Solis Theatre Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 572 (N.L.R.B. 1967)

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Solis Theatre Corp . & Interboro Circuit , Inc. and
United Independent Theatre Employees Union.
Case 2-CA-I 1 171
June 30, 1967
DECISION AND ORDER
By MEMBERS BROWN,JENKINS , AND ZAGORIA
Upon a charge filed by United Independent
Theatre Employees Union, herein called Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 2, is-
sued a complaint, dated January 30, 1967, against
Solis Theatre Corp., herein called Respondent
Solis, and Interboro Circuit, Inc., herein called
Respondent Interboro, and both of said Respond-
ents at times collectively called Respondent Em-
ployers, alleging that the Respondents had engaged
in and were engaging in unfair labor practices within
the meaning of Sections 8(a)(5) and (1) and 2(6) and
(7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly
served on the Respondents.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
September 20, 1966, the Union was certified by the
Regional Director for Region 2 as the exclusive
bargaining representative of the Respondent Em-
ployers' employees in the unit found appropriate,'
and that since on or about November 11, 1966, the
Respondent Employers have refused and are refus-
ing to recognize or bargain with the Union as such
exclusive bargaining representative, although the
Union has requested and is requesting them to do
so. On March 21, 1967, the Respondent Employers
filed their answer, admitting in part, and denying in
part, the allegations of the complaint and requesting
that the complaint be dismissed.
The General Counsel filed a motion for summary
judgment and a petition in support of his motion,
and, on April 7, 1967, the Regional Director issued
an order referring the motion and petition to the Na-
tional Labor Relations Board. The General Coun-
sel alleges that no factual issues have been raised
that have not been litigated in the representation
proceeding2 and requesting, in view of the admis-
sions contained in the Respondent Employers'
answer, that the Board enter judgment against
Respondent Employers on the pleadings, making
findings of fact as alleged and admitted in the
answer, and concluding that, as a matter of law, the
Respondent has violated Section 8(a)(1) and (5) of
the Act as alleged in the complaint, and order an ap-
propriate remedy therefor. Thereafter, on April 14,
' Decision and Certification of Representatise in Case 2-RC-14387,
not published in NLRB volumes
Case 2-RC-14387, not published in NLRB volumes
1967, the Board issued an order transferring
proceeding to the Board and a notice to show cause
why summary judgment should not be granted. On
May 9, 1967, the Respondent Employers filed a
memorandum opposing motion for summary
judgment. The Respondent Employers also filed a
cross-motion to transfer the case to a Trial Ex-
aminer for a hearing on the complaint and answer.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
Ruling on the Motion for Summary Judgment
The record before us establishes that on August
16, 1966, the Regional Director for Region 2 issued
a Decision and Direction of Election in Case
2-RC-14387, in which a description of the ap-
propriate unit of the Respondents' employees was
set forth as:
All regular and part-time doormen, cashiers,
ushers, and matrons employed at the Em-
ployer's Freeman Theatre located at 1248
Southern Boulevard, Bronx, New York, ex-
cluding all other employees, guards, watchmen,
and supervisors as defined in the Act.
On August 25, 1966, the Respondents filed a
request for review, in the form of a brief, of the Re-
gional Director's Decision and Direction of Elec-
tion in Case 2-RC-14387
On September 9, 1966, the Board denied
Respondents' request for review of the Regional
Director's Decision and Direction of Election. On
September 12, 1966, a majority of the employees of
the Respondents. in the above-noted unit, by
secret-ballot election, selected the Union as their
representative for the purpose of collective bargain-
ing with Respondents. Accordingly. on September
20, 1966. the Regional Director certified the Union
as the exclusive bargaining representative of the
Respondents' employees in the appropriate unit.
In the memorandum opposing motion for summa-
ry judgment, the Respondents do not claim that the
Union did not request recognition as the certified
representative of the Respondents' employees in
the appropriate unit. Nor do the Respondents deny
that they declined to recognize the Union. The
Respondents' memorandum in opposition makes it
clear that they are seeking only to relitigate matters
decided by the Board in prior representation
proceedings, claiming that the unit found is inap-
propriate and the Union is not a labor organization
within the meaning of the Act. As an affirmative
defense to bargaining, the Respondents claim that
the Union practices discrimination on the basis of
national origin and thereby such certification effects
a violation of chapter VII of the Civil Rights Act of
1964, and that because of said discrimination, the
requirement that they bargain with the Union would
166 NLRB No.51
SOLIS THEATRE CORP. 573
subject them to violations of the Civil Rights
statute.
