not
provided unless payment is made in full. He pointed out
that often times debtors would include statements as to
their status but that "pension plan hours are credited
only when they are paid in full and not on the basis of a
promissory note."' However, Pearce indicated that
health and welfare benefits might be extended to a cer-
tain extent "depending on an individual's prior history,
and so forth" but that the pension plan part of the Trust
would not have spoken for the health and welfare divi-
sion regarding such a matter.2 Pearce identified a series
of documents as reports of contributions made on a
weekly basis by MVS (G.C. Exhs. 7(a)(1) and 7(a)(2))
and Prime Time (G.C. Exhs. 7(b)1 through 7(k)(2))
showing payments to the Trust for the period December
22, 1980, through March 8, 1981. Pearce testified that
when payments accompanied these documents they
would be processed through the Trust's accounts receiv-
able procedure. If no payment was received, the docu-
ments would not be processed until the delinquent
monies were received. Pearce also identified six checks
as those which were drawn on Prime Time's account
either by Bergh or Lubell between May 11 and July 6,
1981, and later returned for insufficient funds (G.C.
Exhs. 8(a)-(f)). Pearce noted that after the Trust had
made three attempts to collect these funds by telephone,
they turned Prime Time's file over for audit procedure
or outside counsel for collection.
Finally, Pearce identified Prime Time letters dated
July 6, 1981, and September 17, 1981, and the attached
cash register receipts as documents which had come to
his attention while employed at the Pension Plan (G.C.
Exhs. 9(a)-(b) and 10(a)-(b)). He stated that the figures
typed near the signatures on each letter were made by
him as part of his internal processing of documents.
Pearce explained that these figures represented whatever
unpaid reports had been submitted as of that date based
on information he had on his desk on a given day. He
further explained that the adding machine tapes (G.C.
i Mobile Video Systems (MVS), in a letter to the Pension Plan dated
January 8, 1981, and signed by Jerry Bergh, included a statement that by
receiving the enclosed check for $11,443 34 all the union employees
would be "reinstated" to the Health, Welfare, and Pension Plans Also,
by maintaining a schedule of payment, MVS believed that its employees
would be assured of retaining all their benefits This letter was received
into evidence as G C Exh 6
2 Pearce stated that he was an employee of the Pension Plan but ex-
plained
The Motion Picture Industry Pension Plan is the collection agent
for both the plan and health and welfare so I was on the payroll of
the pension plan and in the delinquency procedure I represented the
plan It was a joint procedure
PRIME TIME POST 1499
Exhs. 9(b) and 10(b)) were a tally of whatever outstand-
ing delinquency was at hand that day. He said these
tapes comprised any unpaid report of contributions, any
miscellaneous debit or credit memos or interest and pen-
alty billings that might have been in the plan at the time
but which varied from day to day.
On cross-examination , Pearce testified that to the best
of his memory the last payment made by Prime Time
Post to the Trust were the series of returned (unpaid)
checks. He said he did not know the current status of the
Prime Time trust fund accounts.
Josef Bernay was formerly employed by IATSE from
January 1977 to December 1980 as the International rep-
resentative in charge of the Hollywood office. He stated
that his duties called for him to negotiate and interpret
contracts, hear grievances, organize companies, make
sure companies adhered to the contracts, and perform
various other duties of a union labor leader. Bernay iden-
tified two documents as being two pages out of the
1976-1979 "IA independent basic agreement" (G.C.
Exhs. 11 and 12).3 He testified that this agreement was
the initial contract between MVS and IATSE. Bernay
said that no NLRB election had taken place because the
employer voluntarily recognized the union on the basis
of the signed authorization cards. Bernay acknowledged
his signature on both of the documents and identified the
other signature on each as that of Howard Zuckerman.
Bernay stated that Zuckerman signed in Bernay's pres-
ence on behalf of MVS.
Bernay also identified a booklet as being the 1979-1982
collective-bargaining agreement executed between
IATSE and MVS on October 21, 1980. Bernay again ac-
knowledged his own signature on the last page of the
document (received as G.C. Exh. 13) and stated that the
other signature was that of Lester Kirshner who signed
on behalf of MVS in Bernay's presence. Bernay related
the circumstances under which the agreement was signed
by Kirshner and himself. He said that Howard Zucker-
man had called and informed him that "they" would no
longer be with MVS and a new bunch of people were
going to be involved.' According to Bernay, Zuckerman
told him that Newt Bellis and Lester Kirshner wanted to
come by and talk to him about re-signing the contract.
Bellis and Kirshner thereafter met with Bernay and, after
discussing certain things in the proposed contract,
Kirshner signed it. 5
On voir dire examination by Respondent's counsel,
Bernay stated that although this contract was to be in
effect from August 1, 1979, to July 31, 1982, it was not
actually signed until October 21, 1980.6
a This agreement was signed with the producer, Motion Picture Pro-
ducers Association, and included two consent pages tying the "company
to the health and welfare and pension plans "
Bernay did not explain who "they" included other than himself
Bernay said he had been uncertain what Kirshner 's name was A sec-
retary called after Kirshner left the meeting to find out who he was.
