American Broadcasting-Paramount Theatres, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1961

134 N.L.R.B. 1458 (N.L.R.B. 1961)

1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
In view of my finding that the Employer has interfered with , restrained, and
coerced employees in the exercise of their rights under the Act, I shall recommend
that it cease and desist therefrom and post an appropriate notice. I shall recommend
dismissal of the charges of violation of Section 8(a) (3) of the Act in the discharge
of Frances Brown . In view of my findings that agents of the Employer interfered'
with the free choice of employees in the election herein , I shall recommend that
the election results be set aside and a new one held at such time as the Regional
Director finds appropriate.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act, and assertion of the Board 's jurisdiction is warranted.
2. By threatening employees with discharge for activities in connection with
union organization , the Employer has engaged in interference , restraint , and coercion
of employees ' rights under the Act and thereby committed an unfair labor practice
within the purview of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent Employer did not engage in any unfair labor practice within the
scope of Section 8(a) (3) of the Act by its discharge of Frances H. Brown nor did it
engage in conduct in violation of Section 8(a)(1) of the Act by its payment of
double time to female employees of its molding department for work on Sunday,
January 15, and Sunday, January 22, 1961, nor by threats of loss of work in the
event of union organization.
5. Agents of the Employer have engaged in conduct interfering with employees'
right to a free election , thus affecting the results of the February 2, 1961 , election.
[Recommendations omitted from 'publication.]
American Broadcasting Company , a Division of American
Broadcasting-Paramount Theatres , Inc. and Musicians Guild
,of America, Charging Party and American " Federation of
Musicians , AFL-CIO, Columbia Broadcasting System, Inc.,
and National Broadcasting Company, Inc. Case No. 21LCA-
4037. December 21, 1961
DECISION AND ORDER
On February 9, 1961, Trial Examiner James R. Hemingway 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 Intermediate
Report attached hereto. Thereafter the Respondent and the Inter-
venors filed exceptions and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
134 NLRB No. 148.
AMERICAN BROADCASTING COMPANY, ETC. 1459
As the Intermediate Report discloses, Musicians Guild of America
(herein called the Guild) filed separate petitions to represent the
musicians preparing and recording soundtrack incorporated in tele-
vision films who were employed by Columbia Broadcasting System,
Inc. (herein called CBS), American Broadcasting Company (herein
called ABC), and National Broadcasting Company, Inc. (herein
called NBC). These petitions, which originally sought individual
employer units limited to Los Angeles County, California, and later
by amendment requested single or multiemployer units so limited,
were opposed by these three employers and the incumbent union
(American Federation of Musicians, AFL-CIO, herein called AFM)
on the grounds that (1) a contract executed on June 5, 1959, barred
an election, and (2) based on bargaining history, only a nationwide
multiemployer unit was appropriate. As to (1) the Board found that
the contract contained illegal union-security clauses and was therefore
no bar, and as to (2) the Board, under Cavendish Record Manufactur-
ing Company, et al., 124 NLRB 1161, refused to consider the bargain-
ing history because of its finding that both the 1959 and prior
contracts contained illegal union-security clauses (Cases Nos.
21-RC-5709, 21-RC-5710, and 21-RC-5711, not published in NLRB
volumes).
At ABC the Guild won the election and was certified. But ABC
refused to recognize or bargain with the Guild, and the Trial Exam-
iner accordingly found that ABC thereby violated Section 8(a) (5)
and (1) of the Act. Respondent and the intervenors continue to as-
sert in this proceeding, as they did in the representation case, that
their mentioned contracts were valid and that bargaining history un-
der such contracts was material to and should have been considered in
connection with the appropriate unit question. Respondent further
claims that its position respecting the validity of the contracts has
since been sustained by the Supreme Court's decisions in International
Typographical Union, AFL-CIO (Haverhill Gazette) v. N.L.R.B.,
365 U.S. 706; and N.L.R.B. v. News Syndicate Company, Inc., et al.,
365 U.S. 695.
We are reluctant to reexamine at the complaint stage of an 8 (a) (5)
proceeding those issues resolved in the related representation case.
However, where the disputed matter involves a legal , as distinguished
from a mere policy, issue we will reconsider such underlying legal
premise if we believe our earlier resolution to be incorrect, particu-
larly in view of supervening Supreme Court holdings.'