In the absence of newly discovered or previously
unavailable evidence, issues which were or could
have been raised in a related representation
proceeding may not be relitigated in an unfair labor
practice proceeding.'
Admittedly, the issues which Respondents seek
to raise in the instant proceeding relate to the cor-
rectness of the Board's disposition of the Respond-
ents' appeals regarding the appropriateness of the
unit and whether the Union is a labor organization
within the meaning of the Act, in the prior represen-
tation proceeding.4 However, it is plain that the por-
tion of Respondents' affirmative defense not
litigated in Case 2-RC-14387. at this time, raises
no material issue of fact which affects the validity
of the certification issued therein, and hence no
further hearing is warranted in connection
therewith. Furthermore, there is no allegation that
special circumstances exist herein which require
the Board to reexamine the determinations which
it made in the representation proceeding6
Inasmuch as the Respondent has previously raised
all material issues. there is no new issue which is
properly triable in the instant unfair labor practice
proceeding.
All material issues thus having been decided by
the Board or admitted in the answer to the com-
plaint, there are no matters requiring a hearing be-
fore a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before it. the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondents Solis and Interboro are and have
been at all times material herein corporations duly
organized under, and existing by virtue of, the laws
of the State of New York. Respondent Solis is and
has been at all times material a wholly owned sub-
sidiary of Respondent Interboro. Respondent Inter-
boro is and has been at all times material continu-
ously engaged in the ownership, operation, and con-
trol of a theatre circuit, encompassing 14 corpora-
tions, of which each of 13 corporations, including
Respondent Solis, operates a single moving picture
theatre and 1 corporation operates two moving pic-
ture theatres. Respondent Solis is engaged in
3 Pittsburgh Plate Glass Co v. N.L.R B., 313 U S 146; Metropolitan
Lye Insurance Company, 163 NLRB 579; Collins & Atkman Corpora-
tion , 160 NLRB 1750; United States Rubber Company, 155 NLRB
1298
Case 2-RC-14387
See, e.g , South Boulevard Theatre, Inc. and Interboro Circuit, Inc
Case 2-RC-14453, not published in NLRB volumes.
fi Respondents ' counsel offered as Exh. A in the cross-motion, a deci-
sion of the New York State Department of Labor, Unemployment In-
surance Referee Section , in Matter of Dorothy Leavy v. Midland Theatre
operating the Freeman Theatre in the Bronx, New
York. Respondent Solis and Respondent Interboro
are related businesses with common officers,
ownership, directors, and operators and constitute
a single integrated business enterprise; the directors
and operators formulate and administer a common
labor policy affecting the employees of ;aid compa-
nies. During the past year the Respondent Em-
ployers derived gross revenues from their opera-
tions in excess of $3,000,000; and during the same
period, Respondent Employers paid more than
$50,000 for rentals of films which were shipped
directly to their places of business from sources
outside the State of New York.
We find that Respondent Employers are, and
have been at all times material herein, employers
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Independent Theatre Employees Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein the following em-
ployees of the Respondents have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All regular and part-time doormen, cashiers,
ushers, and matrons employed at the Freeman
Theatre, exclusive of all other employees, guards,
watchmen, and all supervisors as defined in the Act.
2. The certification
On September 12, 1966, a majority of the em-
ployees in the Freeman Theatre, in the unit
described above, in a secret election conducted
under the supervision of the Regional Director for
Region 2, designated the Union as their representa-
tive for the purposes of collective bargaining with
Respondent Employers; and on September 20,
1966, the Regional Director for Region 2 certified
the Union as the collective-bargaining representa-
Corp. (unreported and unpublished) dated June 27, 1966, which decision
involved alleged "palming," that is, a wrongful act whereby the doorman
does not tear up the ticket of an incoming patron, but instead delivers it in-
tact to the cashier who then resells it to another patron Although this
decision was not available to the Respondent at the time of the hearings in
the representation proceedings , the argument that the cashiers and door-
men should not be included in the same unit because this might encourage
acts of larceny was set forth and rejected. The decision offered as Exh A
does not change our conclusion in this matter
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of the employees in said unit and the Union
continues to be such representative.
B. The Request to Bargain and the Respondents'
Refusal
On or about October 28, 1966, the Union
requested the Respondent Employers to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all employees in the
above-described unit. Commencing on or about
November 11, 1966, and continuing to date, the
Respondents did refuse and continue to refuse to
bargain collectively with the Union as the exclusive
bargaining representative of all employees in the
said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondents
in the appropriate unit described above, and that the
Union at all times since September 20, 1966, has
been and now is the exclusive bargaining represent-
ative of all the employees in the aforesaid unit,
within the meaning of Section 9(a) of the Act, and
that Respondents have, since November 11, 1966,
refused to bargain collectively with the Union as
the exclusive bargaining representative of their em-
ployees in the appropriate unit. By such refusal, we
hold that the respondents have engaged in and are
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondents, set forth in section
III, above, occurring in connection with their
operations as 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 ob-
structing commerce and the free flow of commerce.
REMEDY
Having found that the Respondents have engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that
they cease and desist therefrom, and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Solis Theatre Corp. and Interboro Circuit,
Inc., are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Independent Theatre Employees
Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. All regular and part-time doormen, cashiers,
ushers, and matrons employed at the Freeman
Theatre, exclusive of all other employees, guards,
watchmen, and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. On September 20, 1966, and at all times
thereafter, the above-named labor organization has
been and is the certified and exclusive representa-
tive of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about November 11, 1966,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the em-
ployees of the Respondents in the appropriate unit,
the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respond-
ents, Solis Theatre Corp. & Interboro Circuit,
Inc., Bronx , New York, their officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of em-
ployment , with United Independent Theatre Em-
ployees Union , as the exclusive and duly certified
bargaining representative of their employees in the
following appropriate unit:
All part-time doormen , cashiers , ushers, and
matrons employed at the Employers ' Freeman
Theatre located at 1248 Southern Boulevard,
Bronx, New York, excluding all other employees,
guards, watchmen , and supervisors as defined in the
Act.
(b) In any like or related manner interfering with
the right of the above -named labor organization to
bargain as the exclusive representative of the em-
ployees in the aforesaid appropriate unit.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request , bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay , wages, hours, and other
terms and conditions of employment and, if an un-
SOLIS THEATRE CORP. 575
derstanding is reached , embody such understanding
in a signed agreement.
(b) Post at the Freeman Theatre, Bronx, New
York , copies of the attached notice marked "Appen-
dix."' Copies of said notice , to be furnished by the
Regional Director for Region 2, after being duly
signed by the Respondents ' representative , shall be
posted by the Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps ,shall be taken
by the Respondents to insure that said notices are
not altered , defaced, or covered by any other
material.
(c) Notify said Regional Director for Region 2,
in writing , within 10 days from the date of this
Order , what steps have been taken to comply
herewith.
7 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with the right of the above-named
labor organization to bargain as the exclusive
representative of the employees in the ap-
propriate unit.
WE WILL, upon request , bargain with the
above-named Union as the exclusive represent-
ative of all employees in the bargaining unit
described below with respect to wages, hours,
and other terms and conditions of employment
and, if an understanding is reached , embody
such understanding in a signed agreement.
The bargaining unit is:
All regular and part-time doormen,
cashiers, ushers, and matrons employed at
the Employer's Freeman Theatre located
at 1248 Southern Boulevard, Bronx, New
York , excluding all other employees,
guards, watchmen , and supervisors as
defined in the Act.
SOLIS THEATRE CORP.
INTERBORO CIRCUIT,
INC.
(Employer)
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with United Independent Theatre Employees
Union as the exclusive representative of the
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the
Board 's Regional Office, 5th Floor , Squibb Build-
ing, 745 Fifth Avenue , New York, New York
10022 , Telephone 751-5500.