Texas Cinema Corp.

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