Regal Cinemas, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 2001

334 N.L.R.B. 304 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
Regal Cinemas, Inc. and Local 370, International Al-
liance of Theatrical and Stage Employees and
Northern Indiana Theatrical Local No. 125, a/w
International Alliance of Theatrical Stage Em-
ployees and Moving Picture Technicians, Artists
& Allied Crafts of the United States and Can-
ada, AFL–CIO and Projectionists Local No. 364,
I.A.T.S.E. a/w International Alliance of Theatri-
cal Stage Employees, Moving Picture Techni-
cians, Artists and Allied Crafts of the United
States and Canada, AFL–CIO (I.A.T.S.E.).
Cases 5–CA–27454, 25–CA–25322, 25–CA–
25322–2, and 8–CA–29503
June 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND TRUESDALE
On April 12, 1999, Administrative Law Judge Richard
H. Beddow Jr. issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.1 The
General Counsel filed cross-exceptions and a supporting
brief. Charging Party Local 125 filed limited exceptions
and a supporting brief. Charging Party Local 364 and
Charging Party Local 370 each filed an answering brief,
as did the General Counsel, joined by Charging Party
Local 125. The Respondent filed replies to each an-
swering brief, and an answer to the General Counsel’s
cross-exceptions. The Respondent also filed an objec-
tion/motion to strike the General Counsel’s answering
brief. The General Counsel filed a response.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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,3 and conclusions
except as modified below and to adopt the recommended
Order as modified.4

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 We deny the Respondent’s objection/motion.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We correct certain inadvertent errors in the notices referred to as
“Appendix B” and “Appendix C” in the judge’s decision. A corrected
copy of each notice is appended.
1. In adopting the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to bargain with the Union about decisions to lay
off unit projectionists and transfer work to nonunit em-
ployees and by implementing those decisions, we em-
phasize his finding that the reclassification or transfer of
bargaining unit work to managers or supervisors is a
mandatory subject of bargaining where it has an impact
on unit work. Land O’Lakes, Inc., 299 NLRB 982, 986–
987 (1990); Hampton House, 317 NLRB 1005 (1995).
Clearly, that has occurred here. The Respondent both
transferred unit work to existing managers and also hired
new assistant managers to perform it. Therefore, the
work transfer was a mandatory subject of bargaining. Id.
Accordingly, we find it unnecessary to pass on the Re-
spondent’s additional contention that the existing or
newly hired assistant managers who performed unit work
were also statutory supervisors, or the judge’s discussion
of the supervisory issue.
2. In adopting the judge’s finding that the Union did
not waive bargaining as to the Respondent’s decision to
transfer work from projectionists to manager/operators
and the implementation of that decision, we find that the
decisions were not founded on any new technological
development.5 Thus, the Respondent continues to em-
ploy the same methods and techniques for showing mov-
ies that it employed before it eliminated the dedicated
projectionist position. The only obvious difference is in
the identity of the persons performing projectionist tasks
and duties, which tasks and duties also remain un-
changed. Further, there is no clear linkage between the
relevant technology and the elimination of the projec-
tionists in favor of manager/operators. Cf. Fast Food
Merchandisers, 291 NLRB 897, 899–900 (linkage be-
tween layoffs and the opening of Respondent’s Florida
facility); Litton Business Systems, 286 NLRB 817, 819–
820 (1987) (employer’s decision to lay off 10 employees
was an effect of its decision to transfer cold-type work to
its other plants and convert to a strictly hot-type opera-
tion at the location in question). Even assuming ar-
guendo that the decisions to eliminate projectionists and
transfer their work did result from technological devel-
opment, we find that there was no clear and unmistakable
waiver of bargaining regarding the allocation of the work
5 Respondent argues that decisions based on technological develop-
ments are immune from bargaining because of the management-rights
clause. The clause reads:
The Company shall have the right to introduce new or improved work
methods, facilities, equipment, machinery, processes and procedures
of work and to change or eliminate existing methods, facilities,
equipment, machinery, processes and procedures of work and to
automate. The Company agrees to negotiate the effects of such deci-
sions on the employees.
334 NLRB No. 41
REGAL CINEMAS 305
among different classifications of employees. Metropoli-
tan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Tro-
jan Yacht, 319 NLRB 741, 742–743 (1995).6
3. The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by conditioning severance
pay for employees represented by Local 125 on their
willingness to sign a release. We disagree.
The complaint alleged that the Respondent insisted
that permanently laid-off employees sign releases as a
condition of receiving severance pay and that this condi-
tion was not a mandatory subject of bargaining. The
judge found that although severance pay was an effect of
the Respondent’s decision to lay off projectionists and
transfer their work to managers, and thus was a manda-
tory subject of bargaining, the severance release was a
permissive subject on which the Respondent could not
insist. Citing Borden, Inc., 279 NLRB 396, 399 (1986),
the judge found the Respondent’s insistence on such a
release was unlawful.
We conclude that Borden is distinguishable from the
instant case. In Borden, the respondent proposed a gen-
eral release (i.e., one that absolved it of all future claims
by laid off employees arising from the employment rela-
tionship). Although the respondent appeared to concede
that a general release was ordinarily a permissive subject
of bargaining, it argued that its general release proposal
was so intertwined with the union’s severance pay pro-
posal as to be a mandatory subject.7
The Borden judge rejected the argument. He found
that the permissive and mandatory subjects in that case
(the general release and severance pay, respectively),
were not interdependent. In this regard, the judge noted
that the general release and severance pay proposals were

