R. C. Cobb, Inc.

R. C. COBB, INC. R. C. Cobb, Inc. and Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Case 12-CA-6322 August 3, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On October 17, 1974, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party 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, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' Respondent excepts only to the Administrative Law Judge's finding that it violated Section 8(a)(5) and (I) of the Act by withdrawing recognition from the Union and by making certain unilateral changes in the terms and conditions of employment of the bargaining unit members, and to his recommenda- tion that a bargaining order issue to remedy the violation found. Respondent takes the position that it has sustained an affirmative defense to the 8(a)(5) allegation and to the imposition of a bargaining order; namely, that "[t]he Union is guilty of such discrimination against blacks and females as to be denied the status of exclusive representative of the employees of the Company," citing N.L.R.B. v. Mansion House Center Management Corporation, 473 F.2d 471 (C.A. 8, 1973). Briefly, Respondent asserts that the Union, with which it has had an exclusive referral arrangement to furnish employees and a collective-bargaining rela- tionship based upon voluntary recognition beginning in 1971, discriminates against blacks and females. Respondent notes in particular that the Union has I In pars. I(b), I(c), and 2(b) of his recommended Order, the Administra- tive Law Judge failed to describe, or to refer properly to, the appropriate unit for bargaining. Accordingly, we shall modify these paragraphs of the Order to refer to the unit which the parties agreed was appropriate for bargaining. Also, in par. I(d) of the recommended Order, the Administrative Law Judge provided that Respondent shall cease and desist from "in any like or related manner" infringing upon employee rights guaranteed in Sec. 7 of the Act However, in cases of this kind, involving a violation of Sec. 8(aX3), it is 231 NLRB No. 19 had no black or female members since at least January 1, 1964, nor has Respondent employed any blacks or females when employing persons referred by the Union, although blacks and women comprise about 10 percent and 38 percent, respectively, of the total work force in the relevant geographic labor market. Respondent also points out that the Union has had no apprenticeship training program since at least January 1, 1964, that a 3-year collective- bargaining agreement signed on January 1, 1971, between Respondent and the Union referred to "pay to the men represented by Union," and that the Union's constitution and bylaws refer to members by use of the male gender only. The Administrative Law Judge found no merit in Respondent's affirmative defense to the 8(a)(5) allegation of the complaint, concluding that the Union had not practiced discrimination against blacks and women such as to disqualify it from serving as the bargaining representative of the employees. However, consistent with our recent decision in Bell & Howell Company, 230 NLRB 420 (1977), we find that Respondent was not entitled to raise the issue of alleged racial or sexual discrimina- tion at all as an affirmative defense to an 8(a)(5) complaint or to a bargaining order.2 Whether a union has been certified by the Board as the representative of employees in an appropriate unit, as was the case in Bell & Howell, supra, or has been voluntarily recognized as bargaining agent, as here, the union's status as exclusive representative "imposes upon it the statutory obligation to represent all employees in the unit fairly and in good faith without invidious discrimination." Bell & Howell, supra. In addition, as the Board stated in Handy Andy, supra at 450: [A] union's status as the bargaining representative gives it no right or authority to establish hiring restrictions based on membership restrictions whether or not such membership restrictions are legitimate for other purposes. For, under the Act, it is an unfair labor practice for a labor organiza- tion, whether or not it is certified, to cause or attempt to cause employers to hire on the basis of membership or nonmembership in a union. The Act further provides appropriate means to reme- dy such an unfair labor practice. Furthermore, a bargaining representative's right to enter into the Board's established policy to use the broad injunctive language "in any other manner." See N.L R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Accordingly, we shall modify the Administrative Law Judge's recommended Order and notice. 2 See also Handy Andy, Inc., 228 NLRB 447 (1977), in which the Board found that it was not constitutionally forbidden from certifying a union after an election upon an allegation that the union practiced discnrimination against minority group members, and that, indeed, the Board had a statutory duty to issue such a certification. 99 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-security agreements with employers condi- tioning continued employment on union member- ship or payment of agency shop fees is dependent on the availability of membership in the bargain- ing representative to any employees who choose to join. Similarly, if access to a union hiring hall is limited to union members, the exclusive hiring hall agreement violates the Act. Further, any membership policy of a union which would tend to limit job opportunities for minorities is barred by Title VII of the Civil Rights Act of 1964, as amended. Also, the Board noted in both Bell & Howell and Handy Andy that it had found violations of Section 8(b)(1)(A), (2), and (3) in a number of cases involving various invidious discriminatory practices by unions, and that proceedings under Section 8(b) of the Act were best suited to the resolution of allegations of such discrimination by unions. In short, in view of the foregoing and for all the reasons stated in Bell & Howell and Handy Andy, neither finding Respondent guilty of violating Sec- tion 8(a)(5) of the Act, imposing upon Respondent a bargaining order to remedy the violation, nor court enforcement of such a bargaining order, aids or encourages invidious discrimination against blacks wr women by the Union or significantly involves the Geovernment in any such discrimination, in violation of the Constitution. Therefore, Respondent's allega- tjon of racial and sexual discrimination by the Union does not constitute an affirmative defense in this 8(aX5) proceeding. 