Malco Theatres, Inc.

MALCO THEATRES, INC. 81 Mateo Theatres, Inc. and Theatre Services Associa- tion, Petitioner. Case 26-RC-5073 January 9, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on September 5, 1975, before Hear- ing Officer Michael B. McReynolds of the National Labor Relations Board. Following the close of the hearing the Acting Regional Director for Region 26 transferred this case to the Board for decision. There- after Employer and Petitioner resubmitted to the Board copies of their respective briefs which each had filed with the Regional Director.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they-are free from prejudicial error. They are hereby affirmed. Upon the `entire record in this proceeding, the Board finds: 1. Malco Theatres, Inc., is an Arkansas corpora- tion which owns and operates in Memphis, Tennes- see, the Malco Theatre, the Crosstown Theatre, and the Malco Quartet. Cinema Amusement, a Tennessee corporation, owns two drive-in theatres in the Mem- phis area, the Southwest Twin and Bellevue Drive-In. Volunteer Bowling Lanes, Inc., a Tennessee corpora- tion, owns the Summer Drive-In Theatre; Frayser Drive-In, Inc., another Tennessee corporation, owns the Frayser Drive-In Theatre; and Shelby Amuse- ment Company, a Tennessee partnership, owns the Memphian Theatre, all of which theatres are located in the Memphis metropolitan area. Malco Theatres, Inc., manages all eight theatres and controls their op- erations and policies, including their labor relations policies. The eight theatres comprise what is known as the Malco Circuit. All parties agree, and we find, that the partnership and corporations which own the eight theatres comprising the Malco Circuit consti- tute a single integrated employer, hereinafter the Em- 1 Local 144 of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL- CIO-CLC, herein called the Intervenor, intervened in this proceeding on the basis of various contracts that it had or has with the Employer Al- though the Intervenor submitted no brief directly to the Board, its brief to the Regional Director is part of the record in this case and has been exam- ined by us. ployer. During the 12 months preceding the hearing the Employer had gross revenues in excess of $500,000 and made purchases from outside the State of Tennessee in excess of $50,000. We find, therefore, that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert juris- diction herein. 2. Petitioner is an organization in which employ- ees participate and which exists for the purpose of dealing with employers concerning wages, hours, and other terms and conditions of employment. We find, therefore, that Petitioner is a labor organization with- in the meaning of the Act.2 The parties stipulated, and we find, that Intervenor is a labor organization. The labor organizations in- volved seek to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks a unit of all full-time and regu- lar relief projectionists at five of the eight theatres in the Malco Circuit: the Summer Drive-In, the South- west Twin Drive-In, the Bellevue Drive-In, the'Mal- co Quartet, and the Frayser Drive-In theatres. In- tervenor and Employer agree that a unit of full-time and regular relief projectionists is appropriate but contend that the unit should include all eight theatres within the Malco circuit. In determining whether a particular group of em- ployees constitutes an appropriate unit for bargain- ing where an employer operates a number of facili- ties, the Board considers such factors as prior bargaining history, centralization of management, managerial responsibility at each location, differ- ences or similarities in skills and functions of em- ployees, extent of employee interchange, geographi- cal proximity of the facilities in relation to each other, the general working conditions and fringe ben- efits, and whether the employees in the petitioned-for unit constitute a homogeneous and identifiable group.' Here, the expired agreements between Employer and Intervenor which covered the employees in the five theatres sought were virtually identical in their 2 The record reveals and Petitioner admits that Frank C. Warner, Petitioner's secretary-treasurer and its assistant business agent, is the owner of a movie theatre which at the time of the hearing was scheduled to open on October 17, 1975. This theatre will compete with theatres whose employ- ees Petitioner seeks to represent. We have been administratively advised that Warner has resigned his positions and membership in Petitioner. We therefore find no impediment to the certification of Petitioner as representa- tive of Employer's employees should Petitioner receive a majority of the valid ballots cast in the election directed below. 3 See, e.g, Haag Drug Company, Incorporated, 169 NLRB 877, 877-878 (1968) 222 NLRB No. 16 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage and benefit provisions to the agreements which covered Employer's remaining theatres. Bobby W. McKinney, district manager of Malco Theatres, Inc., the supervisor of the theatres in the unit sought, also acts as supervisor for the remaining theatres. All of the theatres in the circuit are subject to his close su- pervision which includes visits at least once a week and sometimes as often as four times a week. The managers of all theatres report directly to McKinney. The operating policies which cover the theatres in the unit sought govern the remaining theatres as well and may not be deviated from by any of the theatres. Employees transferring to any other theatre in the circuit, including those not included in the sought- after unit, retain their accrued benefits. Projectionists for all theatres are interchanged between all theatres. Finally, all theatres are located within the metropoli- tan Memphis area. It is true that the collective-bargaining agreements at the five theatres had a common expiration date of July 1, 1975, and that the date differs from the expi- ration dates of the contracts at the remaining three theatres. However, this one factor does not warrant a finding that the five-theatre unit is appropriate. Since the five theatres share centralized control, virtually identical wages and benefits, employee interchange, and close geographic proximity to the remaining the- atres in the Malco Circuit, we find that a unit limited to the five theatres would be inappropriate for collec- tive-bargaining purposes. We further find that the appropriate multilocation unit should include all of the theatres.4 However, because the Malco Theatre at Main and Beale Streets is covered by a collective- bargaining agreement between the Employer and the Intervenor' which now constitutes a bar to an elec- tion in this theatre, we shall exclude said theatre from the unit.' Accordingly, we find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(c) of the Act: All full-time and regular relief projectionists em- ployed by Malco Theatres, Inc., in its theatres in the metropolitan Memphis, Tennessee, area, ex- clusive of the employees of the Malco Theatre at Main and Beale Streets and excluding office clerical employees, all other employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] As the unit found appropriate is larger than that sought by the Peti- tioner, we direct the election subject to the Regional Director's ascertaining that the Petitioner has made an adequate showing of interest among the employees in the appropriate unit. This contract runs from April 4, 1975, to April 4, 1978. 6 Drexel Enterprises, Inc., 180 NLRB 475, In. 1 (1969). At the time the petition was filed two other theatres, the Crosstown and the Memphian, were each covered by collective-bargaining agreements . These contracts ran from December 1, 1971, to December I, 1975. Because a contract having a fixed term of more than 3 years operates as a bar only for as much of its term as does not exceed 3 years the contracts covering these theatres do not operate as a bar to elections at those theatres. General Cable Corporation, 139 NLRB 1123 (1962); General Dynamics Corporation, Convair Division, 175 NLRB 1035 (1969).