Stanley Co. of America

I In the Matter Of STANLEY COMPANY OF AMERICA, WARNER BROS., WARNER BROS. CIRCUIT MANAGEMENT CORP., WARNER BROS. THEATERS, INC. AND CIRCUIT SETTLEMENT CORPORATION and UNITED OFFICE & PROFESSIONAL WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-.¢.. J4.Decided November 17, 194 Jurisdiction : motion picture theatre- industry. Practice and Procedure : petition dismissed where no appropriate unit within the scope of the petition-unit composed of managers , assistant managers,- treasurers , and utilitarians , held inappropriate. Mr. H. S. Bareford, of New York City, for Stanley. Mr. Samuel L. Rothbard, of Newark, N. J., for the Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon petition duly filed by United Office & Professional Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Stanley Com- pany of America,' Warner Bros., Warner Bros. Circuit Management Corp., Warner Bros. Theaters, Inc., and Circuit Settlement Corpora- tion, Newark, New Jersey, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Frederick R. Livingston, Trial Examiner. Said hearing was held at Newark, New Jersey, on August 31, 1942. Stanley and the Union appeared and par- ticipated.2 Stanley moved to dismiss this proceeding, (1) on the ' The petition and other formal papers were amended at the hearing to show the correct name of Stanley Company of America , herein called Stanley . Stanley , however, oijerates elsewhere than in New Jersey as , Stanley Company of America, Inc, and as Stanley Corporation of America. 2 Stanley appeared specially to contest the jurisdiction of the Board and, on the assur- ance of the Tiial Examiner that it would not be prejudiced thereby, participated in the hearing The other co,parties , although served with notice, did not appear Stanley contends that it alone is the employer of employees herein concerned. 45 N. L R. B., No. 94 493508-43-vol. 45-40 625 i 626 DEIOISIONS OF NATIONAL LABOR RELATIONS BOARD ground that Stanley was not engaged in commerce within the mean- ing of the National Labor Relations Act and (2) on the further ground that there was no appropriate unit within the scope of the petition. We need not pass on the jurisdictional question, since for reasons which appear in Section III, below, the motion is granted. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On September 21, 1942, Stanley filed a brief which the Board has considered. Upon the entire record in the case,,the Board makes the following: FINDINGS oF' FACT 1. THE BUSINESS OF STANLEY Stanley Company of America is a subsidiary of Warner Bros. Pictures, Inc., which owns 90 percent of its stock. Stanley operates approximately 200 theaters, of which 48 are regularly operated theaters in New Jersey. The theaters operated in New Jersey are the only ones directly involved in this proceeding. These theaters are included in the so-called New Jersey Zone of Stanley's opera- tions under the supervision of a zone manager. Other zones include New Haven, Atlantic' City, Philadelphia, Pittsburgh, Albany, Chicago, and Washington. Zone managers meet for conference in Stanley's office at New York City. This office is located in the same building in which-Warner Bros. Pictures, Inc., has its offices and the two companies use a common telephone. In 1941 Stanley's business in New Jersey exceeded 1 million dol- lars. During 'the course of a week at its New Jersey theaters, Stan- ley shows about 200 feature pictures,' 80 news reels, and 170 short subjects, not all of which are different. Pictures are leased through Stanley's booking agent in New York City and are selected by the zone manager with suggestions from the theater managers. Most pictures shown in the theaters are leased from distributing agencies who operate exchanges at key centers in the United, States; from which they direct inter-theater transportation of pictures. ' There is no exchange center or national distribution center in New Jersey. About 90 percent of the pictures shown by Stanley at its New Jersey theaters come from New York City. ' Of these, 35 to 40 constitute the yearly output of warner Bros . Pictures, Inc. STANLEY COMPANY OF AMERICA II. TILE ORGANIZATION INVOLVED 627 United Office '& Professional' Workers of America is a labor organization affiliated with the Congress of Industrial Organiza' tions; admitting to membership employees of Stanley. III. THE ALLEGED QUESTION CONCERNING THE REPRESENTATION OF EM- PLOYEES OF STANLEY WITHIN AN APPROPRIATE UNIT The Union contends that managers, assistant managers, utilitar- ians, and treasurers employed at Stanley's New Jersey theaters con- stitute an appropriate bargaining unit. Stanley contends that the proposed unit is inappropriate for bargaining, alleging that such employees at its several New Jersey theaters have no common inter- ests and that managers who supervise assistant managers, utilitar- ians, and treasurers should not be included in the same bargaining unit with such employees. Stanley regularly operates 48 theaters in New Jersey under the management of a zone manager whose headquarters are at Newark. Under the zone manager are 4 district" managers, each of -whom super- vises a group of theaters. Some theaters are in small rural communi- ties, others in large cities. Each theater operates under the direct supervision of a theater manager who has under him one or more assistants. These assistants are known as assistant managers, utili- tarians, and treasurers.' Theater managers attend monthly zone meet- ings at Newark. Assistant managers, utilitarians, and treasurers do not have regular meetings where they may come in direct contact with employees in other theaters. The manager is in charge of the physical properties of the theater and handles its booking problems and advertising problems within certain limits. He has general supervision of all employees working in the theater, including the assistant manager, utilitarian, treasurer, cashiers, doormen, porters, ushers, cleaners, operators, and stage hands. The larger theaters have an assistant manager, who is in charge of the theater during the manager's, absence and assists the manager as he may direct. The treasurer supervises the cashiers, handles'the' cash, tickets, and pay rolls. He checks the income from various con- cessions about the theaters, such as vending and weighing machines. "Utilitarian" is a comparatively new category of employment, recently replacing "treasurer" on the Company's pay rol14 The utilitarian is characterized as a handy man and junior assistant manager with not enough skill or experience to be rated as an assistant manager. Where ' The record does not disclose that Stanley has in all cases substituted "utilitarian" for "treasurer." 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he is substituted for the treasurer, he assumes such duties. The duties of the utilitarian and assistant manager, and the number of such assistants assigned to the manager, differ according to the size of the theater. The largest theater in the zone seats 4,432 persons and em- ploys regularly 72 people. The smallest theater seats about 600 persons. The manager hires and discharges all theater employees in a non- supervisory capacity. He recommends for dismissal, transfer, or promotion the assistant manager, utilitarian, and treasurer who may be employed at the theater. His recommendations are usually fol- lowed. Positions of assistant managers, utilitarians, and treasurers are filled by transferring employees from one category to the next higher paid category or by transferring employees to a larger theater without nominal change of position .5 For these purposes transfers within the zone are frequent, although interzone transfers are rare. For each vacant position the manager of the theater may select from employees recommended for promotion the individual whom he may wish to have associated with him. If he does not desire to select an employee candidate, he may recommend an outside person for the position. The hiring of assistant managers, utilitarians, and treas- urers, however, must be effected'after consultation with the zone office. We are of the opinion, and find, that the various levels of super- visory employees at Stanley's several theaters cannot appropriately be grouped, as the Union contends, in a single bargaining unit. Man- agers are in charge of the local theaters. Their authority includes not only the hire and discharge of all non-supervisory employees, but also, in a substantial measure through the credit accorded to their recommendations by the zone manager, an almost equivalent power to effect the hire, discharge, and transfer of the assistant managers and utilitarians with whom they associate and share the problems of theater administration. We find that the unit proposed by the Union, composed of managers, assistant manager's, utilitarians, and treasurers, is not appropriate for the purposes of collective bargaining. We accordingly find that no question has arisen concerning the representation of employees of Stanley in an appropriate bargaining unit. The petition for investigation and certification of represen- tatives will therefore be dismissed. . I 5 Depending upon the size of the theater which he supervises , a manager receives from, $45 to $135 per week Assistant managers receive from $25 to $40 per week , and utili- tarians from $18 to $25 per week. Utilitarians receive $4 to $5 more than the cashier at the theater . Zone managers are given' bonuses for the success of business operations within their zones Zone managers customarily share their bonuses with the managers, of theaters in their zones and they, in turn , share with the assistant manager, utilitarian, or treasurer under them The amount of the bonus is not fixed. STANLEY COMPANY OF^ AMERICA ORDER , 629 Upon the basis of the foregoing findings of fact and the entire record in the case, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of Stanley Company of America, Warner Bros., Warner Bros. Circuit Management Corp., Warner Bros. Theaters, Inc., and Circuit Settlement Corporation, Newark, New Jersey, filed by United Office & Professional Workers of America, affiliated with the Congress of Industrial Organizations, be, and it hereby is, dismissed. MR. GERARD D. REILLY, concurring specially : I agree with my colleagues in the dismissal of this petition, but would go further than deeming the proposed unit inappropriate solely because it contains more than one level of the hierarchy of manage- ment. I have recently had occasion to dissent from the view that supervisors who are integral parts of management are also employees within the meaning of the National Labor Relations Act e The instant case is illustrative of the consequences which may be expected to result from the contrary doctrine. The bulk of employees in the theaters here involved, so far as the record shows, have not been organized. It is, therefore, apparent that the technique adopted has been that of "organization from above." There can be little doubt as to the form that organization of the ordinary employees will take if the Board permits their supervisors to choose bargaining agents tinder the Act. Furthermore, had the supervisors proceeded to organize an unaffiliated union in which the line employees were eligible for membership, there is not the slightest doubt that such an organiza- tion would be regarded by the Board as proscribed by Section 8 (2) of the Act. Coercion of the line employees is no less real where among the bargaining agencies which seek to represent them is one to which their supervisors owe allegiance. 9 Union Collieries Coal Co , Oakmont, Pa. and Mine Officials' Union of America (Ind.), 44 N L. R B. 165; Godchaux Sugars, Inc. and United Sugar Workers, Local Industrial Union No. 1186, C. 1. 0., 44 N. L. It. B. 874. I