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 as modified below, and hereby orders that the Respon- dent, R. C. Cobb, Inc., Orlando and Winter Park, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraphs l(b), I(c), and l(d): "(b) Refusing to recognize and bargain with Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, as the collective- bargaining representative of the employees in the foglowing described appropriate unit: "All motion picture machine operators em- ployed at the Pine Hills Twin Theatres, Orlando, Florida, and the Semoran Twin Theatres, Winter Park, Florida, excluding all other employees, watchmen, guards and supervisors as defined in the Act. "(c) Unilaterally changing the wages, or other terms and conditions of employment, of the employ- ees in the appropriate unit described above, without prior consultation with Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. "(d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the following for paragraph 2(b): "(b) Upon request, recognize and bargain with Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, as the collective- bargaining representative of the employees in the appropriate unit described above." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors of the United States and Canada, or any other labor organization, by discharging or otherwise discriminating against employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT refuse to recognize and bargain with Local 631, International Alliance of Theatri- cal Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, as the collective-bargaining representative of the employees in the following described appropriate unit: All motion picture machine operators employed at the Pine Hills Twin Theatres, Orlando, Florida, and the Semoran Twin Theatres, Winter Park, Florida, excluding all other employees, watchmen, guards and supervisors as defined in the Act. WE WILL NOT unilaterally change the wages, or other terms and conditions of employment, of the 100 R. C. COBB, INC. employees in the appropriate unit described above, without prior consultation with Local 631, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL make whole Joseph R. Bracciale and Ofa H. Osborne for any loss of pay or other benefits they may have suffered by reason of our discrimination against them. WE WILL, upon request, recognize and bargain with Local 631, International Alliance of Theatri- cal Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, as the collective-bargaining representative of the employees in the appropriate unit described above. R. C. COBB, INC. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Orlando, Florida, on July 9 and 10, 1974. Upon a charge filed and served on March 29, 1974, the Regional Director for Region 12 issued the complaint in this proceeding on May 8 alleging that R.C. Cobb, Inc., herein called the Respondent or Company, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by unlawfully terminating two of its employees and, further, by refusing to bargain in good faith with the Charging Party. Respondent filed an answer denying the commission of unfair labor practices and pleading affirma- tively that the Charging Party should be denied, in any event, the benefit of a bargaining order by reason of its alleged practice discrimination on the basis of race and sex. Issues Whether the Respondent is a successor to an employer who had a collective-bargaining agreement with the Charging Party. Whether Respondent illegally terminated two of its employees because of their membership in and activities in behalf of the Charging Party. Assuming the Respondent has unlawfully refused to bargain in good faith, whether a bargaining order should be denied because of alleged racial and sexual discrimina- tion by the Union. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which I Par. 7 of the complaint, admitted by the Respondent, alleges the effective date as January I. 1970. There is also a discrepancy as to the date in the agreement itself, as the first page refers to 1971 and the last page to have been carefully considered, were submitted by all of the parties. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is an Alabama corporation which owns and operates motion picture theatres in several States including the State of Florida. In Florida it owns and operates, among others, the Pine Hills Twin Theatres and the Semoran Twin Theatres located, respectively, in Orlando and Winter Park. During the past year Respondent received gross revenues in excess of $500,000 from its theatre operations and rented films which were delivered to Florida from outside that State at a rental cost in excess of $50,000. Respondent admits and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, herein called the Union or Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates 55 motion picture theatres in the southeastern part of the United States. At the end of 1970, it commenced operation of the Pine Hills Twin Theatres at Orlando and the Semoran Twin Theatres at Winter Park, Florida. From the outset, Respondent employed moving picture machine operators (projectionists) who were mem- bers of the Union. Respondent and the Union executed a collective-bargaining agreement covering employees at the two locations effective January 1, 1971, to December 31, 1973.1 The agreement provided for a weekly wage rate with a 40-hour guarantee. Hourly rates were set at $4 in 1971, $4.25 in 1972, and $4.50 in 1973. Each theatre had two auditoriums (twin) which were serviced by one booth and therefore one projectionist at each location. While the contract does not provide for a hiring hall, it is undisputed that the projectionists were always furnished by the Union. The projectionist at each location could, if he wished, work 7 days a week. But the Union sent a replacement whenever the regular employee desired a day off, a vacation, or was absent for any reason. Until their termination by Respon- dent on March 2, 1974, Joe R. Bracciale was employed at 1970. However, the briefs of both General Counsel and Respondent allude to 1971 which I shall accept as the correct date. In any event, the exact date of the inception of this relationship is of no consequence in this case 101 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Pine Hills Twin since the fall of 1972 and Ofa H. Osborne at the Semoran Twin since its opening in 1970.2 As indicated, both had been referred to these jobs by the Union. On April 24, 1973, Respondent subleased both twin theatre locations to Windsor Theatres, Inc., which there- upon undertook their operation, paying to the Respondent rentals and rentals and a percentage of gross revenues from concessions. Windsor met with the Union and signed an agreement effective May 4, 1973, to December 31, 1977. This contract continued the wage rate of $4.50 per hour then in effect under the Cobb agreement. However, it further provided for