Vore Cinema Corp.

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1288 (N.L.R.B. 1981)

I Z H U DEClSlONS
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OF NATIONAL LABOR RELATIONS BOARD
Vore Cinema Corp. and Local No. 292, International
Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the
United States and Canada, AFL-CIO. Cases
25-CA-10373 and 25-CA-11327
March 10, 1981
DECISION A N D ORDER
O n October 21, 1980, Administrative Law Judge
Michael Miller issued t he at tached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a support ing arguement.
T h e Board has considered t he record and t he at-
tached Decision in light of t he exceptions and ar-
gument and has decided t o t he rulings, find-
ings,' and conclusions of t h e Administrative Law
J u d g e and t o adopt his recommended Order.
O R D E R
Pursuant t o Sect ion o f t he National Labor
Relations Ac t , as amended, t he National Labor Re-
lations Board adopts as its Order t h e recommended
Order o f t h e Administrative Law Judge and
hereby orders that t he Respondent, V o r e Cinema
Corp., Muncie, Indiana, its agents, succes-
sors, and assigns, shall take t he action set forth in
t he said recommended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
91 NLRB 544 enfd. 188 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MICHAEL MILLER, Administrative Law Judge: This
case was heard in Muncie, Indiana, on April 2 and 3,
1980, based on unfair labor practice charges filed by
Local No. 292, International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of
the United States and Canada, AFL-CIO, herein called
the Union, on November 20, 1978, and September 9,
1979, and complaints issued on behalf of the National
Labor Relations Board, herein called the Board, by the
Regional Director for Region 25 of the Board, on De-
cember 29, 1978, as amended on May 17, 1979, and on
October 19, 1979, as amended on March 21, 1980. The
consolidated complaints allege that Vore Cinema Corp.,
herein called Respondent, violated Section and
(5) of the Act by threats to replace employees because of
their support for the Union, by failing and refusing to
bargain in good faith with the Union, and by locking out
its employees.
parties were given a full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, to argue orally, and to file briefs.
Briefs were filed by General Counsel and Respondent
and have been carefully considered.
Based on the entire record herein, including my obser-
vation of the witnesses and their demeanor, make the
following:
I . A ND THE
ORGANIZATION STATUS, PRELIMINARY CONCLUSIONS
OF LAW
Respondent is an Indiana corporation engaged in the
of a motion theater in Muncie. Indiana.
is not in dispute. The complaint Re-
spondent admits, and I find and conclude that, at all
times material herein, Respondent has been an employer
engaged in commerce within the meaning of Section
and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is, and has been at all times
material herein, a labor organization within the meaning
of Section of the Act.
11. THE ALLEGED LABOR PRACTICES
A. Background
Respondent acquired the Rivoli Theater in Muncie, In-
diana, in February 1978, as a successor to Metro Amuse-
ments, Inc. Metro Amusements had a collective-bargain-
agreement with the Union covering its stagehands
and motion picture machine operators (projectionists), ef-
fective from May 1, 1976, until April 30, 1979. With cer-
tain exceptions, to be discussed Respondent contin-
ued to operate the Rivoli Theater under the terms of that
contract.
B. Meetings and Events During
About January 25, 1978, prior to his acquisition of the
Rivoli Theater, Roger Vore, Respondent's president,
spoke with Jerry Pruden who was, at that time, the
Union's business agent. They met on February 4, 1978,
to discuss Vore's acceptance of the existing contract
and/or to negotiate a new agreement. According to
Vore, whose recollection of the events did not differ sig-
nificantly from Pruden's, the Union proffered for Vore's
signature an addendum to the existing contract and the
National Pension Fund Agreement. These agreements
would have increased wages. Vore did not sign them but
did agree to abide by the terms of the existing contract.
In the course of this initial meeting, Vore expressed
concern over the competence of the theater's projection-
ists, basing his concern, at least in part, upon a complaint
from a patron of the theater. His concern arose from a
limitation, perceived by Vore, on his right to discharge
employees. Pruden assured Vore that he had the right to
discharge employees for good cause, subject to inform-
ing the Union of those reasons, in writing. Pruden asked
also that the Union be given the opportunity to replace
any discharged employees with union projectionists and
agreed to provide competent projectionists to
254 N L R B No. 167
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1289 VORE CINEMA CORP.
upon request.' Vore, in the course of this meeting,
may have also expressed some concerns about the con-
tractual guarantees of 5-hour shifts and of the number of
shifts to be worked each week.