6 Further, Members Truesdale and Liebman note that, assuming that
the Respondent’s decision to transfer projectionists’ work was a result
of technological change, the contract clause that the Respondent relies
on in support of its waiver contention arguably would require it to
bargain with the Union before making that decision. While the clause
grants the Respondent the right to introduce new technological meth-
ods, it expressly requires bargaining with the Unions over the effects of
new technologies. Allocation of the affected work between unit and
nonunit employees would constitute such an effect, and thus the con-
tract would require the Respondent to bargain with the Unions about
such decisions.
7 In rejecting this argument, the Borden judge contrasted that case
with Sea Bay Manor Home for Adults, 253 NLRB 739 (1980), where
the Board found that a permissive term, interest arbitration, rose to the
level of a mandatory term when the parties agreed to use interest arbi-
tration to establish every provision of the contract being negotiated.
The Board in Sea Bay stated that the agreement to employ interest
arbitration was designed to establish all the terms and conditions of
employment. Accordingly, it had an immediate and significant effect
on unit employees. In these circumstances, the parties’ agreement on
interest arbitration was so intertwined with and inseparable from the
mandatory terms and conditions for the contract being negotiated as to
take on the characteristics of the mandatory subjects themselves.
not factually linked. He found that the general release
provision was neither part of the respondent’s original
proposal nor did it appear to have been added as a quid
pro quo for any concession by the union. The judge fur-
ther noted that severance pay could be paid pursuant to a
severance agreement without the execution of a general
release, and that—were the respondent’s argument ac-
cepted—a permissive subject would become mandatory
wherever it was simultaneously presented with a manda-
tory one. The Board adopted the judge’s decision.
Contrary to the judge, we do not find that Borden is
applicable here. Thus, unlike Borden, it is clear that the
Respondent’s oral proposal for an employee release was
a quid pro quo for the proposal that permanently laid-off
projectionists would receive severance pay. Second,
contrary to the clear evidence in Borden, the record here
does not establish that the Respondent was insisting to
impasse on a general release of all employee claims
against it. Although the Respondent had obtained such
releases in some prior dealings with other unions, the
record fails to establish that this was the type of release it
was proposing in this case. Indeed, the Respondent
merely proposed, orally, that employees sign “release
agreements.” Further, the evidence suggests that the
Respondent was prepared to bargain over the terms of
the release and was thus open to a narrower release.8
The General Counsel has not shown that the Respon-
dent was seeking a general release, rather than a release
of only those claims arising from the termination of the
employees—the very same employment transaction that
occasioned bargaining over severance pay. In this situa-
tion, bargaining over such a specific release and bargain-
ing over severance go hand in hand. The bargaining is
focused on the effects of the termination. Thus, sever-
ance pay and claims arising from the termination (such
as discriminatory discharge claims) are properly viewed
as reciprocal effects: benefits to employees, costs to the
employer. From the employer’s perspective, it would be
8 Members Truesdale and Liebman note that the Board has generally
taken the view that in most circumstances a release is a permissive (not
a mandatory) subject of bargaining. On this view, a general release,
like the one at issue in Borden, almost necessarily implicates individual
claims that are not closely related to bargained-over terms and condi-
tions of employment. (In Borden, for example, the release would have
extinguished claims arising from exposure to toxic substances.) The
ability to insist to impasse on the release, then, is not essential to facili-
tate bargaining over a mandatory subject, such as severance pay. In
contrast, a specific release limited to claims arising out of a particular
employment transaction presents different considerations.
Chairman Hurtgen agrees that Borden is distinguishable and that the
instant record does not establish that the Respondent sought a general
release. He therefore finds it unnecessary to pass on whether Borden
was correctly decided or on whether, had the Respondent sought a more
general release, a different result would obtain.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
difficult to bargain meaningfully over severance without
being able to fix its costs. A specific release tied to the
termination addresses that issue. Like severance, it is
one of the terms on which the employment relationship is
ended. It is not unfair, in the context of bargaining over
severance benefits flowing from the act of termination, to
require the union to pursue a bargain that fully resolves
the subject.
Further, holding that, in these circumstances, an em-
ployer could not insist to impasse on a specific release
would frustrate honest and effective bargaining. That is,
if a union proposed severance pay with no release, the
employer ultimately would be forced either to accede or
to commit an unfair labor practice by conditioning
agreement on a release. No reasonable purpose would be
served by forcing such a choice.
Certainly, we must be careful to ensure that employees
are not improperly discouraged from seeking to vindicate
their legal rights, including access to the Board. See,
e.g., Reichhold Chemicals, 288 NLRB 69 (1988), enfd.
701 F.2d 172 (5th Cir. 1983) (proposed waiver of future
right to Board access is contrary to fundamental policy of
Act, despite literal scope, since waiver could have chill-
ing effect). However, that concern is not raised in the
severance-limited release situation. In that situation, the
employment relationship is being terminated and the
release is clearly tailored to that transaction, as opposed
to any future-arising claims.
Finally, we find support for our holding in cases where
the Board has suggested that there must be some flexibil-
ity in permitting employers at least to link proposals on
permissive subjects with proposals on mandatory sub-
jects. See, e.g., Dependable Storage, Inc., 328 NLRB
44, 50 (1999).
Accordingly, because the evidence fails to establish
that the Respondent insisted to impasse in bargaining that
severance pay for employees represented by Local 125
was conditioned on their agreement to sign a general
release, we dismiss this complaint allegation.
4. The Respondent contends that the judge’s recom-
mended remedy, which includes, inter alia, requirements
that the Respondent reestablish the projectionist position
and offer reinstatement to its unit employees, is overly
burdensome. We reject this contention. We note that the
remedy would not require the Respondent to make capi-
tal expenditures. Further, unlike Coronet Foods, Inc. v.
NLRB, 158 F.3d 782, 795–798 (1998) (Board abused its
discretion in ordering restoration of trucking depart-
ment), the instant remedy would require neither the im-
portation of expertise not now possessed nor the coordi-
nation of a host of activities that the Respondent lacks
the experience and expertise to effectively handle. Id. at
796. Nor is the Coronet court’s doubt as to whether and
how the terminated employees would benefit from the
restoration order applicable here. Id. at 797.
We nevertheless find, however, that the Respondent is
not precluded from presenting new evidence (i.e., facts
occurring after the close of hearing) on the restoration
issue at the compliance stage of this proceeding. See, e.g.,
Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Regal
Cinemas, Inc., Knoxville, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Delete paragraph 1(b) and reletter the subsequent
paragraph.
2. Delete paragraph 2(c) and reletter the subsequent
paragraphs.
3. Substitute the attached notices for those of the ad-
ministrative law judge (App. A requires no modifica-
tion).

CHAIRMAN HURTGEN, concurring in part.
1. Although I agree with my colleagues that the Re-
spondent unlawfully failed and refused to bargain with
the Union, I would not, as the judge did, analyze this
case under the rubric of Fibreboard v. NLRB, 379 U.S.
203 (1964), and Torrington Industries, 307 NLRB 809
(1992). In my view, this case is to be decided under the
test set forth in First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981). Respondent’s decision falls
within the third type of management decision described
in First National Maintenance.1 Thus, it had a direct
impact on employment, since (unit) jobs were elimi-
nated, but had as its focus the economic profitability (ef-
ficiency) of the enterprise.

9 The General Counsel excepts to the judge’s failure to make find-
ings with respect to the complaint allegation that the Respondent vio-
lated Sec. 8(a)(3) and (1) of the Act by eliminating the jobs of the pro-
jectionists represented by Local 370. We find that, assuming that the
evidence adduced on this point by the General Counsel is credited, that
evidence is insufficient to establish the violation. We therefore do not
find merit in the General Counsel’s exception.
1 The Court in First National Maintenance divided managerial deci-
sions into three categories: (1) decisions about, for example, advertis-
ing and promotion, product type and design, and financing arrange-
ments, having only an indirect and attenuated impact on the employ-
ment relationship; (2) other decisions, such as the order of succession
of layoffs and recalls, production quotas, and work rules, that are al-
most exclusively an aspect of the relationship between employer and
employee; and (3) decisions with a direct impact on employment, since
they result in the elimination of jobs, but whose focus is economic
profitability. Id. at 676–677.

REGAL CINEMAS 307
In such a case, bargaining is to be required if the benefit
for labor-management relations and the collective-
bargaining process outweighs the burden placed on the
conduct of the business. Id. at 674–680. That burden, in
the instant case, seems comparatively light. The Respon-
dent has not changed the scope and direction of its enter-
prise. It continues to show movies at the same facilities
and using the same equipment and techniques that it did
before it eliminated the dedicated projectionist position.
Although there was some new hiring, a good deal of the
unit work was apparently transferred to managers who
were already in place. And, as to the additionally hired
assistant managers, they were assigned, as a portion of
their jobs, the precise projectionist duties that the unit em-
ployees previously had performed. Further, there does not
appear to be any financial exigency that would have ren-
dered decisional bargaining especially burdensome here.
As to the benefits for the collective-bargaining process,
the Respondent contends that its decision to lay off projec-
tionists and reassign their work was not amenable to bar-
gaining, since there were no concessions the Union could
have offered that would have dissuaded the Respondent
from going ahead with its plans. I find that the Respon-
dent has not demonstrated that this is the case. The Union,
had it been given an opportunity to do so, could have pro-
posed some rearrangements of duties similar to those un-
dertaken at other theaters operated by the Respondent,
allowing at least some projectionists to retain jobs.2
2. I also agree with my colleagues that the Union re-
tained its bargaining rights with respect to the Respon-
dent’s decision to lay off projectionists and reassign their
work to nonunit personnel. To the extent that this conclu-
sion is based on an analysis of the management-rights
clause relied on by the Respondent, however, I would not,
as the judge did, apply the “clear and unmistakable” stan-
dard. I would, however, find that under a “contract cover-
age” analysis, the Respondent’s conduct was not privi-
leged. See NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir.
1993); Central Illinois Public Service Co., 326 NLRB 928,
935 fn. 23 (1998) (concurring in the finding that the re-
spondent unlawfully discontinued employee benefits dur-
ing a lockout because, under a “contract coverage” analy-

