Senator Theatre, Capitol Hill Cinemas

National Labor Relations Board - Board Decisions

Jan 14, 1986

277 N.L.R.B. 1642 (N.L.R.B. 1986)

1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Gateway Theatre Corporation d/b/a Senator
Theatre, Capitol Hill Cinemas and Moving Pic-
ture Machine Operators' Protective Union,
Local 224, International Alliance Theatrical
Stage Employees and Moving Picture Machine
Operators of the United States and Canada.
Case 5-CA-16270
14 January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, BABSON, AND
STEPHENS
On 24 December 1984 Administrative Law
Judge Thomas A. Ricci issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a brief answering the General Coun-
sel's exceptions and supporting the Respondent's
cross-exceptions.
The National Labor Relations Board has delegat-
ed 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, and
conclusions only to the extent consistent with this
Decision and Order.
1. We agree with the judge that the General
Counsel did not carry her burden of proving by a
preponderance of the evidence that the Respondent
violated Section 8(a)(5) and (1) of the Act about 20
March 1984 by withdrawing recognition from the
Union. Although the judge did not specifically ad-
dress the related complaint allegation that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
about 20 March 1984 by unilaterally reducing the
wage rates of bargaining unit employees, we also
find no merit to that allegation. We reach these
conclusions for the following reasons.
As the judge noted, the parties met for the first
time 16 June 1983, immediately before the Re-
spondent commenced operation of the theaters and
before it hired any projectionists. The purpose of
the meeting was to secure the services of qualified
projectionists to work in the Respondent's theaters.
At the meeting, the Respondent's principals empha-
sized the tenuous nature of their business, noting
both that their ability to make a profit was in doubt
and that their ability to assume ownership of the
theaters and continue to operate them on a perma-
nent basis was dependent on the uncertain outcome
of bankruptcy proceedings involving the then
owner.' The union officials present were aware
that the Respondent had not previously engaged in
the business of operating movie theaters. At the 16
June meeting the parties agreed orally that the
Union would select and provide all the projection-
ists needed to staff the Respondent's theaters; that
if the Respondent had problems with any of the
projectionists it would contact the Union which
would attempt to resolve the problems with the
projectionists; and that the Respondent would pay
the projectionists certain hourly wages and premi-
um pay for work after midnight. They also agreed
that this agreement or arrangement was temporary
and that after the expiration of 6 months, if not
before, the Respondent was free to discontinue it
entirely.2 In this regard, the testimony of the Re-
spondent's chief spokesmen and president, Racken-
sperger, and the testimony of the Union's chief
spokesman, Business Agent Sanford, is mutually
corroborative on the essential points. Thus, Rack-
ensperger testified that the parties agreed their ar-
rangement would last through the end of 1983 (ap-
proximately 6 months). He further testified that
they agreed the Respondent would be free to ter-
minate entirely its relationship with the Union at
any time. 3 Sanford testified that the parties entered
into a temporary agreement that was to last
through the end of 1983 and that this was "more of
a trying out period than anything else." In this
connection, he testified that the Respondent "didn't
have to go with the Union . . . so this was a good
faith gesture on both our parts to show a willing-
ness to work together." Sanford then testified that
the Respondent "absolutely" had a right to "walk
away" for any reason at the end of 6 months.4
Following the 16 June meeting, pursuant to their
oral agreement, the Union referred projectionists to
the Respondent and the Respondent employed only
those projectionists. Also pursuant to the agree-
i The record reflects that the Respondent commenced operation of the
theaters pursuant to a contingent sales agreement with the then owner at
a time when the latter was in backruptcy proceedings
2 The General Counsel excepts to the judge's finding that at the hear-
ing the Respondent and the General Counsel agreed that the agreement
between the parties would be binding for only 6 months, after which the
Respondent would be free to run its business in its best interest We agree
with the General Counsel that the record reflects no such agreement be-
tween Respondent and the General Counsel. However. this error by the
judge does not affect our decision
3 Although Rackensperger's testimony is somewhat inconsistent with
respect to whether the Respondent had the right to terminate its relation-
ship with the Union at any time, or only after the end of 1983, we regard
this inconsistency as immaterial since the only issue to which the testimo-
ny relates is whether the Respondent had a right to terminate the rela-
tionship in early 1984
fl The only participants in the 16 June 1983 meeting other than Rack-
ensperger and Sanford were the Respondent's vice president, Ducey, and
the Union's president, Conner Dacey did not testify regarding the meet-
ing. The judge discredited Conner's testimony regarding the meeting. We
note, however, that contrary to the judge's finding, Conner testified that
the parties' oral agreement was a 6-month agreement
277 NLRB No. 186
SENATOR THEATRE
ment, although the Respondent had numerous dis-
ciplinary problems with projectionists, it took no
action against the employees but repeatedly com-
plained to the Union about them. The Respondent
also paid the projectionists the wages it had agreed
to pay. This relationship continued beyond the end
of 1983. As the judge found, the parties never en-
tered into a written agreement . On 20 March 1984,
a local wage and hour board hearing officer, in a
proceeding brought against the Respondent by a
former projectionist, Hughes, ruled that there was
no contract in existence between the Respondent
and the Union. The next day the Respondent ter-
minated its relationship with the Union by notify-
ing it that from then on the Respondent would hire
"independent" projectionists and asking the Union
to so inform the projectionists whom the Union
had previously referred to the Respondent's thea-
ters. The Respondent thereby terminated the serv-
ices of the projectionists referred by the Union. It
hired other projectionists and admittedly paid them
at a lower rate than it had paid the projectionists
referred by the Union.
