Technicolor Services

National Labor Relations Board - Board Decisions

Aug 24, 1984

271 N.L.R.B. 1220 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Technicolor Government Services, Inc. and Motion
Picture Laboratory Technicians, Local 780, and
International Photographers of the Motion Pic-
ture Industries, Local 666, International Alli-
ance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States
and Canada, AFL-CIO. Case 18-CA-8088
24 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 15 August 1983 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Technicolor Government Services, Inc.,
Sioux Falls, South Dakota, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph l(c).
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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.
In adopting the judge's finding that the Respondent violated Sec.
8(aXS) by transferring work from employees in the bargaining unit to em-
ployees outside the bargaining unit without notifying the Union or giving
the Union an opportunity to bargain, Chairman Dotson and Member
Hunter note that the Respondent did not contend that its decision to
transfer the work was not a mandatory subject of bargaining within Sec.
8(d) of the Act.
I The judge included a broad cease-and-desist provision in her recom-
mended Order, after concluding that the Respondent has a proclivity to
violate the Act. Hickmott Foods, 242 NLRB 1357 (1979). She noted two
previous Board decisions finding unfair labor practices by the Respond-
ent: 253 NLRB 569 (1980) and 262 NLRB 1141 (1982). She did not rely
on an administrative law judge's decision in another case which the
Board adopted subsequent to her decision in this case. 268 NLRB 258
(1983). We have considered the unfair labor practices committed by the
Respondent in the previous cases but we do not find that those violations,
either considered alone or in conjunction with this case, were sufficiently
egregious or pervasive as to meet the test of Hickmott Foods. We have
therefore modified the judge's recommended Order to include a narrow
cease-and-desist provision.
271 NLRB No. 187
"(c) 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. Substitute the attached notice for that of the
administrative law judge.
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 refuse to bargain collectively with
Motion Picture Technicians, Local 780, and Inter-
national Photographers of the Motion Picture In-
dustries, Local 666, International Alliance of The-
atrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada,
AFL-CIO, as the exclusive representative of our
employees in the following unit, with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment:
All full-time and regular part-time employees
employed in the photographic laboratory,
product inspection, data management, techni-
cal engineering photographic laboratory main-
tenance, center services and logistics sections,
including plant clericals, employed at our
Sioux Falls, South Dakota facility; excluding
employees employed in user services oper-
ations, systems development, systems software,
technical engineering computer maintenance,
technical communications, applications, train-
ing and assistance and data analysis sections,
office clerical employees, confidential employ-
ees, guards, assistant supervisors and supervi-
sors as defined in the Act.
WE WILL NOT transfer work from employees in
the custom laboratory who are in the bargaining
unit described above and represented by the Union
to other employees who are not in the unit and not
1220
TECHNICOLOR SERVICES
represented by the Union, or change any other
terms or conditions of employment of employees in
the above-described unit without first notifying the
Union and affording it an opportunity to bargain
about such things.
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 make employees whole, with interest,
for any losses they may have suffered as a result of
our transfer of work from employees in the custom
laboratory to unrepresented employees.
WE WILL, on request, bargain with the Union
with respect to the wages, hours, and other terms
and conditions of employment of the employees in
the unit set forth above.
TECHNICOLOR GOVERNMENT SERV-
ICES, INC.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
The charge in this case was filed February 28, 1983, by
Motion Picture Laboratory Technicians, Local 780, and
International Photographers of the Motion Picture Indus-
tries, Local 666, International Alliance of Theatrical
Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada, AFL-CIO (jointly
the Union) against Technicolor Government Services,
Inc. (Respondent). On March 29, 1983, the complaint
issued alleging, in substance, that Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by transferring certain work previously performed
by employees who are represented by the Union to other
employees who are not so represented without notifying
the Union or affording it an opportunity to bargain about
the matter. Respondent has denied the commission of
any unfair labor practices.
A hearing was held before me at Sioux Falls, South
Dakota, on June 9, 1983. Following the hearing the Gen-
eral Counsel filed a brief, which has been considered.
