Wallace Theaters

National Labor Relations Board - Board Decisions

Feb 27, 2001

333 N.L.R.B. 410 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
Lois Development Corporation d/b/a Wallace Thea-
ters and Hotel Employees and Restaurant Em-
ployees, Local 5, AFL–CIO. Cases 37–CA–4579,
37–CA–4665, and 37–CA–4696
February 27, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On July 29, 1999, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel and the Charging Party Union each filed excep-
tions and a supporting brief, and the Respondent filed an
answering brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Randy M. Girer, Esq. and Peter S. Ohr, Esq., for the General
Counsel.
Ronald Y. K. Leong, Esq. and Lester M. H. Goo, Esq. (Wa-
tanaabe, Ing & Kawashima), of Honolulu, Hawaii, for the
Respondent.
Amy Martin, Esq. and Ashley Ikeda, Esq. (Van Bourg,
Weinberg, Roger & Rosenfeld), of Oakland, California, for
the Union.

1 The Charging Party Union has excepted and the General Counsel
has effectively excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
The judge found that the Union engaged in informational picketing
at the Respondent’s movie theaters between February 2 and June 12,
1996, whereas the General Counsel has asserted on exceptions that the
Union’s picketing occurred only during March and April 1996. We
find it unnecessary to resolve this factual discrepancy as the exact dates
of the Union’s picketing are immaterial to our ultimate conclusion here.
In adopting the judge’s finding that the Respondent did not engage
in bad-faith bargaining here, we find it unnecessary to pass on his con-
clusion that the parties “clearly [had] reached an impasse” when bar-
gaining ended on January 28, 1997. We also do not adopt or rely on
the judge’s opinion that the contract proposed by the Respondent would
clearly have been a contract that “stinks.”
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pur-
suant to notice a hearing in this matter was held before me in
Honolulu, Hawaii on April 15, 16, 19, and 20, 1999.1 The
charge in Case 37–CA–4579 was filed on November 5, 1996,
by Hotel Employees and Restaurant Employees Local 5, AFL–
CIO (the Union). The charge in Case 37–CA–4665 was filed
by the Union on March 13, 1997. The charge in Case 37–CA–
4696 was filed by the Union on April 9, 1997. Thereafter, ap-
parently on April 25, 1997,2 the Regional Director for Re-
gion 20 of the National Labor Relations Board (the Board)
issued an order consolidating cases, consolidated complaint and
notice of hearing alleging violations by Wallace Theater Corpo-
ration, named correctly herein as Lois Development Corpora-
tion d/b/a Wallace Theaters (the Respondent) of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). The
Respondent, in its answer to the complaint, duly filed, denies
that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel) and counsel for the Respondent. On the entire
record, and based n my observation of the witnesses and con-
sideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Hawaii corporation with an office and
place of business located in Honolulu, Hawaii, from which it is
engaged in the business of operating motion picture theaters. In
the course and conduct of its business operations the Respon-
dent annually derives gross revenues in excess of $500,000 and
annually purchases and receives at its Honolulu, Hawaii loca-
tion products, goods, and materials valued in excess of $5000
which originated from points outside the State of Hawaii. It is
admitted and I find that the Respondent is engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent has violated Section 8(a)(1) and (5) of the Act by
failing to comply with the provisions of Section 8(d) of the Act,
namely “to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of
The correct name of the Respondent appears as amended at the hear-
ing.
2 The complaint appears to be inadvertently dated March 25, 1997.
333 NLRB No. 58
WALLACE THEATERS 411
employment, or the negotiation of an agreement or any ques-
tion arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to agree
to a proposal or require the making of a concession.”
B. The Facts
On November 13, 1995, following a representation election,
the Union was certified by the Board as the collective-
bargaining representative of “All employees including all floor
staff (ushers, usher/booth employees, box cashiers, and conces-
sion employees)” at its multiplex theater location in Honolulu,
Hawaii. Approximately 60 employees are included in this unit.
Bargaining negotiations commenced on January 5, 1996, and
continued for over a year; the last bargaining session was held
on January 28, 1997. Then, on March 11, 1997, following the
filing on that date of a decertification petition in Case 37–RM–
306, the Respondent wrote to the Union advising that “the
Company believes that the Union does not currently have the
majority support of the bargaining unit employees” and that
further bargaining was therefore not appropriate. Concurrently,
the Respondent filed a related petition in Case 37–RD–160. On
March 31, 1999, the Board determined that these petitions,
which were dismissed by the Regional Director, are subject to
reinstatement, if appropriate, pending final disposition of the
instant unfair labor practice proceeding.
During the course of bargaining the Union was represented
by five different business agents or representatives. The Re-
spondent was represented solely by its general manager, Brett
Havlik. At the first negotiating session Havlik advised the
union representatives of his total unfamiliarity with collective-
bargaining negotiations, as this was the first of the Respon-
dent’s some 27 theaters, located on various islands in Hawaii,
and also on the mainland, in California, Nevada, and Missouri,
to become represented by a union. He also advised the Union
that his responsibilities as general manager were substantial and
expanding due to the Respondent’s business plan of acquiring
and building additional theaters both in Hawaii and on the
mainland, and that his business-related travel schedule was
necessarily extensive.3 As a result of these considerations he
requested that the Union accommodate his schedule and sug-
gested that the bargaining sessions be limited to 2 hours’ dura-
tion.
The union representatives apparently had no problem with
this at the outset of negotiations and the procedure for schedul-
ing subsequent meetings became standard practice: Havilk
would advise the Union of his availability for future meetings
and offer the Union certain dates, and the union representatives
would accept or reject the dates according to their availability.
Havlik testified that the Respondent’s corporate managerial
hierarchy consisted of a three-man operation consisting of Wal-