6 Bernay claimed that there were reasons for the 15-month delay in
getting the document signed . Respondent 's counsel contended that irre-
spective of any delay there was no authorization for Kirshner to sign on
behalf of MVS.
Cathy Miller was employed by MVS in June 1980. She
stayed on after the takeover on January 1, 1981, and left
Prime Time Post in July 1981. She said she was original-
ly hired as operations manager to schedule the "produc-
tion" operations of the mobile unit truck. She said she
only performed such function for a short time as the
truck was traded within 6 or 8 weeks after she was em-
ployed. Miller stated that when the truck was traded,
Lester Kirshner, who had originally hired her as oper-
ations manager , asked her to help out the bookkeeper.
Miller said a couple of weeks later, after Kirshner had
left, Alan Lubell and Jerry Bergh came and asked her to
become office manager. She indicated this took place in
late 1980 . Miller testified that her duties as office manag-
er called for her to do payroll, and prepare union reports
and pension and health and welfare plan reports. She tes-
tified that there was no change in the type of work being
performed after the takeover by Prime Time on January
1, 1981. According to Miller, there was no major change
in the basic equipment used, which she said consisted of
1-inch editing machines; it "was already there in the
three edit bays," she said. But Miller acknowledged that
she was not familiar with the equipment in use and stated
that "there was always some change going on." She also
recalled that there was an "off line production system"
added.'
Miller stated that Prime Time Post retained many of
MVS' bigger customers, such as Trans World Interna-
tional, Jimmy Swaggert, and Omar Productions. She
stated that during October, November, and December
1980 the work performed by MVS was "almost exclu-
sively post-production," and Prime Time Post performed
postproduction after January 1. Miller said she was un-
aware of any changes in wages, hours, or job classifica-
tions after Prime Time took over. There was a change in
management and that had begun before the name
change, Miller said. The only other change she recalled
was the remodeling of the building. According to Miller,
both Howard Zuckerman and Jerry Bergh handled labor
relations and union matters for Prime Time Post. Miller
said she knew Alan Lubell to have been the owner of
MVS but, she said, Lester Kirshner "was running Mobile
Video, as far as I know." Said Miller: "Lester hired me
and he was in charge. I don't know what his title was
specifically, manager or vice-president."
On cross-examination Miller acknowleged that she was
not specifically aware of the character of the formal
business transaction that resulted in a name change from
MVS to Prime Time Post. She also acknowledged that
she was not involved in any decisionmaking. She testi-
fied that she was aware of a memo that declared MVS
was to be known as Prime Time Post. She denied that
the mobile video truck, used for videotaping shows on
location, was in use up until the name change to Prime
Time Post.
Finally, Miller testified that General Counsel's Exhibit
2, the January 8, 1981 letter advising the Pension Plan of
7 Miller was unable to even recall Respondent 's address until shown a
company letterhead. I believe and find she was in error in stating MVS
had three edit bays
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MVS's name change, was prepared and signed by her at
Alan Lubell's direction.
Dallas A. Jordan was first employed by MVS begin-
ning January 1980 as an electronics maintenance engi-
neer . Jordan indicated that he continued to work at the
same location for Prime Time Post and currently does so
for CCR, Inc." He stated that during the fall of 1980 the
type of work being performed at MVS was postproduc-
tion. Jordan said that he was also a union steward for
Local 695 of IATSE during this time period. Jordan tes-
tified that he had had several discussions with officers of
Pnme Time Post relative to going to work for them.
Jordan stated that he remembered that both Alan Lubell
and Jerry Bergh stated that they were changing the
name of MVS "more to define our function as a post
house, post-editing place." Jordan also said that the
mobile unit truck was disposed of sometime during the
summer of 1980, around July or August, and that the fa-
cility at that time was strictly postproduction in nature.
According to Jordan, the same people continued to
work, the same equipment continued to be utilized, and
identical functions continued to be performed after Prime
Time took over. Jordan stated that MVS' big customers
remained Prime Time customers. There were, he said, no
changes made in the facility itself, outside production
methods, or in the working conditions in general after
Prime Time acquired MVS.
Jordan identified the job classification of each of the
individuals listed on General Counsel's Exhibits 7(a) and
(b).9 According to Jordan, Howard Zuckerman directed
the office and sales "at some period of time."' °
Jordan further testified that to his knowledge Prime
Time did not have its own off-line system. He explained
that Prime Time had the right to "book" equipment and
space of Post Mark Productions to provide off-line ca-
pacity.
