K B Theatres, 1411 (1976)

Fremar Corporation d/b/a K B Theatres and Moving Picture Machine Operators', Local 224, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Case 5-CA-7379

June 21, 1976 DECISION AND ORDER

BY CHAIRMAN MURPHY AND MEMBERS JENKINS

AND WALTHER

On January 23, 1976, Administrative Law Judge Charles W Schneider issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein As found by the Administrative Law Judge, Respondent and the Union reached full agreement on all the then outstanding collective-bargaining issues between them on April 16, 1975 Nevertheless, when that agreement was reduced to writing on April 25, 1975, Respondent, in accord with its preplanned bargaining strategy, refused to execute it unless the Union further agreed to relinquish its jurisdiction over the employment of projectionists at Respondent's Baronet West theater-an issue Respondent had never raised before Although the Administrative Law Judge found that the Respondent's above-noted actions were violative of Section 8(a)(1) and (5) of the Act, he included in the 'Conclusions' section of his decision the observation that he accepted Respondent's disclaimer of any intent, vis-a-vis its bargaining strategy, to 'lock in' the Union to agreement on all the previously bargained-for issues before raising the new issue pertaining to the Baronet West It appears that the Administrative Law Judge's acceptance of Respondent's disclaimer is based entirely on the fact that, subsequent to its refusal to execute the agreedupon contract, Respondent expressed a willingness to renegotiate all issues In agreement with the General Counsel's exceptions, we find that the Administrative Law Judge erred on this point Respondent's alleged willingness to renegotiate all issues was not communicated to the Union until at least 6 weeks after the April 25 meeting, at which union acquiescence in the Baronet West proposal was insisted upon as a quid pro quo for Respondent's execution of the contract previously agreed upon Respondent's subsequently expressed willingness to engage in a broad renegotiation was only voiced after it became clear that its unlawful bargaining ploy would not work In our view, the record evidence-including the testimony of Respondent's own witnesses-shows that, as of April 25, 1975, the intent of Respondent's bargaining strategy was, in fact, to 'lock in' the Union to agreement on all previously outstanding issues before revealing even the existence of the hidden proposal relating to the contract's coverage of employment at the Baronet West SUPPLEMENTAL REMEDY

In his exceptions, the General Counsel asserts that the Administrative Law Judge erred in failing to incorporate in his recommended remedy a provision directing the Respondent to make its employees whole for any loss of employment benefits they may have suffered by reason of Respondent's refusal to sign the agreed-upon collective-bargaining agreement which, by its terms, was to be effective as of April 16, 1975

We agree with the General Counsel's position on this matter and, in accord with the usual remedy which we provide in cases of this type,' we shall order Respondent to make its employees whole for any losses they may have suffered by reason of the unlawful refusal to sign the contract In connection therewith, backpay shall be computed with interest at the rate of 6 percent per annum in the manner prescribed by the Board in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Fremar Corporation d/b/a K B Theatres, Washington,

D C , its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified i Evergreen Convalescent Home Inc 209 NLRB 990 (1974) Colette Color Prints Inc 159 NLRB 1593 (1966) enfd 387 F 2d 298 (C A 2 1967) and Huttig Sash and Door Company 151 NLRB 470 (1965) enfd in pertinent part 362 F 2d 217 (C A 4 1966) 224 NLRB No 183

1. Insert the following paragraphs as 2(c) and (d) and reletter present paragraphs 2(c) and (d) accordingly:

   '(c) Make whole its employees for any losses suffered by reason of Respondent's unlawful refusal to sign the contract, in the manner set forth in the section of the Board's Decision and Order entitled 'Supplemental Remedy.' '(d) 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 necessary to analyze the amount of backpay due under the terms of this Order.' 2. 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 After a hearing the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice.

   WE WILL, if requested to do so by Moving Picture Machine Operators', Local 224, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, sign and execute forthwith a collective-bargaining contract with Local 224 incorporating the terms of the agreement reached between us on April 16, 1975.

   WE WILL make whole our employees for any loss of benefits they may have suffered by reason of our failure to sign the said agreement.

   WE WILL, upon request, bargain collectively with the Union as the exclusive representative of our employees in the following appropriate unit:

   All projectionists, excluding all other employees, guards, and supervisors as defined in the Act.

   WE WILL NOT refuse to bargain with the Union.

   WE WILL NOT refuse to sign or execute, in writing, collective-bargaining agreements reached with the Union.

   WE WILL NOT withhold our contract proposals during collective-bargaining negotiations with the Union for an unreasonable time, or without adequate cause.

   WE WILL establish, retroactively to April 16, 1975, the terms and conditions of employment and the benefits provided by the terms of our agreement with the Union of April 16, 1975.

   WE WILL NOT interfere with the efforts of the Union as collective-bargaining representative of employees to negotiate with us, or in any like or related manner interfere with the rights of employees under the National Labor Relations Act.

   FREMAR CORPORATION d/b/a K. B. THEATRES DECISION

   STATEMENT OF THE CASE

   CHARLES W. SCHNEIDER, Administrative Law Judge: On July 7, 1975, a charge, and on September 29, 1975, an amended charge, was filed by Moving Picture Machine Operators', Local 224, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, the Union, against Fremar Corporation d/b/a K. B. Theatres, the Respondent, alleging that the Respondent had committed unfair labor practices within the meaning of the National Labor Relations Act (29 U.S.C. 151). On October 14, 1975, the Acting Regional Director for Region 5 issued a complaint and notice of hearing alleging that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing to bargain collectively in good faith with the Union, in that the Respondent, after the parties had reached a final and binding agreement on the terms of a collective -bargaining agreement, demanded, as a condition of the Respondent's signing the agreement, that the Union waive jurisdiction over projectionists in a new theater, which waiver had not been a subject of the collective-bargaining negotiations. Under date of October 21, 1975, the Respondent duly filed its answer denying the commission of unfair labor practices.

   Pursuant to notice, a hearing was held before me in Washington, D.C., on November 25, 26, and 28, 1975. All parties appeared and were afforded full opportunity to participate, to introduce and to meet material evidence, and to engage in oral argument.

   During the course of the hearing, on November 28, 1975, over objection by the Respondent, the complaint was amended upon motion of the General Counsel to allege additionally that the Respondent refused to bargain in good faith by withholding its proposal concerning automation.

   Briefs were filed by the General Counsel on January 15, 1976, and by the Respondent on January 19, 1976.

   Upon the entire record in the case, the briefs, and from my observation of the witnesses, I make the following:

   FINDINGS OF FACT

1. JURISDICTION Respondent, a District of Columbia corporation, is engaged in the operation of movie theaters in the metropolitan area of Washington, D C During the preceding 12 months, a representative period, Respondent derived gross revenues in excess of $500,000 During the same period,

   Respondent purchased and received, in interstate commerce, materials and supplies valued in excess of $50,000 from points located outside the District of Columbia At all times material herein, Respondent is, and has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act II...