3 The Respondent runs a very lean organization, and Havlik’s duties
include the negotiation of construction contracts and related contracts
for new theaters, the booking of films for each theater, and personnel
matters that are not resolved by the individual theater managers. In
addition, Havlik does not have a secretary and types his own corre-
spondence, including bargaining proposals and related bargaining let-
ters and documents.
lace, the president, who had very limited experience in the daily
operation of theaters but who concentrated on acquiring addi-
tional theaters, a comptroller who handled financial matters,
and Havlik, who essentially handled everything else. Havlik
believed that his position as general manager and his expertise
with the theater business, coupled with his knowledge of the
Respondent’s business philosophy and the fact that he would
eventually have to work with the Union in the administration of
any contract reached, made him uniquely qualified to negotiate
the contract. For these reasons, coupled with cost considera-
tions, Havlik decided that he, rather than an outside representa-
tive or attorney, would conduct the negotiations for the Re-
spondent.
Havlik testified that he approached bargaining very cau-
tiously, and specifically advised the union representatives of his
inexperience in union matters. He questioned unfamiliar termi-
nology and concepts until he believed that he understood the
ideas and proposals being presented to him. He spent consider-
able time preparing for each meeting, and conferred with his
attorney several times prior to and usually once after each
meeting, and advised the Union that this was his practice.
The Union had recently completed the negotiation of a con-
tract with another theater chain, Consolidated Amusement
Company (Consolidated), a large multistate operation and
competitor of the Respondent that enjoyed approximately a 90-
percent share of the theater business in Hawaii. The Respon-
dent’s operations were much smaller. Prior to the first negotiat-
ing session the Union forwarded a complete contract proposal
to Havlik, which was virtually a carbon copy of the Consoli-
dated contract.
The first and second negotiating sessions were held on Janu-
ary 5 and 11, 1996. During these initial meetings the parties
discussed, line-by-line, the Union’s aforementioned written
proposals which, as noted, were tailored to the business opera-
tions of Consolidated. Havlik verbally responded to each of the
Union’s proposals, and during these discussions Havlik imme-
diately rejected most of the proposals as being incompatible
with the Respondent’s overall business philosophy and daily
operations. Havlik testified that it became quite apparent that
the Union’s fixation with the Consolidated contract would not
facilitate bargaining, as the only real similarity was that both
Consolidated and the Respondent operated theaters.
Accordingly, Havlik endeavored to educate the union repre-
sentatives by explaining that while Consolidated, a well-
established, profitable, and much larger entity, employed
mainly full-time employees and provided them with certain
benefits, the Respondent found it most profitable to employ
only part-time employees, mainly high school and college stu-
dents, providing them flexible hours, paying them minimum
wage, and offering them no benefits except perhaps free movie
passes, with the knowledge that such employees would come
and go and that the Respondent’s rate of employee turnover
would be substantial. Accordingly, Havlik viewed such con-
cepts as job classifications, seniority, vacations, and a progres-
sive wage scale based on longevity, all matters of importance to
the Union, as being fundamentally inapplicable to the inter-
changeable jobs, minimum wages, and high turnover rate
among the Respondent’s employees. Further, because the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
spondent was a relatively new entity and was continually seek-
ing to expand its operations and acquire or build additional
theaters, the greatest profitability or the “bottom line” was of
the essence in order to increase operating capital. Accordingly,
the Respondent was interested in a contract with the Union that
would not only not lessen its profitability, but would even per-
haps enhance it if possible.
At the outset of the next negotiating session on February 2,
1996, the Union endeavored to cause Havik to reexamine the
Respondent’s approach to collective bargaining. This was the
first and only meeting attended by Anthony Rutledge Sr., the
Union’s financial secretary-treasurer. The meeting, scheduled
for 2 hours, instead lasted 9 minutes. Rutledge asked if the
Respondent’s position had changed. Havlik said no. Rutledge,
becoming angry and animated, stated that the Respondent’s
position “sucks” and, according to Havlik, “that Local 5 was
breaking off negotiations, [and] had no further wish to negoti-
ate.” Havlik stated that he thought he was there to hear the
Union’s responses to his counterproposals that he had offered at
the prior meeting. Rutledge began comparing the Respondent
with Consolidated, and Havlik reiterated that they were two
distinct entities with two distinct business philosophies.
Rutledge, according to Havlik, “called us carpetbaggers, [and]
stated that Local 5 had a million dollars in the bank to keep us
from building, and that it was his intention to drive us out of the
State of Hawaii.” Rutledge also stated that the Union intended
to picket the Respondent’s theaters. Then Rutledge abruptly
stated that the meeting was over and that the next meeting was
“on call.” Havlik replied that he was available for further nego-
tiations. Then he was escorted out of the Union’s building.
Immediately thereafter the Union commenced to engage in
informational picketing, apparently at only the one theater
complex covered by the instant certification. There was no
communication between the parties for over 2 months. Then,
on April 9, 1996, the Union wrote to the Respondent protesting
alleged interim unilateral changes, and demanded that the Re-
spondent bargain with the Union over such changes. On April
12, 1996, Havlik replied and stated that he would be happy to
meet and discuss any concerns with the Union, and requested
that the Union phone him and set up a mutually agreeable meet-
ing date. Again, by letter dated May 2, 1996, Havlik requested
a meeting and forwarded certain information to the Union re-
garding the interim changes. By letter dated May 3, 1996, the
Union requested certain updated information from the Respon-
dent relative to contract negotiations “because a considerable
amount of time has past since our last negotiating session.”
And in another letter, also apparently inadvertently dated May
3, 1996, but hand delivered to the Respondent on May 15,
1996, the Union stated, “At our last negotiating session, you
were to get back to the Union with your proposals for a collec-
tive-bargaining agreement. You have not presented any pro-
posals to date.” The letter goes on to request “a list of all dates
that you will be available for negotiations in May and June.”
Havlik immediately responded the same day. Thus, by letter
dated May 15, 1996, Havlik summarized what had transpired
between the parties during the first three meetings, stating that,
“During [the first two] meetings I provided the Union with my
counter proposals for each issue in which we were in disagree-
ment. To each of our counter proposals the Union representa-
tive stated that he would “take it under advisement . . . . As of
today’s date we are still waiting for the Union to respond to our
counter proposals. If you would like our previously discussed
counter proposals in writing I will be happy to comply just let
me know.”4 Havlik then goes on to state:

