Stanley Co. of America

National Labor Relations Board - Board Decisions

Nov 17, 1942

45 N.L.R.B. 625 (N.L.R.B. 1942)

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In the Matter Of STANLEY COMPANY OF AMERICA, WARNER BROS.,
WARNER BROS. CIRCUIT MANAGEMENT CORP., WARNER BROS.
THEATERS, INC. AND CIRCUIT SETTLEMENT CORPORATION and UNITED
OFFICE & PROFESSIONAL WORKERS OF AMERICA, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-.¢.. J4.Decided November 17, 194
Jurisdiction : motion picture theatre- industry.
Practice and Procedure : petition dismissed where no appropriate unit within
the scope of the petition-unit composed of managers , assistant managers,-
treasurers , and utilitarians , held inappropriate.
Mr. H. S. Bareford, of New York City, for Stanley.
Mr. Samuel L. Rothbard, of Newark, N. J., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon petition duly filed by United Office & Professional Workers
of America, affiliated with the Congress of Industrial Organizations,
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Stanley Com-
pany of America,' Warner Bros., Warner Bros. Circuit Management
Corp., Warner Bros. Theaters, Inc., and Circuit Settlement Corpora-
tion, Newark, New Jersey, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Frederick R.
Livingston, Trial Examiner. Said hearing was held at Newark, New
Jersey, on August 31, 1942. Stanley and the Union appeared and par-
ticipated.2 Stanley moved to dismiss this proceeding, (1) on the
' The petition and other formal papers were amended at the hearing to show the correct
name of Stanley Company of America , herein called Stanley . Stanley , however, oijerates
elsewhere than in New Jersey as , Stanley Company of America, Inc, and as Stanley
Corporation of America.
2 Stanley appeared specially to contest the jurisdiction of the Board and, on the assur-
ance of the Tiial Examiner that it would not be prejudiced thereby, participated in the
hearing The other co,parties , although served with notice, did not appear Stanley
contends that it alone is the employer of employees herein concerned.
45 N. L R. B., No. 94
493508-43-vol. 45-40 625
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626 DEIOISIONS OF NATIONAL LABOR RELATIONS BOARD
ground that Stanley was not engaged in commerce within the mean-
ing of the National Labor Relations Act and (2) on the further
ground that there was no appropriate unit within the scope of the
petition. We need not pass on the jurisdictional question, since for
reasons which appear in Section III, below, the motion is granted.
All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. On September 21,
1942, Stanley filed a brief which the Board has considered.
Upon the entire record in the case,,the Board makes the following:
FINDINGS oF' FACT
1. THE BUSINESS OF STANLEY
Stanley Company of America is a subsidiary of Warner Bros.
Pictures, Inc., which owns 90 percent of its stock. Stanley operates
approximately 200 theaters, of which 48 are regularly operated
theaters in New Jersey. The theaters operated in New Jersey are
the only ones directly involved in this proceeding. These theaters
are included in the so-called New Jersey Zone of Stanley's opera-
tions under the supervision of a zone manager. Other zones include
New Haven, Atlantic' City, Philadelphia, Pittsburgh, Albany,
Chicago, and Washington. Zone managers meet for conference in
Stanley's office at New York City. This office is located in the
same building in which-Warner Bros. Pictures, Inc., has its offices
and the two companies use a common telephone.
In 1941 Stanley's business in New Jersey exceeded 1 million dol-
lars. During 'the course of a week at its New Jersey theaters, Stan-
ley shows about 200 feature pictures,' 80 news reels, and 170 short
subjects, not all of which are different. Pictures are leased through
Stanley's booking agent in New York City and are selected by the
zone manager with suggestions from the theater managers. Most
pictures shown in the theaters are leased from distributing agencies
who operate exchanges at key centers in the United, States; from
which they direct inter-theater transportation of pictures. ' There
is no exchange center or national distribution center in New Jersey.
About 90 percent of the pictures shown by Stanley at its New Jersey
theaters come from New York City.
' Of these , 35 to 40 constitute the yearly output of warner Bros . Pictures, Inc.
STANLEY COMPANY OF AMERICA
II. TILE ORGANIZATION INVOLVED
627
United Office '& Professional' Workers of America is a labor
organization affiliated with the Congress of Industrial Organiza'
tions; admitting to membership employees of Stanley.
III. THE ALLEGED QUESTION CONCERNING THE REPRESENTATION OF EM-
PLOYEES OF STANLEY WITHIN AN APPROPRIATE UNIT
The Union contends that managers, assistant managers, utilitar-
ians, and treasurers employed at Stanley's New Jersey theaters con-
stitute an appropriate bargaining unit. Stanley contends that the
proposed unit is inappropriate for bargaining, alleging that such
employees at its several New Jersey theaters have no common inter-
ests and that managers who supervise assistant managers, utilitar-
ians, and treasurers should not be included in the same bargaining
unit with such employees.
Stanley regularly operates 48 theaters in New Jersey under the
management of a zone manager whose headquarters are at Newark.
Under the zone manager are 4 district" managers, each of -whom super-
vises a group of theaters. Some theaters are in small rural communi-
ties, others in large cities. Each theater operates under the direct
supervision of a theater manager who has under him one or more
assistants. These assistants are known as assistant managers, utili-
tarians, and treasurers.' Theater managers attend monthly zone meet-
ings at Newark. Assistant managers, utilitarians, and treasurers do
not have regular meetings where they may come in direct contact
with employees in other theaters.
The manager is in charge of the physical properties of the theater
and handles its booking problems and advertising problems within
