Cobb Theatres, Inc.

National Labor Relations Board - Board DecisionsMar 11, 1982

260 N.L.R.B. 856 (N.L.R.B. 1982)

1DECISIONS OF NATIONAL I.AB()R RELATIONS BOARD Cobb Theatres, Inc. and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, Local No. 144. Case 26- CA-8785 March I1, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On October 27, 1981, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting 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 Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, 2 as modified below. 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, as modi- fied herein, and hereby orders that the Respondent, Cobb Theatres, Inc., Memphis, Tennessee, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph 2(c): "(c) Restore those contributions to the pension fund which existed prior to the unilateral discon- tinuance of these contributions on or about October 29, 1980, for the employees in the unit de- scribed above and make them whole for any loss of 'Respondent has excepted to certain credibility findinlgs made by the Administrative L aw Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant ev idence conl- vinces us that the resolutions are incorrect Standard Dry Wall Productiv Inc. 91 NLRB 544 (195()), enfd 188 F2d 362 (3d Cir. 1951) 'We have carefully examined the record and find no basis for reversing her find- ings. However, il finding that Sec l((b) did not preclude amending the complaint at the hearing, the Administrativse law Judge relied. in part, on a finding that Respondent suffered not prejudice by havsing to litigate the amendments to the complaint We do not rely otn this reasoning in determining that Sec 10(b) sould allos the anmenldments Rather, inas- much as the allegations set forth by amendment to the complaint related back to the matters set forth in the original complaint. the amendments were properly allowed : In accordance with his dissent in Olvrtpiti Medical Coirporaion. 250 NLRB 146 (198O). Member Jenkins swould award interest on the backpac due based oil the formula set forth therein expense they may have suffered as a result of the unilateral change and pay into the pension trust fund all those contributions it has failed to pay by reason of the unilateral change, in the manner de- scribed in 'The Remedy' until such time as a new agreement is negotiated with the Union or an im- passe is reached regarding this issue." 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 After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Accordingly we assure you that: WE WILL NOT refuse to bargain collectively with International Alliance of Theatrical Stage Employees and Moving Picture Machine Op- erators, Local No. 144, as the exclusive collec- tive-bargaining representative of employees in the following bargaining unit: All motion picture machine operators em- ployed by us at our Fare 4 and Frayser 3 Theatres in Memphis, Tennessee. WE WII.L NOT withdraw recognition and refuse to meet with the Union as exclusive col- lective-bargaining representative of employees in the said unit. WE WILL NOT, without prior consultation and bargaining with the Union, effect any changes in existing terms and conditions of employment of employees in the above-de- scribed appropriate unit, including unilaterally discontinuing payments to the union pension fund, nor dishonor other substantive terms, as 260 NLRB No. 111 856 COBB THEATRES, INC set forth in the collective-bargaining agree- ment. WE WILL NOT make unilateral changes in our employees' wages, rates of pay, or other terms and conditions of employment, or in any similar or related way refuse to bargain collec- tively with the Union as the exclusive collec- tive-bargaining representative of employees in said unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL make payments to the union pen- sion fund from the date we unilaterally discon- tinued such payments, and continue such pay- ments until such time as we negotiate a new agreement with the Union or reach an impasse regarding this subject matter. WE WILL restore the wage rates which ex- isted prior to the date on which the collective- bargaining agreement expired and make you whole for any losses of pay, plus interest, you may have suffered by reason of our unilateral- ly changing these wage rates, and will continue such wage rates until such time as we negotiate a new agreement with the Union or reach an impasse regarding these matters. WE WILL bargain collectively with the Union, upon request, as the collective-bargain- ing representative of employees in the appro- priate unit and, if an understanding is reached, WE WILL sign a contract with the Union. COBB THEATRES, INC. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge: This case was heard on September 2, 1981, in Memphis, Tennessee, upon a charge filed on December 17, 1980, by Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, Local No. 144 (hereinafter the Union or Local 144), and a complaint issued on January 30, 1981, and was amended at the hearing, alleging that the Respondent, Cobb Theatres, Inc., violated Section 8(a)(l) and (5) of the National Labor Relations Act by withdrawing recognition from the Union, and thereafter terminating payments to the Union's pension fund and instituting other unilateral cnanges in the employees' terms and conditions of em- ployment.' The Respondent filed timely answers, and briefs were submitted by both parties. ' The complaintl as amended to allege that the Respondenll unilateral- ly allered the terms and conditions of employment without firstl bargain- ing with the Union hby ceasing to pas emplo.~ees, for (at a minimum 4- hour shift; (h) overtime rates ,or mainlerlallce ,work I) quarterls hour Upon the entire record,2 including my observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED The Respondent, with an office and place of business in Memphis, Tennessee, is engaged in the retail operation of theaters exhibiting motion pictures. Annually, in the course and conduct of these business operations, Re- spondent derived gross revenues in excess of $50,000 and received at its Memphis facility products, goods, and ma- terials valued in excess of $50,000 directly from points outside the State of Tennessee. Accordingly, I find that the Respondent is now, and has been at all material times herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, The Union is now, and has been at all material times herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ISSUES The issues to be resolved in this case are: (1) whether the Respondent's admitted withdrawal of recognition and refusal to meet or bargain with the Union after October 29, 1980, was based on objective considerations giving rise to a good-faith doubt that the Union repre- sented a majority of its employees; (2) whether the Re- spondent's unilateral alterations of certain terms and con- ditions of employment, instituted after the contract's ex- piration, violated Section 8(a)(5) and (1) of the Act; and (3) whether amendments to the complaint on the day of the hearing were time-barred by Section 10(b) of the Act. 111. THE Al I EGED UNFAIR LABOR PRACTICES A. Events Prior to the Contract's Termination From May 1971 through August 1980, the Respondent voluntarily recognized the Union and entered into successive collective-bargaining agreements covering all projectionists at its Memphis movie theaters.3 The most recent contract, executed in 1977, was due to expire on August 31, 1980. Three months prior to that date, on May 22, 1980, John McAfee, the Local's corresponding secretary and member of the negotiating committee, notified Stephen Biller, the Respondent's counsel, of the Union's intent to increments for o'.ernimle (dl lime and one-half for midnight shift sork: (e) wuork during screening at a per-reel rate with a IO-reel per-screen minimum; and (f) failing i1t guarantee a 40-hour week at its Fare 4 and Frayser 3 Theatres : Errors in Ihc transcript hase been rioted and ctorretled 'The appropriate unit is de.crihed in the complainl as "All motion pic- ture nlachine operators emploaed hb the Resplndenl at its Whiteha'en 2, Fare 4 and Frayser I Theaires im Memphis, Tennessee" Ai the lime of the hearing, the Respondent ius ned onn the latter Isoi theaters. emplo- ing a toill of isos" prolectiolrll,, 857 DECISIONS ()OF NATIONAL. I ABOR REL ATIONS BOARD terminate the agreement and negotiate a new one.' McAffe's letter also set forth the Union's disagreement with management's decision to institute split-shift pay- ments for the projectionists, and expressly reserved the right to negotiate the dispute during conferences for a new collective-bargaining agreement.' Copies ofr this letter were sent to Norm Levinson, vice president of Cobb Theatres, Al Goddard, then manager of Cobb The- atres in Memphis," and J. E. Johnson, the Union's Inter- national vice president. Biller made no written response to McAfee's letter until August 22. However, during the preceding 3-month period, union representatives attempted to communicate with other company officials. Thus, at the Local's re- quest, J. E. Johnson telephoned Levinson at his Birming- ham, Alabama, office on several occasions in July. Al- though he advised Levinson's secretary of his name and position and indicated that the purpose of his call was to arrange negotiations for a new contract for the L.ocal, he received no immediate reply.7 Having received no response to his May 22 letter, McAfee requested another union officer to approach Le- vinson while both were attending the Union's interna- tional conference in Florida at the end of July and pre- vail upon him to call Johnson. Shortly after the confer- ence concluded, Levinson did telephone Johnson and, when questioned as to whether it would be possible to work out a contract, said he saw no reason `which would prevent it. Johnson did not schedule a meeting date be- cause, as he explained to Levinson, he was preparing to negotiate collective-bargaining agreements with 31 other companies. Later in August, Johnson testified that Biller tele- phoned him to ask whether he would object to his repre- senting the Respondent in negotiations. However, Biller vehemently denied having made such call.' ''I'ht cOillltract 5.15 Io renlaii ii i t'lcct I'TuTII year tI sar illess oither parly desiring Ii chailge or termirlate it notified I tie lihC ini 5ril llg .it least 9() days priior Io the annisersary dalte (llTce tIlat rolitie \sas giX iC. the coniract liirtiher stated that "tice parties shall Mcet anld cru1icllt. 