American Broadcasting-Paramount Theaters, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1957

117 N.L.R.B. 13 (N.L.R.B. 1957)

AMERICAN BROADCASTING COMPANY 13
We believe that by accepting the stipulation of the parties in its
entirety, we would disenfranchise certain otherwise included em-
ployees hired after June 30, 1956, who should be permitted to vote.
Accordingly, we hereby modify, in part, the parties' stipulation to
provide that all employees in the included classifications, except the
delivery and receiving clerks, tally clerks, and gatemen, who have
been employed by the Employer for a minimum of 210 hours within
the past 12-month period immediately preceding the date of the is-
suance of this Decision and Direction of Election, shall be eligible to
vote.9 We shall adopt the stipulation of the parties concerning the
eligibility of delivery and receiving clerks, tally clerks, and gatemen,
and hereby find that employees in these classifications who were em-
ployed during the payroll period immediately preceding the date of
this Decision and Direction of Elections are eligible to vote.
[The Board dismissed the petition in Case No. 24-RD-27.]
[Text of Direction of Elections omitted from publication.]
MEMBER BEAN took no part in the consideration of the above De-
cision, Order, and Direction of Elections.
0 See American Fruit and Steamship Company, 88 NLRB 207.
American Broadcasting-Company, a Division of American Broad-
casting-Paramount Theatres, Inc., Columbia Broadcasting
System, Inc., National Broadcasting Company, Inc . and Com-
posers and Lyricists Guild of America , Petitioner. Case
No. 1-RC-4231. January 4,1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act,' a hearing was held before Norman H. Greer,
hearing officer.' The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
1 The original petition also named Don Lee Broadcasting Company as an Employer, and
requested a unit of employees of the Employers employed at Los Angeles, Chicago, and
New York. At the hearing , Petitioner amended its petition to delete all reference to
Don Lee Broadcasting Company and to the Employers' employees located in Chicago.
9 The request for oral argument of Songwriters Protective Association , herein called
SPA, is hereby denied as, in our opinion , the record and briefs adequately present the
issues and the positions of the parties.
a The hearing officer granted the Employers a continuing exception to his ruling that
testimony and evidence regarding composers ' relations with the Employers be permitted
to cover a 1-year period prior to the commencement of the hearing in this case. In view
of the casual and intermittent nature of such relationships , here in issue, the hearing
officer's ruling is affirmed.
117 NLRB No. 4.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds : 4
1. The business of the Employer
American Broadcasting Company, a Division of American Broad-
casting-Paramount Theatres, Inc., herein called ABC; Columbia,
Broadcasting System, Inc., herein called CBS; and National Broad-
casting Company, Inc., herein called NBC, are Employers engaged in
commerce within the meaning of the Act.
2. The status of the composers as employees or
independent contractors
The Employers, ABC, CBS, and NBC, are corporations engaged in
the network broadcasting of radio and television programs. Peti-
tioner requests a multiemployer unit of all composers of music and/or
words in connection with music ("words" refers only to lyrics and
not to any dramatic material other than lyrics) who are employed to
compose musical material for network television and radio programs,
originating in New York and Los Angeles, or for ABC, CBS, and
NBC programs which are broadcast by television or radio on a syndi-
cated basis, excluding arrangers, orchestrators, copyists, proof-
readers, librarians, and all other employees covered by existing con-
tracts with the Musicians.' In the alternative, Petitioner requests
separate units of these composers on a network basis.
The Employers contend, inter alia, that the units requested are not
appropriate, that many of the persons sought are covered by current
contracts with the Musicians, and that the individuals sought are not
employees within the meaning of the Act but, rather, that they are
independent contractors. SPA contends that the units sought are
inappropriate because they embrace neither a single local unit nor a
complete nationwide unit. SPA further alleges that, in any event,
the petition is premature. The Musicians intervened solely for the
purpose of protecting the rights of employees whom they represent
under present contracts with the Employers.
* SPA was permitted to intervene on the basis of a card showing ; American Federation
of Musicians , AFL-CIO, herein called Musicians , was permitted to intervene on the basis
of its contractual interest . Writers Guild of America ( East and West ), which also has a
contractual interest in certain employees of the Employers , did not intervene herein al-
though served with formal notice of the hearing.