certain limits. He has general supervision of all employees working
in the theater, including the assistant manager, utilitarian, treasurer,
cashiers, doormen, porters, ushers, cleaners, operators, and stage hands.
The larger theaters have an assistant manager, who is in charge of
the theater during the manager's, absence and assists the manager as
he may direct. The treasurer supervises the cashiers, handles'the'
cash, tickets, and pay rolls. He checks the income from various con-
cessions about the theaters, such as vending and weighing machines.
"Utilitarian" is a comparatively new category of employment, recently
replacing "treasurer" on the Company's pay rol14 The utilitarian is
characterized as a handy man and junior assistant manager with not
enough skill or experience to be rated as an assistant manager. Where
' The record does not disclose that Stanley has in all cases substituted "utilitarian" for
"treasurer."
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he is substituted for the treasurer, he assumes such duties. The duties
of the utilitarian and assistant manager, and the number of such
assistants assigned to the manager, differ according to the size of the
theater. The largest theater in the zone seats 4,432 persons and em-
ploys regularly 72 people. The smallest theater seats about 600
persons.
The manager hires and discharges all theater employees in a non-
supervisory capacity. He recommends for dismissal, transfer, or
promotion the assistant manager, utilitarian, and treasurer who may
be employed at the theater. His recommendations are usually fol-
lowed. Positions of assistant managers, utilitarians, and treasurers
are filled by transferring employees from one category to the next
higher paid category or by transferring employees to a larger theater
without nominal change of position .5 For these purposes transfers
within the zone are frequent, although interzone transfers are rare.
For each vacant position the manager of the theater may select from
employees recommended for promotion the individual whom he may
wish to have associated with him. If he does not desire to select an
employee candidate, he may recommend an outside person for the
position. The hiring of assistant managers, utilitarians, and treas-
urers, however, must be effected'after consultation with the zone office.
We are of the opinion, and find, that the various levels of super-
visory employees at Stanley's several theaters cannot appropriately
be grouped, as the Union contends, in a single bargaining unit. Man-
agers are in charge of the local theaters. Their authority includes
not only the hire and discharge of all non-supervisory employees, but
also, in a substantial measure through the credit accorded to their
recommendations by the zone manager, an almost equivalent power
to effect the hire, discharge, and transfer of the assistant managers
and utilitarians with whom they associate and share the problems
of theater administration. We find that the unit proposed by the
Union, composed of managers, assistant manager's, utilitarians, and
treasurers, is not appropriate for the purposes of collective bargaining.
We accordingly find that no question has arisen concerning the
representation of employees of Stanley in an appropriate bargaining
unit. The petition for investigation and certification of represen-
tatives will therefore be dismissed. . I
5 Depending upon the size of the theater which he supervises , a manager receives from,
$45 to $135 per week Assistant managers receive from $25 to $40 per week , and utili-
tarians from $ 18 to $25 per week. Utilitarians receive $4 to $5 more than the cashier
at the theater . Zone managers are given ' bonuses for the success of business operations
within their zones Zone managers customarily share their bonuses with the managers,
of theaters in their zones and they, in turn , share with the assistant manager, utilitarian,
or treasurer under them The amount of the bonus is not fixed.
STANLEY COMPANY OF^ AMERICA
ORDER ,
629
Upon the basis of the foregoing findings of fact and the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for investigation and certification of representatives
of employees of Stanley Company of America, Warner Bros., Warner
Bros. Circuit Management Corp., Warner Bros. Theaters, Inc., and
Circuit Settlement Corporation, Newark, New Jersey, filed by United
Office & Professional Workers of America, affiliated with the Congress
of Industrial Organizations, be, and it hereby is, dismissed.
MR. GERARD D. REILLY, concurring specially :
I agree with my colleagues in the dismissal of this petition, but
would go further than deeming the proposed unit inappropriate solely
because it contains more than one level of the hierarchy of manage-
ment. I have recently had occasion to dissent from the view that
supervisors who are integral parts of management are also employees
within the meaning of the National Labor Relations Act e The
instant case is illustrative of the consequences which may be expected
to result from the contrary doctrine. The bulk of employees in the
theaters here involved, so far as the record shows, have not been
organized. It is, therefore, apparent that the technique adopted has
been that of "organization from above." There can be little doubt
as to the form that organization of the ordinary employees will take
if the Board permits their supervisors to choose bargaining agents
tinder the Act. Furthermore, had the supervisors proceeded to
organize an unaffiliated union in which the line employees were eligible
for membership, there is not the slightest doubt that such an organiza-
tion would be regarded by the Board as proscribed by Section 8 (2) of
the Act. Coercion of the line employees is no less real where among
the bargaining agencies which seek to represent them is one to which
their supervisors owe allegiance.
9 Union Collieries Coal Co , Oakmont , Pa. and Mine Officials' Union of America (Ind.),
44 N L. R B. 165; Godchaux Sugars, Inc. and United Sugar Workers , Local Industrial
Union No. 1186, C. 1. 0., 44 N. L. It. B. 874.
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