If we did otherwise , we would be compelled in enforcement proceedings to urge a legal
argument which we do not believe and which the Supreme Court itself has held to be
incorrect . Rather than undermine the principle of administrative regularity and the
integrity of Board decisions , as our colleagues suggest, we believe that public confidence
in the administrative process requires a tribunal to admit its errors and not push a matter
to its erroneous conclusion under the guise of procedural regularity.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's basis for holding the union-security clauses unlawful
in the earlier representation case rested on the Board's refusal to give
any effect to deferral provisions in the same contract. The Supreme
Court, in the aforementioned I. T. U. and News Syndicate cases held, in
effect, that deferral clauses may not be so disregarded, and the Court,
accordingly, held that similar contracts were valid in the mentioned
proceedings.
We conclude that the contracts in this case were and always have
been valid agreements and that we should have considered the contract
bargaining history in resolving the appropriate unit question.2
As our certification of the Charging Union rested upon an incorrect
legal premise, we conclude that Respondent did not violate the Act
by refusing to honor such certification and we shall accordingly dis-
miss the complaint.'
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
Unlike our colleagues, we would, for the reasons stated by the Trial
Examiner, and for the additional reasons hereinafter stated, affirm
the finding of a violation of 8(a) (5).
No one questions that once a certificate issues in consequence of a
union victory in a Board-conducted election in an appropriate unit,
the parties are under a legal obligation to honor it. A refusal by
either party to bargain in that unit constitutes, absent special circum-
stances, a violation of the Act.
That is the situation here, as it clearly appears that the Guild was
certified after it won the election in the single-employer nationwide
unit which the Board found to be appropriate and the Employer has
refused to bargain in that unit. Yet, our colleagues condone such re-
fusal. They do so by reaching back to nullify a Board unit policy
which was operative at the time of certification and at the time of the
refusal. They thereby are undermining the principle of administra-
tive regularity, and are weakening the integrity of the Board's
decisions. This we are unwilling to do.
Moreover, apart from the foregoing, we do not believe that IT U and
News Syndicate cases, which postdated such refusal to bargain and
upon which the majority now relies, dictate a different result. The
Supreme Court did not purport to affect or disturb the Board's rule
2 In the Cavendish case, supra, the Board held that, in resolving appropriate unit ques-
tions, it would not consider bargaining history based on unlawful union-security contracts.
Since we now find the contracts valid , we do not reach the Cavendish point However,
our decision herein is not to be taken as an affirmance of the Cavendish rule
3In the representation cases, we are vacating all proceedings occurring after the close
of the hearing, and we are also dismissing the representation cases unless the Petitioner
desires an election in the historical , multiemployer nationwide unit and makes an adequate
showing of interest therein.
AMERICAN BROADCASTING COMPANY, ETC. 1461
in representation cases that a contract containing the clauses in ques-
tion may not constitute an effective bargaining history for purposes of
determining the appropriate unit. It did no more than to hold that
such clauses may not constitute an unfair labor practice per se. Clear-
ly, no unfair labor practice charge relating to such clauses is here
involved. Furthermore, it is elementary that a Board certification
resulting from proceedings, regular in all respects, cannot be ques-
tioned in a complaint case except for newly discovered matters or upon
a change of circumstances. We cannot agree with our colleagues'
apparent position that the Supreme Court's decision is such a new
matter, or a change of circumstances, as to affect the validity of the
Board's outstanding certificate herein, simply because, as we have
pointed out, the Court did not purport to pass upon the Board's unit
principles in representation cases. Accordingly, in our view the
Board's certificate is still valid and Respondent's refusal to honor it
is a violation of-Section 8(a) (5) and (1) of the Act.
Accordingly, we would affirm the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case involves a charge that American Broadcasting Company, herein called
the Respondent, refused to bargain collectively with Musicians Guild of America
(herein called the Guild) following the latter's certification by the National Labor
Relations Board (here called the Board) as the collective-bargaining representative
of all the Respondent's employees in a unit found appropriate by the Board. The
only issue involved is the propriety of the Board's unit finding.
As a result of separate motions to intervene, the Regional Director for the
Twenty-first Region of the Board issued orders granting such motions of American
Federation of Musicians, AFL-CIO (herein called AFM), of Columbia Broad-
casting System, Inc. (herein called Columbia), and of National Broadcasting
Company (herein called National).
