General Cinema Corp.

GENERAL CINEMA CORP. General Cinema Corporation and its wholly owned subsidiary, Gentilly Woods Cinema, Inc. and International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada, Local Union 239A and International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada, Projectionists Local No. 293, Party to the Agreement. Case 15-CA- 4778 April 28, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 3, 1977, following a partial remand of this case from the United States Court of Appeals for the Fifth Circuit, Administrative Law Judge Marion C. Ladwig issued the attached Supplemental Deci- sion in this proceeding. Thereafter, the Respondent and the Party to the Agreement each filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Supplemental 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 Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommendations. Accordingly, we shall modify the Board's Decision and Order of November 20, 1974,1 by specifying that Frederick Dobard is entitled to backpay. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts the recommendations of the Administrative Law Judge and hereby orders that the Respondent, General Cinema Corporation and its wholly owned subsidiary, Gentilly Woods Cine- ma, Inc., New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Board's Decision and Order of November 20, 1974, reported at 214 NLRB 1074, as modified below: 1. Substitute the following for paragraph 2(b): "(b) Make Frederick Dobard whole for any loss of earnings he may have suffered by reason of Respon- 229 NLRB No. 53 dent's discrimination against him in the manner set forth in the 'Remedy' section of this Decision." 2. Substitute the attached notice for that attached to the original Decision and Order. 1 214NLRB 1074. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize International Alliance of Theatrical Employees and Moving Picture Machine Operators of the United States and Canada, Projectionists Local No. 293, as the exclusive representative of our projectionist em- ployees for the purposes of collective bargaining, unless and until it has been selected by our employees in an election conducted by the National Labor Relations Board. WE WILL NOT give any force or effect to the collective-bargaining agreement entered into with the above-named Union, or to any modifications, extension, renewal, or supplement to said agree- ment, but, WE WILL NOT prejudice the assertion by employees of any rights they may have under such agreement. WE WILL NOT acquiesce in, maintain, or utilize a hiring agreement with the above-named Union, or any other union, under which nonmembers are discriminated against by giving preference in referrals to members, except as authorized by Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL make Frederick Dobard whole for any loss of earnings he may have suffered by our discrimination against him. GENERAL CINEMA CORPORATION AND ITS WHOLLY OWNED SUBSIDIARY, GENTILLY WOODS CINEMA, INC. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: On November 20, 1974, the Board issued its Decision and Order (214 NLRB 1074 (1974)), finding that the Company, the Respondent, violated Section 8(a)(1), (2), and (3) of the Act by (a) recognizing Local 293 as the bargaining 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of projectionists at its new Gentilly Woods theater before any projectionists were hired, (b) signing a contract (containing a union-security clause) with Local 293 at the new theater, which was not an accretion to the Company's Oakwood and Lakeside theaters, and (c) acquiescing in the discriminatory practice of Local 293 (the white projectionist local) "in the operation of its hiring hall and seniority provisions" of "preferring its own members to those of Local 293A [the black local] on the basis of wholesale and notorious racial discrimination." The Board found "to be without merit" both the Company's exception to the finding in my February 25, 1974, Decision (214 NLRB at 1082) "that it desired to hire at least one black projectionist" at its new theater, and Local 293's conten- tion that my recommendation (214 NLRB at 1085) was erroneous that the Company be required to "hire one black projectionist" at the new theater. Under "Remedy," the Board stated, "We shall also order the Respondent to make whole the lost wages of any person illegally denied employment because of its discrimination," as determined at "the compliance stage of this proceeding." On January 22, 1976, the Court of Appeals for the Fifth Circuit, 526 F.2d 427, 428-429, enforced the Board's Order "in all respects save the provision as to backpay," and remanded the case to the Board for further proceedings to determine: (I) whether any particular person or persons claims or is entitled to backpay, and (2) if so, whether Respondent is absolved by its obligation to Local 293 to award the jobs to those projectionists who had been laid off at either the Lakeside or Oakwood theaters. On June 18, 1976, the Board issued an Order Remanding to the Regional Director, "for further proceedings pursuant to the Board's compliance procedures and in accordance with the Court's judgment." The Regional Director issued a notice of hearing on July 12, 1976, and the supplemental hearing was held in New Orleans, Louisiana, on October 12, 1976. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Company, Local 293, and Local 293A, I make the following: FINDINGS AND CONCLUSIONS A. Entitlement to Backpay On February 22,' the date the Company prematurely recognized Local 293 (the white local) as representative of future projectionists at Cinema I and II in the Gentilly Woods shopping center (near a black residential area), Local 293A (the black local) sent the Company a telegram, stating that visual observation indicated that construction of the new theater is near completion, that it is "impera- tive" that we meet with your representative regarding staffing the theater "with necessary projectionists," and stating, "It is important that our people be aboard before installation of any of the projection equipment." (Previous- ly, on September 13 and October 25, Local 293A had submitted written requests for this work.) I All dates are from September 1972 through March 1973 unless otherwise stated. On the same day, February 22, General Manager Spiess telephoned International Assistant President Walter Diehl and asked, in effect, which local to deal with. Diehl responded, "Deal with 293." Immediately, Spiess granted unlawful recognition to the white local, telephoning Business Agent Thadius Autin and advising him, "we are ready to go with the installation." On February 25, after getting approval from members at a special meeting, Autin referred himself and Hunter Stewart (both members of Local 293 and former company employees) to the new jobs. (The membership also approved the assignment of the swing man at the Company's Oakwood theater to the relief job at the new theater.) Autin and Steward began working full time at the Gentilly Woods theater when it opened on March 29. Meanwhile, General Manager Spiess agreed to meet with Local 293A. In preparation for this meeting, Local 293A members met and decided the priority (by industry seniority) of the members who sought employment at the new theater. Business Agent Frederick Dobard was at the top of the "bid" list. Company and Local 293A representa- tives met on March 28 (1 day before the opening). In the meeting, as Dobard credibly testified at the 1973 hearing, Local 293A Attorney Robert Delaney stated, "We are here to make a bid on the theater in Gentilly." (At the remand hearing 3 years later, Dobard did not recall just how this reference to a bid was made.) Although Spiess did not recall a specific reference to a bid, he testified at the hearing that he began by telling Local 293A "that we felt that we are not able to do any negotiations at this time but we wanted to extend the courtesy of meeting with them for the purpose of discussion and we were here for that purpose only and explained our position." The union leaders "were rather taken aback," and one of them asked "by what authority was I not able to negotiate." Again they were surprised when Spiess advised them that upon "instructions by Mr. Walter Diehl ... I was to negotiate with Local 293." Further, as Spiess testified, Company Attorney Donald Meyer interrupted and stated, "We aren't in a position to discuss any employment of their people." Thus, because of its unlawful recognition of Local 293, the Company would not discuss the Gentilly Woods projectionist jobs with Local 293A, and clearly prevented the black local from presenting its bid for the job. Business Agent Dobard, who headed the list, was well qualified. At age 44, he had 27 years' experience as a projectionist. He was also a trained television repairman. He was able to read electronic schematic diagrams and to change the printed circuits used in the automated equipment. He made repairs on the projection equipment where he worked, buying parts himself at the electronic parts wholesaler. He had been shown the automated equipment at the Oakwood theater and had studied the diagram. He credibly testified that "This type of equipment can be operated by just most any operator who would get in there with an installation procedure when its first installed or if he has any ability ... it could be taught to him very easily." It was customary for the factory representative to train the projectionists at the time of installation. (Autin testified 330 GENERAL CINEMA CORP. that he spent 2-1/2 or 3 weeks at the new theater, between February 25 and March 29, as the equipment was being installed. I also note Spiess' testimony that the Company does not check the credentials of the projectionists referred to it. Only I of 14 projectionists who had been trained in New Orleans to operate the Company's automated equip- ment had proven to be incompetent.) As found (214 NLRB at 1075-76, 1079-82, 1085), the Company desired to hire a black projectionist, but failed