Chicago Theatrical Protective Local No. 2

National Labor Relations Board - Board Decisions

Mar 19, 1965

151 N.L.R.B. 857 (N.L.R.B. 1965)

CHICAGO THEATRICAL PROTECTIVE LOCAL NO. 2 857
Chicago Theatrical Protective Union Local No. 2, I .A.T.S.E. and
Midwest News Reel Theatres, Inc. Case No. A0-82. March 19,
1965
ADVISORY OPINION
This is a petition filed on December 24, 1964, by Chicago Theatri-
cal Protective Union, Local No. 2, I.A.T.S.E., herein called Peti-
tioner, for an Advisory Opinion in conformity with Section 102.98
and 102.99 of the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended.
On October 30, 1964, the National Labor Relations Board issued an
Advisory Opinion in Case No. AO-80 involving the same parties
and dispute and advising the parties that it was unable to make a
meaningful jurisdictional determination.'
On February 4, 1965, Regional Director Ross M. Madden, for
Region 13 of the Board, herein called the Regional Director, filed a
motion to intervene and for leave to file statement setting forth
jurisdictional information developed in the course of his investiga-
tion of unfair labor practice charges in Case No. 13-CB-1731 filed
against the Petitioner by Midwest News Reel Theatres, Inc., herein-
after called the Employer. The Regional Director's motion to inter-
vene and to file a statement is hereby granted. The Petitioner's
request for an investigative hearing with respect to the commerce
issue is denied 2 as is its request for permission to file a brief to
support its position that the combined retail and nonretail standards
be applied to the operations involved herein.
In pertinent part the petition, the intervention and statement, and
the Advisory Opinion and record in Case No. AO-80 of which we
take official notice alleges as follows :
1. The Employer has filed a complaint in the Chancery Division
of the Circuit Court of Cook County (Case No. 64 CH 5081), seeking
injunctive relief and compensatory and punitive damages in the sum
of $350,000 against the Petitioner and other individuals and alleging
"that the Petitioner herein has engaged in a conspiracy among its
members to cause [the Employer] to hire a stagehand who is unneces-
sary in the operations of the Company." While denying the motion
for injunctive relief on the grounds that it "did not have jurisdiction
over the subject matter because jurisdiction exists in the National
Labor Relations Board," the court granted leave to the Employer to
refile in the event the Board declines to exercise jurisdiction. Fol-
lowing the Board's opinion in Case No. AO-80 and after further
hearing and argument, the "Court stated that it was disposed to
1149 NLRB 424.
2Ibid
151 NLRB No. 97.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree that the Board 's Decision [in Case No. AO-80] constituted
a declination of jurisdiction because the Board did not assert
jurisdiction."
2. The Employer is an Illinois corporation operating a motion
picture theater, known as the Loop Theatre in Chicago, Illinois. Its
annual gross business during 1964 from all sources including admis-
sions and receipts from candy concessions will not exceed $300,000.
Mid Central Theatre, Inc., herein called Mid Central , is an Illinois
corporation, operating the Carnegie Theatre in Chicago, Illinois, a
mile away from the Loop Theatre. Its annual gross volume of
business during 1964 from all sources will not exceed $180,000. For
rental of the films exhibited at the Loop and Carnegie Theatres, the
Employer and Mid Central each pays 30 percent of its gross revenues
to the film producers . During 1963 , film rentals for the Loop
Theatre amounted to $84,549.95, and for the Carnegie Theatre,
$59,971.58. The films exhibited at the Loop and Carnegie Theatres
are produced outside the State of Illinois but are distributed in
Chicago, Illinois, by local distributors.
3. Oscar Brotman and family and Leonard Sherman and family
each own one-half of the stock, and they are the sole officers of the
Employer and of Mid Central. Brotman handles the bookings for
the Loop and Carnegie Theatres. Each theater has its own manager,
through whom all relations with employees are carried on. Brotman
hired the Carnegie Theatre- manager while the Loop Theatre
manager was so employed when the Brotman and Sherman families
acquired the Theatre. Brotman took over management of the Loop
Theatre in 1963. The film bookings for these two theaters are
generally handled by Oscar Brotman, although he consults the
managers and may permit their veto.