Although we find that the facts surrounding the
formation, 9-month existence, and termination of
the relationship between the Respondent and the
Union are ambiguous with respect to the intended
nature of the relationship,5 we find that with re-
spect to the intended duration of the relationship,
the parties agreed at their 16 June 1983 meeting
that the Respondent would be free to "walk away"
after the expiration of approximately 6 months. Ac-
cordingly, we conclude that when the Respondent
terminated its relationship with the Union on 20
March 1984, it was exercising a right created by its
agreement with the Union and did not thereby vio-
late Section 8(a)(5) and (1) of the Act. Having law-
fully terminated its relationship with the Union, the
Repondent was free to alter terms and conditions
of employment without bargaining. It follows that
by lowering projectionists' wages after terminating
its relationship with the Union, the Respondent
breached no bargaining obligation and did not vio-
late Section 8(a)(5) and (1) of the Act.
2. Although we agree with the judge that the
Respondent did not violate Section 8(a)(5) and (1)
of the Act by dissolving its relationship with the
Union on 20 March 1984, we find, contrary to the
judge, that it violated Section 8(a)(3) and (1) by
5 In view of our finding, below, that the Respondent had a right, pur-
suant to its oral agreement with the Union , to terminate the relationship
between the parties following the expiration of 6 months after their June
1983 meeting , we find it unnecessary to decide whether the relationship
was a collective-bargaining relationship with the incident bargaining obli-
gations, or whether , as the judge found , it was a less formal and less tra-
ditional relationship whereby the Union was in effect the Respondent's
agent for hiring and disciplining employees
1643
discharging projectionists Dixon, Hunt, and Blair,
on that date.6 We further find merit in the General
Counsel's exceptions to the judge's failure to dis-
cuss the allegation that the Respondent, through its
vice president, Dacey, made coercive statements to
Dixon on 20 March, and failure to find that the Re-
spondent violated Section 8(a)(1) by making such
statements.'
As noted above, Hughes, a projectionist formerly
employed by the Respondent, brought proceedings
against the Respondent before the local goverment
wage and hour board which were the subject of a
hearing begun 5 March 1984 and continued on 19
March. The Respondent's president, Racken-
sperger, testified without contradiction that prior
to the commencement of the hearing the Union's
officials assured him they would "straighten
[Hughes] out" regarding the contentions Hughes
was making before the wage and hour board and
"everything would work out well"; that, as a result
of these assurances , Rackensperger went to the
hearing on 5 March without counsel; and that,
when the Union took Hughes' side at the hearing,
contending that there was a contract between the
Union and the Respondent that supported Hughes'
claim, Rackensperger became upset , feeling that
the Union had reneged on a commitment to the
Respondent. Rackensperger further testified with-
out contradiction that at the 19 March continuation
of the hearing, the wage and hour board's hearing
officer ruled that there was no contract between
the Respondent and the Union; that most of
Hughes' claims against the Respondent were with-
out merit; and that immediately thereafter, in view
of the ruling that the Respondent had no contract
with the Union, the Respondent decided to "termi-
nate the Union and the incompetent projectionists."
Rackensperger then wrote his letter to the Union,
5 The General Counsel excepts to the judge's failure to find that the
Respondent violated the Act by discharging projectionist Marken , as well
as Blair, Dixon, and Hunt. We find the General Counsel 's contentions
with respect to Marken without merit It is clear from the record that
Marken, who had been a regular, part -time projectionist at one of the Re-
spondent 's theaters , voluntarily left his position appioximately 6 weeks
before the Respondent dissolved its relationship with the Union and dis-
charged the other projectionists. Although Union Business Agent Aloupis
testified that the job for which Marken left his position was temporary,
and that after the temporary job ended, the Union planned to refer
Marken back to one of the Respondent's theaters, we find that this evi-
dence is insufficient to show that when the Respondent terminated its re-
lationship with the Union and discharged the other projectionists it there-
by took some action against Marken which could constitute discrimina-
tion within the meaning of Sec . 8(a)(3) of the Act
9 The complaint also alleged that the Respondent violated Sec 8(a)(1)
of the Act about 20 March 1984 by Theater Manager Alnassiri's condi-
tioning employees' reemployment on resignation from the Union We
agree with the judge's conclusion, based on his credibility findings, that
this allegation lacks merit Further, we find without merit the complaint
allegations that Alnassiri's and Dacey 's 20 March statements to employ-
ees violated Sec 8(a)(3) of the Act Accordingly, we dismiss these allega-
tions of the complaint
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dated 20 March , in which he announced that the
Respondent thereafter would hire "independent"
projectionists , and asked the Union to notify Blair,
Dixon , and Hunt , as well as any other projection-
ists whom the Union was planning to refer, not to
report for work at the Respondent 's theaters. It is
undisputed that Rackensperger read this letter to
one or more union officials on 20 March.
On the evening of 20 March , projectionist
Dixon-apparently not having heard of the Re-
spondent's action-reported for his scheduled shift.
According to Dixon 's uncontroverted testimony,
he was met outside the theater by the Respondent's
vice president, Dacey, who asked Dixon why he
was there . Dacey then asked Dixon whether the
Union had not told him that he no longer worked
at the theater . Dixon replied in the negative. Dacey
then said to Dixon , "Due to your union brother,
Mr. Jim Hughes , you no longer have a job," and
then said , "You and Mr. Hunt are two good people
.... I could use 'you outside the union ." Dacey's
statements to Dixon indicate both that the Re-
spondent conditioned Dixon 's and Hunt 's reem-
ployment on their resignation from, or disassocia-
tion with , the Union , and that the Respondent's de-
cision to discharge the projectionists was rooted in
its hostility toward the Union and its members.