to do so-acquiescing in the white local's unlawful referral practice which was based on "wholesale and notorious racial discrimination." The General Counsel contends that "but for" the Company's discrimination, "Dobard was the individual who would have been hired as a full-time projectionist" at the new theater, and that he is therefore entitled to backpay. (Although Dobard was employed, the Company's wages were substantially higher than his wages at a black theater.) The Company argues that Dobard would not be entitled to backpay. It first contends that Dobard failed to file an application with the Company at the theater-ignoring the evidence that the Company hired projectionists in New Orleans solely through Local 293 (which referred only its own members). The Company next argues that Dobard "never filed a bid . . . for himself (or, for that matter, for any other member of Local 293A)"-ignoring General Manager Spiess' own testimony showing that he and the company attorney clearly precluded any discussion of jobs for the black projectionist and made any presentation of a bid an exercise in futility. I find that Local 293A Business Agent Dobard would have been one of the two full-time projectionists hired at the new Gentilly Woods theater on March 29 in the absence of the Company's discrimination, and agree with the General Counsel that Dobard claims, and is entitled to, backpay. (In its brief, Local 293A seeks backpay "in a sum equal to the wage of a full-time projectionist at the Gentilly Woods Cinema I & II," apparently on the theory that if the Company had not discriminatorily refused to hire Dobard, one of Local 293A's unemployed members would have replaced Dobard at the black theater where he worked. Thus, as a direct result of the Company's discrimination, the unemployed member suffered a loss in the amount of the black theater's wages, which would be deducted as interim earnings from Dobard's wages at the new theater. However, the General Counsel seeks only the loss of earnings suffered by Dobard. Also, in the absence of any issue at the remand hearing concerning when the Compa- ny's backpay obligation terminates, I do not rule on whether Dobard's backpay continues until the Company offers him employment at the Gentilly Woods theater. I do note that Autin, one of the two projectionists hired there in 1973 instead of Dobard, had previously transferred from the Company's Oakwood theater to the Lakeside theater, nearer his home.) B. Effect of Prior Promise In August 1970, when the Company installed automated projection equipment at its Oakwood and Lakeside theaters, the Company laid off four Local 293 members (including Autin and Stewart). One of the laid-off employ- ees, Harold Ballam, filed charges against the Company and Local (in Cases 15-CA-3899 and 15-CB- 115), challeng- ing the legality of the contractual and bylaw provisions, applying union seniority. Following the issuance of a consolidated complaint on October 9, Local 293 amended its bylaws on November 16 to substitute "industry" for "union" seniority, and a settlement agreement was signed by the parties and approved by the Regional Director on November 25, providing for Ballam's reinstatement with backpay. On December 7, 1970, Local 293 signed an addendum of agreement (which was later executed by the Company on December 26), providing for the reinstate- ment of Ballam and making contract changes to effectuate the terms of the settlement. About December 7, 1970, after agreeing to the terms of Ballam's reinstatement, Business Agent Autin asked General Manager Spiess if any arrangements could be made for the other laid-off employees. As Spiess credibly testified at the hearing, he promised Autin that "if the opportunity occurred in future developments here in New Orleans," or "if and when I had a new theater for [the laid- off projectionists] to come in . . . that they would have prior claim on the work." Thus, after the parties had signed the November 25 settlement agreement and after the Company and Local had agreed to the terms of Ballam's reinstatement, the Company gratuitously promised, orally, to give the three remaining laid-off employees a prior claim to jobs when General Cinema opened a new theater. (Now, in its brief, the Company asserts that the "agreement" to rehire the laid-off employees "was the consideration for the settlement of the Ballam litigation." This is clearly an afterthought. The settlement agreement had been executed nearly 2 weeks earlier, and the terms of Ballam's reinstate- ment had already been agreed to. Autin testified at the hearing that this "agreement" was reached "During the meetings right after the Ballam case wasfinalized [emphasis supplied ].") Of course, absent special circumstances, Board law would permit General Manager Spiess to follow through with his 1970 oral promise or agreement (whether or not it was gratuitous). However, as contended by the General Counsel, Spiess did not rely on this "agreement" in staffing the new theater. In neither of his conversations