On cross-examination, Jordan stated that approximate-
ly sometime in the summer of 1981, Jim Osburn, business
agent for IATSE Local 695, presented signed union au-
thorization cards to Zuckerman." Jordan testified that
he knew that Prime Time had entered into collective-
bargaining negotiations with IATSE Local 695 because
he had been involved with these negotiations himself at
the bargaining table. Jordan said that he thought that Jim
Osburn's first meeting with a Prime Time executive to
talk about negotiating a collective-bargaining agreement
was "maybe spring or summer of '81." Jordan explained,
however, that actual negotiations were few and far be-
tween apparently because of scheduling difficulties
among the different parties involved.
Jordan also testified that the employees held a meeting.
to have an informal election to determine whether Local
695 or Local 776 would be their bargaining representa-
tive. Local 695 was chosen, Jordan said, because most of
the employees already belonged to it. i 2 He added that
approximately 75 or 80 percent of the employees were
present and that he and Jay Bixman had conducted this
meeting. According to Jordan, the authorization cards
had been signed approximately a month or so before the
meeting was held.' 3 Jordan "absolutely" affirmed that
the authorization cards were signed prior to the time the
January 16, 1981 recognition letter (G.C. Exh. 4) was
sent out.
Jordan testified that sometime after the January 16,
1981 letter of recognition was prepared the employees of
Prime Time held another meeting and elected him to
serve as union steward for Local 695. Jordan acknowl-
edged that it was fair to say that the first meeting Jim
Osburn had with a Prime Time executive to discuss a
union contract would have been with Zuckerman. How-
ever, Jordan declined to say that such meeting occurred
within a couple of weeks after preparation of the Janu-
ary 16, 1981 letter. He stated:
I don't know. I mean, like I say, Jim could have
been in contact with him-see, there were two
problems here. Jim was in contact with him, I know
for a fact, before this for the pure reason that you
have got to understand that MVS was under the
basic agreement, referred to as the green book, and
again we were told when the name change hap-
pened that we would continue under the green
book until such times as we got an in-house con-
tract.
So Jim would have been in contact with him for
a period of-a long period of time before that or
maybe even a year or two years before that, way
back when MVS started and Zuckerman was at
MVS a long time Then he left and he came back
with Prime Time or MVS, I don't remember any
more. He was in and out so much.
According to Jordan, it was either Jerry Bergh or
Alan Lubell who told him that he would have a Local
695 in-house agreement rather than being covered by the
IATSE basic agreement (green book). Jordan said that
he attended about three or four collective-bargaining ses-
sions involving Osburn and Prime Time executives and
that it only took around 2 weeks to "hack out" the con-
tract once all the parties were able to sit down and begin
8 Continental Corps of Reporters, referred to as CCR, Inc, bought out
Pnme Time Post, but CCR, Inc is not a party to this litigation
e G.C. Exh 7(a) is a copy of the weekly contribution report for De-
cember 22-28, 1980, and G C Exh 7(b) is a copy of contribution report
for December 29-January 4, 1981 The names on the two reports are
identical except the names of two persons, Eleanor Grand and Jerry
Zuckerman , do not appear on the later report (G C Exh 7(b))
1s Jordan indicated it was difficult to know what position Zuckerman
held Said Jordan "It was impossible to know with Howard Zucker-
man "
ii Jordan said that this date was only a guess and that he was not actu-
ally present when the cards were brought to Zuckerman
12 Jordan said there were only two or so employees who belonged to
Local 776 According to Jordan, such employees did not mind carrying a
second union card, Local 695 performed most of the work, and the em-
ployees preferred having one contract over two separate ones
13 Jordan expressed difficulty in remembering any dates His testimony
regarding Osburn's presentation of the authorization cards is confusing
and contradictory He first testified that Osburn brought the cards to
Zuckerman sometime during the summer of 1981 Later, he claimed that
the cards were signed prior to the January 16, 1981 recognition letter
And then when asked on cross-examination whether Osburn presented
the cards to Zuckerman at all, Jordan replied, "I have no idea " Asked if
he could state when the cards were signed, Jordan said, "Not actually,
maybe a month before [the meeting of employees], who knows "
PRIME TIME POST
negotiating. Initially, Jordan indicated these meetings
took place in April or May 1982, but when reminded of
his earlier testimony he conceded that it could have been
in the spring of 1981."
Jordan identified R. Exh. 1 as the in-house agreement
which Prime Time and Jim Osburn negotiated. He stated
that the type of health and welfare insurance Prime Time
employees had after this agreement was negotiated was
an in-house plan that a "production house has," not the
Motion Picture Health and Welfare Plan. Jordan said he
was not certain when the in-house insurance plan had
become effective. Said Jordan:
Well, go back to the time Lester Kirshner was
there and MVS started defaulting in health and wel-
fare. Everybody was screaming and hollering.
When we changed names everybody, I would say,
up until was able to still function under their health
and welfare up to about-it varied at times, maybe
six months, four to six months.
