Sameric Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1979

242 N.L.R.B. 1214 (N.L.R.B. 1979)

)DEC(ISIONS OF NA IONAL LABOR RELATIONS BOARD
Sameric Corporation and International Alliance of
Theatrical Stage Employees and Motion Picture
Operators of the United States and Canada, Local
418. Case 4 CA 9917
June 15, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPIIIY
Upon a charge filed on January 25, 1979, by the
International Alliance of Theatrical Stage Employees
and Motion Picture Operators of the United States
and Canada, L.ocal 418, herein called the Union, and
duly served on Sameric Corporation, herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 4, issued a complaint and notice of hearing on
March 9, 1979, against Respondent. The complaint
alleged, inter aclia, that on or about September 7,
1978, as a result of negotiations related to a new col-
lective-bargaining agreement, Respondent and the
Union reached agreement concerning rates of pay,
wages, and hours of employment and other terms and
conditions of employment for employees in the bar-
gaining unit and that since on or about September 8,
1978, Respondent has failed and refused, and contin-
ues to fail and refuse, to sign a written contract em-
bodying the terms of that agreement. The complaint
further alleged that by the above-described conduct
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) of the Act. Respondent has not filed
any answer to the complaint.
On April 9, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 18, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent failed to file a response to
the Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
RUI.ING ON IlHE MOTION FOR SUMMARY JUDI);MENT
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows.
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the repsondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge. shall be deemed to be admit-
ted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
In addition, the complaint and notice of hearing
served on Respondent specifically stated that unless
an answer was filed to the complaint within 10 days
from the service thereof, "all of the allegations in the
Complaint shall be deemed to be admitted to be true
and may be so found by the Board."
The time prescribed by Section 102.20 of the
Board's Rules and Regulations for the filing of an
answer to the complaint expired on March 22, 1979,
and Respondent has given no reason for its failure to
respond. Similarly, Respondent has not responded to
the Board's Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Accordingly, pursuant to Section 102.20
of the Board's Rules and Regulations, Series 8, as
amended, the allegations of the complaint are hereby
deemed to be admitted and are found to be true, and
we shall grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINIIN;S OF FA(CI
I. ItE BUSINESS OF RESPONI)ENT
Respondent Sameric Corporation is, and has been
at all times material herein, a corporation duly orga-
nized under, and existing by virtue of, the laws of the
Commonwealth of Pennsylvania and engaged in the
public presentation of motion pictures at various mo-
tion-picture theaters located in the Commonwealth of
Pennsylvania and the State of New Jersey. During
the past year Respondent had gross revenues exceed-
ing $500,000 and purchased, leased, or received films
and other merchandise and equipment valued in ex-
cess of $50,000 which originated outside the Com-
monwealth of Pennsylvania. On the basis of the fore-
going, we find that Respondent is, and has been at all
times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
242 NLRB No. 189
1214
the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOI.VED
International Alliance of Theatrical Stage Employ-
ees and Motion Picture Operators of the United
States and Canada, Local 418, is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
Richard Kane is, and has been at all times material
herein, the general manager of Respondent, an agent
of Respondent acting on its behalf, and also a super-
visor of Respondent within the meaning of Section
2(11) of the Act.
At all times material herein Respondent and the
Union agreed to the following collective-bargaining
unit, which constitutes a unit appropriate for collec-
tive-bargaining purposes within the meaning of Sec-
tion 9(b) of the Act:
All moving picture machine operators employed
at Respondent's Moorestown Theatre and
Cherry Hill Twin Theatre, but excluding all
other employees, guards, and supervisors as de-
fined in the Act.
At all times material herein the Union has been the
representative for the purposes of collective bargain-
ing of the employees in the unit described above and,
by virtue of Section 9(a) of the Act, has been, and is
now, the exclusive representative of all the employees
in said unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
On or about September 7, 1978, as a result of nego-
tiations relating to a new collective-bargaining con-
tract, Respondent and the Union reached agreement
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment for
the employees in the collective-bargaining unit de-
scribed above.
Since on or about September 8, 1978, Respondent
has failed and refused to sign a written contract em-
bodying the terms of that agreement.
Accordingly, we find that since September 8, 1978,
and at all times thereafter, Respondent has interfered
with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act and
that Respondent has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act. Further, we find that since September 8, 1978,
and at all times thereafter, Respondent has refused
and is refusing to bargain collectively with the exclu-
sive representative of its employees and that Respon-
SAMERIC CORP.
dent has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
IV. 1It1F EFFE('I OF I'HF UNFAIR LABOR PRACTIC(ES
UP()N ('()ONMER(C'
The activities of Respondent set tforth in section
III, above, occurring in connection with its operations
described in section 1. above, have a close, initmate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. IHE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
To remedy Respondent's violation of Section
8(a)(5) and (I) of the Act, we shall order that it ex-
ecute, sign, and give effect to all the terms and condi-
tions of said contract, or, if the Union does not re-
quest such execution, we shall order that, upon
request, Respondent bargain collectively in good faith
with the Union as the exclusive collective-bargaining
representative of its employees in the said appropriate
unit and, if an understanding is reached, that Respon-
dent embody such understanding in a signed con-
tract.