1lo I- gltia;lte regalrdiilg the chanlgs ill r terilliilUirll oil' t1lls Agreccnll " ' ly letter of April 4. 1980(1, to the Responident' theater riianager, AI (ioddard, tile hulillncs agent for [.ocal 144, JohnII l edericCl, rcgislCrcd a complaint ahout thil split-shift payments introduced hb Ihe Colllpaily c\ - eral nmolinths earlier. While the conflict remained unresolcIed tile emplop - ees continued wtlrkinllg under the split-shift ssstelr Ihe l Unioln chlose llot toI pursue lie rilitier thriough the nolimaildatlas iarhillatiolli prolcdurc prov!ided il the coniltract CiGoddard retired as manager in Ja;nulary 1981 'Coiulsel tur Respoldelt suggested that if I esirS(oui vwerc tlo tisti'' li h would diClly ha;ing telephonlred Johnsron li AL ugust iltces\:eI. Ilcilher I '- .inseorl Ior his secretary ar s called l s .Ia A il. les s refolc. JIhluc lr l'. ICte - tinlonly il this regard stands unrrefuted as thle Respondld(nl iofTfert Iill vlhd reasoln for failing ioi call thecnl. C(lulll I'ultllcr suiggCstCd 111 a Jihnllsonr had n.i leasonIl to call L esinson Ili carly AugtList siCL tile 1 icl did ult request his participalti(n in collccie hbarg;lillilg unltil AugUlt 25 ;is CAi denced hy McAfcc's letter of Ihal dale this alrglrilcrt l;lils ' tak;le till account the fact that Johnson "w.as copied ssith tile I ocal's Mas 22 lettic It is urlikely tIh;l McAfee would hase distributed thi Iletter to Joihnri unless he previously (had invited hinm to InoIa ihl tie Icegotilatills I urther, McAfee colrrobhr;ltc Jiohnson's s ersion of h(l seqluecle (l es Clts' statillg that, after Icarning that Jobhnsion had nllo sulcceeded In reac hing I Ls llMsll. he had suggested colntacting hin throiughl anollther aunin ii lcrlrIdi;larN ()sbviously. solnleolne is ill error i;hutIt whether iort 1li, tciephitine call occurred Ilosreser. Ihere was nothing in either Johnoill lor Billrer', demeamnr shich 'iould provide guidallnce i re. olIilig this dlispitCe Nci ther 'kcre aliy rlnrlnSic or cxtrinllic ltds siuc ah at tclphoille loigs. hilling r- On August 22, Biller acknowledged McAfee's May 22 letter, writing that since the contract was to expire on August 21 "it is incumbent upon Local 144 to advise Cobb Theatres of its proposed changes in the current bargaining agreement" and to advise the Respondent of proposed meeting dates. Biller added that the Respond- ent would maintain the status quo ante "for only so long as it is legally obligated to do so" and closed with a re- quest that all correspondence regarding Cobb Theatres be sent directly' to him. 9 McAfee's response was quick. By letter dated August 25, he advised Biller that Johnson would be assisting the Union in its negotiations and that the Local anticipated hearing from Johnson shortly as to projected meeting dates. B. Evenrs 4fter the Contract ' Expiration For the next 2 months, no correspondence passed be- tween the parties. Then on October 29, 1980, Biller wrote to McAfee that having heard nothing from the Union since the contract's expiration on August 31, and "In view of Local 144's demonstrated lack of interest in representing the projectionists .... " Cobb Theatres was withdrawing recognition from the Union. The letter also noted that the Respondent would cease making con- tributions to the pension plan or entertaining grievances. The Respondent acknowledged that on or about the same time, it unilaterally altered a number of other terms and conditions of employment previously enjoyed by the projectionists under the provisions of the expired collec- tive-bargaining agreement. On receiving this letter, Business Agent Federicci tele- phoned that it would be a waste of time to talk. Feder- icci then asked Al Goddard for the names of others in the Respondent's organization who might be amenable to bargaining and was referred to Dick Empey. Several days later, on November 13, McAfee wrote to Empey requesting an appointment to tiegotiate a new contract. This admittedly was the first time that such a specific re- quest was made. Biller answered for Empey on November 20. and rejected the Union's overture, stating tersely that, since recognition had been withdrawn, Cobb Theatres was "not interested in making an appointment for negotiating a new contract." Since the contract's expiration date, the Respondent has not called upon the Union for replacements. Howev- er, union members have continued working for Respond- ent while continuing to pay their union dues to the pres- ent time. In addition to the facts as found above, the parties en- tered into a number of stipulations bearing on the Re- spondent's assertion that it held a good-faith doubt as to the Union's continued majority support: they agreed that no union employees had indicated they had resigned Cil s or lnIlg it ip rii ,c e1cphon lll lls 111, rillnd cd x 1 iic hill gillgt shed soilce ligIllt II tle Illit Clr SinIe ;i dis[nsxti l [iI f I t' i Igal issue II Ih ls hi ac is noi