Pacific Drive-In Theaters Corp.

National Labor Relations Board - Board Decisions

Oct 2, 1967

167 N.L.R.B. 661 (N.L.R.B. 1967)

PACIFIC DRIVE-IN THEATRES CORP. 661
Pacific Drive-In Theatres Corp. and Local Joint
Board of Hotel and Restaurant Employees and
Bartenders International Union of Long Beach and
Orange County, AFL-CIO, Petitioner'
Pacific Drive-In Theatres Corp. and Miscellaneous
Warehousemen , Drivers& Helpers Local 986, In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers 'of America, Petitioner.2
Cases 21-RC-10416,21-RC-10434,21-RC-10435,
21-RC-10436, 21-RC-10437, 21-RC-10438,
21-RC-10439 , 21-RC-10440, 21-RC-10441,
21-RC-10442 , 21-RC-10443, 21-RC-10446,
21-RC-10453 , 21-RC-10454 , and 21-RC-10460
October 2, 1967
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Claude R. Marston, Hear-
ing Officer3 of the National Labor Relations Board.
Thereafter, the Intervenor and the Employer filed
briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in the case,4 the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of certain employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. The Employer is a California corporation en-
gaged in the operation of drive-in and walk-in
theatres. Its main office is located at 141 South
Robertson Street in Los Angeles, California. It
operates numerous theatres in a slightly larger than
50-mile area in Southern California. The Joint
Board seeks to represent separate units of the Em-
ployer ' s snackbar attendants at each of seven of the
Employer ' s theatres.
The Teamsters seeks to represent a unit of all the
unrepresented employees at each of 14 of the Em-
ployer ' s theatres , including one of the 7 covered by
a Joint Board petition . The Intervenor is willing to
represent and urges as the only appropriate em-
ployee grouping a single unit consisting of all the
unrepresented employees on an employerwide ba-
sis.
Relying on the bargaining history covering its
other employees , the Employer moved to dismiss
all petitions herein , contending that the only ap-
propriate unit is a multiemployer unit coextensive
with the unit for which its represented employees
are bargained for by the National Association of
Theatre Owners of Southern California, hereinafter
referred to as NATO . 5 In the alternative , however,
should a multiemployer unit be found inappropriate,
the Employer contends that the only appropriate
one would be employerwide . There is, however, no
history of collective bargaining for any of the em-
ployees involved in this proceeding.
An established bargaining history on a multiem-
ployer basis will determine the scope required for
a unit of previously unrepresented employees if
those employees are in excluded fringe classifica-
tions which otherwise lack homogeneity , cohesive-
ness, or separate identity, and are merely residual
to the main body of employees in the established
unit.6 The employees requested herein are not
residual to the existing separate multiemployer
units which are made up of craft or special interest
groups. Rather , they constitute the Employer's
main force of employees . As such, they constitute
a homogeneous , separately identifiable group, and
the Los Angeles Statler case , supra, relied upon by
the Employer , is not controlling with regard to the
scope of the unit for employees sought herein. Ac-
cordingly, we deny the Employer 's motion to
dismiss based on the multiemployer bargaining his-
tory.
Joint Board seeks to represent separate units of
the Employer's snackbar employees in each of the
seven theatres . The testimony reveals that no food
is actually prepared on the premises and the
snackbar attendants do not possess any of the spe-
cial attributes of restaurant or culinary workers.
Moreover , during the course of a work shift , as well
as at intermission , all classifications of employees
work in the snackbar . Snackbar employees wear the
Hereinafter referred to as Joint Board
t Hereinafter referred to as Teamsters
Theatre and Drive-in Employees Union, Local B-193, affiliated with
the International Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and Canada, hereinafter
called the Intervenor, participated in this proceeding on the basis of a
showing of authorization cards from more than 30 percent of the em-
ployees at all of the Employer's theatres
The Employer's request for oral argument before the Board is hereby
denied as the record and briefs adequately present the issues and positions
of the parties
NATO is an association consisting of 30-40 theatre owners or opera-
tors in Southern California Since 1935, NATO, of which the employer is
a member, has negotiated contracts for separate units of Janitors , projec-
tionists, stagehands , and treasurers for theatre owners having membership
in NATO
^ LosAngelesStatlerHilton Hotel, 129 NLRB 1349
167 NLRB No. 88
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same uniforms as ushers, field, or auto attendants
