United Artists Theatre Circuit, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1980

250 N.L.R.B. 922 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
July 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 17, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, the Charging Party
Union and counsel for the General Counsel filed
exceptions and supporting briefs, and Respondent
filed a reply 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 had considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to remand this case to the
Administrative Law Judge for credibility determi-
nations and the issuance of a Supplemental Deci-
sion.
In his Decision the Administrative Law Judge
quoted or summarized the testimony of witnesses
for the General Counsel and for Respondent. Wit-
nesses for the General Counsel clearly testified that
the Union and Respondent reached oral agreement
on the terms of a collective-bargaining agreement
on August 9, 1978.1 Respondent's witnesses denied
that an agreement as described by the General
Counsel's witnesses was reached on that date.2 In
his Decision, however, the Administrative Law
Judge failed to make critical credibility determina-
tions regarding such conflicting testimony. The
Administrative Law Judge's sole credibility deter-
mination serves only to clarify that some time prior
to August 15, Respondent Vice President Gal-
lagher told the Union that its position with regard
to what transpired at the August 9 meeting was er-
' These witnesses testified that Respondent agreed to the Union's pro-
posal that Respondent's Westwood theaters, covered by the expired con-
tract, be operated by manager-projectionist subject to interview of its
members and that Respondent would accept the "full contract" il the re-
maining theaters according to the terms of a previously negotiated asso-
ciationwide contract between the Union and other employers. This con-
tract contained a provision for holiday pay which Respondent had earlier
resisted. These witnesses further testified that they agreed to Respond-
ent's condition that the Westwood projectionists resign from their posi-
tions at the Westwood theaters.
z In recounting this testimony, the Administrative Law Judge incor-
rectly stated that Vice President Gallagher denied that the position of
manager-projectionist at the Westwood theaters was mentioned at the
meeting on August 9 On cross- examination. he admitted that the Union
suggested such a proposal.
250 NLRB No. 135
roneous. This finding, however, is fully consistent
with the General Counsel's position that Respond-
ent repudiated the agreement after the August 9
meeting. 3
We further disagree with the Administrative
Law Judge's rationale that the Union's quiescence
upon hearing that Respondent had a different view
of the events of August 9 evidences its concurrence
with Respondent's position. On August 15, the
union members ratified the agreement which the
Union claims was reached on August 9, and the
Union so notified Respondent. While Respondent
expressed to the Union a contrary view regarding
the terms of the agreement, the returning strikers,
nevertheless, received additional benefits identical
to those contained in the associationwide contract. 4
As the record indicates that Respondent had con-
tinued to operate during more than 4 months of
strike activity, we draw no adverse inference from
the Union's decision not to reinstate the strike. In
any event, the Administrative Law Judge incor-
rectly states that the Union did not timely file an
unfair labor practice charge.5
Finally, we note that the diverse positions taken
by the General Counsel and the Union provide no
basis for the dismissal of the complaint herein. The
General Counsel's witnesses testified that the par-
ties agreed that employees at the Westwood the-
aters, who had been covered by the expired con-
tract, would no longer be covered by terms of the
contract agreed to on August 9. The General
Counsel and the Union agreed that the Westwood
theaters were to be excluded from the agreement
allegedly reached on August 9. Their dispute, how-
ever, focuses merely on the effect of the agree-
ment, with the General Counsel conceding, and the
Union denying, that the Union thereby disclaimed
interest in further representing manager-projection-
ists at the Westwood theaters. 6 This collateral
matter has no bearing on the instant proceeding as
no party contends that the Westwood theaters are
covered by the alleged August 9 agreement.
:' While such a finding indicates that Gallagher had the subjective un-
derstanding that no such agreement had been reached, the General Coun-
sel's witnesses likewise revealed they had a subjective understanding that
Respondent had reached such an agreement These subjective under-
standings provide no solid basis upon which to determine the events of
August 9. absent specific credihility determinations
T4 he employees received a regular wage increase and many initially
received extra pay in accord with the holiday pay provisionl here in dis-
pute Moreover. Respondent conlducted interviews of the Uliloln's projec-
tiloniss, which the Union claims the parlies had agreed to on August 9
a The instant ullfair labor practice charrge sas filed on January 311
1979, well within the time limits defined in Sec l(hb) of the Act
i lihe (jeneral Counsel's position here stems from his determination
that Ihese porittins are supervisory
922
UNITED ARTISTS THEATRE CIRCUIT, INC
ORDER
It is hereby ordered that the above-captioned
proceeding be, and it hereby is, remanded to Ad-
ministrative Law Judge Gerald A. Wacknov for
the purpose of making credibility determinations
with respect to the testimony of the witnesses re-
ferred to herein, particularly with respect to the
events of August 9, 1978.
