Pussycat Theatre

National Labor Relations Board - Board Decisions

Sep 15, 1975

220 N.L.R.B. 295 (N.L.R.B. 1975)

PUSSYCAT THEATRE
American Theatre Corporation d/b/a Pussycat The-
atre ; Downtown Books, Inc.; and Global Industries,
Inc. and International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators
of the United States and Canada , Local No. 343,
AFL-CIO. Case 17-CA-6199
September 15, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 13, 1975, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, American
Theatre Corporation d/b/a Pussycat Theatre, Oma-
ha, Nebraska, Downtown Books, Inc., Omaha, Ne-
braska, and Global Industries, Inc., Atlanta, Geor-
gia, their officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order as so modified:
1. Substitute the following for paragraph 1(b):
"(b) Making changes in wages, rates of pay, and
other terms and conditions of employment of its em-
ployees in the above-described unit without first con-
sulting with and bargaining with the Union concern-
ing such contemplated changes."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
' We are clarifying the Order to conform with the Administrative Law
Judge's proposed remedy.
APPENDIX
295
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
with International Alliance of Theatrical Stage
Employees and Moving Picture Machine Opera-
tors of the United States and Canada, Local No.
343, AFL-CIO, as the exclusive representative
of the employees in the unit described below,
concerning rates of pay, wages, hours of em-
ployment and other conditions of employment:
All motion picture projectionists employed by
American Theatre Corp. d/b/a Pussycat The-
atre, at Omaha, Nebraska, excluding office
clerical employees, guards, professional em-
ployees and supervisors as defined in the Act.
WE WILL NOT make changes in wages, rates of
pay, and other terms and conditions of employ-
ment of our employees in the above-described
unit without first consulting with and bargaining
with the Union concerning such contemplated
changes.
WE WILL NOT discharge employees or other-
wise discriminate against them because of their
membership in, or activities on behalf of, the
above-named Union, or any other labor organi-
zation.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join or assist the
above-named Union or any other labor organi-
zation, to bargain collectively through represen-
tatives of their own choosing, to engage in con-
certed activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL offer Elei Florence and Edward
Force immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole
for any loss of earnings they may have suffered
as a result of their discriminatory discharges
with interest at 6 percent per annum.
WE WILL bargain in good faith, upon request,
with the Union as the exclusive representative of
the employees in the aforesaid appropriate unit,
concerning wages, hours, and other terms or
conditions of employment, and embody in a
signed agreement any understanding reached.
WE WILL revoke the unilateral changes made
220 NLRB No. 46
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the wage rates existing immediately prior to
March 4, 1974.
AMERICAN THEATRE CORPORATION D/B/A
PUSSYCAT THEATRE; DOWNTOWN BOOKS,
INC; AND GLOBAL INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Based on a
charge filed on August 30, 1974, by International Alliance
of Theatrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada, Local
Union 343, AFL-CIO, herein called the Union, the com-
plaint herein was issued on December 19, 1974. The com-
plaint, as amended at the hearing, alleges that American
Theatre Corporation d/b/a Pussycat Theatre, Downtown
Books, Inc., and Global Industries , Inc.,' hereinafter re-
ferred to individually as American Theatre, Downtown
Books, and Global Industries, respectively, and collectively
as the Respondent , constitute a single employer within the
meaning of the Act. The complaint further alleges that the
Respondent committed unfair labor practices in violation
of Section 8(a)(1), (3), and (5) of the Act. More specifically,
the complaint alleges the Respondent discharged Elei Flor-
ence and C. Edward Force on March 4, 1974, because of
their membership and activities on behalf of the Union in
violation of Section 8(a)(1) and (3) of the Act. Further, the
complaint alleges that , in violation of Section 8(a)(5) and
(1) of the Act, the Respondent, on March 4, 1974, without
prior notice unilaterally abrogated or canceled an oral col-
lective-bargaining agreement with the Union. Respondent
has denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held before me on Febru-
ary 19 and 20, 1975, at Omaha, Nebraska.