Then we started-our health and welfare ran out.
We started changing over, the individuals, because
time slots were different on their health and welfare
running out, depending on how much they had
worked, hours they had accumulated and so on and
so forth.
So as their time ran out we switched over to in-
house plan until such times as-that is when we
talked about, in the negotiations, and so on and so
forth which never got together for a year and so on
and so forth so everybody just stayed on the plan.
And then when we went to the in-house con-
tract, it is the prerogative of the facility or owner of
the company to either go with health and welfare
or stay with an in-house plan.
Jordan stated that a small amount of time was spent
discussing the subject of health and welfare coverage
during contract negotiations, the result of which was
that the company's in-house plan would remain in effect.
He also testified that the employees were all under the
in-house plan many months before the agreement was
signed because they had no choice. According to Jordan,
"if we hadn't gone with in-house insurance nobody there
would have had any insurance so rather than go without
insurance we went on the company plan."
Jordan acknowledged that the word "pension" appear-
ing on page 43 of the June 1982 in-house agreement (R.
Exh. 17) was erroneous as the employees were not cov-
ered by any pension plan.
Jordan testified on redirect that the employees wanted
an in-house agreement because the IATSE basic agree-
ment was tailored more toward production work than
postproduction. Therefore, Jordan said, they went to
Local 695 and picked up and signed authorization cards
so Local 695 could represent them. Jordan added that
Zuckerman, who Jordan thought held a Local 776 card,
wanted Local 776 to represent Prime Time's employees.
14 Jordan commented "Like I said, in the business of television, dates
and days run together You have no concept of dates It just seemed to
go on forever so I would say maybe spring "
1501
James A. Osburn said he had been the executive direc-
tor and business representative of Local 695 of IATSE
for 7 years. Osburn testified that G.C. Exh. 4, the Janu-
ary 16, 1981 recognition letter, was executed by Zucker-
man as evidence of an understanding between Prime
Time and Local 695 that such local would be the exclu-
sive bargaining agent for Prime Time's in-house agree-
ment . Osburn said he understood Zuckerman was the
person in charge of labor relations for Prime Time in
January 1981. Zuckerman represented himself to Osburn
as the general manager of the company, Osburn said.
Osburn explained that Local 695 sent the Trust a copy of
the January 16, 1981 recognition letter as a matter of
procedure to notify it of changes involving one of its
participants.
On cross-examination , Osburn testified that "ninety
percent plus" of Prime Time's potential bargaining unit
members signed authorization cards and that these cards
were presented to Zuckerman. Osburn initially stated
that to the best of his recollection, these cards were pre-
sented during December 1980. However, when asked
whether the cards had not been presented to Zuckerman
on January 16, 1981, Osburn agreed that such "may not
be totally incorrect." Osburn stated that the cards had
been collected by mid-December 1980 but that it was not
known until January 1981 who was the head of Prime
Time. He said further that the cards were shown to
Zuckerman as a matter of procedure on January 16,
1981, and that the recognition letter of that date "memo-
rialized our understanding." Such understanding was, ac-
cording to Osburn, that there would not be an NLRB
election and that Local 695 would be recognized as the
exclusive bargaining agent for Prime Time's employees.
Osburn testified that January 16, 1981, was also the
date of his first official meeting with a Prime Time exec-
utive to begin discussions concerning a collective-bar-
gaining agreement . According to Osburn, it took a great
deal of time to actually get Prime Time executives to sit
down and negotiate with the Local over a contract be-
cause of the changes in company executives. Osburn said
he first met with Zuckerman, then another individual,
and finally with Bergh, who sat down with Osburn and
the steward (Jordan) and reached an agreement in a rela-
tively short time. Finally, on or about June 1, 1982, the
parties arrived at an agreement (R. Exh. 1).
Osburn explained that the parties encountered some
difficulty concerning health, welfare, and pension plans
because the Trust required companies to participate in
both its health and welfare plan and its pension plan. He
further explained that Bergh was "very upfront" about
the fact that Prime Time could not afford to pay for
both plans. Osburn stated that he told all Prime Time's
representatives that the Company must maintain a medi-
cal plan, and they agreed. Osburn testified that prior to
the changeover, he was most concerned about whether
the current employees were being credited for contribu-
tions to the Trust's health and welfare and pension plans.
He also stated that the Company had breached its basic
agreement by refusing to furnish records which would
indicate whether the Company had continued to contrib-
ute to the Trust's plans. Osburn related that Zuckerman
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed that the employees would not be covered by the
Trust's health, welfare, and pension plans but would be
protected through a company health plan only.15
Henry E. Vilardo is the administrator and custodian of
records for the Pension Plan. t 6 He described the proce-
dures which must be followed before the pension plan
would accept contributions from an employer. Vilardo
explained that a company must be approved by the
board of trustees as an "employer party." Vilardo testi-
fied that although Prime Time had not signed an agree-
ment to be bound by the Pension Plan, it continued to
accept contributions from Prime Time because it had re-
ceived a notice to the effect MVS, an employer party,
had changed its name to Prime Time. Vilardo said, "We
considered them to be a successor company and accept-
ed contributions by virtue of the fact that they were a
continuing employer party." In addition, Vilardo stated
that a "final notice" (claiming a delinquency for the
period April 13, 1981, to February 4, 1983, G.C. Exh.
