Skouras Theaters Corp., 157 (1965)

DECISION AND ORDER

On June 21, 1965, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding, finding that the Respondent had 155 NLRB No. 19.

engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision.

The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the comply int and recommended that such allegations be dismissed. Thereafter, the Respondents and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting 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 [Members Fanning, Brown, and Zagoria].

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 Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications.2 - ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent Company, Skouras Theaters Corporation, New York, New York, its officers, agents, successors, and assigns, and Respondent Union, The International Alliance of Theatrical Stagehand Employees and Moving Picture Operators of the United States and Canada, Local 642, Palisades Park, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified:

1. Add the following as paragraphs A, 2, (a) and (b) to the Trial Examiner's Recommended Order, the present paragraphs A, 2, (a) and (b) and those subsequent thereto being consecutively relettered:

   1 Respondent Union's request for oral argument is hereby denied, as the record , exceptions, and briefs adequately present the issues and the positions of the parties.

   2In view of the fact that the Respondents herein have operated under a discriminatory hiring and referral practice for many years, and in view of the special circumstances which show that employment is and has been under the effective control of the Respondent Union, we deem it necessary and proper to invoke special remedial measures to insure that the Respondent Union operates a nondiscriminatory hiring and referral system. To achieve this objective, we shall direct the Respondent Union to keep permanent records (i.e., at least for 3 years ) of its hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made. These records are to be made available to the Regional Director or his agents. If a nondiscriminatory referral system is to be maintained, its records should, for example, indicate the date and time of employer requests for workers, and should include the type of qualifications requested.

   Out-of-work or availability lists should be maintained , indicating the date and time an individual requested a referral and the jobs for which he is qualified. Seniority in referral should be based on nondiscriminatory standards.

   SKOURAS THEATERS CORPORATION, ETC. 159 '(

   1. Keep permanent records of its hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made.

   '(b) Upon request of the Regional Director of the Board or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system.' 2. Add the following as the third and fourth indented paragraphs to the notice entitled 'Appendix A':

   WE WILL keep permanent records of our hiring and referral operations which will be adequate to disclose fully the basis on which each referral is made.

   WE WILL, upon request of the Regional Director for Region 22 or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system.

   TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   This proceeding, with all parties represented, was heard before Trial Examiner Max Rosenberg in Newark, New Jersey, on November 12 and 13, 1964, on complaint of the General Counsel of the National Labor Relations Board and answers of Skouras Theaters Corporation, herein called Skouras or the Respondent Company, and The International Alliance of Theatrical Stagehand Employees and Moving Picture Operators of the United States and Canada, Local 642, herein called the Union.1 At issue is whether the Union violated Section 8(b) (2) and (1) (A) of the Act, and whether the Company violated Section 8(a) (3) and (1) by certain conduct to be detailed hereinafter. At the conclusion of the hearing, the parties waived oral argument. Briefs have been filed by the General Counsel, the Union, and the Company, which have been duly considered.

   Upon the entire record and my observation of the witnesses, including their demeanor while testifying on the stand, I hereby make the following:

   FINDINGS OF FACT

1. THE BUSINESS OF RESPONDENT COMPANY Respondent Company is a New York corporation which is engaged in the operation of 32 motion picture theaters in the State of New York, and 14 in the State of New Jersey, including 7 theaters which are located in Bergen County in the latter State. The motion picture films which are exhibited in the Company's theaters are normally produced in the State of California or in foreign countries, and are sent to laboratories where positive prints are prepared. The prints are disseminated by the distributor to various exchange centers throughout the United States where they are obtained by motion picture theater operators under a film rental license. One such exchange center is located in the State of New York, from which Skouras licenses films for exhibition in its theaters in the States of New York and New Jersey. Films which are shown in the New Jersey theaters are transported by a delivery service from the New York exchange center to those theaters. The parties stipulated that, during the 9-month period ending on August 1, 1964, the Company's gross revenues approximated $8,555,352, of which amount approximately $1,295,002 was received from theaters located in the State of New Jersey. During the same period, the Company paid approximately $425,000 in license fees for films transported directly from the New York exchange center for exhibition in theaters located in New Jersey and, in addition, paid approximately $1,500,000 in fees for films exhibited in New York.

   I The complaint, which issued on September 30, 1964, is based upon charges filed and served on March 12, 1964.

   The Respondent Company contests the jurisdiction of the Board to proceed in this matter, contending that the operation of its theaters is a purely intrastate activity without any substantial impact upon interstate commerce. For the reasons set forth in Combined Century Theatres, Inc., 120 NLRB 1379, and Motion Picture Operators Union of Essex County (Stanley Warner Corporation), 126 NLRB 376, I find no merit in this contention. As the Respondent Company's annual gross volume of business exceeds $500,000, which is the applicable retail enterprise jurisdictional standard,2 I find that the Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   2. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act.

   3. THE ALLEGED UNFAIR LABOR PRACTICES A. The contentions The complaint alleges that, at all times material herein, the Union and the Company were parties to, and maintained and enforced, an exclusive referral arrangement, agreement, understanding, or practice which required as a condition of employment that all motion picture projectionists employed by the Company at its theaters in Bergen County, New Jersey, be referred by the Union for such employment .3 The General Counsel contends that, pursuant to said arrangement, agreement, understanding, or practice, the Company conditioned permanent employment upon referral by, and membership in, the Union; granted preference for temporary employment to union members; and refused to employ Sidney Jackson, the Charging Party, because he was not a member of the Union and had not been referred by that labor organization, thereby violating Section 8(a)(3) and (1) of the Act. The General Counsel further contends that the Union violated Section 8(b)(2) and (1)(A) by referring projectionists for employment with the Company, pursuant to the exclusive arrangement, agreement, understanding, or practice, only if they possessed membership in the Union, and then only in accordance with their union seniority based upon the period of time in which they had been members in good standing; by giving preference to union members in referring them for temporary jobs; and by refusing to refer Jackson for employment with the Company because he lacked union membership. The Union and the Company deny that they are privy to any exclusive referral arrangement, agreement, understanding, or practice. The Union asserts that Jackson was not dispatched for work with the Company because he had never requested a referral for such employment. The Company contends that it offered to employ Jackson, without regard to his status as a member of the Union, provided that he demonstrated his proficiency as a projectionist, but that Jackson failed a test given to him for that purpose.

      2. The evidence There is no serious evidential...