Upon the entire record,2 including my observation of the
witnesses , and after due consideration of the briefs filed by
the General Counsel, the Charging Party and the Respon-
dent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Jurisdiction in this case depends on whether or not the
entities named, Global Industries, American Theatre, and
Downtown Books, constitute a single employer within the
meaning of the Act. For if Global Industries is not to be
included, the Board's standards for asserting jurisdiction
have not been met. The findings concerning the operations
of the corporate entities named herein are based on stipula-
tions, exhibits, and, to some extent, upon the vague and
generalized testimony of Richard Berry, the manager of the
1 The named companies conform to the General Counsel' s motion grant-
ed at the hearing.
2 As requested by the General Counsel in his brief, his unopposed motion
to correct the transcript as follows is granted : P 139 1 8 from "local" to
"Global." P. 224, II. 16-17 from "corporate industries" to "corporations."
Pussycat Theatre and the bookshop. No other witnesses
testified concerning the operations or the relationship of
the companies toward each other.
Global Industries, Inc., is a Georgia corporation main-
taining offices in Atlanta, Georgia, where it is engaged in
the business of investing in and owning corporations. Dur-
ing all times material herein, it wholly owned various cor-
porations engaged in the business of operating adult movie
theatres and adult book stores located in various States,
including Alaska, Florida, Georgia, Illinois, Indiana, Loui-
siana , Nebraska, North Carolina, Oklahoma, and Texas.
Included among the wholly owned entities are Johnny
Rebb's Book Store in Atlanta, Georgia, American Theatre
and Downtown Books in Omaha, Nebraska, and Panama
Books in Florida. Global Industries annually receives divi-
dend revenues in excess of $50,000 from its subsidiary cor-
porations located outside the State of Georgia. Its gross
receipts for the tax year ending November 30, 1973,
amounted to $1,408,059.60. It annually purchases goods
and materials valued in excess of $50,000 from suppliers
located outside the State of Georgia. American Theatre
Corporation, incorporated in Nebraska and doing business
as Pussycat Theatre, owns and operates a theatre by the
same name in Omaha, Nebraska, where it shows adult
movies to the restricted public. Its gross receipts for the tax
year ending November 30, 1973, amounted to $112,552.75.
It annually purchases goods and materials valued in excess
of $10,000 from sources outside the State of Nebraska for
use at its Omaha, Nebraska, location. Downtown Books,
Inc., also a Nebraska corporation, is engaged in the retail
sale and/or rental of books and magazines and the sale of
various novelty items to the public. Its place of business is
located in the lobby of the Pussycat Theatre in Omaha.
Downtown Books' gross receipts for the like period
amounted to $172,319.21.
American Theatre and Downtown Books opened for
business in early February 1971 in downtown Omaha in a
building remodeled as a theatre. Sometime in December
1970, according to Berry's account, while he was employed
as manager for Johnny Rebb's Book Store in Atlanta,3
Robert Mitchum told him of the theatre and book store to
be opened in Omaha and hired him to manage the opera-
tion-the theatre and the book shop.° Joint Exhibit 1, rep-
resenting copies of annual registrations filed with Georgia's
Secretary of State, shows that Mel Friedman was president
of Global Industries from 1970-74; Joint Exhibit 4, copy of
a Nebraska occupation tax report filed in August 1974,
shows the same Mel Friedman as president of American
Theatre; Joint Exhibit 5, a like Nebraska report filed in
August 1974, shows Friedman as secretary of Downtown
Books and Ralph Mitchum who hired Berry for Panama
Books, is shown to be president of Downtown Books. Rob-
ert Mitchum is shown on Joint Exhibit 2, a copy of the
annual registration filed with the Georgia Secretary of
State, to have been secretary-treasurer of Union Industries,
3 As noted above , this business was also wholly owned by Global Indus-
tries
At the time of the hearing, Berry was then employed in a supervisory
capacity with Panama Books, Inc., in Jacksonville, Florida, another wholly
owned corporation of Global Industries He was hired by Ralph Mitchum,
Robert's brother, to work at Panama Books.