2 Respondent also contends that the decision was not a mandatory
subject because it assigned work to supervisory or managerial person-
nel rather than to employees. I do not reach the issue of whether these
persons are supervisors or managers. Assuming arguendo that they are,
I conclude that the transfer of unit work to supervisors and managers is
a mandatory subject.
sis, rather than a “waiver” analysis, the contract did not
privilege the respondent’s conduct).3

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to give the Union, Local
125, an opportunity to bargain collectively concerning
our decisions to lay off bargaining unit projectionists and
to transfer unit work to nonunit managers and assistant
managers before implementing those decisions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral changes made with re-
spect to the transfer of projectionist unit work to manag-
ers and assistant managers and, on request by the Local
Union, bargain collectively in good faith concerning our
decision to permanently lay off bargaining unit employ-
ees and to transfer bargaining unit work to managers and
assistant managers.
WE WILL within 14 days from the date of this Order of-
fer immediate and full reinstatement to all unit employ-
ees who were permanently laid off as of March 28, 1997
to their former positions or, if such positions no longer
exist, to substantially equivalent employment, without
prejudice to their seniority or to other rights and privi-
leges enjoyed by them.
3 In agreeing with the judge’s conclusion, I do not rely on his state-
ments to the effect that general contract language is necessarily unclear,
or on his reference, in buttressing his conclusion that the management-
rights clause did not unambiguously specify the Respondent’s inten-
tions, to the fact that in an earlier negotiation the Respondent had
agreed to a partial retention of the projectionist position.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
WE WILL make whole, with interest, all such laid-off
unit employees for any lost wages they may have suf-
fered as a result of the above-described unlawful unilat-
eral changes we made in the manner set forth in the rem-
edy section of the administrative law judge’s decision.

REGAL CINEMAS, INC.

APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT FAIL and refuse to give the Union, Local
364, an opportunity to bargain collectively concerning
our decisions to lay off bargaining unit projectionists and
to transfer unit work to nonunit managers and assistant
managers before implementing those decisions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral changes made with re-
spect to the transfer of projectionist unit work to manag-
ers and assistant managers and, on request by the Local
Union, bargain collectively in good faith concerning our
decision to permanently lay off bargaining unit employ-
ees and to transfer bargaining unit work to managers and
assistant managers.
WE WILL within 14 days from the date of this Order of-
fer immediate and full reinstatement to all unit employ-
ees who were permanently laid off as of October 12,
1997 to their former positions or, if such positions no
longer exist, to substantially equivalent employment,
without prejudice to their seniority or to other rights and
privileges enjoyed by them.
WE WILL make whole, with interest, all such laid-off
unit employees for any lost wages they may have suf-
fered as a result of the above-described unlawful unilat-
eral changes we made in the manner set forth in the rem-
edy section of the administrative law judge’s decision.

REGAL CINEMAS, INC.

Karen Itkin Roe, Esq., Joanne Mages, Esq., and Rufus L. Warr,
Esq., for the General Counsel.
Raymond L. Smith Jr., Esq., of Knoxville, Tennessee, for the
Respondent.
I. J. Gromfine, Esq. of Alexandria, Virginia, Paul T. Berkowitz,
Esq., of Chicago, Illinois, and Dale E. Short, Esq., of West-
lake, Ohio, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Richmond, Virginia, on November 19 and
20, 1998, in Fort Wayne, Indiana, on December 14 and 15,
1998, and in Cleveland, Ohio, on January 19 and 20, 1999.
Subsequent to an extension in the filing date all parties filed
briefs.1 All proceedings are based upon initial charges filed
April 23, 1997, in Case 25–CA–25322, November 26, 1997, in
Case 8–CA–29503, and November 28, 1997, in Case 5–CA–
27454 by Northern Indiana Theatrical Local No. 125, a/w In-
ternational Alliance of Theatrical Stage Employees and Moving
Picture Technicians, Artists & Allied Crafts of the United
States and Canada, AFL–CIO, Projectionists Local No. 364,
I.A.T.S.E. A/W International Alliance of Theatrical State Em-
ployees, Moving Picture Technicians, Artist and Allied Crafts
of the United States and Canada, AFL–CIO and Local 370,
International Alliance of Theatrical and Stage Employees, re-
spectively.
By order dated October 23, 1998, the several cases were
consolidated. The Regional Directors’ complaints, as amended,
allege that Respondent Regal Cinemas, Inc. of Knoxville, Ten-
nessee, has violated Section 8(a)(1) and (5) of the National
Labor Relations Act by failing and refusing to bargain in good
faith with the three union locals by refusing to bargain about its
decision to transfer work performed by projectionist unit em-
ployees to theater managers and assistant manager, by terminat-
ing all unit employees, and by demanding that union members
sign a release in order to receive severance pay.
Upon a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following

1 The Respondent’s unopposed motion to correct the transcript,
dated March 12, 1999, is granted and received into evidence as R. Exh.
19.

REGAL CINEMAS 309
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the operation of movie thea-
ters at various points throughout the United States. It has an-
nual gross revenues in excess of $500,000 and it annually pur-
chases and receives goods and materials valued in excess of
$10,000 directly from points outside Virginia, Indiana, and
Ohio. It admits that at all times material is and has been an
employer engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also admits
that the Union Locals are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent was founded in 1989 and since then has
grown national in scope, generally through the acquisition of
smaller, regional theater chains. A typical theater operates with
a staff compliment consisting of managers, assistant managers,
concessionists, box office employees, ushers, and projection-
ists. For the last 10 years, however, the trend for the Respon-
dent and the theater industry had been to convert to so-called
manager/operated theaters whereby managers and assistant
managers operate the projection equipment and thereby elimi-
nate the dedicated projectionist. This trend has been especially
true in theaters that have a smaller number of screens in each
facility.
The normal duties of the projectionists included: “threading”
the films through the projectors prior to the scheduled showing
time of a movie after the equipment has been tested and is func-
tioning properly; monitoring the equipment throughout the
showing of a movie to ensure that it is feeding correctly, is “in
frame” and in focus and that the sound equipment is operating
properly at appropriate levels; changing “trailers” to movies
when necessary and completing the appropriate paperwork;
“makeup” of four or more separate reels of new movies for
showing; performing the “breakdown” of older movies that are
no longer being shown at a particular theater and are scheduled
to be shipped out; and cleaning the projection equipment, as
well as the projection booth, and fixing minor problems such as
broken belts, loose splices, or when the film drifted out of focus
or burned out bulbs.
In 1995, the Respondent acquired eight theaters located in
the Richmond area from Neighborhood Entertainment, Inc.: the
Ridge; Willow Lawn; Cloverleaf; Genito; Spotsylvania; Crater;
Southpark; and Seminole. Local 370 has represented the pro-
jectionists’ employed in these Richmond theaters since 1921
and it had a collective-bargaining agreement covering the pro-
jectionist employees in the eight theaters effective by its terms
from 1991 through 1994.
The Respondent first entered the theater market in the Fort
Wayne area in 1993 with the purchase of the Quimby, George-
town, Holiday, and Coventry theaters previously owned by
Mallers-Spirou. The projectionists were presented by Local
125 and it and the Respondent thereafter entered into three
separate contracts that were effective from June 4, 1993, until
June 3, 1995. During the term of these contracts, Respondent
acquired additional theaters in the Fort Wayne area from Gen-
eral Cinemas and it and Local 125 entered into two additional
contracts covering these theaters effective January 21, 1994,
until June 3, 1995. None of the initial contracts entered into
between Local 125 and Respondent contained a management-
rights clause. Although these agreements were slated to expire
in 1995, the parties, by inaction, allowed the contracts to renew
themselves for 6 months and in January 1996, Respondent gave
notice that it was seeking to terminate the contracts.
In 1994 the Respondent purchased Montrose Movies from
National Theater Corporation and took over the operation of
five theaters in the Akron, Ohio area: the Montrose Movies 12
in Copley, Hudson Cinema 10, Hudson; Independence 10
Theater, Akron; Interstate 14 Theater, Green Township; and
Lake Cinema 8 Theater, Barberton. The projectionists were
represented by Local 364 covered by a collective-bargaining
agreement, which was effective from January 1, 1993, to No-
vember 30, 1995. The contract between the Union and Na-
tional contained a management-rights provision, which stated:

