Local No. 246, Theatrical Stage Employees

National Labor Relations Board - Board Decisions

Feb 28, 1972

195 N.L.R.B. 593 (N.L.R.B. 1972)

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.