Harvard Square Thea-Tre

72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Theatre Holdings, Inc. d/b/a Harvard Square Thea- tre and United Electrical, Radio and Machine Workers of America, Local 262 (UE). Case 1- CA-24437 July 29, 1988 DECISION AND ORDER By MEMBERS JOHANSEN , BABSON, AND CRACRAFT On October 20, 1987, Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision and in opposition to the Gen- eral Counsel's exceptions.I The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. DECISION Statement of the Case THOMAS A. Ricci, Administrative Law Judge . A hear- ing in this proceeding was held at Boston , Massachusetts, on 7 and 8 July 1987, on a complaint issued aganist The- atre Holdings, Inc. d/b/a Harvard Square Theatre (the Respondent). The complaint issued on 7 May 1987 on a charge filed on 23 December 1986 by United Electrical, Radio and Machine Workers of America, Local 262 (the UE or the Charging Party). The sole issues to be decid- ed are whether the Respondent refused to hire two appli- cants for employment because of their membership in the Charging Party Union, and thereby violated Section 8(a)(3) of the statute . Briefs were filed by the General Counsel and the Respondent. On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in the operation of moving picture theatres. Annually in the course of its business operations the Respondent derives gross revenues in excess of $500,000. It also purchases and receives at its Boston facilities products , goods, and materials valued in excess of $5000 directly from points outside the Com- monwealth of Massachusetts. I find that the Respondent is an employer within the meaning of the Act. i The Respondent also filed a motion to disallow the General Coun- sel's brief in support of exceptions. In view of our dismissal of the com- plaint, we find it unnecessary to pass on the Respondent 's motion 2 The judge states that Applicant Joel Cohn indicated on his applica- tion that he wanted employment as a rill-in temporary employee In fact, the portion of Cohn's application that requested the hours he was avail- able was left blank by Cohn This misstatement by the judge does not alter our decision in this case . Additionally, although the judge failed to specifically analyze the alleged violation of Sec 8 (a)(2) of the Act, our review of the documents and record disclose insufficient facts to support finding an 8(a)(2) violation. In this regard, we note that the General Counsel contended that the Respondent recognized IATSE Local 182 at a time when Local 182 did not represent an uncoerced majority of employees . This contention was premised on the General Counsel 's argument that Local 182's majority showing was tainted by the Respondent 's alleged unlawful hiring prac- tices. Because we find no violation of Sec 8(a)(3) in the Respondent's hiring practices and because Local 182 presented evidence that it repre- sented a majority of the employees in the unit , it was not unlawful for the Respondent to recognize and thereafter enter into a collective-bar- gaining agreement with Local 182 The General Counsel also argues that the Respondent's extension of recognition was made before Local I82 had obtained cards from a majority of the employees However, the record reflects that recognition was granted on November 16 after at least four of the seven employees in the unit had signed authorization cards. Thus, the General Counsel has failed to present evidence indica- tive of unlawful employer assistance. Gary Cooper, Esq., for the General Counsel. Jerome H. Somers and Susan C Nicklaus, Esgs. (Goodwin, Procter & Hoar), of Boston, Massachussetts, for the Re- spondent. Harry Authelet, of Boston, Massachussetts, for the Charg- ing Party. II. THE LABOR ORGANIZATION INVOLVED I find that United Electrical, Radio and Machine Workers of America, Local 262, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent, which operates under the trade name U.S.A. Theatres, owns a large number of moving picture houses, about 100, in a number of New England States. Its employees are classified as ticket sellers, ushers, pro- jectionists, assistant managers, etc. In some of its theatres there is no union representing its employees . In some of them there is, with International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors of the United States and Canada (IATSE), repre- senting the projectionists. In one of its theatres the Charging Party represents the projectionists. During November 1986 the Respondent purchased a moving picture house in Cambridge , Massachusetts, called the Harvard Square Theatre, from a company called Harvard Square. The deal was completed on 14 November and the Respondent took over and started op- erating the theatre with its own employees that day. The selling company had used the usual categories of em- ployees, including projectionists . In the summer of 1986 its projectionists joined the UE and filed a petition for an election with the National Labor Relations Board on July 11. An election was held on 22 September, with seven projectionists on the eligibility list. All seven of 290 NLRB No. 12 HARVARD SQUARE THEATRE them voted in favor of the UE. By 13 November, the last day it operated the theatre, the seller discharged every one of its employees In anticipation of its starting takeover, the Respondent publicized its need for new employees It placed ads in the local newspaper and posted notices inviting applica- tions in the theatre itself. In response it received 16 writ- ten applications for the positions of projectionists By 14 November it hired seven of these applicants. Four of them signed cards in favor of IATSE and, after the usual meetings with that Union, the Respondent entered into a regular collective-bargaining agreement later in Novem- ber. One of the nine applicants for the jobs of projectionists that Respondent did not hire was Jessica Schroeder, a young lady who had worked for some time for the pred- ecessor company as a cashier and usher. Another was Joel Cohn, who had not worked