increases to $5 in 1974, $5.50 in 1975, and $6 in 1976 and 1977. It also contained provisions not present in the Cobb agreement such as a 3-hour minimum for RCA service call;3 a fraction of an hour was to be considered I full hour; and makeup time to be 2 hours per feature minimum.4 Windsor encountered financial difficul- ties and closed the theatres on October 20, 1973. The Respondent then subleased the theatres to Venus Theatres, Inc., which reopened them on November 8, 1973. Apparently Venus did not sign a new contract but rather adopted the Windsor agreement except for a modification of vacation benefits and changing makeup time to 2 hours minimum from 2 hours per feature minimum. Venus operated the theatres, instituting the wage increase on January I as provided in the Windsor contract, until January 11, 1974. On that date, Cobb once more took over the operation of the theatres. Thereafter Cobb terminated the two projec- tionists on March 2, reinstating them on May 13, 1974. B. The Successorship Issue There is essentially no dispute as to the facts on this question. Respondent, the principal lessor of the theatre properties, and the original operator, returned to operation after successive subleases to Windsor and Venus which endured less than I year in total. The employees (only the two projectionists are involved) remained the same throughout and Respondent accepted them on January 11, 1974, when it resumed operations. Indeed, Respondent's district manager testified that he told them "everything was going to be the same as it was when it was Cobb theatres in the beginning." However, Respondent did not revert to the conditions provided in its original agreement, but contin- ued the increased wage rate mandated by the Windsor and Venus contract as of January 1, 1974, as well as the minimums for makeup time and service calls. Obviously, the business entity and function, that of operating the film theatres, remained the same throughout and there is no evidence that the two employees involved no longer wished to be represented by the Union. Thus the important factors of continuity of business, equipment, employees, working conditions, and continued membership in the Union are present and I find, therefore, that Respondent is a 2 Respondent reemployed Bracciale and Osborne on May 13, 1974. :' RCA periodically serviced the equipment and the operator was required to be present. 4 Makeup time refers to the time required to prepare a show for viewing. It is necessary for each new feature to be wound on larger reels, inspecting the film for breaks, etc., at the same time. At the conclusion of a run, the successor to Venus in the operation of the Pine Hills and Semoran Twin Theatres.5 C. The Alleged Violation of Section 8(a)(3) At the conclusion of the last shift on March 2, 1974, Division Manager John Zampi visited the Pine Hills Theatre and personally delivered the following letter to Bracciale, with a copy for the business agent of the Union. March 2, 1974 Mr. Richard Gabel Mr. Joseph R. Bracciale Mr. Ofa H. Osborne Local No. 631 I.A.T.S.E. Orlando, Florida Gentlemen: The contract between Cobb Theatres for its Semoran and Pine Hills Theatres, Orlando, Florida and Local No. 631 -I.A.T.S.E. expired on December 31, 1973. As you are aware, these theatres have been losing money steadily, and after careful review, we have determined that we can no longer afford to continue this agreement. Accordingly, your representative operators in the booth have been paid in full for the payroll period through March 2, 1974 and additionally, the primary operators have received two weeks' salary in lieu of two weeks' notice. Thank you for your cooperation. Kindest personal regards. Sincerely, Irv Richland Special Assistant to the Executive Vice President and Director of Florida Operations IR: fmk CC: Mr. R. C. Cobb Mr. Joe Moore Mr. Norm Levinson Mr. John Zampi Simultaneously, another representative of Respondent delivered a copy of the letter to Osborne at the Semoran Theatre. The following day (Sunday), the theatres were opened and continued to operate with new employees. No prior notice of the termination had been given to the Union or the employees. Thereafter on March 30, Business Agent show is then torn down and the film is rewound on the original reels. This process of making up and tearing down occurs only when a show is changed. As will be seen, the time required for the operation was a source of conflict between Respondent and the employees and their Union. I N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). 102 R. C. COBB, INC. Sullivan called Zampi who refused to discuss the discharg- es and said they had no contract with the Local. Norman Levinson is executive vice president of the Respondent in charge of its theatre operation. Levinson testified that sometime in February, as a result of discussion with his assistants concerning their belief that Bracciale and Osborne charged the Company for excessive amounts of makeup time, he decided to terminate these employees. He thereupon personally instructed Zampi to "locate nonunion." Zampi looked, found nonunion people, and hired them well before dismissing Bracciale and Osborne. The replacements began to work the following day at respective rates of $2.50 and $2.75 per hour as compared to the $5 per hour union rate. Bracciale testified that at the time he was terminated Zampi told him that the Company could not afford to keep the Union. Zampi denies making this statement but in this regard I credit Bracciale who seemed more straightforward in his testimony while Zampi was elusive and had to be led. Moreover, the statement is consistent with the letter of termination which is really written to the Union and states that "we can no longer afford this agreement." 6 Respondent's defense to the allegation that the employ- ees were illegally terminated is based mainly on its contention that they were unreasonable in the time they charged the Company. In short, it is alleged that they padded the payrolls and, in support of this argument, a great deal of testimony was elicited concerning the makeup time. In 1972, Respondent wrote to an International representative of the Union complaining about this problem. As a result a meeting was held in October attended by company and union representatives as well as Bracciale and Osborne. Nothing concrete came forth at the meeting. Accepting the version of Respondent's witnesses, the Union's International representative told the employ- ees to be careful about the hours charged and the Company agreed to install a new additional rewind machine in each booth to speed the makeup process. In all of the testimony there is no clear statement of what is a reasonable time for makeup. At one point Levinson testified that three-quarters of an hour is reasonable; at another, his assistant, Richland, stated 15 minutes in some cases is reasonable. These estimates are contested by the employees who state that makeup time varies and is dependent upon many factors such as the length of a film and whether it contains defects. The Windsor and Venus contracts provided for minimums, not maximums, and while the expired contract with Respondent did not contain any specific provision, the employees charged for the time they spent making up and tearing down. It is clear that the amount of time Respondent paid for makeup was based upon the record submitted by each employee individually to the theatre manager. This matter of payroll padding, if it existed, was an act of the individual employees, not the Union. Thus, if the Company was unhappy with the charges made by these employees, as it might well be, it did not seek to replace them with other '; The letter of March 2. 1974, notes at the outset that the contract expired December 31. 1973, then states it cannot continue the agreement. The tone of the letter implies that Respondent, up to this point at least. accorded recognition to the Union. 7 I do not credit Zampi's testimony, denied by Bracciale and Osborne. union employees. Indeed, it continued to pay them for the time they charged long after the 1972 meeting and during the period commencing January 11, 1974, when the Company resumed operations, until their discharge.7 The letter of termination was written to the Union, not the employees. The reference to the losing operation is linked to the continuation of the agreement. There is nothing regarding the conduct of the employees. If anything, it was the overall wage rate that concerned the Company which was manifested by its hire of two replacements at half the rate. On the basis of all the testimony, but particularly that of Executive Vice President Levinson, I conclude that Bracciale and Osborne were terminated because of their membership in the Union. Levinson was incapable of separating these employees from their Union. For example, he said repeatedly that the operators and the Union were "unfair"; "these two operators and the Union were taking advantage of us"; and "I believe the two operators and the Union they worked for was at fault." And, of course, Levinson's first instruction, after deciding to dismiss the two operators, was to seek nonunion employees. I find no merit in Respondent's contention that its contract (par. 2) gave it the right to discharge the employees for any reason. That paragraph, in this case, conflicts with paragraph 6 which states that the employer agrees not to discharge employees because of their union affiliation. Further, reliance on the contract is not consis- tent with Levinson's testimony that he did not contact the Union before discharging the operators because "we did not have a contract." Finally, upon reinstating these two employees in May, they were specifically informed by Zampi that the Company was not recognizing the Union. On this occasion, Business Agent Sullivan accompanied Osborne to the Semoran but was denied admission to the booth by Zampi. Accordingly, I find that Respondent discharged Bracc- iale and Osborne on March 2, 1974, because of their membership in the Union and thereby violated Section 8(aX I) and (3) of the Act. D. The Refusal To Bargain Having found that Respondent is a successor employer, certain bargaining obligations flow under the Burns doctrine. The Supreme Court said that a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor. But the Court also stated that "there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms." that he spoke to them individually in 1974 about overcharging. However, even if his statement is accepted, there was nothing conclusive about it, nor did it even contain a warning. . Burns, supra. 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this case, Respondent retained all the employees in the unit.9 Consequently, Respondent's duty to bargain concerning initial terms of employment arose as soon as Zampi told the employees on January II that Respondent was taking over and they would remain.10 At that point, no bargaining or request for bargaining occurred presumably because Respondent continued in effect the wages and other terms as set forth in the contract of its predecessor. In any event, the initial terms had been established on January II and Respondent was not free thereafter to establish or change conditions for unit employees without bargaining with the Union."1 As the Company did not change working conditions when it took over in January, this right came into play, then, in mid-February 1974 when Executive Vice President Levinson decided not only to terminate Bracciale and Osborne but to hire nonunion replacements. This decision was made, as we have seen, without notification to or consultation with the Union, as was its implementation which was not effected until the replacements had been hired. Needless to say such unilateral conduct was calculated to destroy the bargaining unit.' 2 Nor can there be any doubt that Levinson intended that result in view of his testimony that the Union was "unfair"; that it was "at fault"; and his instruction to locate and hire nonunion people at rates of half the union scale. When Bracciale and Osborne were reinstated in May, Division Manager Zampi told Osborne in person, and Bracciale by phone, that they were being hired, but not as union operators. Further, he directed Union Business Agent Sullivan not to come to the theaters. It is clear that the Company at no time after January 11 recognized its obligation to bargain with the Union. Thus, the successorship relationship having been estab- lished, I find that Respondent failed in its obligation to refrain from unilateral changes in the terms and conditions of employment. This was done in several ways: (a) The failure to notify the Union of its decision to terminate all bargaining unit employees; (b) the termination, without notice, of all bargaining unit employees; (c) the employ- ment of nonunion replacements at wages substantially below the established rate; (d) and by refusing at the time of Osborne's reinstatement to permit the Union's business agent to visit the theaters and inspect the booth, contrary to previous custom. By all of this conduct, Respondent unilaterally changed the conditions of employment in violation of Section 8(a)(1) and (5) of the Act. Further, by the refusal of Respondent Division Manager Zampi to discuss with Business Agent Sullivan, at the latter's request in March 1974, the matter of the discharge of the unit employees, and Zampi's rejection of the Union at