Regarding my availability for negotiation meetings for the
months of May, and June I have listed below the dates I
should be available. In order to schedule a meeting on any of
these days it will be necessary for you to contact my office in
advance for an appointment. Please keep in mind that these
dates are tentative and subject to change based upon my ongo-
ing responsibilities as General Manager of the Wallace Thea-
ter Corporation.

May: 16, 22, 29, 30 & 31; June 11, 12, 13, 14, 18, 19, 20,
21, 26, & 27

Once again I would like to state that I am willing to meet and
discuss our reasonable counter proposals and hopefully reach
a mutual [sic] agreeable position on any of the before men-
tioned dates. Please feel free to contact me if you have any
further questions or comments on this matter.

On May 16, 1996, apparently during the course of a brief
meeting that was not regarded as a negotiating session, Havlik
presented the Union with bargaining materials it had requested
on May 3, 1996. Thereafter, on May 29, 1996, Havlik faxed
the Union “a summary of my handwritten notes of the Com-
pany’s initial responses to the union’s initial collective bargain-
ing proposals.”
The Respondent’s written summary begins as follows:

Per my correspondence of May 16, 1996 enclosed please find
a written outline of the Wallace Theatre Corporation’s (The
Company) counter-proposals, which were previously submit-
ted to the union verbally during our negotiation meetings sev-
eral months ago.

It appears unnecessary to review these proposals in any great
detail. The four and one-half page single spaced typewritten
summary clearly and succinctly sets forth the Respondent’s
position, sometimes accompanied by the Respondent’s ration-
ale underlying such proposals, on each and every significant
contract item except one.5 For example, regarding Item 1.4 of
the Union’s proposal, Havlik counters with: “The Company
proposes a 90 day probationary period. The Company proposes
that Union membership not be mandatory as a condition of

4 Havlik favorably impressed me as a very candid and straightfor-
ward individual with a clear recollection of the events in question. To
the extent that the testimony of the various union representatives or the
representations made in correspondence from the Union to Havlik
differs materially from Havlik’s testimony or the representations made
in Havlik’s responses to the Union, I have no hesitation in crediting the
testimony and representations of Havlik.
5 The exception is the item regarding the Union’s grievance pro-
posal. In response to this, Havlik states: “The Company does not agree
with the grievance procedure outlined by the union and requests addi-
tional time to formulate their own plan, which shall include a provision
governing arbitration procedures.”
WALLACE THEATERS 413
employment.” And in response to Item 3.1 of the Union’s con-
tract proposal, Havlik proposes:

The Company proposes that the union be responsible for col-
lecting any dues, assessments, or any other monies owed them
by their membership. Due to the fact that less than half of the
bargaining unit voted in favor of union representation the
Company does not want to act as the Union’s “collection
agency” for dues and assessments which employees may not
wish to pay. The Company feels that our involvement in the
collection of these monies could hurt our employee relations
since the Union was not supported by a clear majority.6