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
Supplemental Decision containing credibility deter-
minations, findings of fact, conclusions of law, and
recommendations to the Board, and that, following
service of such Supplemental Decision on the par-
ties, the provisions of Section 102.46 of the Board's
Rules and Regulations, Series 8, as amended, shall
be applicable.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on Octo-
ber 25 and 26, and November 1, 1979. The charge was
filed on January 31, 1979, by Moving Picture Projection-
ists, Local 150, International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of
the United States and Canada (herein called the Union).
On March 26, 1979, the Regional Director for Region 31
of the National Labor Relations Board (herein called the
Board) issued a complaint and notice of hearing alleging
a violation by United Artists Theatre Circuit, Inc.
(herein called Respondent), of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended (herein
called the Act). On September 6, 1979, the aforemen-
tioned Regional Director issued an amended complaint in
the captioned matter. Respondent's answers to the com-
plaint and amended complaint, duly filed, deny the com-
mission of any unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Charging Party.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation engaged in the
business of operating motion picture theatres, including
theatres in the Metropolitan Los Angeles, California,
area. In the course and conduct of its business operations
Respondent annually derives gross revenues in excess of
$500,000 and annually sells and ships goods or services
valued in excess of $50,000 directly to customers located
outside the State of California. It is admitted, and I find.
that Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI VED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
iii. THE UNFAIR I ABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
Respondent violated Section 8(a)(5) and (1) of the Act
by repudiating the terms of a verbal collective-bargaining
agreement.
B. The Facts
1. Background
The parties have maintained a collective-bargaining re-
lationship for over 15 years. In late August or early Sep-
tember 1977 the parties commenced bargaining negotia-
tions for a successor contract to the then current collec-
tive-bargaining agreement which expired on February 1.,
1978, and which covered projectionists at certain of Re-
spondent's theatres, including two theatres in Westwood.
Respondent had previously belonged to the Southwest
Employers Association, a multiemployer association or-
ganized for the purpose of bargaining with the Union,
but withdrew from the Association prior to the instant
negotiations in order to thereafter bargain on an individ-
ual basis. In August or September 1977, the Union pre-
sented to Respondent's negotiators, Jim Gallagher, vice
president, and Richard Goldman, corporate counsel, the
identical contract proposals which it was simultaneously
presenting to the Association. Gallagher stated that he
would study the proposals, but indicated that he would
not commit Respondent to a contract until the Associ-
ation negotiations had been concluded. The Union
voiced no objection to this procedure.
The Union and the Association agreed to the terms of a
contract on January 12, 1978, and shortly thereafter the
Union arranged a meeting with Respondent. The Union
was represented by Business Manager Ralph Kemp and
President Frank Rubin. Gallagher and Goldman repre-
sented Respondent. Gallagher received the contract
which had been agreed to by the Association and said he
would get back to the Union before the end of January.
Several days thereafter another meeting took place, and
Gallagher stated that the contract would be acceptable
to Respondent with two modifications, namely, unlike
the prior contract and the new Association agreement,
Respondent would not pay time-and-a-half for holiday
work by projectionists except in the case of specially
scheduled holiday matinee performances;' and Respond-
ent wanted its two theatres in Westwood, which are Io-
I II the prior COlntra I and ntuv Aswocl.,ilolln conlt.lacl thcre .crre c.cr-
il hollida!i ftir vhih procctllllils rcccliCd ,scrllnlte p.t!
'2 3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated several blocks apart, to be run by one operator
rather than two.2 There were additional, but less serious,
issues involving contract language on other items with
which the parties agreed in principle.
Thereafter, the parties met about every 2 weeks. The
same individuals were present and the same positions
were taken with no movement on either side. Similarly,
numerous telephone conversations between the parties
failed to result in agreement.