Clearly, such statements had a tendency to restrain
and coerce Dixon in the exercise of his statutorily
protected rights. Accordingly , we find that the Re-
spondent violated Section 8(a)(1) of the Act by
Dacey 's 20 March 1984 statements of employee
Dixon.
Regarding the allegation that the Respondent
violated Section 8(a)(3) and ( 1) of the Act by dis-
criminatorily discharging Dixon, Hunt , and Blair,
we find that the General Counsel made out a prima
facie case by presenting the evidence that the three
employees were discharged and by presenting the
evidence of an antiunion motive behind the dis-
charge contained in Dacey 's statements to Dixon.
This finding is further supported by the statement
in the Respondent 's 20 March letter to the Union
that from then on the Respondent would hire "in-
dependent" projectionists.
Having found that the General Counsel made
out a prima facie case that the discharge of Dixon,
Hunt , and Blair violated the Act , we must deter-
mine whether the Respondent successfully carried
its burden of establishing that the employees would
have been discharged irrespective of any antiunion
considerations.8 At the hearing the Respondent
8 See Wright Line , 251 NLRB 1083 (1980), NLRB v. Transportation
Management Corp, 462 U S. 393 (1983)
presented evidence of alleged misconduct by Dixon
and Blair . The judge, relying on this evidence,
found that the Respondent had presented a suffi-
cient "just cause" defense to the allegation that it
unlawfully discharged the two employees . We dis-
agree with the judge and find that the Respondent
has not met its burden in this regard.
The judge found , based partly on credibility res-
olutions, that Dixon and Blair each repeatedly vio-
lated certain work rules of the Respondent.9 The
record shows that Blair 's and Dixon 's infractions of
the rules began many months before they were dis-
charged ; that the Respondent complained to the
Union about these infractions; that the theater-man-
ager admonished Blair about his infractions; and
that the Respondent asked the Union to "repri-
mand" Dixon about his. However , the record
shows that at no time prior to the 20 March dis-
charge of the employees did the Respondent take
any stronger action against them or request that
the Union do so.
That Blair 's and Dixon's repeated infractions of
the Respondent's rules would give it adequate
cause to discharge or otherwise discipline them we
have no doubt . However, the Respondent tolerated
their infractions for months without taking action
against them and without warning them of possible
discharge for their conduct , and did not require or
insist that the Union take action . Accordingly, and
in view of the above statements of the Respond-
ent's agents Dacey and Rackensperger , which only
referred to antiunion considerations as reason for
the discharge of the employees , we conclude that
the Respondent has failed to establish that it in any
event would have discharged the employees based
on its asserted concerns over the employees' con-
duct and performance.
Furthermore , as the judge found , the Respondent
had no complaint about the performance of projec-
tionist Hunt. Rather, its defense with respect to
Hunt was that it had offered to retain him. The
judge found, crediting the Respondent 's president,
Rackensperger , that Rackensperger made an offer
to keep Hunt on as a projectionist about 3 days
after the 20 March dissolution of the relationship
with the Union and discharge of employees. Hunt
refused the offer on the ground that, due to his
longtime membership in the Union, he would not
cross the Union 's picket line.10 The Respondent's
9 For example , the judge found that Blair often left the projection
booth while a film was running to visit a nearby store to buy lottery tick-
ets, and that Dixon often had unauthorized visitors in the booth with him
while on duty.
10 The record is silent regarding the nature and duration of any picket-
ing activity by the Union
SENATOR THEATRE
20 March letter clearly and unmistakably communi-
cated to the Union that the Respondent , that day,
had terminated the services of Hunt as well as the
services of Dixon and Blair . That a few days later
the Respondent offered to put Hunt back to work
does not detract from the fact that it previously
had discharged him. Rackensperger 's offer to Hunt
was not , as the judge found, an offer to keep him
In his previous position , but, instead , an offer to
rehire him. Accordingly, we find that the Respond-
ent in fact discharged Hunt and has presented no
valid defense for doing so. Given the evidence of
an antiunion motivation for discharging all three
projectionists, we find that Hunt, like Dixon and
Blair, was discharged because of the Respondent's
hostility toward the Union - 111 We therefore con-
clude that the Respondent 's discharge of projec-
tionists Dixon, Hunt , and Blair on 20 March 1984
violated Section 8(3) and ( 1) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily dis-
charged three employees, it must offer them rein-
statement and make them whole for any loss of
earnings and other benefits, computed on a quarter-
ly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent, the Gateway Theatre Corporation
d/b/a Senator Theatre, Capitol Hill Cinemas,
Lanham, Maryland, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Making statements to employees to the effect
that they have been discharged because of the
union activities or union affiliations of fellow em-
ployees.
II In concluding that the Respondent unlawfully discharged the pro-
jectionists, we note that the Union had referred these employees to the
Respondent the previous summer These individuals were not mere tem-
poiary employees referred on a day-to-day basis Rather, by 20 March,
the projectionists enjoyed stable employment positions with the Respond-
ent They worked at specified locations and shifts on a regular basis, and
had done so for substantial periods of time. In these circumstances, the
Respondent 's discharge of the projectionists was not merely an incident
of its lawful termination of its relationship with the Union Instead, it
constituted unlawful discrimination against the projectionists because of
their prior union referral and their union membership
1645
(b) Making statements to employees to the effect
that employees' reemployment is conditioned upon
their abandonment of the Moving Picture Machine
Operators' Protective Union, Local 224, Interna-
tional Alliance Theatrical Stage Employees and
Moving Picture Machine Operators of the United
States and Canada, or any other union.
(c) Discharging or otherwise discriminating
against employees because of their membership in,
activities on behalf of, or affiliation with the above-
named labor organization, or any other union.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Willie Dixon, Harold Blair, and Gar-
field Hunt immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision.