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an office
and place of business in Sioux Falls, South Dakota,
where it is engaged in the operation of providing techni-
cal support for the Earth Resources Observation System
(EROS) Data Center, which processes landsat satellite
data and reproduces copies of this data and aerial photo-
graphs for Federal agencies, foreign countries, and the
general public. During the calendar year ending Decem-
ber 31, 1982, Respondent, in the course and conduct of
its business operations, derived gross revenues in excess
of $1 million from and for providing services to the
United States Government. During that same calendar
year Respondent sold and shipped from its Sioux Falls,
South Dakota facility products, goods, and materials
valued in excess of $50,000 directly to points outside the
State of South Dakota, and purchased and received at
that same facility products, goods, and materials valued
in excess of S50,000 directly from points outside the
State of South Dakota. The answer admits and I find
that Respondent is now and has been at all material times
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and I further find
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Respondent has a contract with the United States Ge-
ological Survey to perform the technical support work at
the EROS Data Center. The Center receives data from
various satellites and aircraft in the form of imagery
which it archives, reproduces, and distributes. In addi-
tion to the technical and professional personnel who are
responsible for archiving and reproducing the imagery,
Respondent employs professionals in agriculture, geolo-
gy, hydrology, agronomy, and related fields who devel-
op techniques for use of the data collected by the Center
in the management of resources.
In October 1978, following a Board-conducted elec-
tion, the Union was certified as representative of Re-
spondent's employees in the following bargaining unit:
All full-time and regular part-time employees em-
ployed in the photographic laboratory, product in-
spection, data management, technical engineering
photographic laboratory maintenance, center serv-
ices and logistics sections, including plant clericals,
employed at the Respondent's Sioux Falls, South
Dakota facility; excluding employees employed in
user services operations, systems development, sys-
tems software, technical engineering computer
maintenance, technical communications, applica-
tions, training and assistance and data analysis sec-
tions, office clerical employees, confidential em-
ployees, guards, assistant supervisors and supervi-
sors as defined in the Act.
About 65 of the approximately 225 individuals employed
by Respondent at the EROS Center are included in the
bargaining unit, and Respondent has adhered to the posi-
tion, expressed both in the original representation pro-
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding and in various unfair labor practice cases dis-
cussed below, that the certified unit is inappropriate.'
In Technicolor Graphic Services, Inc., South Dakota Op-
erations, 253 NLRB 569 (1980), the Board adopted an ad-
ministrative law judge's conclusions that Respondent 2
violated Section 8(a)(5) and (1) of the Act by abolishing
a quality control unit to which bargaining unit employ-
ees had been assigned and by unilaterally increasing the
wages and changing the working conditions of two bar-
gaining unit employees, all without bargaining with the
Union.
In 1982 the Board issued Technicolor Graphic Services,
262 NLRB 1141, affirming another administrative law
judge's findings that Respondent had violated Section
8(a)(1) of the Act by suspending six employees for writ-
ing a letter to the director of the United States Geologi-
cal Survey alleging that Respondent had discriminated
against certain bargaining unit employees with respect to
when they would be permitted to have a Christmas party
and what would be served at the party and with respect
to leaving work early on New Year's Eve. The adminis-
trative law judge also found, and the Board agreed, that
Respondent further violated Section 8(a)(1) by maintain-
ing, interpreting, and enforcing a work rule so as to pre-
clude employees from exercising their rights to protest
working conditions without first exhausting internal
company procedures, by warning bargaining unit em-
ployees that they were subject to disciplinary action for
protesting working conditions, and by threatening to
withhold a wage increase from one of the suspended em-
ployees.
Finally, on May 5, 1983, Administrative Law Judge
Richard L. Denison issued a decision in Technicolor Gov-
ernment Services, Inc., South Dakota Operations, Case 18-
CA-7638, in which he found that Respondent violated
Section 8(a)(5) and (1) of the Act by changing the
wages, working conditions, and other terms and condi-
tions of employment of leadpersons, who are bargaining
unit employees, without prior notice to and consultation
with the Union. That case is now pending before the
Board on exceptions.
B. The Transfer of Bargaining Unit Work
1. The work in question
The employees in Respondent's photography laborato-
ry (which is also referred to in the record as the produc-
tion lab) and custom laboratory are included in the bar-
gaining unit. The approximately eight employees who
work in the custom lab, which is administratively a sub-
division of the photography laboratory, perform more
I Although it is clear that Respondent has consistently maintained this
position, the basis for the contention is not established by this record. At
the hearing, I reserved exhibit numbers to Respondent for the original
Decision and Direction of Election in the underlying representation pro-
ceeding, Case 18-RC-11921, and Respondent's requests to the Board for
review of that decision, and of the Regional Director's subsequent deci-
sion certifying the Union, but these exhibits were not supplied and I
therefore do not know what contentions Respondent made in that pro-
ceeding.