PUSSYCAT THEATRE 297
Inc., during the period of 1970-73 and Mel Friedman ap-
pears as president during the period 1970-74. Downtown
Books has been wholly owned by Union Industries which,
in turn, has been wholly owned by Global Industries.
American Theatre obtains its film from Global Leasing
Company. Joint Exhibit 3 shows it is located at the same
address in Atlanta as Global Industries. It also shows
Friedman listed as its president in 1973. Berry has been
neither an officer nor a director of any of the entities in-
volved. He has been the top operating official situated in
Omaha. The corporate offices for all the entities are locat-
ed in the same building in Atlanta. The building is owned
by Global Industries. The subsidiaries use a common ac-
counting service located in Atlanta. Berry testified he sent
timesheets to the "accounting office" in Atlanta and pay-
checks would be sent from Atlanta. The checks were
signed by Mel Friedman. Berry also sent the personnel
forms to Atlanta.5 Bills for debts incurred by Berry for
American Theatre or Downtown Books would be sent by
Berry to Atlanta from where the bills were paid. Before
Berry could make a sizeable purchase, e.g., the purchase of
a prodjector, he would have to clear it with Julius Daven-
port. Berry testified he was not told the specific wage rates
he could pay employees but he was instructed by Daven-
port at the time he assumed the managerial position in
Omaha to pay a reasonable rate and to consider the rates
paid in the area. However, the credited testimony of Earl
Wise, the Union's president, described more fully below,
shows that in 1972, when he sought to get an increase in
pay and vacation benefits for the projectionists, Berry re-
sponded he did not have the authority and "that he would
have to contact the people in Atlanta, Georgia."
The jurisdictional issue would be more readily suscepti-
ble to resolution had there been testimony from the corpo-
rate officials located in Atlanta. However, based on the
record as made, it appears to me that the evidence never-
theless is sufficient to support a finding that Global Indus-
tries, together with its wholly owned subsidiaries, consti-
tute a single-integrated enterprise and, as such , is a single
employer for purposes of asserting jurisdiction. As stipulat-
ed by the parties, Global Industries is in the business of
investing and owning corporations engaged in the same
type of business-operating adult movie theatres and book
shops. These enterprises are scattered throughout a num-
ber of States in the United States and each is set up as a
separate corporation. It appears, as in the case of the Oma-
ha operations, when Global Industries decided in 1970 to
open the theatre and book shop, the two corporations,
American Theatre and Downtown Books, were formed.
While Berry was hired to manage the day-to-day opera-
tions of the theatre and the book shop, the overall direction
of the Omaha operation emanated from the same source-
Global Industries in Atlanta. From this record, it appears
that the wholly owned subsidiaries were themselves mere
shells, the corporate forms being largely paper realities that
do not reflect the business realities . The Respondent's
counsel argues in his brief that the formulation of labor
policies of American Theatre started and ended with Berry.
The evidence as described above does not support this con-
tention . Berry did run the daily operations but evidence
discloses major decisions were controlled by the officials in
Atlanta. Berry received instructions, albeit general, to re-
strict wages to that paid in the Omaha area . And, in 1972,
faced with a demand for a wage increase and vacation
benefits, he said he did not have such authority and would
have to discuss it with the management in Atlanta. But be
that as it may, Berry may be likened to that of a general
manager of a facility for absentee owners. And the owner
in this case was Global Industries. The transparency of the
corporate veil becomes apparent when we look upon the
manner in which Berry's transfers were effected. Berry in
1970 was manager of Johnny Rebb's Book Store in Atlan-
ta, a wholly owned subsidiary of Global Industries. At that
time he was hired by Robert Mitchum to manage a theatre
and book shop to be opened in Omaha, Nebraska. The
exhibits do not show who the officers were of American
Theatre and Downtown Books in 1970-but at that time
Robert Mitchum was secretary of Union Industries which
was wholly owned by Global Industries. Downtown Books
in turn became wholly owned by Union Industries. And
when Berry shifted from the Omaha operation in the latter
part of 1974 to Panama Books in Jacksonville, Florida, as a
supervisor, that change was made by Ralph Mitchum. Pan-
ama Books was a wholly owned subsidiary of Global In-
dustries. Ralph Mitchum in 1974 was president of Down-
town Books . It should also be noted that Davenport,
although not specifically identified as an officer or director
of any of the entities , was described as being associated
with Johnny Rebb's and also was one of the individuals,
together with Mel Friedman, from whom Berry received
his orders while manager of the Omaha operations. The
figure of Mel Friedman of course appears in all the entities
herein involved as an officer during this entire relevant
period.