for the predecessor for several years, and who, at the time of his application in November 1986 was working as a full-time head projec- tionist at a theatre totally unrelated to these parties. His application asked for employment with the Respondent as a fill-in temporary employee. The complaint alleges that the reason the Respondent did not hire Schroeder or Cohn was because they were members of the UE and that, therefore, the refusal to select them among the many was a violation of Section 8(a)(3) of the Act. The record in its entirety falls far short of proving a prima facie case in support of that allegation. Rather, it shows beyond a shadow of doubt that the Respondent had the most objective reason possible for selecting the projec- tionists it did hire while ignoring these two and a number of other applicants. I shall therefore dismiss the complaint. Wright Line, 251 NLRB 1083 (1980). The selection among the 16 applicants was made by Charles Goldwater, a vice president of the Respondent, and by Daniel Greismer, vice president and general man- ager of the Company's New England theatres. They very clearly denied the allegation that union affiliation of any of the applicants had anything to do with their deci- sion who to hire Rather, both said they choose on the basis of the applicant's experience as a projectionist and availability. The record, consisting of unrequestioned documentary proof, supports the assertion beyond ques- tion. In looking over the various applicants for projection- ists, the company representatives checked the work expe- rience listed by the applicants. They spoke to their man- agers in their other theatres where some of the men had worked. They spoke to Hal Wagner, an officer of IATSE, for his opinion about qualifications and experi- ence of some of the applicants. With some of the appli- cants having been employed by the selling company, Goldwater and Greisner also consulted with Graham, the manager of the theatre before the takeover, and with Mariello, the owner of the selling company, to learn their opinion about the relative qualifications of the em- ployees in the past. The principal point argued in support of the complaint is that the new owners asked Wagner's opinion about which applicants would be better projec- tionists. I see nothing wrong in Goldwater or Greismer seeking that man's expert opinion in the circumstances of 73 this case. Wagner had been doing business with the Re- spondent for a long time in many of its other theatres. He certainly was in a position to give a reliable opinion. There is nothing in any of the Respondent's contracts, which IATSE had at its other theatres, that conditions hiring on referral by that Union Indeed, the Respondent relied as much on Mariello's recommendation as it did on Wagner's. A most significant aspect of this case is that there is no evidence at all indicating animosity against the UE by the Respondent's representatives There is not even a single allegation, in the classic sense, of any violation of Section 8(a)(1) of the Act. The Respondent hired a number of projectionists, all of long experience, who had worked for the predecessor, known adherents of the UE. It also hired projectionists, again, with long experience, who were well spoken of by the IATSE agent. Does it follow from this last fact alone that the Respondent vio- lated the statute, and that IATSE also committed an unfair labor practice?' The Supreme Court long ago dis- agreed with a Board holding that direct referral by a union of a man for hiring, absent affirmative evidence of intent to favor prounion men against nonunion people, constituted an unfair practice. Teamsters Local 357, 365 U.S. 667 (1961). If outright referral, absent proof of ille- gal motivation, is not an unfair labor practice, surely mere recommendation about a man's relative skill can hardly prove a violation of the statute. The notices inviting applications were posted inside the theatre before the takeover. If the new company was determined to establish IASTE as the bargaining agent in the place of the UE, why would it have solicited appli- cations form the old employees? In the election that had taken place on 22 September all seven of the eligible pro- jectionists had voted in favor of the UE. The new owners knew that. With no evidence to support the as- sertion the General Counsel suggests that the Respond- ent deliberately posted a notice inside the theatre to create a false impression that it was indifferent to union or nonunion membership by the applicants. It is an argu- ment that has no foundation in fact. But more important is that despite its knowledge that all the old projectionists had favored the Union in the Board election, the Respondent hired three of them- William Templemen, Bill Litchman, and Jim Hill Before deciding on anyone the Respondent's agents asked Mar- iello for a list of its projectionists, with his opinion re- garding their relative skills and experience. Mariello did that, with a comment, in his own handwriting, on their comparative skills. He wrote the word "excellent" next to only three of the names, the very three that the Re- spondent then hired. About another he wrote "Do not recommend" and another he wrote "Fair." Two others-Hatfield and Kelly-he labeled as "Very Good." But those two did not apply for the new jobs. What better proof than this that the Respondent, as its agents insisted at the hearing, was concerned above all with skills and experience? ' The complaint , as issued , also contained allegations of wrongdoing by IASTE All those allegations were removed from the complaint by the General Counsel at the start of the hearing 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent hired four others besides the three listed above. All four of these had written in their appli- cation that they were members of IASTE. Two of them had 2 years. The selection of these last four projection- ists fits squarely into the Respondent 's position that all it sought was experienced people. Cohn was an experienced