Pruden and Vore met again on March 17, end about
March 26, 1978. In the course of these meetings Vore
proposed the elimination of the guaranteed shifts and the
inclusion of the union employees under Respondent's
pension plan. Pruden rejected his proposals and Vore
continued to refuse to sign the Union's proposed adden-
dum and National Pension Fund Agreement. He contin-
ued to pay his employees, however, pursuant to the con-
tractually established wage rates.
After March 1978, Pruden tried, without success,
to arrange another meeting with Vore. He called Vore's
repeatedly, leaving messages requesting a return
call. Vore never called back. Written requests for meet-
ings for contract negotiations were sent by Pruden and
by an attorney representing the Union on May 25 and
August 14, 1978. Vore responded to neither of them.
Pruden made no further efforts to contact Vore after the
August 14, 1978, letter.
Vore testified that he ceased to negotiate with the
Union because "of the incompetency of the people they
were furnishing me and the fact that under this existing
contract [I] was unable to discharge them-according to
my In June or July 1978, Vore ceased to
make Respondent's contributions to the Union's pension
plan. He contended that he did so because he had no
forms and because the union projectionists had, in the
past, supplied the forms.
On December 23, 1978, employee Perry Niles had a
conversation with Roger Vore and Theater Manager
Bonita Shores stemming from an earlier concern-
ing the payroll sheet and the paychecks. In this conver-
sation Vore told Niles "that he did not want me to go to
the Local when I had a problem, that it was to go di-
rectly to Mrs. Shores, so they could get it ironed out,
without bringing the Union into it." On the following
day, there was a problem in the scheduling; Niles had
not been notified of a change. Vore and Shores came
into the projection booth where Niles was working and
Vore told Niles, "you were running late today . . . . We
could go right to the Union for this, but we are not, be-
cause we want you to come, with all your problems . . .
to Mrs. Shores, so that we can get it ironed out here." In
the course of a further discussion over Respondent's obli-
gation to pay for the performance of certain routine
chores, Vore complained that he had lost money in that
theater "and did not want to do this next year." Niles'
testimony is uncontradicted.
The foregoing conduct was the subject of a charge,
complaint, and amendment to complaint in Case 25-CA-
,10373, alleging violations of Section and (5) of the
Act. Those allegations were then the subject of an
Theater Manager Shores testified that most of the problems came
from a projectionist who left Respondent's employ in early 1978 and
replaced. The remaining projectionists were for some minor
errors but no major problems.
Under the existing collective-bargaining agreement, the Union was
not the source of employees for Respondent's theater. Neither
did that contract preclude the discharge of incompetent employees.
settlement agreement entered into and approved on
May 21, 1979, provided, inter That Respond-
ent would bargain with the Union in the appropriate bar-
gaining unit; that Respondent would not fail and refuse
to make appropriate pension fund contributions and
would make the contributions then due and owing; and
that Respondent would refrain from otherwise interfer-
ing with, restraining, or coercing its employees in the ex-
ercise of their statutory rights. Simultaneously with the
issuance of the consolidated complaint in Cases 25-CA-
10373 and 25-CA-11327, the Regional Director with-
drew his approval of that settlement agreement. The
consolidated complaint alleges anew Respondent's refus-
als to bargain during 1978.
C. The 1979 Negotiations and Lockout
The parties did not meet again until June 19,
after the expiration of the earlier agreement. At the June
19 meeting and all subsequent ones, Vore was represent-
ed by Blankenship, a labor relations consultant.
The meeting of June 19 was attended by Seth Pruden,
the Union's new business agent, and William Groth, its
attorney, Vore, Shores, and Blankenship. The Union pre-
sented its contract proposals which called for, among
other things, a minimum guaranteed workweek of 46
hours, minimum shifts of 5 hours, minutes preparation
time, overtime at double time, an increase in the pension
fund contribution to $1.35 per man per day, a grievance
and arbitration clause, a requirement that stage work be
staffed by two employees with a minimum of 2 hours'
work each, and a wage rate of $7.08 for the first year,
increasing by approximately 50 cents per hour in each of
the second and third years. The existing wage rate at
that time was approximately $6.05 per hour. The parties
went through the Union's proposal in a meeting lasting
to 2 hours and some agreements were reached. Respond-
ent voiced objections to the wage rates and particularly
to the guaranteed minimum number of hours per shift.