The Employer shall have the right to make reasonable rules
and regulations necessary for the conduct and management of
its business, and employees thereunder shall be required to
obey all such rules and regulations insofar as they do not con-
flict with the terms of this Agreement. It is understood the
projectionist(s) work under the direction of theater manage-
ment.

After Respondent purchased the Montrose Theater the Re-
spondent and the Union negotiated a collective-bargaining
agreement covering the projectionist at the Montrose effective
from September 1, 1994, to September 1, 1997, and did not
contain a management-rights clause.
Subsequently, Respondent opened the Interstate theater in
Green Township, Ohio, and the Hudson Cinema 10 in Hudson,
Ohio, and the Union became the collective-bargaining repre-
sentative of the projectionists at both theaters. In May 1995
Local 364 and Respondent began negotiations for a collective-
bargaining agreement to cover projectionists at the Interstate,
Hudson, and Montrose theaters, although the contract covering
Montrose was in effect at that time.
The contract was signed November 9, 1995, to be effective
from October 13, 1995, to October 12, 1997, that contained a
management-rights provision (art. V), however, during negotia-
tions for the contract there had been no discussion between the
parties pertaining to the management-rights provision.
After the Union and Respondent signed the 1995–1997 col-
lective-bargaining agreement, the Respondent opened the Inde-
pendence 10 Theater in Akron, and took over operation of Lake
Cinema 8 Theater from the City of Barberton. The Union be-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
came collective-bargaining representative of the projectionists
at the Independence 10 and on September 25 and October 3,
1996, the parties agreed to an addendum to the collective-
bargaining agreement covering these projectionists.
The contracts in effect between the Respondent and the sev-
eral Local Unions in 1997, contained general management-
rights clauses and in each instance, the following specific lan-
guage:

The Company shall have the right to introduce new or im-
proved work methods, facilities, equipment, machinery, proc-
esses and procedures of work and to change or eliminate ex-
isting methods, facilities, equipment, machinery, processes
and procedures or work and to automate. The Company
agrees to negotiate the effects of such decisions on the em-
ployees.

On January 16, 1997, Local 125 Business Representative
Robert Bakalar wrote to Michael Kivett, Respondent’s vice
president of operations, seeking to begin negotiations for a
successor collective-bargaining agreement for the one set to
expire on March 28, 1997.
On January 23, Executive Vice President Greg Dunn replied
that:

Regal Cinemas has decided to go manager/operator at the
theaters in question. Therefore, effective March 29, 1996, the
unit employees will be permanently laid off.

I look forward to meeting with you at your earliest conven-
ience to discuss the effects of this decision.

Bakalar then contacted the Union’s international president,
sought the assistance of special International Representative
Jack Lynch, and wrote to Dunn agreeing to meet. The Union
also presented its “thoughts” for a new 3-year agreement, how-
ever, when the parties met on February 10, Vice President
Levesque stated he was only authorized to discuss the effects of
going manager/operator and did not respond to the Union’s
offer to negotiate concessions. A similar meeting occurred on
February 19. On March 4 the Union wrote to the Respondent
requesting another meeting and proposing to agree to the auto-
matic bimonthly extension under that clause in the contract. On
March 12 the company responded stating that its decision to go
manager/operator was not negotiable, that time was running
short and that the Union should request a time to meet and con-
fer over the effects of the decision. The Union responded with
a suggestion for compromise, not termination, but agreed to
meet on March 21. The Respondent replied with a letter setting
out the conditions for meeting (most specifically no waiver of
its position), and requesting the Union’s acceptance of the con-
ditions. The Union declined to sign and when the parties met
no negotiations of any kind occurred. On March 27 the Re-
spondent gave the Union a severance pay proposal and the next
day the employees were terminated at the end of their shifts and
escorted from the theaters.
On July 21, 1997 (2.5 months prior to the expiration of its
agreement with Local 364), the Respondent notified the Union
that it intended to eliminate the projectionist position and re-
quested a negotiation relating to the effects of its decision. The
Union’s representative believed that this notification communi-
cated a nonnegotiable decision and that any attempt to change
this decision would have been futile. Subsequently, on August
7, Business Agent John Hetsch requested a meeting and sent a
letter to Vice President Dunn on August 25, also requesting a
meeting. On September 17, Vice President Levesque contacted
Hetsch acknowledging the difficulty in communication and on
September 19, counsel for the Union, contacted Levesque re-
questing an opportunity to meet. Finally on October 2, the
parties communicated by telephone and agreed to a meeting on
October 8. The Union attempted to negotiate a new agreement
retaining the projectionist position. The Respondent stated that
its decision to convert to manager/operator was final and that it
was only present at the meeting to negotiate the effects of its
decision. No bargaining occurred and on October 12, at the end
of their work shift, the employees were terminated and escorted
out.
On September 22, 1997, Local 370 Business Agent Henry
Berger wrote to Greg Dunn, Respondent’s executive vice presi-
dent of Regal Cinemas, noted that the 1995 contract was sched-
uled to expire in November, and requesting a meeting “to dis-
cuss a new contract.” That letter crossed in the mail with a
letter Vice President Levesque sent to Berger on September 16,
1997, in which the Respondent gave the 60-day notice of intent
to terminate the contract as of November 23, 1997 and stated:

Regal Cinemas has decided to go manager/operator at the
theaters in question. Therefore effective November 24, 1997,
the unit employees will be permanently laid off.

I look forward to meeting with you at your earliest conven-
ience to discuss the effects of the decision.

The parties met on October 29 in Richmond where the Union’s
attorney expressed the Union’s great displeasure at the Com-
pany’s unilateral decision to replace the projectionists with
other employees, and charged that what the Company had done
was illegal. The Respondent’s attorney made clear that the
Company was not willing to discuss the Company’s decision
and insisted that the sole purpose of the meeting, was to discuss
the effects of the decision—such as other jobs that might be
available and severance pay. There were no further meetings
and in an exchange of correspondence the Union could not
obtain any indication that the Company was willing to discuss
anything other than the effects of its decision to replace the
projectionists represented by the Union with managers and/or
assistant managers.
As of the end of their shifts on November 23, the Union pro-
jectionists in each of the five theaters covered by the collective-
bargaining agreement were terminated and escorted out of the
theaters.