man, but all he wanted here was a part-time job, offering to "fill-in," as he said, when needed . More important, there is no evidence at all that the Respondent's agents knew of his UE activities in the past. There was no mention of it in his written applica- tion. The only thing in this entire record that the Gener- al Counsel now says proves the Company's knowledge of this man's prounion interests is a conversation Cohn had with Greisner on the telephone a week after the full complement had been hired . Cohn called to ask if there was still any hope of his obtaining extra work. In the talking, Cohn, as he testified, said "I want you to know that I understand that there 's a question of who will rep- resent the projectionists at the theatre , and that I was willing to work no matter who represented or even if they were not represented." Greisner's response to this was, "I'm glad you told me that." Does this conversation prove that, a week earlier, when Cohn was passed over, the Respondent knew of his U13 penchant ? Does it prove anti-UE machinations by the Respondent? Not at all. We come to Schroeder, who, at that time, was work- ing as a cashier and usher for the predecessor company and who applied with the Respondent for a job as pro- jectionist. This whole case really centers on the fact that in making their selection the new managers simply ig- nored her application . Schroeder aspired to become a projectionist. During the summer of 1986 she trained at that work and on 25 August passed a test and became a licensed projectionist . She testified that from September to October 1986 she continued to work for the former company as a cashier and usher. Regarding actual work it did not change thereafter. From the transcript: Q. (By the General Counsel ). After you received your training as a projectionist , was there any change in the nature of your job at the theatre? A. Not really, not-basically . I continue to usher. I tried to-Bill Templeman and I tried to get shifts for me that were open . There were shifts that needed to be taken up at the time . That people were working just sort to gei us through , until I was ready to work them . So at that time we were trying to make it possible for me to work projecting, and management had some kind of problem with that. Schroder also testified that during the last month or so before the takeover she was a part-timer , working only about 20 hours per week. She said that part of that limit- ed time she was actually used as a projectionist . This, ap- parently, based on her own testimony , is the limit of her experience as a projectionist. She also said that for such limited projectionist work she was paid at the rate of $6.25 per hour instead of her regular pay of $3.35 per hour as an usher. The payslips that were offered into evi- dence for her last 2 weeks-from I to 13 November- show a pay rate of $6.25 per hour, but they do not clear- ly prove her assertion. In explaining the slips she also said that the figure $6.25 could reflect certain overtime work performed during that period. Thus it appears, taking the lady's testimony at its best, that her total expe- rience as a projectionist amounted to no more than 10 or 20 hours at the most. No one on behalf of the Respondent ever spoke to Schroeder about her application. All she said, in support of the complaint, is that one day she telephoned Greismer, of the Respondent, and asked why she had not been hired. The owner said, as she testified, "that they were looking for more experienced projectionists." It thus appears that, entirely apart from the total absence of direct evidence of illegal motivation in the Respondent's failure to select Schroeder, there was the most convinc- ing proof of a rational and purely objective basis for not hiring her. For the Company to have selected an appli- cant with virtually no experience at all, and ignoring the many others with years of experience, would have been absolutely silly. In conclusion, the record in its entirety shows without doubt that the General Counsel was aware of this total lack of evidence to show personal dislike of Schroeder as an employee. Harvard Square Company, the seller, dis- charged all of its employees shortly after all seven of its projectionists voted in favor of the UE. There is no alle- gation that its action constituted an unfair labor practice. It is also conceded that the purchaser had a right to hire any employee of its choice to work in the theatre. Re- stated: The Respondent was not an alter ego of the earli- er company. It did not hire a majority of the seller's em- ployees in the unit in which the UE had won a majority in the Board election. It therefore was not a successor, in terms of Board law. In the face of this reality, the com- plaint nevertheless alleges that the Respondent was legal- ly obligated to bargain with the UE regarding its newly hired employees. It also alleges precisely that later, when it contracted with IATSE and altered some of the condi- tions of employment in the theatre, the Respondent vio- lated Section 8(a)(5) of the Act because it bypassed the UE. This is the same as saying: This Respondent did not hire a majority of its predecessor's employees, but treat- ed as though it in fact had done so. It would demean this decision to burden it with a serious response to such an argument. What the General Counsel is really asserting is that the Respondent knew that had it hired four instead of three of the predecessor projectionists, it would have found itself in the position of a successor, according to Board law, and therefore, obligated to bargain with the UE. From this it follows, according to the General Counsel, that the reason the Respondent did not hire Schroeder was to avoid exactly such legal consequence. It is a kind of reasoning that does not merit comment. HARVARD SQUARE THEATRE 75 , On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER It is recommended that the complaint be dismissed in its entirety. 21f no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses