Moving Picture Projectionists Local No. 150

MOVING PICTURE PROJECTIONISTS 259 MOVING PICTURE PROJECTIONISTS LOCAL No. 150, I. A. T. S. E. and S0UTHSIDE THEATRES , INC., AND FANCHON & MARCO, INC. 21-CB- 442. July 21. 1954 Decision and Order On March 15, 1954, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Southside, Baldwin, and Paramount Hollywood theaters are pre- dominantly local enterprises, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel, the Re- spondent, and the Employers filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recomn-len- ratjou,of the Trial Examiner. [The Board dismissed the complaint.] MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Intermediate Report and Recommended Order This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, herein called the Act, was heard before the undersigned Trial Ex- aminer at Los Angeles, California, on February 4, 5, and 8, 1954,' pursuant to due notice to, all parties. It involves the operation of 8 motion picture theaters located in the city of Los Angeles, California, and since I find merit in the Respondent's position on jurisdiction, I shall not, unless the case is remanded to me for further findings, enumerate nor discuss the substantive issues of the case other than to note their general character. Of the theaters involved, the Baldwin is owned by Fanchon & Marco, Inc., a California corporation; the Paramount Hollywood by Paramount Hollywood Theater Corporation, a Delaware corporation; and the remaining six by Southside Theaters, Inc., a California corporation. The substantive issues of the case arise from a bargaining contract negotiated by the Respondent Union covering a unit composed of all projectionists employed by these eight theaters.' It is the General Counsel's position, as I understand it, that the said employees of the eight theaters comprise a single appropriate unit, and that whether the unit be considered a single or multiemployer unit, jurisdiction is established by the interstate operations of Fanchon & Marco, Inc. The stockholders of Fanchon & Marco, Inc., are the Marco Wolff family, who own 60 percent of the stock, and the Harry C. Arthur family, who own 40 percent. Arthur is the corporation's president and Wolff its vice-president. Its principal or 1 The hearing at its opening on July 27, 1953, was presided over by Tiial Examiner Howard Myers who on joint motion of the parties adjourned it on that date to October 26, 1953 Various subsequent continuances were granted 'There were actually eight contracts but all were negotiated and signed by the same parties and all had identical substantive provisions 109 NLRB No. 48. 314811 -33-vol 109-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home office is in Los Angeles, California' The only theater both owned and operated by Fanchon & Marco, Inc., is the Baldwin . Fanchon & Marco, Inc., owns 50 percent of the stock of the Paramount Hollywood Theater Corporation , and supervises the operation of the latter corporation's Paramount Hollywood theater . The Paramount Hollywood is the only theater owned by the Delaware corporation. In addition to its California theater interests , however, Fanchon & Marco, Inc., through wholly or par- tially owned subsidiary corporations in Missouri , controls the operation of a system of some 30 motion picture theaters in Missouri and Illinois , and through its wholly owned subsidiary , F & M Stage Shows, Inc., a New York corporation , is engaged in the booking of stage shows in the Middle West and Eastern United States and -Canada. There is hardly a question that Fanchon & Marco , Inc., is engaged in commerce within the meaning of the Act. From its wholly owned subsidiary , F & M Stage Shows, it has a gross annual revenue of from $250,000 to $500,000 , derived from the booking of stage shows in the East , Middle West, and Canada. The gross revenue of all the theater interests controlled by it, directly or indirectly, and of enterprises ,controlled by the Wolff and Arthur families, was estimated by Marco Wolff to be approximately $6,500,000 to $7,000,000 a year, and the total expenditures on film rentals in the operation of these enterprises , to be from $2,500,000 to $3,000,000 an- nually. The gross annual revenue derived from the Missouri operations alone was estimated to be approximately $4,000,000 a year, of which amount approximately $300,000 was derived from motion picture theaters located in the State of Illinois. Films used in these theaters are exclusively of out -of-State origin and the substan- tiality of the shipments in interstate commerce is reasonably inferred . These ship- ments together with the movement of stage shows across State lines, alone are suf- ficient to establish the multistate character of the operations of Fanchon & Marco, Inc., and the substantiality of its interstate transactions . I find it unnecessary there- fore to describe in detail the nexus of wholly and partially owned subsidiaries and interlocking directorates which comprise the enterprises under its control. These conclusions do not, however , in my opinion dispose of the problem at hand , for if we are to have proper regard for the realities of the situation , we still must consider to what extent, if any, the operations of Southside and the Baldwin and Paramount Hollywood theaters, are integrated in the complex of the Fanchon & Marco, Inc., system, since-if I understand current and prevailing policies-the Board will not as- sert jurisdiction over what is substantially a local enterprise merely because its owner- ship is linked with or related to that of similar enterprises in other States . In short, a showing of common control and interlocking