REGAL CINEMAS 311
III. DISCUSSION
Here, the record shows that a few months before the expira-
tion of existing collective-bargaining agreements with three
separate projectionist Union Locals, the Respondent notified
them that it had made a decision to eliminate the unit position
and to perform the work function with manager/operators, that
it would bargain with them over only the effects of its decision
and that its decision would be effective at the end of the exist-
ing agreements on March 28, October 12, and November 23,
1997, respectively. In each instance, the Union Locals sought
to bargain over the decision itself but were rebuffed by the
Respondent’s insistence that it had the right to make this deci-
sion unilaterally.
Under normal circumstances it is an unfair labor practice if
an employer unilaterally modifies or repudiates the parties bar-
gaining agreement. Otherwise, a unilateral decision to end a
bargaining relationship by transferring or reassigning all work
performed by employees in the unit may be a mandatory sub-
ject of bargaining and therefore violative of the Act if the Un-
ion is not provided an opportunity to bargain (unless the em-
ployer’s decision was dictated by core entrepreneurial reasons),
see Torrington Industries, 307 NLRB 809 (1992); and Fibre-
board v. NLRB, 379 U.S. 203 (1964), cited therein.
A. The Employer’s Rationale
The Respondent contends that its decision to convert its in-
volved theaters to manager, assistant manager operated thea-
ters, and thereby eliminate the dedicated projectionists position,
was purely a management decision which effected a change in
the basic operations of its theaters and concerned the scope and
direction of the enterprise. It also urges that it was not moti-
vated by a desire to reduce labor costs and that even if the deci-
sion had the effect of reducing labor costs, the Union could not
have offered any labor cost concession that would have altered
the employer’s decision.
It states that over the last 10 years it has reevaluated opera-
tions in regard to how the Company staffs it theaters and di-
rected to capitalized on the automation of projection related
equipment by evaluating an existing theater’s equipment,
physical layout, and personnel to ascertain the ability to convert
the theater to manager operated. However, when the Respon-
dent has acquired other theater circuits which employ projec-
tionists, it has always been its custom to maintain the employ-
ment of the projectionists until other employment could be
arranged and in situations where the projectionists were union-
ized to abide by the existing collective-bargaining agreements
and generally entered into at least one collective-bargaining
agreement with the Union.
The subject of conversion to manager/operators has been
discussed as part of the negotiations of these past agreements
and in Richmond and Fort Wayne several smaller theaters
(generally with four screens) were converted by mutual agree-
ment and in Akron a second projectionist position at one theater
also was eliminated. Other theaters, generally those with the
most screens (and therefore more work for a projectionist),
retained a dedicated projectionist but at a cost to the unit em-
ployers in the form of wage concession of between $3.65 and
$6.75 an hour.
Each of the new collective-bargaining agreements also in-
cluded a management-rights clause (discussed further below),
however, there is no specific reference in that clause to the right
to convert to manager/operators and there is no evidence which
shows any discussions during negotiation which specifically
connected that clause with management’s other generalized
expressions of intentions or desires to expand its use of man-
ager/operators.
The Union concedes that over the years prior to 1995 there
have been technological developments which affected the work
of projectionists, making it possible for a single projectionist to
do what had required more than one projectionist in the past,
however, all such technological changes had occurred long
before 1995, and no pertinent technological developments oc-
curred between 1995 and 1998.
While some of the Respondent’s existing complement of
theater managers and assistant managers were trained and as-
sumed the projectionist work previously performed by unit
employees, the Respondent did hire additional employees (al-
though not necessarily on a quid pro quo basis), who are titled
assistant managers2 and who perform the projectionist duties as
well as certain other generalized duties with some elementary
supervisory responsibilities over other employees such as ush-
ers, and concession and box office workers. The Charging
Party contends that a review of payroll records discloses that
additional employees titled “Assistant Managers” have been
paid slightly more than the legal minimum wage ($5.15 an hour
in July 1997), and significantly less than the terminated union
projectionists had been receiving.3

2 By pleading dated March 29, 1999, the Respondent moved to file a
reply brief with an attached summary sheet in which it argues the pay-
roll records show numerous managers also left employment and that the
other parties analysis does not identify the different hours worked by
assistants. It then argues that if one 40-hour-a-week assistant is re-
placed by two 20-hour-a-week assistants, no new position is created,
however, it s own summary sheet fails to identify any such situations.
It also questions the increased cost calculations alleged in the other
briefs but agrees that does not mean to imply that cost “increased” as a
result of the change and states that many variables can contribute to
cost decreases in any particular month.
This reply brief was received after the preparation of my decision
was completed and I find that there is no need to modify my general-
ized conclusions that some new assistant managers have replaced pro-
jectionist although not necessarily on a quid pro quo basis. Otherwise,
however, I find that it would serve a useful purpose to have the Re-
spondent’s position on the other parties’ analysis of the payroll exhibits
as part of this record and the brief is hereby accepted for filing.
3 For example:
The Richmond area Ridge Theater in July of 1997 employed
two projectionists at $9.25 an hour, two assistant managers, one

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
B. The Obligation to Bargain
The Respondent urges that this case is governed by the deci-
sion of the Supreme Court in First National Maintenance Corp.
v. NLRB, 452 U.S. 666, 676–677 (1981), and the Board in Du-
buque Packing, Inc., 303 NLRB 386 (1991), both dealing with
plant relocation. I find, however, that in the instant case, we
are dealing with a situation in which the Employer has contin-
ued to operate the same business at the same locations and the
only change is in the identity of the employees doing the work.
Accordingly, I find that the line of cases touching on the ap-
proach of the Torrington Industries and Fibreboard cases, su-
pra, apply and that this decision should not turn on the Du-
buque or the National Maintenance analysis.
In particular, I find that the relatively recent decisions cited
by the Charging Parties and the General Counsel are control-
ling. In Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021 (1994), the Board concluded that the employer had a duty
to bargain regarding a decision to lay off some unit employees
and to transfer the work to nonunit employees when:

Because the case concerns the reassignment of unit work
rather than a plant relocation, Torrington Industries, supra,
cited by the judge is controlling. The Board in Torrington In-
dustries found that in cases factually similar to Fibreboard
Corp. v. NLRB, when virtually the only circumstance the em-
ployer has changed is the identity of the employees doing the
work, there is no need to apply the multilayered test of Du-
buque to determine whether the decision is subject to the
statutory duty to bargain because Fibreboard, supra, has al-
ready held that such decisions are mandatory subjects of bar-
gaining. As in Fibreboard, the Respondent’s assignment of

of who had a salary of $450 every 2 weeks and the other a salary
of $550 every 2 weeks, and a manager at a salary of about $500
per week. In July 1998, no one classified as a projectionist was
employed. Instead there were four assistant managers one of
whom had a salary of $600, a second had a salary of $520 every 2
weeks, the third an hourly rate of $6.25 an hour, and the fourth at
an hourly rate of $6.50 an hour, and a manager who had a salary
of about $520 a week.
The Genito Theater in July 1997 employed two projectionists
at $9.25 an hour, two assistant managers one at an hourly rate of
$5.25 an hour, and the other at a salary of $540 every 2 weeks,
and a manager at a salary of $1010 every 2 weeks. In July 1998
there was no one classified as a projectionist. Instead there were
four assistant managers two of whom had salaries of $640 every 2
weeks, a third at an hourly rate of $7 an hour, and the fourth at an
hourly rate of $7 an hour, and a manager at a salary of $980 every
2 weeks.
Under the 1996 Fort Wayne collective-bargaining agreement
unit employees working at the Conventry theater were paid $17
an hour, those unit employees at the Coldwater theater earned $12
an hour and unit employees working at the Holiday theater made
$9.75. In 1997 and 1998, the manager of the Coventry theater
earned between $490 and $540 a week, the manager of the Cold-
water theater earned between $570 and $615 a week, and the
manager of the Holiday theater earned between $415 and $460 a
week.
nonunit employees to deliver concrete batches at Speaker
Road involved the substitution of one group of workers for
another to perform the same work at the same plant under the
ultimate control of the same employer for lower wages.

