Sameric Corp.

SAMERIC CORPORATION Sameric Corporation and Chester, Pennsylvania Local No. 516 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada. Case 4 CA-9730 April 4, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on November 1. 1978, by Chester, Pennsylvania Local 516 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, herein called the Union, and duly served on Sameric Corporation, herein called Respondent, the General Counsel of the National abor Relations Board, by the Regional Director for Region 4, issued a com- plaint and notice of hearing on December 13, 1978, against Respondent. The complaint alleged, inter alia, that on or about May 25, 1978, as a result of negotia- tions related to a new collective-bargaining agree- ment, Respondent and the Union reached agreement concerning rates of pay, wages, hours of employment, and other terms and conditions of employment for employees in the bargaining unit, and that since on or about June 6, 1978, Respondent has failed and re- fused to sign a written contract embodying the terms of that agreement. The complaint further alleged that by the above-described conduct Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. Respondent has not filed any answer to the com- plaint. On January 29, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 6, 1979, the Board issued an Order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows. The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admit- ted to be true and shall be so found by the Board, unless good cause to the contrary is shown. In addition, the complaint and notice of hearing served on Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." The time prescribed by Section 102.20 of the Board's Rules and Regulations for the filing of an answer to the complaint expired on December 26, 1978, and Respondent has given no reason for its fail- ure to respond. Similarly, Respondent has not re- sponded to the Board's Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Accordingly, pursuant to Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, the allegations of the complaint are hereby deemed to be admitted and are found to be true, and we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Sameric Corporation is, and has been at all times material herein, a corporation duly orga- nized under, and existing by virtue of, the laws of the Commonwealth of Pennsylvania; Respondent is en- gaged in the public presentation of motion pictures at various motion picture theaters located in the Com- monwealth of Pennsylvania. During the past year, Respondent had gross revenues exceeding $500,000, and purchased, leased, or received films and other merchandise and equipment valued in excess of $50,000 which films, merchandise, and equipment originated outside the Commonwealth of Pennsylva- nia. On the basis of the foregoing, we find that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and that it will 241 NLRB No. 110 733 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD effectuate the policies of the Act to assert jurisdiction herein. 11. Till LABOR ORGANIZATION INVOLVED Chester, Pennsylvania Local No. 516 of the Inter- national Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada. is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR I.ABOR PRACFI('ES Richard Kane is, and has been at all times material herein, general manager of Respondent, an agent of Respondent acting on its behalf, and also a supervisor of Respondent within the meaning of Section 2(1 1) of the Act. At all times material herein, Respondent and the Union agreed to the following collective-bargaining unit which constitutes a unit appropriate for collec- tive-bargaining purposes within the meaning of Sec- tion 9(b) of the Act: All stage employees and moving machine opera- tors employed by Respondent in Delaware County, Pennsylvania; but excluding all other employees, guards, and supervisors as defined in the Act. At all times material herein, Respondent has recog- nized the Union as the representative for the purposes of collective bargaining of the employees in the unit described above, and by virtue of Section 9(a) of the Act, the Union has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about May 25, 1978, as a result of negotia- tions related to a new collective-bargaining contract, Respondent and the Union reached agreement con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment for the employees in the collective-bargaining unit de- scribed above. Since on or about June 6, 1978, Respondent has failed and refused to sign a written contract embody- ing the terms of that agreement. Accordingly, we find that since June 6, 1978, and at all times thereafter, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and that Respondent has thereby engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. Further, we find that since June 6, 1978, and at all times thereafter, Respondent has refused to bargain collectively with the exclusive representative of its employees, and that Respondent has thereby engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. IV. THE FFEC("I OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the poli- cies of the Act. To remedy Respondent's violation of Section 8(a)(5) and (1) of the Act, we shall order that it ex- ecute, sign, and give effect to all the terms and condi- tions of said contract or, if the Union does not request such execution, we shall order that Respondent bar- gain collectively in good faith, upon request, with the Union, as the exclusive collective-bargaining repre- sentative of its employees in the said appropriate unit, and, if an understanding is reached, embody such un- derstanding in a signed contract. We shall further order that Respondent make whole the employees, in the unit found appropriate herein, for any loss of benefits they may have suffered from June 6, 1978, by reason of Respondent's failure to give effect to said contract, to the date of compli- ance with the Order herein. All moneys to be paid to such employees shall be the sum total of the separate amounts accruing to each employee under the catego- ries of wages, overtime, holidays, vacations, and mis- cellaneous, as computed in the manner prescribed in Ogle Protection Service, Inc., 183 NLRB 682, 683 (1970), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).' We shall also order, if required by their contract, that Respondent reimburse the Union for all mem- bership dues which, since June 6, 1978, Respondent has failed to withhold and transmit to the Union pur- suant to signed dues-deduction authorizations and in accordance with a checkoff provision of the collec- tive-bargaining agreement, with interest computed See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). 