Local No. 246, Theatrical Stage Employees

LOCAL NO. 294, THEATRICAL STAGE EMPLOYEES 593 Local Union No. 294 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada and Lippert Theatres, and Stewart Simpson and Tomoko Simpson. Case AO-137 February 28, 1972 ADVISORY OPINION BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY The petition herein was filed on September 2, 1971, by Local Union No. 294 of the International Alliance of Theatrical Stage Employees and Moving Picture Op- erators of the United States and Canada, herein called the Petitioner, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, and Section 101.39 of the Board's Statement of Procedure to determine whether the Board would assert jurisdiction over Lippert Theatres, and Stewart and Tomoko Simpson, herein referred to individually by their respective names. In pertinent part, the petition alleges as follows: 1. There is pending before the Superior Court of the State of Arizona, in and for the County of Maricopa, an action under docket No. C-250089 filed by Stewart and Tomoko I. Simpson, husband and wife, seeking injunctive relief against certain picketing by the Peti- tioner herein. Lippert Theatres does not appear to be a party to this litigation. 2. By its petition, the Petitioner asserts that Stewart and Tomoko Simpson are operating a movie theatre in Phoenix, Arizona, known as Downtown Twin Cine- mas, pursuant to a sublease agreement with Downtown Cinema, an Arizona corporation. No commerce data has been submitted with respect to the operations of the Simpsons. The commerce data relating to the particu- lar movie theatre operated by the Simpsons' known as Downtown Twin Cinemas in Phoenix, Arizona, its gross income figures, and the amoung of operating ex- penses are not known to the Petitioner. According to the petition, an organization known as Affiliated Theatres, based in San Francisco, California, handles the "booking services" relative to the films which are to be shown at the Downtown Twin Cinemas. 3. Upon information and belief, the Petitioner asserts that Lippert Theatres, an organization based in San Francisco, California, is engaged in the general busi- ness of operating movie theatres in California and Arizona and elsewhere, and operates under the name of or through said Affiliated Theatres and Downtown Cinema, the sublessor of the Simpsons. The films shown in the Phoenix theatre come from Los Angeles. Documents submitted herein show that Lippert 195 NLRB No. 111 Theatres is merely the pseudonym of a group of organi- zations in which Robert L. Lippert, through a series of business arrangements, has some interest. The repre- sentative of Lippert Theatres alleges that it does not exist as a legal entity. 4. The total volume of business done by Lippert Theatres in these movie theatres is not known. The Petitioner alleges that commerce data is not available to Petitioner since Lippert Theatres maintains no office within the State of Arizona and apparently has not filed any such data with any public office in the State of Arizona. 5. Subsequently, on December 7, 1971, the Acting Regional Director for Region 28 of the Board, filed a motion to intervene setting forth certain jurisdictional information relating to the petition herein. This motion is hereby granted. 6. On December 16, 1971, the Lippert Theatre repre- sentative filed with the Regional Director a response to the motion to intervene denying the allegations con- tained in the petition and asserts that the Board does not have jurisdiction herein. 7. The court has made no finding with respect to commerce data. 8. There is an unfair labor practice proceeding in- volving the same labor dispute pending before the Board, Case 28-CA-2422. 9. Although served with a copy of the petition, no response as provided in the Board's Rules and Regula- tions has been filed by any of the parties. On the basis of the above, the Board is of the opinion that: 1. Stewart and Tomoko Simpson are operating a movie theatre in Phoenix, Arizona, known as Down- town Twin Cinemas, pursuant to a sublease agreement with Downtown Cinema, an Arizona corporation. 2. Lippert Theatres, a name utilized by different or- ganizational groups in which Robert L. Lippert is a participant is engaged in the general business of operat- ing movie theatres in California, Arizona, and else- where. 3. The Board's current standard for the assertion of jurisdiction over retail enterprises within its statutory jurisdiction is an annual gross volume of business of at least $500,000. Carolina Supplies and Cement Co., 122 NLRB 88, 89. The current standard for the assertion over nonretail enterprises within the Board's statutory jurisdiction requires an annual minimum of $50,000 out-of-state inflow or outflow, direct or indirect. Sie- mons Mailing Service, 122 NLRB 81, 85. 4. Because of the paucity of evidence with respect to the existence or character of the alleged legal entity known as Lippert Theatres, we are unable to make a meaningful judgment as to the applicable or jurisdic- tional standard to this intangible group of organiza- tions. As indicated, there has been no commerce data 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any kind presented with respect to the Simpson's operations involved herein. Finally, there is insufficient evidence presented, except for the sublease by Down- town Cinema, to show that Lippert Theatres, or any other employing entity, has any direct relationship to the operations of the Simpsons so as to establish that Lippert Theatres owns, controls, or operates the Downtown Twin Cinemas of the Simpsons. Accordingly, the parties are advised , pursuant to Section 102.103 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, that, upon the ` allegations submitted herein, the Board is unable to determine whether it would 'assert jurisdic- tion over the operations involved herein with respect to disputes cognizable under Sections 8, 9, and 10 of the Act.