Accordingly, on the facts presented, I find and conclude,
contrary to the Respondent's position, that Global Indus-
tries, Inc., American Theatre Corporation, d/b/a Pussycat
Theatre and Downtown Books, Inc., are a single employer
engaged in a single-integrated enterprise and that it will
effectuate the purposes of the Act to assert jurisdiction .7
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
s Employment applications , payroll information , and other related per-
sonnel information.
6 Davenport does not appear on any of the exhibits to have been an
officer of any of the entities . However , based on the record testimony, it
appears he was "enmeshed" as an operating official of Global Industries.
Thus, he is located in the same Atlanta office As Berry testified , Davenport
was also associated with Johnny Rebb 's. Berry would discuss problems with
either Davenport or Friedman.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends a bargaining relationship
was established between the Respondent and the Union in
7 Chicago Theatrical Protective Union Local No 2, 1 A. T S F (Midwest
News Reel Theatres, Inc), 151 NLRB 857 (1965); Cedar Hills Theatres, Inc,
et al, 168 NLRB 871 (1967).
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1971 and an oral collective-bargaining agreement,
although limited in scope , was reached at that time cover-
ing the projectionists at the Pussycat Theatre. The
Respondent's conduct in discharging the two projection-
ists , Elei Florence and Edward Force on March 4, 1974,
forms the basis for the General Counsel's unfair labor
practice allegations. The General Counsel contends the
Respondent discharged the two individuals because of
their support for the Union and because of Respondent's
determination to repudiate the collective -bargaining rela-
tionship with the Union in violation of Section 8(a)(1) and
(3) of the Act. The General Counsel further contends that
when the Respondent discharged the two projectionists
and thereafter hired others at a lower rate the Respondent
unilaterally abrogated and/or unilaterally repudiated the
agreement reached in 1970 thereby effecting the changes in
the terms and conditions of employment of the employees.
The Respondent admits the appropriateness of the bar-
gaining unit consisting of the projectionists at the Pussycat
Theatre. The Respondent argues that no collective-bar-
gaining relationship ever existed-that the only agreement
entered into consisted of an oral agreement for the Union
to refer projectionists for 1 year commencing on January 8,
1971. He says further that even this limited agreement did
not extend beyond the 1-year period. Thus, runs his argu-
ment, there was no unilateral cancellation of any existing
collective-bargaining agreement in 1974 . The Respondent
advances two reasons for the discharge of Florence and
Force-incompetency and the desire to cut costs by hiring
others at a lower rate of pay than that paid to the alleged
discriminatees.
Berry came to Omaha in December 1970 to assist in the
remodeling of the building to house the theatre and the
book shop. The operation opened to the public in early
February 1971. On December 14, 1970, Earl Wise the
Union's president and Floyd Gibson, business representa-
tive for the Union, introduced themselves to Berry and said
they wanted to negotiate a contract for projectionists when
the theatre opened. Berry said he would contact the Union
at a later date. On January 8, 1971, the union representa-
tive met again with Berry . Berry said he intended to run the
film for 16 hours a day. Wise informed Berry the Omaha
area wage rate was $5 an hour . Berry said he couldn't and
wouldn't pay that rate. When Wise then countered with
$4.50 an hour, Berry agreed. Wise then proposed a 2-week
vacation for projectionists after 1 year's service and a writ-
ten contract but Berry rejected both proposals. Berry
agreed union representatives would have visitation rights
to inspect the projection room. Berry said the film would
run from 9:30 a.m. to 1 a.m. the following morning. The
Union said it would furnish projectionists for a 1-year peri-
od. Following this January 8 meeting the Union thereafter
furnished the projectionists as needed. On October 14,
1972, Wise accompanied by two other union representa-
tives, went to see Berry and requested a wage increase to $5
an hour and a 2-week vacation which Berry had rejected in
January 1971. Berry responded he did not have the author-
ity to grant the request but he would "contact the people in
Atlanta, Georgia" and would respond to the Union at a
later date . On November 14, 1972, the parties met again.
