NLRB v. Solis Theatre Corp.

• Decision Date: 14 November 1968
• Docket Number: No. 54,Docket 32201.,54
• Citation: 403 F.2d 381
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOLIS THEATRE CORP., and Interboro Circuit, Inc., Respondents.
• Court: U.S. Court of Appeals — Second Circuit

403 F.2d 381 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOLIS THEATRE CORP., and Interboro Circuit, Inc., Respondents.

No. 54, Docket 32201.

United States Court of Appeals Second Circuit.

Argued October 10, 1968.

Decided November 14, 1968.

Ian David Lanoff, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., N. L. R. B., Washington, D. C., on the brief), for petitioner.

William Gold, New York City, for respondents.

Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.

ANDERSON, Circuit Judge:

Interboro Circuit, Inc., owns and controls a chain of 15 incorporated theatres located throughout Manhattan, the Bronx, Brooklyn, Queens, Long Beach, and West Haverstraw, New York. Through its wholly owned subsidiary, Solis Theatre Corp., it operates the Freeman Theatre, which is one of three Interboro theatres in the Bronx.

On June 21, 1966, the United Independent Theatre Employees Union filed with the National Labor Relations Board a petition seeking to represent all regular and part-time doormen, cashiers, ushers and matrons employed at the Freeman Theatre. After a hearing, the Board's Regional Director, on August 16, 1966, decided that the unit of employees at this single theatre was appropriate for purposes of collective bargaining and issued a direction of election. The Board denied respondents' request for review of that decision, and the election was held on September 12, 1966, in which the employees of the designated unit voted unanimously for the Union.

The Union was duly certified on September 20, 1966 and requested recognition and bargaining on October 28, 1966, but the respondents refused to bargain on grounds that the unit was inappropriate and that the Union's discriminatory practices violated the National Labor Relations Act and Chapter VII of the Civil Rights Act of 1964. The Board rejected these defenses, found violations of § 8(a) (1) and (5) of the Act for interference with employees in the exercise of their rights and for refusal to bargain, and ordered respondents to cease and desist from their unlawful conduct and to bargain with the Union upon request.

In this petition for enforcement, the principal issue is the propriety of the Board's decision that the single theatre was under the circumstances the appropriate unit for collective bargaining. Section 9(b) of the Act places the responsibility for making this determination in the hands of the Board. Such unit determination necessarily involves the use of a large measure of informed discretion by the Board, and its decision is to be disturbed only if arbitrary and unreasonable. Packard Motor Car Co. v. Labor Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); N. L. R. B. v. St. John's Associates, Inc., 392 F.2d 182 (2 Cir. 1968); N. L. R. B. v. Sunrise Lumber & Trim Corp., 241 F.2d 620, 624 (2 Cir.) cert. denied, 355 U.S. 818, 78 S.Ct. 22, 2 L.Ed.2d 34 (1957).

We are aware of the difficulties in making unit determinations that, on the one hand, effect the policy of the Act to assure employees the fullest freedom in exercising their rights and, on the other hand, respect the interest of an integrated multi-unit employer in maintaining enterprise-wide labor relations. In this case, examination and consideration of the record as a whole brings us inescapably to the conclusion that the facts on which the decision of the Board is based are not supported by substantial evidence. The Board's action must under the circumstances be held to be arbitrary and unreasonable and accordingly, its petition for enforcement is denied.

It is clear from the record that Interboro, itself, is the center of operations for the whole theatre circuit. It directly handles all the film leasing and booking, purchasing, bookkeeping and advertising, sets admission prices and schedules, takes care of all theatre maintenance, and does all the clerical work, including the payment of bills and handling of payrolls. It appoints one director who is in charge of the operations of all fifteen theatres. It is of marked significance that Interboro sets a single labor policy for the entire circuit, which has resulted in similar wages, hours and working conditions for all of its employees....