The Geiger decision also cites Holmes & Narver, 309 NLRB
146 (1992), where the employer consolidated certain jobs in its
motor pool, resulting in some layoffs, without negotiating with
the union, which case also states:

The Respondent did no more than consolidated and change
the jobs in the motor pool—a small unit—and lay off a few
employees elsewhere. Indeed, the Respondent’s decision
might fairly be analogized to increasing the production quo-
tas of certain employees so that others may be laid off. We
therefore do not see the need of engaging in any extended
multistep analysis to determine whether the parties must
bargain over layoffs thus linked to work assignments. See,
e.g. St. John’s Hospital, 281 NLRB 1163, 1166, 1168
(1986), enfd. 825 F.2d 740 (3d Cir. 1987) (adding signifi-
cant new job duties, previously performed by others, to the
work of unit employees is a mandatory bargaining subject),
Cincinnati Enquirer, 279 NLRB 1023, 1031–1032 (1986)
(phasing out job duties by transferring the duties to others,
which resulted in elimination of unit position, is a manda-
tory subject of bargaining).

The Respondent asserts that its managers have merely added
projectionist duties to their other duties and that it is distin-
guishable from Geiger where one group of nonunit drivers took
over for unit drivers and where there also was a labor cost is-
sue. The record, however, tends to show that additional assis-
tant managers have been hired to replace, at least in part, the
terminated projectionist. Thus, the situation here is not merely
a case of existing managers assuming some additional duties.
As noted, the Respondent makes much of its claim that the
projectionist function was transferred to managers and assistant
managers who also perform supervisory functions. While it is
not necessary to decide the supervisory status of all these em-
ployees it otherwise appears that the assistant managers hired to
replace the unit projectionist are often young, low wage, part-
time students who, in their capacity as assistant managers have
some minimal, incidental, assignment, scheduling, and discipli-
nary functions and powers over ushers and box office and con-
cession employees that is exercised in a routine and preor-
dained way as professional judgment designed to get some
other work done in the time they are not otherwise occupied by
their projectionist duties. Accordingly, some assistant manag-
ers appear to be similar to charge nurses who do not exercise
the sort of independent judgment that would make them true
statutory supervisors, compare NLRB v. Grancare, Inc., 170
F.3d 362 (7th Cir. 1999).
In any event, the reclassification of or transfer of bargaining
unit work to managers or supervisors is a mandatory subject of

REGAL CINEMAS 313
bargaining where it has, as here on impact on bargaining unit
work, see Land O’Lakes, Inc., 299 NLRB 982 (1990). In this
case Administrative Law Judge John West, citing his Cincin-
nati Enquirer decision, supra, specifically addressed this issue.
See also University of Pittsburgh Medical Center, 325 NLRB
443 (1998), and Hampton House, 317 NLRB 1005 (1995),
where supervisors were hired (or promoted) to perform bar-
gaining unit work without first notifying and offering to bargain
with [the] union.
C. Waiver and the Management-Rights Clause
The Respondent has acknowledged that it has long term in-
tentions to convert its theaters to manager operated and it is
clear that in anticipation of its future actions, it proceeded to lay
the groundwork during its 1995–1996 period of contract nego-
tiations with its projectionist by negotiating the conversion of
some theaters while, at the same time, it covertly sought to
expand its options by the inclusion of management-rights
clauses in its new agreements. A review of the record, how-
ever, shows no specific discussions or tie in between the con-
tract clause and the subject of total conversion of unit positions
to non unit management positions and the resulting total elimi-
nation of the bargaining unit. The Respondent otherwise main-
tains that the agreements “expressly” cover the decision and
asserts that it:

inserted a new management-rights clause to clarify its belief
that it had the right to make the decision to convert its thea-
ters to manager operated theaters without negotiating with
the Union.

More specifically, it contends that the management-rights
clause gives it the right to:

introduce new or improved work methods. . . . processes and
procedures of work and to change or eliminate existing meth-
ods. . . . processes and procedures or work . . . .

and it otherwise argues that Local 364 failed to timely demand
bargaining and that in 1996 Local 125 waived its right to bar-
gain over the decision.
As reiterated by the Board in Dubuque Packing, supra:

It is well settled that the waiver of a statutory right will not be
inferred from general contractual provisions. Further, such
waivers must be clear and unmistakable. Generally worded
management-rights clauses will not be construed as waivers
of statutory bargaining rights.

In the Geiger Ready Mix case supra, the employer also argued
that the union waived its right to notice and an opportunity to
bargain over the decision and relied on the following provision
in its collective-bargaining agreement:

Section 1. The company shall have the right to manage the
business and direct the working force. Management of the
business includes the right to plan, direct, and control all op-
erations; to hire, assign employees to do work, and transfer
employees; to promote, demote, discipline, suspend, or dis-
charge employees for just cause; to relieve employees from
duty because of lack of work or any other legitimate reasons;
to introduce new and improved methods or facilities, or to
change existing methods or facilities and the right to make
and enforce reasonable rules implemented to carry to the
functions of management.

The Board, however, found that the union did not waive its
right to bargain about the employer’s decision to transfer unit
work and further found that above quoted management-rights
language, strikingly similar to that involved herein, was too
general to meet the clear and unmistakable standard governing
the waiver of statutory rights. Moreover, although the Respon-
dent insist that it consistently expressed its intentions to convert
“all” its facilities to manager/operator theaters, it does not and
apparently can not show that any specific discussions occurred
during negotiations that equated or tied in that “intention” with
its introduction of a management-rights clause.
Here, in fact, the Respondent adopted a management-rights
clause in the 1995 agreement with Local 370, a clause that had
been in a predecessor contract with Plitt Theaters, Inc. Howard
Rose (president of Local 370 when that management-rights pro-
vision was first negotiated), testified that the Union was told the
purpose was to enable the Company to update the equipment and
accommodate to technological changes in projection work and
that the Union had been assured that it was not intended to enable
the company to institute manager/operator arrangements, or to
otherwise replace the union projectionists with someone else
doing the projectionist work. Local 370 Business Agent Henry
Berger also testified that the management-rights provision in the
contract had been explained to the projectionists as making it
possible for the management to introduce new equipment, etc., in
the booth without having to negotiate with the Union about
whether the equipment should be installed. Otherwise, when the
Union thereafter negotiated with the Respondent, no discussion
occurred regarding the purpose of the clause as it might relate to
manager/operator staffing in place of projectionist. Yet, at the
same time the Respondent proceeded to insert this clause in the
agreements with the three local Unions, it also, negotiated and
accepted concessions by the Union, which recognized the exis-
tence of the units and the position of projectionist, especially in
theaters with over four screens. Accordingly, I find the language
of the clause “introduce new—methods—change or eliminate
existing methods—procedures or work” as it related to transfer of
unit employee (projectionist) duties to manager/operators does
not unambiguously specify its intentions. This is especially true
inasmuch as it then agreed to a partial retention of the projection-
ist position despite its earlier expressed intentions.
While there was no waiver of the Respondent’s right to pursue
its position in the future (see the discussion below in respect to
GC Exh. 26), there likewise was no clear and unmistakable
waiver on the part of the Union. An agreement among parties to
a severance pay provision does not constitute a waiver as to work
transfer outside the bargaining unit (and where the management-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
rights clause referred to introduction of new methods as well as
subcontracting work), see Reece Corp., 294 NLRB 448, 451
(1989), and here, there is no clear and unmistakable language in
the clause nor any evidence in the bargaining history that would
allow such on interpretation.
Here, as the several contracts approached their expiration
dates, the Respondent decided to unilaterally pursue its concept
of hiring new assistant managers with multiple duties including,
on a given day, general theater task involving opening, over-
sight, and closing in addition to the projectionist function. This
may be an effective solution to its apparent concern with the
matter of having projectionist whose work shift entails non
production hours but it does not appear to be only solution,
especially in multiplex theaters with many screens, and there-
fore I cannot find that it is not amendable to bargaining.
The Respondent’s solution also is a solution that addresses
work place efficiency, however, it is not a solution that arose as a
result of any technological development which affected the pro-
jectionist work. While several changes occurred well before
1995, and no pertinent technological developments occurred (or
were embraced) between 1995 and 1997, the same duties that the
union projectionists had been performing in the Respondent thea-
ters prior to the transfer are still required and performed.
Although it appears that technology may in the future effec-
tuate changes such as the elimination of “film” and the use of
satellite feed of a show directly to individual theaters (a process
apparently being introduced in Europe), this technology is not
currently being pursued in the United States and here there is
no basis for finding that the transfer of the same film work from
projectionist to manager/operators was founded on any new
technological development.
Lastly, it is noted that while the Respondent made no cost
studies and contends that the purpose of the conversion was to
“improve efficiency,” the effect of eliminating union projec-
tionists, and having the work done by managers assisted man-
agers who were already on the payroll or by new assistant man-
agers most of whom are paid little more than minimum wage
results in labor cost savings.
On February 8, 1996, when Local 125 was attempting to ne-
gotiate over the Respondent’s decision to go manager/operators
and to terminate their collective-bargaining agreement (which
had an automatic 60-day renewal provision but no manage-
ment-rights clause) and Vice President Dunn sent Local 125
Business Agent Earl McLachlan a letter which stated:

Although Regal Cinemas is not obligated to do so, we
would be willing to honor your request to sit down with you
and explore other possible alternatives under the following
conditions:
1. Any such meeting or discussions will not be con-
sidered and the Union will not claim that the company is
now obligated to bargain over those issues or the com-
pany’s decision to go manager/operator.
2. Any further meetings or discussions should not and
will not be construed as any extension of the Collective-
bargaining Agreements of which we have give notice of
termination; and
3. Any such meeting or discussion will not constitute
a waiver by the company of its rights to terminate those
Collective-bargaining Agreements.

If those conditions are acceptable, please sign below and re-
turn this document to my attention.

McLachlan testified that he signed and returned the docu-
ment as requested and that he understood that by signing for
Local 125 he was agreeing not to claim that the Company
didn’t have the right to go manager/operator. Dunn testified
that he wanted his waiver to protect the Respondent in going
ahead in converting to manager/operator.
The parties then agreed on a 1-year contract affecting four
theaters (with a “shared” booth at one six-screen theater where
both management and a projectionist split operating hours),
wage concessions (except for the Coventry theater where a 50-
cent increase was established because that complex had been
expanded by five additional screens) and the elimination of
several theaters from the agreement. McLachland credibly
testified that there was no discussion about the new contract
being a phase out contract and no discussion about the Respon-
dent being able to go manager/operator in the future without
prior discussions with the Union. However, once the 1-year
agreement was reached, there was a discussion as to who would
prepare the contract and the Respondent said that since it had
problems with unions and attorneys in the past, it had set up a
nonnegotiable format which would be utilized for the final
document. The final document then signed by the Union con-
tained the management-rights clause but there was no further
discussion.
Under these circumstances, I cannot find that the Union’s
execution of the February 1996 letter agreement constituted a
continuing waiver of any right to bargain in the future over
management decisions that would transfer projectionist work to
manager/operators. I further find that this agreement was for
the limited purpose of discussion at the meeting which immedi-
ately followed February 8, and the Union only waived any im-
mediate right to claim that the Respondent, by agreeing to that
meeting, listening to the Union’s proposal and negotiations
about its decision, was itself waiving any right to in the future
reassert its claim that it was not obligated to bargain over this
type of decision. No clarifying discussion was held and no
clarifying language was put into the agreement negotiated that
would unambiguously show that this was a phase out contract.
To the contrary, the Respondent held out the carrot that a suc-
cessor agreement 1 year hence would be negotiated at the inter-
national level. 4

4 The Union had suggested a 2-year contract but the Respondent re-
quest a 1-year term because it was talking to the International Union
concerning possible joint negotiations with the Virginia, Akron-

REGAL CINEMAS 315
In Colgate Palmolive Co., 323 NLRB 515, 516 (1997), the
Board agreed with my decision and amplified its position that a
union’s acquiescence in an employer’s past actions on a par-
ticular subject does not constitute a waiver of its right to bar-
gain over such changes for all time. Accordingly, I find that
any waiver by Local 125 in 1996, does not relieve the Respon-
dent of its obligation to bargain about its 1997 decision and, as
discussed above, no clear and unmistakable waiver otherwise
was shown by the inclusion of the generalized management-
rights clause in the 1996 contract.
The Respondent also points out that on July 21, 1997, the
Company notified Union Local 364 of its decision to convert to
manager/operator, that over 1 month later (on August 25) the
Union’s representative sent a letter to Dunn advising of their
desire to meet regarding that notice, and that from July 21, until
the last part of September, the Company’s efforts to contact the
Local went unresponded and it argues that the Union therefore
failed to make a timely demand for bargaining. Counsel for
Local 364 contacted the Respondent on September 19 and on
October 2 a meeting was arranged for October 8. As noted
above, at that meeting the Respondent reiterated its position
that the decision had been made and that it would only negoti-
ate on the effects of that decision.
The notice given by the Respondent to the Union indicated
an irrevocable intention to not give the Union any opportunity
to bargain about its decision. Thus, in light of the circum-
stances it is plain that in the fall of 1997 (after the Respondent
already had refused to bargain over its decision with the Fort
Wayne Local of the same International Union), a formal re-
quest to bargain about the decision would be futile, and the
Union’s failure to quickly respond to the Employer’s notice of
its decision is no defense to the employer’s unilateral action,
see Golden Bay Freight Lines, 267 NLRB 1073, 1080 (1983),
and cases cited therein. In any event, the Union did attempt to
negotiate several days before the effective date for the Respon-
dent’s unilateral action and, predictably, the Union’s efforts
were shown to have been futile. There was no economic crisis
alleged that would make timeliness a significant factor, see the
Golden Bay case, supra, and otherwise there existed a reason-
able window of opportunity for at least a few days of negotia-
tion after a Union demand was made. Accordingly, I find that
the facts in Reynolds Metal Co., 310 NLRB 995 (1993), where
there was no demand at all for bargaining (and where there was
no futility factor), cited by the Respondent, are inapposite and I
conclude that the Union did not waive its right to bargain over
the Respondent’s decision.
Under all these circumstances I find that in each instance, the
record supports the conclusion that no waiver occurred, that the
Respondent preempted the possibility that bargain might take
place over its unilateral decision to terminate all its unit em-

Cleveland, and Fort Wayne Locals and wanted the contracts to expire
in the same year.
ployees and transfer their work to manager/operators and that it
therefore failed to engage in bargaining on a mandatory subject
of bargaining in violation of Section 8(a)(1) and (5) of the Act,
as alleged.
D. Release as Condition to Severance Pay
At the last meeting between Local 125 and the Respondent,
the day before the Fort Wayne projectionists were terminated
on March 28, the Respondent presented its first proposal on
severance, the parties continued to discuss this issue and they
agreed to an extension of time until April 21, to consider Re-
spondent’s offer, as modified.
On April 18, Local 125 sent Respondent a letter accepting its
severance pay proposal and it also indicated that the acceptance
did not constitute a waiver of “all legal rights belonging to the
Union and to the individual employees.” In response, Levesque
sent a letter dated April 22, in which he claimed that Dunn had
clearly stated at the February 19 meeting that a release would
be required, asserted that it was the policy and practice of the
Respondent to obtain a release agreement in return for sever-
ance payments, and concluded that:

If the members are unwilling to enter into release agreements
to receive the severance benefits to which they are otherwise
entitled, then the Company will be unwilling to agree to sev-
erance under these conditions.