It was not until June 5, 1996, that the Union replied to Hav-
lik’s aforementioned May 15, 1996 list of proposed bargaining
dates. The record is unclear concerning the failure of the Union
to timely respond: According to Union Representative Sean
Muntz, the Union was awaiting certain requested information
and written proposals from Havlik before it scheduled further
bargaining. However, Muntz also testified that, “if you took all
of those dates [proposed by Havlik] then you’d obviously be
clogging up someone’s schedule. But you take the ones that
are most convenient for you at that time.” And Muntz testified
that he “didn’t want to get off on the wrong foot . . . with any-
body by saying you offered all these dates, we’re taking them
all.”
By the time the Union did respond, of course, all of the pro-
posed dates in May had passed. And while the Union accepted
the dates of June 12, 13, 14, 26, and 27, Havlik had made cer-
tain other commitments for several of those dates during the
interim, as he had previously cautioned the Union that such
proposed dates were subject to change. Thus, of the 15 bargain-
ing dates proposed by Havlik for the months of May and June,
1996, the Union selected only five dates in June and, due to the
Union’s belated response, Havlik was available for only three
of those dates.
The next negotiating session was held on June 12, 1996,
more than 4 months after the preceding February 2, 1996 ses-
sion. Thereafter, 17 additional sessions were held: June 26 and
27, August 1, 2, and 28, September 5, October 11, 18, 22, 24,
and 25, November 5 and 21, and December 19, 1996, and Janu-
ary 9, 17, and 28, 1997. During this period of some 7 months
the same procedure of scheduling meetings was generally fol-
lowed: Havlik would furnish the Union with the dates he was
available, and the Union would accept or reject them. On at
least several occasions the Union rejected dates proposed by
Havlik, and on occasion, for business-related reasons or illness
(infra) Havlik would have to cancel dates previously offered
the Union. The bargaining sessions lasted from 2 to 3 hours,
primarily as an accommodation to Havlik, and during the latter
months of bargaining the Union requested that Havlik meet
more frequently and for longer periods of time. While both
parties agreed that significant progress was being made within
the bargaining format under which the parties were operating,

6 The tally of ballots served upon the parties at the conclusion of the
election shows that of approximately 56 eligible voters, 22 cast ballots
for and 8 cast ballots against the Union, and there were 5 challenged
ballots.
the Union was allegedly of a mind that more and longer negoti-
ating sessions would be even more productive. Havlik, on the
other hand, did not believe that more frequent or prolonged
meetings would expedite the bargaining process, but rather
believed that shorter meetings where the parties understood that
time was valuable, were, in fact, more productive for that very
reason; and further, he was able to utilized the time between
meetings to prepare for the next meeting and confer with his
attorney as he continued to do before and after each meeting.
In fact, Havlik frequently requested that the union representa-
tives forward to him in advance the proposals and materials
they wanted to discuss, so that he would be prepared for such
discussions and thus the bargaining time could be utilized more
efficiently.
On one occasion, at the persistence of the Union, Havlik
agreed to a 4-hour meeting, and, as Havlik testified, after only 3
hours the parties seemed to have nothing more to say to each
other and the meeting ended. On another occasion the Union
sent a business representative, Diaz, to conduct negotiations
because of the unavailability of the Union’s regular chief nego-
tiator at that stage of the negotiations.7 Diaz admitted to Havlik
that he was simply filling in for that one session, and that he
was unprepared to bargain and was unfamiliar with the course
of bargaining. As a result, this particular meeting lasted only a
short time and no progress was made.
I do not credit the testimony of several union representatives
who testified that Havlik made it a consistent practice of look-
ing at his watch and after 2 hours would abruptly end the ses-
sion, or that Havlik’s pager would beep after 2 hours and
Havilk would announce that he would have to leave. Rather, I
credit Havlik who testified that he does not wear a watch, that a
scheduled 2- or 3-hour session would end at an appropriate
juncture either before or after the allotted time depending upon
whether discussion of a particular item had been completed,
and that his pager went off only one time throughout the course
of negotiations.
Union Representative Sean Muntz, who had not attended any
of the initial negotiating sessions, became the chief spokesper-
son for the Union beginning June 12, 1996, the date the parties
resumed negotiations after the 4-month hiatus. Muntz testified
that he had received the Respondent’s written proposals prior to
the meeting and they were discussed. Muntz apparently ob-
jected to the format of Havlik’s written “proposals” and charac-
terized them as merely “notes” with “interpretive comments”
rather than proposed contract language which could be used as
a basis for bargaining. Muntz requested that Havlik remove
such “interpretative comments” from seven of the Respondent’s
proposals, and Havlik, according to Muntz, did so. Neverthe-
less, apparently because the Respondent’s proposals were not
couched in conventional contract language, the parties primar-
ily worked off of the Union’s proposals as a starting point.
7 The Union had different chief negotiators at different stages of the
negotiations. Indeed, Havlik testified that this succession of union
chief negotiators tended to prolong bargaining as it would be necessary
to acquaint each of them with the Respondent’s business philosophy so
that they would understand the rationale underlying the Respondent’s
proposals and the Respondent’s reluctance to adopt certain union pro-
posals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
Muntz testified that, “There was no bargaining process. It
was our proposal, the answer [by Havlik] no, and us dropping it
to try to move along.” Thus, after discussion, the position of
the Respondent on most significant items prevailed and, ac-
cording to Muntz, “The way we would come to an agreement is
we would back down on just about everything, including things
like minimum wage.” As noted above, negotiating sessions
were held on June 12, 26, and 27, 1996. According to Muntz,
by the end of these three sessions numerous tentative agree-
ments had been verbally reached but had not been signed off by
the parties. Thus, according to Muntz, tentative agreement had
been reached on the following items: union recognition and
union security; probationary period; hours and overtime; mini-
mum time; posting of job vacancies; seniority; sickness and
industrial benefits; maternity leave; discipline or discharge;
shop stewards; leave of absence for union business; and uni-
forms.
Muntz testified that between June 12, 1996, when he began
to participate in negotiations, and October 10, 1996, when the
Respondent submitted a complete contract proposal to the Un-
ion, “[I]t was clear that up to that point . . . we were making
headway and progress, mainly, at my caving in on a lot of lan-
guage, that I would just drop it in order to move along.” And
subsequent to October 10, 1996, after a dispute regarding what
had previously been tentatively agreed to and whether, in fact,
tentative agreement meant tentative agreement primarily in
concept, as Havlik maintained, or whether it meant tentative
agreement in both concept and language, with certain modifica-
tions, as Muntz argued, the parties resolved their differences.
During the course of this disagreement Havlik advised Muntz
that in the Respondent’s written proposal of October 10, 1996,
he had not intended his proposed language to change any sub-
stantive or conceptual understandings, and that he would mod-
ify such language if Muntz could show him where he had alleg-
edly erred. Thereafter, according to the testimony of both
Muntz and Havlik, substantial headway was made at the suc-
ceeding negotiating sessions during which some of the previous
“tentative agreements” were renegotiated and signed off by the
parties.8
Further negotiating sessions were held on October 11, 18,
22, 24, and 25, 1996.
On October 21, 1996, Muntz faxed to the Respondent “a
complete written counter-proposal package representing the
Union’s position,” and advised Havlik that Clem Valeri would
be representing the Union at the meeting scheduled for the
following day, October 22, 1996. On October 23, 1996, Muntz
sent Havlik “a consolidated compromise counter proposal”
which included all items previously agreed to and closed.
By letter dated October 29, 1996, Muntz requested that Hav-
lik submit a list of dates he would be available for bargaining
for the month of November 1996, and suggested that “we