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.
(d) Post at its facilities in Washington, D.C.,
copies of the attached notice marked "Appen-
dix."12 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous 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.
12 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 Nation-
al 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 "
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that those portions of
the complaint alleging that the Respondent violated
Section 8(a)(5) and ( 1) by withdrawing recognition
of the Union as the exclusive bargaining represent-
ative of certain of its employees and by unilaterally
changing terms of employment is dismissed.
APPENDIX
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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT make statements to our employees
to the effect that they have been discharged be-
cause of the union activities or union affiliations of
fellow employees.
WE WILL NOT make statements to our employees
to the effect that their reemployment is conditioned
upon their abandonment of the Moving Picture
Machine Operators' Protective Union, Local 224,
International Alliance TheatricalStage Employees
and Moving Picture Machine Operators of the
United States and Canada , or any other union.
WE WILL NOT discharge or otherwise discrimi-
nate against any of our employees because of their
membership in, activities on behalf of, or affiliation
with ' the above-named labor organization, or any
other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Willie Dixon , Harold Blair, and
Garfield Hunt immediate and full reinstatement to
their former jobs or , if those jobs no longer exist,
to substantially equivalent positions , without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits
resulting from their discharge , less any net interim
earnings , plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
THE GATEWAY THEATRE CORPORA-
TION D/B/A SENATOR THEATRE,
CAPITOL HILL CINEMAS
Joseph J. Baniszewski, Esq., and Edward R. Noona, Esq.,
for the General Counsel.
Lawrence T. Zimmerman, Esq. (Zimmerman , Semler &
Pritzker), of Washington, D.C., for the Respondent.
William W. Osborne, Jr., Esq., and Elizabeth Mahoney,
Esq. (Berns, Axelrod & Osborne, P.C.), of Washington,
D.C., for the Union.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, `Administrative Law Judge. A hear-
ing in this proceeding was held on September 18, 19, and
20, 1984 , on complaint of the General Counsel against
the Gateway Theatre Corporation d/b/a Senator Thea-
tre, Capitol Hill Cinemas, at Washington, D.C. The com-
plaint issued on June 25 , 1984, on a charge filed on
March 26, 1984, by Moving Picture Machine Operators'
Protective Union, Local 224, International Alliance The-
atrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada (the Union or
the Charging Party). The issues presented are whether
the Respondent unlawfully refused to bargain with the
Union in violation of Section 8(a)(5) of the Act and
whether it discharged four employees in violation of
Section 8(aX3). Briefs were filed by all parties.
On the entire record, and from my observation of the
witnesses , I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Maryland corporation, is engaged
in the retail operation of theatres exhibiting motion pic-
tures. During the 12-month period ending June 1984, in
the course of its business , the Respondent derived gross
revenues in excess of $500 ,000. During the same period it
purchased and received at its theatres located in the Dis-
trict of Columbia products , goods, and materials valued
in excess of $5000 directly from points located outside
the District of Columbia. I find that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
SENATOR THEATRE
in. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Case in Brief
For some years Don King, an individual, operated a
number of theatres-moving picture houses-in the Dis-
trict of Columbia. In 1982 King went into bankruptcy.
Another company, Fremar Corporation, also called KB,
took over the running of three of the theatres--what
were called Town Theatre, Senator Theatre, and Capitol
Hill Cinemas, by agreement with the creditors and with
the temporary approval of the bankruptcy court. The
Fremar Company did poorly, and in June 1983 another
company, called Gateway Theatre Corporation, decided
to try to operate the three theatres mentioned with the
hope that it might help Don King to avoid a complete
loss in the bankruptcy proceeding. Robert Racken-
sperger and Charles Dacey, the owners of the Gateway
Company, and old-time friends of King, had never been
in the business of running or operating moving picture
houses. Their business had long been the leasing of films
from the producers to many moving picture operating
companies.
With no experience in the actual operation of moving
picture houses, Rackensperger and Dacey realized they
had a problem in obtaining competent staffs to run them.
King had run a unionized business, insofar as its projec-
tionists were concerned. The Fremar Company ran these
three theatres nonunion, and this may have been a reason
for its failure; perhaps its prc jectionists had not been ade-
quately qualified. Rackensperger spoke to a number of
his friends in the moving picture industry and the sug-
gestion arose that he might get in touch with Local 224
of the Moving Picture Machine Operators Union. When
the Union heard of this, naturally, it had an interest in
the possibility of finding work for some of its members.
However it came about, Rackensperger and Dacey met
with James Sanford, the business agent of Local 224 on
June 16, 1983, to talk over the possibilities.
It is what was said at this conference, what the Union
agents and the company people decided to do to further
their respective interests, that goes to the heart of this
case now being considered. Did they negotiate and agree
to be bound by a collective-bargaining agreement in the
classic sense, as the General Counsel alleges? The entire
case involves the projectionists, and only them. There
were no such employees working for the Gateway Com-
pany, now the Respondent, that day. Nobody was hired
until the following day, when the Union picked those of
its members it thought met the qualification requirements
demanded by the Employer. Can there be a collective-
bargaining contract made, and be binding on the parties,
before any employees are hired? This is not the construc-
tion industry. Or did the parties make a temporary "ar-
rangement," as both Rackensperger and Business Agent
Sanford testified, the principal speakers that day, that the
Union would do the hiring, would supervise the per-
formance of the projectionists on the job, would "sched-
ule" their hours of work, and would see to it that any
failings or weaknesses in the projectionists' work per-
formance was corrected-in short, that it would take the
responsibility to see to it that the projectionists' booths in
each of the three theatres was always adequately staffed?