t dcIpcnd1et Ill rTessi inig tills I//h I ra I trer I dlCr dI . to dliscred11t eller ' Silce Mc eAlfc's prcx\i lu cosrlresponrllellncc sass ilirectdl to lIller, I inter Iron/ (tie itllir l ' clTcl l lluding rOI llllltill hl 1 1(;l d I c.rlln d iat tile , tlh 'is c'tffrts tII kllultili othler tlI lag rueIln p le ,Crllsei tlltise 858 COBB THEATRES. INC from or wished to resign from the Union; no decertifica- tion petition was filed, the Union continued to hold regu- lar business meetings but had not given notice to the Federal Mediation and Conciliation Service pursuant to Section 8(d) of the Act. Further, the parties stipulated that from June 1, 1975, to June 1, 1977, while the parties were negotiating a new contract, employees continued to work under the terms of the expired collective-bargain- ing agreement. Analysis It is well settled that an incumbent union, whether Board certified, or as here, voluntarily recognized, enjoys an irrebuttable presumption of majority status during the life of the collective-bargaining agreement. Following the contract's expiration, a rebuttable pre- sumption continues with the burden of rebutting by clear and convincing evidence imposed upon the party who would do so, here the Respondent. Pioneer Inn Associates, et al., 228 NLRB 1263, 1265 (1977), affd. 578 F.2d 835 (9th Cir. 1978). It follows that an employer may not raise a doubt about a union's majority during the contract year as a defense to a refusal to bargain, regardless of the degree to which the union may have been deficient in administering the agreement. Pioneer Inn Associatcs v. N.L.R.B., supra at 838. After the contract has expired, the presumption may be overcome by the employer's es- tablishing a good-faith doubt based on objective consid- erations that the union no longer enjoys majority sup- port. Bellwood General Hospital, Inc., 243 NLRB 88 (1979), enforcement denied 627 F.2d 98 (7th Cir. 1980). A. Respondentr' Asserted Good-Faith Doubt In supporting its assertions of good-faith doubt in the present case, the Respondent contends that the Union's inactivity over a 7-month span constituted an abandon- ment of its employee-members. Specifically, the Re- spondent pointed to the Union's failure to request a spe- cific date for negotiations prior to November 13, to submit new contract proposals, or to seek arbitration with respect to the institution of split-shift payments. The Respondent correctly asserts that its good faith must be evaluated in light of all the circumstances available to it at the time recognition was withdrawn. After making such an evaluation, I am unconvinced that the Respond- ent reasonably believed the Union intended to abandon its employees. The Union conceded that at no time prior to November 13 did it request a precise date for bargaining. This omission may be viewed as somewhat negligent, but it falls far short of an abandonment. To the contrary, there is ample evidence which dem- onstrates beyond any doubt that the Union was interest- ed in and intent on bargaining. On May 22, by giving notice of termination in accordance with the procedures prescribed by the parties' agreement, the Union unmis- takably signaled that its purpose was to commence a new round of negotiations Thereafter, over the course of the summer, the Union made repeated efforts to contact management officials. On August 25, 3 days before the contract expired, McAfee replied promptly to Biller's long-overdue letter. This course of conduct was not in- dicative of an indifferent or defunct union. Thus, the Re- spondent's efforts to convert the Union's merely dilatory behavior into disinterest and desertion are totally unper- suasive. The only real gap in communication between the par- ties occurred between August 25 and October 29, 1980. This brief period of time is hardly adequate to give rise to a good-faith doubt that the Union had no interest in representing its membership." This is particularly true where the Respondent was alerted to the possibility of delay because of Johnson's involvement in other contract negotiations. Further, the Respondent was not entitled to draw ad- verse inferences from the Union's failure to produce written contract proposals as the Company demanded. An employer's insistence that a union bargain by mail or submit its proposals in writing may in itself suggest bad- faith bargaining. See, e.g., Duro Fittings Company, 121 NLRB 377 (1958). Neither could the Respondent in good faith regard the Union's decision not to grieve the unilateral implementation of split-shift payments as acqui- escence. See Bellwood General Hospital, supra at 89-90: Sierra Development Company d/b/a Club Cal-A'ca. 231 NLRB 22 (1977), affd. 604 F.2d 606 (9th Cir. 1979) (fail- ure to invoke grievance procedures not grounds for good-faith doubt). The Union was not obliged under the collective-bargaining agreement to arbitrate its disagree- ment with management's construction of the contract. Instead, the Union made a reasoned decision to resolve the dispute in the less expensive, less litigious forum pro- vided by the forthcoming negotiations and expressly no- tified the Respondent of its intent to do