Respondent repeatedly sought to eliminate this guarantee
because of changes in the industry and factors causing
cancellations of showings.4 Respondent also objected to
the absence of a management-rights clause in the Union's
proposal, reiterating Vore's belief that
needed such a clause to permit it to discharge employees
for cause. The foregoing description is taken essentially
from the versions as testified to by Vore, Shores, and
Pruden which are not, in any substantial way, in conflict.
According to Blankenship's notes of this meeting, the
Union was additionally told that Respondent would be
proposing a management rights clause, disciplinary poli-
cies, requirement that employees pay for damages to
equipment, an elimination of the minimum shift require-
ment, $6.05 per hour and time and a half for overtime
over 40 hours per week, Respondent's pension plan, and
All dates hereinafter are 1979 unless otherwise specified.
Up to that time and until negotiations ultimately ceased. Respondent
ran two showings of each film each weekday night. With intermissions,
this meant that the in each theater within the op-
erated around 4 to 5 hours per night, the length of movies being from
to 120 minutes. Vore's intention, carried out after September, was
eliminate the second showing of each film in each theater, thus having
only one performance per night.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a no-strike and no-lockout clause if we recognize [the]
Union as exclusive agent." Blankenship also testified,
without contradiction, that he told the Union at this
meeting that he was Respondent's chief negotiator and
all proposals and communications were to be made to
him.
Three meetings were scheduled after June 19: The first
was canceled because of Blankenship's unavailability; Re-
spondent failed to show up for the second meeting; and
Respondent canceled the third. They finally met again
on July 24.
At the July 24 meeting, Respondent gave the Union its
counterproposal. Contained within this proposal were
the following provisions:
2. Management Rights
The management of the company, the direction
and control of the work force in the operation of
the company, including the selection, hiring, promo-
tion, and transferring of employees, the suspending,
discharging, or otherwise disciplining of employees
for cause, the laying off or calling back to work of
employees in connection with any reduction or in-
crease of the working force, the determination of
employee qualifications, establishment of work
schedules and standards of work including job con-
tent, the establishment of quality standards, the es-
tablishment of methods of work and equipment used
and the regulation of such use of equipment and
other Company property and its security, the right
to introduce and new and different
ery, equipment, o r facilities, the establishment of job
classifications, and the number of employees as-
signed, improve or substitute methods or equipment,
subcontract work, form rules and regulations cover-
ing all bargaining unit employees, and all other
management functions not specifically contracted
away under the terms of this Agreement, are the ex-
clusive rights and functions of the Company and its
management.
DISCHARGE AND SUSPENSION
The Company retains the right to discharge or
suspend any employee for cause, performing
their jobs in any manner o r conducting themselves
in any manner which results in harm to the Compa-
ny's good name and reputation or results in finan-
cial loss to the Company. Further, the Company re-
tains the right to take any disciplinary action, which
is just and proper, for violation of Company work
rules and regulations.
DESTRUCTION OF COMPANY EQUIPMENT OR
Bargaining unit personnel shall reimburse the
Company for all damage to film or equipment,
which result from negligence by said personnel.
Respondent's proposal also provided for the elimination
of all minimum shift and workweek guarantees, for the
inclusion of all bargaining unit personnel under Respond-
ent's pension plan, and a wage rate of 56.05 per hour.
The parties discussed the differences in their proposals.
Vore improved his offer to per hour with a 3-hour-
shift guarantee and accepted most of the prior agree-
ment. Left unresolved at the conclusion of this meeting
were management rights, wages and the related issue of
guaranteed shift and the pension plan. As to the
latter issue, the Union had tentatively agreed to the in-
clusion of eligible unit personnel in Respondent's pension
plan subject to its examination of a copy of that plan,
with pension contributions being made to the Union's
fund for those employees not eligible to participate in
Respondent's.
In the course of this meeting, according to Shore's
credible there was a fairly extensive discus-
sion of management's right to hire o r fire projectionists.
Seth Pruden assured Respondent that management had
the right to discharge for just cause; the Union wanted
only to be notified as to what Respondent considered
cause. A discussion of what constituted cause followed.
Following this session, by agreement of the parties, the
Union wrote out the areas of agreement between the par-
ties. It sent that draft to Vore together with a request
that it be furnished the following:
(1) A copy of the current Vore
pension plan for its employees, and
(2) A copy of Vore Cinema Corporation's finan-
cial report for last fiscal year.