2. The Union's position
At one meeting prior to May 1978, Kemp proposed
that the Union would withdraw the holiday pay proposal
if Respondent would increase the regular hourly rate by
3 cents per hour, having computed that the additional 3
cents per hour equaled what the projectionists would
have received in holiday premium pay. Gallagher said,
according to Kemp, "We have a deal."
At the next meeting, Kemp stated that the Union was
happy with the movement at the prior meeting regarding
holiday pay but Gallagher denied that he had made such
an agreement. Kemp accused Gallagher of being a liar
and the meeting broke up. Rubin testified that he called
Gallagher a "no good son-of-a-bitch." There was no
movement in subsequent negotiations. A strike com-
menced about May 1, and ended on August 15, 1978.
On August 9, 1978, a meeting was held in San Francis-
co at the office of Robert Naify, president of Respond-
ent. Also present, in addition to Naify, were the four
aforementioned representatives of the respective parties.
According to Kemp and Rubin, the Union proposed that
if Respondent agreed to the Association contract, the
Union would agree that the Westwood theatres would
go "projectionist-manager subject to interview of our
people," Respondent's representatives caucused, and then
stated they would accept the Association contract in the
remainder of the theatres, and the projectionist-manager
concept at the Westwood theatres. The union representa-
tives said the agreement would be taken to the member-
ship for ratification within a week, and Naify suggested
to the four individuals that they step outside his office
and negotiate the details and technicalities. Outside in the
hallway the union representatives referred to the previ-
ous contract as containing the framework for implement-
ing the projectionist-manager concept.3 Goldman agreed
and said the projectionists would have to give up their
rights to the jobs they currently held and would be inter-
viewed for the position of projectionist-manager at the
two Westwood theatres.
The ratification meeting was held on August 15, 1978,
at which time Kemp and Rubin reported to the member-
ship the terms of the aforementioned agreement. The
agreement was ratified and resignation letters were
signed by most of the Westwood projectionists. Immedi-
2 As a result of new sophisticated and reliable automated projection
equipment at the two theatres. Respondent took the position that one
projectionist could readily walk back and forth between both theatres
and perform the necessary work
3 The prior agreement contained a clause entitled "Manager-Pl'rojec-
tionisi" which clause merely indicates that such a classification may exist.
but does not indicate whether the Union shall have the right to represent
employees in this classificationl
ately thereafter Kemp so advised Gallagher, who again
agreed to the aforementioned terms and said, "put the
men back to work." Gallagher suggested that the Union
set up the interviews for projectionist-manager and stated
that he would begin to interview the applicants. Thereaf-
ter, the striking employees, except for the projectionists
at the Westwood theatres who had resigned their em-
ployment, returned to work.
Following the conversation with Gallagher on August
15, Kemp sent the following telegram to Naify:
MOVIE PICTURE PROJECTIONISTS LOCA[ 150 HAS AC-
CEPTED YOUR PROPOSAL TO RELEASE THE TWO
WESTWOOD THEATERS FROM OUR COLLECTIVE-BAR-
GAINING AGREEMENT (PROJECTIONIST-MANAGER
OPERATION). I PRESENTLY HAVE THE FIVE LETTERS
OF RESIGNATION FROM THE WESTWOOD PROJEC-
TIONISTS YOU REQUESTED. 4
THE REMAINING THEATERS WILL OPERATE UNDER
THE 5 YEAR MAJOR THEATER CONTRACT. THIS WAS
THE AGREEMENT REACHED IN OUR MEETING IN SAN
FRANCISCO. OUR DISPUTE IS OVER AND I LOOK FOR-
WARD TO A FAVORABLE RELATIONSHIP WITH YOUR
COMPANY. I would appreciate a call from you on this
matter as soon as possible as Jim Gallagher seems to
hesitate in recognizing our agreement. [Emphasis sup-
plied.]
Naify replied by telegram dated August 16, 1978, as
follows:
WE AGREED TO UA WESTWOOD AND CINEMA
CENTER [two Westwood theatres]BEING COMPANY
OPERATED PROVIDED RESIGNATIONS WERE FORTH
COMING.