At a hearing held in Los Angeles, California, on September 13, 1960, all the
parties appeared and participated. At the request of the parties, time was afforded
for the filing of briefs. Within that time, briefs were received from the General
Counsel, the Respondent, and the AFM. Each has been considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
With its principal place of business in New York, Ne'w' York, the Respondent is
primarily engaged in radio and television broadcasting. Respondent owns and
operates radio and television stations in the States of California, New York, Illinois,
and other States of the United States. Respondent annually receives revenue of a
gross volume in excess of $500,000 from the operations of its radio and television
stations. Respondent annually originates radio and television broadcasts in the
State of California which are broadcast directly outside the State of California, the
revenue from such broadcasts exceeding $50,000 annually.
The Respondent is engaged in commerce within the meaning of the National
Labor Relations Act, herein called the Act, 61 Stat 136, 73 Stat. 519, and I find
that it will effectuate the policies of the Act to assert jurisdiction.
II. THE ORGANIZATIONS INVOLVED
Musicians Guild of America and American Federation of Musicians , AFL-CIO,
are labor organizations admitting to membership employees of the Respondent.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The representation proceedings and the Board's Decision and Order
Upon separate petitions filed on March 6, 1959, by the Guild in Cases Nos. 21-
RC-5709, 21-RC-5710, and 21-RC-5711, the Board ordered a consolidated hear-
ing involving the three employers who are named herein as Respondent and as
Intervenors , at which hearing the AFM was permitted to intervene as a party to a
-contract.
In its petitions , the Guild had asked for three separation units (one for each
-company) limited, however, to Los Angeles County. The employers contended
that only a nationwide multiemployer unit was appropriate, basing their contention
-on asserted multiemployer bargaining history. The Board, however, found that
only a nationwide unit of certain employees of each employer i was appropriate
and, finding that the Guild had made an adequate showing of interest as to two of
the three employers in a nationwide unit, it ordered elections at each of the two.
Petitions for reconsideration by the employers and AFM were thereafter denied by
.the Board.
In an election held on March 7, 1960, for employees in the unit so found
appropriate, the Guild and AFM being on the ballot, the employees at the Respond-
ent chose the Guild as their collective-+bargaining representative, and the Guild was
certified by the Board on March 23, 1960.2
B. The request and refusal to bargain
On March 30, 1960, the Guild wrote a letter to the Respondent in which it sub-
mitted proposals for a collective-bargaining agreement looking toward discussions
thereon. On May 20, 1960, the Respondent, in a letter to the Guild, stated its
position to be that the Board's unit determination was erroneous in that it did not
find appropriate a nationwide multiemployer unit, and it declined to recognize or
bargain with the Guild as bargaining representative of its employees.
C. The contentions of the Respondent
The Respondent and the three Intervenors make the same contentions. They
contend that it has been the custom of the Respondent and the Intervenors jointly
to negotiate contracts for live radio and television separate from contracts for
television films. The representation case here involved was concerned only with
employees used in the production of television films-. Before the filing of the peti-
tions by the Guild, the latest television film agreement (1954) had expired in
January 1959. Despite the pending petitions, however, the Respondent and the
Intervenors in May 1959 proceeded to negotiate a new television film agreement and
executed it on June 5, 1959. Presumably the Respondent and the Intervenors would
not deny that this contract would be no bar to an election if the Board had found
the appropriate unit to be as alleged by the petitioner. However, they do contend
that this contract was a bar to an election in any unit broader than that petitioned
for by the Guild. Although the Guild amended its petition at the representation
case hearing to allege alternatively that the appropriate unit was either a single
employer unit or multiemployer unit, it still limited its request to employees in
Los Angeles County and never asked for the nationwide unit of separate employers
which the Board found to be appropriate. In ruling that the June 5, 1959, contract
nevertheless was not a bar, the Board noted that this contract contained illegal
union-security provisions and stated that such contract would not, therefore, bar an
election in the broader unit.
In their briefs, the Respondent and the AFM claim that the Board erred in
holding that the contract was illegal and that, in any event, the Board should not
have ordered an election in a unit not requested by the Guild. Being unfamiliar with
the antecedents of the case at the hearing, I received a limited amount of evidence
relative to the legality of the Respondent's practices under the contract. Having
reviewed the record since then, however, I find that such evidence is irrelevant and
I have given it no weight.
' No Issue is raised as to the classification of employees included in the unit found
appropriate. The unit found by the Board was composed of all musicians, including con-
ductors, leaders, arrangers, orchestrators, copyists, proofreaders, librarians, and recording
and sideline musicians, engaged for the production of television films, excluding composers
and all supervisors as defined in the Act.
2AFM won the election at Columbia Because of insufficient showing of interest by
the Guild, no election was conducted at National.
AMERICAN BROADCASTING COMPANY, ETC. 1463
1. The contention that the contract was not illegal
The Respondent argues that it had no opportunity in the representation case to
introduce evidence that, because of the lack of any illegal intent in enforcement of
the 1959 contract, the contract was not illegal. The Respondent contends that it
was precluded from introducing such evidence because the Board recently adopted
a rule that ambiguities concerning the meaning of such a contract will not be
resolved in representation cases. It cites Freezmor Metal Products Co., Inc., 124
NLRB 803. The Board there said:
In the Keystone decision, the Board stated that "no extrinsic evidence will be
admissible in a representation proceeding for the purpose of determining the
validity of a union-security or checkoff clause in a contract for bar purposes."
The reason for this rule is explicated at length in that decision. In sum, it is
designed to eliminate protracted representation hearings on subjects which are
properly encompassed by adversary unfair labor practice proceedings, and to
inject simplicity in this area of contract-bar rules. . . Accordingly, we shall
not consider the extrinsic evidence which was received in this case to resolve
the ambiguity concerning the validity of the non-security clause involved, nor
shall we consider such evidence in future proceedings of this kind.
From this, the Respondent conceives that, because the Board said such subjects
were properly encompassed by adversary unfair labor practice proceedings, this
unfair labor practice proceeding is intended by the Board as the proper one in which
to introduce evidence to resolve an alleged ambiguity and to show that the contract
of June 5, 1959, has not been given a discriminatory effect. The Respondent's
theory is unfounded, first because it assumes that the Board found the June 5, 1959,
contract to be ambiguous, and, second, because it assumes that the Board has sug-
gested a devious procedure for nullifying its own decision in the representation case
by permitting such evidence to be introduced in a complaint case where the only
issue is, as here, whether or not there was a refusal to bargain after an election and
certification of a collective-bargaining, representative. The Board, in its decision in
the representation case , said nothing about ambiguity in the 1959 contract. On the
contrary, it said , ". . . we hold that the resulting contracts [including the June 5,
1959, contract] containing provisions which exceed the limits of union security per-
mitted by Section 8(a)(3) will not be given weight as bargaining history." So far
from mentioning ambiguity, this language appears to hold that the language was bad
on its face. I do not, like the Respondent and the OFM, infer from the Board's cita-
tion, in its Decision and Direction of Election, of the Cavendish 3 and Keystone 4 deci-
sions, that the Board was implying that the June 5, 1959, contract was ambiguous.
Actually, however, it is -immaterial whether that contract exceeds the degree of union
security authorized by Section 8(a)(3) of the Act because it is ambiguous or be-
cause it patently exceeds the permissible limits.5 The Board's contract-bar rule is
the same.
The Respondent contends that, because the board has said that it will not decide
unfair labor practices in a representation case, it leaves open the question of the
legality of the contract and that such legality should be determined in the unfair
labor practice case involving a refusal to bargain. However, in the first place, the
Board does not ignore unfair labor practices in representation proceedings. In
-determining whether or not a contract should or should not, as a matter of policy,
constitute a bar to an election, the Board, although not actually finding an unfair
-labor practice, may consider the contract from the standpoint of whether or not it
conforms to the policy of the Act.6 It has done so in this case. There is no reason,
therefore, to reconsider the matter. In the second place this is not an unfair labor
practice case in which the making or maintenance of the contract is alleged to be
an unfair labor practice. There is here no need to decide what kind of conclusion
would be reached with respect to a possible violation of Section 8(a) (3) or 8(b) (2)
of the Act any more than there is need to decide whether or not there is a violation
,of Section 8 (a) (2) of the Act or whether making and maintaining the contract here'
contended to have been a bar to an election was a violation of Section 8(a)(1) or
8(b) (1) (A) of the Act, since the making and maintaining of the contract is not
alleged in the complaint to be an unfair labor practice of any kind. Yet the Re-
spondent apparently hopes to void the election and certification by showing that
-there was no discrimination under Section 8(a)(3) of the Act (ignoring possible
3 Cavendish Record Manafacturinq Company, et at, 124 NLRB 1161
* Keystone Coat. Apron & Towel Supply Company, et at , 121 NLRB 880
s Foothill Electric Corporation, 120 NLRB 1350
0 Foothill Electric Corporation, supra; Pilgrim Furniture Company, Inc, 128 NLRB 910.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violations of other sections of the Act). Even in unfair labor practice cases the
Board has found union-security contracts which exceed the permissible bounds
authorized in Section 8(a)(3) of the Act to be illegal although not intended to be
discriminatory and although no discrimination was actually practiced? So, in find-
ing in the representation case that the contract was illegal and no bar to an election,
the Board was not obliged to find a discriminatory intent in any event and there is
no reason to show now that there was in fact no discriminatory intent or practice.