so. In these cir- cumstances, the Respondent's contention that the Union abdicated its responsibilities on this issue borders on the frivolous. Neither can the Respondent credibly maintain that it Xwas misled by the Union's failure to protest other unilat- eral changes in contractual terms after the contract ex- pired. It is incongruous that the Respondent faults the Union for failing to pursue these matters .,hen it ada- mantly refused to meet with or talk to union representa- tives at all after October 29. Under the National Labor Relations Act, exercises in futility are not required. Further, no other objective evidence was presented which would signal that the Union's majority had dissi- pated. None of the conventional signals of employee dis- content was present here-no decertification petition was filed, no employee voiced dissatisfaction with the Union to management, and there was little employee turnover. In fact, the employees never ceased paying union duies and the Local continued holding regularly scheduled meetings. Although the Respondent may not have been aware of these facts on October 29. neither did it have or seek know ledge to the contrary. Therefore, the Compa- ny had no reasonable basis at the time it refused to bar- C"'mpar, S t, .L U'ir .Ira, 1 2,. 1 NlRB lt 1 (1'97'1) 0 nrilhl period ol ' iflv I illiil ll . COuil pedl tplMth hs.'. Cnmplo,] c tLlrlso\scr anld expres , l- , ,1 dl~:l" tll O, Mlfft[ki'1llt t 'tMi?111 tiliIlJc ,; ,,od f1}li d]ouhl} With I illr > lX / I),1 rl1 ' S, ' J,',li 211) Nt Rlt (l." ( '14p) Ili-nl-tl h ,ub. inutI lo11th ), 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain for believing that majority support for the Union no longer existed. See Bartenders, Hotel, Motel and Restau- rant Employers Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 (1974). In sum, I conclude that the Respondent's avowals that it had a good-faith doubt of the Union's majority support were disingenuous. Accordingly, I conclude that its withdrawal of recognition and refusal to meet or bargain with the Union were not grounded on objective consid- erations and therefore violated Section 8(a)(5) and (1) of the Act. B. The Unilateral Contract Changes Where, as here, the Respondent was obligated to bar- gain with the Union, it may not unilaterally change wages, hours, and other terms and conditions of employ- ment. Henry Cauthorne, et al., 256 NLRB 721 (1981); SAC Construction Company, Inc., 235 NLRB 1211 (1978), enforcement denied 603 F.2d 1155 (5th Cir. 1979). The Board has held that pension plans which are part of an expired agreement and are a part of the employees' terms and conditions of employment survive the expiration of contract. Id. Therefore, in the absence of a bona fide doubt of the Union's majority, the Respondent's abate- ment of its contributions to the pension fund, " as well as its other changes in the contract terms governing the em- ployees' wages or terms and conditions of employment, without first bargaining with the Union, constitute addi- tional violations of Section 8(a)(5). C. The Amendments Are Not Time-Barred The Respondent alleges that under Section 10(b) of the Act, the General Counsel should not have been per- mitted to amend the complaint at the hearing to allege additional violations of Section 8(a)(5) based on unfair labor practices purported to have occurred more than 6 months after the original charge and the complaint. The Respondent further contends that the unilateral changes were independent of its refusal to bargain and therefore did not relate back to the underlying complaint. The Re- spondent's contentions are without merit. To be sure, the better procedure would have been for the General Counsel to have amended the complaint at an earlier point in time. However, counsel explained that the Union did not apprise him of the changes until sever- al days before the hearing, whereupon he immediately contacted the Respondent's counsel on August 28 to advise him of the proposed amendments. Further, con- trary to the Respondent's contentions, the violations which were alleged are of a continuing nature and do " The Respondent argued that contributions to the pension fund where the collective-hbargaining agreement had expired are precluded by Sec 302(c)(5)tB). The Board and the courts have consistently rejected this de- fense holding that the 302(c)(5)(B) requirement that trust fund payments be made pursuant to written agreements are met where there is a trust fund agreement underlying the expired contract flenlrv Caturhorne, uprua SAC Construction Co., supra at 1219 In the present case, a Modification Agreement attached to the parties' contract refers to contributions to the "I.A.T S. E National Pension Fund in accordance w ith the pro, isilons oft a Participation Agreement, which is attached hereto . "Although the Participation Agreement was not, in fact. appended to the exhibit, it up- parently is the type of trust fund agreement referred to in the cases cited above relate back to the matters set forth in the complaint. See Schraffts Candy Company, 244 NLRB 581, fn. 1, 584 (1979). What is more, the Respondent suffered no preju- dice