2 At some point which is not clear from this record, Respondent's
name changed from Technicolor Graphic Services, Inc., South Dakota
Operations, to Technicolor Government Services, Inc.
specialized and technical photographic work than that
performed in the larger production lab. Until October 21,
1982, a some of the employees in the custom laboratory,
in addition to reproducing imagery generated by aircraft
or satellites, were routinely assigned to perform photog-
raphy work for the EROS Center's Public Affairs Office.
These assignments required the custom laboratory em-
ployees to take photographs of such events as award
ceremonies or visits to the Center of political figures or
foreign dignitaries, as well as identification photographs
of employees or photographs for internal use of new
equipment, and to develop the film and make reproduc-
tions in whatever form the Public Affairs Office request-
ed.
Employee Richard Weiss, who works in the custom
laboratory and is representative of the employees there,4
testified that he and custom laboratory employees Bill
Winn and Max Borchardt all performed Public Affairs
Office photography, that this work was performed by
custom laboratory employees prior to October at least
two or three times a week, that he spent at least 8 hours
per week performing this work on the average, and that
Winn and Borchardt spent collectively at least 10 to 12
hours per week on this work. I credit Weiss, who
seemed to testify candidly and to exhibit good recollec-
tion. 5
In addition to taking photographs at the request of the
Public Affairs Office, the custom laboratory employees
also selected the equipment they would need to take the
pictures and develop the film and made whatever repro-
ductions, black and white photographs, color photo-
graphs, slides, or whatever, the Public Affairs Office re-
quired.
Weiss also credibly testified that, although only three
custom laboratory employees performed Public Affairs
Office work, the time they spent in doing this work re-
sulted in all of the custom laboratory employees some-
times having to work overtime in order to finish their
regular assignments. Weiss further credibly testified that
3 All dates hereinafter are the last 6 months of 1982 or the first 6
months of 1983, unless otherwise indicated.
4 The employee representative performs essentially the same functions
as a union steward.
5 Respondent introduced into evidence a summary of Public Affairs
Office work orders which indicates that from January through October
1982 a total of 98.75 hours was spent by custom laboratory employees
doing Public Affairs Office photography work. However, after counsel
for the General Counsel and representatives of the Union examined the
work orders on which the summary was based, the parties stipulated that
the summary was not complete, and that certain corrections should be
made to it. These corrections indicate that the work orders show 17 more
hours than are reflected in the summary. In addition, Weiss credibly testi-
fied that he did not always receive a work order when given an assign-
ment to do Public Affairs Office work and that even when a form was
completed for such an assignment the amount of time spent on it was
sometimes greater than what was listed on the form. Thus, for example,
Weiss credibly testified that as to one job, although the work order stated
that the assignment took a total of 3 hours, in fact, 3 hours were spent by
each of the two employees who worked on the job. Similarly, Weiss cre-
dibly testified that on another occasion the photography shooting session
required the 6 hours listed on the work order but that no form was com-
pleted to show the amount of time spent in making duplicate transparen-
cies the next day. I conclude that Weiss' testimony more accurately re-
flects the amount of time spent by custom laboratory employees doing
Public Affairs Office work than the exhibit introduced by Respondent.
1222
TECHNICOLOR SERVICES
doing the Public Affairs Office work gave the custom
laboratory employees the opportunity to leave their
usual worksite and have contacts with other people at
the Data Center, enabled them to use cameras and other
photographic equipment that they would not otherwise
have an opportunity to use, and, finally, gave those em-
ployees who did the work the aesthetic satisfaction of
making original imagery, instead of reproducing imagery
generated elsewhere.
2. The reassignment of the Public Affairs Office
work
It is undisputed that in late October 1982 Respondent
decided to have all Public Affairs Office photography
work performed by employees in Respondent's Techni-
cal Communications Section, that those employees are
not in the bargaining unit and are not represented by the
Union, and that this action was taken without notifying
the Union or offering it an opportunity to bargain about
the matter. Andrew Younger, the union business manag-
er who conducted the original organizing campaign
among Respondent's employees and who has apparently
remained their primary contact with the Union, credibly
testified that he first heard of the transfer of Public Af-
fairs Office photography work from custom lab employ-
ees in mid-February 1983, when Steve Ballard, chairman
of the elected employee committee at the facility, told
Younger that he had heard that the work had been taken
out of the bargaining unit. Younger further credibly testi-
fied that he telephoned Bud Lockwood, one of Respond-
ent's vice presidents at the Sioux Falls facility, and asked
him if it was true that some work had been transferred.
