Sameric Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1979

240 N.L.R.B. 970 (N.L.R.B. 1979)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sameric Corporation and Sameric Corporation of
Feasterville and Langhorne, Pa. and Vicinity Pro-
jectionists and Stage Employees Union, Local 832,
International Alliance of Theatrical State Employ-
ees and Motion Picture Operators of the United
States and Canada. Case 4-CA 9613
February 27, 1979
DECISION AND ORDER
BY MEMBERS PENIl.l.O, MURPIIY. ANi) RI I.SDAI.I
Upon a charge filed on September 5, 1978. by
Langhorne, Pa. and Vicinity Projectionists and Stage
Employees Union, Local 832, International Alliance
of Theatrical State Employees and Motion Picture
Operators of the United States and Canada, herein
called the Union, and duly served on Sameric Corpo-
ration and Sameric Corporation of Feasterville,
herein collectively called Respondent. the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 4, issued a com-
plaint and notice of hearing on October 19, 1978.
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tions 8(a)(5) and (1) and 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge, complaint. and notice of hearing before an
administrative law judge were duly served on the
parties to this proceeding. Respondent failed to file
an answer to the complaint.
On December 7, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 18,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after failed to file a response to Notice To Show
Cause and, therefore, the allegations in the Motion
for Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions. Series 8. as amended, provides as follows:
The respondent shall, within 10 days from the
240 NLRB No. 139
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on Re-
spondent specifically stated that unless an answer
was filed to the complaint within 10 days from the
service thereof "all of the allegations in the complaint
shall be deemed to be admitted to be true and may
he so found by the Board." Moreover, according to
the uncontroverted allegations of the Motion for
Summary Judgment-the time prescribed by Section
102.20 of the Board's Rules and Regulations having
expired on November 1, 1978-counsel for the Gen-
eral Counsel thereafter further advised Respondent,
orally and in writing, of its obligation to file an an-
swer. But Respondent gave no reason for its failure
to file. No answer having been filed, counsel for the
General Counsel sought summary, judgment herein.
As noted above, Respondent also failed to respond
to the Notice To Show Cause.
As Respondent has filed no answer within 10 days
from the service of the complaint and as no good
cause for the failure to do so has been shown, in
accordance with the rule set forth above, the allega-
tions of the complaint herein are deemed admitted
and are found to be true. Accordingly. we grant the
General Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINI)IN(;S ()O FA(CI
I IHE BSIN ESS OF RESPONI)ENT
Sameric Corporation is, and has been at all times
material herein, a Pennsylvania corporation engaged
in the public presentation of motion pictures from
theaters located in the Commonwealth of Pennsylva-
nia. Sameric Corporation of Feasterville is, and has
been at all times material herein, a Pennsylvania cor-
poration engaged in the public presentation of mo-
tion pictures from its Feasterville, Pennsylvania, mo-
tion picture theater. Sameric and Sameric of
Feasterville are, and have been at all times material
SAMERIC CORPORATION 971
herein, a common business enterprise with common
management and control over labor relations policy
and are, and have been at all times material herein. a
single employer. During the past year Respondent
had gross revenues exceeding $500.000: and it pur-
chased, leased, or received films and other merchan-
dise and equipment valued in excess of $50.000
which originated outside the Commonwealth of
Pennsylvania.
We find, on the basis of the foregoing. that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert juris-
diction herein.
II I I BOR OR(iANIZA II()ON IN\ ()1 V)
Langhorne, Pa. and VicinitN Projectionists and
State Employees Union, Local 832. International Al-
liance of Theatrical Stage Employees and Motion
Picture Operators of the United States and Canada.
is a labor organization within the meaning of Section
2(5) of the Act.
111. l[ INF:AIR IABOR PRA(I I(ItS
Richard Kane is. and has been at all times material
herein, general manager of Respondent, an agent of
Respondent acting on its behalf, and a supervisor of
Respondent within the meaning of Section 2(11) of
the Act.