2. Contention that the Board's decision was arbitrary and capricious
The argument is made that the Board's decision was arbitrary and capricious,
first, because of the refusal of the Board to consider the multiemployer bargaining
history, and, second, because the Board found a larger unit than that sought by the
Guild, which, the Respondent argues, never agreed to the larger unit, and, therefore,
the Respondent contends that the Board departed from its own established precedent.
The first argument apparently is based on the contention that the contract was
not illegal in its union-security provisions but that, even if it were, the Board should
have taken note of the multiemployer bargaining history which resulted in other
provisions in the contract. This argument assumes that the Board's reason for
giving no weight to bargaining history where it resulted in illegal union-security con-
tracts is a rule without reason. Such is not, 'however, the case. Experience has
shown that the assistance which results to unions from such a contract often deprives
employees of an opportunity to express themselves on a choice of a bargaining repre-
sentative. By Section 9(b) of the Act, the Board is vested with authority to decide
in each case "whether, in order to assure to employees the fullest freedom in exer-
cising the rights guaranteed by this Act, the unit appropriate for the purposes of
collective bargaining shall be the employer unit, plant unit, or subdivision thereof
The assurance of such freedom of employees in exercising their rights
is, therefore, paramount to any bargaining practices indulged in by an employer and
a union. In determining whether or not a contract is a bar or whether it will con-
sider bargaining history, the Board bears in mind the interests of the employees, and
it has directed elections despite the existence of a contract between an employer and
a union other than the one petitioning for an election even when it is not one the
making of which would constitute an unfair labor practice. So a contract may be
determined to be no bar where it is for an indefinite term or too long a term or
where a schism has occurred during the term of a contract.8 In each case the
Board is merely following a policy which will safeguard the rights and interests of
employees. So, the Board, in safeguarding such rights, can reasonably adopt a rule
treating as no bar to an election a contract which, although not violative of any sub-
section of Section 8 of the Act, might be of a sort which might tend (whether in
fact it does or not) to interfere with the employees' full freedom of exercise of the
rights guaranteed in the Act. If, in the Board's judgment, past bargaining practices
may not have been to the best interests of employees, the Board may disregard such
practices in determining the appropriate unit. There is nothing in the Act which
requires that the Board give weight to past bargaining practices. In sum, it is for
the Board in each case to decide what to take into account in determining the unit
which will assure employees the fullest freedom in exercising their statutory rights.
I find that the decision by the Board was not arbitrary or capricious on account of
the Board's refusal to consider bargaining history.
The Respondent also attacks the Board's decision as arbitrary and capricious
because the Board directed an election in a unit larger than any requested by the
petitioner and one which was not asked by anyone. The Respondent contends that,
in prior cases where the Board had directed an election in a unit larger than that
requested, the Board had received the assent of the petitioner to the larger unit
before directing an election in it and that in this case it neither asked nor received
such assent from the Guild. It is true that the petitioner in the Cavendish case,
cited by the Respondent, assented to the enlarged unit, but this was not a require-
ment. Often the Board, when directing an election in a unit larger than that re-
quested by the petitioner (which it will do only if the petitioner has made an ade-
quate showing of interest in the larger unit), will give the petitioner 5 or 10 days
within which to withdraw its petition and to decline to go on the ballot.9 The Board
did not do so in its Decision and Direction of Election in this case. There is no
7 Port Cheater Electrical Products Corporation, 97 NLRB 354.
8 See Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990;
Hershey Chocolate Corporation, 121 NLRB 901.
9 See Independent Linen Service Company of Mississippi , 122 NLRB 1002 ; Lear, Inc.,
123 NLRB 713; Don Allen Midtown Chevrolet, Inc, 118 NLRB 1337.
AMERICAN BROADCASTING COMPANY, ETC. 1465
indication, however, that the Guild sought to withdraw or refused to go through
with the elections directed. Perhaps the Guild might have had reason to complain
because of the failure of the Board to give it time in which to withdraw. If so, the
Guild would be the one to raise that objection. The Respondent and AFM cannot
do so for the Guild. The election is not void because of that omission and the Guild
has not sought to void it if it was voidable. The practice of the Board in directing
an election in a unit larger than that asked if the petitioner has made an adequate
showing of interest in the larger unit is one of long standing 10 and does not consti-
tute a departure from established practice.