I WAS VERY SPECIFIC THAT OUR COMPANY WOULD
NOT NEGOTIATE FOR HOLIDAY PAY IN ANY CON-
TRACI IN WHICH WE ARE INVOLVED. WE SPOKE OF
NO OTHER ISSUES THAI' MAY BE OUTSTANDING BE-
TWEEN OURSEIVIS AND THE UNION. THESE MAT-
TERS MUSI BE NEGOTIATED BETWEEN YOU AND
GALLAGHER AND GOLDMAN AS I ADVISED YOU
BEFORE I COUI.I) NOT BECOME INVOLVED IN THE
NEGOTIATIONS DIRECTLY WITH YOU.
And on August 17, 1978, Goldman sent the Union a
letter outlining the parties' discussions during a phone
conversation the preceding day. The letter stated as fol-
lows:
Concerning our conversation of yesterday, you
have indicated to Jim Gallagher and myself that we
have reached substantial agreement on a new con-
tract.
For the two Westwood Theatres, you have in-
formed us that you have written resignations from
all projectionists who were working at the theatres
prior to the strike and that you will confirm in writ-
ing that your union no longer desires to represent
4 In fact, Kemp had only three such letters in his possession The two
other projectionists did not sign such letters until they were required by
the U nion' s execulive comn ittee to do so on September I1, 1978
924
UNITED ARTISTS THEATRE CIRCUIT, INC.
these theatres (by form I have previously sent
you).5
As to the other theatres, our contract shall be
substantially the same as that you have previously
negotiated with the other majors; except that it shall
provide for no premium holiday pay and that the
non-business terms will be rewritten as outlined in
the memo I have previously given you. If there are
any terms in that memorandum that are unaccepta-
ble to the union, you have told me that you will
have your attorney contact me to work out those
issues.
About the end of August the employees who went
back to work said they were not receiving the correct
wage rate under the new contract. Kemp called Gal-
lagher, who stopped by at the Union's office and said he
would rectify the situation. Also, Gallagher emphasized
that Respondent had not agreed to pay the holiday pay.
Kemp accused Gallagher of reneging on the deal made
in San Francisco.
On September 14, 1978, Goldman sent the following
letter to the Union:
This is to confirm that Local 150 has renounced
representation of employees at the UA Westwood
and the Westwood Cinema Center following the
resignation of the projectionists employed at those
theatres.
By mid-September, the Union had received responses
from 27 members who desired to be interviewed by Re-
spondent for the position of projectionist-manager and
the said individuals filled out applications prepared by
management. There were three groups of interviews, and
Kemp attended portions of most of them. The interviews
were concluded 'around the end of October. According
to Kemp, Gallagher mentioned to the applicants that the
interviews were for the position of projectionist-manager
at the two Westwood theatres. At one point during a
telephone conversation with Kemp, Gallagher confirmed
that he was "Going to hire your people in Westwood."
Alan Jaquish, secretary-treasurer of the Union, testified
that he was listening to the conversation on an extension
and heard Gallagher make this statement. None of the in-
dividuals interviewed were ever hired.
Kemp had one meeting with Richard Goldman after
the aforementioned interviews. Goldman presented con-
tract language changes, which he regarded as being non-
substantive, but there was no agreement as Kemp said
the changes were too technical for him and referred
Goldman to the Union's attorney, Gerald Goldman.
Thereafter, the parties' respective attorneys were like-
wise unable to agree on contract language.
The projectionists did not receive holiday pay for
Christmas 1978.8 Kemp so advised Gallagher who re-
plied that Respondent would not pay holiday pay and
did not intend to "Hire your people in Westwood."
' Goldman had sent a form letter for the Union's signature. confirming
the Union's agreement to renounce representatilon of employeen at Ihev
theatres.
I It appears that some projeclionists swere paid holida5 pa!, for L.ahor
Day 1978 The Respondents reasons for this are discussed bhclo
Kemp testified that he did not respond to the August
16, 1978, telegram from Naify, but merely ignored it.
Further, Kemp did not reply to Goldman's August 17,
1978, letter because it did not make sense to him, so he
also ignored it. In justification of this inaction, Kemp tes-
tified, "This is Mr. Goldman and Mr. Naify's style that I
ran into so I just ignored it." Rubin discussed the corre-
spondence with Kemp and testified, "I thought it was a
joke." When asked to explain, he said, "Well, with
United Artists, anything they said you can't take serious-
ly. They had made an agreement prior and had broken
it. To Ralph and me it was continually-they would
make an agreement and then break it. It's a flakey com-
pany." Rubin further testified, "They had broken agree-
ments with us prior to this and it was par for the course
with United Artists. They are always looking for a better
deal than the rest of the major circuits."