1647
One thing both the General Counsel and Rackensperger
agreed on at the hearing, is that the parties very clearly
decided "the agreement," whatever its nature, would be
binding for 6 months only, and that thereafter the Re-
spondent would be free to run its business in its best in-
terest.
Only one projectionist worked in each of the, three
theatres on any given day, but two men were assigned
by the Union to each of the three theatres, one 5 days a
week and one a part-timer, 2 days a week. At most,
therefore, there were six employees as a total group in
what the General Counsel now calls the appropriate unit.
One of the theatres was closed permanently in January
1984. Thereafter there were only four projectionists at
work altogether at any given time. Between June 17,
1983, the day the theatres were opened to the public by
the Respondent, and March 19, 1984, when the Compa-
ny chose to terminate the "agreement" with the Union, a
total of 15 projectionists worked in these theatres.
Another aspect of the arrangement made in June was
that if the Company had any' complaints about the work
performance of any of the projectionists, it would bring
these complaints to the Union, and the Union,, acting
through its business agent , would do something about
them, would straighten out the misbehaving or incompe-
tent employees. And during the period in question there
were many complaints, of many kinds, which Racken-
sperger brought to the attention of Sanford, both in writ-
ing and orally. The union agent took steps to remedy
some of these complaints, at least, but matters did not
improve as time passed. Little by little Rackensperger
became impatient, and what broke the camel's back was
an incident in March, when the Union, then being run by
another business agent after Sanford was replaced, after
agreeing to support the Company's position in its criti-
cism of a very recalcitrant projectionist, switched sides
at the last minute and sided against the Company. With
this as the catalyst, the Company exercised its right to
terminate the entire agreement and told the Union to
stop "scheduling" employees on its behalf. It decided to
hire projectionists itself.
The complaint alleges that because it refused to recog-
nize the Union as exclusive representative of its employ-
ees after the old agreement had been terminated and the
old employees had all left, the Respondent violated Sec-
tion 8(a)(5) of the Act. It also alleges that by causing
three "scheduled" employees to work the evening of
March 20, the Respondent discriminated against them in
violation of Section 8(a)(3). There is a fourth individual
named in the complaint, Myles Marken, also said to have
been discharged illegally on March 20. That man volun-
tarily left his job at this theatre over a month before
March 19 to accept a projectionist's job in the National
Geographic Museum, a position which he liked better.
Why his name is in the complaint, I do not understand. I
will not refer to him again.
B. The Evidence, Analysis, and Conclusion
If this case is viewed from only one side a certain pic-
ture emerges, one which makes issuance of the complaint
appear as a reasonable act by the General Counsel.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Rackensperger and Sanford talked on June 16,
among the things they discussed was the hourly rate to
be paid the projectionists. The Union asked for $8 or
$7.50 per hour , apparently the rate paid by other theatres
in the area where the Union has contracts covering such
employees. The Company counteroffered $5 per hour.
After some talk, agreement was reached to pay $6 per
hour at two of the theatres and $6.25 per hour at the
third . The men also talked about some other pinpointed
items in the pay arrangement , and reached accord as to
premium pay for after midnight work. There were, of
course, many other details of the employer -employee re-
lationship which were not discussed at the time, and a
few which were mentioned but where no definitive con-
ditions were fixed.
Sanford testified , in conclusionary language, that
Rackensperger agreed to all the terms of a contract
which the Union had in effect with the original owner of
the theatres , Don King , back in 1973. He had nothing in
writing with him while they talked, and in'fact showed
nothing in writing to the company representatives at any
time. No one took notes during that meeting. As he
spoke-at the hearing in this case-about the 10-year-old
King contract, Sanford made mention of some other de-
tailed items , such as sick leave, holiday pay , shift guaran-
tee, 15-minute prep-time, etc. He was generally recalling
items in an old contract, but his testimony will not prove
that the Company that day, contrary to Rackensperger's
testimony , actually negotiated and agreed to each and
every item about which Sanford spoke at the hearing.
And the testimony of Union President Jerry Conner,
who was also present but did not do much talking, I do
not believe at all. He said there was no talk about the
Union obligating itself to procure competent projection-
ists, and about any 6-month time period. These two facts
are the clearest of all on this record. But what best
proves there was no agreement on the details now listed
in the General Counsel's brief is the undisputed fact that
time and again the Company kept calling Sanford to dis-
pute and to try to reach agreement on one claim after
another by the successive employees about` these very
same conditions of employment.
This proposal and counterproposal , this give and take
in the talking that went on , was certainly bargaining in
the usual sense . At that point the union agent was speak-
ing on behalf of his members, arguing their interests
against that of the-Employer. True, there were no em-
ployees in existence at that moment , but that it was a
collective-bargaining process that went on, albeit only in
part, cannot be denied. It is these details, taken out of
context from the record as a whole, on which the Gener-
al Counsel relies for his assertion that the Respondent on
June 16 simply extended exclusive recognition to the
Union and made a binding collective-bargaining agree-
ment with it. Since this is all that happened, the argu-
ment goes, the Respondent was not free, under Board
law, to withdraw recognition at will 8 months later. -
There are other factual assertions, also advanced by
the General Counsel in support of the complaint, which
are not proved by the, record evidence. The principal
one is that the Respondent agreed, on June 16, to be
bound by a collective-bargaining contract between the
Union and the King Company, which, according to the
General Counsel, was in effect when that Company went
into bankruptcy. In proof, he offered copies of a contract
in effect between the Union and the KB Company for
the period 1970 to 1973, more than 10 years before the
events that gave rise to this case. Sanford admitted nei-
ther he nor anyone on behalf of the Union ever showed
a copy of that old agreement to a representative of the
Respondent. It is also a fact no contract, of any kind,
was ever signed between these parties . Indeed, no writ-
ten agreement was ever offered to the Company until
after the termination of the temporary agreement
reached on June 1983. What the General Counsel really
is saying is that because a few of the conditions of em-
ployment which this Company agreed to parallel some
of those practices between King and the Union, it fol-
lows that this Company agreed to all of the old provi-
sions in the King contract of 1970. And the fact, clear as
can be, that the major element of any collective-bargain-
ing agreement-the hourly rate of pay-did not even
begin to compare with the old rate King used to pay is
conveniently ignored. And finally, the General Counsel
said , on the record, there is no successorship contention
advanced here between the King Company and the Re-
spondent. In sum, there simply is no proof the Respond-
ent ever agreed to anything but what the parties talked
about when they met and made their basic agreement in
June 1983.