the time of the employees' reinstatement on May 13, Respondent also violated Section 8(aXl) and (5) of the Act. 13 9 it is stipulated and I find that all motion picture machine operators employed at the Pine Hills Twin Theater and Semoran Twin Theater constitute an appropriate unit. i' Howard Johnson Company, 198 NLRB 763 (1973); Good Foods Manufacturing & Processing Corporation, Chicago Lamb Packers, Inc., 200 NLRB 623 (1972). , Ranch- Wa, Inc., 203 NLRB 911 (1973). Before providing remedies for the 8(aX5) violations found, it is necessary to inquire into and determine the merit of Respondent's affirmative defense of racial and sexual discrimination by the Union.14 E. The Mansion House Defense Respondent, relying on Mansion House, contends that "the Union is guilty of such discrimination against blacks and females as to be denied the status of exclusive representative of the employees of the Company." The facts developed on this issue are in the main uncontroverted. The parties stipulated as follows: 1. That from January 1, 1970, to date, R. C. Cobb, Inc., when employing projectionists furnished by Local 631, IATSE, in projectionists classifications has not employed persons who are either black or female. 2. That Local 631, IATSE, from January 1, 1964, to date has had no black or female members. 3. The collective-bargaining agreement between Respondent and the Union dated January 1, 1971, with a duration from January 1, 1971, through December 31, 1973, provides in part for "pay to the men represented by Union... ." 4. That the practice since January 1, 1964, of Local 631, IATSE, and the employers with whom it has had collective bargaining agreements has been that the employers seek their employees exclusively through Local 631 and the Union furnishes projectionists. This exclusive referral system only allows the employer to seek employees independently of the Union where the Union notifies the employer that no one is available. 5. That the Constitution and By-Laws of Local 631, IATSE, from January 1, 1964, to date, are attached hereto and made a part hereof and marked Exhibit 1 to this Stipulation. 6. That Local 631, IATSE, since January 1, 1964, has had no apprenticeship training program. 7. That although the facts stipulated to are limited to events after the year January 1964, they are so limited only by reason of the contention of the Union and the General Counsel that facts before that date would be irrelevant. No inference will be drawn from the fact that the period of time covered in this stipulation commences on January 1, 1964, other than that was the effective date of the Civil Rights Act. The Respondent called on a witness in addition to the stipulation. Esther Wilder, a labor market analyst em- ployed by the Florida State Employment Service, testified to the authenticity of certain documents which were received for the purpose of showing population statistics in the counties over which the Union has jurisdiction.' 5 12 See Johnson's Industrial Caterers, Inc., 197 NLRB 352 (1972). i3 Southwest Janitorial and Maintenance Corporation, 205 NLRB 1061 (1973). 14 N.LR. B. v. Mansion House Center Management Corporation, 473 F.2d 471 (C.A. 8, 1973). 1' The Union's jurisdiction extends to Orange, Seminole, and Brevard Counties. 104 R. C. COBB, INC. The relevant figures show that in Orange County (where the theaters are located) in 1972, 14.6 percent of the total population were black and 51.3 percent were female.'6 These statistics, updated to 1973, indicate 14.1 percent blacks and 49.9 percent female. In Orange County during 1971, 13.5 percent of the work force was black while blacks comprised 17.8 percent of the total unemployed in the county. The 1971 reports indicate both black and female employment and unemployment by occupation but the job of motion picture operator is not listed. The witness testified that figures on unemployment are obtained from employer and unemployment compensation reports. Wild- er receives information concerning the job placement by state agencies of many classifications of employees, but could not say whether a projectionist had been placed nor whether any black or female had ever applied for such a position. Union Business Agent Sullivan testified that the Local has 50 members of whom only 24 are employed. No new members entered in 1974, but there were five in 1973 and two in 1972. The initiation fee is $500 and an applicant must demonstrate that he is a projectionist. This is accomplished by sending him to a theater with an experienced member. Three members are required to vouch for an applicant; the application is then forwarded to New York for approval after which the Local votes upon his admission. Sullivan said that, in his 4 years' experience, two applicants were voted down. He has not heard of any black or female applicants nor, indeed, of any black or female projectionists, union or nonunion, in the Orlando area. Ofa Osborne, a member since 1967, and a trustee and executive board member, stated that, to his knowledge, no black or female had ever applied for membership. The Union filed an Equal Employment Opportunity Local Union Report (EEO - 3), but the EEOC does not require a local union with less than 100 members to complete those portions of the form relating to minority practices and hiring halls. In essence, Respondent's affirmative defense rests on the fact that the Union does not have any blacks or females among its membership, that these groups comprise a significant portion of the population," that the Union, in practice, operates an exclusive hiring hall and does not have an apprenticeship training program. In Mansion House, the court, relying on Title VII cases, held that statistical evidence of racial imbalance in the union's membership creates a prima facie case of racial discrimination which shifts the burden to the union to rebut this inference. The Board had held that it was not sufficient for the employer to demonstrate a racial imbalance by the use of statistics alone.'8 The court stated that "the Board should inquire whether the Union has taken the initiative to affirmatively undo its discriminatory '6 In this case. I believe it suffices to show merely a significant proportion of blacks or females since the Union admittedly has none among its membership 17 Although the stipulation provided that it was in lieu of other testimony on the affirmative defense, I received, over objection. the additional statistical evidence offered by Respondent. It was clear during the negotiation that the stipulation was a substitute for testimony in support of the bill of particulars furnished by Respondent. Moreover, Respondent need not be limited by the scope of the demand for a bill of particulars