14(a)) was sent to a company after several other notices
had been sent regarding the delinquency of its account.
Vilardo also corroborated the testimony of Jordan to the
effect that an employer must participate in both the
Trust's Pension Plan and the Health and Welfare Fund;
it could not participate in only one of the plans.
On cross-examination , Vilardo testified that there was
only one requirement necessary to enable a company to
be approved by the board of trustees-the employer
must have entered into a collective -bargaining agree-
ment . Vilardo stated" that the Pension Plan was under the
impression that Prime Time was a successor company of
Mobile Video, not only because they received the "name
change" letter, but also because the company continued
to remit contributions. However, Vilardo asserted that
had the Pension Plan known that Prime Time was a new
company and not a party to a collective-bargaining
agreement , the remitted company funds would never
have been accepted for either the pension plan or health
and welfare fund and would have been returned to
Prime Time.
Gerald E. Bergh was vice president of Prime Time
Post from January 1, 1981 (at which time Prime Time
purchased MVS' assets), and remained in that post until
the company was sold on September 23, 1983. (Bergh
denied ever being an employee of MVS. He said he was
a consultant for Alan Lubell during the first week of No-
vember 1980 while at MVS.) Bergh said Alan Lubell
became president on January 1, 1981, and remained
president from that point on. Bergh testified that work-
ing conditions of employees remained basically the same
after Prime Time took over MVS. Bergh denied, howev-
er, that Zuckerman served as general manager of Prime
Time; Zuckerman, according to Bergh, was vice presi-
dent of operations for Prime Time. Bergh agreed that
16 Quoting from Osburn's testimony-
So there was, in this instance , if the company was not a successor
but an asset purchaser-meaning Prime Time purchased the assets
and so on and so forth-then we wanted an understanding right up
front If you are not going to participate in Motion Picture Health
and Welfare and if the International is not pursuing it, I want my
people covered by some sort of medical plan
16 Vilardo supervised witness Pearce while employed by the Trust
Zuckerman handled labor relations for Prime Time
during January 1981. Bergh also agreed that he did not
consult with IATSE, the International Union, about dis-
continuing contributions to the IATSE Trust. Bergh said
he had nothing to do with the International Union.
Bergh repeated some of his earlier testimony when
called to testify for Respondent. He said he acted only as
a consultant for Alan Lubell while at MVS for about a
week in November 1980 and that his purpose then was
to examine the company's books and operations to deter-
mine if the business could be salvaged. Bergh said he
recommended new investors and new capital be ob-
tained. His recommendation led to formation of Prime
Time Post and its purchase of MVS' assets. Prime Time
was in business for 2 years and 9 months-i.e., until Sep-
tember 23, 1983-when the assets of the business were
sold to CCR. Prime Time exists now as a corporate
entity, but it has no employees and does no business.
Bergh stated that as vice president of Prime Time he
was its chief operating officer throughout the period of
its operation, from January 1, 1981, until September 23,
1983. He was not a stockholder of the company as
Lubell was. Prior to the formation of Prime Time, Bergh
and Lubell had been business associates in New York
City. Lubell had been engaged primarily as a producer
of television sports programs. (At the time of the trial
Lubell was executive producer of the USFL Game of
the Week, working primarily in New York.) According
to Bergh, Lubell was an investor of MVS and was an of-
ficer (president) of the company at the very end "by de-
fault."
Bergh identified a letter dated February 23, 1983, that
he received from James Osburn which refers to an "in-
tention" to renegotiate a collective-bargaining agreement
(R. Exh. 2) on behalf of Local 695. Bergh also identified
an April 11, 1983 letter he had sent to Osburn pertaining
to a grievance filed by Local 695 regarding a Prime
Time employee (R. Exh. 3). Finally, Bergh identified an-
other document (R. Exh. 4) as Local 695's initial draft of
what ultimately became the agreement that was signed
by Bergh on behalf of Prime Time and by Osburn and
Jordan on behalf of the Union (R. Exh. 1). Bergh said a
Doug Adams also assisted in the negotiations on behalf
of the Union.
Bergh stated that he did not have in his custody any
other files relating to the negotiations of the in-house
agreement or the administration of the contract. He ex-
plained that after Prime Time's assets were sold to CCR
he did not have much time to clean out desks and files
because he was getting married in a week. He only
cleaned out his own desk, and when he later returned to
pick up the files from CCR he was told that there was
nothing left.
Bergh testified that to his knowledge there was no
lapse in health insurance coverage during the time em-
ployees worked for Prime Time. He stated that when the
IATSE health and welfare plan terminated, the employ-
ees were immediately covered by the company's in-
house insurance plan. Bergh explained that Prime Time
continued to make payments to the IATSE Trust be-
cause he thought it was an insurance company for union
PRIME TIME POST 1503
members, and he wanted to keep his employees' " insur-
ance plans" covered.
Bergh testified that IATSE, the International Union,
never requested collective-bargaining negotiations at
Prime Time. Bergh said that since he was the chief oper-
ating officer at Prime Time he would have known if
Prime Time had received a request from IATSE to enter
into a contract.
Bergh was questioned concerning the IATSE agree-
ment (G.C. Exh. 13) signed by Lester Kirshner and Josef
Bernay on October 21, 1980. Bergh stated that he under-
stood Kirshner to have been the vice president and chief
operating officer for MVS. According to Bergh, he and
Alan Lubell first learned of the existence of this contract
sometime around March or April 1983 (2-1/2 years later
than the date appearing on the document) from Prime
Time's attorney Lawrence Kraines, who had learned of
it in connection with the preparation of the defense of
this proceeding. Bergh indicated that neither he nor
Lubell had any knowledge of this agreement whatsoever
prior to this time . 17 Bergh related that during his service
as a consultant for MVS in early November 1980, which
took place only 2 weeks or so after Bernay and Kirshner
had signed the IATSE agreement , he saw no evidence of
any union contract. Also, according to Bergh, the em-
ployees were "not even aware" of any agreement as they
questioned him regarding his intentions to get involved
in a union contract.
Bergh testified that Kirshner resigned in anticipation
of being terminated within a few days of signing the con-
tract with IATSE International . Bergh further stated
that Kirshner did not leave MVS on good terms because
he was told by several company employees that Kirshner
had ransacked his office. Also, Alan Lubell had informed
him that unkind words had been spoken between the two
of them before Kirshner left. Bergh said he thought
Kirshner knew he was going to be terminated sometime
before he resigned.
According to Bergh, Prime Time purchased only
MVS' assets that related to postproduction, i.e., the two
postproduction editing suites. He said Pnme Time did
not acquire the production assets which consisted of a
40-foot tractor and trailer complete with cameras, tape
machines, lights, and other equipment. Bergh estimated
that the value of the acquired assets to be around $1.8 to
$2 million and the value of the truck and other produc-
tion equipment not acquired to be between $1.1 and $1.3
million. He also estimated that 25 to 30 percent of MVS'
total business was not acquired by Prime Time. Bergh
stated that as soon as Prime Time acquired the business
of MVS a third editing bay (to increase "on-line" capa-
bilities) was added. In addition, Prime Time leased equip-
ment from another firm (Postmark Video) so it could
expand into "off-line" and "convergent style" editing
work.18
17 Bergh indicated that the General Counsel ' s attorney had sent
Kraines a copy of the IATSE agreement
18 Bergh explained that "off-line is like rough cutting and decision-
making and editorial" work. "On-line" work, he said, "is the finished
broadcast product "
Finally, Bergh explained that since Prime Time had no
contract or bargaining relationship with IATSE Interna-
tional he did not feel it necessary to consult with it
before suspending trust fund contributions. Bergh indi-
cated that he felt a Prime Time bargaining relationship
existed only with Local 695.
On cross-examination Bergh testified that he vaguely
remembered attending a hearing involving a grievance
filed by MVS employee Charles Burk. Bergh agreed that
Prime Time had refused to go to arbitration with respect
to the grievance on the basis that Prime Time was not
bound by any agreement between the International
Union and MVS. Also, on cross-examination Bergh
denied that there was any refusal on Prime Time's part
to negotiate a new contract with Local 695 but that
CCR later did.19 He added that later on the Union was
voted out and that CCR employees now have no con-
tract. Asked if he did not know that MVS was paying
union wages, Bergh replied that he was aware that the
company was paying "over standard wages for the
union."
Bergh agreed that MVS was engaged only in postpro-
duction work after November 1, 1980. He indicated that
during the week he served as a consultant at MVS' an
exchange of MVS' production truck for postproduction
equipment (later placed in the third bay) was in process.