Now, and at all times material herein, the follow-
ing employees of Respondent constitute a unit ap-
propriate for collective-bargaining purposes w ithin
the meaning of Section 9(b) of the Act:
All moving picture machine projectionists at its
Feasterville Theatre, but excluding all other em-
ploees, guards. and supervisors as defined in
the Act.
At all times material herein. the Union has been
the collective-bargaining representative for the em-
ployees in the above-described appropriate unit and.
by virtue of Section 9(a) of the Act, has been, and is
now, the exclusive representative of all the employees
in said unit for the purposes of collective bargaining
with respect to rates of pay. wages, hours of employ-
ment. and other terms and conditions of employ-
ment.
From on or about March 8, 1978, until on or about
Setpember 29, 1978. Respondent failed and refused
to sign a written agreement embodying rates of pa>.
wages, hours of employment, and other conditions of
employment which was agreed upon between Re-
spondent and the Union on or about March 2, 1978.
Accordingly, we find that Respondent has, since
March 8. 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that. by such refusal. Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
I\ I1 If I (I O1 11 I NI AIR I \BOR I'RA( II( TS PO)N
( ()l I:R( I
The activities of Respondent set forth in section
Ill, above. occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic.
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
\. l}i1 R MLI)N
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and () of the Act. we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designated to effectuate the
policies of the Act.
To remedy Respondent's violation of Section
8(a)(5) and (I) of the Act, we shall order that it exe-
cute, sign. and give effect to all the terms and condi-
tions of said contract, or, if the Union does not re-
quest such execution, we shall order that Respondent
bargain collectively in good faith, upon request. with
the Union. as the exclusive collective-bargaining rep-
resentative of its employees in the said appropriate
unit, and, if an understanding is reached. embody
such understanding in a signed contract.
We shall further order that Respondent make
whole the employees in the unit found appropriate
herein for any loss of benefits they may have suffered
from March 8. 1978, b reason of Respondent's fail-
ure to give effect to said contract, to the date of com-
plaince with the Order herein. All moneys to be paid
to such employees shall be the sum total of the sepa-
rate amounts accruing to each employee under the
categories of wages. overtime. holidays, vacations.
and miscellaneous, as computed in the manner pre-
scribed in Ogle Protection Sernice, In., 183 NLRB
682. 683 (1970), with interest thereon to be computed
in the manner prescribed in Florida Steel Corpora-
tion. 231 NLRB 651 (1977).'
Sec. general I, PIumhn A lta,. (. 138 NRB '16 (1962)
SAM ERIC CORPORATION
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order, if required by their contract,
that Respondent reimburse the Union for all mem-
bership dues which, since March 8, 1978, Respon-
dent has failed to withhold and transmit to the
Union pursuant to signed dues-deduction authoriza-
tions and in accordance with a checkoff provision of
the collective-bargaining agreement, with interest
computed thereon in the manner prescribed in Flor-
ida Steel Corporation, supra.2
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Sameric Corporation and Sameric Corporation
of Feasteville is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Langhorne, Pa. and Vicinity Projectionists and
Stage Employees Union, Local 832, International Al-
liance of Theatrical Stage Employees and Motion
Picture Operators of the United States and Canada,
is a labor organization with the meaning of Section
2(5) of the Act.
3. All moving picture machine projectionists em-
ployed by Respondent at its Feasterville theater; but
excluding all other employees, guards, and supervis-
ors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The above-named labor organization has been
at all times material herein, and now is, the exclusive
representative of all employees in the aforesaid ap-
propriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about March 8, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit and by refusing to
execute and implement provisions of the agreed-
upon written agreement with the said labor organiza-
tion, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforesaid refusal to bargain. Respondent
has interfered with, restrained, and coerced, and is
2 Such dues reimbursement shall not he applicable to employees w ho
voluntarily paid their dues to the Union during the pertinent period. Fur-
ther. the amount of backpa) for those employees who would now benefit
from having their employer remit their accrued dues to the Union. without
ever having such amounts deducted from their pay and who did not them-
selves pay dues during the period in question. shall be reduced b the total
amount. if any. of the dues which would have been deducted from their pay
pursuant to signed dues authorizations and a checkoff provision in the col-
lective-bargaining agreement. had Respondent nt failed to withhold and
transmit said dues to the nion. Ogle Protection Service, Inr.. upra. at 683.
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Samer-
ic Corporation and Sameric Corporation of Feaster-
ville, Feasterville, Pennsylvania, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Langhorne, Pa. and Vi-
cinity Projectionists and State Employees Union, Lo-
cal 832, International Alliance of Theatrical State
Employees and Motion Picture Operators of the
United States and Canada, as the exclusive bargain-
ing representative of all its employees in the appro-
priate unit.
(b) Refusing to sign or execute, in writing, the
written agreement reached with the Union or any
other collective-bargaining representative of its em-
ployees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as exclusive representative of all
employees in the aforesaid appropriate unit by exe-
cuting forthwith the agreed-upon contract and by
honoring and complying with the provisions thereof
or, if the Union does not request such execution, bar-
gain collectively in good faith, upon request, with the
Union, as the exclusive representative of its employ-
ees in the unit found appropriate, and, if an under-
standing is reached, embody such understanding in a
signed contract. The appropriate bargaining unit is:
All moving picture machine projectionists em-
ployed by Respondent at its Feasterville theater;
but excluding all other employees, guards, and
supervisors as defined in the Act.
(b) Make whole the employees in the unit found
appropriate herein for any loss of benefits they may
have suffered from March 8, 1978, by reason of Re-
SAMERIC CORPORATION 973
spondent's failure to execute and give affect to said
contract, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) If provided by their contract, reimburse the
Union for all membership dues which, since March
8, 1978, Respondent has failed to withhold and trans-
mit to the Union pursuant to signed dues-deduction
authorizations and in accordance with the checkoff
provisions of the agreed-upon collective-bargaining
agreement, in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Post at its Feasterville, Pennsylvania, place of
business copies of the attached notice marked "Ap-
pendix." 3 Copies of said notice, on forms provided
by the Regional Director for Region 4, after being
duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 4. in
writing, within 20 days from the date of this Order.
what steps the Respondent has taken to comply here-
with.
In the event that this Order is enforced b a judgment of a L nited Saite,
Court of Appeals, the words in the notice reading "Posted hs Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforclng an Order of he
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYFES
POSTED BY ORDER O THE
NATIONAL LABOR Rl.ArlONs BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Langhorne. Pa. and Vicinity Projectionists
and State Employees Union, Local 832, Interna-
tional Alliance of Theatrical State Employees
and Motion Picture Operators of the United
States and Canada, as the exclusive bargaining
representative of all our employees in the appro-
priate unit.
WI WILL Nol refuse to sign or execute, in writ-
ing, collective-bargaining agreements reached
with the Union or any other collective-bargain-
ing representative.
WE WILL Nor in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE Wll.. upon request of the aforesaid Union.
execute and give retroactive effect to the collec-
tive-bargaining contract on which agreement
was reached on March 2, 1978. or, if the Union
does not request such execution, WE WI.l bar-
gain collectively in good faith, upon request,
with the aforesaid Union as the exclusive collec-
tive-bargaining representative of our employees
in the unit found appropriate, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment, and embody in an
agreement any understanding reached. The bar-
gaining unit is:
All moving picture machine projectionists em-
ployed by Respondent at its Feasterville the-
atre: but excluding all other employees,
guards, and supervisors as defined in the Act.
WE WILL reimburse our employees in the unit
found appropriate herein for any loss of benefits
they' may have suffered because we failed to
sign, execute, and give effect to such contract on
March 8, 1978, with interest.
WE WIl.. reimburse said Union for all mem-
bership dues which, since March 8, 1978, were
authorized by our employees to be deducted but
which we failed to deduct and transmit to said
Union, with interest.
SAMFRIC CORPORATION AND SAMERI(C
CORPORATION OF FEASTERVII.IIE
SAMERIC CORPORATION