The next meeting was held on September 6. It opened
with Blankenship denying that the Union had a right to
Respondent's financial report; he contended that Re-
spondent was not pleading poverty and pointed out that
Respondent had offered increases in the hourly wage
rate, vacations, and pension plan. The Union contended
that, by eliminating the guaranteed number' of hours per
shift, Respondent was effectively reducing the weekly
earnings of the employees and this, it contended, was the
equivalent of a plea of an inability to pay. In the course
of this meeting Respondent did not say that it was unable
to pay greater wages but did state that its offer was the
best Vore felt it could make.
The Union asked for a copy of Respondent's pension
plan. Blankenship acknowledged that the Union was en-
titled to see it. However, Respondent did not have a
copy in its possession at that time; none was furnished to
the Union then or ever.
Respondent remained firm on its management-rights
proposal and its offer of per hour with a 3-hour-shift
guarantee. It rejected the Union's counterproposal of a
nominal (6-cent-per-hour) wage increase coupled with
retention of the 5-hour-shift guarantee. At the conclusion
of this meeting, the parties were essentially in the same
position that they were after the July 24 meeting;
Pruden recalled, regard to Respondent's position on the shift
guarantee issue, that both Blankenship and Vore contended that the
Company "could not afford la pay the guaranteed hours."
denied that i t ever contended that was unable to pay for such a benefit.
testimony was not corroborated by that o f John Culp. Local
president, w h o was present at that meeting and testified herein. In
the absence o f I cannot credit Seth Pruden on this crucial
Blan-
kenship
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1291 VORE CINEMA CORP.
agement rights, wages and guaranteed minimum hours,
and the pension plan, only to the extent that the Union
would not agree until it saw a copy of Respondent's
plan, were the only issues in dispute. Respondent asked
the Union to take its proposal back to the membership
for a vote. The Union agreed to do so, stating, however,
that it would recommend rejection. Blankenship told the
Union that this was Respondent's final offer and Pruden
asked what would happen if the membership did not
accept it. According to Shores' recollection, Blankenship
stated that they were at impasse and that if the contract
were not accepted the Union could strike or manage-
ment could replace the employees. Culp recalled
saying that the Union could strike or they could
return to the bargaining table. Vore recalled Blankenship
suggesting that the Union consult with its lawyers and
telling them that if there were anything further to be ac-
complished that they could return t o the bargaining
table. Pruden's recollection essentially corroborates that
of Vore and Shores.
The Union took Respondent's final offer to its mem-
bers on September 10. Vore called Culp that evening to
find out what had been decided. Culp told him that they
voted not to act until their attorney had the opportunity
to examine it. Vore told Culp, "It appears that we have
reached an impasse, and I would exercise my legal
option in replacing [the employees] until such time that
we can work out our differences." When asked why the
men would have to be locked out, Vore replied that it
was his counsel's advice to do so. Shortly thereafter,
Seth Pruden called Vore and reiterated that the employ-
ees had not rejected the offer but had voted not to vote
at that time. He suggested that the parties continue on
the same basis on which they had been working but
Vore refused, repeating his statement on impasse and
lockout.
Following his conversations with Culp and Seth
Pruden, Vore instructed Shores to the effect that the
projectionists were "replaced" and not to be employed
until the parties' differences were worked out.
In the early evening of September 11, Culp and pro-
jectionist Perry Niles went to the theater. As Niles went
to punch in, Shores stopped him and told him that he
could not work. He asked if he were discharged. As
Niles recalled her answer, Shores told him that he was
not discharged but that he had been replaced and, as far
as she was concerned, the replacement was
She also told them, in response to a question, that the
relief projectionist, Brad Renbarger, had also been "re-
placed."
Respondent's projectionists have not worked for Re-
spondent since September 10; Shores and other employ-
ees, such as the doorman, have assumed the duties previ-
ously performed by the projectionists. Shores' duties
have been expanded to accommodate the additional re-
recollection is similar: he further recalled Shores stating that
she believed that the Union had been replaced. Shores testified that she
told them that the projectionists were replaced because of the impasse in
negotiations, "until Mr. Vore told [her] otherwise, or something was set-
tled . . . ." In her aflidavit, she had related. however, that the
replacement "was permanent until I was told otherwise." Noting that
both Culp's and Shores' aflidavit tend to corroborate Niles. I credit his
version the incident.
sponsibilities although the amount of time she works in-
creased only or 2 hours per week. The films arrive in
2,000-foot reels; they must be assembled into 6,000-foot
reels for use in the automated projectors. Shores puts the
films together, splices in coming attractions, and sepa-
rates them. She starts the projectors, makes the film
changeovers, oils the mechanisms, starts the music,
cleans the lenses and glass, and generally handles the
running of the film. This, essentially, was the work
which the projectionist had previously done. T o an
extent not fully defined in this record, Respondent also
automated some of its projection equipment, simplifying
the projectionist's duties.
On November 23, Culp wrote Vore requesting a meet-
ing to continue negotiations. He stated:
Roger, I would like to get this matter settled. My
feelings toward you [sic] type of operation is not
the same as the past business representatives'. I see
no reason for all of these hard feelings and I see no
reason why we can not reach an agreement that
would be equitable to both of us. Based upon the
type of operation you desire to run.
I will be free to meet with you at your conven-
ience and at any time and place you suggest. I will
also have the power to sign an agreement at that
time.
Sometime subsequent thereto, Vore replied and a meet-
ing was set for January 22, 1980.
When Culp and Vore met on January 22, 1980, Culp
gave Vore a new proposal. By that proposal the Union
agreed to both a management-rights clause substantially
identical to that contained in Respondent's proposal and
Vore's proposed $7-per-hour wage rate with a 3-hour-
minimum shift guarantee. The Union further agreed to
Respondent's pension plan, as previously discussed. Vore
indicated a reluctance to negotiate without counsel and
Culp gave him the proposal to read and discuss with
Blankenship.
According to Vore's recollection, he told Culp, at this
meeting, that he had changed his operation, had automat-
ed the projection booth, and that there were no longer
any projectionists' positions. He did agree to read the
proposal and to go over it with counsel. He acknowl-
edged that the Union had acceded to his proposal for a
3-hour-minimum shift guarantee and to Respondent's
management-rights clause proposal.
D. Analysis and Conclusions
The appropriate point to begin consideration of Re-
spondent's conduct herein is the conduct occurring on
and after June 19, 1979. The settlement agreement, ap-
proved by the Regional Director on May 21, 1979, pur-
porting to remedy the earlier alleged violations, may not
properly be set aside unless subsequent violations, estab-
lishing a failure to comply with the terms of settlement,
are proven. See Jackson Manufacturing 129
NLRB 460 (1960). That presettlement conduct, however,
may be considered in assessing Respondent's motive or
object in its postsettlement activities. Northern
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(1956),
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8(a)(5)
con- and the Union did not meet after
tentlon hear~ng, In 11, At
accevt Res~ondent 's - .
Offer. vOre admittedly promised to go eve; the proposal
Newhouse Bmdcosring Corpomrion d/b/a WAPI-TY-AM-FM, 197 and to
885 (1972),
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lo furnish further response from any representative of R ~ ~ ~ ~ & ~ ~
meet- is reminiscent VOre's course
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District Council of Hodcarriers and Common Laborers of
America, (Joseph Mohamed, Sr., an Individual,
d /b /a Joseph's Landscaping Service), 154 N LRB 1384
(1965).
Counsel for the General Counsel contends that Re-
spondent, by failing or refusing to furnish a copy of its
pension plan and its financial reports, by refusing to meet
after September 1979, and by locking its employees
out in support of its bargaining positions refused to bar-
gain with the Union in good faith, in violation of Section
and of the Respondent admits that the
Union was entitled to a copy of the pension plan and fur-
ther admits that it did not furnish it. However, it con-
tends that it attempted, unsuccessfully, to secure a copy
for the Union and further that that necessity for furnish-
ing a copy was obviated by the Union's acceptance of
the Employer's pension plan for all eligible employees.
Respondent also contends that, never having argued that
it was unable to meet the Union's monetary demands, it
was not obligated to furnish financial data. Finally, in
this regard, Respondent argues that its lockout followed
a good-faith impasse in bargaining and was a lawful exer-
cise of its economic power.
The record, I believe, is clear that, while the Union
had voiced essential agreement to inclusion of eligible
employees under Respondent's pension plan (with Re-
spondent making appropriate contributions to the
Union's plan for any employees who were not eligible),
it had never waived its request and its acknowledged
right to see a copy of that plan. Its request for a copy of
the plan was made, orally and in writing, after its tenta-
tive acceptance of Respondent's plan; obviously, it was
not prepared or required to buy a "pig in a poke." The
record is also clear that Respondent never furnished a
copy of the plan; indeed, its efforts to secure a copy
from the insurer appear, at best, to have been
Accordingly, I find that, by its refusal and/or failure
to supply the Union with a copy of its pension plan, Re-
spondent failed to bargain in good faith with the Union,
in violation of Section and of the Act. Missis-
sippi Steel Corporation, 169 NLRB 647
The General Counsel does not appear to contend, and
the record would not support a contention, that Re-
spondent, in haec verb~, pleaded an inability to pay in re-
sponse to the Union's requested wage (and guaranteed
shift) proposals. Nonetheless, the General Counsel argues
that Respondent's insistence on elimination of the exist-
ing 5-hour-shift guarantee, even though coupled with an
hourly wage increase, would have resulted in a substan-
tial reduction in the employees' weekly earnings, and that
Although the General Counsel alluded to a "surface bargaining"
during no such allegation was pleaded or briefed the
government's case.
Additionally, it is hard to believe that Respondent did not have.
somewhere in its possesion, literature describing the pension plan.
NLRB cited by Respondent, is distinguishable from the facts
of this case. In Newhouse, the union made only one, oral, request for a
copy of the health insurance policies. the employer agreed
them but inadvertently failed to d o so, and the union negotiators made no
further request for the documents notwithstanding that a number of
ings were held subsequent to its single request.
such a proposed reduction, in the context of Vore having
told Niles (in December 1978) that he lost money in 1978
and did not intend to d o so in 1979 and Vore's statement
during the September 6, 1979, meeting that this was the
best offer he felt he could make, was the equivalent of a
plea of financial inability to pay such that Respondent
would be required, under N.L.R.B. v. Truitt Manufactur-
ing Co., 351 U.S. 149 to furnish the requested
data.
T h e General Counsel's contention is, I find, without
merit. As the Supreme Court stated in Truitt, "Each case
must turn upon its particular facts." The facts in this case
lead me to conclude that Respondent sought to eliminate
o r reduce the guaranteed hours in order to facilitate
elimination of the second showing of each film on week-
day evenings. That this may have been economically ad-
vantageous to the employer is not the equivalent of
saying that it could not afford to pay. Neither d o I find
that Vore's statement to Niles, long before these negotia-
tions began, concerning his intention to turn a profit in
1979, uttered in a different context, evidence that his po-
sition in negotiations was based on a plea of poverty.
T h e General Counsel cited District Kidney
Bean Growers, 165 NLRB 223 and Stamco
Division of the Monarch Machine Tool Company, 227
NLRB 1265 in support of its argument that em-
ployer expressions of unwillingness to increase wages
combined with other conduct during negotiations may be
the equivalent of a poverty plea. In both those cases,
however, the triers of fact found that the employers had
actually predicated their refusals upon claimed inabilities
to pay. Thus, in Stamco, the Administrative Law Judge
held that "the undisputed evidence clearly reveals that
the entire course of Respondent's conduct during the
economic phase of the negotiations was designed to con-
vince the Union that Respondent was in no financial po-
sition to grant anything approaching the economic im-
provements which the Union sought." Similarly, in
District, the Trial Examiner noted that he was
"unable to distinguish the language used by Respondent
here [no mood for an increase in operating expenses be-
cause of the drop in prices] from a plea of inability to
pay." The General Counsel cited no case, and my own
research turned up none, which would establish that an
employer's offer which might reduce earnings o r which
might otherwise inure to the employer's benefit brings a
case within the ambit of Truitt.
Accordingly, to the extent that the complaint alleges
that Respondent violated Section of the Act by
refusing to comply with the Union's request for financial
data. I shall recommend that it be dismissed.
Septem-
ber 1979, until January 22, 1980. that time, the
Union offered, essentially, to last
discuss it with his "counsel." As of
weeks later, however, he had not gotten around to doing
nearly 3
no. .
conduct following the March 25, 1978, negotiations.
8(a)(5)
(1965),
8(a)(l)
Cyanamid
S
C.. Znc., (1976),
F.2d
8(a)(5)
8(a)(l).
k
IO-CA-
8(a)(5) (1)
8(a)(5)
1
I l l .
8(a)(l)
afirmative
full
backpay
F. W. Woolworth
VORE CINEMA CORP. 1293
Then, it will be recalled, Vore simply ceased to negotiate
further because of his purported and basically unsupport-
ed belief that the Union was furnishing him with incom-
petent projectionists whom he could not discharge. Simi-
larly, in January, according to Vore, he told Culp that
he had automated his projection booths and no longer
had positions for projectionists. The record does not sup-
port Vore's claim. Vore could not, o r would not, de-
scribe the extent of automation; moreover, there is evi-
dence that the duties of the projectionists are still being
performed at the Rivoli by the theater manager and
other employees.
Accordingly, I find that by refusing to bargain with
the Union on and after January 22, 1980, Respondent has
violated Section and (1) of the Act.
It is clear from the foregoing that Respondent's lock-
out was intended to do more than merely support its le-
gitimate bargaining positions. Respondent was engaged
in bad-faith bargaining at the point when it initiated the
lockout and it maintained that lockout while continuing
to refuse t o bargain in good faith with the Union. Its
bad-faith bargaining removes this case from the ambit of
American Ship Building Co. v. N.L.R.B., 380 U.S. 300
wherein the Court held that a temporary lockout
solely to bring "economic pressure to bear in support of
[a] legitimate bargaining position" did not violate Section
or (3) of the Act. (Emphasis supplied.) See also
American Company, 235 NLRB 1316 (1978);
and Movers and Warehousemen Association of Metropoli-
tan Washington, D. etc., 224 NLRB 356
enfd. 550 962 (4th Cir. 1977).
Moreover, I note that the evidence herein puts into se-
rious question whether Respondent's lockout was in sup-
port of its bargaining position at all. Respondent asked
the Union to take its last offer back to the membership.
It then locked out the employees before they voted on
the offer and while they were seeking the advice of
counsel. Subsequently, when the Union acceded to Re-
spondent's proposals, Respondent essentially ignored the
Union and failed either to reach agreement or to make
any counteroffer, notwithstanding that, as I have found,
the work of the projectionists still existed. Thus, it ap-
pears that Respondent sought not the Union's agreement,
but its elimination.
Accordingly, I find that by locking its employees out
on September 10, 1979, Respondent violated Section
and (1) of the Act.
The General Counsel further contends that Bonita
Shores' statements to Perry Niles on September 11, in-
forming him that he had been permanently replaced,
constituted an unlawful threat because of the employees'
support for or assistance to the Union, in violation of
Section I agree. It seems clear to me that when,
in the context of bad-faith bargaining, an employer tells
an employee that he is permanently "replaced" because
that employee's representative has refused to give in to
the employer's bargaining position, the employer has se-
verely impinged upon the employee's right to join or
support his union. See Movers and Warehousemen Asso-
ciation of Washington, D.C., supra.
I further find, in agreement with the General Counsel,
that Respondent's most recent unfair labor practices war-
rant that the earlier reached settlement in Case
10373 be set aside and that Respondent violated Section
and of the Act by the conduct involved there-
in. Thus, it is undenied that, at a time when the Union
continued to represent a majority of the employees in an
appropriate unit, and after only three bargaining sessions,
Respondent broke off negotiations and simply ceased to
respond to the Union's urgings that negotiations contin-
ue. Its reason for doing so, that the Union was furnishing
it with incompetent employees whom it could not dis-
charge, was, even assuming Respondent's sincerity, plain-
ly without support. The record reveals some errors by
projectionists, but no gross incompetence; it further re-
veals that the projectionist who Respondent claimed was
causing the most problems ceased to work for Respond-
ent early in 1978 and was replaced. There is no evidence
that any incompetent projectionists were referred to Re-
spondent by the Union or that the Union, in any way,
inhibited Respondent from discharging projectionists for
cause. Neither, of course, is there any basis in law for a
successor employer to refuse to negotiate with the union
representing its employees on the basis that the contract
between the predecessor and the union contained alleg-
edly onerous terms. Collective bargaining is the avenue
to alleviate such problems, not self-help.
Finally, I must also conclude that Respondent's cessa-
tion of pension fund contributions constituted a unilateral
modification of the employees' terms and conditions of
employment, in violation of Section of the Act.
The continued payment of these contributions was Re-
spondent's obligation; its explanation that it failed to
make them because the projectionists did not supply it
with the forms is both insufficient and implausible (par-
ticularly when viewed in light of Respondent having
broken off collective bargaining and Vore's position re-
garding inclusion of his employees under Respondent's
pension plan).
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section and
(5) of the Act, it will be recommended that Respondent
be required to cease and desist therefrom and to take
certain actions designed to effectuate the poli-
cies of the Act.
It having been found that Respondent unlawfully
locked out its bargaining unit employees on and after
September 10, 1979, it will be recommended that Re-
spondent be required to offer them immediate and
reinstatement to their former positions or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and to make them whole for any losses they
may have suffered by reason of such unlawful conduct.
T o the extent that it has not already done so, Respond-
ent will be required to make all omitted payments to the
pension fund. All due under the terms of this
Order shall be computed with interest, in the manner
prescribed in Company, 90 NLRB 289
(1950), Florida
' O
8(a)(l)
9(b)
9(a)
R(aX5) (1)
2(2), (6),
I q c )
suvvort
l o Isis & " Sec.
Sec.
deemed
"Appendix."12
l a
the
APPENDlX
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steel Corporation, 231 NLRB 651 2. Take the following affirmative action which it is
(1 977).
and
found will effectuate the policies of the Act:
(a) Offer Perry Niles and Brad Renbarger immediate
and full reinstatement to their former jobs or, if those
1. By threatening its employees with permanent re-
placement because of their membership in and support
for the Union, Respondent has violated Section of
the Act.
2. All projectionists and stage employees of Respond-
ent employed at its Rivoli Theater, exclusive of all pro-
fessional employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
of the Act.
3. At all times material herein the Union has been, and
is now, the exclusive representative of all of the employ-
ees in the aforesaid unit for purposes of collective bar-
gaining, within the meaning of Section of the Act.
4. By failing and refusing to bargain with the Union
concerning wages, hours, and other terms and conditions
of employment, by unilaterally changing working condi-
tions of its employees by failing to make pension fund
contributions to the Union on behalf of the employees at
the Rivoli Theater, by failing and refusing to furnish the
Union with information necessary and relevant to collec-
tive bargaining, and by locking out its employees on and
after September 10, 1979, in support of its bargaining po-
sitions and demands taken in bad faith, Respondent has
engaged in unfair labor practices within the meaning of
Section and of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion and (7) of the Act.
6. Respondent has not engaged in any other unfair
labor practices not specifically found herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act, 1 hereby issue the following recommended:
O R D E R
The Respondent, Vore Cinema Corp., Muncie, Indi-
ana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with permanent replace-
ment because of their . . for and membershiv in the
Union.
(b) Failing and refusing to bargain with the Union in
good faith regarding wages, hours, and other terms and
conditions of employment, by refusing to meet with the
Union, by unilaterally changing working conditions, and
by locking out its employees while engaged in bad-faith
bargaining.
(c) In any like o r related manner interfering with, re-
straining, o r coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
See, generally, Plumbing Heating Co., 138 NLRB 716 (1962)
In the event no exceptions are filed as provided by 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be waived for all purposes.
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority o r other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of the unlawful con-
duct involved herein, in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) T o the extent that it has not already done so, make
all omitted contributions into the Union's pension fund.
(c) Post at its place of business in Muncie, Indiana,
copies of the attached notice marked
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by Re-
spondent'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 Respondent to insure that said notices are not altered,
defaced, o r covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government .
After a hearing at which all parties were afforded the
opportunity to present evidence, it has been found that
we violated the National Labor Relations Act in certain
respects and we have been ordered to post this notice
and to carry out its terms.
The Act gives you, as employees, certain rights, in-
cluding the right:
T o engage in self-organization
T o form, join, o r help a union
T o bargain collectively through a representa-
tive of your own choosing
T o act together for collective bargaining or
other mutual aid o r protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT threaten our employees with per-
manent replacement because of their membership in
o r support for International Alliance of Theatrical
Stage Employees and Moving Picture Machine Op-
CINEMA
erators
WE
WILL
1295 VORE CORP.
of the United States and Canada, AFL-CIO,
Local No. 292, or any other union.
WE W IL L NOT fail and refuse to bargain with the
Union in good faith concerning wages, hours, and
other terms and conditions of employment, nor will
we unilaterally change the working conditions of
our employees o r lock them out in support of our
bad-faith bargaining position.
WE WILL NOT in any like o r related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
form, join, o r assist International Alliance of Theat-
rical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-
CIO, Local No. 292, or any other labor organiza-
tion, to bargain collectively through representatives
of their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid o r protection, o r to re-
frain from any or all such activities.
WE W ILL offer Perry Niles and Brad Renbarger
immediate and full reinstatement to their former po-
sitions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority o r other rights and privileges and
make them whole for any loss of pay suffered
by reason of our unlawful conduct, with interest.