No further discussions regarding the severance issue were held.
The Respondent argues that there exists no obligation, con-
tractual or otherwise, which required the Company to provide
severance benefits to displaced workers and that it is appropri-
ate for an employer to request a release agreement in return for
severance pay, citing Gavie v. Stroh Brewery Co., 668 F.Supp.
608 (D.C.M.I. 1982). It also argues that the Board has recog-
nized an employer’s right to request release agreements in re-
turn for severance benefits, as long as the agreements do not
affect the employee’s right to access the Board concerning
incidents arising after execution of the agreements, citing Inde-
pendent Stave Co., 287 NLRB 740 (1987); First National Su-
permarkets, 302 NLRB 727 (1991); Phillips Pipe Line Co., 302
NLRB 732 (1991); and Hughes Christensen Co., 317 NLRB
633 (1995), cases in which the Board recognized the validity of
the releases given in exchange for “enhanced” severance bene-
fits. These cases, however, do not address the subject raised by
the General Counsel, namely; whether a release as a condition
of reaching an agreement on severance pay is a permissive
subject of bargaining and therefore a subject that the employee
could not insist upon.
Here, the effect of the Respondent’s decision was a manda-
tory subject of bargaining and the matter of severance pay is an
element of that effect. The General Counsel relies upon the
Board’s decision in Borden, Inc., 279 NLRB 396, 399 (1986),
which found:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
The relationship between the permissive and manda-
tory subjects of bargaining in this case does not exhibit the
interdependence required by the Board in Sea Bay Manor
Home. Obviously, severance pay can be paid pursuant to
a several agreement without the execution of a release. If
Respondent’s argument were accepted, it would mean that
a permissive subject of bargaining would become manda-
tory whenever it was presented together with a mandatory
subject. That is not the law.

Accordingly, the matter here is controlled by the rationale of
the Border case, supra, and I find that the Respondent’s insis-
tence on a general release as a condition for entering into a
severance agreement affecting the terminated unit employees
therefore constitutes a violation of Section 8(a)(1) and (5) of
the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Union Locals 370, 125, and 364 each are a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. At all times material Union Locals 370, 125, and 364
have been and are the exclusive representative of the respective
units for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and
conditions of employment.
4. By failing and refusing to give the Union an opportunity
to bargain collectively concerning decisions to lay off unit pro-
jectionists and to transfer unit work to nonunit managers and
assistant managers and by implementing those decisions,
March 28, October 13, and November 24, respectively, the
Respondents violated Section 8(a)(1) and (5) of the Act.
5. By demanding as a condition to a severance agreement
affecting employees in Union Local 125 whose jobs had been
eliminated that they sign a general release, Respondent has
engaged in and is engaging in an unfair labor practice in viola-
tion of Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent violated the Act by unilater-
ally assigning bargaining unit work to managers and assistant
managers without bargaining with the Union, it will be recom-
mended that Respondent rescind the unilateral change and,
henceforth, bargain with the Union concerning any contem-
plated changes in the wages, hours, working conditions, and
other terms and conditions of employment of bargaining unit
employees and that the Respondent restore the status quo ante
existing prior to its commission of unfair labor practices by
reestablishing the projectionist position in a manner consistent
with the level and manner of operation that existed prior to the
lay off and offer full and immediate reinstatement to all of its
bargaining unit employees to their former or substantially
equivalent positions, dismissing, if necessary, any temporary
employees or employees hired subsequently, without prejudice
to their seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of earnings they may
have suffered because of the discrimination practiced against
them by payment to them of a sum of money equal to that
which they normally would have earned form the date of the
discrimination to the date or reinstatement in accordance with
the method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).5
The Respondent also shall be required to bargain with Union
Local 125 over the severance issue without insisting on em-
ployee execution of a general release as a condition of the
agreement. Otherwise, it is not considered necessary for a
broad Order to be issued.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Regal Cinemas, Inc., Knoxville, Tennessee,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union, as the
exclusive representative of the employees in the bargaining
unit, by unilaterally transferring bargaining unit work which
had previously been done by projectionist without bargaining
with the Union.
(b) Demanding as a condition to a severance agreement af-
fecting employees whose jobs have been eliminated that such
employees sign a general release.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order rescind the
unilateral change made with respect to the transfer of projec-
tionist unit work to managers and assistant managers.
(b) On request by the respective Local Union, bargain col-
lectively in good faith concerning the decision to permanently
lay off bargaining unit employees and to transfer bargaining
unit work to managers and assistant managers.

5 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
6 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.

REGAL CINEMAS

317

(c) On request by Union Local 125 bargain over the sever-
ance pay aspect of the effect of its decision without insisting on
employee execution of a general release as a condition of
agreement.
(d) Within 14 days from the date of this Order offer imme-
diate and full reinstatement to all unit employees who were
permanently laid off as of March 28, October 12 and November
23, 1997, to their former positions or, if such positions no
longer exist, to substantially equivalent employment, without
prejudice to their seniority or to other rights and privileges
previously enjoyed by them.
(e) Make whole with interest all such laid-off unit employ-
ees for any lost wages which they may have suffered as a result
of the above described unlawful unilateral changes in the man-
ner set forth in the remedy section of the decision.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Within 14 days of service by the Region, post at its Fort
Wayne, Indiana, Akron, Ohio, and Richmond, Virginia thea-
ters, and mail to all former unit employees employed at these
theaters, copies of the attached notice marked “Appendix.”7
Copies of the notice, on forms provided by the Regional Direc-
tors for Region 5, 8, and 25 after being signed by the Respon-
dent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps the
Respondent has taken to comply.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT fail and refuse to give the Union Local 370 an
opportunity to bargain collectively concerning our decisions to
lay off bargaining unit projectionists and to transfer unit work
to nonunit managers and assistant managers before implement-
ing those decisions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind the unilateral changes made with respect to
the transfer of projectionist unit work to managers and assistant
managers, and on request by the Local Union, bargain collec-
tively in good faith concerning our decision to permanently lay
off bargaining unit employees and to transfer bargaining unit
work to managers and assistant managers.
WE WILL within 14 days from the date of this Order offer
immediate and full reinstatement to all unit employees who
were permanently laid off as of November 23, 1997 to their
former positions or, if such positions no longer exist, to sub-
stantially equivalent employment, without prejudice to their
seniority or to other rights and privileges enjoyed by them.
WE WILL make whole, with interest, all such laid-off unit
employees for any lost wages they may have suffered as a re-
sult of the above-described unlawful unilateral changes.

REGAL CINEMAS, INC.