3. Contention That the Board Did Not Comply With Administrative
Procedure Act
Finally, the Respondent contends that the Board acted improperly in applying a
new rule in the Keystone case, referred to above, without publishing it in the
Federal Register under the provision, presumably, of Section 3(a),(2) of the
Administrative Procedure Act. For the reasons stated in Foreman & Clark, Inc.,
98 NLRB 530,11 I find this contention to be without merit. In any event, the rule
was not changed in the representation proceeding out of which this case arises, and
before such proceeding began the Respondent was not without notice because the
notice existed in the published decision in the Keystone case.
D. Concluding findings
Having found that the Respondent was not excused from its duty to bargain with
the Guild, I find that the Respondent, in violation of the Act, refused to bargain
with the Guild, the certified collective-bargaining representative of the Respondent's
employees in the unit found by the Board to be appropriate, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed in
Section 7 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 connection with the operations of the Respondent described in section I, 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 obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Since I have found that the Respondent has engaged in unfair labor practices I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
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 Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Musicians Guild of America is a labor organization within the meaning of
Section 2(5) of the Act.
3. All musicians, including conductors, leaders, arrangers, orchestrators, copy-
ists, proofreaders, librarians, and recording and sideline musicians engaged by
Respondent for the production of television films, excluding composers and all
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
4. On March 23, 1960, and at all times material thereafter, Musicians Guild of
America was, and now is, the representative of the Respondent's employees in
the appropriate unit described above for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on May 20, 1960, and at all times material thereafter, to bargain
collectively with Musicians Guild of America as the exclusive representative of all
its employees in the above-described appropriate unit, the Respondent has engaged
10 See, for example, Imperial Molded Products Corporation , 61 NLRB 307, The Northern
Trust Company, 69 NLRB 652.
11 See also University Metal Products Co, Inc.. 98 NLRB 1184.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and is engaging in unfair labor practices within the meaning of Section 8(a) (5)
of the Act.
6. By the foregoing unfair labor practices the Respondent has interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. 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.]
Columbia Broadcasting System , Inc., American Broadcasting
Company, a Division of American Broadcasting -Paramount
Theater, Inc., National Broadcasting Company, Inc. and
Musicians Guild of America , Petitioner. Cases Nos. 21-RC-
5709, 21-RC-5710, and £1-RC,-5711. December 01, 1961
SUPPLEMENTAL DECISION AND ORDER
On December 29, 1959, the Board found a single-employer nation-
wide unit appropriate herein and directed separate elections therein.
Thereafter separate elections were conducted among the employees
involved but elections were held only for the employees of Columbia
Broadcasting System, Inc. (Case No. 21-RC-5709), and of American
Broadcasting Company (Case No. 21-RC-5710), the Petitioner hav-
ing failed to make an adequate showing among the employees of Na-
tional Broadcasting Company (Case No. 21-RC-5711). As a result
thereof Petitioner was certified as the exclusive bargaining agent of
the employees of American Broadcasting Co., and American Federa-
tion of Musicians of the United States and Canada, AFL-CIO, was
certified as the exclusive bargaining agent of the employees of
Columbia Broadcasting System, Inc.
The Board adopted said units, contrary to the position of the em-
ployers involved and American Federation of Musicians, rejecting
their contention that their contracts constituted a bar and also estab-
lished a bargaining history in a nationwide multiemployer unit, be-
cause certain clauses in said contracts were found to be illegal and the
deferral clauses therein were held not to remove such illegality.
The Board (Members Rodgers and Leedom dissenting) has now
determined in American Broadcasting Company, Case No. 21-CA-
4037 (134 NLRB 1458), on the basis of the Supreme Court decisions
in N.L.R.B. v. News Syndicate Company, Inc., et al., 365 U.S. 695, and
International Typographical Union. AFL-CIO (Haverhill Gazette)
v. N.L.R.B., 365 U.S. 705, that the above-mentioned deferral clauses
are effective to postpone operation of the illegal clauses, that said con-
tracts accordingly are valid and lawful ones, and that the contracts
must be considered to see if they establish a bargaining history for a
nationwide multiemployer unit.
134 NLRB No. 149.