Association of Motion Picture and Television Producers, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 677 (N.L.R.B. 1975)

MOTION PICTURE AND TELEVISION PRODUCERS 677
Association of Motion Picture and Television Produc-
ers, Inc.' and Composers and Lyricists Guild of
America, Petitioner . Case 31-UC-58
July 29, 1975
DECISION AND ORDER DENYING
PETITION TO CLARIFY UNIT
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a unit clarification petition duly filed by the
Petitioner under Section 9(b) of the National Labor
Relations Act, as amended, a hearing was held on
various dates between September 16 and December
16, 1974, before Hearing Officer Zane Lumbley. On
December 31, 1974, the Acting Regional Director for
Region 31 issued an order transferring this case to
the Board. Thereafter, the Petitioner and the Em-
ployers filed timely briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. Those rulings are hereby af-
firmed.
Upon the entire record in this case, including the
briefs filed by the parties, the Board finds:
1. The Employer, a multiemployer bargaining as-
sociation (hereinafter called the Association) is com-
posed of some 70 producers of motion pictures and
television shows who are engaged in commerce with-
in the meaning of the Act to an extent clearly war-
ranting a finding that it will effectuate the purposes
of the Act to assert jurisdiction. We so find.
2. The Petitioner (herein called the Guild) was or-
ganized to represent the interests of composers of
music and/or words who fall roughly into two cate-
gories : staff composers and freelance composers. Ap-
parently all those who are currently Guild members
are freelance composers whose status as either "em-
ployees" or "independent contractors" within the
meaning of the Act's definition of those quoted terms
in Section 2(3) is here tendered for the Board' s deter-
mination via the unit clarification route. The Guild
1 Also parties to the cases are the following Employers : RKO; Columbia
Pictures Industries, Inc.; Metro -Goldwyn-Mayer, Inc.; Paramount Pictures
Corp .; Twentieth Century-Fox Films, Inc .; Universal City Studios, Inc.;
Warner Bros., Inc.; Walt Disney Productions, Inc.; Allied Artists, Inc.; and
Republic Pictures, Inc. The Petitioner also listed certain additional compa-
nies as Employers , but the Regional Director dismissed the petition as to
most of them on the basis of the Petitioner's stipulation that it was not
recognized by them and had no contract right to represent their employees.
The Petitioner did not appeal these dismissals.
stated on the record herein that only if the Board
finds the freelance composers to be "employees" will
it claim to represent them as a "labor organization"
within the meaning of Section 2(5) of the Act. For
the reasons hereafter set forth, we find that the
Board's unit clarification process, invoked by the
Guild through the petition herein, is not an appropri-
ate method for determining the questions presented
concerning the statutory status of the composers. We
therefore neither reach nor pass upon the statutory
status of the Guild as a "labor" organization.
3. As a predicate for invoking the Board's unit
clarification procedures herein, the Guild presents a
certification granted to it by the Board in 1955, fol-
lowing the conduct of an election held pursuant to an
agreement for consent election in which the parties
expressly agreed to define the unit as follows:
Composers of music and/or words in connec-
tion with music employed in the County of Los
Angeles, California by Allied Artists Produc-
tions, Inc., Columbia Pictures Corporation,
Loew's, Incorporated, Paramount Pictures Cor-
poration, Republic Productions, Inc., RKO Ra-
dio Pictures, Inc., Twentieth Century-Fox Film
Corp., Universal Pictures Company, Inc., and
Warner Bros. Pictures, Inc., excluding arrangers,
orchestrators, copyists, proofreaders, librarians,
and oll other classifications of employees cov-
ered by existing collective-bargaining agree-
ments with the American Federation of Musi-
cians, and all supervisors and independent
contractors.
The parties thereafter bargained pursuant to that
certification and concluded a number of contracts
respectively dated in 1960, 1965, and 1967. Their lat-
est agreement expired on November 30, 1971. The
history of their relationship since that date has been
critically affected by adamant positions each has tak-
en and continuously maintained on a demand, first
asserted by the Guild at the bargaining table in 1971,
that the producers release their ownership of the
copyrights to the individual composer-members of
the Guild who had respectively composed the copy-
righted product. In 1972, having lost a strike called in
aid of the demand, the Guild's composer-members
instituted antitrust proceedings in the Federal Dis-
trict Court for the Southern District of New York on
the theory that the composers were independent con-
tractors and that the producers were acting in viola-
tion of the antitrust laws by banding together to
maintain the ownership of the copyrights, supra.
When a decision, issued by that court in June 1974,
dismissed the suit on grounds that the basic underly-
ing dispute was arguable one over employer-employ-
219 NLRB No. 135
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ee matters under the Act, and hence within the
Board's exclusive jurisdiction,' the Guild then filed
the instant clarification petition seeking a determina-
tion as to whether the composers are within the scope
of the unit definition in the 1955 certification, supra,
as "employees" or outside the unit under its specific
exclusion of "independent contractors."
At the hearing on the unit clarification petition,
the Guild, as noted, refused to stipulate either that it
was or was not a labor organization representing em-
ployees under the Act. But it did stipulate that it has
made no effort to bargain on behalf of the composers
either with the Association itself or with any Associa-
tion producers since early 1972. And it further stated
that it would make no representation or bargaining
claims under the Act on any employer if the Board
affirms its position that the freelance composers are
independent contractors. The producers, in turn, de-
clared that they were there and then formally with-
drawing recognition from the Guild as the bargain-
ing representative of composers engaged by them,
asserting a good-faith doubt of the Guild's majority
status among those composers. This withdrawal was
applied by the producers irrespective of a determina-
tion the Board might make on the basis of the unit
2 Bernstein v Universal Pictures, Inc, 379 F .Supp . 933 (D .C N.Y., 1974),
reversed and remanded 89 LRRM 2471, 77 LC 1 10, 889 (C A. 2. 1975)
questions raised by the Guild.
Upon the basis of the foregoing facts, and taking
into consideration the record as a whole, we con-
clude that the Guild's petition is inappropriate in the
present circumstances and accordingly should be dis-
missed. It is well settled that the purpose of a unit
clarification petition is to define the unit status of
specified employees in order to aid the parties in
their current collective-bargaining relationship. Here,
however, there is no current collective-bargaining re-
lationship which a unit clarification would possibly
aid' The producers have withdrawn recognition
from the Guild, there have been no bargaining meet-
ings or even bargaining requests for over 3 years, and
the Guild itself refuses to stipulate that it is a labor
organization or represents employees under the Act.
Since no purpose would be served by entertaining the
Guild's petition, we shall dismiss the petition, and we
therefore deem it unnecessary to pass on the merits
of the Guild's contention that its freelance composer-
members are independent contractors rather than
employees under the Act.
ORDER
It is hereby ordered the petition be, and it hereby
is, dismissed.
3 Manufacturing Woodworkers Association of Greater New York, Inc, 179
NLRB 538 (1969)