with International Assistant President Diehl (in September and on February 22), when asking for advice about what to do upon being faced with the black local's requests for the jobs, did Spiess mention his promise to rehire the laid-off white projectionists. He did not mention this prior promise when calling Local 293 Business Agent Autin for referrals (without specifying whom) on February 22, when talking to the NAACP on March 13, or when talking with Local 293A on March 28. Upon being asked at the remand hearing if he could not hire a Local 293A referral on March 28 because of his "commitment" to Local 293, he frankly answered, "I don't think it's a question of commitment made with 293, cause I was doing business with whom I had been told to deal with at that point." Thus, Spiess was not relying on his prior promise to rehire laid-off employ- ees when calling Local 293 for referrals and when rejecting Local 293A's requests for the jobs. He relied solely on the 331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision by the International to deal with the white local. I agree with the General Counsel that inasmuch as the Company did not rely on the "agreement" in staffing the Gentilly Woods theater in 1973, the Company "should not be permitted to rely on it now to escape financial liability for [its] denial of employment to black projectionists." Moreover, in this case, there were special circumstances which prevented the Company from lawfully denying employment to a black projectionist whom it desired to hire at the new theater, and honoring the prior commit- ment to the white local. As found by the Board (214 NLRB at 1075), because of the separate corporate existence of Gentilly Woods, because the Oakwood contract (the terms of which were applied to the new theater) was specifically limited to the Oakwood theater, and because the Gentilly Woods projectionists alone would constitute an appropriate unit, the new theater was not an accretion to the Oakwood and Lakeside theaters. (At the hearing, General Manager Spiess testified that "by order of counsel," the parent corporation, General Cinema, could not sign a master agreement covering all of the theaters because of the existence of separate corporations.) Thus, neither the Oakwood nor Lakeside contract could cover employment at the new theater, and there was no master agreement with an after- acquired clause. When General Manager Spiess made the oral promise to Local 293 Business Agent Autin in 1970, Spiess was not aware of the existence of the black local, or of Local 293's racial discrimination in the operation of its hiring hall. Although Spiess knew of the Company's plans "eventual- ly" to build a third theater in the New Orleans area, and there had been some conversations about building it at Gentilly Woods, he was not sure that the new theater would be located there. And, of course, he did not anticipate the great pressure which the black community would apply for the hiring of blacks at the Gentilly Woods theater, located near a black residential area. Thus the circumstances materially changed between December 1970, when General Manager Spiess made the oral rehire promise, and February and March 1973, when a new corporation had been formed to operate the new theater, when competing unions were seeking employment of their members in a new bargaining unit, when Spiess was aware of the white local's racial discrimination in making referrals, and when Spiess unlawfully gave premature recognition to the white local (upon advice of the International), precluding him from hiring the black projectionist he desired to employ. The Company argues that there was a "legally binding agreement" to hire the employees laid off from the Oakwood and Lakeside theaters in 1970. To the contrary, the General Counsel contends that whatever weight is given to the 1970 "agreement," the Company's honoring it under the circumstances would be "part and parcel" of the Company's rendering illegal assistance to Local 293 on the mistaken belief that the new theater constituted an accretion to the Oakwood and Lakeside units. After weighing all the arguments of the parties, I find that under the special circumstances of this case, it was unlawful for General Manager Spiess to follow through with his 1970 agreement to hire the laid-off Oakwood and Lakeside employees in the new bargaining unit-where they had no recall rights-to the exclusion of a black employee which Spiess desired to hire as a full-time projectionist at the new theater. Concluding Findings In accordance with the Board's remand Order and the court's judgment, I make the following determinations: (I) Local 293A Business Agent Frederick Dobard claims and is entitled to backpay. (2) The Respondent is not absolved from its liability for this backpay by its 1970 promise (upon which it did not rely) to award the jobs at the new theater (which is found to be a separate bargaining unit) to those projectionists who had been laid off at either the Lakeside or Oakwood theaters. 332