United Artists Theater Circuit, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1980

253 N.L.R.B. 575 (N.L.R.B. 1980)

UNITED ARTISTS THEATER CIRCUIT. INC.
United Artists Theatre Circuit, Inc. and Moving
Picture Projectionists, Local No. 150, Interna-
tional Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada. Case 31-CA-8694
December 4, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 10, 1980, Administrative Law
Judge Gerald A. Wacknov issued the attached
Supplemental Decision in this proceeding.' There-
after, the General Counsel and the Charging Party
filed exceptions and supporting briefs, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, 2 and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The Board had directed the Administrative Law Judge to make addi-
tional findings of fact, as stated in its Decision and Order reported at 250
NLRB 922 (1980).
2 The General Counsel and the Charging Party have excepted to cer-
tain credibility findings made by the Administrative Law Judge It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge: A
Decision was issued in this matter by me on March 17,
1980. Thereafter, on July 23, 1980, the Board issued a
Decision and Order' remanding the case to me for the
purpose of making credibility determinations, particularly
with respect to the events of August 9, 1978.
250 NLRB 922
As stated in my initial Decision, this case is predicated
on the contention of the General Counsel and the Union
that the parties reached agreement on the terms of a col-
lective-bargaining agreement during the course of a
meeting which occurred on August 9, 1978. More spe-
cifically, it is contended that on that date the parties
reached agreement on, inter alia, payment of holiday pay
to projectionists. Respondent not only denies that there
was any agreement reached on that date, but, moreover.
contends that it expressly advised the union represenla-
lives that it would not deviate from its prior position.
consistently maintained throughout protracted negotia-
tions, that holiday pay would not be included in any
contract negotiated with the Union.
The testimony of Union Business Manager Ralph
Kemp and Union President Frank Rubin is exceedingly
abbreviated with regard to what transpired during the
meeting, which lasted, according to their testimony, 10
20 minutes. Rubin's entire testimony concerning this
critical meeting in the office of Robert Naify, president
of Respondent, is as follows:
Q. So while you were in Mr. Naify's office,
please relate what was said by the parties?
A. I didn't want to waste his time, so I said you
sign a full contract; if you would let the two
Westwood Theatres go projectionist-manager, sub-
ject to approval-I am sorry-subject to interview
of our people-and they went out and had a caucus.
Q. Did you say anything else about the condi-
tions of this contract at that meeting?
A. When, after they caucused?
Q. While you were in the meeting with them.
I said that it was subject to interview of our
people.
Q. You stated that Mr. Gallagher, Mr. Goldman
[2] and Mr. Naify left the office to caucus; approxi-
mately how long did they leave for?
A. Around 10 to 15 minutes.
Q. And did they return to the office?
A. Yes, they did.
Q. And what was said after they returned?
A. Mr. Naify said you have yourself a deal.
Q. Did he say anything further?
A. That was it.
Rubin further testified that immediately after the meet-
ing, in the hallway, he stated to Gallagher and Goldman
that the agreement was subject to ratification by the
membership. 3
Kemp's testimony, although equally abbreviated, is not
consistent with the testimony of Rubin. Thus, Kemp tes-
tified that "the proposal we presented was that the
Westwood Theatres would go projectionist-manager sub-
2 Jim Gallagher and Richard Goldman occupied the positions of Re-
spondent's ice president and corporate counsel. respecitiel
3 Kemp testified that only Goldman was present on behalf f Respond-
ent during this alleged conversation in the hallsway Howse'er. Rubin tes-
tified that Gallagher swas also present and participated in he discussions
253 NLRB No. 78
575
DE)CISIONS OF NAlIONAL LAB3OR RELATIONS BO()ARI)
ject to the interview of our people." When asked wheth-
er anything else was said during the meeting, Kemp re-
plied that after caucusing, Respondent's representatives
returned and said "they would accept the projectionist-
manager in Westwood, and they would accept the full
contract in the remainder of the theatres." Thus, accord-
ing to Kemp's testimony, nothing was proposed by the
Union nor was anything even mentioned about holiday
pay until Respondent's representatives, rather than Kemp
or Rubin, allegedly said that they would accept the "full
contract" on returning from their caucus. Moreover,
unlike Rubin, Kemp testified that during the meeting
with Naify, rather than during the subsequent conversa-
tion in the hallway, it was stated by either Kemp or
Rubin that the agreement would be taken back to the
membership for ratification.
The testimony of Naify, Gallagher, and Goldman,
which I credit, is eminently more persuasive, in that each
was able to recall, in considerably greater detail, the sub-
stance of the August 9, 1978, meeting, particularly re-
garding the matter of holiday pay. Each of Respondent's
witnesses testified that the matter of holiday pay was
specifically discussed at some length and each recounted
the details of this discussion during which Respondent's
representatives, particularly Naify, emphasized that
under no circumstances would there be movement from
Respondent's consistent position that holiday pay would
not be included in any contract agreed on. Indeed, as
holiday pay was one of the two outstanding issues which
had precluded the successful negotiation of a collective-
bargaining agreement throughout protracted negotia-
tions, and as this was the first meeting between the union
representatives and Respondent's president, Naify, the
testimony of Kemp and Rubin that the matter of holiday
pay was virtually ignored does not accord with probabil-
ity.
Additionally, Respondent's subsequent communica-
tions with the Union, as set forth in my initial Decision,
is consistent with the testimony of Respondent's repre-
sentatives that holiday pay was not agreed on at the
August 9, 1978, meeting, and the Union's deficient re-
sponse to these communications, as explained in my ini-
tial Decision, further supports the finding herein that the
parties reached no agreement on the holiday pay issue at
this meeting.
Analysis and Conclusions
On the basis of the foregoing and the record as a
whole, I find the testimony of Rubin and Kemp that, in
effect, holiday pay was not specifically discussed to be
unconvincing, inconsistent, and unworthy of belief. 4
Having credited the account of the meeting given by Re-
spondent's representatives, the conclusion is mandated
that no agreement on the holiday issue was reached at
the meeting. I so find. I shall therefore dismiss the com-
plaint in its entirety.
FINDIN(;S 01 FACT AND CONCIUSIONS OF LAW
i. No agreement regarding the matter of holiday pay
was reached at the August 9, 1978, meeting between the
parties.
2. Respondent has not violated the Act as alleged.
Accordingly, upon the basis of the foregoing findings
of fact, conclusions of law, and the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 5
The complaint is dismissed in its entirety.
' In my finall )ecsl(in, I specifically discredited their esntmons re-
garding what transpired al a later dale
5 n the evenl no exceptions arc filed as proided by Sec 10246 of the
Rules and Regulations of he National Labor Relations Board, the find-
ings, conclsions,, and recommended Order herein shall. as provided in
Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its fidings, coniclusions, and Order. and all objections thereto
shall he deemied wailcd for all purposes
576