5 Musicians has contracts with the Employers covering employees in the classifications
of musician , orchestrator , copyist ( arranger ), and conductor, which expire on January 31,
1959. Petitioner , by means of a letter of understanding between it and the Musicians,
has agreed not to represent , if certified , persons with mixed duties whose functions include,
in addition to composing , playing musical instruments , conducting , arranging , orchestrat-
ing, copying , proofreading, or library work.
It appears that most of the persons here sought are also members of the Musicians and
of SPA. Individuals who write lyrics where such lyrics are unaccompanied by music are
covered by agreements between the Employers and the Writers Guild of America.
AMERICAN BROADCASTING COMPANY
NBC and ABC
15
The record shows that, during the year preceding the hearing, NBC
did not enter into any agreements with composers calling for the com-
position of music, nor is there any evidence in the record to indicate
that NBC intends to engage composers for such purposes in the future.
While ABC did contract with 4 composers for musical compositions for
23 programs during the year preceding the date of the hearing, this
practice has been discontinued.' Furthermore, these contracts were
all completed prior to January 17, 1956, and, at the time of the
hearing, ABC had no contracts with composers nor was there any
evidence that any such contracts were contemplated by ABC in the
future.7 Accordingly, as there is no evidence that NBC or ABC cur-
rently enter into agreements or expect to enter into agreements with
any persons in the categories sought by Petitioner, we find that no
question affecting commerce exists concerning the representation of
employees of NBC and ABC within the meaning of Sections 9 (c)
(1) and 2 (6) and (7) of the Act.
CBS
CBS is the only Employer here involved that, at the time of the
hearing, had contract relationships with composers. CBS has used
two standard forms of contracts in dealing with composers in the
period from April 1955 to the date of the hearing. One of these forms
of agreement, introduced in evidence by Petitioner, was used by CBS
from April to October 1955, and contains the following relevant
language:
... We hereby employ you, and you hereby accept such employ-
ment, as a composer for the preparation of musical themes, bridges
and cues (herein called "musical materials"), in accordance with
the following terms and conditions.
1. You will furnish musical materials designated as fol-
lows: . . . [there follows a statement such as "complete back-
ground score for `Navy Log,' entitled the `LIBERTY' episode,
Production No. 5505."]
2. We will pay you the sum of ..., payable promptly after the
execution of this agreement, as compensation in full for your
services hereunder and for the rights hereunder granted.
G These were for the first 23 programs of the series "Warner Bros Presents." When
ABC discovered that its contract with Warner Brothers provided that ABC would fur-
nish the orchestra and conductors but that Warner Brothers would supply and pay for
the music , ABC discontinued contracting for the musical compositions for this series, and
billed Warner Brothers for the music already provided by ABC for the first 23 programs.
7 At times, a person employed by ABC as a conductor will compose bridges and cues of
music to produce a musical effect , which he cannot find in the library. However , the con-
ductor does this on his own initiative, is not required nor requested to do so by ABC, and
receives no additional compensation therefor . Moreover , persons with mixed duties such
as these are not sought by Petitioner . See footnote 5, above.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. You will arrange your work so as to make such musical ma-
terials available to us on such date as we may specify, ... You
will accept our instructions in the preparation of the musical
materials, will prepare them along any lines that may be suggested
by us, and will revise said materials if required by us. You will,
if we request, cooperate and collaborate with any other composer
or composers whom we may, in our discretion, assign to the prepa-
ration of musical materials for the program or programs for which
the musical materials are to be furnished. We shall have the
right to make such revisions, deletions, abridgments or other
changes in the musical materials as we, in our sole discretion, may
deem advisable... .
After protracted preliminary discussions, including discussions with
composers, a new basic form of contract was put into use in September
1955, or almost 3 months before Petitioner filed the instant petition.
This form of contract, introduced into evidence by CBS, contains the
following relevant language :
.. . The following, when signed by both of us, will constitute a
complete and binding agreement relating to the preparation and
furnishing of musical themes, bridges and cues (herein called
"musical materials"), by you, in accordance with the following
terms and conditions :
1. You will, as an independent contractor, compose, furnish and
deliver to us musical materials designated as follows: . . .8
2. We will pay you the sum of . . ., payable promptly after the
execution of this agreement, as compensation in full for furnish-
ing acceptable musical materials and for the rights herein
granted.
