Solis Theatre Corp.

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Solis Theatre Corp. & Interboro Circuit , Inc. and United Independent Theatre Employees Union. Case 2-CA-I 1 171 June 30, 1967 DECISION AND ORDER By MEMBERS BROWN,JENKINS , AND ZAGORIA Upon a charge filed by United Independent Theatre Employees Union, herein called Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, is- sued a complaint, dated January 30, 1967, against Solis Theatre Corp., herein called Respondent Solis, and Interboro Circuit, Inc., herein called Respondent Interboro, and both of said Respond- ents at times collectively called Respondent Em- ployers, alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the Respondents. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about September 20, 1966, the Union was certified by the Regional Director for Region 2 as the exclusive bargaining representative of the Respondent Em- ployers' employees in the unit found appropriate,' and that since on or about November 11, 1966, the Respondent Employers have refused and are refus- ing to recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested and is requesting them to do so. On March 21, 1967, the Respondent Employers filed their answer, admitting in part, and denying in part, the allegations of the complaint and requesting that the complaint be dismissed. The General Counsel filed a motion for summary judgment and a petition in support of his motion, and, on April 7, 1967, the Regional Director issued an order referring the motion and petition to the Na- tional Labor Relations Board. The General Coun- sel alleges that no factual issues have been raised that have not been litigated in the representation proceeding2 and requesting, in view of the admis- sions contained in the Respondent Employers' answer, that the Board enter judgment against Respondent Employers on the pleadings, making findings of fact as alleged and admitted in the answer, and concluding that, as a matter of law, the Respondent has violated Section 8(a)(1) and (5) of the Act as alleged in the complaint, and order an ap- propriate remedy therefor. Thereafter, on April 14, ' Decision and Certification of Representatise in Case 2-RC-14387, not published in NLRB volumes Case 2-RC-14387, not published in NLRB volumes 1967, the Board issued an order transferring proceeding to the Board and a notice to show cause why summary judgment should not be granted. On May 9, 1967, the Respondent Employers filed a memorandum opposing motion for summary judgment. The Respondent Employers also filed a cross-motion to transfer the case to a Trial Ex- aminer for a hearing on the complaint and answer. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. Ruling on the Motion for Summary Judgment The record before us establishes that on August 16, 1966, the Regional Director for Region 2 issued a Decision and Direction of Election in Case 2-RC-14387, in which a description of the ap- propriate unit of the Respondents' employees was set forth as: All regular and part-time doormen, cashiers, ushers, and matrons employed at the Em- ployer's Freeman Theatre located at 1248 Southern Boulevard, Bronx, New York, ex- cluding all other employees, guards, watchmen, and supervisors as defined in the Act. On August 25, 1966, the Respondents filed a request for review, in the form of a brief, of the Re- gional Director's Decision and Direction of Elec- tion in Case 2-RC-14387 On September 9, 1966, the Board denied Respondents' request for review of the Regional Director's Decision and Direction of Election. On September 12, 1966, a majority of the employees of the Respondents. in the above-noted unit, by secret-ballot election, selected the Union as their representative for the purpose of collective bargain- ing with Respondents. Accordingly. on September 20, 1966. the Regional Director certified the Union as the exclusive bargaining representative of the Respondents' employees in the appropriate unit. In the memorandum opposing motion for summa- ry judgment, the Respondents do not claim that the Union did not request recognition as the certified representative of the Respondents' employees in the appropriate unit. Nor do the Respondents deny that they declined to recognize the Union. The Respondents' memorandum in opposition makes it clear that they are seeking only to relitigate matters decided by the Board in prior representation proceedings, claiming that the unit found is inap- propriate and the Union is not a labor organization within the meaning of the Act. As an affirmative defense to bargaining, the Respondents claim that the Union practices discrimination on the basis of national origin and thereby such certification effects a violation of chapter VII of the Civil Rights Act of 1964, and that because of said discrimination, the requirement that they bargain with the Union would 166 NLRB No.51 SOLIS THEATRE CORP. 573 subject them to violations of the Civil Rights statute. In the absence of newly discovered or previously unavailable evidence, issues which were or could have been raised in a related representation proceeding may not be relitigated in an unfair labor practice proceeding.' Admittedly, the issues which Respondents seek to raise in the instant proceeding relate to the cor- rectness of the Board's disposition of the Respond- ents' appeals regarding the appropriateness of the unit and whether the Union is a labor organization within the meaning of the Act, in the prior represen- tation proceeding.4 However, it is plain that the por- tion of Respondents' affirmative defense not litigated in Case 2-RC-14387. at this time, raises no material issue of fact which affects the validity of the certification issued therein, and hence no further hearing is warranted in connection therewith. Furthermore, there is no allegation that special circumstances exist herein which require the Board to reexamine the determinations which it made in the representation proceeding6 Inasmuch as the Respondent has previously raised all material issues. there is no new issue which is properly triable in the instant unfair labor practice proceeding. All material issues thus having been decided by the Board or admitted in the answer to the com- plaint, there are no matters requiring a hearing be- fore a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before it. the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondents Solis and Interboro are and have been at all times material herein corporations duly organized under, and existing by virtue of, the laws of the State of New York. Respondent Solis is and has been at all times material a wholly owned sub- sidiary of Respondent Interboro. Respondent Inter- boro is and has been at all times material continu- ously engaged in the ownership, operation, and con- trol of a theatre circuit, encompassing 14 corpora- tions, of which each of 13 corporations, including Respondent Solis, operates a single moving picture theatre and 1 corporation operates two moving pic- ture theatres. Respondent Solis is engaged in 3 Pittsburgh Plate Glass Co v. N.L.R B., 313 U S 146; Metropolitan Lye Insurance Company, 163 NLRB 579; Collins & Atkman Corpora- tion , 160 NLRB 1750; United States Rubber Company, 155 NLRB 1298 Case 2-RC-14387 See, e.g , South Boulevard Theatre, Inc. and Interboro Circuit, Inc Case 2-RC-14453, not published in NLRB volumes. fi Respondents ' counsel offered as Exh. A in the cross-motion, a deci- sion of the New York State Department of Labor, Unemployment In- surance Referee Section, in Matter of Dorothy Leavy v. Midland Theatre operating the Freeman Theatre in the Bronx, New York. Respondent Solis and Respondent Interboro are related businesses with common officers, ownership, directors, and operators and constitute a single integrated business enterprise; the directors and operators formulate and administer a common labor policy affecting the employees of ;aid compa- nies. During the past year the Respondent Em- ployers derived gross revenues from their opera- tions in excess of $3,000,000; and during the same period, Respondent Employers paid more than $50,000 for rentals of films which were shipped directly to their places of business from sources outside the State of New York. We find that Respondent Employers are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Independent Theatre Employees Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein the following em- ployees of the Respondents have constituted a unit appropriate for collective bargaining within the meaning of the Act: All regular and part-time doormen, cashiers, ushers, and matrons employed at the Freeman Theatre, exclusive of all other employees, guards, watchmen, and all supervisors as defined in the Act. 2. The certification On September 12, 1966, a majority of the em- ployees in the Freeman Theatre, in the unit described above, in a secret election conducted under the supervision of the Regional Director for Region 2, designated the Union as their representa- tive for the purposes of collective bargaining with Respondent Employers; and on September 20, 1966, the Regional Director for Region 2 certified the Union as the collective-bargaining representa- Corp. (unreported and unpublished) dated June 27, 1966, which decision involved alleged "palming," that is, a wrongful act whereby the doorman does not tear up the ticket of an incoming patron, but instead delivers it in- tact to the cashier who then resells it to another patron Although this decision was not available to the Respondent at the time of the hearings in the representation proceedings , the argument that the cashiers and door- men should not be included in the same unit because this might encourage acts of larceny was set forth and rejected. The decision offered as Exh A does not change our conclusion in this matter 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondents' Refusal On or about October 28, 1966, the Union requested the Respondent Employers to bargain collectively with it as the exclusive collective-bar- gaining representative of all employees in the above-described unit. Commencing on or about November 11, 1966, and continuing to date, the Respondents did refuse and continue to refuse to bargain collectively with the Union as the exclusive bargaining representative of all employees in the said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondents in the appropriate unit described above, and that the Union at all times since September 20, 1966, has been and now is the exclusive bargaining represent- ative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act, and that Respondents have, since November 11, 1966, refused to bargain collectively with the Union as the exclusive bargaining representative of their em- ployees in the appropriate unit. By such refusal, we hold that the respondents have engaged in and are engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondents, set forth in section III, above, occurring in connection with their operations as described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. REMEDY Having found that the Respondents have engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that they cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Solis Theatre Corp. and Interboro Circuit, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Independent Theatre Employees Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular and part-time doormen, cashiers, ushers, and matrons employed at the Freeman Theatre, exclusive of all other employees, guards, watchmen, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On September 20, 1966, and at all times thereafter, the above-named labor organization has been and is the certified and exclusive representa- tive of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 11, 1966, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the em- ployees of the Respondents in the appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- ents, Solis Theatre Corp. & Interboro Circuit, Inc., Bronx , New York, their officers , agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of em- ployment, with United Independent Theatre Em- ployees Union, as the exclusive and duly certified bargaining representative of their employees in the following appropriate unit: All part-time doormen , cashiers , ushers, and matrons employed at the Employers ' Freeman Theatre located at 1248 Southern Boulevard, Bronx, New York, excluding all other employees, guards, watchmen , and supervisors as defined in the Act. (b) In any like or related manner interfering with the right of the above -named labor organization to bargain as the exclusive representative of the em- ployees in the aforesaid appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an un- SOLIS THEATRE CORP. 575 derstanding is reached , embody such understanding in a signed agreement. (b) Post at the Freeman Theatre, Bronx, New York, copies of the attached notice marked "Appen- dix."' Copies of said notice , to be furnished by the Regional Director for Region 2, after being duly signed by the Respondents ' representative, shall be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps ,shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with the right of the above-named labor organization to bargain as the exclusive representative of the employees in the ap- propriate unit. WE WILL, upon request, bargain with the above-named Union as the exclusive represent- ative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All regular and part-time doormen, cashiers, ushers, and matrons employed at the Employer's Freeman Theatre located at 1248 Southern Boulevard, Bronx, New York, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. SOLIS THEATRE CORP. INTERBORO CIRCUIT, INC. (Employer) APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with United Independent Theatre Employees Union as the exclusive representative of the Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 5th Floor , Squibb Build- ing, 745 Fifth Avenue , New York, New York 10022, Telephone 751-5500.