4. Oscar Brotman and Leonard Sherman each also holds 10 percent
of the stock interest in Enterprises , Inc., an Illinois corporation
which owns the Aragon Ballroom, located 6 miles north of the Loop
Theatre presumably in Chicago, Illinois. The ballroom is now closed
for regular operations but is rented occasionally for special events.
The gross receipts for the operation of the Aragon Ballroom,
allegedly uncertain , sporadic , and incapable of estimate or forecast,
have never exceeded $50,000 annually under its current ownership
and management.
5. Oscar Brotman and Leonard Sherman and their families each
owns 20 percent interest and they are general partners in the two
limited partnerships ( Oasis Outdoor Ltd. and Hillside Theatre,
Ltd.) operating respectively the Oasis Outdoor Theatre and the
Hillside Theatre in the Chicago area. Further, the entire stock of
Brotman & Sherman Enterprises , Inc., herein called B & S, is owned
by Oscar Brotman , Leonard Sherman and their families. B & S
CHICAGO THEATRICAL PROTECTIVE LOCAL NO. 2 859
manages the Oasis,and Hillside Theatres and receives a percentage
of gross for such services as bookkeeping, tax advice, film rental,
reporting forms, and booking arrangements. Bookings are handled
separately by a booking agent although B & S receives fees for book-
ing arrangements. Brotman hired the managers of both the Oasis
and Hillside Theatres. Although no commerce data with respect to
the operations of these theatres have been submitted, the films
exhibited by the Oasis and Hillside Theatres are produced outside
the State of Illinois, and the combined gross business of the Loop,
Carnegie, Oasis, and Hillside theatres is in excess of $500,000. The
amount of management fees received by B & S is not set forth.
6. Room 625 at 327 South La Salle Street, Chicago, Illinois, is
listed as the offices not only of Oscar Brotman, Leonard Sherman,
and the B & S management firm but also of the companies owning
the Loop, Carnegie, Oasis, and Hillside theatres.
7. Contrary to the Employer, the Petitioner alleges that the Em-
ployer, Mid Central and the Oasis and Hillside partnerships have a
combined annual gross income exceeding $500,000 and they constitute
a single employer for jurisdictional purposes under the Act because
"Oscar Brotman maintains close direct personal control of employee
relations and of the operations" of the theaters.3
8. By letter dated August 27, 1964, the Board's Regional Office
advised the Employer's attorney to withdraw the charge in Case No.
13-CB-1373 because "based upon the jurisdictional information sub-
mitted by you, it does not appear that the Charging Party meets the
jurisdictional standards as set forth by the Board." Subsequently,
the Employer requested permission to withdraw the charge. This
request has not been granted by the Regional Director who has con-
tinued his investigation of the charges.
On the basis of the above, the Board is of the opinion that :
1. The Employer, Mid Central, and the Oasis and Hillside part-
nerships are retail enterprises engaged in the operation of motion
picture theaters in and about Chicago, Illinois. Combined Century
Theatres, Inc., 120 NLRB 1379; Motion Picture Operators Union of
Essex County, Local 244, et al. (Stanley Warner Corporation), 126
NLRB 376.
2. 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.
s In this connection, the Petitioner adverts to a newspaper article in the Sun Times
by Bob Ellison which, tinter aiia, describes "one of Brotman 's trips to the various theaters
in which he is interested" and which refers to Brotman as a "tycoon who owns four
major theaters in the Chicago area " ( the four theaters involved herein ). According
to the Regional Director , Brotman states that the story leaves many mistaken im-
pressions" and that he "does not make frequent inspection trips," and that "the section
on reports of restrooms , temperatures, etc , is pure fabrication "
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The annual purchases from local distributors of film produced
outside the State of Illinois, constituting inflow under Sienwns 111ail-
ing Service, 122 NLRB 81, 85, establish the Board's legal or statutory
jurisdiction over the Employer and the other theaters involved
herein. The annual gross volume of business of the Employer and
each of the operators of the other theaters individually does not meet
the $500,000 test for invoking the Board's discretionary standard for
the assertion of jurisdiction over retail enterprises although their
combined gross volume of business in excess of $500,000 does satisfy
that test.
