The League of New York Theatres, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1961

129 N.L.R.B. 1429 (N.L.R.B. 1961)

THE LEAGUE OF NEW YORK THEATRES, INC. 1429
in the exercise of rights guaranteed in 'Section 7 of the Act, and has thereby violated
and is violating Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section 1, above , have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. TIIE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the tenure of
employment of William Paul, William Butler, and Barth Austin it will be recom-
mended that it offer to each of them immediate and full reinstatement to his former
or substantially equivalent position without prejudice to seniority and other rights
and privileges previously enjoyed . Each shall be made whole for any loss of earn-
ings sustained by reason of the discrimination by payment to him of a sum of money
equal to the amount he would have earned from the date of his discharge to the date
of offer of reinstatement less his net earnings during that period . Backpay shall be
computed in accordance with the Board 's Woolworth formul!a.4 Loss of pay shall be
determined by deducting from 'a sum equal to that which he would have earned for
each quarter or portion thereof, his net earnings in other employment during that
period . Earnings in one particular quarter shall have no effect upon backpay liability
for any other quarter.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Unions are labor organizations within the meaning of Section 2(5) of the
Act.
2. By discharging William Paul , William Butler , and Barth Austin, the Respondent
has discouraged membership in and activity in behalf of a labor organization and
thus has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By the discharges, the Respondent has interfered with, restrained , and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
4 F. W. Woolworth Company, 90 NLRB 289.
The League of New York Theatres, Inc. and Society of Stage
Directors and Choreographers , Inc. Case No. A0-11. Janu-
ary 26, 1961
ADVISORY OPINION
This case is before the Board upon a petition filed by the League of
New York Theatres, Inc., hereinafter called the Employer or League,
pursuant to Section 102.98 of the Board's Rules and Regulations,
Series 8, praying for -an advisory opinion as to whether the Board
would assert jurisdiction over the operations of the Employer. There-
after, the Society of Stage Directors and Choreographers, Inc., herein-
129 NLRB No. 179.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after called the Society, filed a response. The Employer subsequently
filed a reply to such response. On August 9, 1960, the Board granted
the Employer's request to file a brief in support of the petition, but
denied its motion to submit additional evidence and to argue orally.
The Employer filed its brief on September 6 and the Society filed its
opposition brief on September 20.
A. It appears from the Employer's petition, reply to the response
and brief that :
1. The Employer is a party to a proceeding before the New York
State Labor Relations Board (docket No. SE-32731) in which the
Society filed a petition for certification as representative of the di-
rectors and choreographers associated with the theatrical productions
presented by members of the Employer.
2. The Employer is a membership corporation of approximately
125 members and functions as a trade association and bargaining
agent for its members who are theatre owners and producers in the
legitimate theatre. The Employer so represents substantially all the
play producers in the United States and the owners and operators of
13 of the 32 legitimate theatres in New York City, and of 8 theatres
in other cities. Its members are producers and theatre owners who
present Broadway New York productions while the producers and
theatre owners who present "off Broadway" productions are not mem-
bers of the League. The legitimate theatre of the United States is
primarily centered in New York City.
3. On behalf of its employer members, the Employer League ne-
gotiates and has negotiated collective-bargaining agreements with the
nine labor organizations 1 but not including the Society. On Novem-
ber 29, 1959, the Society requested the Employer, as "the only repre-
sentative body of employers" of the Society's members, to negotiate a
collective-bargaining agreement covering terms and conditions of em-
ployment of employers who are Society members.
4. During 1959, members of the Employer League puchased scenery
from 19 companies, 17 of whom are located in New York City and 2
of whom are located in New Jersey. One New Jersey scenery com-
pany did approximately $800,000 worth of business with New York
producers during 1959, 90 to 95 percent of this business being with
members of the League. Further, members of the Employer League
purchased from local and outside of State suppliers costumes, theatre
tickets, theatre furnishings and equipment, and refreshments, which
originated outside the State of New York.