We shall further order that Respondent make
whole the employees in the unit found appropriate
herein for any loss of benefits they may have suffered
from September 8, 1978. by reason of Respondent's
failure to give effect to said contract, to the date of
compliance with the Order herein. All moneys to be
paid to such employees shall be the sum total of the
separate amounts accruing to each employee under
the categories of wages. overtime, holidays, vacations,
and miscellaneous, as computed in the manner pre-
scribed in Ogle Protection Senrvice, Inc., 183 NLRB
682, 683 (1970), with interest thereon to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).'
We shall also order that Respondent reimburse the
Union for all membership dues, if required by their
contract, which, since September 8, 1979. Respondent
has failed to withhold and transmit to the Union pur-
suant to signed dues-deduction authorizations and in
accordance with a checkoff provision of the collec-
tive-bargaining agreement, with interest computed
i See. generall. Irs Plumbhing & Heating (o, 138 NlRB 716 (1962).
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereon in the manner prescribed in Florida Steel
Corporation, supra.2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Sameric Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Alliance of Theatrical Stage Em-
ployees and Motion Picture Operators of the United
States and Canada, Local 418, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All moving-picture machine operators employed
at Respondent's Moorestown Theatre and Cherry
Hill Twin Theatre, but excluding all other employees,
guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. The above-named labor organization has been
at all times material herein, and now is, the exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 8, 1978, and
at all times thereafter, to sign a written contract em-
bodying the terms of the collective-bargaining agree-
ment reached between Respondent and the above-
named labor organization, Respondent has refused to
bargain collectively with said labor organization as
the exclusive bargaining representative of all the em-
ployees of Respondent in the appropriate unit and
thereby has engaged in and is engaging in unfair la-
bor practices within the meaning of Section 8(a)(5) of
the Act, as amended.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2 Such dues reimbursement shall not be applicable to employees who vol-
untarily paid their dues to the Union during the pertinent period. Further,
the amount of backpay for those employees who would now benefit from
having their employer remit their accrued dues to the Union without ever
having such amounts deducted from their pay and who did not themselves
pay dues during the period in question shall be reduced by the total amount,
if any, of the dues which would have been deducted from their pay pursuant
to signed dues authorizations and a checkoff provision in the collective-
bargaining agreement, had Respondent not faied to withhold and transmit
said dues to the Union. Ogle Protection Service, Inc. supra, at 683.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Sameric
Corporation, Moorestown and Cherry Hill, New Jer-
sey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with International Alliance of
Theatrical Stage Employees and Motion Picture Op-
erators of the United States and Canada, Local 418,
as the exclusive bargaining representative of all its
employees in the appropriate unit.
(b) Refusing to sign or execute, in writing, the writ-
ten agreement reached with the Union or any other
collective-bargaining representative of its employees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as exclusive representative of all
employees in the aforesaid appropriate unit by ex-
ecuting forthwith the agreed-upon contract and by
honoring and complying with the provisions thereof,
or, if the Union does not request such execution, bar-
gain collectively in good faith, upon request, with the
Union. as the exclusive representative of its employ-
ees in the unit found appropriate, and, if an under-
standing is reached, embody such understanding in a
signed contract. The appropriate bargaining unit is:
All moving picture machine operators employed
at Respondent's Moorestown Theatre and
Cherry Hill Twin Theatre, but excluding all
other employees, guards, and supervisors as de-
fined in the Act.
(b) Make whole the employees in the unit found
appropriate herein for any loss of benefits they may
have suffered from September 8, 1978, by reason of
Respondent's failure to execute and give effect to said
contract, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Reimburse the Union for all membership dues,
if provided by their contract, which, since September
8, 1978, Respondent has failed to withhold and trans-
mit to the Union pursuant to signed dues-deduction
authorizations and in accordance with the checkoff
provisions of the agreed-upon collective-bargaining
agreement, in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Post at its Moorestown and Cherry Hill, New
Jersey, places of business copies of the attached no-
1216
SAMERIC CORP.
tice marked "Appendix."3 Copies of said notice, on
forms provided by the Regional Director for Region
4, after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
I In the event that 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
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with International Alliance of Theatrical Stage
Employees and Moving Picture Operators of the
United States and Canada, Local 418, as the ex-
clusive bargaining representative of all our em-
ployees in the appropriate unit.
WE WILL NOT refuse to sign or execute, in writ-
ing, collective-bargaining agreements reached
with the Union or any other collective-bargain-
ing representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE 1'ILL, upon request of the aforesaid
Union, execute and give retroactive effect to the
collective-bargaining contract on which agree-
ment was reached on September 7, 1978. or, if
the Union does not request such execution, WE
WVILL bargain collectively in good faith, upon re-
quest, with the aforesaid Union as the exclusive
collective-bargaining representative of our em-
ployees in the unit found appropriate, with re-
spect to rates of pay, wages, hours, and other
terms and conditions of employment, and em-
body in an agreement any understanding
reached. The bargaining unit is:
All moving machine operators employed by
Respondent's Moorestown Theatre and
Cherry Hill Twin Theatre, but excluding all
other employees, guards, and supervisors as
defined in the Act.
WE WILL reimburse our employees in the unit
found appropriate herein for any loss of benefits
they may have suffered because we failed to sign.
execute, and give effect to such contract on Sep-
tember 8, 1978, and thereafter, with interest.
WE WILL reimburse said Union for all mem-
bership dues which, since September 8, 1978,
were authorized by our employees to be de-
ducted but which we failed to deduct and trans-
mit to said Union, with interest.
SAMERIC CORPORATION
1217