734 SAMERIC CORPORATION thereon in the manner prescribed in Florida Steel Corporation, supra.2 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI.USIONS o)F LAW I. Sameric Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chester, Pennsylvania Local No. 516 of the In- ternational Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All stage employees and moving machine opera- tors employed by Respondent in Delaware County., Pennsylvania: but excluding all other employees, guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization has been, and now is, the exclusive representative of all employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 6, 1978, and at all times thereafter, to sign a written contract embodying the terms of the collective-bargaining agreement reached between Respondent and the above-named labor organization, Respondent has refused to bar- gain collectively with said labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act, as amended. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2 Such dues reimbursement shall not be applicable to employees who vol- untarily paid their dues to the Union during the pertinent period. Further, the amount of backpay for those employees who would now benefit from having their Employer remit their accrued dues to the Union, without ever having such amounts deducted from their pay and who did not themselves pay dues during the period in question. shall he reduced by the total amount, if any, of the dues which would have been deducted from their pay pursuant to signed dues-deduction authorizations and a checkoff provision In the col- lective-bargaining agreement. had Respondent not failed to withhold and transmit said dues to the Union. Ogle Protection Serice, Inc., supra at 683. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Sameric Corporation, Delaware County, Pennsylva- nia, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Chester, Pennsylvania Local No. 516 of the International Alliance of Theat- rical Stage Employees and Moving Picture Operators of the United States and Canada as the exclusive bar- gaining representative of all its employees in the ap- propriate unit. (b) Refusing to sign or execute, in writing, the writ- ten agreement reached with the Union or any other collective-bargaining representative of its employees. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as exclusive representative of all employees in the aforesaid appropriate unit by ex- ecuting forthwith the agreed-upon contract and by honoring and complying with the provisions thereof; or, if the Union does not request such execution, bar- gain collectively in good faith, upon request, with the Union, as the exclusive representative of its employ- ees in the unit found appropriate; and, if an under- standing is reached, embody such understanding in a signed contract. The appropriate bargaining unit is: All stage employees and moving machine opera- tors employed by Respondent in Delaware County, Pennsylvania; but excluding all other employees, guards, and supervisors as defined in the Act. (b) Make whole the employees in the unit found appropriate herein for any loss of benefits they may have suffered since June 6, 1978, by reason of Re- spondent's failure to execute and give effect to said contract, in the manner set forth in the section of this Decision entitled "The Remedy." (c) If provided by their contract, reimburse the Union for all membership dues which, since June 6, 1978, Respondent has failed to withhold and transmit to the Union pursuant to signed dues-deduction au- thorizations and in accordance with the checkoff pro- visions of the agreed upon collective-bargaining agreement, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Post at its Delaware County, Pennsylvania, 735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places of business copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 3 In the event that this Order is enforced by a Judgment ofa United States court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Chester, Pennsylvania Local No. 516 of the International Alliance of Theatrical Stage Em- ployees and Moving Picture Operators of the United States and Canada as the exclusive bar- gaining representative of all our employees in the appropriate unit. WE WILL NOT refuse to sign or execute, in writ- ing, collective-bargaining agreements reached with the union or any other collective-bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL, upon request of the aforesaid Union, execute and give retroactive effect to the collective-bargaining contract on which agree- ment was reached on May 25, 1978, or, if the Union does not request such execution, WE WILL bargain collectively in good faith, upon request, with the aforesaid Union as the exclusive collec- tive-bargaining representative of our employees in the unit found appropriate, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in an agreement any understanding reached. The bar- gaining unit is: All stage employees and moving machine op- erators employed by Respondent in Delaware County, Pennsylvania; but excluding all other employees, guards, and supervisors as defined in the Act. WE WILL reimburse our employees in the unit found appropriate herein, for any loss of benefits they may have suffered because we failed to sign, execute, and give effect to such contract on June 6, 1978, and thereafter, with interest. WE WILL reimburse said Union for all mem- bership dues which, since June 6, 1978, were au- thorized by our employees to be deducted but which we failed to deduct and transmit to said Union, with interest. SAMERIC CORPORATION 736