:. I The nine labor organizations with which the Employer has collective agreements are
Actors' Equity Association , AFL-CIO, Stage Bands Theatrical Protective Union, Local
No 1, IATSE ; Engineers Local No 30 ; International. Union of Operating Engineers ;
Ushers and Doorman's Local B-183, IATSE ; Treasurers and Ticket Sellers , Local 751,
IATSE , Local 802 , American Federation of Musicians , Porters and Cleaners , Local 54,
Building Service Employees International Union ; Association of Tbeatrical Press Agents
and Managers ; Wardrobe Attendants , Local 764 , IATSE.
THE LEAGUE OF NEW YORK THEATRES, INC. 1431
5. During the theatrical season of June 1, 1958, through May 31,
1959, the gross revenue from Broadway New York theatrical pro-
ductions was in excess of $40,000,000 and sales of theatre tickets for
such productions to residents outside New York City were substantial.
In addition, the gross volume of business for such theatrical produc-
tions while "on the road" outside New York City was in excess of
$23,000,000.2 Such productions were presented outside of New York
in 97 other cities in the United States and in 6 Canadian cities.
B. In its response and brief, the Society contended, inter alia, as
follows :
1. The Employer's distinction between "Broadway" and "off-
Broadway" productions did not give a true and accurate description
of the theatrical operations in New York City theatres; the cost of
scenery and costumes were a limited and insignificant part of a small
budget; theatre tickets, furnishings, equipment, and refreshments
were handled by theatre owners rather than play producers; the work
of the Society's members (directors and choreographers) for the
League employers was generally performed and completed locally in
New York City.
2. The Society further contended that the Board should not assert
jurisdiction over the operations of the Employer League (1) because
the entire New York theatre consists of small units with small capital
investments and a dispute between the League and the Society would
not substantially affect interstate commerce; and (2) because the
Board has declined jurisdiction over employers in the amusement field.
3. While generally denying "the correctness of much of the com-
merce data described" and claiming it to be misleading, the Society
does not dispute the accuracy of the commerce figures submitted, par-
ticularly with reference to the purchase by members of the League of
substantial amounts of scenery originating from outside the State of
New York and with reference to the gross volume of business done by
members of the League (both play producers and theatre owners).
On the basis of the above, the Board is of the opinion that:
1. The Employer League is an association or group of employers
who have joined together for the purpose of collective bargaining
with unions. For jurisdictional purposes, the employer members of
the League constitute a single employer and enterprise and the rele-
vant criterion for determining the Board's jurisdiction is the com-
bined operations of all the employers in the multiemployer League.
Westside Market Owners Association, et al., 126 NLRB 167; Belle-
ville Employing Printers, 122 NLRB 350; Combined Century
Theatres, Inc., et al., 120 NLRB 1379.
2 These figures do not include "off Broadway " productions because the producers and
theatre owners of these productions are not members of the League
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The employer members of the multiemployer League are en-
gaged in the theatrical business in New York City producing plays
for the legitimate theatre on Broadway, New York. Their operations
are retail and nonretail in character and substantially affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Although the Board has declined jurisdiction over certain enter-
prises in the amusement field,' it has not done so as a hard and fast
rule. For example, the Board has recently asserted jurisdiction over
an employer operating bowling alleys 4 More important, however,
the Board has asserted jurisdiction over other enterprises in the enter-
tainment industry more closely related to theatrical productions, such
as motion picture theatres,' motion picture producers,6 radio stations,'
and television stations.' Further, although theatres and theatrical
productions are subject to some New York State and city regulations,
they are not subject to the same "detailed regulation" that the Board
found applicable to race tracks in the Hialeah case, supra. Under
these circumstances, and as the operations of the members of the
League substantially affect commerce within the meaning of Section
2(6) and (7) of the Act, it would not effectuate the policies of the
Act for the Board to exercise its discretion under Section 14(c) (1)
of the Act to decline jurisdiction herein?