This meeting had been called by Berry who then asked
Wise if he had any objection to the projectionists submit-
ting to a lie detector test. Wise offered no objection provid-
ed the employees were willing." Wise asked Berry if he had
heard from Atlanta regarding the Union's proposals for a
wage increase from $4.50 to $5 and the 2-week vacation
benefit. Berry replied he couldn't agree to either proposal?
Despite Berry's rejection of the Union's proposals the
Union continued to furnish projectionists when needed at
$4.50 an hour. All projectionists hired were sent by the
Union.10
During the entire relevant period, two full-time pro-
jectionists were used at the theatre, one on each shift at
$4.50 an hour, as agreed upon between the Union and the
Respondent. Edward Force was one of the two original
projectionists hired. He was introduced to Berry by Gibson
and began working at $4.50 an hour when the theatre first
opened in February 1971. He voluntarily quit in August
1972. In January 1973 he received a call from Gibson and
then returned to work for the Respondent. During his peri-
ods of employment with Respondent, he maintained a full-
time job elsewhere. Force had been working in the industry
under a Union permit since 1961. Elei Florence, a union
member, was referred by Gibson and began his employ-
ment with Respondent as a projectionist at $4.50 an hour
in June 1971. On March 4, 1974, Berry telephoned Flor-
ence at home between 7:30 and 8 a.m. Florence was sched-
uled to report for work at 9:30 a.m.. Berry said there was
no need for him to report any more-"he would be just
going non-union personnel." When Florence went to the
theatre later to pick up his personal effects, he asked Berry
why he was going nonunion. Berry responded he wasn't
mad at anyone-he had to cut expenses. Immediately after
Berry notified Florence of his discharge, Florence called
Gibson and told him what had occurred. At about 9:30
that morning, Berry telephoned Wise whose credited testi-
mony is reported below:
He told me that he had discharged the men and I
asked him why. He said that he just no longer needed
the union down there. I said, "Well, certainly we could
come down and discuss it with you." He relayed to me
that he could get projectionists at $2 or $2.50 an hour,
and that he had to cut down on overhead and he just
refused to talk to us.
I told Mr. Berry that if we-it would be a point to talk
about, and he told me that he knew we would not
work for that kind of money.
Force was at work at his other place of employment on
March 4 when the news of his termination was relayed to
him by the Union. That evening he went to the theatre to
collect his personal things. Berry was there but they did not
No explanation was offered for the lie detector test.
The events recited above are based on the credited testimony of Earl
Wise. Berry's testimony throughout was replete with vagaries , generalities,
inconsistencies , and, in most instances , he did not recall even the substance
of conversations
10 At various times during the period 1971 until the March 4 discharges,
the Union had referred about six projectionists, including the two alleged
discriminatees
PUSSYCAT THEATRE
engage in any conversation . Florence and Force were re-
placed with two other individuals Berry hired at $3 and
$3.50 an hour.
Berry testified he decided to discharge Florence and
Force for two reasons-because he had to cut costs and
because the two individuals were not performing to his sat-
isfaction . He stated he had received a call from either Da-
venport or Friedman that he should reduce his costs at the
theatre . He decided he could hire projectionists at a lower
wage scale than that being paid to Florence and Force. As
stated, above, Berry's testimony was replete with vagaries
and inconsistencies . From his confused testimony , it is im-
possible to determine whether he had hired or even talked
to replacements before discharging Florence and Force on
Monday, March 4, 1974. At one point in his testimony, he
stated he decided on Sunday, March 3, to discharge them.