3. While you may compose the musical materials at such times
and places as you may choose, you will nevertheless arrange to
make said musical materials available to us on such date as we
may specify, . . . We shall have the right to make such revisions,
deletions, abridgments or other changes in the musical materials
as we, in our sole discretion, may deem desirable...."
8 The statements contained at this point in these contracts are of the same type as
those contained in the other foam of contract discussed above.
9 A few of the 14 contracts submitted to CBS contained some deviations from this gen-
eral pattern Thus, two contracts, in contrast with the usual fee-per-job arrangement,
provided for regular weekly payments at a uniform rate for assignments to be specified
in the future One of these contracts was for an 8-week period, while the other was of
indefinite duration terminable by either party upon the giving of 6 days' notice. In addi-
tion, 1 of these 2 contracts also required that the composer devote his "full working time
to this project " However, this clause is in apparent conflict with another clause per-
mitting the composer to "compose the musical materials at such times and places" as he
may choose as long as they were delivered upon such dates as specified by CBS While
it appears that CBS at one time had staff composers engaged by the week or month, there
AMERICAN BROADCASTING COMPANY 17
It may be seen, by comparing the 2 basic contract forms, that the
later type of agreement contains 2 significant changes: (i) The
composer is specifically referred to as an independent contractor,
and (ii) although CBS retains the right to make revisions and dele-
tions in the composition, there has been omitted the clause whereby
the composer himself is required to revise the material if so requested
by CBS.10 Both CBS and Petitioner agree that, in actual practice,
the relations between CBS and the composers have not changed under
the new form of the contract; both parties, however, draw different
conclusions from this fact. In implementing these contracts, the
practice of the parties has been as follows :
The CBS composers here sought compose musical themes, scores,
and incidental music 11-'for television and radio productions. Usually,
when a composer accepts an assignment, he will meet with a repre-
sentative of CBS, hereinafter called "the producer," to discuss the
type of music desired and the technical points which may be involved.
If the parties cannot agree on specifications, the composer will defer
to the producer's wishes.12 The amount of the fee and respective
rights in the music to be composed may also be settled at this time.
The actual composition of the music is normally done at the com-
poser's studio located in his home. Only a small proportion of the
material prepared by the composer is submitted to the producer for
his approval, the -balance being accepted as is. As to the materials
submitted for his approval, the producer may' suggest revisions to
the composer, which the composer may accept or reject. If the sug-
gested changes are rejected, the composition is either used as is or
not used at all. A composer may, on his own initiative, attend a
rehearsal at which his music is first played by the orchestra, in which
case he may make changes suggested by the producer. Any revisions
which are thereafter found necessary are made by the conductor
of the orchestra or by the musical director.
We turn now to the relevant legal considerations.
The legislative history of the 1947 amendments, to the extent here
relevant; shows that Congress intended that the Board recognize as
is uncontradicted testimony that CBS has retained no such composers since at least Janu-
a ry-1', 1956.
Although most of the cQntracts provided only for a fixed sum to be paid upon comple-
tion of the musical composition , some contracts provided an additional sum to be paid
if and when the music was actually used in a broadcast
10 It appears that, regardless of the type of contract, CBS continued to make payroll
deductions for social -security and income taxes until sometime in December 1955, shortly
after the original petition herein was filed.