4. The Board's current standard for asserting jurisdiction over re-
tail enterprises within its statutory jurisdiction is a gross volume of
business of at least $500,000 per annum. Carolina Supplies and
Cement Co., 122 NLRB 88; Combined Century Theaters, Inc., supra.
The Employer League has a gross volume of business in excess of
$500,000 per annum. The Board's current standard for asserting
jurisdiction over nonretail enterprises within its statutory jurisdic-
tion is a minimum of $50,000 annual inflow (out-of-State purchases)
or a minimum of $50,000 annual outflow (out-of-State sales ). Siemons
Mailing Service, 122 NLRB 81; Edward Small Productions, Inc.,
supra; Independent Motion Picture Producers Assn., Inc., supra.
The Employer League has made out-of-State purchases of scenery in
excess of $50,000. It therefore appears that the operations of the
s Hialeah Race Course, Inc., 125 NLRB 388; Philadelphia Orchestra Association, 97
NLRB 548.
4 Dale Mabry Lanes, Ltd., Case No. 12-RC-1010, issued October 14, 1960 (not pub-
lished in NLRB volumes) ; of also Park Plaza Amusement Company, 124 NLRB 428.
6 Combined Century Theaters , Inc., 120 NLRB 1379, 123 NLRB 1759
e Edward Small Productions , Inc, 127 NLRB 283; Independent Motion Picture Pro-
ducers Association , Inc., 123 NLRB 1942.
7 Raritan Valley Broadcasting Company, Inc, 122 NLRB 90
8 Raritan Valley Broadcasting Company, Inc., supra; Television Film Producers Associa-
tion, 93 NLRB 929.
9 Section 14(c) (1) provides: "The Board, in its discretion, may . . . decline to assert
jurisdiction over any labor dispute involving any class or category of employers , where,
in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently
substantial to warrant the exercise of its jurisdiction : Provided, That the Board shall
not decline to assert jurisdiction over any labor dispute over which it would assert juris-
diction under the standards prevailing upon August 1, 1959."
MODERN MOTOR EXPRESS, INC. 1433
multiemployer League meet the Board's standards for assertion of
jurisdiction. See cases cited in this paragraph numbered 4 and also
Appliance Supply Company, 127 NLRB 319; Man Products, Inc.,
128 NLRB 546; Indiana Bottled Gas Company, 128 NLRB 1441,
where the Board indicated that jurisdiction over combined retail-
nonretail enterprises would be asserted under either the retail or the
nonretail standard.
Accordingly, the parties are advised, pursuant to Section 102.103
of the Board's Rules and Regulations, Series 8, as follows :
With respect to labor disputes cognizable by the Board under Sec-
tions 8, 9, and 10 of the Act :
1. The Board would assert jurisdiction over the operations of the
multiemployer League.
2. The Board limits its advisory opinion to the jurisdictional issues
before it and does not presume to render an opinion on the merits of
the cases or on the question of whether the subject matter of the dis-
pute is governed by the Labor Management Relations Act of 1947,
as amended.
MEMBER JENKINS, concurring :
I agree with my colleagues that the Board would assert jurisdic-
tion over the operation of the multiemployer League. However, I
would do so solely on the basis that its operations meet the Board's
nonretail jurisdictional standard, i.e., the League has made out-of-
State purchases in excess of $50,000. Siemons Mailing Service, 122
NLRB 81; Independent Motion Picture Producers Association, Inc.,
123 NLRB 1942; Edward Small Productions, Inc., 12.7 NLRB 283.
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Advisory Opinion.
Modern Motor Express, Inc. and Robert J. Hicks
Modern Motor Express, Inc. and Lloyd Jarvis. Cases Nos. 8-CA-
I156-1 and 8-CA-12156-2. January 30, 1961
DECISION AND ORDER
On October 12, 1960, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the General Counsel filed
129 NLRB No. 181.