Lockwood responded that it "may be," and when
Younger accused him of making a unilateral change in
the unit employees' terms and conditions of employment,
responded that what Respondent had done was lawful.
Younger then attempted unsuccessfully to contact Re-
spondent's attorney and, subsequently, on February 28,
filed the instant charge.
On March 14, Respondent's vice president and general
manager at the EROS Center, Joseph Pfliger, wrote to
the Board agent investigating the charge as follows:
Dear Mr. Bigger:
Sometime ago, at the suggestion of the Govern-
ment monitors, Technicolor Government Services,
Inc., made a change in its methods of operation to
achieve a more reasonable cost-effective procedure
to handle one of its support functions.
TGS is required to support the EROS Data
Center by taking Public Affairs Office (PAO) type
photography, both color and black and white, at
such times as any situation arises that creates a need
for such photography. These occasions are not pre-
dictable with any type of regularity.
The total time involved in this activity has aver-
aged a minimum of two and a maximum of four
hours per week. Because this support need is diffi-
cult to schedule, when it arose, it required that a
Custom Laboratory employee stop his work in
progress and take the photographs. On most occa-
sions, this meant delaying work orders in progress
to obtain the PAO photography.
For such reasons and in the interest of cost effi-
ciency, a decision was made and implemented in
late October 1982 to transfer the work to the Tech-
nical Communications Section, since the majority of
the PAO photography work orders originate or
pass through this section. This meant the work
could be done by this section without interrupting
other work or causing loss time for both Technicol-
or and the Government. This latter section is not
under the bargaining unit.
The changes was [sic] not intended to remove
work from the bargaining unit, since the time in-
volved was minimal and it would not result in any
reduction in pay or loss of position for the unit. Its
sole purpose was to effect a cost savings, at a time
when the Government budget for the Center is
tight. Local #780 of IATSE has protested this pro-
cedure and filed an unfair labor practice. [sic] This
is in keeping with their practice of raising technical
complaints about minimal matters that in no way
hinder their representation of the unit nor deprive
the unit of work. However, because of the com-
plaint, which we don't desire to contest, a switch-
back to the former, less effective, costly procedure
will be made on a permanent basis (see attachment).
Attached to the letter was a memo from Pfliger to the
supervisors of the photographic laboratory and the tech-
nical communications section which was dated March 14
and stated as follows:
Effective this date, it is requested that all work
orders for PAO photography be coordinated with
the Photo Lab. The PAO Photographer is to be as-
signed from the Photo Lab instead of Technicolor
Communications.
It is undisputed that the cameras and other equipment
used for taking photographs for the Public Affairs Office
were kept in the custom laboratory until the end of Oc-
tober and that they were then moved to the technical
communications section. It is also undisputed that that
equipment had not, at least as of the time of the instant
hearing, been returned to the custom laboratory.
Weiss credibly testified that he had only performed
one assignment for the Public Affairs Office after the end
of October, and that that assignment was in February.
Weiss also credibly testified that he observed an employ-
ee of the photographic production laboratory doing
some Public Affairs Office work about March 14; as
noted above, the photographic production laboratory is
included in the bargaining unit. The summary of Public
Affairs Office work orders in evidence, as corrected,
shows 18 work orders from March 23 through May 27;
all but two of those were performed by either Borchardt
or Winn, both custom laboratory employees, and the
others were performed by Denny Pearson, a bargaining
unit employee in the photographic production laborato-
ry. Weiss also credibly testified that his hourly rate is
$7.83; it is undisputed that the senior custom laboratory
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specialists earn $9.62 an hour, the senior photography lab
specialists earn $7.82 an hour, and the hourly rate for
technical communications employees is $8.69 an hour.
C. Analysis and Conclusions
The complaint alleges that Respondent violated Sec-
tion 8(a)(l) and (5) of the Act by unilaterally transferring
the Public Affairs Office photography work previously
performed by employees in the custom laboratory who
were represented by the Union to other employees who
are not represented by the Union. 6 Respondent did not
file a brief; however, at the hearing Respondent moved
to dismiss the complaint, contending that if there were
an unfair labor practice it was inadvertent, that any
action taken by Respondent was required by the Federal
Government with which it had contracted, and that,
when the Union's complaint about this action was called
to the attention of Respondent officials, they corrected
it. Further, Respondent contends that as of the time of
the hearing the work was being done by bargaining unit
employees, although not necessarily by the same bargain-
ing unit employees who had performed it prior to the
end of October 1982.