provided the evidence proffered is relevant to the issues raised by the affirmative defense. practices," and denied enforcement of the 8(a)(5) viola- tion, 19 remanding those issues to the Board for further consideration. Since the court decision in Mansion House, the Board has had very few opportunities to consider this matter. In Hawkins Construction Company, 210 NLRB 965, 971 (1974), Administrative Law Judge Jerrold H. Shapiro found that the employer violated Section 8(a)(5) by refusing to furnish information to the union. The employer pleaded the Mansion House defense and, after carefully weighing the evidence, the Administrative Law Judge concluded that the "statistical disparity between the racial composition of the Union's membership with that of the general population was not demonstrated to have been readily identifiable as substantial." In short, the primafacie case of discrimination had not been proven.2 The Board adopted his recommended order, agreeing that the evi- dence does not establish a prima facie case of racial discrimination by the union. It therefore did not find it necessary to reach the issue of whether the Board would be required as a matter of national and statutory policy to find that the union is not the exclusive bargaining representa- tive, should it find that the union was engaging in racial discrimination. Chairman Miller specifically reserved judgment on the issue of under what circumstances a Title VII violation is sufficient to withhold a bargaining order and also the question of weight to be accorded to statistical evidence. Again, in another case, the Board adopted an order recommended by Administrative Law Judge Charles W. Schneider finding violations of Section 8(a)(5) despite an affirmative defense that the union engaged in racially discriminatory practices. The Administrative Law Judge found that the failure of the union to refer minority employees to the employer was insufficient to establish that the union engaged in racial discrimination. Of course the evidence showed that the union had referred minority persons to other employers, it had substantially increased its minority membership in the past few years, and it had participated in various programs for recruitment and training of minority individuals. The Board agreed with the Administrative Law Judge's disposition of the case on the merits.21 Neither Hawkins nor Williams is dispositive of the instant case as they were situations in which the statistics themselves failed to establish any substantial imbalance. Three recent Board decisions in representation matters dealt with the Mansion House issue. In each of these cases, an employer urged that a petitioning union be disqualified to represent the employees on the ground that the union discriminates on the basis of sex, national origin, or race, as the case may be. IN 190NLRB437(1971). 19 The court enforced violations of Sec. 8(aX3) found by the Board. 20 The population statistics revealed that 3.3 percent of the population in the union's territorial junsdiction were minonty groups while 2.4 percent of the union's membership were minority group persons. In a smaller area involved, the population contained 7.4 percent minority and the union had a membership of 5.9 percent. 21 Williams Enterprises Inc., 212 NLRB 880 (1974). 105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974), a majority of the Board determined that the question whether the Board should certify a union which engaged in invidious discrimination of this type raised constitutional issues and that the Board lacked the power to confer a certificate on such a union. Procedurally it was held that the issue of disqualification in a representa- tion case could be raised by objection only after the election had been won by the union.22 In Bekins, the Board did not set forth specific parameters which would be determinative of particular cases. However, it did say: It will thus be our task, on a case-by-case basis, to determine whether the nature and quantum of the proof offered sufficiently shows a propensity for unfair representation as to require us, in order that our own action may conform to our constitutional duties, to take the drastic step of declining to certify a labor organization which has demonstrated in an election that it is the choice of the majority of employees. It is not our intention to take such a step lightly or incautiously, nor to regard every possible alleged violation of Title VII, for example, as grounds for refusing to issue a certificate. There will doubtless be cases in which we will conclude that correction of such statutory violations is best left to the expertise of other agencies or to remedial orders less draconian than the total withholding of representative status. To reconcile these views with a full awareness of our own constitu- tional responsibilities will, we recognize, not always be an easy task, but the difficulties involved do not entitle us to shrug off our oath to uphold and defend the Constitution of the United States. A statistical situation close to that in the instant case arose in Bell & Howell Company, 213 NLRB 407 (1974), where the employer urged, in the representation proceed- ing, that a motion for disqualification be granted based upon the contention, inter alia, that the union controlled the stationary engineering trade in the Chicago area thereby necessitating membership in order to obtain employment, and the absence of female engineers is the effect of the union's discriminatory policies. It further alleged that no females were members of the union. Members Fanning and Penello, adhering to their dissent in Bekins, do not believe that disqualification of a union petitioner in a representation case "because it allegedly discriminates on the basis of sex is neither required by the Constitution nor permitted by the Act." They would "leave such questions as they may raise, with respect to the Petitioner's willingness or capacity to represent all employ- ees in the bargaining unit, to be resolved in other proceedings under the Act." Member Kennedy concurred in this case, because the alleged discrimination was based on sex and, as previously noted, he would confine precertification representation proceedings to those allega- 22 Member Kennedy, concurring, would limit the postelection hearing to allegations that the union excludes persons from membership on the basis of race, alienage, or national origin. He would not inquire at that time regarding a potential breach of the union's duty of fair representation which he believes to be statutory. Nor does he regard discrimination on the basis of sex to be constitutional since the Supreme Court has not found sex to be tions determined by the