by having to litigate these matters for it acknowl- edged instituting the changes and defended its actions by resort to the same defense used to support its withdrawal of recognition. Accordingly, I conclude that the amend- ments to the complaint were not time-barred within the meaning of Section 10(b) of the Act. CONCLIUSIONS OF LAW 1. Cobb Theatres, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 144, International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is now and at all times material herein has been the exclusive representative of the employees of the Respondent for the purpose of collective bargaining within the meaning of Section 9(a) of the Act in the fol- lowing unit: All motion picture machine operators employed by Respondent at its Fare 4 and Frayser 3 Theatres in Memphis, Tennessee. 4. By refusing since on or about October 29, 1980, to bargain collectively with tbe Union as the exclusive bar- gaining representative of the employees in the above-de- scribed unit, by unilaterally failing to make contributions to the union pension fund and by unilaterally changing other wages and rates of pay of its employees, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THI REMI)Y Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative actions to effectuate the policies of the Act. According- ly, having found that the Respondent on or about October 29, 1980, unilaterally altered the wages or rates of pay in the above-described unit, it shall be ordered to restore those wage rates that existed prior to any unilat- eral change and make the unit employees whole for any losses of pay they may have suffered as a result of such changes, with interest. Having further found that the Respondent on or about October 29, 1980, unilaterally discontinued making con- tributions to the union pension fund for the employees in the above-described unit, it shall be ordered to restore making such payments and make whole the unit employ- ees for any losses or expenses they may have suffered as a result of the unilateral change and to pay into the ap- propriate trust fund all those contributions it failed to pay as a result of the unilateral change, with interest. 860 C()Iltt [FtAT1 R[E-S. INC' Backpay and interest as herein provided shall be comput- ed in the manner prescribed by F. W: .iolworth Comnpa- niv, 90 NLRB 289 (1950). and Florida Steel Corporation, 231 NI.RH 651 (1977). Upon 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 12 The Respondent, Cobb Theatres, Inc., Memphis, Ten- nessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to meet and bargain collectively with Local No. 144, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, upon its request, as the exclusive bargaining representa- tive of employees in the following appropriate unit: All motion picture machine operators employed by Respondent at its Fare 4 and Frayser 3 Theatres in Memphis, Tennessee (b) Unilaterally changing any of the terms and condi- tions of employment in the above-described unit, includ- ing unilaterally discontinuing payments to the union pen- sion fund, without prior consultation and bargaining with the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neccessary to effectuate the purposes of the Act: (a) Recognize and, upon request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. '2 In the es ent no exceptions are filed a, provided hl Sec 102 46 of the Rules and Regulations olf the National I.lbor Relations Board, the findings, conclusions. and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulaions. he adopted bh the Board aind become its findings conclusiorns, and Order, and all ohjections thereto shall be deemed suaived for all purposes (b) Restore the wage rates which existed prior to the unilateral changes made on or after the contract's expira- tion on August 29, 1981, to employees in the appropriate unit and make them whole for any losses of pay they may have suffered by reason of the unilateral changes in the wage rates in the manner described in "The Remedy" until negotiations result in a new collective- bargaining agreement or an impasse is reached on these issues. (c) Restore those contributions to the pension fund which existed prior to the unilateral discontinuance of these contributions on or about October 29, 1980, for the employees in the unit described above and make them whole for any loss or expense they may have suffered as a result of the unilateral change and pay into the pension trust fund all those contributions it has failed to pay by reason of the unilateral change in the manner described in "The Remedy," until such time as it negotiates the new agreement with the Union or an impasse regarding this issue. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Memphis, Tennessee, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. :' In the esent that this Order is enforced h> a Judgment of a United Stites Court of Appeals, the words in the notice reading "Posted bh ()rder of the National I abor Relations Board' shall read "Posted Pursu- ait to a Judgment of the United States Court of Appeals Enforcing an Order of the Natiolnal Labor Relations Board" 8hl