Balaban & Katz

In the Matter of BALABAN & KATZ (PRINCESS THEATRE),' EMPLOYER and TOLEDO PROJECTIONISTS ASSOCIATION, PETITIONER Case No. 8-R'C-509.-Decided December 16,1949 DECISION AND ORDER Upon. a petition duly filed, a hearing was held before Charles A. Fleming, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed .2 On December 6, 1949, the Board heard oral argument at which all parties to this proceeding appeared and presented argument. Upon the entire record in this case, the Board finds : 1. The Employer is an Illinois corporation which operates a chain of 120 motion picture theatres in Illinois, Indiana, and Ohio. The Employer's Princess Theatre in Toledo, Ohio, is the only one of these theatres involved in this proceeding. Feature pictures shown at this theatre are rented from the Cleveland, Ohio, film exchanges of the major film producers including Paramount, 20th Century-Fox, Uni- versal, R. K. 0., and Republic, at an annual rental exceeding .$25,000. The theatre's annual gross income exceeds $50,000. All receipts are deposited in a Toledo bank in the name of the Employer and all dis- bursements are made by the Employer from its Chicago home office. Salary checks for all Princess Theatre employees are received directly from the Employer's Chicago office. All withholding taxes from salaries are withdrawn in Chicago. Office stationery, report forms, and ushers' equipment are supplied by the Chicago office. Because it appears that the Princess Theatre is operated as an integral part of the Employer's multi-State business, we find, contrary to the con- tention of the Intervenors, that'the Employer is engaged in commerce ' The name of the Employer is amended to conform to the record. 2 The hearing officer properly granted the motions of Local 228 , International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL, herein called Local 228, and of the Toledo Theatres Association to intervene. The motion by Local 228 to dismiss the petition on the ground that the Employer is not engaged in interstate commerce is denied for the reasons stated in para- graph 1, infra. The motion by Local 228 to dismiss the petition on the ground that the unit sought is inappropriate for the purposes of collective bargaining within the meaning of the Apt is granted for the reasons stated in paragraph 3, infra. 87 NLRB No. 133. 1071 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of the National Labor Relations Act.3 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the repre- sentation of . employees of the Employer within the meaning -of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the fol- lowing reasons : The Petitioner seeks to represent a, unit limited to all projectionists at the Princess Theatre. The Employer and the Intervenors contend that the only appropriate unit is s multiple-employer unit consisting of projectionists at all Toledo motion picture theatres who have been bargained for collectively by the Toledo Theatres Associa- tion. The record shows that since 1921 the Toledo motion picture theatre operators have been in a continuous collective bargaining relationship with Local 228. In that year the operators formed the Toledo Amuse- ment Managers Association 4 for the purpose of bargaining collec- tively with Local 228. Although occasionally a member has with- drawn, that member has invariably returned, so that presently all the 28 Toledo theatres with 1 exception 1-are represented in the Associa- tion. At its inception the Association had a code of regulations, a set of officers, a board of directors, held regular meetings and kept minutes. For many years, however, the Association has operated informally. No records or minutes are kept, no dues are collected, meetings are infrequent and not regularly scheduled, and attendance is sporadic. The greatest interest by the members is evinced on bar- gaining matters with Local 228, and when meetings are called by the Association secretary for such purpose, there is usually substantial attendance by the membership. Bargaining is customarily conducted by negotiating committees 6 of the Association and Local 228. After the committees come to agree- ment, they report the terms to their respective organizations for votes of approval or disapproval by the full memberships. The Association 3Block and Kahl Department Store, 83 NLRB 418; The Grand Union, Company, 81 NLRB 101.6. Our dissenting colleague asserts that the essentially local character of this theatre is ,unaffected by the fact that it is part of the Employer's multi-State operations. We have, however, consistently taken the position, in deciding whether or not to assert jurisdiction, that an employer's operation should be considered as a whole. Thus a branch or segment of an employer's business which by itself is an essentially local enterprise loses its local character when viewed as part of the employer's multi-State operations. See 1131s Auto- matic Merchandising Corp., 86 NLRB 1096, and cases cited therein at footnote No. 2. 4Th(, name of the Association has since been changed to Toledo '.Theatres Association. 5 This theatre, the Tivoli, is family-owned and operated and has laid no bargaining rela- tions with any labor organization. c Representatives of the Employer have always been on the negotiating committees and, until-July 1948, on the Association board of control. BALABAN & KATZ (PRINCESS THEATRE) ' 1073 has invariably voted its approval. Following approval by both or- ganizations, Local 228 delivers individual contracts to the theatre operators for signature. These contracts have without exception been signed.7 In the case of about three theatres, including the Princess Theatre, which are owned by theatre chains, the contracts are sent to the home offices for inspection and upon their return are signed by the local managers. Since the foregoing procedure was instituted in 1921, there has been no instance of individual bargaining with Local 228 by any Toledo theatre operator. The Petitioner argues that because the Association has functioned only informally for many years, it is defunct and could not, there- fore, have binding authority in bargaining matters. It also argues that the practice of signing individual contracts under the circum- stances outlined above negates any conclusion that there has been association-wide bargaining. We have held that neither the, lack of a formal association of employers," nor the fact that the results of joint negotiation have been incorporated in separate uniform con- tracts,9 precludes the establishment of a multiple-employer unit. In view of the foregoing circumstances, and particularly the past bar- gaining history, we believe that the Toledo theatre owners, including the Employer, have demonstrated their desire to be bound by group rather than individual action. Accordingly, we find that a unit limited to the projectionists of the Employer's Princess Theatre is inappropriate. The Petitioner further asserts that Local 228 has failed adequately to represent certain projectionists at the Princess Theatre. It con- tends that an election should be held among the projectionists at this theatre so that they may select a representative which will adequately represent them. Local 228 denies that it has failed to give adequate representation to these employees. Two of the four projectionists at the Princess Theatre belong to sister locals of Local 228. Although they have been employed as projectionists in various Toledo theatres for several years and have frequently applied for membership in Local 228 and tendered their initiation fees, they have failed to receive the two-thirds vote of the local's membership required for admission. The local has issued "permit" cards to these projectionists and has placed them in their 7 The record indicates that on one occasion a theatre operator refused to sign and that Local 228 thereupon threatened to pull the projectionists from his theatre. He thereafter signed. 8 Johnson Optical Company, et al., 85 NLRB 895; Ward Baking Company, 78 NLRB 181, and cases cited therein. 8 Cf. Furniture Firms of Duluth, 81 NLRB 131A. 877359-50-Vol. 87-69 1074 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD jobs.10 They pay the same dues as members but have no voice in the affairs of the local. They receive the same pay and have the same conditions of employment provided in the bargaining contracts that are accorded members of the local. They do not, however, have the seniority enjoyed by the local members and are liable to displacement by such members or by registered apprentices. One of these "permit men" has been assigned to the Princess Theatre for the last 3 years. During this period he has several times been transferred by the local to another theatre, so that he has never worked successively for a full year at the Princess. Consequently he has not received any vacation in 3 years and has not been given the annual Christmas bonuses paid by the Employer to its employees. He has for the same reason been excluded from the insurance benefits extended by the Employer to its projectionists. The other "permit man" at the Princess Theatre, how- ever, has worked there continuously without transfer for 4 years and has received vacations, bonuses, and insurance benefits. Local 228 does not customarily transfer projectionists, and they are usually permitted to remain at the same theatre as long as they perform satisfactorily. When exigencies arise requiring transfer to another theatre, the local usually selects a "permit man" rather than a'meinber: Essentially, the Petitioner's contention is based upon a charge of discrimination by Local 228 against the "permit men." We shall not attempt to determine whether the evidence supports the discrimina- tion alleged by the Petitioner, for we believe that the appropriate. remedies should be pursued under other provisions of the Act and not in this representation proceeding. Here we are concerned with a determination of whether the unit sought is appropriate for the purposes of a representation election. We have already decided, in accordance with our, usual standards, that only an Association-wide unit of Toledo projectionists is appropriate. We cannot, therefore,. accede to the Petitioner's request for an election in a unit limited to the Princess Theatre. Accordingly, we shall grant the motion of Local 228 and shall dismiss the petition." 10 All the bargaining contracts between Local 228 and the Toledo theatres contain closed. shop provisions which state that the local shall furnish and place the projectionists at each theatre. it The instant case is distinguishable from Larus & Brother Company, Inc., 62 NLRB 1075, and Taxicabs of Cincinnati, Inc. (Ferguson Division), 82 NLRB 664, relied on by the Petitioner in its brief. In the Larus case the Board held that it would rescind a cer- tification where the certified union failed to act as the genuine representative of all the employees in the bargaining unit. As Local 228 has never received our certification as bargaining representative for the employees in question, the control we could have exercised in the^Larus case by rescission of the certification is absent. In Taxicabs of Cincinnati we found that two divisions of the employer's operations could, if the em- ployees so desired, constitute separate bargaining units or could together constitute a single unit. In that case, however, in addition to the fact that the cab drivers in one division had never been admitted to active membership in the union to which the other drivers belonged, there were elements of separateness which are not present in the instant case. BALABAN & KATZ ( PRINCESS THEATRE) 1075 ORDER Upon the basis of the foregoing findings of fact and upon the entire record in the case, the National Labor Relations Board hereby orders that the petition herein be , and it hereby is, dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. MEMBER GRAY, dissenting : The Board has in the past wisely exercised its discretion in refusing to assert jurisdiction over enterprises which are essentially local in character. It is difficult for me to conceive of anything more local in character than a motion picture theatre . The mere fact that the owner of the Princess Theatre in this case also owns motion picture theatres in other States , in no way destroys the essentially local character of the enterprise. If a labor dispute occurred here, it would at most result only in the closing of the Princess Theatre. With today's wide choice of enter- tainment available via radio , television , community social functions, to say nothing of the numerous other theatres , potential patrons would simply turn to other amusement sources. The impact of the labor dispute upon commerce would be too minor and insubstantial to warrant the intervention of this Board. In my opinion it would be more consistent with established Board doctrine not to assert jurisdiction in this case. Iwould accordingly dismiss the petition.