It is well established that an employer violates Section
8(a)(5) and (1) of the Act by reassigning work from em-
ployees represented by a labor organization to unrepre-
sented employees without affording notice or an oppor-
tunity to bargain to the collective-bargaining representa-
tive.7 As discussed above, it is undisputed that the work
of performing Public Affairs Office photography was
transferred from custom laboratory employees represent-
ed by the Union to unrepresented employees in the
Technical Communications Section. Although Respond-
ent contends that this change was made "at the request
of the government monitors," the only evidence of such
a request is contained in the letter from Pfliger to the
Board agent, quoted above, in which Pfliger stated that
the change was made "at the suggestion of the Govern-
ment Monitors," but this letter is of course a self-serving
statement made by Pfliger after the charge was filed.
There is no other evidence of such a request, and, in any
event, even if such a request had been made, Respondent
cites no cases, and I am unaware of any authority, for
the proposition that a "request," alone, would justify Re-
spondent's refusal to bargain about the matter. With re-
spect to the contention that the change resulted in a cost
savings, Respondent submitted no evidence in support of
this assertion other than, again, the self-serving letter
from Pfliger referred to above, and I do not credit it.
Respondent further argues that the change was at most
de minimis. However, as discussed above, I have cred-
a Respondent's answer denies, inter alia, that the certified unit is appro-
priate. As noted above, Respondent has consistently adhered to this posi-
tion, which has repeatedly been rejected by the Board. As noted in previ-
ous decisions involving Respondent, absent newly discovered or previ-
ously unavailable evidence or special circumstances, a respondent in a
proceeding alleging a violation of Sec. 8(a)(5) of the Act is not entitled to
relitigate issues which were or could have been litigated in a prior repre-
sentation proceeding. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). In the instant case, as in the previous ones, Respondent has
not attempted to introduce any evidence on the issue. I therefore find the
unit described above is appropriate.
I Newspaper Printing Corp., 250 NLRB 1144, 1148-1149 (1980).
ited Weiss' unrebutted testimony that performance of
Public Affairs Office photography work by custom labo-
ratory employees resulted in all the employees in that
section having more overtime work made available to
them. Further, it is undisputed that performing Public
Affairs Office photography work provided some change
from the normal routine of the custom laboratory em-
ployees who were assigned this work and that Weiss, at
least, derived some satisfaction from having the opportu-
nity to perform this work. I therefore find no merit to
Respondent's argument that the change was in any event
de minimis.
Finally, Respondent contends that as soon as it was
aware that the reassignment of this work to the Techni-
cal Communication Section employees had caused some
difficulty, it reassigned the work back to bargaining unit
employees. Nonetheless, for a period of approximately 5
months the custom laboratory employees did not have an
opportunity to perform this work and suffered some fi-
nancial loss because of it. Further, I have found Re-
spondent's exhibit a less than reliable reflection of the
amount of Public Affairs Office photography work that
was performed, and I also find Pfliger, who testified that
he instructed the supervisor in the photography lab that
if no one from the custom lab was available to do the
work it should be done by someone from the photogra-
phy lab, a less than reliable witness. Accordingly, I find
no merit to Respondent's contention that the complaint
should be dismissed because the work was returned to
the bargaining unit.
In view of all the circumstances of the case, therefore,
I find that by transferring the work of performing Public
Affairs Office photography from employees in the
custom laboratory represented by the Union to unrepre-
sented employees in the Technical Communications Sec-
tion, Respondent violated Section 8(a)(5) and (1) of the
Act.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
I. Technicolor Government Services, Inc. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Motion Picture Laboratory Technicians, Local 780,
and International Photographers of the Motion Picture
Industries, Local 666, International Alliance of Theatri-
cal Stage Employees and Moving Picture Machine Oper-
ators of the United States and Canada, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time employees em-
ployed in the photographic laboratory, product inspec-
tion, data management, technical engineering photo-
graphic laboratory maintenance, center services and lo-
gistics sections, including plant clericals, employed at the
Respondent's Sioux Falls, South Dakota, facility; exclud-
ing employees employed in user services operations, sys-
tems development, systems software, technical engineer-
ing computer maintenance, technical communications,
applications, training and assistance and data analysis sec-
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TECHNICOLOR SERVICES
tions, office clerical employees, confidential employees,
guards, assistant supervisors and supervisors as defined in
the Act, constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
4. Since October 27, 1978, the Union has been the
representative for purposes of collective bargaining of
the employees in the unit described above.