Bergh said the truck at that time was parked in the em-
ployees' parking lot at MVS.20
D. Discussion
The General Counsel contends , as the complaint avers,
that Respondent was a successor of MVS whose techni-
cal employees (in specific classifications and crafts) had
been represented by IATSE , the International Union,
and so recognized since 1976 . The General Counsel al-
leges that Respondent bound itself to certain trust agree-
ments established by collective-bargaining agreements
between IATSE and MVS whereby periodic contribu-
tions were to be made on behalf of employees. By failing
to make contributions after on or about September 1,
1981, without giving notice to and affording IATSE an
19 But on redirect Bergh indicated that Prime Time did not wish to
negotiate a new agreement with Local 695 in 1983 because of the pend-
ing sale of Prime Time's business to CCR Said Bergh
In all fairness to a purchasing or potential buyer, I didn't feel quite
justified in negotiating on their behalf The sale of the company was
intended to close due to their corporate year-see, they went public
the previous year. They had contacted us briefly before going
into that quiet period and said, "We intend to buy you We want
your organization You are perfect for our operation "
20 Cathy Miller testified that there were three editing bays in place
before Prime Time took over, but I reject such testimony. I credit Bergh
over conflicting testimony of General Counsel's witnesses Miller and
Jordan Bergh impressed me as having a better memory . He may not
have been in a position to know , of course, precisely when MVS discon-
tinued use of the mobile production truck in 1980, and I credit his denial
that he was not aware of MVS's relation with IATSE while employed at
Pnme With respect to the latter , Bergh was questioned on cross-exami-
nation concerning the fact that the in-house agreement signed in 1982 (R.
Exh 1) referred to Local 695 and to the International Union, and he an-
swered as follows
You know, counsel, that is a very grey area to me, as is the
union-as far as I know and the union goes, every piece of letter-
head that I ever saw of 695 was structured in this manner They are
an affiliation , Local 695 is the definition
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to bargain, it is alleged that Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
Respondent argues that it cannot be considered a suc-
cessor of MVS for two reasons. First, Respondent
argues, MVS did not have a legitimate bargaining rela-
tionship with IATSE. According to Respondent, the
1976-1979 MVS-IATSE agreement expired, and the bar-
gaining relationship became "defunct." The execution of
an agreement 15 months later did not revive the bargain-
ing relationship, Respondent contends, because Lester
Kirshner had no authority to sign the agreement on
behalf of MVS and IATSE's representative, who was
told of the pending change in management, was in collu-
sion with Kirshner. Respondent points out that when
Kirshner went to the IATSE office to sign the 1979-
1982,agreement he was aware that he was "on the way
out the door." Further, Alan Lubell who was at the
time, or was soon to be, an officer of MVS and later to
be president of Prime Time, was not advised of the new
agreement, and the employees themselves were unaware
of its execution.
Secondly, Respondent argues (citing Miami Industrial
Trucks, Inc., 221 NLRB 1223 (1975)) that Prime Time
was not a successor of MVS because there was not a
"substantial continuity of the employing industry." Re-
spondent asserts that even though "a large majority of
Mobile Video employees appeared to work in the post
production facility," Prime did not acquire the mobile
production part of MVS' business (which had accounted
for 25-30 percent of MVS' total revenues). Thus, Re-
spondent says, there were "substantial changes" made in
the postproduction operation after Prime Time took
over-with an increase of on-line capacity, through the
addition of a third editing bay, and added off-line and
convergent-style editing capability.
The General Counsel, on the other hand, makes per-
suasive arguments in favor of Respondent being held to
be a successor of MVS. The General Counsel correctly
points out that Respondent continued MVS' operation,
utilizing the same work force and performing essentially
the same functions under the same working conditions
without a hiatus. It is clear from the record that MVS
had traded away its mobile video production truck
before Prime Time took over and that the latter contin-
ued essentially the same postproduction business that
MVS had been engaged in at the time of the takeover.
Kirshner's status with MVS on October 21, 1980, the
day he and IATSE representative Josef Bernay signed
the 1979-1982 collective-bargaining agreement (G.C.
Exh. 13) was uncertain. And the circumstances of the
execution of the agreement were suspicious, but I need
not decide whether the agreement had validity. The tes-
timony of Bergh that he and the other principal officer
of Prime Time, Alan Lubell, were unaware of the execu-
tion of the 1979-1982 IATSE-MVS agreement until
many months later, around March or April 1983, was not
contradicted.
Respondent argues that the Supreme Court's decision
in NLRB v. Burns Security Services, 406 U.S. 272 (1972),
while not discussing "subjective factors such as knowl-
edge," contemplates that an employer may be a succes-
sor only if it is aware that its seller was involved in a
collective-bargaining relationship. The General Counsel
disputes such argument, conceding, however, that the
"successor employer in Burns was aware of its predeces-
sor's collective-bargaining agreement." It is not neces-
sary to resolve the knowledge issue here for I am per-
suaded that the General Counsel did not establish a vio-
lation irrespective of whether Respondent was a succes-
sor of MVS or not. Thus, it may be assumed for the pur-
pose of this case that Respondent was a successor within
the meaning of Burns.
