Electric Theatre

National Labor Relations Board - Board Decisions

Feb 8, 1966

156 N.L.R.B. 1351 (N.L.R.B. 1966)

ELECTRIC THEATRE, ETC. 1351
Electric Theatre , Avenue Theatre, Lake Park Drive-In , Lakeside
Drive-In , Kansas Drive-In , Boulevard Drive-In , and New 50
Drive-In 1 and International Alliance of Theatrical Stage Em-
ployes and Moving Picture Machine Operators of the United
States and Canada, Local No. 498, AFL-CIO, Petitioner. Case
No. 17-RC-4768. February 8,1966
DECISION ON REVIEW AND ORDER
On June 25, 1965, the Regional Director for Region 17 issued a
Decision, Order, and Direction of Election in the above-entitled pro-
ceeding in which he directed an election in a multiemployer unit of
moving picture machine operators employed by five separate employ-
ers at the following theaters : Lake Park Drive-In, Lakeside Drive-In,
Kansas Drive-In, Boulevard Drive-In, and New 50 Drive-In, all
located in the Kansas City, Kansas, area.' Thereafter, in accordance
with the National Labor Relations Board Rules and Regulations,
Series 8, as amended, Lake Park Drive-In filed a, request for review of
,said Decision and Direction of Election on the grounds that the
Regional Director erred in finding a multiemployer unit appropriate
and in asserting jurisdiction over its operations. The Board, by tele-
graphic Order dated August 17, 1965, granted the request for review
and stayed the election pending decision on review. Thereafter, the
Petitioner and Lake Park filed briefs on review.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and -Members Fanning and Jenkins].
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review, including the
briefs of the parties, and finds, for the reasons hereafter indicated,
that the petition should be dismissed.
In substantial accord with the Petitioner's request, the Regional
Director found that the projectionists of five separately owned drive-in
theaters constituted a single-multiemployer unit. On the basis of this
1 As noted in the decision , the Regional Director used the common names of the various
theaters Their legal names are as follows : Electric Theatre Company , d/b/a Electric
Theatre ; Inland Empire Company, d /b/a Avenue Theatre; Independent Specialty Com-
pany, d /b/a Lake Park Drive-In ; Lakeside Drive-In Theatre, Inc, d /b/a Lakeside Drive-In';
Kansas Drive-In Theatre, Inc, d /b/a Kansas Drive-In , Rosedale Drive-In Theatre, Incor-
porated, d/b/a Boulevard Drive-In ; New 50 Drive-In Theatre, Inc., d /b/a New 50 Drive-In.
2 The petition was dismissed with regard to Electric Theatre and Avenue Theatre, both
of which are " hard -top" theaters as distinguished from "drive-ins." There was no
request to review this dismissal . The five Employers are referred to herein, respectively,
as "Lake Park ," "Lakeside," "Kansas," "Boulevard," and "New 50."
S With its brief on review, Lake Park filed a motion for admission of new evidence and
supporting affidavits from other employers here involved to negate the finding of a multi-
employer unit. In view of our decision herein to dismiss the petition, we need not rule
on the motion.
156 NLRB No. 119.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding, the Regional Director asserted jurisdiction by combining
the sales volume of all five employers, as the volume of each indi-
vidual employer was insufficient to meet the applicable jurisdic-
tional standard.4
The Regional Director's multiemployer unit finding rests on record
evidence showing that, for a number of years: (1) various theater
owners here involved niet with the Petitioner in group meetings for
purposes of negotiating contract terms; and (2) that while the con-
tracts thereafter executed were individual-employer contracts, the
terms and contitions contained in most of them were substantially the
same. Standing alone, this evidence might warrant inferring that
the parties intended to be bound by the group negotiations and that,
accordingly, the requested multiemployer unit is in fact appropriate.
However, evidence adduced by the Employers, largely undisputed,,
shows that in meeting together with the Petitioner, none of the employ-
ers involved authorized one of their number to act in his behalf; that
no owner viewed himself as bound by the agreement of the others;
and that their meeting together at one time was regarded by all of
the employers as done for convenience of negotiations, rather than
with a view to committing themselves to a course of group dealings
with the Petitioner. The undisputed testimony shows that the parties
met together in 1962 for negotiations after the Petitioner issued indi-
vidual invitations to the employers; that one of the five employers
attending the 1962 negotiating sessions refused to sign a contract con-
taining the terms others of the employers found acceptable; and, that
one of them insisted, in subsequent individual meetings with Petitioner,
upon certain modifications.5 It is conceded, moreover, that there is
no formal employer association and that on one occasion, when Peti-
tioner sought to designate the group negotiations as multiemployer
unit bargaining, the Employers expressly objected."
It is well settled that to establish a multiemployer unit, the Board
requires a controlling history of collective bargaining on such basis,
or an unequivocal agreement of the parties to bind themselves to a
course of group bargaining in the future.7 Neither of these require-
ments has been satisfied here. Indeed, any effect which might be given
' Although only one Employer filed a timely request for review, the issues it poses affect
the disposition of the entire case. The record is insufficient to establish that the other
drive-in employers either individually or collectively meet the Board's jurisdictional
standards . Hence there is no basis on this record for proceeding to an election among
the remaining drive-in theaters , notwithstanding their failure to request review of the
Regional Director ' s decision.
s The Union later offered these modifications to the other Employers and, on their
acceptance , the same were inserted retroactively in the previously executed contracts.
9 Kansas and New 50 did not appear at the hearing , but stated their positions in
affidavits accompanying the motion for admission of new evidence filed by Lake Park
herein. While we find it unnecessary to rule on the motion , we note that the affidavits
corroborate the record testimony of the employers who did appear.
7 See Cab Operating Corp, et al , etc., 153 NLRB 878.
HARVEY ALUMINUM (INCORPORATED) 1353
to the 1962 negotiations as evidence of group bargaining is counter-
acted by proof of individual action and conduct by some of the employ-
ers, in derogation of the multiemployer unit concept, and by the affirm-
ative indications that the Petitioner accepted the objections of
individual employers to contracting on the terms otherwise deemed
acceptable by other participants in the group negotiations.'
In sum, considering all the above circumstances, the element of an
unequivocal intention to be bound by group action has not, we believe,
been established. We find, therefore, that the requested multiem-
ployer unit is inappropriate. As we have no basis for asserting juris-
diction over any of the employers involved in the absence of a finding
that they were engaged in true multiemployer bargaining, we shall
dismiss the petition.
[The Board dismissed the petition.]
8 See Van Eerden Company, 154 NLRB 496; Cf., Greater Syracuse Printing Employ-
ers' Association , 140 NLRB 217.
Harvey Aluminum (Incorporated ) and Michigan Contractors, In-
corporated and International Union , United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW),
AFL-CIO. Case No. 7-CA-4801. February 8,1966
DECISION AND ORDER
On October 7, 1965, Trial Examiner Alba B. Martin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
i At the hearing, the Trial Examiner permitted Respondents' counsel to examine the
General Counsel's trial brief on one witness, but thereafter refused to require the Gen-
eral Counsel to submit to Respondents' counsel his trial briefs for other witnesses. In
addition to the reasons assigned by the Trial Examiner for his conduct, we find, without
deciding whether the Trial Examiner acted correctly in the first instance, that in the
exercise of his discretion he properly refused to require the General Counsel to produce
his trial briefs for other witnesses.
156 NLRB No. 115.