5. By unilaterally transferring Public Affairs Office
photography work previously performed by employees
in the custom laboratory who are represented by the
Union to other employees who are not so represented
without notification or affording the Union an opportuni-
ty to bargain, Respondent has engaged in unfair labor
practices within the meaning of Sections 8(a)(5) and (1)
and 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action, including the posting of the customary notice, de-
signed to effectuate the purposes of the Act.
Having found that Respondent has unlawfully made
unilateral changes in the employees' terms and conditions
of employment, I shall recommend that Respondent be
ordered to restore the status quo ante by assigning all
Public Affairs Office photography work to employees in
the custom laboratory, and that Respondent be ordered
to cease and desist from implementing unilateral changes
in terms and conditions of employment of unit employees
without bargaining with the Union which represents
them. I shall further recommend that Respondent be or-
dered to make the custom laboratory employees whole
for the overtime opportunities they lost as a result of the
reassignment of the Public Affairs Office photography
work to unrepresented employees and that the amounts
paid to the custom laboratory employees to make them
whole include interest, to be computed in the manner
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).8
Finally, the General Counsel requests that Respondent
be ordered to cease and desist from violating its employ-
ees' rights "in any other manner," citing Hickmott Foods,
242 NLRB 1357 (1979). In that case, the Board held that
it would use a narrow injunctive language ordering re-
spondent to cease and desist from "in any like or related
manner" restraining or coercing employees in the exer-
cise of their rights under the Act except in those cases
where "a respondent is shown to have a proclivity to
violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general dis-
regard for the employees' fundamental statutory rights."
The Board has previously found in one case that Re-
spondent has unlawfully refused to bargain with the
Union concerning changes in terms and conditions of the
employment of represented employees and has found in
another case that Respondent unlawfully suspended em-
ployees and threatened them that they were denied a
raise and with disciplinary action because they engaged
in protected activity, and maintained work rules which
8 See generally Isis Plumbing Co.. 138 NLRB 716 (1962).
preclude employees from exercising their rights under
the Act. In these circumstances, I find that Respondent
has demonstrated a proclivity to violate the Act9 and I
therefore further find that a broad order is warranted in
this case. 10 Accordingly, I will recommend that Re-
spondent be ordered to cease and desist from in any
other manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Technicolor Government Services,
Inc., Sioux Falls, South Dakota, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Motion Pic-
ture Laboratory Technicians, Local 780, and Internation-
al Photographers of the Motion Picture Industries, Local
666, International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO, as the exclusive
representative of its employees in the following unit,
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment:
All full-time and regular part-time employees em-
ployed at the photographic laboratory, product in-
spection, data management, technical engineering
photographic laboratory maintenance, center serv-
ices and logistics sections, including plant clericals,
employed at the Respondent's Sioux Falls, South
Dakota, facility; excluding employees employed in
user services operations, systems development, sys-
tems software, technical engineering computer
maintenance, technical communications, applica-
tions, training and assistance and data analysis sec-
tions, office clerical employees, confidential em-
ployees, guards, assistant supervisors and supervi-
sors as defined in the Act.
(b) Transferring work customarily performed by em-
ployees in the custom laboratory who are represented by
the Union in the unit described above to other employ-
ees who are not in that bargaining unit and are not rep-
resented by the Union, or changing any other terms or
conditions of employment of employees in the above-de-
scribed unit without first notifying the Union and afford-
ing it an opportunity to bargain about such changes.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
9 However, I do not rely on the administrative law judge's decision in
Case 18-CA-7638, inasmuch as that case is still pending before the
Board.
'O See Chicago Magnesium Castings Co., 256 NLRB 668 (1981).
' 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.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in or refrain from engaging in any or all of the
activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Make unit employees whole for any losses they
may have suffered as a result of Respondent's unlawful
unilateral action, including interest thereon, computed in
the manner set forth in the section of this decision enti-
tled "The Remedy."
(b) On request, bargain with the Union with respect to
the wages, hours, and other terms and conditions of em-
ployment of the employees in the unit set forth above.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Sioux Falls, South Dakota facility copies
of the attached notice marked "Appendix."' 2 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing, within 20
days from the date of this Order what steps Respondent
has taken to comply.
I' 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1226