Yet elsewhere in his testimony he testified he lined up the
replacements the previous Friday or Saturday . And still
elsewhere he testified he didn't recall if he talked to anyone
before he decided to discharge the two discriminatees. At
one point he testified the replacements started working on
March 4 and yet elsewhere when asked if he had anyone to
replace Florence and Force on March , he stated , "Some-
one possibly to take their place." He was unable to recall
with certainty that he called anyone prior to March 4 and
speculated he may have operated the projectors himself on
both shifts until replacements were put on. With respect to
the Respondent's reliance on the failure of Florence and
Force to perform their jobs properly, Berry explained that
they failed to keep the projectors clean. He added that he
also found Force asleep or reading a book in the projection
booth a number of times, with a blank screen, attributable
to Force's failure to switch projectors. Berry testified he
constantly asked them to keep the projectors clean and to
keep them oiled. But he told this to all the projectionists
over the 3-year period.' And, according to Berry, over this
entire 3-year period, the projectors were never kept cleaned
or oiled . He testified he found Force asleep or reading a
book with a blank screen because Force neglected to
switch the projectors. It will be recalled Force worked for
the Respondent during two periods-from February 1971
to August 1972 and from January 1973 to March 4, 1974.
Berry said he found Force asleep or reading a book several
times-he guessed at anywhere from 2 to 10 times. This
occurred several times during Force 's initial period of em-
ployment and also when he returned . He was unable to
recall when the last such incident occurred but stated he
spoke to Force on each occasion . Force , in his testimony
admitted that on two occasions Berry came into the booth
when he had fallen asleep and on two occasions he had
been reading when he had failed to switch the projectors.
According to Force's credited testimony, he read a book
frequently while on duty and Berry never said anything
about it . According to Force, on the occasions the screen
was blank, Berry only came in and told him of the blank
screen but did not refer to his being asleep or reading a
book. The first time Berry came in while he was asleep or
reading with a blank screen was during his first period of
11 At least four other projectionists had been employed at the theatre at
one time or another during this 3-year period
299
employment. The last occasion was in or about May 1973.
Both Florence and Force credibly testified they cleaned
the projectors routinely and Berry at no time directed them
to clean the machines nor did Berry complain the ma-
chines were dirty.
To prop up its defense relating to the alleged failure of
the discriminatees to maintain the projectors properly, the
Respondent called Delbert Sayles as a witness. Sayles was
a projectionist in another theatre and also repaired pro-
jectors as a sideline. He testified he first received a call
from Berry on a Sunday. Berry asked him to repair the
projectors and said he had experienced breakdowns with
the machines several times. Sayles said he took one pro-
jector at a time and loaned Berry a spare. The first one he
had for 2 to 3 weeks before he returned it to Berry and then
he took the second one. Sayles testified he found each of
the machines dirty and bone dry of oil. He was unable to
state the date when Berry first called him to repair the
machines . He also testified that about this same time Berry
also inquired if he knew of any projectionists who wanted
to work at the theatre. Sayles referred his son and, accord-
ing to Sayles, his son began working for Pussycat several
days later . Although somewhat fuzzy in the record, this
much is clear. Sayles' son began working for the Pussycat
after Florence and Force were discharged and it wasn't
until after Sayles' son began working there that Sayles re-
ported to Berry what was wrong with the machines.
Concluding Findings
I find, in agreement with the General Counsel, that a
collective-bargaining relationship was established in 1971
whereby the Union became the bargaining representative
for the projectionists employed at the Pussycat Theatre. An
agreement was reached whereby the Union would refer
projectionists and the wage scale would be $4.50 an hour.
The parties further agreed the Union would have visitation
rights to inspect the projection booth to insure proper
working conditions were maintained. This represented the
entire agreement between the parties, the Respondent hav-
ing rejected other union proposals and refusing to agree to
a written contract. Although the agreement reached did
not encompass the wide range of terms and conditions of
employment normally to be found in a written contract
between a union and an employer, there nonetheless ex-
isted an agreement establishing specific terms of employ-
ment . Although the agreement was oral, rather than writ-
ten, this does not change the nature of the agreement
reached. I reject the Respondent's argument that, since the
Union agreed in January 1971 to furnish projectionists for
1 year, any agreement reached expired 1 year thereafter.
For it is clear that the parties intended to continue the
agreement thereafter indefinitely and the Respondent con-
tinued to recognize the Union as the collective-bargaining
representative for the projectionists. Thus in November
1972 Berry requested approval from the Union to have the
employees submit to a lie detector test. The Union contin-
ued to furnish projectionists beyond the 1-year period. And
also in 1972, the parties discussed additional benefits for
the employees-a wage increase and vacation benefits. The
Respondent did not agree to the Union's proposals and the
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oral agreement remained in effect thereafter . In March
1974, in disregard of the agreed-upon terms and conditions
of employment, albeit orally, the Respondent unilaterally
reduced the wage rates of the unit employees and dis-
charged the employees then employed in the unit. Al-
though it may be said the oral agreement was open-ended
with no definite expiration term, it does not follow that the
Respondent was free to pursue a change in the agreed-
upon terms or conditions of employment which had en-
dured for more than 3 years without first discussing this
contemplated change with the Union and seeking agree-
ment through the collective -bargaining process . There was
no attempt here to discuss the matter with the Union.
Rather, Berry refused to discuss the change in the wage
rate with Wise . He, in effect, announced he was no longer
recognizing the Union because it suddenly was too costly
to deal with the Union. There was no showing that the
Respondent was so financially distressed, if at all, as to
require such immediate action without taking the time to
first notify and consult with the Union regarding the ex-
isting wage scale . This was a matter which the Respondent
was statutorily obligated to bargain with the Union in ad-
vance and not as a fait accompli. And this is so regardless
of whether the Respondent was governed solely by eco-
nomic reasons where , as in the present case , the circum-
stances did not excuse such unilateral action . Such conduct
constitutes a complete rejection of the collective -bargain-
ing process and a circumvention of the duty to negotiate
which frustrates the objectives of the obligations arising
under Section 8(a)(5) of the Act.
The Respondent contends that one of the reasons for the
discharge of Florence and Force was because of their in-
competence . This alleged incompetence embraced their
failure to properly maintain and clean the projectors and,
in the case of Force , his tendency to fall asleep or read a
book , resulting in the projector running through an entire
reel leaving the screen with no projected image. I find
Berry's testimony in support of these reasons unworthy of
belief. The credited testimony shows that Berry never di-
rected the projectionists to clean the machines nor did he
complain to them that the machines were dirty. I find in-
credible of belief Berry 's testimony he gave such directions
and complained constantly to all the projectionists about
the maintenance of the machines and his assertions that
the machines were never cleaned or oiled over the entire
3-year period. Nor can I place any reliance upon Sayles'
testimony to support the Respondent 's defense . For it is
clear, according to Sayles' testimony, that Berry told him
there had been breakdowns with the projectors several
times and was unaware of the reasons for the malfunction.
It was after the discriminatees had been discharged that
Berry was first informed the projectors were not oiled. And
as to Respondent 's contention concerning Force 's inatten-
tion to the operation of the projector, the credited testimo-
ny shows this occurred twice during Force's first period of
employment with the Respondent. Yet he was reemployed.
Twice more it occurred when Force returned to work. The
last such incident occurred in May 1973, almost a year
before his discharge. In sum, I am persuaded that the
above reasons advanced by Respondent for discharging g y p e nion, is
Florence and Force were pretextual in nature and seized distinction without a difference in the circumstances of this case.
upon as afterthoughts in a vain attempt to create a legiti-
mate justification for its action in terminating their em-
ployment.