Supreme Court to be inherently suspect. He would view alleged sexual discrimination as a possible breach of the statutory duty of fair representation. Thus, a Board majority denied the employer's motion to disqualify the union. Chairman Miller and Member Jenkins, on the other hand, in accordance with their views expressed in Bekins, find that the employer had submitted prima facie evidence "which challenges the Petitioner's ability to fairly represent employees," and they would direct a hearing on the issues. In Grants Furniture Plaza, Inc. of West Palm Beach, Fla., 213 NLRB 410 (1974), decided the same day as Bell & Howell, the Board overruled the employer's exceptions to the report on objections and recommendations of the Regional Director, and certified the union without a hearing. The employer submitted statistical data which, it contended, showed an imbalance with respect to female and Spanish-surnamed members of the union. It alleged that union membership was 12-1/2 percent Spanish and 12-1/2 percent female while the population in the area was 26.6 percent Spanish and Spanish-surnamed and the percentage of available females in the work force was 49.2 percent. All Board members agreed to the certification of the union in this case. Members Fanning and Penello concurred for the reasons expressed in Bekins that they would not consider these matters in pre-certification proceedings. Chairman Miller and Member Jenkins stated (with respect to the issue pertinent herein): Nor do we find sufficient to warrant a hearing the evidence offered in the form of statistics purporting to show that the labor organization seeking certification here has a membership in which certain minority groups appear in numbers less than the population ratio of such minorities to the total population in the area in which this labor organization operates. No evidence was proffered here to show that the Petitioner, through a hiring hall or other means, exercises any control whatsoever over the racial, sexual or ethnic composition of those who enter the work force and, thus, those who are or may become its members. In the absence of such evidence we must assume that the employers in the area exercise the true control over the selection of the work forces, and that only after the employer selection process has been effective do employees normally either voluntarily seek member- ship in the union or, in some instances, do so as required under the terms of a valid union-security agreement. Without passing, therefore, in this case, upon the appropriate weight to be given statistical data as to the racial or ethnic composition of the Union's member- ship in a setting wherein evidence is offered to show either that the Union controls or substantially influenc- es access to employment, or deliberately restricts access to its own membership rolls, we conclude that it would an inherently suspect classification. The latter may be raised as a breach of the duty to fairly represent. The dissenting members believe that certifica- tion is statutory and the certification confers obligations on the union to fairly represent all the employees. Should it fail in this obligation, the unfair labor practice procedures under Sec. 8 would be available, or the certification would be subject to revocation. 106 R. C. COBB, INC. be improper to draw any inferences of union propensity for discrimination on the sole basis of such statistical evidence in the instant setting. We therefore conclude in agreement with the Regional Director that this statistical evidence standing alone is insufficient to warrant the holding of a hearing. Member Kennedy, concurring, also indicates that statis- tical imbalance is an unreliable factor. He said: In summary, I would not regard statistics alone, such as those presented here, as a reliable indication of discrimination in union membership. It would be untenable, in my view, to rely solely on statistical imbalances as evidence of union discrimination. Such imbalances may be nothing more than a reflection of the total composition of bargaining units which the union is obligated to represent. I have discussed these representation cases at some length because they have been the sole vehicles at this point, to my knowledge, which have provided the Board with an opportunity to speak to the question of statistical imbalance in union membership as indicative of discrimi- nation with respect to race, sex, or national origin. Moreover a bargaining order bestows upon a union the status of exclusive bargaining representative under Section 9(a), the same as achieved through the electoral processes of Section 9(c)(1). And as there has been no allegation or evidence adduced in the instant case that the Union has failed to represent fairly or equally employees in this or any other unit in violation of its statutory duty, the principles set forth in the representation cases should have applica- tion here. Since Bekins has determined that the issue of whether a union discriminates upon the basis of race, sex, or national origin raises constitutional questions, consideration of these issues is warranted prior to granting a bargaining order. However, the Board cautioned that it would not take lightly the step of declining to certify a union and that it would not regard every alleged violation of Title VII as grounds for refusal to certify. It declared these matters will be considered on a case-by-case basis. Although Grants Furniture Plaza establishes that a majority of the Board does not believe that certification should denied on the sole basis of statistical imbalance, it did not pass upon the weight to be given statistical data where there is evidence that the union controls access to employment, such as a hiring hall, or deliberately restricts access to its own membership rolls. That is almost precisely the area of the instant case: the Union has no black or female members and, by practice, operates an exclusive referral system. Upon the basis of all the evidence, I conclude that, in the circumstances of this case, Respon- dent has not proved its affirmative defense of discrimina- tion because of race or sex. Respondent's statistical argument, I believe, falls short of the mark. The population figures submitted show merely the numbers of blacks and females in the area of the Union's jurisdiction and the percentage of unemployment in those categories. There is no evidence as to the numbers of blacks or females who are qualified as projectionists or any evidence as to whether any of them are seeking either employment or training in that occupation. It has been the policy of the courts in Title VII cases to accord great weight to statistical evidence of racial imbalance which has been held to establish a prima facie case of discrimination. 