Chicago Theatrical Protective Union 2, I.A.T.S.E.

National Labor Relations Board - Board Decisions

Oct 30, 1964

149 N.L.R.B. 424 (N.L.R.B. 1964)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Theatrical Protective Union Local No. 2, I .A.T.S.E. and
Midwest News Reel Theatres , Inc. Case No. AO-80. Octo-
ber 30, 1964
ADVISORY OPINION
This is a petition filed on September 3, 1964, by Chicago Theatrical
Protective Union, Local No. 2, I.A.T.S.E., herein called Petitioner,
for an Advisory Opinion in conformity with Section 102.98 and
102.99 of the Board's Rules and Regulations, Series 8, as amended.
On September 9, 1964, Midwest News Reel Theatres, Inc., herein-
after called the Employer, filed a response to petition for Advisory
Opinion. Thereafter Ross M. Madden, Regional Director for Region
13, filed a motion to intervene and for leave to file statement setting
forth jurisdictional information developed in the course of his in-
vestigation of unfair labor practice charges in Case No. 13-CB-1731
filed by the Employer against the Petitioner. Subsequently, on Sep-
tember 18, 1964, the Petitioner filed a response to the Regional Di-
rector's motion in which it requested an investigative hearing. On
September 28, 1964, the Employer filed a rebuttal to the petitioner's
response. The Regional Director's motion to intervene and to file a
statement is hereby granted. The Petitioner's request for a hearing
in this proceeding is hereby denied as the Board's Advisory Opinion,
procedures do not provide for or contemplate such a hearing.'
In pertinent part the petition, the response to the petition, the in-
tervention and statement, the response to the intervention and state-
ment, and the rebuttal to that response allege as follows:
1. The Employer has filed a complaint in the Chancery Division
of the Circuit Court of Cook County (Case No. 64 CH 508), seeking
injunctive relief and compensatory and punitive damages in the sum
of $350,000 against the Petitioner and other individuals. While de-
nying 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.
2. The Employer is an Illinois corporation operating a motion pic-
ture theatre, known as the Loop Theatre, in Chicago, Illinois. Its
annual gross business does not exceed $300,000. Mid Central The-
1 See Section 102 98-102 . 104, Board ' s Rules and Regulations , Series 8, as amended, and
Section 101 .39-10141, Statements of Procedure ; Arena Lounge, Inc., 145 NLRB 315.
149 NLRB No. 43.
CHICAGO THEATRICAL PROTECTIVE UNION 2, I.A.T.S.E. 425
atre, Inc., herein called Mid Central, is an Illinois corporation, op-
erating the Carnegie Theatre in Chicago, Illinois, a mile away from
the Loop Theatre. Its annual gross volume of business does not
exceed $200,000. For rental of the films exhibited at the Loop and
Carnegie Theatres, the Employer and Mid Central each pay 30 per-
cent 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
at the Carnegie Theatres are produced outside the State of Illinois
but are distributed in Chicago, Illinois, by local distributors.
3. The Loop Theatre and Carnegie Theatre each has its own man-
ager, who is exclusively responsible for the policy of the theatre, for
hiring, firing, and directing of personnel, and for rates of pay and
working conditions. However, Oscar Brotman and family and Leon-
ard Sherman and family each owns one-half of the stock of the Em-
ployer and of Mid Central.
4. Oscar Brotman and Leonard Sherman also each hold 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 regu-
lar operations but is rented occasionally for special events. The gross
receipts for the operation of 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 wife and Leonard Sherman and family own
20 percent interest in the two partnerships operating the Oasis Out-
door Theatre and the Hillside Theatre in the Chicago area. No com-
merce data with respect to the operations of these theatres have been
submitted.
6. Contrary to the Employer, the Petitioner alleges that the Em-
ployer, Mid Central, Enterprises Inc., and the partnerships owning
the Hillside and Oasis Theatres, constitute a single employer for
jurisdictional purposes because "Oscar Brotman maintains close di-
rect personal control of employee relations and of the operations" of
the theatres; and it further alleges that a hearing (the request for
which has been denied) would establish that the operations of the
combined single employer would meet the Board's discretionary
jurisdictional standards.
7. By letter dated August 27, 1964, the Board's Regional Office ad-
vised the Employer's attorney to withdraw the charge in Case No.
13-CB-1373 because "based upon the jurisdictional information sub-
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted by you, it does not appear that the Charging Party meets the
jurisdictional standards as set forth by the Board." Subsequently,
the Employer withdrew the charge.
On the basis of the above, the Board is of the opinion that :
1. The Employer, Mid Central, Enterprises, Inc., and the partner-
ships owning the Oasis and the Hillside Theatres are retail enter-
prises engaged in the operation of motion picture theatres and a
ballroom in and about Chicago, Illinois. Combined Century The-
atres, Inc., et al., 120 NLRB 1379; Motion Picture Operators Union
of Essex County, Local 244, et al., 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.
3. The annual purchases from local distributors of film produced
outside the State of Illinois, constituting inflow under Siemons Mail-
ing Service, Inc., 122 NLRB 81, 85, establish the Board's legal or
statutory jurisdiction over the Employer and the other theatres in-
volved herein. However, it is not established that the annual gross
volume of business of the Employer and each of the operators of the
other theatres and ballroom individually meets the test for invoking
the Board's discretionary standards for the assertion of jurisdiction
over retail enterprises.
4. The documents submitted by the parties hereto do not contain
sufficiently adequate commerce data to establish whether the annual
gross volume of business of the Employer and the other three the-
atres and ballroom operators involved herein, assuming arguendo
that all or part of them constitute a single employer for jurisdic-
tional purposes, satisfies the Board's discretionary retail standard.
If, in fact, the annual gross volume of business of such combined
single employer is $500,000 or more, the Board would assert jurisdic-
tion under its Carolina Supplies standard; on the other hand, if it is
less than $500,000, the Board would not assert jurisdiction. In the
circumstances herein, however, the Board is unable to make a mean-
ingful jurisdictional determination.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, ' as amended, that on the
allegations herein presented, the Board is unable to conclude whether
or not it will assert jurisdiction herein with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.
MEMBER LEEDOM took no part in the consideration of the above
Advisory Opinion.