We come to the pertinent facts which dictate dismissal
of the complaint in its entirety: The critical phrase used
during June 16, as both Rackensperger and Sanford re-
peatedly testified, was that the Union would "schedule"
the projectionists who were to work at the three thea-
tres. This did not mean that the Respondent would look
around and hire them, and that the Union would then set
their hours of work or assignments . It meant-and noth-
ing could be clearer 'on this record-that the Union
would decide who was to work on any given day. The
reason for this agreement is clear ; the Company was in-
terested first and foremost in the hiring of skilled projec-
tionists; it did not know where to find them, and the
Union took on the responsibility of seeing to it that only
competent men came to work and this is exactly what
happened all the time. Employees came and went-15 of
them filling only six jobs. And always it was the Union
which decided who would replace a projectionist who
left the Company, whatever the reason. In fact, the
Company did not even know who would be working at
any particular theatre on any given day. What better
proof of this reality than the fact that when it decided to
terminate the agreement, it listed only three men as in-
cumbents of the four jobs then being filled. One man had
voluntarily left and the Company did not yet know who
was to replace him. The reason, of course, was because
the Union did the hiring, and not the Employer itself.
Under a collective-bargaining agreement , as that con-
cept has long been conceived under this statute, it is the
employer who does the hiring and the union which
speaks on behalf of the employees vis-a-vis the employer.
Here, instead, it was the Union, acting as hiring agent for
the Employer, which exercised the principal responsibil-
SENATOR THEATRE
ity of a supervisor as defined in the Act-hiring and
firing. The truth is that the agreement made in this case
was more comparable to the usual one between a large
manufacturing company and a maintenance company,
which contracts to supply the necessary cleaning, repair,
security, etc., functions for the building which the em-
ployer does not care to become involved in. Just as the
General Counsel advances an out-of-context picture
when he says there was a collective-bargaining agree-
ment between the parties, here the Respondent urges a
distorted view of the facts When it says, in its brief, that
the projectionists were employees of the Union, and not
of the Company. It is simply not true. They were on the
Company's payroll, they received fringe benefits from it,
their taxes were deducted by the Company, etc. No
more would employees who are hired by a company's
personnel department be deemed employees of the per-
sonnel director.
And yet the analogy to a contractor becomes undispu-
table when the second major part of the agreement
reached is considered. The Respondent was to bring to
the Union's attention any complaints it might have about
the work performance of any of the projectionists sent to
work by the Union. Again, this fact of the agreement be-
tween the parties is absolutely proven on this record, for
both the men who made the deal-Rackensperger and
Sanford-repeatedly said so plainly at the hearing. But if
the Union took on the responsibility to check the per-
formance of the projectionist, and to take the necessary
steps to see that they mended their ways, was the Union
in any position different from that of an ordinary manag-
ing supervisor, or managing agent? Can such an agree-
ment conceivably be called a collective-bargaining con-
tract, as argued by the General Counsel?
On the record in its entirety, the basic theory of com-
plaint is twofold. On the one hand it says the evidence
proves recognition by the Respondent of the Union as
exclusive bargaining agent and that, therefore, regardless
of anything else, withdrawal of such recognition, plus
unilateral action in hiring projectionists at a rate of pay
different from that assertedly established in the union
contract, was an automatic violation of the statute. At
the same time it is argued the record also proves that the
Respondent's reason for terminating the agreement with
the Union, and getting rid of the men hired by the
Union, was a' fundamental antiunion animus . The perti-
nent facts, as to what happened, in reality completely de-
stroy both of these arguments.
There was continuous testimony of incompetence, mis-
behavior, and rules violations by one projectionist after
another throughout the period June 1983 to early 1984.
It is not really contradicted, but more significant, much
of it is corroborated by the union agents and even in
some instances by the employees themselves.
Rackensperger testified that his problems with the pro-
jectionists started soon after the theatres opened. The un-
derstanding was that the Union would schedule two men
at each theatre, a full-timer and a part-timer. A man
named Hughes put in a timecard showing 60 hours of
work: performed in I week, 20 of them for overtime, to
be paid for at time and a half. With the Union being re-
sponsible for the scheduling of two men at each theatre,
1649
the Company refused to pay such unwarranted overtime.
Rackensperger brought the matter to the attention of
Business Agent Sanford. And the Union, still according
to Rackensperger, agreed that it had been at fault and
promised to pay one-half of the overtime so claimed by
the employee. In settlement, the company and the Union
gave Hughes a check for $90. Apparently not satisfied,
he refused to cash those checks and made other claims
on the Company.
On December 26 the Union wrote a letter to Racken-
sperger apologizing for its delay in responding to his
complaint about Hughes' overtime pay claim. The letter
included the following statement: "Pursuant to the Exec-
utive Board's recommendation, the membership ap-
proved paying Mr. James Hughes $91.50 from union
funds." When a union agrees to pay-out of its own
funds-for overtime worked by an employee, can there
be any doubt but that its "agreement" with the employer
was that it, the Union, was to act "in locus" for the em-
ployer? And when the employer, in such an odd situa-
tion, must itself pay for even part of such overtime work
performed because of a management error by the union
in "scheduling" or hiring workmen, can its decision to
get rid of the union be called "antiunion animus," as the
phrase has long been used in Board parlance?
About the same time there was another complaint
about Hughes, this time joined with one also involving
projectionist Joe Davis. Rackensperger complained that
the two men had damaged a film because they did not
know how to install it properly, and that the error had
cost the Company several hundred dollars. The usual
method for bringing these problems to the attention of
the Union for resolution was to write a letter to Sanford.
Rackensperger wrote such letter on October 21, listing
Hughes' alleged delinquencies and about November 3
about Davis' errors on the job. He wrote these letters be-
cause Sanford had told him to do so. And, as Sanford
himself testified, he, the business agent, then brought the
matters to the attention of the Union's executive board,
which then confronted the employees involved with the
Company's charges.
There was another letter to Sanford about Davis,
dated October 23, in which the complaint was made that
Davis had come to work 45 minutes late, a flouting of
the rules which caused "mayhem" in the theatre and re-
sulted in $100 in refunds to the customers. The letter de-
manded that the Union fulfill its, agreed-upon obligations
to do something about such misbehavior immediately.
There were other complaints about these two men-that
Davis used to leave the projectionist's booth while the
picture was running, that both the men played radios
during the performances which distracted the people in
the theatre, etc. These are the problems that an employer
normally discusses directly with its misbehaving employ-
ees; but in this case Respondent's agreement with San-
ford was that the Company would not discuss them with
the employees but would tell the Union about them, and
that the Union would then take on that responsibility.
We come to two of the employees named in the com-
plaint as having lost their jobs because of the Company's
antiunion feeling. As to Harold Blair, Rackensperger tes-
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tilled he damaged films, one of which was completely
destroyed, he use to drink on the job, was seen sleeping
in the projectionist's booth, and regularly used to leave
the booth while the picture was showing to go to a
nearby store to buy lottery tickets. Rackensperger wrote
to the Union about these delinquencies also, and a
number of times called Sanford on the phone to bring
them to his attention. According to Rackensperger, San-
ford said he would take care of them. As to one of the
delinquencies, plus others, of Blair, the Respondent sent
a detailed letter to the Union dated September 9, 1983.
Rackensperger's testimony is consistent with that of San-
ford:
If I had a complaint from management . . . I would
try to work that out amongst each other-if I
couldn't, I'd make the executive board aware of it
and I would ask for a letter so that we could have
something on record .',I'd bring that person
before the executive board and the executive board
would make a decision as to what punishment, if
any, that they would get ... .
Q.... what kind of problems do you mead?
THE WiTriEss: Film damage, basically film
damage; people being late.
Mona Alnassari is the manager of the Capitol Theatre
where Blair was assigned . She testified Blair use to leave
the booth practically every day to go to the liquor store
nearby to buy lottery tickets, and that although she re-
peatedly told him to stop that, he never did. She also
added Blair frequently came late to work, was seen
sleeping on the job, failed to leave the lights on when
appropriate, etc. In his testimony Blair started by saying
he was never late on arrival , but, as he proceeded he
equivocated.
Q. Did she ever have any conversations with you
about being too late?
A. Never had conversations about being too late
because I wasn't late, not going on screen, not late.
Like I said before, when I was going to be running
close to time I would call her and let her know I
was on my way. . . . I wouldn't know exactly
when it occurred. I didn't call in over a couple of
times that I was going to be running late but it
wasn't late.
The witness admitted he used to leave the booth while
moving pictures were shown to go to buy lottery tickets.
He said he did it "a couple of times." He testified.
I would be gone about a minute or two, something
like that I would have the list right there if I was
going to play two numbers or three or something
like that, I would just give it to the lady and she
would give them right to me and I will be right
back in the booth. . . . It wouldn't take no longer
than a minute or two to do that. It was right next
door.
Q. Wasn't there a rule against leaving the projec-
tion booth while the moving was showing?
A. Sure there was a rule.
Blair was an unconvincing witness; again and again he
avoided direct answers, _and continuously explained away
the criticisms of his performance as something for which
he was not responsible. He denied the manager ever
spoke to him about sleeping on the job, and not turning
the lights on properly. Asked had the manager ever told
him about errors in running the machine, he responded:
That happened a couple of times, making a
changeover, maybe missing a cue. That might have
happened once or twice. It, was not regular.
Q. Did Mona speak to you about these delayed
changeovers?
A. She would come in and ask me what was the
problem and I would explain to her just what hap-
pened.
Q. How many times did this occur?
A. It would occur in the middle of a picture
sometimes, the lights would go out.
Q. How many times?
A. It has happened a couple of times when ,I was
working, that the bulb just went out.
I credit the theatre manager as to Blair's continuing
errors on the job and his disregard of the working rules.
A projectionist who continuously leaves his booth during
the moving picture show causes such damage to the busi-
ness that it cannot be excused. The story of this man's
performance is proof positive both that the Respondent
had cause to ,put a stop to it and that the Union in fact
had taken on responsibility of "scheduling" competent
employees.
The evidence as to the other employee named in the
complaint parallels that of Blair. Willie Dixon was a full-
timer -at the theatre. He had a habit of taking little girls
into the projection room, keeping them there for long
periods watching the moving picture being shown. It
was strictly against the rules. The booths were supposed
to be locked at all times and the posted notice said no
one was allowed there except the projectionist. Samir
Ismail, the manager there from February 1984 on, testi-
fied Dixon did it "all the time," and no matter how
many times he was told not to do that he always refused
to obey. At times Dixon explained his conduct to Ismail
by saying-the little ones were his nephew, or his niece,
or family, but the manager said it was always a different
girl. On one occasion the picture went off during the
showing; the manager ran to the booth only to find it
locked. Inside he found Dixon with two girls. Ismail
complained to Rackensperger, about this many times.
James Savage was comanager with Ismail at this theatre.
He, too, testified Dixon had little girls in the booth with
him four or five times a week, always a different girl.
Like Blair, Dixon also admitted the charges against
him He said Terrick, who had been manager before
Ismail came on in February, had told him to stop that
practice. He said he only had some young girl in the
booth "a couple of times,. . . once a week or so." Dixon
then came forth with two explanations for his admitted
violations of the posted rule. He said he "always" had
permission to do it and, besides, that it was always a
matter of the girl bringing him his lunch: I do not be-
SENATOR THEATRE
lieve he "always" had permission. I can conceive of an
exception , on a rare occasion, but it is simply not logical
to believe both managers-Terrick and Ismail-would
keep telling him about the rule and at the same time
"always" permit the violations.
The further suggestion , in Savage 's testimony, that
:Dixon personally misbehaved with young girls in the
booth during working time, is not proved on this record.
But that his repeated violations of a perfectly under-
standable rule of conduct certainly was a reason for the
Respondent to want to get rid of him is obvious. It did
not fire him directly, but the reason for that is not that it
found his conduct acceptable. It is, instead, because of its
agreement with the Union that the Union would take the
necessary steps either to see to it that Dixon mended his
ways, or to replace him with a good employee. In fact,
Michael Alouris, business representative of the Union in
January, testified that Rackensperger told him about
Dixon having strangers in the booth contrary to the
rules, and even that he had put in for time not worked.
He even said that after receiving Rackenperger's com-
plaints about Dixon he spoke to both Dixon and the
Union's lawyer about what steps to take to stop it.
The age old argument-if the employee was so bad
why did the Respondent not discharge him sooner?-
does not fit this case. The authority to replace incompe-
tents with the desirable employees the Union had prom-
ised to put to work had been put in the hands of the
Union. For all I know, the Union may even have done
so with respect to earlier complaints by the Respondent.
Nine projectionists worked in these theatres between
June 1983 and March 1984, and left their jobs before the
end of that period. Why did they leave? Was it because
they had found more desirable positions, like Marken
did? Or was it the Union which, because of complaints,
found other places for them-another way of getting
them off these jobs because they did not work out satis-
factorily. This record does not show.
As to the third man listed in the complaint, projection-
ist Garfield Hunt, he was a good man and there were
never any complaints about his work. According to the
testimony of Rackensperger, he offered Hunt a job just a
few days after the change of system, and the man refused
to accept because he sided with the Union. As Hunt re-
called the conversation: "(h]e [Rackensperger] offered
me a job . . . I told him I had been a union man so long
that I couldn't possibly go across the union picket line."
Later Hunt did accept the offer and has since been back
at work in one of the Respondent's theatres. Racken-
sperger put this conversation at March 23, but Hunt said
it happened 2 weeks later instead. Considering all the re-
lated facts, I credit Rackensperger as to the date. The
Company needed good . projectionists badly then and
1651
there , and Hunt admittedly was a competent man. And
he did visit the theatre just a day or two after the March
20 events , to pick up his personal belongings and did talk
to some members of management then. He said there
was picketing by the Union then going on, but the
record is not clear just when it started or ceased . Surely
it must have started on April 20, when the men the
Union had hired ceased work. And on April 19 Racken-
sperger wrote to Hunt , again asking him to come back to
work, and reminding him of his earlier offers. That letter
was written after the charge in this case was filed, and is
therefore suspect, but it does fit in the total , overall pic-
ture , and so cannot be ignored altogether . Further, there
is also the testimony of Ismail , the theatre manager. He
said he spoke twice with Hunt, on April 20 and again
later, and that each time , when he asked Hunt to come
back to work, the man said he did not want to.
In sum , as I look at the facts about the three men who
lost their jobs on March 20 because the Company chose
no longer to have the Union do the hiring, as to two of
them-Blair and Dixon-there is a perfectly convincing
affirmative defense of discharge for just cause-plain,
continuing flouting of the work rules. As to the third,
the competent man, the Company offered to keep him.
And finally, the General Counsel relies upon testimony
of Blair that when the Company placed an ad in the
newspaper for projectionists, he telephoned the office
without giving his name and was told by the "girl" that
the Company "doesn't want to have anything to do with
anybody who is affiliated with the union." Blair also said
that when he came to pick up his things, Alnassari, the
theatre manager, told him that Rackensperger had told
her to say "that if you [Blair] were ready to quit the
union, you could have your job." Rackensperger said no
one ever gave instructions to the telephone operator to
make any such statement , and Alnassari , the manager,
denied there was any talk between her and Blair about
his returning to work. I credit her and do not believe
Blair's testimony at all. His demeanor as a witness, cou-
pled with his repeated evasive answers to questions
marked him as the poorest witness at the hearing.
I find, on this record as a whole, that the General
Counsel has not met the burden of proving, by a prepon-
derance of the evidence as a whole, that the reason why
the Respondent asked the Union, on March 19, to stop
scheduling projectionists, was because they were affili-
ated with the Union. I also find that the evidence does
not suffice 'to prove affirmatively that the Respondent's
refusal to recognize the Union as bargaining agent con-
stituted a violation of Section 8(a)(5) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]