4. The Board often treats separate corporations, partnerships, and
companies as one employer for jurisdictional purposes where it
appears that the firms, despite their nominal separation, are highly
integrated with respect to ownership and operations. In making
such a determination, the Board considers relevant such mdicia of
identity as, (1) interrelationship of operations, (2) centralized con-
trol of labor relations, (3) common management, and (4) common
ownership or financial control4 although no one of these factors is
controlling. Applying the Board's principles to the Loop, Carnegie,
Oasis, and Hillside Theatre operations, it is evident that all are
interrelated to the extent that they are in the business of exhibiting
motion picture films. The Loop and Carnegie are commonly owned
and controlled by the Brotman and Sherman families through their
100 percent stock-ownership and their positions as sole officers of the
companies. Bookings for these two theaters are handled by Mr.
Brotman, who took over the management of the Loop Theatre in
1963. The two families together also have a 20 percent interest and
are general partners in each of the limited partnerships owning and
controlling the Oasis and Hillside Theatres, and through their
wholly owned B & S corporation, they manage the Oasis and Hillside
Theatres, receiving a percentage of the gross for the management
services rendered. Brotman himself hired the managers for the
Carnegie, Hillside, and Oasis Theatres, and he continued the Loop
Theatre manager who was employed when the Brotman and Sherman
families acquired that theater. Brotman and Sherman, B & S, and
the four theaters all have the same offices. Despite the separate
legal identities of the theaters and the separate day-to-day manage-
ment by the manager of each theater, the allegations hereinabove set
forth appear to establish that the Brotman and Sherman families,
and Mr. Brotman in particular, have sufficient common centralized
ownership, control, and management of the operations of the four
motion picture theaters to warrant the assumption that the com-
panies owning, controlling, and managing the Carnegie, Loop, Hill-
* See Twenty -first Annual Report, pp . 14-15; Sakrete of Northern. California, Inc.,
137 NLRB 1220 , 1222 enfd . 332 F . 2d 902 (C A 9).
COURT SQUARE PRESS, INC., ETC.. 861
side, and Oasis Theatres constitute a single employer for jurisdic-
tional purposes under the Act.5 As the annual gross volume of
business of the four theaters exceeds $500,000, the combined opera-
tions of the Employer, Mid Central, the Oasis and Hillside Theatre
partnerships not only come within the Board's statutory jurisdiction
but would also satisfy the Carolina standard for the assertion of
jurisdiction over retail enterprises.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that upon the
allegations submitted herein, the Board would assert jurisdiction
over the operations of the Employer, Mid Central, and the Oasis
and Hillside limited partnerships as a single enterprise with respect
to disputes cognizable under Sections 8, 9, and 10 of the Act.
5 Our assumption is justified by Board decisions in analogous situations . See, e.g.,
Sakrete of Northern California , Inc., supra ; Overton Markets , Inc., et at., 150 NLRB
1159 ; 142 NLRB 615 ; Hartford Building Maintenance Company, Inc . ( Connecticut State
Board of Labor Relations ), 145 NLRB 1415.
Court Square Press, Inc.; ' Court Square Bank Note Company; Z
Allied Photoengraving Company 3 and Boston Printing Press-
men's Union #67, International Printing Pressmen and Assist-
ants' Union of North America, AFL-CIO,4 Petitioner
Allied Photoengraving Company and Lithographers and Photo-
engravers International Union , Local #3-P,5 Petitioner
Court Square Press, Inc. and Lithographers and Photoengravers
International Union, Local #3-L,s Petitioner. Cases Nos. 1-RC-
8129, 1-RC-8150, and 1-RC-8151. March 19,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a consolidated hearing was held
before Hearing Officer Arnold M. Marrow, of the National Labor
Relations Board. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
1 The Employer 's name appears as amended at the hearing.
2 The Employer's name appears as amended at the hearing.
8 The Employer's name appears as amended at the hearing.
4 The Petitioner 's name appears as amended at the hearing. Referred to herein as
Pressmen.
5 Referred to herein as Photoengravers.
8 Referred to herein as Lithographers.
151 NLRB No. 95.