n Incidental music includes underscoring , bridges, cues , act endings and beginnings,
;openirngs; closings„ and introductions . Underscoring may last from -4 to 6 or more mi-
utes at a time, while bridges may extend for from 10 to 20 seconds Openings , main titles,
and themes vary in length from 1%- to, 2 or 3 or more.. minutes, 'depending upon the
parrticu^ar,show. - -
12 When a theme is to be composed for a filmed production , the producer views the film
with the composer and indicates the spots where particular kinds of music are desired
423784-57-vol 117-3
1s DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees those "who work for wages or salaries under direct super-
vision," and, as independent contractors, "those who undertake to
do a job for a price, decide how the work will be done. . . .1'14
Whether or not social-security or State and Federal income taxes are
withheld from the compensation due an individual is not a decisive
factor in determining whether that individual is an employee or an
independent contractor,14 nor is the precise terminology used by the
parties in describing their relationship controlling. Rather, the
Board has consistently held that, in determining the status of -an
individual, the Act requires the application of the "right to control"
test. Thus, where the person for whom the services are performed
retains the right to control the manner and means by which the
result is to be accomplished, the relationship is one of employment';
while, on the other hand, where control is reserved only as to the
result sought, the relationship is that of an independent contractor:
The resolution of this question depends upon the facts of each case
and no one factor i s determinative.15
On the basis of the entire record in this case, we are satisfied that
the CBS composers sought by the Petitioner are independent con-
tractors, and not employees, within the meaning of Section 2 (3)
of the Act. Because of the nature of the art of musical compositions,
the specifications which -CBS transmits to a composer of necessity
relate principally to the effects to be produced by the music and not
to the manner in which that effect is to be achieved. Although CBS
may set a deadline, it otherwise has no control over the working hours,
the working conditions, or the place of work of the composer. The
amount of compensation paid a composer is normally not based upon
a weekly or hourly rate. Furthermore, so far as the record shows,
CBS at no time exercised, and no longer reserves, the right to require
the composers here sought to revise any composition. These composers
not only do their creative work in their own homes, but may work
for more than one employer at the same time.
Accordingly, with respect to the composers shown to be actually
engaged by CBS at the time of the hearing, we find that the degree of
control exercised over them in the performance of their work by
CBS is insufficient to establish an employer-employee relationship.
We find, therefore, that the CBS composers requested by Petitioner
are not employees, but are independent contractors.16
13 Los Angeles Evening Herald and Express, 102 NLRB 103; Columbia Reporting Com-
pany, 88 NLRB 168. See also House of Representatives Report No. 45, page 18, 80th Con-
gress, 1st Session.
14 Roy 0. Martin Lumber Company, Inc., 83 NLRB 691; Southwest Associated Telephone
Company, 76 NLRB 1105.
13H. E. Koontz Creamery, Inc., 102 NLRB 1619, and cases cited therein.
ie See Philadelphia Daily News, Inc., 113 NLRB 91, where the Board held that a car-
toonist in the editorial department of the newspaper, who sold three or more cartoons
TEXTRON, INC.' 19
Accordingly, no question affecting commerce exists concerning the
representation of employees of CBS within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act. As we have already
made a similar finding as to ABC and NBC, we shall dismiss the
petition.'"
a week to the employer under a contract whereby the cartoonist was compensated on a
fee-per-cartoon basis , was an independent contractor . See also Fulton County Glove Man-
ufacturers, Inc., 111 NLRB 266
17 In view of our decision herein, we find it unnecessary to -pass upon the other issues
raised by the parties.
Textron , Inc.' and Plywood Box Shook & Door Council District
9, IWA, AFL-CIO and Plywood Local Union No. 2784, AFL-
CIO, Petitioners . Cases Nos. 36-RC 122? and 36-RC-1223. Janu-
ary 8,1957 -
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before E. G. Strumpf, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 2
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.3
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
IWA contends that the Employer's Bandon and Norway, Oregon,
plants, each constitutes an appropriate unit, and seeks separate elec--
tions for the production and maintenance employees at each of these
two plants.' Although it originally sought the Norway plant as a.
separate unit in its petition, Local 2784 now takes the position that
the only appropriate unit is one covering all three plants of the Em-
1 The name of the Employer appears as amended at the hearing.
2In view of our dismissal of the petitions on other grounds, we find it unnecessary to
rule on the various motions to dismiss the petitions on contract-bar grounds.
3 The Petitioner in Case No. 36-RC-1222, herein called IWA, intervened in Case No.
36-RC-1223 on the basis of a showing of interest. The Petitioner in Case No. 36-RC-1223,
herein called Local 2784, intervened in Case No . 36-RC-1222 on the basis of a showing of
interest.
4 This position is taken by IWA as the Petitioner in Case No. 36-RC-1222 for the
Bandon plant , and as the Intervenor in Case No . 36-RC-1223 which is a petition by
Local 2784 for the Norway plant.
117 NLRB No. 5. ,