in the drive-ins, ticket sellers, and ticket takers. All
employees regularly interchange between jobs and
assist where the need is greatest. They all have the
same working hours, enjoy the same benefits, and
work under very similar work conditions. On the
basis of the foregoing, we find that the interests of
the snackbar attendants are not sufficiently cohe-
sive and distinguishable from those of the other un-
represented employees to warrant separate
representation. Therefore a unit limited to only
snackbar attendants is not appropriate.
We turn now to the Teamsters' request for a unit
of all the Employer's unrepresented employees in
each of 14 theatres. All personnel and payroll
records are kept at the Employer's main office for
each of the theatres. The Employer's operation is
divided into six districts. Each theatre has a
manager who is responsible to his district manager
who in turn is responsible to the general manager.
Applications for employment are either taken at the
theatre or main office. Theatre managers have
authority to hire and fire, and to fill vacanies. Home
office permission is required, however, for adding
a new employee to the payroll.
A weekly meeting of district managers is con-
ducted at the home office for the formulation of
operating plans and policy for all the threatres. At
these meetings it is always necessary to discuss and
determine how many employees will need to be
transferred from one theatre to another during the
coming week. Such decisions take into account the
areas of peak and diminished need for employees
depending upon the popularity of current billings
and the requirements anticipated for newly
scheduled film showings. Hours of work, fringe
benefits, and rates of pay for all theatres are deter-
mined through these meetings at the main office.
The evidence reveals a very high degree of em-
ployee interchange. Thus, from 60 to 65 percent of
all employees may expect to work at a theatre other
than the one to which each is regularly assigned
from 5 to 10 times per month. Regardless of how
much time an employee spends at a theatre other
than the one to which he is assigned, he receives his
pay for all work in one check which comes from the
"home" theatre.
On the basis of the record which reveals a high
degree of centralized control of labor relations, in-
tegration, and similarity of operations of all theatres
located within a defined geographic area, uniform
working conditions, and substantial employee in-
terchange, we find that a separate unit at each
theatre is too limited to encompass the area of em-
ployment interest. Accordingly, we find on this
record that a single udit of all unrepresented em-
ployees at all of the Employer's theatres is ap-
propriate.
The parties stipulated that the snackbar managers
were not supervisors within the meaning of the Act.
They could not agree on the supervisory status of
the assistant theatre managers. The record reveals
that the assistant theatre managers have no authori-
ty to hire or fire. Their recommendations concern-
ing promotion, discipline, or wage increase are sub-
ject to independent investigation and decision. In
the event a manager is absent for more than a day,
another manager is brought in to supervise opera-
tions. The foregoing establishes and we find that the
assistant managers do not possess supervisory
authority and that they share interests and duties in
common with the employees in the unit, and are in-
cluded.
Although the unit found appropriate is larger than
any sought in either petition, the Intervenor has
requested and made a sufficient showing of interest
in the overall employerwide unit. Therefore, the In-
tervenor is treated as a cross-petitioner and an elec-
tion will be directed in the larger unit.7
We find that the following employees of the Em-
ployer constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All snackbar attendants, ushers, ticket sellers,
ticket takers, doormen, cashiers, field attend-
ants, and utility employees employed by the
Employer in its theatres in Southern California
including snackbar managers, and assistant
theatre managers but excluding salesmen, of-
fice clericals, watchmen, guards, and all super-
visors as defined in the Act.8
[Direction of Elections omitted from publi-
cation.]
7 The Borden Company, 120 NLRB 1447, J C Boar Pastry Shop, 125
NLRB 205
" The Teamsters and Joint Board have not indicated whether they
desire to participate in an election in the broader unit herein found ap-
propriate Their names have been placed on the ballot but, if they so
desire, they may withdraw from participation upon written nonce to the
Regional Director within 10 days from the date of issuance of this Deci-
sion and Direction of Election J C Boar Pastry Shop, supra
9 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 21 within 7 days after the date of this Decision and
Direction of Election The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear
Inc , 156NLRB 1236