A.B.C. Florida State Theatres, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 782 (N.L.R.B. 1975)

782 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
A.B.C. Florida State Theatres, Inc. and Local 646,
International Alliance of Theatrical Stage Employ-
ees & Motion Picture Machine Operators of the
U.S. & Canada, AFL-CIO. Case 12-CA-6678
November 26, 1975
,DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 19, 1975, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filedcross-exceptions and a-supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of- the exceptions and
briefs and -has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended'Order.1 -
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law " ' Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i In its cross-exceptions, Respondent excepts to the Administrative Law
Judge's denial of its motion to compel the' General Counsel to reimburse
Respondent for litigation costs. Respondent argues that the complaint was
frivolous and unfounded, and was issued only because of inadequate
investigation . We do not think the General Counsel's case is so clearly
lacking in merit that its prosecution could fairly be characterized as
frivolous.
DECISION
- STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This case,
heard at Miami, Florida, on June 24 and 25, 1975,1
pursuant to a complaint and notice of hearing issued May
9 (based upon an original charge filed February 27),
presents the question whether A.B.C. Florida State
Theatres, Inc. (herein the Respondent or Company)
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended (herein the Act), when it
refused to bargain with Local 646, International Alliance
of Theatrical Stage Employees & Motion Picture Machine
I All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated.
2 The four theatres are Florida I and II (Twin) Theatres located in
Operators of the U. S. & Canada, AFL-CIO (herein the
Union),. as collective-bargaining representative of a part-
time projectionist employed by the Company at a newly
acquired theatre. -
At the hearing, I granted-the Respondent's motion to
dismiss the complaint at the close of the presentation of the
General Counsel's case-in-chief. Such ruling was-grounded
upon the failure of the General Counsel's proof that there
were any, employees in the facility (theatre) sought to be
accreted who would properly fall Within the appropriate
bargaining unit.
Pursuant to Section 102.45(a) of the Board's Rules and
Regulations, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and Respondent's answer, as
amended, admits that at all times material Respondent has
been a Florida corporation engaged in the business of
providing management and/or operational services for
certain neighborhood theatres located in the State of
Florida which are owned by various separate but related
corporations; that Respondent and _ the said related
corporations constitute a'single-employer for jurisdictional
purposes; that said related corporations annually derive in
excess of $500,000 gross revenue from retail sales; and that
Respondent annually derives in excess of $50,000 in gross
revenues for supplying the services above stated.
Based upon all of the foregoing, I find that the
Respondent is an employer engaged, in commerce within
the meaning of Section 2(6) and (7) of the Act.
II, THE LABOR ORGANIZATION , INVOLVED
The complaint alleges, the answer admits, and I fmd that
at all times material the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record shows' that for some years prior to the events
giving rise to the issue in this case, the Respondent has
recognized the- Union as the collective-bargaining repre-
sentative of its nonsupervisory employees employed as
projectionists in the four theatres which it operates in
Broward County, Florida.2 The latest collective-bargaining
agreement entered into between the-parties was effective as
of September 17, 1972, to run until September 17, 1975,
according to its terms. The aforesaid contract contains a
so-called "accretion" clause which provides as follows:
23) Any theatres opened or acquired by Florida State
Theatres during the term of this agreement shall
be automatically covered thereunder. The rate of
pay shall not exceed the- rate of comparable
Hollywood, Florida; Coral Ridge and Plantation Theatre located in Fort
Lauderdale, Florida; and Ultra-Vision I and II (Twin) Theatres located in
Deerfield Beach , Florida.
221 NLRB No. 148
A.B,C. FLORIDA STATE THEATRES, INC.
Florida State Theatres under contract to the
Local desiring to represent the operator of the
additional theatre. In no event, shall the rate of
pay exceed the maximum rate provided for under
the agreement between Florida State Theatres
and the Local desiring to represent the theatre.
On or about December 20, 1974, Respondent formally
acquired the Reef Theatre located in Lauderdale Lakes
(Broward County), Florida. At all times material there
were five classifications of employees who worked at this
theatre: a manager - projectionist, a relief manager -
projectionist, a boxoffice clerk, a concessionaire, and a
ticket taker who doubled as an usher. It appears that the
employees who comprised the latter three categories are
teenagers , none of whom are over 18 years of age. It is
conceded that none of the teenagers performed duties
which would properly include them within the bargaining
unit described above, and it is further conceded in the
complaint that the manager - projectionist, Warren
Johnson, is a supervisor within the meaning of the Act, and
therefore excluded from the unit. However, as noted above,
the complaint proceeded on the theory that the relief
manager - projectionist was a nonsupervisory position
and therefore properly fell within the unit sought to be
accreted to the existing collective-bargaining unit.
In December, and again in January, the Union, by letter,
demanded recognition as the collective-bargaining repre-
sentative of the aforesaid nonsupervisory projectionist
employed at the Reef Theatre by virtue of the accretion to
the bargaining unit. By_ letter dated February 10, Respon-
dent refused to recognize the Union as the collective-
bargaining representative of said projectionist.
The record reflects that the projection equipment utilized
by the Respondent at the Reef Theatre is quite sophisticat-
ed and highly automated. Thus when the film to be shown
first arrives at the theatre, the manager - projectionist,
Johnson, and the relief manager - projectionist, Caneen,
prepare the program to be projected. This might take
several hours, but after the work is completed the
equipment takes over and no further manual work (other
than maintenance) is ordinarily required of either of the
two men . That is to say, the equipment turns down the
house lights, opens the curtain, and operates the machine
which projects the image upon the screen; at the close of
the show the equipment closes the screen and turns on the
house lights, all automatically. The record further shows
that although Johnson is denominated the manager and is
salaried while Caneen is denominated the relief manager
and is paid on an hourly basis, the two men divide their
time at the theatre. That is to say, one of them is rarely
present at the theatre while the other is on duty since,
following the preparation of the program to be projected,
as aforesaid, most of their duties are confined to making
3 Sec. 8(d) of the Act In oral argument, counsel for the General Counsel
indicated that the employees within the bargaining unit might be affected by
the Employer 's refusal to bargain with the Union pursuant to its contractual
obligation However, the complaint was not bottomed upon such a theory,
and there is no evidence in the record to support it
4 In view of the foregoing findings and conclusions , I need not and do
not reach the Respondent 's other affirmative defenses , including one which
states that "none of the employees at the Reef Theatre . have designated
783
sure that the theatre personnel perform their respective
duties and that the operation runs smoothly. Thus, it is
clear that during most of the time he spends at work,
Caneen is in charge of the theatre. and directs the work of
the teenagers who perform their duties as aforesaid. He has
authority to allow them to go home if ill or otherwise direct
them in their work, and he has, in the past, effectively
recommended the hiring of several employees. Thus the
record shows that he initially interviews the employees and
makes notes on their application as to his impressions of
their ability and appearances. These notes are given great
weight in hiring by Manager Johnson and, as he testified,
he relies almost solely on Caneen in this area.
Accordingly, following the testimony of Caneen and
Johnson who were witnesses for the General Counsel, it
was apparent, and Counsel for the General Counsel
acknowledged, that the proof indicated that the duties of
Caneen placed him within the category of a supervisor
within the meamng of Section 2(11) of the Act, and not a
part-time, nonsupervisory projectionist as alleged in the
complaint. Accordingly, as hereinabove noted, at the close
of the General Counsel's case-in-chief, I granted the
motion of Respondent to dismiss the complaint on the
ground that, as alleged in Respondent's second affirmative
defense in its answer to the complaint, "all persons over
whom the Charging Party claims to be part of an alleged
bargaining unit are supervisors within the meaning of
Section 2(11) of the Act."
B. Conclusions
It is well established that the scheme of Sections 7 and 8
of the Act is to protect employees from the unfair labor
practices of employers and labor organizations set forth in
Section 8. As applied to the facts in the instant case,
Section 8(a)(5) makes it an unfair labor practice for an
employer "to refuse to bargain collectively with the
representative of his employees, ... ," The theory of the
complaint in this case is that the Respondent unlawfully
refused to bargain with the Charging Union concerning an
employee within the bargaining unit in a facility which was
accreted to the existing bargaining unit. However, the
proof shows that there is not a nonsupervisory employee
within such unit in the accreted facility (nor does the
evidence establish that there is likely to be in the future any
such nonsupervisory employee), and therefore there would
seem to be no duty imposed by the Act upon an employer
to bargain with a labor organization of its employees "with
respect to wages, hours, and other terms and conditions of
employment. ...." 3
I shall therefore recommend that the complaint be
dismissed in its entirety.4
or selected the Charging Party to be their representative for purposes of
collective bargaining, as required by Section 9 of the Act ." But see
discussion in Houston Division of the Kroger Co, 208 NLRB 928 (1974), and
cases cited, see also Penn Traffic Company, Riverside Division , 219 NLRB
No. 35 (1975), where it is stated : "The one factor most commonly relied on
by the Board in finding accretion, interchange and transfer of employees
from the existing unit to the newly acquired operation , appears to be
singularly lacking "
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. A.B.C. Florida State Theatres, Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not, as alleged-in the complaint,
engaged in unfair labor practices within the meaning of
Section "8(a)(5) and (1) of the Act.
Upon the foregoing findings "of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDERS
The complaint is dismissed in its entirety.6
s In the event no exceptions are filed as provided by Sec. 102 46 of the deemed waived for all purposes.
Rules and Regulations of the National Labor Relations Board, the findings, 6 Respondent's motion for an extraordinary remedy, i.e., to order
conclusions , and recommended Order herein shall, as provided in Sec. General Counsel to reimburse it for expenses in defending a frivolous
102.48 of the Rules and Regulations, be adopted by the Board and become complaint is denied as lacking in merit.
its findings , conclusions , and Order, and all objections thereto shall be