directorates is not enough' We turn therefore to The control and operation of the eight California theaters which are involved in this proceeding. Southside Theaters , Inc., a California corporation , is owned by the Marco Wolff family. The treasurer and general manager of Southside is Roy Wolff, a brother to Marco Wolff. He is not an officer of Fanchon & Marco , Inc. Under him is a district manager. Roy Wolff has general supervision of these theaters and their employees, though each of the six theaters in this group ' has its own manager, who has authority to hire and presumably to discharge and immediate supervision over employees. None of Southside 's income is received by Fanchon & Marco, Inc. Its records are kept in a backstage office at the Paramount Hollywood theater, but separate personnel is in physical charge of these records and the keeping of its books. Roy Wolff appears to be in charge of booking films into Southside theaters and he also assists in booking films into the Baldwin and Paramount Hollywood theaters. Fanchon & Marco , Inc., pays Southside for administrative services rendered the Baldwin theater presumably through Roy Wolff, Southside's treasurer, and Joe Sinay, district manager. Film bookings for Southside are negotiated with film exchanges located in the city of Los Angeles . The films are obtained directly from the local exchanges which inspect the prints before delivering them to the theaters for exhibi- tion. Payment for rental of films is made directly by Southside to the local film exchange Contracts for the rental of films are negotiated not on a group but on an individual theater basis . After the pictures have been exhibited , the films are returned to the local exchange by means of a local commercial film delivery service 3Accoiding to Marco Wolff, it also maintains a New York office and some business of the coi poration and its subsidiaries is transacted there, but both Wolff and Arthur have their offices in Los Angeles 4 Toledo Seratice Parking Co'npan y, 96 NLRB 263; Consolidated Gas Coinpaiiji of Rai.anrnali, 107 NLRB 148 6 There is a total of 8 theaters owned and operated in Los Angeles by Southside, but only 6 are involved here MOVING PICTURE PROJECTIONISTS • 261 maintained by the exchanges On occasion, if there is a shortage of prints in the local exchange, a print may be mailed from another State directly to the exhibiting theater, or a film being previewed in another State may, on occasion, be mailed directly to the exhibiting theater. This however, would be the case with any locally owned and operated motion picture theater. Most or all of the leading film com- panies maintain business offices in New York and all lease arrangements for the exhibition of motion pictures made with the local exchanges are subject to approval of the New York offices. This again, would be true in the case of any motion picture theater. Such factors, alone, obviously do not justify the assertion of jurisdiction. There is no evidence that any of the stage shows of F & M Stage Shows, Inc., wholly owned subsidiary of Fanchon & Marco, Inc., are currently or prospectively booked into any of the Southside theaters or any other California theater owned and/or operated by Fanchon & Marco, Inc. There is, in short, no showing of either goods or services moving in interstate commerce with respect to the operation of Southside theaters which would distinguish the operation of these theaters from theaters of purely local control. The gross annual revenue derived from Southside was estimated by Marco Wolff to be approximately $500,000 The same factors descriptive of the operation of the Southside group, apply gen- erally to the operation of the Baldwin and Paramount Hollywood theaters. As previously stated, Fanchon & Marco, Inc , owns 50 percent of the stock of the Paramount Hollywood Theater Corporation, and by contract with that corporation supervises the operation of its Paramount Hollywood theater. While certain officers of Fanchon & Marco, Inc., participate in the supervision and administration of theaters other than the Paramount Hollywood, the corporation as such does not. The payroll of the Paramount Hollywood is maintained separately and its expense borne from funds belonging to Paramount Hollywood. The Baldwin, the only theater both owned and operated by Fanchon & Marco, Inc , is the only theater whose admission fees belong to the corporation and the only theater for whose expenses the corporation is directly and solely responsible. Its films are booked through the local exchanges in precisely the same manner as obtains at the Southside and Paramount Hollywood theaters. The significant facts about all eight theaters involved in this proceeding, are that they receive no services from the Fanchon & Marco, Inc., enterprises located outside the State of California; there is no exchange of personnel; their films are booked locally and on an individual theater basis; and while films are occasionally shipped to them directly from out-of-the-State sources, there is no showing as to the frequency of such shipments or the dollar value involved in them. It is also clear that Harry C. Arthur and relatives are primarily charged with the administration of the Missouri subsidiaries of Fanchon & Marco, Inc., whereas the Marco Wolff family directs the administration of the California theaters involved herein 6 This is necessarily true with respect to Southside because neither Fanchon & Marco, Inc , as a corporation, nor the Harry C. Arthur family, are shown to have any financial involvement in the ownership and operation of this group of eight theaters, it is further shown with respect to the entire group of theaters involved herein, by the fact that the bargaining contract covering the projectionists of these theaters was executed on behalf of the employer-or employers, as the case may be-by Roy Wolff after consultation with Marco Wolff. Granting that the Arthur and Wolff families determine the ultimate policies governing all theaters in the system, there is no showing of a uniform policy with respect to the booking of films, the operations of theaters, or labor relations covering the entire system. The facts developed in this record show that the South- side, Baldwin, and Paramount Hollywood theaters were handled as a group with respect to collective bargaining, without reference to any other theaters in the Fanchon & Marco, Inc, system, and while I agree with the General Counsel's posi- tion that the projectionists employed by these theaters constitute a single appropriate unit,7 in my opinion there is no showing of operational integration of these California B The Missouri and Illinois enterprises of Fanchon & Marco, Inc , ate controlled and administered through the Fanchon & Marco Service Corporation, a \tissouil corporation and wholly owned subsidiary, with offices in St Louis Edward B Arthur, with offices in St Louis, is the general manager of the Service Corporation, and directs its day-to-day operations subject to the general supervision of Harry C Arthur The latter was described by witness Edward Al Murphy, ti easurer of Fanchon & Marco, Inc, as "the ton man in the operation of the policies of those theaters and their bookings and oper- ations " The Service Corporation, on the other hand, has no part whatever in the control and operation of the California theaters involved herein 7 N L R B v Stoice Spinning Company, 336 U S 226 , N L R B v Soniei set Classws, 193 F 2c1 613: N L R B. v National Shoes, Inc , 208 F 2d 688 (C A 2). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARDS theaters in the Fanchon & Marco, Inc., enterprises as a whole which would justify the assertion of the Board's jurisdiction, such as was the case in Balaban cC Katz, 87 NLRB 1071, or a showing of goods and services actually passing in interstate com- merce such as obtained in Gamble Enterprises, Inc, 345 U S 117. In fact I am unable to find any evidence in this record upon which to base a conclusion that a labor dispute involving the eight California theaters would have any effect whatever on the operation of F & M Stage Shows , Inc., wholly owned subsidiary of Fanchon & Marco, Inc., or on the corporation 's holdings in Missouri and Illinois. It is argued that a labor dispute arising in the California theaters might spread to out-of-the-State enterprises controlled by Fanchon & Marco, Inc., and be abetted by action taken by the same affiliated or sympathetic labor organizations with respect to, such out-of-the-State enterprises , but this is a potential that exists with respect to, any employer who has a partial or controlling interest in enterprises in more than one State, and I do not see what significant bearing it has in determining whether a given. operation is predominately local or interstate in character. Upon this record as a whole I conclude that the Southside , Baldwin, and Para- mount Hollywood theaters are predominantly local enterprises ; that there is no show- ing upon which to base a reasonable inference that a labor dispute involving them. would affect interstate commerce to a substantial degree; and that the Board, as s- matter of practical administration of the Act, should not assert its jurisdiction. Ac-- cordingly, I recommend the dismissal of the complaint. Appendix FANCHON AND MARCO , INC., SUBSIDIARIES AND ASSOCIATED COMPANIES THROUGH- COMMON STOCK OWNERSHIP AND MANAGEMENT Fanchon & Marco, Inc., a California corporation , operating Baldwin Theatre. Partmar Corporation, a California corporation, owned 100 % by Fanchon &_ Marco, Inc. Paramount Hollywood Theatre Corporation, a Delaware corporation owned 50% by Fanchon & Marco, Inc. Eden Theatre Company, a Missouri corporation owned 100 % by Fanchon & Marco, Inc. Fanchon & Marco Service Corporation , a Missouri corporation owned 100% by Fanchon & Marco, Inc. Fanchon & Marco Enterprises, Inc., a Missouri corporation owned 100% by Fanchon & Marco, Inc. St Louis Ambassador Theatre, Inc., a Missouri corporation owned 100% by Fanchon & Marco, Inc. St. Louis Missouri Theatre, Inc., a Missouri corporation owned 100 % by Fanchon & Marco, Inc. Theatre Parking , Inc., a Missouri corporation owned 100 % by Fanchon & Marco, Inc. Towne, Inc., a Missouri corporation owned 100% by Fanchon & Marco, Inc. Missouri Amusement Company, a Missouri corporation owned 100% by Fanchon & Marco, Inc. F. & M. Stageshows , Inc., a New York corporation owned 100% by Fanchon & Marco, Inc. Crest Amusement Co., owned 100% by Fanchon & Marco Service Corporation. Grandel Theatre Company, a Missouri corporation owned 100% by Eden Theatre Company. St. Louis Amusement Company, owned over 43 % by Fanchon & Marco Enter- prises, Inc ; owned over 50% by Ambassador Investment Corporation. Camelot Farms , Inc., a New York corporation owned 100 % by Fanchon & Marco, Inc. South Side Theatres , Inc , a California corporation. Cabart Theatres Corporation , a California corporation. Cabart Service Corporation, a California corporation owned 100 % by Cabart Theatres Corporation. Broadway Theatre Company of Santa Ana , Inc., a California corporation owned 100% by Cabart Theatres Corporation. Santa Ana Theatres, inc., a California corporation owned 51 % by Cabart Theatres Corporation. Ambassador Investment Corporation (Fanchon & Marco Service Corporation has. purch-tsed all of the common stock of Ambassador Investment Corporation)