Sack Cinema at Assembly Square

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Saxon Theatre Corp. of Boston d/b/a Sack Cinema operating hours are I p.m. to midnight, sometimes at Assembly Square and Local 182, Internation- with extra midnight shows on the weekends. The al Alliance of Theatrical Stage Employees and theater has a manager who is assisted by three as- Moving Picture Machine Operators of the U.S. sistant managers. The theater also employs 50 to 60 & Canada, AFL-CIO, Petitioner. Case 1-RC- service employees who sell tickets, refreshments, and perform the various ushering and cleanup November 11, 1981 functions. The Employer currently employs only the two DECISION AND DIRECTION OF aforementioned projectionists. They are responsible ELECTION for threading the films on the projection equipment and for monitoring and maintaining that equipment. ZIMMERBY MEMBERS FANNING, JENKINS, The Commonwealth of Massachusetts requires that all projectionists working in commercial movie the- Upon a petition duly filed under Section 9(c) of aters obtain a license by passing a combined writ- the National Labor Relations Act, as amended, a ten and physical examination. The projectionists hearing was held on July 6, 8, 9, and 10, 1981, work in a projection booth which is a large room before Hearing Officer Wendy M. Bittner. Thereaf- with two desks. The booth is kept locked when not ter, pursuant to Section 102.67 of the National in operation and only the manager has a key. Labor Relations Board Rules and Regulations, Giampietro has worked for the Employer at Series 8, as amended, the Regional Director for other theaters for 7-1/2 years. Solomon is a new Region I transferred this proceeding to the Nation- employee. Giampietro works a half day on al Labor Relations Board for decision. The Em- Wednesday and all day on Thursday, Friday, and ployer and the Petitioner have both filed briefs. Saturday. Solomon works a half day on Wednes- Pursuant to the provisions of Section 3(b) of the day and all day on Sunday, Monday, and Tuesday. National Labor Relations Act, as amended, the Na- Thus, they are never present at the same time. tional Labor Relations Board has delegated its au- Both are hourly employees. Both are listed on the thority in this proceeding to a three-member panel. Employer's payroll printouts as merely "projec- The Board has reviewed the Hearing Officer's tionists." Both fill out timesheets which are re- rulings made at the hearing and finds they are free viewed for accuracy by the management and sub- from prejudicial error. They are hereby affirmed. mitted to the Employer's main offices. The projec- On the entire record in this proceeding, includ- tionists receive their paychecks directly from the ing the briefs, the Board finds: manager. Both projectionists perform identical 1. The parties stipulated and we find that the functions in the operation of the projection equip- Employer is engaged in commerce within the ment. Giampietro has no special responsibilities and meaning of the Act and it will effectuate the pur- has no special title. The projectionists are both re- poses of the Act to assert jurisdiction herein. quired to fill out the projection booth report form 2. The Petitioner is a labor organization claiming in the same manner and sign it as "operators" and to represent certain employees of the Employer. Giampietro's role with respect to these reports is 3. A question affecting commerce exists concern- indistinguishable from Solomon's. Both projection- ing the representation of employees of the Employ- ists share the use of two desks in the booth. er within the meaning of Sections 9(c)(1) and 2(6) The Employer's memorandums of policy go to and (7) of the Act. the manager and not to Giampietro. Giampietro 4. The petition filed sought a unit of all full-time does not attend management meetings. The Em- and regular part-time projectionists at the Employ- ployer provides an extensive film and sound pres- er's movie theater. The Union contends that the entation course for managers and assistant manag- proposed bargaining unit is comprised of two em- ers. Giampietro was not invited to attend this ployees, George Giampietro and Philip Solomon. course. Only the manager has the authority to call The Employer contends that Giampietro is a super- in a service technician to repair the projection visor within the meaning of Section 2(11) of the equipment. Act and that the proposed unit is therefore inap- With respect to the scheduling of hours of work propriate because it is comprised of only one em- for projectionists, Giampietro has no special au- ployee. Thus, the sole issue in this proceeding is thority. Giampietro and Solomon mutually agree whether Giampietro is a supervisor. on an acceptable schedule. If there is a change in The theater which was opened on June 12, 1981, the normal schedule, the projectionists will first has eight screens and normally shows eight differ- inform the manager. If either projectionist is going ent movies to eight separate audiences. The normal to be absent from work, he will request the other 259 NLRB No. 46 SACK CINEMA AT ASSEMBLY SQUARE 373 to cover his shift or he will find another replace- possesses any of the above indicia of supervisory ment. authority. With the exception of the first week that Giampietro is not responsible for performing the theater was open, the two employees never evaluations of Solomon. There is no evidence that work at the same time. Giampietro is an hourly he has ever adjusted grievances, or meted out dis- employee, receives overtime, and exercises no spe- cipline with respect to Solomon. cial management privileges. The Employer has pre- Prior to the opening of the theater, Giampietro sented no documentary evidence from its records was asked by management whether he knew a to indicate that he is a supervisor. skilled person who might want to work as a pro- The lynchpin of the Employer's claim that jectionist at the theater. Giampietro informed man- Giampietro is a supervisor is its contention that he agement that he had a friend who was interested, had the power to hire and actually hired Solomon. and Giampietro suggested Solomon. Giampietro's We find that, in referring Solomon, Giampietro knowledge of Solomon and his qualifications result- functioned only as a skilled craftsman with knowl- ed from his friendship with Solomon as part of a edge of a pool of qualified applicants and that his small group of projectionists and film buffs that role was not that of a supervisor invested with the normally make themselves aware of job openings authority of management to hire.' in the industry. With respect to Solomon's hourly wage, Giampietro did not initiate any suggestions so r and properly belongs within the unit. Accord- or recommendations with respect to his pay scale. sor and properly belongs within the unit Accord- When asked what he thought Solomon's wage ingly, we shall direct an election among the em- should be, he declined to make a suggestion. ployees in the following appropriate unit, as re- In light of the record herein we are not persuad- quested ed that Giampietro is a supervisor. Section 2(11) of All full-time and regular part-time projec- the Act defines a supervisor as: tionists employed at the Employer's Assembly . . . any individual having authority, in the in- Square Cinema, Somerville, Massachusetts but terest of the employer, to hire, transfer, sus- excluding all other employees, guards and su- pend, lay off, recall, promote, discharge, pervisors as defined in the Act. assign, reward, or discipline other employees, [Direction of Election and Excelsior footnote or responsibly to direct them, or to adjust omitted from publication.] their grievances, or effectively to recommend such action, if in connection with the forego- ing the exercise of such authority is not of a merely routine or clerical nature, but requires Circle Resorts Inc. d/b/a Circus Circus, 244 NLRB 880, 882 (1979), the use of independent judgment. enfd. in pertinent part 646 F.2d 403 (9th Cir. 1981); Advance Envelope Manufacturing Company, Inc., 170 NLRB 1459, 1465 (1968); Southern Bleaching A Print Works, 115 NLRB 787, 790-791 (1956). The Employer The record reveals Giampietro is merely the Em- contends that Giampietro is a supervisor because he was a supervisor at ployer's most experienced projectionist. His daily its Natick theater and his duties at the Somerville theater have remained operational routine is identical to that of the other the same. However his duties at Natick may be characterized, we find that it has not been established that Giampietro possesses supervisory au- projectionist. It has not been established that he thority, or has excercised such authority, at Somerville.