I have no doubt that the Respondent was interested in
reducing the overhead of the operation. But, as Berry stat-
ed, this was a concern to him during the entire period he
was manager. There has been many a case over the years
where an employer, in an effort to reduce costs, runs afoul
of its statutory obligations under the Act by unlawfully
refusing to bargain with the collective-bargaining represen-
tative of its employees or by unlawfully discharging sup-
porters of a union . The pattern of Berry's conduct discloses
not only an intent to reduce costs but also a design to shed
the Respondent of a bargaining relationship with the
Union of 3 years' standing which he felt required him to
retain employees at a wage scale which he intended to low-
er. Aware that Florence and Force were members of the
Union 12 Berry terminated them because of their union af-
filiation leaving him an open field to hire replacements at a
lower rate. Berry told both Wise and Florence in substance
he would no longer recognize the Union. Interestingly,
Berry discharged Florence and Force without even inquir-
ing of them whether they would continue their employ-
ment at a reduced hourly rate. Accordingly, I find that
Respondent's discharge of Florence and Force on March
4, 1974, violated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent (Global Industries, Inc., American The-
atre Corp. d/b/a Pussycat Theatre and Downtown Books,
Inc.) is, and at all times material hereto has been, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All motion picture projectionists employed by Ameri-
can Theatre Corp. d/b/a Pussycat Theatre, Omaha, Ne-
braska, excluding office clerical employees, guards, profes-
sional 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 material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the
Act.
5. By unilaterally reducing the wages of the employees
in the aforesaid unit and by refusing to afford continued
recognition to the Union on March 4, 1974, the Respon-
dent has thereby refused to bargain collectively with the
Union and has engaged in unfair labor practices in viola-
tion of Section 8(a)(5) and (1) of the Act.
6. By terminating Elei Florence and Edward Force be-
cause of their membership and support of the Union, the
Respondent has thereby discouraged membership in a la-
bor organization and engaged in unfair practices within the
meaning of Section 8 (a)(3) and (1) of the Act.
7. The foregoing unfair labor practices affect commerce
12 Althou h Force held onl a ermit from th U th is only a
PUSSYCAT THEATRE 301
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Since the Respondent , in derogation of its statutory obli-
gations , withdrew recognition from the Union, unilaterally
reduced the wage rates of its employees without first bar-
gaining with the Union, and deeming it appropriate that
the employees be reinstated to their employment status
they enjoyed prior to the Respondent's unilateral action, I
shall recommend that the Respondent be ordered to recog-
nize the Union's representative status and to rescind the
unilateral change in the wage rates and to restore retroac-
tively the wage rate in effect prior to such unilateral action.
As the Respondent unlawfully discharged Elei Florence
and Edward Force, I shall recommend that Respondent be
ordered to offer them full and immediate reinstatement to
their former positions or, if such positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges and to reim-
burse them for any loss of pay they may have suffered.
Backpay shall be computed on a quarterly basis, plus inter-
est at 6 percent per annum , as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950) and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), from the date of dis-
charge to the date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 13
Respondent, Global Industries, Inc., American Theatre
Corp. d/b/a Pussycat Theatre and Downtown Books, Inc.,
Omaha, Nebraska, their officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with International
Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and Canada,
Local No. 343, AFL-CIO, as the exclusive representative
of the employees in the unit described below, concerning
rates of pay, wages, hours of employment, and other condi-
tions of employment:
All motion picture projectionists employed by Ameri-
13 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and its find-
ings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
can Theatre Corp. d/b/a Pussycat Theatre, at Omaha,
Nebraska, excluding office clerical employees, guards,
professional employees and supervisors as defined in
the Act.
(b) Making changes in wages, rates of pay, and other
terms and conditions of employment of its employees in
the above-described unit during the term of its agreement
with the Union without its consent or thereafter without
first consulting with and bargaining with the Union con-
cerning such contemplated changes.
(c) Discouraging membership in the Union, or any other
labor organization, by discriminatorily discharging its em-
ployees or by discriminating in any other manner with re-
spect to their hire or tenure of employment or any term or
condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in the Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Bargain in good faith, upon request, with the Union
as the exclusive representative of the employees in the
aforesaid appropriate unit, concerning wages, hours, and
other terms or conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Revoke the unilateral changes made to the wage
rates existing immediately prior to March 4, 1974.
(c) Offer Elei Florence and Edward Force immediate
and full reinstatement to their former positions or, if their
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges and make them whole for any loss of earnings they
may have suffered in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and reports, and all other records necessary to
analyze and compute the amount of backpay due under
the terms of this recommended Order.
(e) Post at its place of business in Omaha, Nebraska,
copies of the attached notice marked "Appendix." 14 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 17, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "