Texas Cinema Corp.

National Labor Relations Board - Board Decisions

Jan 8, 1974

208 N.L.R.B. 226 (N.L.R.B. 1974)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Cinema Corporation and Motion Picture Ma-
chine Operators , Local Union 249, International
Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United
States and Canada, AFL-CIO. Case 16-CA-5058
January 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 12, 1973, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions of the Administrative 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
1 In the absence of exceptions , we adopt pro forma the Administrative
Law Judge's rulings on Respondent's motion for dismissal of the complaint
2 We note that the Administrative Law Judge inadvertently referred to
1973 rather than 1970 in his first sentence under Sec 11 entitled "The
Alleged Unfair Labor Practices."
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge was filed by the above Union on February 8, 1973.
The complaint issued under date of June 12, 1973, and
alleges violations of Section 8(a)(1) and (5) of the Act in
that Respondent, Texas Cinema Corporation, refuses to
sign a written contract with the Union embodying agreed-
upon terms, and in that Respondent unilaterally reduced
the wages of employees in the unit during the term of the
contract between the Union and the Respondent. In its
answer, Respondent has denied that it engaged in the
i Respondent's brief to me, filed after completion of the hearing, lists
two issues in the case and the brief is confined to those issues. Both of the
aforementioned issues set forth by Respondent are issues of substantive law
and fact and they are not the procedural issues aforementioned that were
raised in Respondent's answer and in a motion at the hearing
unfair labor practices alleged in the complaint. The Case
was tried in Dallas, Texas, on July 17, 1973.
In its answer and at the hearing Respondent raised
several procedural objections to the complaint and moved
to dismiss the complaint on the basis of such objections.'
Respondent asserted that the Regional Director of the
Board lacked jurisdiction to issue the complaint because
the charge had been dismissed by the Regional Director
and the dismissal was on appeal to the General Counsel in
Washington. Although the charge had been dismissed on
March 30, 1973,2 and the action had been appealed
thereafter and was on appeal, the Regional Director
advised the parties by letter of June 7, 1973, that, after
further investigation, he was withdrawing his dismissal and
would issue a complaint. The General Counsel in Washing-
ton was made aware of this action by the Regional
Director and advised the Charging Party that had appealed
the original dismissal of the charge that "In view of the
Regional Director's letter of June 7, 1973, in the above
matter, there is no appeal and this office's records are
being marked closed with respect thereto." I find that the
Regional Director did have jurisdiction to issue the
complaint and the motion to dismiss on this aspect is
denied.3
The second ground on which Respondent moved to
dismiss the complaint was that "there are no supporting
charges behind the complaint now before the tribunal." I
find that the original charge filed on February 8, 1973, is
an adequate "supporting charge" and the motion to
dismiss the complaint for lack of a supporting charge is
denied.
The third ground advanced for dismissal is Section 10(b)
of the Act, in that Respondent asserts that the complaint is
based on matters that occurred more than 6 months prior
to the filing of the charge. The motion for dismissal on this
ground is denied since the evidence reveals that on March
19, 1973, within the 6=month period, the Union requested
Respondent to sign the contract .4
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is a Texas corporation and is engaged in the
business of operating a theatre at Ennis, Texas, and a
theatre in Dallas, Texas. During a representative 12-month
period, Respondent, in the course of its business, received
gross income in excess of $500,000. In the same period, in
the course of its business, Respondent purchased, trans-
ferred, and delivered to its Dallas, Texas, theatre, goods
and materials valued in excess of $50,000 of which goods
and materials valued in excess of $50,000 were transported
to said theatre from other enterprises located in the State of
Texas, which other enterprises had received the said goods
and materials directly from States other than the State of
Texas.
At all times material Respondent is an employer engaged
2 The Regional Director's "dismissal" stated that after investigation he
was "refusing to issue complaint in the matter."
d N.LR.B v Fant Milling Company, 360 U.S 301 (1959).
a Serv-A11 Company, Inc., 199 NLRB 1131, N LR.B v Fant Milling Co.,
supra.
208 NLRB No. 47
TEXAS CINEMA CORPORATION 227
in commerce within the meaning of Section 2 (6) and (7) of
the Act
The Union is, at all times material , a labor organization
within the meaning of Section 2(5) of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
In the latter part of 1973, Mitchell, president of and
stockholder in Respondent, was preparing to open a
theatre in Dallas known as the Bruton Terrace IV Theatre.
Covington, business agent of the Union from 1965 to
January 1972, knew Higgins who was the manager on the
new theatre. Covington told Higgins that he understood
that the new theatre was "getting ready" to install the
motion picture equipment and that Covington would like
to place a man on the job. Higgins said, send a man out.5
Covington then sent Bates to the theatre. Bates was a
member of the Union and assistant business agent as well
as an experienced motion picture projectionist. Thereafter,
Bates helped Mitchell in setting up the equipment and
preparing the theatre for opening. During this preliminary
stage Mitchell paid Bates $6 per hour. Mitchell was aware
that Bates was a union projectionist but this appears to be
the extent of his knowledge about Bates or the union
aspect. Mitchell states that Felder, a sound engineer who
handled work for Respondent, had recommended Bates.
Apparently, Bates had appeared at the jobsite and Mitchell
"told him he had the job." According to Mitchell, the
theatre was close to where Bates lived "and he seemed like
he was a real nice guy and he did his work well."
At some time after Bates was working for Respondent in
installing equipment, Covington came to see Mitchell. This
was shortly before the theatre opened for business and was
early in December 1970. Covington and Mitchell con-
versed about theatres of the type of Respondent's Bruton
Terrace IV. Covington indicated the wage rate being paid
by such theatres and he had a printed form union contract
with him which he showed to Mitchell. In addition to the
printed provisions, the contract also contained a number of
typed-in paragraphs dealing with wages or salary and so
forth. Covington testified that on the first occasion when
he met Mitchell:
We sat down and discussed the whole thing [the printed
contract] right there, and Mr. Mitchell, I don't think
was too familiar with union contracts ... .
It is my opinion, after considering the testimony of
Covington and Mitchell and the entire record, that the
facts and circumstances of the above occasion when
Covington and Mitchell met were as follows: The two men
had never met before. Mitchell had no prior experience
with unions or union contracts, including the instant union
and its contracts. Covington described to Mitchell the
various provisions of the contract. From my observation of
the participants and from the circumstances, I believe that
there was in effect a relatively quick "run over" of the
contract by Covington. The "run over" presentation was
not due to any devious intent on Covington's part. I believe
that he would have been glad to go into each contract
article in detail if Mitchell had made informed questions
about the series of contract articles. But Mitchell, in my
opinion, and as Covington's own testimony, quoted above,
indicates, knew practically nothing about a union contract.
Moreover, from my observation of Mitchell as a witness in
a formal judicial proceeding, which role I believe was also
unfamiliar to him, I would say that he did not impress me
as a person whose mind and statements quickly came into
sharp focus in unfamiliar situations. Nor do I believe that
Mitchell would or did make any definite commitment in
such circumstances.
In short, Covington went through the contract and
Mitchell said little, one way or another. The portion of the
proposed contract that did involve discussion between
Covington and Mitchell was the wage or salary provision.
At the time of the discussion, Mitchell had already been
employing a union projectionist and found the man to be
able and competent and Mitchell was quite evidently
prepared to continue using union projectionists in the
future. The reasons for this attitude are clear : Mitchell
knew of no nonunion projectionists in Dallas and if he
wanted experienced and competent projectionists for his
theatre, currently and in the future, he was probably
obliged to use union projectionists. By the same token, it
was also apparent that if Mitchell was going to secure and
to continue to have union projectionists, the matter of
union wages , i.e., what wages a union projectionist in
Dallas required or would work for, was a matter of great
importance . Also, as a businessman , regardless of his lack
of knowledge about union contracts and about other
aspects of the union contract, Mitchell understood that
wages equal money to be paid, and this concept was both
understandable and important. Mitchell also understood
that the provision in the proposed contract requiring the
employer to make specified payments to the union pension
fund was a money item. Therefore the pension provision
received some attention albeit much less than the wage or
salary provision.
The contract, that Covington presented to Mitchell at the
aforementioned first meeting with Mitchell, provided that
each projectionist (operator) would be paid $40 per shift
for the first year of the contract; $42.50 for the second
year; and $45 for the third year of the contract. According
to Covington, Mitchell said that it would probably take
him a year "to get the theatre on a paying basis, to get it off
the ground" and suggested $35 per shift the first year; $40
the second year; and $45 the third year. Covington said
that he thought about what Mitchell had said "and I
agreed with him that it might be quite a while before he
could get on a paying basis and I would go along with him
if he would come up the second year to $40, starting out at
$35, and then ... the third year at $45."
Mitchell testified that at the meeting with Covington,
above, Mitchell did not read the proposed contract, and
Mitchell had told Covington that he, Mitchell, "wanted to
take the contract and go over it." Mitchell indicated that
he was concerned about the $35-per-shift rate which
Covington told him was the projectionist rate that would
be required when the theatre went into operation, within a
5 Mitchell testified that Higgins had nothing to do with the preparing of
the theatre for operation
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter of a week or so. According to Mitchell, he told
Covington that he would agree to try the $35-shift rate.
Mitchell said, I believe, as he testified, that he would try
the wage rate and if the theatre's business "would pay it,"
i.e., if the theatre's income justified it, there would be no
problem.
As to the pension provision in the proposed contract,
which provided that the employer would pay, from
December 11, 1970, to December 11, 1971, 90 cents per
shift per man into the union pension fund and $1.13
thereafter, Covington explained the plan briefly. I doubt
that Mitchell said much, if anything, on this provision at
the meeting, either affirmatively or negatively.6 Covington
gave him some literature on the pension plan.
In my opinion, the Covington-Mitchell meeting is
appropriately epitomized as follows: Covington had in
mind and was focusing on a complete written contract and
had presented such a contract and verbally ran through its
provisions. Mitchell had no experience with a union
contract and probably had never seen one before. He did
not sit down and read the entire contract at the meeting
and 2ertainly did rot understand all of it. Mitchell's focus
was on the wage rate that he would have to pay union
projectionists to operate his theatre. He had hired one
union projectionist, Bates, and was aware that to secure
and keep competent and experienced projectionists for his
new Dallas theatre, the source and fountain head was the
Union, since the available projectionists were union
members. It was therefore apparent that an accomodation,
understanding, or agreement had to be reached with the
Union regarding the pay and conditions that the projec-
tionists required. Covington and Mitchell did reach some
kind of an understanding or agreement or modus operandi
regarding wages although even on this, the initial under-
standing was not as clear and precise as might be desired.
In the Covington-Mitchell meeting, the latter never said
anything like, I do not want a union in my theatre; or, I am
opposed to using union projectionists; or, I will not sign a
union contract. In other words, Mitchell did not present a
negative front when Covington presented the proposed
contract. But, in my opinion, it is equally true that there
was little, if any, affirmative unqualified response or
affirmative acceptance of the contract by Mitchell. I
believe the following excerpt from Covington's testimony,
under questioning by Union counsel, illustrates the basis
for Covington's contention that Mitchell had agreed to the
proposed contract:
Q. In your initial meeting with Mr. Mitchell, is it
your impression that he had agreed to the contract?
A. Yes, sir.
Q. Why did you feel that way?
A. Because he raised no objections, other than
what I've explained. He asked me to go along with a
lower wage rate for the first year, and we had no
problems other than that.
In the context of all the circumstances, previously
described, I am unable to agree that Covington and
Mitchell had reached a complete meeting of the minds on
the proposed contract and/or that there was a consensual
contract agreement. Later events or subsequent facts, in
my opinion, confirm this conclusion.?
After Covington's conversation with Mitchell, aforede-
scnbed, Covington left the premises and had a complete
contract typed up in his office. Among the items set forth
in the contract were salary provisions of $35 per shift per
man from December 11, 1970, to December 11, 1971; $40
from December 11, 1971, to December 11, 1973; $45 from
December 11, 1973, to December 11, 1974. There was a
provision for $7.25 per hour of overtime and a definition of
overtime work; a provision for a 2-week paid vacation; a
provision that management would abide by the seniority
rules of the Union and an undertaking that the Union
would furnish competent men; there was a provision that I
hour overtime would be paid an operator for "building up"
film and I hour overtime for "breaking down" (films came
to the theatre on small reels ; "building up" was the process
of placing the film on larger reels; "breaking down" was
the reverse process after the film had been shown in the
theatre); and a provision for specified payments by the
Company into the union pension fund plan. Covington
signed this contract on behalf of the Union in the
appropriate space and mailed the contract to Mitchell
about December 11, 1970. There was an appropriate blank
space in the contract for the signature of the company
representative. Mitchell received this contract in the mail
soon after it was mailed.
Thereafter, until and including the date of this hearing,
Mitchell never signed the contract and never returned a
contract signed by the Company to the Union.
In 1971, Covington states that he telephoned Mitchell
about 12 times and was able to reach him 5 or 6 times. The
substance of these conversations between Covington and
Mitchell was that Covington was requesting Mitchell to
sign the contract and return it to him. According to
Covington, Mitchell would tell him that he had been very
busy and had not "gotten around" to the contract, or
Mitchell would say he wanted his lawyer to go over the
contract. Covington states that Mitchell did not indicate
that there was anything "wrong" with the contract but the
net result was that Mitchell never signed and returned the
contract to Covington or to the Union.
During the period from December 1970 through 1971
and thereafter, the Union supplied its union members as
projectionists to Respondent. Respondent used two projec-
tionists daily throughout this period and they had all been
referred by the Union. They were competent workers and
b Mitchell testified that on the pension plan, he felt that since the
Company had no pension plan of its own, he did not feel that he should he
instituting or contributing to someone else's pension plan, i e, the union
pension plan. I do not believe. that Mitchell said this to Covington and he
does not claim to have done so.
At a later point in the testimony, union counsel asked Covington
Q. To put my question bluntly Did Mr Mitchell tell you that he
agreed to the contract in your first meeting'
A Yes "
My only comment on this latter aspect of Covington's testimony is that I do
not credit it. I do not believe that such a statement was made by Mitchell i
believe that Covington assumed that he had Mitchell's assent to the
contract , principally because Mitchell had made no definitive statement of
rejection of the contract.
TEXAS CINEMA CORPORATION 229
there were no complaints by Respondent about the calibre
of the personnel. Respondent paid the union men the
prescribed rate of $35 or $36 and the prescribed overtime.
Seniority was observed since it was an internal union
matter. Seniority operated in the following manner: when
Respondent had an opening or needed a projectionist, the
Union notified its members of the opening. If a member
desired the particular job, he bid for the job in the union
hall and if there were several bidders, the senior member
would prevail and would be sent to the job by the Union.
Respondent employed the projectionists sent by the Union.
At no time did Respondent make the prescribed
payments, or any payments, to the union pension fund on
behalf of the union projectionists that it uniformly
employed. Although there was no provision in the contract
submitted by Covington for health or hospitalization
insurance, Mitchell states that the Company did have such
insurance for its other full time employees and, after the
theatre opened, the projectionists, who were full time
employees, were covered by the existing program .8 The
full-time employees also received 2 weeks' vacation and
Mitchell testified that this included the manager, the office
people, and the projectionists .9
Covington's term as business agent of the Union expired
in ranuary 1972. Welch then became business agent. There
was no copy of the contract that Covington had sent to
Mitchell in December 1970 in the Union files and Welch
testified that he first saw that document or a copy thereof
the d-V before the instant hearing. Covington and Welch
had iot discussed with each other the situation at
Respondent's theatre. As far as appears there was no
wri.ten memorandum in the Union files from Covington
regarding any contract with Respondent or regarding the
fact that Mitchell had never signed the contract or that, as
the General Counsel and the Union now contend,
Covington and Mitchell had verbally agreed to a specific
contract in December 1970.
Welch was aware that Respondent was employing union
projectionists referred by the Union. His first contact with
Respondent took place about April 1972, when he called
Mitchell about Bates. Bates had been the first projectionist
hired by Mitchell and Bates had worked for Respondent
since the opening of the theatre. In 1972 Bates had been ill
for some time and died, apparently, in 1972. During Bates'
illness another union projectionist had been performing
Bates' work. Union policy in such situations was that the ill
man, when he recovered, would then make up the working
time performed by his fellow member during the illness. In
April, it was foreseeable that Bates either would never
regain his health or he was about to the. Welch, therefore,
called Mitchell and proposed that Mitchell pay to the man
who had worked in Bates' behalf during Bates' illness, the 2
weeks' vacation pay that was due to Bates. This was
agreeable to Mitchell and he did as requested.
The next conversation that took place between Welch
8 Full-time employees were the theatre manager, the office people, and
the projectionists Part-time people such as refreshment concession
employees and "the kids" were not covered Evidently by the term "the
kids," Mitchell meant part time young people who probably collected
tickets or ushered or tasks of that type
9 The contract submitted by Covington, as we have seen, provided for 2
weeks' vacation for the rrojectionists.
and Mitchell occurred in the latter part of May or early
June 1972 when Welch telephoned Mitchell. In substance,
according to Welch, Welch told Mitchell that the latter had
been paying the projectionists "$36 a shift but that the
scale should have gone to $38 in September .. .." Welch
testified that it was his opinion when he telephoned
Mitchell as aforedescribed that Mitchell should have been
paying the projectionists "$38" per shift per man since
September 1971. Welch based this position on the fact that,
according to him, in "most of our contracts, the wage scale
changes in September." 10 As to the conclusion that
Respondent's wage scale should not only change in
September but should change in a specific amount, i.e.,
from $36 to $38, Welch states that this was based on "what
the other four-plex were paying." ii Respondent was a four
plex theatre and Welch assumed or took the position that
Respondent should be paying the same union scale as was
paid by other theatres of the same type. In any event, after
Welch told Mitchell that he should be paying the
projectionists $38 per shift, Mitchell said, "I'll take care of
it." to
Although Welch testified that he assumed that Respon-
dent had a written contract with the Union, he had never
seen a copy of such a contract nor had Covington or
anyone else informed him of its contents. The contract to
which Mitchell had allegedly agreed in December 1970,
according to Covington, provided for a scale of $35 the
first year; $40 the second year; $45 the third year; pension
payments and so forth. Respondent never paid into the
pension fund and was paying $36 in 1972, the second year
of the alleged contract. At Welch's request or demand in
June 1972, Respondent raised its scale to $38 or $38.50.
Welch's demand was obviously not based on any alleged
contract on which Covington and Mitchell had agreed in
December 1970, since the alleged contract provided for $40
in 1972, and also since Welch knew nothing about such
alleged contract and had never seen its terms. Welch
demanded the $38 scale because that was the scale paid by
other four plex theatres in Dallas.
In my opinion there was in effect a modus operandi, or
working arrangement or understanding between Respon-
dent and the Union since December 1970, whereby the
Union furnished competent projectionists to Respondent.
The projectionists were union members and Respondent
gave them the pay scale, overtime, and working conditions
that they and their representative demanded. The pay and
the conditions were evidently such that the projectionists
and their Union were willing to accept them and to work
under them since December 1970. If this was not so, the
Union would not have posted for bids by members the job
openings at Respondent's theatre, and members would not
have bid upon such openings and accepted referrals to
such jobs at the particular wages and conditions. Other
than the foregoing, there was no existing contract, oral, or
10 In the alleged contract negotiated by Covington with Mitchell, the
wage scale changed in December of each year
11 A four plex was described by Welch as a four screen automated
theatre
11 Honed, a union member hired as a projectionist by Respondent on
September 1, 1972, was paid $38 50 per shift.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written, in effect between the parties from the inception of
the theatre in 1970.
About October 1972, Mitchell called Welch and said that
he would like to have a meeting with him. They met within
the next few days. Mitchell told Welch that the theatre was
in financial trouble and losing money and that the receipts
were not adequate to support the operation. Mitchell said
that he had already taken measures to reduce or eliminate
advertising cost, janitor service, and other personnel "and
that he had done as much as he could and he was wanting
to get some financial help from the Union." 13 Mitchell
proposed to Welch that the pay per shift per man for the
two projectionists be reduced from $38.50 to $30 and that
the additional pay for "make up" and "tear down" be
eliminated.14 Welch replied that a man could not exist on
such pay. He acknowledged and did not dispute the poor
financial position of the theatre but he said the amount of
money that Mitchell was proposing to save by the cut
would not make that much difference to the business but
was important to the individual employees. Mitchell then
proposed that one projectionist work more shifts and that
he would thus receive a greater income, with the second
projectionist working, in effect, as a part-time relief-man
who could also work at some other theatre. Welch said that
this would not be acceptable because the Union endeav-
ored to limit the amount of time required to be worked by
its projectionists. Mitchell, however, then asked that Welch
take Mitchell's proposal hack to the Union and its
executive board and submit it for approval. Welch said
that he would do so.
Thereafter, Welch called Mitchell and told him that he
had discussed Mitchell's proposal with the executive board
of the Union and the answer was that the Union could not
possibly accept the proposal. Welch said, however, that the
Union would be prepared to forego the pay for "build up"
and "tear down" until about Easter or whenever business
picked up" and that "whenever business picked up, he
[Mitchell] would start paying the build up and tear down
again." Welch then spoke to the projectionists at Respon-
dent's theatre and asked them if they would be willing to
forego "build up and tear down" in order "to help Mr.
Mitchell through these trying times, and the men agreed."
For about a week or more thereafter, the projectionists did
not charge Respondent for "build up and tear down."
Without further announcement, they then resumed charg-
ing for "build up and tear down" and were paid for such
work.15
Welch testified that he had not intended that the
projectionists should actually place in effect the relinquish-
ment of "build up and tear down" pay but that it was only
a proposal to which he had wanted to get the projectionists'
reaction. Evidently the men misunderstood and began
foregoing the "build up and tear down" pay. They began
charging for such work again when Welch learned what
they had down and told them to resume charging. Welch
informed the men that it was simply a proposal and no
agreement had been reached. Mitchell, like the projection-
ists, had also evidently misunderstood Welch. Mitchell
testified that Welch had told him that the projectionists
were going to forego the "build up and tear down" pay.
The next event was that for a week or more the men did
not charge for "build up and tear down." Then, without
further explanation to Mitchell, the projectionists began
once more to charge Respondent for such work.
Welch testified that between October 1972 and January
1973, he and Mitchell discussed Mitchell's proposed pay
cut on two occasions. Mitchell testified that they spoke
about four different times and that the last occasion was
around the end of November which was the occasion when
Welch first announced that the men would forego the
"make up and tear down pay," as described above.
Although it is not entirely clear , I believe that Mitchell
and Welch spoke about the proposed cut on two or three
occasions between October and January and that the last
talk was in the latter part of November, followed by the
relinquishment of make up and tear down pay and the
resumption thereof without further discussion. In my
opinion, what transpired in these conversations between
Welch and Mitchell has been described in the preceding
paragraphs, above. Neither party during this 3-month
period proposed any meeting that was rejected by the other
and they never reached an agreement.
On January 8, 1973, Mitchell wrote to Welch:
As you will recall our last conversation in regard to our
payroll adjustments for the Bruton Terrace IV, it is
imperative that we make these adjustments effective
January 12, 1973.
So that there won't be any misunderstanding, the pay
scale will be $30.00 per shift, which will include make
up and tear down. This adjustment is with the
understanding that this is on a temporary basis. Just as
soon as this crazy business we are in comes out of
limbo I will be more than happy to sit down and
completely review the situation.
I feel like you realize the necessity of this move. Of
course, you are totally aware that we have made every
effort to stimulate the theatre and that if there were any
other possible way out we would certainly take it.
Thereafter, about January 12, Mitchell placed in effect
the lower pay scale he had first proposed to Welch in
October 1972, i.e., $30 per shift per man, instead of $38.50,
and the elimination of extra pay for make up and break
down of film from smaller to larger reels and vice versa. As
far as appears, the projectionists have continued to work at
the lower scale from January 12 up to and including the
time of hearing.
On January 22, 1973, the attorney for the Union wrote to
Mitchell
11 This is Welch's testimony
14 In the record, the terms, "build up" or "make up" are synonymous
and this is also true of their opposites, "tear down." or "break down."
15 The projectionists' practice was to write up their own time sheets and
then turn them over to Respondent for payment On the sheet they would
write the number of shirts worked and the amount of "build up and tear
down" work performed As we have seen , for a week or so they did not
enter any "build up or tear down" time on their time sheets but thereafter
resumed charging for such work Welch states that Mitchell had indicated
that elimination of make up and tear down alone would not result in a
sufficient saving.
TEXAS CINEMA CORPORATION
. to inform you of the Union's position regarding
the wage decrease which you have informed Mr. Welch
you plan to put into effect. It is the position of the
Union that a unilateral wage increase [decrease] at this
time would be a violation of both our federal labor laws
and a breach of the agreement between yourself and
the Union.
I sincerely hope that we will be able to reach an
amicable disposition of this matter in the very near
future . . .
On March 19, 1973, Welch wrote to Mitchell stating that
Welch had recently learned that Mitchell had not signed
and returned the contract agreed upon and submitted by
Covington to Mitchell in December 1970. Welch requested
in the letter that Mitchell sign the contract and return it to
Welch.
Mitchell's attorney replied on April 18, 1973, to Welch's
letter of March 19, 1973. In substance, it was denied that a
contract, written or oral, had been reached, but admitted
agreement to pay a certain wage scale on a tentative basis;
it was stated that the wage scale was reduced in 1973 for
economic reasons after discussions with the Union. The
last full paragraph stated:
The Company does not at this time refuse to recognize
your organization as the exclusive bargaining agent for
the projectionists at the Bruton Terrace Theatre. If you
so desire, the Company's representative or representa-
tives will be glad to meet with you at any reasonable
time and place to negotiate a formal, written collective
bargaining agreement covering the projectionists in
question.
Conclusions
Since the opening of the theatre in December 1970, the
Union has been the exclusive bargaining agent in an
appropriate unit of Respondent's employees consisting of
all motion picture machine operators (projectionists)
employed by Respondent at its Dallas theatre, excluding
office clerical employees, guards, and supervisors as
defined in the Act. Respondent has recognized and has
continued to recognize and acknowledge the aforemen-
tioned status of the Union.
For reasons more fully set forth in this Decision, above,
Respondent had not refused, in violation of Section 8(a)(1)
and (5) of the Act, to sign a written agreement with the
Union and there was no meeting of the minds, orally or
otherwise, in 1970 or thereafter, on such purported
agreement. (G. C. Exh. 2.)
It is also my opinion and I conclude that Respondent did
not unilaterally reduce the wages of the unit employees in
violation of Section 8(a)(1) and (5) of the Act.
Regarding the wage reduction, which was substantial,
Mitchell told Welch that the theatre was losing money and
was in financial difficulty because the receipts were down.
Mitchell said he had taken all the steps available to place
the operation on a viable base. He had cut or eliminated
advertising, janitorial service, and other personnel. He
231
asked Welch to agree to a decrease in projectionists' shift
pay to $30 and to eliminate extra pay for make up and
break down. Welch said that he could not agree to this
decrease. He did not dispute any of Mitchell's assertions
about the bad financial state of the business, and the
projectionists who were in the theatre 7 days a week were
certainly in a position to know and to inform Welch if the
theatre's attendance and gross were bad, as asserted by
Mitchell, or whether attendance and gross were excellent,
good, or fair. Mitchell's asserted cuts in other personnel or
services were also readily verifiable and they were not
controverted or disputed.
Welch indeed implicitly acknowledged that business was
bad when he said that the projectionists would forego
make up and break down pay until business improved and
that, at such indefinite time in the future when improve-
ment occurred, then make up and break down pay would
be restored.
The Union was unwilling to accept the pay decrease
proposed by Mitchell. From the standpoint of the Union
and the employees the position is understandable. From
the same standpoint, the Union was unwilling to accept
Mitchell's suggestion that one projectionist could work
more shifts at a reduced rate but with greater net income,
by converting the other projectionist to a part time relief
man, with the latter having the opportunity to work
elsewhere in a supplemental job.
When the Union rejected Mitchell's proposal, Welch
testified, "I expected him to make some other proposal to
me." Mitchell did not do so. In the 3-month period from
October to January, when the Union made the single
counterproposal of foregoing make up and break down,
which the projectionists placed in effect briefly and
withdrew at Welch's direction without any explanation to
Mitchell for the action and counteraction, neither party
moved from its basic position. Mitchell was evidently firm
in his position that, for economic reasons and loss of
money, he could pay no more than $30 per shift per man.
The Union found such a proposal to be unacceptable and,
as Welch's testimony indicates, the Union expected that
this would induce or oblige Mitchell to make another
proposal, quite evidently for a lesser cut in pay.
In my opinion, it is not the law that because Mitchell did
not change his position or proposal and make another
proposal, presumably for a lesser cut in pay, that he
thereby negotiated in bad faith The single element of a
firm position in negotiations does not equate with bad faith
bargaining. It is conceivable that Mitchell might have
originally proposed a reduction to $28 instead of $30, and
then, upon union rejection, might have proposed a cut to
$30 instead of $28. He did not do so. Perhaps the Union
would have agreed to a cut to $35 or $36 and perhaps
Mitchell might have accepted $35 or proposed $32, but in 3
months neither party made any such proposals. It is my
opinion that neither party was hostile to the other and each
would have preferred to reach agreement on the wage
structure. They were unable to agree and, in my opinion,
Respondent did not violate the Act.
CONCLUSIONS OF LAW
Respondent has not engaged in unfair labor practices in
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(1) and (5) of the Act as alleged in ORDER
the complaint.
The complaint is dismissed.