3. Respondent's position
Richard Goldman was corporate counsel for Respond-
ent, from 1976 through April 1979, and was no longer
employed by Respondent at the time of the hearing
herein. Goldman testified that the August 9, 1978, meet-
ing with Naify was, from Respondent's point of view,
for the purpose of having Naify personally affirm Re-
spondent's position on the outstanding issues. These posi-
tions were reiterated by Naify. Moreover, pursuant to in-
quiry by the union representatives, Naify said he would
be willing to consider a concept of manager-projection-
ist. However, it was specifically pointed out that Re-
spondent did not want to have a union contract covering
this position, because the Company would thereby be
giving managerial control to the Union. The union repre-
sentatives responded that they would be willing to dis-
cuss this matter with Respondent provided that their
members could be utilized in the position of manager-
projectionist. Goldman and Gallagher were directed by
Naify to explore this with the Union. On the matter of
holiday pay, Naify reitereated his belief that the theatre
business was primarily a holiday business for which holi-
day pay was inappropriate, and was adamant in affirming
that there would be no movement by Respondent on this
issue. Goldman, who did not attend the first part of the
meeting, does not recall that the Westwood theatres
were specifically mentioned, and does not believe that he
and Gallagher met with the union representatives after
leaving Naify's office that day.
Goldman's testimony indicates that several days there-
after, apparently on August 16, 1978, the union repre-
sentatives took the position that they would give up any
representational rights at the Westwood theatres rather
than establish the principle of having a projectionist walk
a considerable distance between two theatres. Goldman
thereupon forwarded a letter to the Union, the aforemen-
tioned letter of August 17, 1978, confirming this discus-
sion with the Union.7
Goldman recalls that the conversation of August 16,
1978, was pleasant, and everyone seemed satisfied. Kemp
' (;ldnian admitted thlill hie had no detailed reioll.ctiloll of each ll'eel
-
ilig and discussion. and that his tetionl.un s.ias largcl 5 directed h Ithe
siubstailllce of the correspolldenie hbcl et ll t'ie partles
925
DECISIONS O() NATIONAL I ABOR RELATIONS BOARD
said that he had written resignations from the Westwood
projectionists and agreed that Respondent would operate
the Westwood theatres with nonunion personnel. Fur-
ther, Kemp expressed his disappointment over the holi-
day pay matter, but agreed that holiday pay would be
omitted from the contract. Finally, Kemp and Rubin
agreed that the contract language would be finalized by
the Union's attorney.
Gallagher testified that Goldman came in at the latter
part of the August 9, 1978 meeting, and that Rubin was
the chief spokesman for the Union. Rubin explained that
the Union could not agree to having one projectionist
cover two theatres, because other theatre operators
would also insist upon such a concession. Naify ex-
plaitned that with automated projection equipment there
was no need for a projectionist to remain in the booth,
and that one projectionist could handle any emergencies
at either theatre. Holiday pay was discussed, but Naify
refused to agree to the Association contract holiday pay
provision. Either Rubin or Kemp mentioned that the
Union had had a manager-projectionist "program" and
had many members who would be qualified to fill this
position. This was discussed and considered, and Gal-
lagher said there was a problem getting a manager at
Woodland Hills, a theatre which was then under con-
struction and which Respondent would be opening at
Christmas time. Gallagher indicated that he would not
be averse to interviewing union members for this posi-
tion or other similar positions. He testified that the posi-
tion of manager-projectionist at the Westwood theatres
was not mentioned. Gallagher's testimony indicates that
he and Goldman had no discussion with Kemp and
Rubin after leaving Naify's office. Gallagher maintained
that there was no agreement on any subject on August 9,
1978, but that agreement was reached on August 15,
1978, as outlined in Goldman's August 17, 1978, letter to
the Union.
Gallagher stated that during his conversation with
Kemp on August 15, 1978, while Goldman was listening,
Kemp specifically acknowledged that holiday pay would
not be covered by the contract. He further testified that
due to inadvertence, some theatre managers paid holiday
pay on Labor Day 1978 to some projectionists and were
thereafter instructed that projectionists were not to re-
ceive holiday pay. 8
Naify testified that he received a call from Rubin
which culminated in the August 9, 1978, meeting. The
meeting lasted about an hour, and there was no agree-
ment on any issue. After some discussion regarding the
projectionists at the Westwood theatres and Respond-
ent's reiteration of its position, Rubin stated, "Well, sup-
posing you operate your Westwood Theatre nonunion.
Would that be O.K. with you?" Respondent's representa-
tives stated they would agree to this, but apparently the
Union did not then acquiesce. The union representatives
suggested a manager-projectionist concept and Naify
said, "We have it in some situations and we would cer-
tainly be willing to negotiate that."
" A memo sent to the theatre managers subsequent Ito the strike sets
forlh the new wages iof projectionists and does not mention holiday pay
C. Analysis and Conclusions
This case is predicated upon the contention of the
General Counsel and the Union that the parties reached
agreement on the terms of a collective-bargaining agree-
ment at the August 9, 1978, meeting, and that Respond-
ent is thereby required to sign a contract which em-
bodies the agreed-upon terms. Interestingly, the diverse
positions of General Counsel and the Union regarding
what they believe was the commitment of Respondent
regarding the critical element of the Union's continuing
status as bargaining representative of employees at the
two Westwood theatres, mandates dismissal of the com-
plaint herein without regard to the merits of the case.
Thus, the General Counsel, in agreement with Re-
spondent, takes the position that the Union disclaimed
any further interest in representing the projectionists or
manager-projectionists at the two Westwood theatres,9
while the Union steadfastly maintains that such was
never the case but rather that, as enunciated by the
Union at the hearing1 ° and as the Union's post-hearing
brief explicitly states, "The Union would hold the em-
ployer to its commitment of hiring union represented
projectionists as projectionist-managers in Westwood
pursuant to the projectionist-manager clause in the previ-
ous agreement." Simply stated, to conclude herein that
the General Counsel's view is the correct one would re-
quire that the Union disavow any representational rights
it asserts at the Westwood theatres. The Union vehe-
mently opposes this result, and insists that the agreement
it reached with Respondent includes the right of the
Union to represent "manager-projectionists." This dilem-
ma is not addressed by the parties in their respective
briefs, and I find that it constitutes a fatal defect to the
complaint herein. The Union, not being a respondent in
this proceeding, is not subject to the sanctions of a reme-
dial order and therefore it would be an exercise in futil-
ity to require Respondent to enter into an agreement to
which the Union does not agree.
As would be expected in a case where even the Gen-
eral Counsel and Union are unable to agree upon the
terms negotiated by the parties, a plethora of bewilder-
ing, vague, and inconsistent testimony was presented by
all the parties to this proceeding, sometimes admittedly
resulting from failure to take notes or maintain records,
and also resulting from inability to recall with any
degree of precision the substance of various meetings and
conversations.
Regardless of whether the parties ever came to a
mutual agreement regarding the Union's representation
of manager-projectionists at the Westwood theatres, I
find that the record evidence is clearly insufficient to
warrant the finding that Respondent agreed to the pay-
ment of holiday pay at its remaining theatres.
9 However, the General Counsel apparently contends that such agree-
ment occurred al the August 9, 1978, meeting, whereas Respondent main-
tains that the agreement was reached thereafter.
"' Thus, the Union's attorney stated at the hearing that "it was agreed
by the partnics that these people [manager-projectionists] would be repre-
sented by the Union That was very clear And that was part of the
agreement and the Employer simply reneged on that agreement."
920
UNITED ARTISIS THEATRE CIRCUIT. INC.
By telegram dated August 15, 1978, Kemp outlined to
Respondent the agreement purportedly reached on
August 9, 1978, and specifically stated, "I would appreci-
ate a call from you on this matter as soon as possible as
Jim Gallagher seems to hesitate in recognizing our agree-
ment." I discredit any contrary testimony of Kemp or
Rubin and find that, sometime prior to the sending of
this telegram, Gallagher did in fact tell the Union that its
position with regard to what transpired at the August 9,
1978, meeting was erroneous. No other reading of the
telegram appears plausible.
The next day, August 16, Naify replied to the afore-
mentioned telegram, stating, inter alia, "I was very spe-
cific that our company would not negotiate for holiday
pay in any contract in which we were involved." And
this position was reiterated by Goldman in a letter which
the Union received within several days thereafter.
