The Playhouse Square Foundation And International Alliance Of Theatrical Stage Employees And Moving Picture Machine Operators Of The United States And Canada Local 756, Afl-Cio

PLAYHOUSE SQUARE FOUNDATION 995 The Playhouse Square Foundation and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 756, AFL- CIO Case 8-CA-19984 November 30 1988 DECISION AND ORDER BY MEMBERS JOHANSEN CRACRAFT AND HIGGINS On May 15 1987 the General Counsel of the National Labor Relations Board issued a complaint alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Unions request to bargain follow ing the Unions certification in Case 8-RC-13197 (Official notice is taken of the record in the rep resentation proceeding as defined in the Board s Rules and Regulations Secs 102 68 and 102 69(g) Frontier Hotel 265 NLRB 343 (1982)) On June 1 1987 the Respondent filed its answer admitting in part and denying in part the allegations in the com plaint On September 12 1988 the Respondent filed a Motion for Summary Judgment On September 14 1988 the General Counsel filed a Cross Motion for Summary Judgment On September 16 1988 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motions should not be granted The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Ruling on Motions for Summary Judgment In its answer the Respondent does not deny its refusal to bargain but denies it engaged in any ac tivity in violation of the Act and attacks the validi ty of the certification on the basis of the Board s unit determination and its objections to the election in the representation proceeding It is well settled that in the absence of newly discovered and previ ously unavailable evidence or special circum stances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti gate issues that were or could have been litigated in a prior representation proceeding See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941) Sections 102 67(f) and 102 69(c) of the Board s Rules and Regulations All issues raised by the Respondent were or could have been litigated in the prior representa tion proceeding i The Respondent does not offer I While in its answer the Respondent now denies the appropriateness of the unit it entered into a stipulated election agreement in the represen to adduce at a hearing any newly discovered and previously unavailable evidence nor does it allege any special circumstances that would require the Board to reexamine the decision made in the repre sentation proceeding 2 Indeed the Respondent concedes there are no genuine issues of material fact in arguing that summary judgment should be entered in its favor on the basis of the previously litigated alleged objectionable conduct We there fore find that the Respondent has not raised any issue that is properly litigable in this unfair labor practice proceeding Accordingly we deny the Re spondent s Motion for Summary Judgment and grant the General Counsels Cross Motion for Sum mary Judgment On the entire record the Board makes the fol lowing FINDINGS OF FACT I JURISDICTION The Respondent an Ohio corporation operates and manages the Ohio Theater the State Theater and the Palace Theater in Cleveland Ohio where it annually derives gross revenues in excess of $500 000 and annually receives goods valued in excess of $50 000 at its Ohio location directly from points outside the State of Ohio We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held April 26 1985 the Union was certified on September 24 1986 as the collective bargaining representative of the employ ees in the following appropriate unit All box office assistants and subscription group sales employees employed by the Employer at 1519 Euclid Avenue Cleveland Ohio exclud ing systems operators office clerical employ ees and professional employees guards and su pervisors as defined in the Act including as sistant treasurers tation proceeding in which it stipulated to the appropriateness of the unit Any questions concerning the unit should have been raised in the earlier proceeding 2 Although the Respondent argues tnat under our recently issued deci Sion in Davlan Engineering 283 NLRB 803 (1987) the Union interfered with the election by promising reduced initiation fees to employees sup porting the Union prior to the election we find Davlan factually mappo site as neither the hearing officer nor the Board in the underlying repre sentation proceeding predicated findings on an absence of union agency status 291 NLRB No 142 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Union continues to be the exclusive represent ative under Section 9(a) of the Act B Refusal to Bargain Since January 5 1987 the Union has requested the Respondent to bargain and since February 3 1987 the Respondent has refused We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after February 3 1987 to bargain with the Union as the exclusive collective bargaining representative of employees in the ap propriate unit the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act we shall order it to cease and desist to bargain on request with the Union and if an understanding is reached to embody the understanding in a signed agreement To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law we shall construe the ini tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union Mar Jac Poultry Co 136 NLRB 785 (1962) Lamar Hotel, 140 NLRB 226 229 (1962) enfd 328 F 2d 600 (5th Cir 1964) cert denied 379 U S 817 (1964) Burnett Construction Co 149 NLRB 1419 1421 (1964) enfd 350 F 2d 57 (10th Cir 1965) We deny the General Counsel s request for a visitatorial provision as unnecessary here ORDER The National Labor Relations Board orders that the Respondent The Playhouse Square Founda tion Cleveland Ohio its officers agents succes sors and assigns shall 1 Cease and desist from (a) Refusing to bargain with International Alli ance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 756 AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit (b) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) On request bargain with the Union as the ex clusive representative of the employees in the fol lowing appropriate unit on terms and conditions of employment and if an understanding is reached embody the understanding in a signed agreement All box office assistants and subscription group sales employees employed by the Employer at 1519 Euclid Avenue Cleveland Ohio exclud ing systems operators office clerical employ ees and professional employees guards and su pervisors as defined in the Act including as sistant treasurers (b) Post at its facility in Cleveland Ohio copies of the attached notice marked Appendix 3 Copies of the notice on forms provided by the Re gional Director for Region 8 after being signed by the Respondents authorized representative shall be posted immediately upon receipt and maintained for 60 consecutive days in conspicuous places in cluding all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other mate rial (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 3 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Internation al Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 756 AFL-CIO as the ex clusive representative of the employees in the bar gaining unit WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act PLAYHOUSE SQUARE FOUNDATION 997 WE WILL on request bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit All box office assistants and subscription group sales employees employed by the Employer at 1519 Euclid Avenue Cleveland Ohio exclud ing systems operators office clerical employ ees and professional employees guards and su pervisors as defined in the Act including as sistant treasurers THE PLAYHOUSE SQUARE FOUNDA TION r