8 Because of the dispute that had arisen regarding whether the un-
signed “tentative agreements” were agreements primarily in concept or
both in concept and language, Havlik initiated the procedure of includ-
ing a signature block for each item which would be “signed off” by
both parties in order to eliminate any further such disputes. I credit the
testimony of Havlik and find that Respondent initiated the idea of the
signature blocks in order to expedite the bargaining process.
would like to schedule marathon bargaining sessions that are
longer than the two hours you have recently been affording the
Union.” Further, Muntz suggested that it would facilitate bar-
gaining to have the Respondent’s attorney present during
negotiations. The letter concludes as follows:

Finally, the pending negotiations between Wallace Theaters
and Local 5 must begin to be a priority for the company.
Your inability to provide the Union with additional bargaining
dates and longer bargaining sessions only serves to delay con-
clusion of negotiations, and can only be viewed as a failure by
the Company to meet its good-faith requirement under the
National Labor Relations Act.

By letter dated October 30, 1996, Muntz requested that the
parties begin bargaining about the weekly work schedule of
each employee and on all subsequent work schedules, and on
all other employment and working conditions. And on October
31, 1996, Muntz renewed certain of the requests contained in
his October 29, 1996 letter.
On November 1, 1996, Havlik, in a lengthy reply, responded
to Muntz’ three aforementioned letters. Havlik states that while
scheduling issues are mandatory subjects of bargaining, the
Union’s request that the Respondent bargain over each and
every employee’s work schedule “is clearly unreasonable and
harassing,” and the Respondent “cannot agree to waive its legal
rights to determine certain basic management functions neces-
sary for the orderly running of its business.” Havlik goes on to
offer the dates of November 5, 19 and, tentatively, November
21, 1996, for further negotiating sessions, each lasting 2 hours,
stating that, “As per our prior practice, the company would
again request that the time frame for our meeting be maintained
in order to ensure the orderly running of our business,” and
that, “In the interest of better utilizing our meeting time to-
gether, the company would again reiterate its request that the
Union provide it with a proposed agenda of items for negotia-
tion [at] least 24 hours prior to our scheduled meeting.” The
letter continues, inter alia, as follows:

As I indicated to you, the company believes that the
negotiation process would be furthered if the parties were
to agree on an agenda of items to focus in on at negotia-
tions prior to our meetings, as opposed to continuing to
proceed in the somewhat chaotic and confusing fashion
that the Union insists upon. This agenda would, of course,
not preclude the discussion of other pertinent items, but
would at least provide the parties with a more focused ap-
proach to negotiations.
As a related matter, the company would also request
that the Union provide the company with its written bar-
gaining proposals in a more diligent and timely fashion, as
opposed to its current practice of less than 24 hours prior
to our scheduled meetings. The Union’s current practice
places an undue and unfair burden on the company to re-
view and analyze the Union’s proposals on such short no-
tice and hinders the bargaining process.
Finally, the company must take exception to your
statement that “pending negotiations between Wallace
Theatres and Local 5 must begin to be a priority for the
company.” Such self-serving and false statements are nei-
WALLACE THEATERS 415
ther reflective of a good faith intent nor conducive to pro-
moting fruitful negotiations. The Union is well aware that
its negotiations with the [Respondent] has always been
and continues to be a high priority for the company. The
parties have already had 15 bargaining sessions commenc-
ing in January of this year, and [the Respondent] continues
to make every effort to further the negotiation process.

On November 1, 1996, Union Representative Valeri sent
Havlik an 18-page “compromise package of contract proposals”
and suggests that further bargaining sessions may hopefully
bring about the “conclusion of contract negotiations.” Havlik
received the package at about 4 p.m. on November 4, 1996, the
evening prior to the scheduled November 5, 1996 negotiating
session.
Havlik faxed Muntz an immediate reply stating, inter alia,
that due to the lengthy counterproposal and the unreasonably
short period of time provided by the Union for him to review
the proposals, he “will be unable to meet and discuss these
counter proposals at our bargaining session scheduled for 11:00
am November 5, 1996.” Havlik goes on to state that he will
need “at least three weeks time to properly review and prepare
for our next bargaining session.” And on the morning of No-
vember 5, 1996, Havlik faxed Valeri a similar letter and ad-
vised him that he would not be prepared to discuss the Union’s
most recent counterproposals at the meeting scheduled for that
day, but would be able to review the October 25, 1996 counter-
proposals submitted by the Union at the October 25, 1996 bar-
gaining session.
On November 5, 1996, the Union filed its initial charge in
this matter, alleging various violations of Section 8(a)(5) of the
Act, including “failing to provide adequate meeting dates and
times,” and “failing to provide responses to union counterpro-
posals within a proper and reasonable time frame.”
On November 8, 1996, Muntz sent a letter to Havlik contain-
ing the Union’s revised proposals. However, Havlik left for the
mainland on business on November 7 and was not scheduled to
return until about November 15, 1996.
Further negotiating sessions were held on November 5 and
21, and December 19, 1996; and on January 9, 17, and 28,
1997. As noted above, progress continued to be made through-
out this period of time, and contract items continued to be
signed off by the parties. On January 13, 1997, Valeri wrote to
Havlik that as of that point in time the following contract items
remained open: management rights, wage rates, deduction of
union dues, layoff and recall, duration of agreement, and effec-
tive date of agreement. At the January 17, 1997 session the
parties signed off on a management-rights provision.
At the schedule 3-hour January 28, 1996 session it was clear
that there were only a few contract items outstanding, one of
which was wages. From the very outset of bargaining the Re-
spondent had been adamant that it would agree to pay its em-
ployees only the minimum wage required by law. The Union,
realizing that its continued insistence upon a wage increase and
progressive wage scale for the employees was simply not ac-
ceptable to the Respondent, offered to accept the Respondent’s
minimum wage proposal. Further, as it was the Union’s policy
not to collect union dues unless an initial contract provided for
a wage increase, the Union withdrew its dues-deduction pro-
posal. The Union also proposed a 1-year agreement containing
a midterm reopener clause, effective 6 months after the effec-
tive date of the agreement, providing for the renegotiation of
any three contract items the Union elected to renegotiate. Thus,
at the conclusion of the meeting the open items were layoff and
recall, the duration/reopener provision, and effective date of the
contract.
Muntz testified that that in order to accept the Respondent’s
minimum wage proposal it was necessary for the Union to have
a short-term contract: “[I]f we go for a short-term contract it’s
going to be easier with wages. We go for a long-term contract
we’re going to be locked into something that stinks.” Further,
on January 28, 1997, when the Union agreed to the Respon-
dent’s minimum wage proposal, Muntz recalled Havlik stating
that, “well, this looks good to us now. Maybe we want a longer
duration.”
Havlik testified that during a negotiating session in August
1996, he advised that Union that at that point the Respondent
was disposed to a 1-year or perhaps a 2-year agreement, but
also pointed out that the duration of the agreement was depend-
ent upon how favorable he viewed the terms of the contract that
was ultimately reached. Havlik testified that at the point when
the Union accepted his minimum wage proposal during the
January 28, 1997 meeting he believed a 3-year contract with no
wage increases for the duration of the contract was in the Re-
spondent’s best interests. Havlik further testified that although
he replied to the Union’s proposals with verbal counter-
proposals and some written proposals throughout negotiations,
collective bargaining was a learning experience for him and he
approached it very cautiously. Consequently, there was a long
“gestation period” during which he became familiar with the
bargaining process, and after which, on October 10, 1996, he
felt comfortable enough to put together a complete written pro-
posal that, if accepted by the Union, would be satisfactory to
the Respondent.
By letter dated January 30, 1997, Havlik advised the Union
that the Respondent was rejecting the Union’s proposal on lay-
off and recall and duration of agreement. Thereafter it appears
that Valeri attempted to contact Havlik by phone on several
occasions but was unsuccessful. On February 10, 1997, Havlik
requested a 2-hour negotiating session for February 20, 1997,
stating that due to his travel schedule this was the earliest avail-
able meeting time he could arrange. Union Representative
Valeri accepted this date. However, on the morning of Febru-
ary 20, 1997, Valeri was advised that Havlik was ill and would
be unavailable for the meeting. Valeri proposed that they meet
on February 26, 27, and 28, 1997, and on February 24, Havlik
replied stating that that due to his travel and business operations
schedule his next available meeting date would be a 3-hour
meeting on March 13, 1997. This date was accepted by Valeri.
Havlik was on a lengthy business trip on the mainland from
about February 24, 1997, until March 10, 1997. On March 11,
1997, Havlik wrote Valeri informing him that he had been
away on business. Havlik also advised Valeri that the Respon-
dent was declining to negotiate further because, based on objec-
tive considerations, the Respondent believed the Union no
longer had the majority support of the bargaining unit employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
ees. As noted above, the employees’ decertification petition
had been filed that same date.9
C. Analysis and Conclusions
The General Counsel stated, emphasized and, on several oc-
casions, reiterated at the hearing that this is not a surface bar-
gaining case but rather a straightforward “mechanics of bar-
gaining” case. There is no complaint allegation that the pro-
posals of the Respondent were improper or that the Respondent
failed and refused to engage in good-faith bargaining or en-
gaged in delaying tactics or otherwise engaged in conduct de-
signed to avoid reaching an agreement.10 Moreover, despite the
fact that bargaining commenced on January 5, 1996, the Gen-
eral Counsel maintains and the complaint alleges that the Re-
spondent did not commence to violate the Act until June 12,
1996, some 5 months later, in the following respects:

• The Respondent insisted that the duration of each
negotiation session be no longer than two to three
hours.
• From about June 1996 until October 10, 1996, Re-
spondent failed to provide a complete written
counter proposal.
• From about November 1996 through about March
11, 1997, Respondent failed to make a representa-
tive available at reasonable times for negotiation
sessions.

The General Counsel argues that to limit negotiating sessions
to 2 to 3 hours is per se unreasonable, and that if Havlik would
have agreed to bargain for more than 2 to 3 hours at a time, or
had hired a consultant or attorney who would have been avail-
able for longer negotiating sessions, it is likely that more pro-
gress would have been made. I do not agree. It would appear
that whether or not the parties’ negotiations are consonant with
Section 8(d) of the Act is dependent upon the interaction of
certain variables, such as the length and frequency of meetings,
the opportunity of each party to present its proposals, the nature
of the proposals, the candor of the parties in presenting their
points of view and in rebutting proposals with which they dis-
agree, and, most importantly, the actual progress made during
the course of negotiations.

9 Following the Respondent’s withdrawal of recognition the Union
maintained that in fact a complete contract had been reached and that
the Respondent was obligated to sign it. The Union filed a charge
containing such an allegation and it was dismissed. While the Union
apparently continues to maintain that an agreement was reached, the
General Counsel is specifically not contending that the parties reached
agreement, and the credible record evidence, I find, supports the posi-
tion of both the General Counsel and the Respondent that no agreement
was reached.
10 The General Counsel specifically stated at the hearing that she was
not moving to amend the complaint to allege such allegations, but
suggested that since, over the strong objection of General Counsel, the
entire course of bargaining had been explored on the record at the hear-
ing, it was within the discretion of the administrative law judge to, sua
sponte, make findings of violations not specifically alleged in the com-
plaint. I decline to do this because the record evidence clearly mandates
the conclusion that the Respondent has not, in fact, failed to bargain in
good faith.
In just the first two negotiating sessions the parties had com-
pletely reviewed, line-by-line, the Union’s entire contract pro-
posal, and Havlik had candidly pointed out exactly why he
believed the Respondent’s business philosophy was incompati-
ble with the Union’s demands. That the Union clearly and un-
mistakably understood the Respondent’s position is under-
scored by the fact that at the outset of the third meeting the
Union stated that the Respondent’s position “sucked,” threat-
ened to put the Respondent out of business, stated to Havlik, I
find, that bargaining was being suspended until further notice
from the Union, and thereafter began picketing the Respon-
dent’s theaters from February 2 until about June 12, 1996,
without any interim bargaining. That the parties got to this
stage of negotiations in just two meetings is, in my estimation,
indicative of Havlik’s efficiency in focusing on the issues and
presenting his position to the Union in the most expedient man-
ner because, indeed, as he candidly stated to the Union, his
schedule kept him very busy.
Then, some 4 months later, beginning with the date the par-
ties renewed negotiations on June 12, 1996, progress was
clearly made; and beginning at about the time the Respondent
submitted its complete set of written bargaining proposals on
October 10, 1996, progress not only continued, but accelerated.
All of this admitted progress was made during the course of
bargaining sessions lasting 2 to 3 hours. And it is important to
note that at no point did any of the union representatives who
testified herein ever state that they did not have the opportunity
to discuss with Havlik each and every contract item in as much
detail and in as great a length and as often as they wanted.
Thus, it has not been demonstrated that more or lengthier bar-
gaining meetings would have been any more productive. In-
deed, it is equally as arguable that had the parties engaged in
marathon bargaining ad nauseum less progress would have
been made as there would have been no particular incentive to
utilize the time in a productive manner. I shall dismiss this
allegation of the complaint.
As maintained by the General Counsel and alleged in the
complaint, the Respondent did not provide a complete written
counterproposal until October 10, 1996, after 10 negotiating
sessions. However, there is no contention that the Respondent
was stalling for time and, further, there is no 8(d) requirement
that the Respondent ever provide a complete written
counterproposal. Nor is there any showing that prior to that
time the Union was unaware of the position of the Respondent
on any open issue. Indeed, up to that point, as noted, the parties
were making progress even though the Respondent’s proposals
were mainly verbal. While the Respondent’s complete written
counterproposal may have facilitated negotiations by permitting
the Union to suggest modifications to the Respondent’s pro-
posed language, there were 11 negotiating sessions after Octo-
ber 10, 1996, and, as noted above, there is no showing that the
Union did not have ample time during the remaining course of
bargaining to utilize the Respondent’s written proposals for
whatever purposes and to the extent that it wanted.
The General Counsel argues that the dramatic progress that
postdated the Respondent’s written proposal package shows
that it was the proposal package that was the catalyst for this
progress. This purported cause-and-effect relationship is not
WALLACE THEATERS 417
necessarily the reason for such progress. Thus, from the com-
mencement of negotiations the Union had been specifically
made aware of the Respondent’s position on each and every
contract item the Union deemed important, and the Respon-
dent’s package simply confirmed what the Union already knew.
By this point in time, approaching the end of the certification
year, the Union may have decided that any further effort to
change Havlik’s thinking on open items seemed highly
unlikely, that economic sanctions were obviously not effective,
and that it was time to bring the matter to some conclusion.
While the General Counsel maintains that it was the Respon-
dent’s delay in presenting its complete written counterproposals
that hampered bargaining, this is not necessarily the case. It
has not been demonstrated, I find, that bargaining was ham-
pered at all by any conduct or failure to act on the part of the
Respondent. And if the bargaining process was initially not as
productive as the parties might have wished, it is just as reason-
able to place the onus on the Union for causing a 4-month hia-
tus in negotiations, or for not accepting all of the Respondent’s
proposed negotiating dates in May and June 1996, and indeed,
for placing Union Representative Diaz in charge of a negotiat-
ing session when he was totally unprepared to negotiate. Had
the Union utilized its time and resources more wisely it is likely
that the “gestation period” required by Havlik would have been
considerably attenuated, and that the Respondent’s package
would have been submitted well before October 10, 1996. I
shall dismiss this allegation of the complaint.
It is alleged that from about November 1996, through about
March 11, 1997, Respondent failed to make a representative
available at reasonable times for negotiation sessions. During
this period there were six negotiating sessions and others were
scheduled. Insofar as the credible record evidence shows it was
a mere coincidence that Havlik was ill and was unable to attend
the scheduled February 20, 1997 session. And, insofar as the
credible record evidence shows, it was a mere coincidence that
a decertification petition was filed before the parties could get
together after January 28, 1997, for their next bargaining ses-
sion. As noted, there is no contention that Havlik’s unavailabil-
ity during this period of time was contrived in an effort to pro-
mote or permit time for employees to circulate a petition to
decertify the Union. No one expected that there would be no
further negotiations after January 28, 1997. Up to that time
there had been 21 negotiating sessions extending over a year, I
find, of good-faith bargaining, despite the fact that the Union
had imposed an interim 4-month bargaining moratorium during
which it elected not to bargain. I shall dismiss this allegation of
the complaint.
Finally, in response to the General Counsel’s contention that
there were only two open items and the parties were virtually at
the culmination of an agreement, I view the record evidence
quite differently. Indeed, I find it unlikely that the parties were
at all close to an agreement. They had clearly reached an im-
passe on the remaining issues: the Union wanted a reopener on
three unidentified items of their choosing after 6 months of a 1-
year contract which provided for minimum wages, while the
Respondent wanted a 3-year contract with minimum wages and
with no reopener. This meant that the Union, if it agreed with
the Respondent, would be committing the employees to mini-
mum wages with no wage increase for 3 years during which
time the Union would be required by law to represent these
employees despite the fact that none of the employees would be
supporting the Union through dues.11 As Muntz testified, the
Union was not going to be locked into a long-term contract that
“stinks.” Clearly, this would have been a contract that fit that
description.
Accordingly, I shall dismiss the complaint in its entirety.12
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. The Respondent has not violated Section 8(a)(5) of the
Act as alleged.
On these findings of fact and conclusions of law, I issue the
following recommended13
ORDER
The complaint is dismissed in its entirety.

11 As noted above, the Union does not collect dues from employees
absent a contractual wage increase during the term of an initial contract.
12 See 88 Transit Lines, Inc., 300 NLRB 177 (1990).
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.