Despite these unequivocal statements which clearly
and completely contradicted what the Union purportedly
believed had been agreed to, the Union chose to do abso-
lutely nothing to reassert its position. Significantly, it did
not even wait for Naify's reply to its August 15, 1978,
telegram, but rather terminated the strike in the face of
Gallagher's refusal to recognize what the Union purport-
edly believed to be the agreement. Neither did it thereaf-
ter reinstate the strike, nor reply verbally or in writing to
Respondent, nor timely file an unfair labor practice
charge. Rather, the Union proceeded to cause the strik-
ing employees to return to work, and required that the
remaining Westwood projectionists who had not already
done so submit letters of resignation to Respondent.
Such conduct is totally incomprehensible given the clear-
ly articulated written position of Respondent setting
forth its characterization of what transpired between the
parties. Even more incomprehensible is the Union's
rationale for its failure to act. Thus, Kemp said he did
not reply to the communications, but merely ignored the
telegram from Naify and disregarded Goldman's letter as
being nonsensical. Rubin testified that he believed the
correspondence was a joke that could not be taken seri-
ously, and that Respondent was prone to breaking agree-
ments as it had done in the past when Gallagher alleged-
ly reneged on the 3-cent-per-hour increase he had at one
time agreed to. Such considerations articulated by Kemp
and Rubin would appear to warrant an immediate re-
sponse from the Union, and it is difficult to conceive that
the Union would pass off such a serious matter as being
a joke or unworthy of a reply.
The conduct of the union representatives, detailed
above, and the reasons enunciated by Kemp and Rubin
in purported justification of such conduct, is totally il-
logical and implausible and does not comport with any
reasonable behavior governing union-employer relations.
Particularly in the instant case, where the record is re-
plete with caustic expressions of the parties' mutual mis-
trust, it is inconceivable that the Union would permit
such critical matters, over which the Union chose to
strike, to remain unchallenged. Therefore, I am con-
strained to find that the Union's conduct clearly evi-
denced concurrence with the position taken by Respond-
ent in its written communications, namely that at no time
did Respondent agree to the payment of holiday pay.
The fact that Respondent paid certain projectionists
holiday pay for Labor Day 1978 does not warrant a'dif-
ferent result. Respondent point's out that its managers.
pursuant to the custom established in past contracts, paid
such holiday pay on one occasion only, through inadver-
tence. When the matter was brought to the attention of
Gallagher, the managers were instructed that holiday
pay was not to be paid thereafter. I find that, under the
circumstances, the payment of holiday pay for Labor
Day 1978 is insufficient to overcome the abundant con-
trary evidence that Respondent never agreed to such a
contractual provision.
Much is made of the fact that Respondent commenced
interviewing applicants, furnished by the Union, for jobs
as manager or manager-projectionist. Respondent con-
tends that the interviews did not involve the Westwood
theatres, while the Union maintains that the interviews
were specifically for positions at the Westwood theatres.
Even assuming that the Respondent was searching for in-
dividuals to occupy these positions at the Westwood the-
atres who would not be represented by the Union, as the
General Counsel contends, or who would be so repre-
sented, as the Union contends, this is not dispositive in
any respect of the holiday pay issue, which is a critical
element to this proceeding. As found above, the General
Counsel has not proven that Respondent agreed to pay
holiday pay.
The General Counsel alternatively argues that if it is
found that no agreement was reached, Respondent nev-
ertheless unilaterally changed the terms and conditions of
employment of unit employees by failing and refusing to
pay them premium holiday pay, and by abolishing the
unit positions at the Westwood theatres. However, Re-
spondent maintains that an agreement was indeed
reached, albeit a much different agreement than that ad-
vanced by the Union or the General Counsel. The
record evidence lends considerable support to Respond-
ent's position in this regard. Therefore, I deem the
record insufficient to establish a violation under this al-
ternative theory of the General Counsel.
On the basis of the foregoing, I shall dismiss the com-
plaint in its entirety, as the record does not support the
complaint allegations herein. See Summer Home for the
Aged, 226 NLRB 976 (1976).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not violated the Act as alleged.
[Recommended Order for dismissal omitted from pub-
lication.]
02 7