23 The Board has already noted that it does not intend to regard every possible violation of Title VII as grounds for refusing to issue a certificate.24 Yet the union membership is so small in this case (50) that it is not required to report its practices regarding minority groups to EEOC, the agency primarily interested in this area. Of course, this does not license the Union to discriminate but there is no allegation of specific acts of discrimination against blacks or females. Nor does there appear to be any value to a apprenticeship training program for a small local having 26 of 50 members unemployed There is no evidence that this rate of unemployment is temporary or seasonal. Indeed, such a program would appear to have little attraction in that kind of job market. These are factors which make of this case a de minimis situation and worthy of consideration in the application of the Board's sugges- tion in Bekins of a case-by-case approach to the problem. The principal difficulty in resolving this issue arises from the practice of the parties in this case to rely on an exclusive refusal procedure. In Grants Furniture Plaza, the Board suggested, without passing on it, that statistical imbalance coupled with evidence showing either "that the Union controls or substantially influences access to employment, or deliberately restricts access to its own membership rolls," may create an inference of union "propensity for discrimination." While there is no evidence that the Union here deliberately restricts its membership, there is no question that it substantially influences access to employment by reason of the exclusive refusal practice. The bottom line is then statistical imbalance plus exclusive hiring hall. At this point a line should be drawn between a case of initial representation and the unfair labor practice situation in which the Board is charged with enforcement of the national labor policy. I have heretofore noted the Board's inclination to the case-by-case approach. Respon- dent has been found to be a successor employer with an obligation to bargain with the Union. Yet it is not even an ordinary successor, as Respondent was also a predecessor whose initial contract with the Union expired less than 2 weeks before it regained operation from its sublessee. To put it another way, except for an interlude of subleasing the operation for approximately 8 months, Respondent had a collective-bargaining relationship with the Union since the latter part of 1970, stemming first from the contract and then as a successor employer. From at least the time that Respondent decided to discharge all employees in the unit it has refused to fulfill its obligation of recognition and bargaining with the Union. In my opinion, enforcement of the statutory policy in this regard requires a bargaining order. In the circumstances the factor of the Union's control over a rather minimal labor market should not preclude such an order, particularly where there is no 23 See UL'. S. v. Ironworkers Local 86, et al., 443 F.2d 544 (C.A. 9, 1971). 107 21 Bekinsr. supra. DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence, over a period of some years, that the Union has engaged in any discriminatory conduct in the exercise of its statutory duty to represent all employees fairly. For all of the above reasons, Respondent has not sustained its affirmative defense. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce 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 certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. It appears that Respondent has reinstated Joseph R. Bracciale and Ofa H. Osborne to their former positions as motion picture machine operators. I shall recommend that Respondent make them whole for any losses they may have sustained with backpay as provided in F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent, in violation of its duty under Section 8(a)(5) of the Act, has made unilateral changes in working conditions, has refused to bargain with Union concerning the discharge of all employees in the bargaining unit, and has withdrawn recognition from the Union, I shall recommend that Respondent be ordered to recognize and, upon request, bargain with Union, and cease making unilateral changes in working conditions before notification and bargaining, upon request, with the Union. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employees Joseph R. Bracciale and Ofa H. Osborne because of their membership in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. All motion picture machine operators employed at the Pine Hills Twin Theatres, Orlando, Florida, and the Semoran Twin Theatres, Winter Park, Florida, excluding all other employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 5. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing to bargain in good faith with the Union as the exclusive bargaining representative of the unit described above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER25 The Respondent, R. C. Cobb, Inc., Orlando and Winter Park, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, or any other labor organization, by discharging or otherwise discriminating against employees in respect to their hire or tenure of employment or other condition of employment. (b) Refusing to recognize and bargain with Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, with respect to rates of pay, hours of employment, and other terms and conditions of employ- ment. (c) Unilaterally changing the wages or other terms and conditions of employment of employees in the appropriate unit without prior consultation with Local 631, Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Joseph R. Bracciale and Ofa H. Osborne for any loss of pay or other benefits they may have suffered as a result of the discrimination found against them, in the manner set forth in "The Remedy" section herein. (b) Bargain collectively, upon request, with Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, for a succeeding agreement, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records 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 deemed waived for all purposes. 108 R. C. COBB, INC. necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at the Pine Hills Twin Theatres, Orlando, Florida, and the Semoran Twin Theatres, Winter Park, Florida, copies of the attached notice marked "Appen- dix." 26 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by it immedi- 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant ately upon receipt thereof, and be maintained by it 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, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 109