Under Burns, a successor is not bound by a predeces-
sor's collective-bargaining agreement and may establish
its own initial terms and conditions of employment. It
seems evident, however, that Prime Time planned to
retain all of MVS' employees and to continue the same
terms and conditions of employment, whatever they
were and even if not precisely known at the time by Re-
spondent's management . Respondent undertook to make
pension and health and welfare contributions and reports
thereon to the IATSE Trust just as MVS had done pre-
viously. Prime Time experienced financial difficulties,
however, and, after submitting some bad checks to the
Trust, submitted its last report (without any money) to
the Trust on September 17, 1981. As a result, the Trust
was unable to give employees credit toward their pen-
sions , but Respondent covered the employees with an
"in-house" health insurance plan. (Evidently there was
no lapse of medical insurance for any of Prime Time's
employees.) The Trust advised Respondent of its delin-
quency (G.C. Exh. 14), but in doing so the Trust did not
purport to speak for IATSE. As Respondent points out
in its brief, a demand from the Trust did not constitute
an assertion by IATSE that Prime Time owed it a bar-
gaining obligation. Moreover, the Trust's rules required
Prime Time, if it were to be a participating employer, to
make both pension and health and welfare contributions.
An employer is not allowed to participate in only one of
the Trust's plans.
Respondent never negotiated a collective-bargaining
agreement with IATSE and made no attempt to do so
from the time it acquired MVS in January 1981 until the
charge was filed herein on February 24, 1982. Nor did
IATSE ever request Respondent to bargain with it. The
record convinces me that IATSE abandoned any bar-
gaining relation it may have had with Prime Time and,
therefore, waived any right to complain of Frime Time's
failure to make contributions to the IATSE Trust.
Respondent did negotiate a collective-bargaining
agreement with Local 695. Such agreement (R. Exh. 12)
provided for a minimum level of medical benefits for em-
ployees but no pension contribution by Respondent.
Such agreement was signed on or about June 1, 1982, by
Jerry Bergh and Local 695 Business Representative
James Osburn nearly 17 months after Osburn had shown
Howard Zuckerman the authorization cards signed by a
substantial majority of Respondent's employees. On Jan-
uary 18, 1981, Osburn showed the cards to Zuckerman,
an official of Prime Time at the time, and Zuckerman
signed the recognition agreement (G.C. Exh. 4). Osburn
and Steward Dallas Jordan met at various times between
PRIME TIME POST
January 16, 1981, and June 1982 with Prime Time offi-
cials, Zuckerman at first and finally with Bergh.
If the Trust and any of Respondent's employees were
led to believe that only a name change had taken place, I
am unable to believe that IATSE was. Former IATSE
representative Bernay testified that MVS official
Kirshner told him on October 21, 1980, when the two of
them met and signed a new agreement, that he "would
no longer be with the company" and new people would
be taking over. It also seems clear from the testimony of
both Local 695 Business Representative Osburn and
Steward Jordan that they knew that Prime Time's take-
over in January 1981 involved more than a mere name
change. Again, I find it impossible to believe that IATSE
was not aware that its affiliate, Local 695, had presented
signed authorization cards from a majority of Prime
Time's technical employees to its then labor representa-
tive, Howard Zuckerman, obtained Prime Time's recog-
nition, and was involved in the negotiation of a contract
throughout 1981 and into 1982. With Local 695 clearly
representing a majority of Prime Time's technical em-
ployees it could hardly have been unlawful for the com-
pany to recognize such union and negotiate an agree-
ment with it.21
On this record, then, I am persuaded that IATSE
waived any obligation that Prime Time may have to bar-
gain with it. IATSE could hardly have been unaware
that its local affiliate had obtained recognition from
Prime Time and was in the process of negotiating a con-
tract throughout 1981 and into 1982. The General Coun-
21 Respondent's counsel stated at the hearing that "even if it was im-
proper for 695 and Prime Time Post to agree to recognition and to nego-
tiate a collective-bargaining agreement, the statute of limitations [Sec
10(b)] has long since run "
1505
sel's suggestion that IATSE was never on notice of
Prime Time's purchase of MVS is rejected.
The General Counsel's argued at the hearing that
Local 695's Business Representative Osburn was acting
on behalf of IATSE. 22 But , as Respondent points out in
its brief, such position clearly defeats the General Coun-
sel's cause for it would mean that Prime Time had nego-
tiated with IATTSE and ultimately reached an agreement
with the International Union.
CONCLUSIONS OF LAW
1. Respondent, Prime Time Post, Inc., at times materi-
al was an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act. 1
2. International Alliance of Theatrical Stage Employ-
ees, AFL-CIO, also known as IATSE or the Interna-'
tional Union, and Local 695, IATSE are now and at all
times material have been labor organizations within the
meaning of Section 2(6) and (7) of the Act.
3. It was not established that Respondent violated the
Act as alleged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23 i
ORDER
The complaint is dismissed.
22 In his brief, the General Counsel's states that "Respondent's liability
tolls on June 1, 1982, when it entered into a collective -bargaining agree-
ment with IATSE's Local 695 " (R Exh 1 )
23 If no exceptions are filed as provided by Sec, 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses