Association of Motion Picture Producers, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1948

79 N.L.R.B. 466 (N.L.R.B. 1948)

In the Matter of ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. ;
PARAMOUNT PICTURES, INC.; `WARNER BROS. PICTURES, INC. ; LOEw's
INCORPORAT )D; 'UNIVERSAL PICTURES COMPANY, INC. ; RKO RADIO
PICTURES, INC.; COLUMBIA PICTURES !CORPORATION; SAMUEL GOLD-
WYN, D.B.A. SAMUEL GOLDWYN_ STUDIOS; REPUBLIC PRODUCTIONS,
INC.; HAL ROACH STUDIOS, INC.; AND TWENTIETH CENTURY-Fox
FILM CORPORATION and INTERNATIONAL ASSOCIATION OF MACIIINISTS,
LODGE 1185
Case No. 21-C-2735.-Decided September. 7, 1948
DECISION
AND
ORDER
i
On April 30, 1947, Trial Examiner Mortimer Riemer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices 1 and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner found
that the Respondents had not engaged in certain other alleged unfair
labor practices and recommended that those allegations of the com-
plaint be dismissed. The Respondents, the IAM, the Alliance, and
Local 789 filed exceptions to the Intermediate Report and briefs in
support of their exceptions; and the Respondents filed a brief in reply
to the brief of the IAM.
On July 13, 1948, the Board at Washington, D. C., heard oral argu-
ment, in which the Respondents, the IAM, the Alliance, and Local 789
participated.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, the contentions advanced at
oral argument, and the entire record in the case, and hereby adopts
1 The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the
Trial Examiner found the Respondents had violated, are continued in Section 8 (a) (1) and
8 (a) (3) (of the Act as amended by the Labor Management Relations Act, 1947.
79 N. L. R. B., No. 68.
466
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC.' 467
the findings, conclusions, and recommendations of the Trial Examiner,
with the additions and modifications set forth below.
1. We agree with, and adopt, the finding of the Trial Examiner that
the Association is an employer within the meaning of the Act.
2. We agree with the Trial Examiner's conclusion that under the
particular circumstances of this case the alleged "bonus" payments
were not unlawful; and we adopt his finding that,,the Respondents
did not violate Section 8 (1) of the Act by making such payments.
3. We agree with the Trial Examiner's conclusion that certain of
the Respondents discriminated against the employees listed- in Ap-
pendix A of the Intermediate Report; and we adopt his finding that
by such discrimination the Respondent producers Universal Pictures
Company, Inc., Loew's Incorporated, RKO Radio Pictures, Inc., and
Warner Bros. Pictures, Inc., and the Respondent Association violated
Section 8 (3) of the Act. We also adopt the Trial Examiner's finding
that the Respondents did not discriminate against Royal M. Caldwell,
Otto Keller, and Glenn C. Waters.
4. We agree with the Trial Examiner's conclusion that the evidence
does not support the allegation that the Respondents failed to bargain
in good faith with the IAM; and we adopt his finding that the
Respondents did not violate Section 8 (5) of the Act.
5. In view of our determination that the Respondents have not
failed to bargain in good faith with the IAM, we find it unnecessary
to make any determination concerning the appropriate bargaining
unit for machinists in the motion picture industry or any determina-
tion concerning the majority status of the IAM. Therefore, we
neither adopt nor reject the Trial Examiner's findings on these two
subjects, which are better left to representation proceedings.
ORDER2
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Universal Pictures Company, Inc., Universal City, Los Angeles
County, California; Loew's Incorporated, Culver City, California;
RKO Radio Pictures, Inc., Los Angeles, California; and Warner Bros.
Pictures, Inc., Burbank, California ; and their officers, agents, succes-
sors, and assigns shall each :
2 At oral argument before the Board , the Respondents stated that they had fully complied
with the recommended order of the Trial Examiner by reinstating with back pay the em-
ployees found to have been discriminated against and by posting the recommended notices.
If the Respondents have complied with the recommended order of the Trial Examiner, they
are not required by this Order to repeat their acts of compliance.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in the International Association of
Machinists, Lodge 1185, or in any other labor organization of its
employees by discharging, laying off, transferring, or demoting any
of its employees, or in any other manner discriminating in regard to
their hire and tenure of employment or any term or condition of
employment;
(b) In any oilier manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Association
of Machinists, Lodge 1185, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Make whole each of the employees against whom it was found to
have discriminated, for any loss of pay he may have suffered by reason
of the discrimination against him, in the manner set forth in the section
of the Intermediate Report entitled "The remedy," less his net earnings
during the period involved. Respondent Warner shall also transfer
Robert E. Davis to his former place of work in its camera machine
shop in the manner set forth in the section of the Intermediate Report
entitled "The remedy," if the transfer can be accomplished with due
regard to the physical facilities and employment practices of the
Respondent Warner;
(b) Post in conspicuous places throughout its studios copies of the
notice attached hereto and marked "Appendix A." 3 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, after being duly signed by the Respondent producer's repre-
sentative, shall be posted immediately upon receipt thereof, and main-
tained for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
In the event that this Order is enforced by decree of a Circuit Court, of Appeals, there
shall be inserted before the words "A DECISION AND ORDER" the words "DECREE OF
THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING "
ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 469
B. The Association of-Motion Picture Producers , Inc., Los Angeles,
California , and its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Advising , urging, or otherwise influencing its member pro-
ducers, directly or indirectly , to discourage membership in the Inter-
national Association of Machinists , Lodge 1185 , or in any other labor
organization of their employees by discharging, laying off , trans-
ferring, , or demoting any of their employees , or in any other manner
discriminating in regard to the hire and tenure of employment or any
term or condition of employment;
(b) Advising or influencing its member producers , directly or in-
directly, in any other manner to deny their respective employees rights
guaranteed under the Act;
(c) In any other manner interfering with, restraining , or coercing
the employees of its member producers in the exercise of the right to
self-organization, to form, join , and assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Immediately send copies of the notice attached hereto and
marked "Appendix B," 4 after they have been duly signed by a repre-
sentative of the Association, to all of its members, including all the
Respondent producers.' Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall also, after being
duly signed by the Association's representative, be posted immediately
upon receipt thereof and maintained for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Association to insure that said notices are not altered, defaced, or
covered by any other material ;
(b) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondents violated Section
8 (1) of the Act by making "bonus" payments; that the Respondents
violated Section 8 (5) of the, Act by refusing to bargain with the IAM;
that the Respondent Warner discriminated against Royal M. Caldwell
* See footnote 3, supra.
809095-49-vol. 79-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and) Otto Keller; and that the Respondent Paramount discriminated
against Glenn C. Waters.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 1185, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
WE WILL make the employees named below whole for any loss
of pay suffered as a result of discrimination.
Reginald C. Hill. John M. Mobley
Carl H. Homuth William J. Pickering
Elmer Johnson Glenwood C. Warren
Edward J. Lorenz W. C. Zimmerman
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
UNIVERSAL PICTURES COMPANY, INC.,
Employer.
Dated------------- By ---------------------------------------
(Representative ) ( Title)
Dated_____________
Dated_____________
Dated_____________
LOEw'S INCORPORATED,
Employer.
By ------------------==-------------------
(Representative ) ( Title)
RKO RADIO PICTURES, INC.,
Employer.
By ---------------------------------------
(Representative ) ( Title)
WARNER BROS . PICTURES, INC.,
Employer.
By --------------------------
-
----------
(Representative ) ( Title)
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. -471
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO OUR MEMBERS AND THEIR EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT advise or influence our members directly or in-
directly, to deny to their respective employees the rights guaran-
teed in the National Labor Relations Act;
WE, WILL NOT in any other manner interfere with, restrain, or
coerce the employees of any of our members, in the right to self-
organization, to form, join, and assist labor organizations, in-
cluding INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1185,
to bargain collectively through representatives of their own choos-
ing, and to engage-in concerted activities, for the purpose of col-
lective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the National Labor Relations Act.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC.
By ----------------------------------------------
(Representative ) (Title)
Dated-------=---------------
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Robert Rissman, for the Board.
O'Melveny & Myers, by Mr. Homer L Mitchell and Mr. W. W. Alsup, of Los
Angeles, Calif., for the respondents.
Mr. Wzlliann B. Esterman and Mr. T. R White, of Los Angeles, Calif., for
International Association of Machinists, Lodge 1I85.
Bodkin, Breslin & Luddy, by llr. Michael G. Luddy, of Los Angeles, Calif., for
the Intervenor, International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada, A. F. of L.
Mr. Robert W. Gilbert and Mr. Allan L. Sapiro, of Los Angeles, Calif., for
intervenor, Motion Picture Studio Cinetechnicians, Federal Labor Union 23968,
A. F. of L.
Mr. John C. Stevenson, of Los Angeles, Calif., for intervenor, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Studio Transportation Drivers, Local Union 399.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a second amended charge duly filed on July 18, 1946, by International
Association of Machinists, Cinema Lodge 11S5, herein called TAM, and other
charges filed at about the same time by certain individuals not now pertinent,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Twenty-first Region (Los Angeles, California), issued a con-
solidated complaint, dated July 19, 1946, Joining the Association of Motion
Picture Producers, Inc., herein called the Association: Paramount Pictures Inc.,
herein called Paramount ; Warner Bros. Pictures, Inc., herein called Warner;
Loew's Incorporated, herein called Loew : Universal Pictures Company, Inc.,
herein called Universal ; RKO Radio Pictures. Inc., herein called RKO ; Colum-
bia Pictures Corporation, herein called Columbia; Samuel Goldwyn Productions,
Inc., herein called Goldwyn Productions ; Republic Productions, Inc, herein
called Republic : Hal Roach Studios, Inc, herein called Roach ; and Twentieth
Century-Fox Film Corporation, herein called Twentieth Century, in one case
with eight other consolidated cases against Columbia, Republic, Warner, Loew,
Twentieth Century, RKO and the Association in a consolidated action alleging
that all of the foregoing companies and the Association had engaged in unfair
labor practices within the meaning of Section 8 (1), (3) and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act Copies of the consolidated complaint, together with notice of hearing
thereon, were served upon all of the above-mentioned companies, the Association
and the IAM.
By motion dated August 16, 1946, the Association, Columbia, Republic, Warner,
Loew, Twentieth Century. RKO, Paramount, Universal. Goldwyn Productions.
and Roach, moved to sever the case resting upon the charges filed by the IAM
from the other consolidated cases. The Board by order dated August 30, 1946,
granted the motion and directed the IAM case severed from the other consolidated
cases.
Upon the same second amended charge filed July 18, 1946, by the IAM, the
Board, by its Regional Director, issued an amended complaint, dated September
3, 1946, against Association of Motion Picture Producers, Inc., herein called re-
spondent Association; Paramount Pictures Inc., herein called respondent Para-
mount; Warner Bros. Pictures, Inc., herein called respondent Warner; Loew's
Incorporated, herein called respondent Loew, Universal Pictures Company, Inc..
herein called respondent Universal ; RKO Radio Pictures, Inc., herein called
respondent RKO ; Columbia Pictures Corporation, herein called respondent Co-
lumbia ; Samuel Goldwyn Productions, Inc., herein called Goldwyn Productions ;
Republic Productions, Inc., herein called respondent Republic ; Hal Roach Studios.
Inc., herein called respondent Roach ; and Twentieth Century-Fox Film Corpora-
tion, herein called respondent Twentieth Century, alleging that all of the fore-
going had engaged in unfair labor practices within the meaning of Section 8 (1),
(3) and (5) and Section 2 (6) and (7) of the Act. Copies of the amended
complaint, together with notice of hearing thereon, were served upon the counsel
for respondents and Goldwyn Productions at the opening of the hearing which
had begun on that portion of the consolidated complaint which was identical
with the allegations of the amended complaint involving charges filed by the
]AM and which was severed by the Board's order referred to above
The amended complaint alleged in substance that: (1) the Association was
RKO, Paramount and Universal, on various dates between February 28, 1946, and
an employer within the meaning of the Act; (2) the respondents Warner, Loew,
ASSOCIATION OF -MOTION PICTURE PRODUCERS, INC. 473
June 18, 1946, discriminated against certain named individuals by the discharge,
refusal to reinstate or hire, and transfer and demotion of the said individuals by
reason of their membership in the 1AM; (3) prior to February 28, 1946, and
thereafter a majority of the employees in a unit set forth in the amended com-
plaint and alleged to be appropriate, designated the IAM as its representative for
the purposes of collective bargaining, and the IAM, was and now is the exclusive
representative of all employees in the said unit for the purposes of collective
bargaining; (4) on or about April 17, 1946, all the parties stated that they would
not negotiate a closed-shop contract with the IA'-; (5) the parties have since
February 28, 1946, refused to bargain collectively with the IAM; (6) the parties
paid bonuses to employees who passed the picket lines or performed the work
of striking employees during the course of a strike in the motion picture in-
dustry, current between March 12 and October 31, 1945, and interrogated em-
ployees with respect to their union membership and affiliation ; and (7) by reason
of all of the foregoing the respondents and Goldwyn Productions had engaged in
violations of Section 8 (1), (3) and (5) of the Act and by these acts and conduct
interfered with, restrained, and coerced their employees in the exercise of the
rights guaranteed by Section 7 of the Act.
At the conclusion of the first day of the hearing. respondents asked for and
were granted leave to file their answer to the amended complaint Thereafter
on September 9, 1946, counsel for the respondents handed to all parties copies
of the answer. Therein, were admitted certain factual matters concerning juris-
dictional allegations of the amended complaint. It denied that the Association
was an employer within the meaning of the Act or that Goldwyn Productions
was engaged in the operation of a studio for the production of motion pictures.
The answer set forth certain facts concerning the strike of March' 12; 1945 ;
denied discrimination against any employees named in the amended co plaint ;
asserted lack of knowledge concerning the appropriateness of the uni ; and de-
nied the commission of any other unfair labor practice In denying that there
had been a refusal to bargain, the answer averred that since February 28, 1946,
there had been a dispute between the IAM, the International Alliance of Theatri-
cal Stage Employees and Moving Picture Machine Operators of the United States
and Canada, A F. of L., herein called the Alliance ; Motion Picture Studio
Cinetechnicians, Federal Labor Union, 23968, A. F. of L, herein called the
Federal Union ; and International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 399, A. F of L. herein called the
Teamsters, as to the appropriate bargaining unit and the right to represent
the employees therein ; that on June 25, 1946, the respondent Producers filed
with the Board a petition for certification of representatives to have the Board
certify the name or names of the representatives selected by the employees in
an appropriate unit or units; and that on July 2, 1946, it was agreed between
the respondent Producers and the afore-mentioned unions that they would abide
by the decision of the Board and forego further recognition or bargaining with
any union pending that determination.
Pursuant to notice, a hearing was held at Los Angeles, California, on various
dates between September 3 and October 28, 1946, before Mortimer Riemer, the
undersigned Trial Examiner, duly designated by the Chief Trial Examiner.
On the first day of the hearing, the Alliance and Federal Union moved to inter-
vene. The motions were granted. The Board, the respondents, the IAM, the
Alliance, and the Federal Union, were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-examine wit-
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses and to introduce evidence hearing on the issues was afforded all the
parties. f
Counsel for the respondents had moved for a bill of particulars addressed to
certain parts of the consolidated complaint which had not been passed upon
prior to the Order of Severance. After service of the amended complaint and on
the first day of the hearing, counsel moved orally for a bill of particulars, or in
the alternative for a more definite statement to determine whether the unit
alleged as appropriate in the amended complaint, included employees performing :
(1) services in the manufacture or building of properties or miniatures;
(2) services in the working or setting tip of action props;
(3) services in the supervision, setting up. operating, striking or storing
of equipment used in making special effects ;
(4) services in the servicing, maintaining and making of running repairs
on cameras ;
(5) services in the servicing, maintaining and making of running repairs
on laboratory equipment and apparatus ; and
(6) services in the servicing, maintaining and making running repairs of
equipment handled and operated by the Alliance,
on the ground that employees performing the afore-mentiond services were
covered under contracts between respondent Producers and the Alliance This
motion was denied.
The respondents likewise moved for a bill of particulars, or in the alternative
for a more definite statement, respecting the allegation of the amended com-
plaint that the respondents interrogated employees concerning their union mem-
bership and affiliation. This motion was granted in part and counsel for the
Board \vas directed to furnish the names of the respondents and their agents
who interrogated employees and the dates thereof Finally, counsel for the
respondents moved to strike from the amended complaint those allegations con-
cerning the payment of bonuses to employees who passed the picket•lines or
performed the work of strikers, on the ground that no charge incorporating the
afore-mentioned matters had been filed and on the further ground that the alleged
acts, even if committed, (lid not constitute an unfair labor practice. This motion
was denied.
On the fifth day of the hearing, during the examination of the witness Pat
Casey, the Board- sought to introduce in evidence a contract executed in 1942,
between the IADI and Samuel Goldwyn Studios, not named in the amended
complaint. Casey acknowledged that in negotiating the contract he represented
Samuel Goldwyn as an individual. He did not recognize the difference between
Samuel Goldwyn, Incorporated, Samuel Goldwyn Studios and Goldwyn Produc-
tions, the company joined in the amended complaint. In view of Casey's in-
ability to distinguish between the various Goldwyn enterprises, counsel for the
Board moved to amend all pleadings and testimony thus far adduced so that
wherever in the title or testimony there appeared, "Samuel Goldwyn Productions,
Inc.," it be amended to read, "Samuel Goldwyn Productions, Inc., operating as
Samuel Goldwyn Studios." The motion was denied.
Counsel for the Board then moved to amend the amended complaint, so that
wherever it read, "Samuel Goldwyn Productions, Inc.," it be amended to read,
"Samuel Goldwyn Productions, Inc., operating as Samuel Goldwyn Studios." The
motion in this respect was granted. Counsel for the respondents, without waiving
his objection to the foregoing, then moved to amend the answer to meet the
change in pleadings The motion was granted and the denials of the answer
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 475
were deemed amended accordingly. The answer was also amended to deny that
"Samuel Goldwyn Productions, Inc., does or ever did business as Samuel Goldwyn
Studios."
The hearing proceeded thereafter on the basis of the amendments achieved
as the result of the foregoing motions Towards the close of the Board's case
and during the examination of Marvin A Ezzell, vice president of Goldwyn Pro-
ductions and its general manager, as well as general manager of Samuel Goldwyn
Studios, herein called Studios, it appeared clearly that Goldwyn Productions did
not operate as the Studios. Ezzell was a careful, precise and credible witness.
He testified that the Studios as a legal entity meant Samuel Goldwyn d/b/a
Samuel Goldwyn Studios; the Studios operated a rental studio, whose services
and facilities were available to all producers, including Goldwyn Productions ;
Goldwyn Productions produced its motion pictures at the Studios ; Goldwyn
Productions employed no machinists but that the Studios did; and that Goldwyn
Productions had nothing to do with collective bargaining with employees in the
alleged appropriate unit. As a result of this testimony, the Board served notice
of its intention to further amend the amended complaint by adding as a party
respondent, Samuel Goldwyn doing business as Samuel Goldwyn Studios. On
September 18, 1946, counsel for the Board offered as a proposed exhibit a docu-
ment entitled, "Amendment to Amended Complaint, Amendment to Second
Amended Charge" and an original letter dated September 13, 1946 addressed
to Samuel Goldwyn doing business as Samuel Goldwyn Studios, together with
affidavits of service upon the said Goldwyn and Homer I. Mitchell, counsel for
the respondents. In effect and thereby, counsel for the Board sought to add
to the amended complaint, by motion, another party respondent. In support of
the motion, counsel for the Board argued that the amendment should be allowed
nune pro tune and that all testimony heretofore taken should apply as though
Samuel Goldwyn doing business as Samuel Goldwyn Studios had been in the pro-
ceeding from its outset. The motion was denied and the proposed exhibit rejected.
Thereafter counsel for the Board filed a telegraphic appeal to the Board from
the undersigned 's ruling and on September 19, 1946, advised the undersigned,
and all parties that the Board had denied the appeal.' Counsel then stated that
in the absence of any concession from Samuel Goldwyn consenting to be made
a party to the proceeding, as Samuel Goldwyn doing business as Samuel Goldwyn
Studios, a motion would be filed asking the undersigned to dismiss the entire
complaint without prejudice to the issuance of a new complaint correctly naming
all parties to the proceeding.
On September 20, 1946, counsel for the Board moved to dismiss the amended
complaint without prejudice so that a new complaint correctly naming all parties
could issue. Counsel for the respondents then moved that the amended complaint
be dismissed with prejudice or in the alternative, that his appeal from the
refusal of the Regional Director to bold a hearing on the Producers' petition for
certification of representatives, be granted 2 and that the representation case
be consolidated with the present proceeding and go forward on condition that
Samuel Goldwyn doing business as Samuel Goldwyn Studios join in the con-
solidated proceeding. The respondents' motions were denied and the motion
1 A copy of the teletype order denying the appeal was read into the record as follows
Re Association of Motion Picture Producers, Case 21-C-2735, Board today [Septem-
ber 19, 19461 denied Board counsel request for leave to appeal ruling of the Trial
Examiner in this case denying Board's motion to amend the complaint . Formal order
follows. N. L. R. B., Washington.
s Case No. 21-RE-31.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to dismiss without prejudice was granted . The hearing concluded on September
20, 1946, by reason of the latter ruling.
Upon a third amended charge, duly filed September 25, 1946, by the IAM,
the Board issued a complaint dated September 26, 1946, against all of the parties
named in the caption herein, and all referred to hereafter as the respondents.'
Copies of the complaint, together with notice of hearing thereon were duly
served upon the respondents , the IAM, the Alliance, the Federal Union and
Teamsters as well as upon their counsel and representatives.
The allegations of the complaint respecting the unfair labor practices are
the same as those in the amended complaint and heretofore set forth. The only
change was the substitution of Samuel Goldwyn d/b/a Samuel Goldwyn Studios,
for the Samuel Goldwyn Productions, Inc. of the amended complaint. The re-
spondents filed an answer on October 7, 1946, substantially the same as the
answer to the amended complaint With respect to respondent Goldwyn, the
answer admitted that he is an -individual doing business as Samuel Goldwyn
Studios engaged in the operation of a studio in Hollywood. California The
answer denied that the Association was an employer within the meaning of the
Act; set forth certain facts concerning the strike of i\Iarch 12, 1945, and again
denied the commission of any unfair labor practices.
The hearing resumed at Los Angeles on October 14, 1946 The Alliance and
Federal Union again moved to intervene and intervention was allowed. There-
after, the Teamsters were permitted to intervene. All parties stipulated that
the transcript of record made and the exhibits used in the previous hearing
between September 3 and 20, 1946, would constitute the record in the new pro-
ceeding; the record therein made would apply to all respondents named in the
complaint as though present on and after September 3, 1946, and named in the
amended complaint ; and that pagination of the record and exhibit numbers
would continue consecutively. Thereafter the hearing continued.
Just before the respondents rested, there was filed an amendment to the
answer, that on September 12, 1946, during the course of the hearing, United
Brotherhood of Carpenters & Joiners of America, Studio Carpenters Local 946, A.
F. of L., called a strike against the respondent Producers and on September 26,
1946, and thereafter, picket lines were established at the studios of the said
respondents and thereafter members of the IAM employed by the respondent
Producers refused to work ; on various dates following September 27, 1946,
various of the respondent Producers commenced replacing IAM members who
refused to work ; by reason of said replacements "and of further replacements
which will hereafter be made by respondent Producers," a 'pay roll then in
evidence did not reflect the names of the employees now employed and who
will hereafter be employed in the job classifications described in the unit set
forth in the Board's complaint. Thereupon, the Board moved to strike on the
ground that the amendment referred to matters subsequent to the issuance of the
complaint and on the further ground that the matters were highly speculative
and problematical. Respondents' counsel conceded in part, that some facts alleged
had occurred whereas others might not happen but that he did not want to "waive
the contention which I may have to make at some time that the status of employ-
ment as of June 10th [the date of the pay roll] should control in this case when
obviously fundamental and far-reaching changes are going on at this very
moment." The motion to strike was granted.
S The Producers are referred to collectively as the respondent Producers , the Association
as the respondent Association.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. , 477
At the conclusion of the hearing, the Board moved to conform the pleadings to
the proof with respect to such matters as dates, spelling of names, and similar
items. Over the objection of respondents' counsel, the motion was granted. All
counsel were offered an opportunity to present oral argument at the close of the
hearing but waived the opportunity. Thereafter the Board, respondents, and
Federal Union submitted briefs to the undersigned.
When the hearing concluded on October 28, 1946, leave was granted to the
respondents , Alliance and Federal Union, good cause being shown, to take the
testimony by deposition of W. J. Bassett, secretary-treasurer of the Los Angeles
'Central Labor Council, before the transfer of the case to the Board. At the time
of issuance of this Intermediate Report no application had been received to take
Bassett's deposition
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENTS
1. Columbia Pictures Corporation, herein called respondent Columbia, a New
York corporation having its principal office and place of business in New York
City, is engaged in the manufacture of motion pictures. It distributes motion
pictures which it produces, though some of its pictures are distributed by foreign
distributing companies and licensees. It holds the stock of various foreign dis-
tributing companies and of the following subsidiary corporations : Screen Gems,
Inc., a California corporation, and Columbia Pictures Corp. of Louisiana Inc., a
Louisiana corporation During 1943, respondent Columbia purchased approxi-
mately 106,000,000 feet of film from vendors located in the City of Los Angeles, and
expended approximately $13,600,000 in the production of motion pictures. For
the 1942-1943 season respondent Columbia produced 37 feature-length motion
pictures and made approximately 6,300 prints of these pictures, of which ap-
proximately 5,810 were shipped to points outside the State of California. Re-
spondent Columbia also produced, for use during the same season, 28 short sub-
jects, and made approximately 2,900 prints of these pictures, of which approxi-
mately 2,744 were shipped to points outside the State of California. The prints
and pictures hereinabove described were distributed by respondent Columbia
through its offices in New York City.
2 Republic Productions, Inc, herein called respondent Republic, a New York
corporation with its principal office located in New York City, operates studios
for the production of motion pictures in the City of Los Angeles, California. It
manufactures currently in excess of 30 feature-length motion pictures per year.
The pictures are distributed throughout the United States and foreign countries.
3. Warner Bros. Pictures, Inc, herein called respondent Warner, is a Dela-
ware corporation whose principal office and place of business is located in New
York City. Its principal studio is located at Burbank, California, where it
employs more than 3,000 employees, not including those employed on a daily
basis. It distributes motion pictures through Vitagraph, Inc., a subsidiary
corporation which maintains exchanges in 31 cities throughout the United
States. Respondent Warner usually produces more than 30 feature-length
pictures each year at its Burbank studio. During the fiscal year ending August
27, 1943, it expended more than $19,000,000 on the production of motion pictures.
Some of the prints of its pictures are printed in California, but others are printed
in New York from master negatives shipped from California for the purpose of
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
printing and distribution The pictures are distributed throughout the United
States and foreign countries.
4. Loew's incorporated, herein called respondent Loew, a Delaware corpora-
tion, engaged in the business of producing and distributing motion pictures,
and whose principal office is located in New York City, operates studios located
at Culver City, California During the course of each calendar year, the respond-
ent Loew produces more than 30 feature-length motion pictures, and a number
of cartoons and short subjects. It causes the prints of these pictures to be
distributed throughout the United States and various foreign countries. Re-
spondent Loew employs, many thousands of employees, both in the State of
California and in the State of New York.
5. Twentieth Century-Fox Film Corporation, herein called respondent
Twentieth Century, is a New York corporation engaged in the production and
distribution of motion pictures, having its principal place of business in New
York City and also maintaining a place of business in the City of Los Angeles,
California. Various subsidiary corporations distribute its motion pictures in
foreign countries. During the fiscal year of 1943. respondent Twentieth Century
purchased several million feet of positive and negative film, the greater propor-
tion of which was purchased within the State of California from suppliers who
obtained the film from sources outside the State of California During the same
period, it expended more than $20,000.000 in the production of motion pictures,
produced approximately 40 feature-length pictures, and caused more than 10,000
prints to be made of all its pictures. It employs approximately 3,500 production
employees in its studios at Los Angeles.
6. RKO Radio Pictures, Inc, herein called respondent R1:O. a Delaware cor-
poration having its principal office in New York City. operates a studio foi the
production of motion pictures in the City of Los Angeles, California. It manu-
factures currently in excess of 30 feature -length motion pictures per year. The
pictures so manufactured are distributed throughout the United -States and
foreign countries
7. Paramount Pictures Inc., herein called respondent Paramount. is a Call-
fornia corporation engaged in the production, distribution. and exhibition of
motion pictures, having a principal office and place of business in New York City,
and production facilities located in Los Angeles, California- Respondent Para-
mount is also a parent company with which are associated more than 100 sub-
sidiary and affiliated corporations , located both within and without the United
States, which are primarily engaged in the exhibition of motion pictures.
Respondent Paramount purchased more than 40,000,000 feet of film for use in
the production of motion pictures during the calendar year of 1943 from vendors
located in the City of Los Angeles . During the same period , it expended approxi-
mately $16 ,500,000 in the production of motion pictures ; produced 29 feature-
length pictures, of which approximately 4,500 prints were made: produced 13
short subjects , of which approximately 1,000 prints were made , and produced
104, issues of news reel, of which approximately 450 prints were made of each
issue These prints were distributed by respondent Paramount through a series
of exchanges maintained by it in this country and abroad.
8. Universal Pictures Company, Inc., herein called respondent Universal, a
Delaware corporation whose principal office is located in New York City and
whose studio is located at Universal City, Los Angeles County. California, is
engaged in the production of motion pictures , which are distributed principally
by Universal Film Exchanges, Inc. The raw film used by respondent Universal
in the production of motion pictures is shipped from New York to Universal
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 479
City, where motion picture negatives are made: the majority of such negatives
are then shipped to Foit Lee. New Jersey, where positive prints are made ;"'and
the prints are distributed from the laboratory in New York to various points
throughout the United States for the purpose of exhibition in motion picture
theaters. Respondent Universal produces more than 30 feature-length motion
pictures and 'a number of shott subjects during each calendar year There w
a constant flow in interstate commence of the prints made of such pictures
9 Samuel Goldwyn, doing business is Samuel Goldwyn Studios, herein called
iespondennt Goldwyn, is an individual engaged in the maintenance and operation
of a motion picture studio located in Hollywood, California, which respondent
Goldwyn lea,3es to poisons and corporations engaged in the production of motion
_ucttu'eS In the operation of his business, respondent Goldwyn purchases various
types of raw materials, equipment. and supplies of a total value in'excess of
a150,0OO annually. The motion pictures produced and made on the premises
or respondent Goldwyn with the equipment and facilities of respondent Goldwyn
arc sold and distributed throughout the United States and various foreign
countries
10• Hal Roach Studios, Inc. herein called respondent Roach, is a California
corporation engaged in the production, sale, and distribution of motion pictures
During World War II, the premises and facilities of respondent Roach were used
in the manufacture of various types of motion pictures for the Armed Services
Respondent Roach has now reacquired full use of its facilities and its produc-
tion will consist of many motion pictures which will be sold and distributed
throughout the United States and in various foreign countries.
11 The Association of Motion Picture Producers, Inc , herein referred to as
respondent Association, is now and has been at all tines since 1924, a corpora-
tion organized under and existing by N irtue of the laws of the State of California,
having its principal office and place of business in the City of Los Angeles, Cali-
fornia. The Association is a non-profit corporation organized for the following
purposes:
To assist in fostering the common interests of those engaged in the motion
picture industry in the United States, and especially in the State of Cali-
fornia, by establishing and maintaining the highest possible moral and artis-
tic standards in motion picture production, by developing the educational
as well as the entertainment value and general usefulness of the motion
picture, by diffusing accurate and reliable information with reference to
the industry, by reforming abuses relative to the industry, by securing
freedom from unjust or unlawful exactions, and by other lawful and proper
means
In promoting and furthering the aforesaid purposes and in the interests of its
members, the Association permits certain of its employees to perform services for
members of the Association as individual entities and the said employees on behalf
of the members of the Association engaged in and now engaged in the following
activities :
(a) The ascertainment of facts pertaining to wages, hours and working
conditions in the motion picture industry ;
(b) The analysis and dissemination of information so obtained;
(c) The representation of members of the Association as individual entities
in their respective labor relations with their employees and in collective bar-
gaining negotiations and adjustments of labor disputes;
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) The representation of members of the Association before the Board,
its agents and various other Governmental advisory or arbitration commis-
sions or bodies ;
(e) In general , to advise , instruct and confer with members of the Associa-
tion as individual entities in matters pertaining to their employer -employee
relations 4
IT. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Cinema Lodge 1185, is a labor organi-
zation admitting to membership employees of the respondent Producers.
International Alliance of Theatrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada: Motion Picture Studio Cme-
technicians, Federal Labor Union 23968: and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Studio Transportation
Drivers, Local Union 399, all affiliated with the American Federation of Labor, are
labor organizations admitting to membership employees of the respondent
Producers.
III. THE UNFAIR LABOR PRACTICES
A Is the Association an employer within the nicaiiing of the Act?
The Act defines an employer to include "any person acting in the interest of
an employer, directly or indirectly . . .' In a companion Intermediate Report
dated March 20, 1947, issued by the undersigned," the question of whether the
Association was an employer within the meaning of the Act arose and it was
there answered in the affirmative. The record herein presenting the same basic
facts, is even more persuasive and leads to the same conclusion
The answer acknowledges that the Association permits certain of its em-
ployees to perform services concerned with wages, hours and other conditions
of employment in the motion picture industry but that the services are per-
formed for Association members as individual entities and not pursuant to the
authority of the Association.
The Association is a non-profit California corporation organized in 1924, for
the purpose among other things to foster "the common interests of those engaged
in the motion picture industry in the United States." The respondent Produc-
ers herein are members of the Association, except possibly respondent Goldwyn.
However, Samuel Goldwyn Productions, Inc., is a member of the Association and
it is clear from the record that in collective bargaining negotiations respondent
Goldwyn is represented by the same individuals and to the same extent as are
the other respondent Producers who are members of the Association.
Fred E. Pelton is the Producers' labor administrator, which means, as he
testified, "the negotiations, contracts, interpretations, and the preparation of
labor contracts" for the 10 major producers, the respondents herein e Respond-
ents in their negotiations with the unions, function through a committee known
as the Producers' Labor Committee, herein called the Labor Committee, and
Pelton is responsible to the chairman of that committee. Pelton was first em-
ployed by the Labor Committee in 1939, at which time its 3 members represented
* The above findings of fact concerning the business of respondent Producers and the
Association are based upon allegations of the complaint and admissions contained in the
answer.
Matter of Columbia Pictures , et al, Case No. 21-C-2505
e Pelton did not know "their legal names" but he included "Goldwyn
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 481
respondents Paramount, Loew and Columbia. His salary is paid by the Asso-
ciation, a matter, he explained, of administrative convenience but he testified
that the Association had "nothing to do" with his activities.
At the time of the hearing the chairman of the Labor Committee was Ben-
jamin B. Kahane, vice president and general manager of respondent Columbia.
Kahane testified that the Labor Committee is a self-appointed group, meeting
with the unions to resolve matters applicable to the R orking conditions in the
studios of the producers who are members of the Association. Committee mem-
bers in addition to Chairman Kahane are, E J. Mannix of respondent Loew ;
Clifford Work of respondent Universal ; Mr Goldberg of respondent RKO ;
Marvin A. Ezzell of respondent Goldwyn ; and Herbert Freston, vice president
of respondent Warner. During the latter part of 1945, and all during the first
half of 1946, this committee negotiated on behalf of the Producers with the
unions concerning the multitudinous matters that arose out of the strike, its
settlement, and ensuing events The Association's Board of Directors then
consisted of Chairman Byron Price; Y. Frank Freeman of respondent Para-
mount ; Mannix of respondent Loew ; Work of respondent Universal ; Joseph
Schenck of respondent Twentieth Century ; Allen Wilson of respondent Republic ;
Peter Rathvon of respondent RKO ; Kahane of respondent Columbia ; Ezzell of
respondent Goldwyn ; Freston of respondent Warner and Warren Doane of re-
spondent Roach. Thus it is clear that at least five Members of the Association's
Board of Directors, Kahane, Manmx, Work, Ezzell and Freston, were members
of the Labor Committee
Acting for the Labor Committee on frequent occasions in connection with all
the matters at issue between it and the unions is Pat Casey, chairman of the
Producers' Committee The Producers' Committee is a committee of the presi-
dents of the major Producers. Casey and Pelton act as a team and one or the
other seems to have been present at every meeting between the Labor Committee
and any one of the unions.
When asked whether the Labor Committee acted for members of the Association,
Kahane testified :
Well, I think that you can say that they do because they are practically
the members of the Association as a representative on the Labor Committee
in the Association.
Questioned further, Kahane testified as follows :
Q. (By Mr. MITCHELL.) What has the Producers Labor Committee got
to do with the Association?
A. Well, nothing except some of the men who are on the Labor Committee
are members of the Board of Directors of the Association of Motion Picture
Producers. For example, Freeman, Work, Mannix, Freston, and myself-
five of us-are members of the Board and also on the Labor Committee.
Q. Well, other than the fact that you men happen to be on the Board of
Directors of the Association, what has the Producers Labor Committee got
to do with the Association of Motion Picture Producers, Inc., if anything?
* * * * *
The WITNESS. I don't think there is any connection between the two. The
Association of Motion Picture Producers meets about once a month, sometimes
only once every two months, and there we discuss matters generally about
the industry. But the Labor Committee has been meeting in the last year
or so almost every day, certainly very frequently.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perhaps more revealing than Kahane's testimony is the common acceptance by
union representatives and Producers' representatives of the fact that the Asso-
ciation does act for the Producers in labor, matters. For example in February
1946, when the Conference of Studio Unions,` hereinafter called CSU, served
demands that the Producers resume negotiations with the CSU, the demand was
served not upon the Producers but upon the Association. Similarly in March of
the same year when the Federal Union received its charter it notified not the
Producers of this fact, but the Association, and demanded of the Association,
reinstatement ofrits members who had been replaced as a result of the settlement
of the strike. In June 1946, the TAM demanded of the Association, a bargaining
conference with the respondent Producers. The close interlocking association
between the Labor Committee and the Association can be seen also in the
telegram that Kahane addressed to Herbert K. Sorrell, president of the CSU,
on February 8, 1946, wherein Kahane stated that the Labor Committee, "repre-
senting the respective studios who are members of the Association" would meet
with Sorrell's committee in the offices of the Association.
Not only the foregoing communications which are univ typical, but many others
in the record, indicate clearly that coirospondence from the unions was addressed
to the Association, and that the unions made then demands known to the Pro-
ducers by presenting them to the Association In connection with this type of
testimony and documentary evidence, settlement of the industry strike of July 1.
1946, was publicized in a statement appearing over the signatures of Byron Price,
chairman of the Association's Board of Directors, Sorrell, president of the CSU,
and Roy Brewer, international representative of the Alliance.
Also on this aspect of the case, when the March 1945 strike occurred, the Asso-
ciation published in the Daily Variety, three notices addressed to employees
explaining the position of the Producers concerning the dispute which had given
rise to the strike. In one of these notices, the Association pledged that its mem-
ber Producers would abide by decisions of the Board and recognize and bargain
with any union certified by the Board
It is clear that the Labor Committee is designated by the Producers who are the
Association. Unions submit their demands and proposals to the Association for
later action by the Producers. The undersigned is not persuaded that because
Pelton, for example, worked under direction of the Labor Committee that thereby
the Association, whose members designated the Labor Committee, can be said
to have divorced itself from the Labor Committee and hence cannot be found to
be an employer within the meaning of the Act. Realistically, in the under-
signed's opinion, when the Labor Committee acts on behalf of the Producers, the
Committee is taking a stand and advancing a position which is that of the Asso-
ciation, and there can be no valid distinction between the Association as such,
and the activities of its members. The undersigned is of the opinion that the
Association is an employer within the meaning of the Act, and it is so found.,
4 The Conference of Studio Unions "is a group of unions who bound themselves together to
protect the autonomy and the democracy of each of the member unions." Its members in-
clude locals of the Painters Union ; Carpenters Union ; International Brotherhood of Electri-
cal Workers ; Building Service Employees : Sheet Metal Workers ; the IAM, and various
talent Guilds. All but one were at the time of their affiliation with the Conference of
Studio Unions, members of the American Federation of Labor
n See N L R B v Son Tent-Luebbert Company, et at . 151 F. (2d) 483 (C. C. A 9),
cert den October 14. 1946. Gluek Brewing v. N. L. R. B , 144 F. (2d) 847 (C C. A. 8) ;
N. L R B. v. Long Lake Lumber Co., 138 F. (2d) 363 (C C. A. 9) ; N. L. R. B. v. Grower-
Shipper Vegetable Ass'n , 122 F (2d) 368 (C C A 9)
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 483
B. Factual background antedating issuantce of complaint
_ t ^
The strike of March 12, 1945
The issues herein arise out of a vast and extremely complex industrial pattern.
Years of dispute and conflict between the parties have not lightened the burden
of unraveling the facts for clear presentation and understanding. The basic
conflict has been briefly referred to as a "gigantic jurisdictional dispute" between
competing unions for job supremacy. But it is more than a struggle of competing
unions for jobs and security for members. It presents in addition, a situation
where fertile ground for jurisdictional disputes exists by reason of industrial
practices and habits that have arisen over a long period of years. A complete
'factual background would require study of the industry since its inception in
California. All that is presently attempted is a brief presentation of the facts
in connection with the employee discharges hereafter considered.
On March 12, 1945, Screen Set Designers, Local 1421, affiliated with the
Brotherhood of Painters, Decorators & Paper Hangers of America, A. F. of L.,
called a strike in the motion picture industry! The strike drew the immediate
support of the CSU with which Local 1421 was affiliated. Members of the CSU
such as the painters, carpenters and machinists left their jobs in support of the
strike
At the start of the sti ike Richard F. Walsh, international president of the
Alliance, issued instructions to Alliance members that they were to cross juris-
dictional lines and fill the lobs vacated by striking employees and not to honor
picket lines established about the studios. The Alliance had 12 locals under con-
tract with the Producers,10 but at the time of the strike had no one local for
employees engaged in machinists' work. The first week of the strike, President
Walsh made an agreement with the Producers' representatives thus described by
Brewer :
. . . the arrangement was that if this group or any subsequent group went
out on strike in the studios in an effort to cripple their operation for the
purposes of prosecuting a jurisdictional strike against the I. A. T. S. E, then
the I. A. T. S. E. would, insofar as it was possible, furnish the people neces-
sary to keep those studios in operation. That was the general terms of it.
It was not a written instrument. It was an understanding which we had.
Pursuant to this arrangement, the Alliance engaged Harry M. Shiffman, a member
of the Alliance projectionist local to find machinists who had the ability to fill
the jobs vacated by members of the IAM.
About May 1, 1945, Shiffman organized the Alliance Cinetechnicians Local 789,
which took into membership not only employees furnished to the studios to fill
the jobs of the machinists, but those who likewise filled the jobs of other striking
employees. Local 789 never had a contract with the Producers but enjoyed some
sort of verbal understanding that it represented those members which it had
supplied the Producers Also, during the strike. Alliance Local 44, the propmen's
local, furnished some 30 to 40 propmen to the various studios to perform the work
0 The strike and its background were fully considered in the Board 's decision in matter of
Columbia Pictures Corporation , 64 N L R. B 490.
10 Local 44, Propmen ; Local 80, Grips ; Local 165, Studio Projectionists ; Local 659.
Camera Men : Local 695. Sound Technicians ; Local 75, Costumers ; Local 706, Make-up
Artists ; Local 767. First Aid Employees ; Local 776, Film Editors ; Local 728, Studio
Electricians ; Local 683, Laboratory Technicians , Local 727, Laborers Thus, in a sense
the Alliance is an industrial union with its own craft distinctions.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
of IAM members. All in all, Shiffman recruited about 300 employees during the
strike to fill the jobs vacated by IAM members.
The strike was settled and the striking employees returned to work on October
31, 1945, after the Executive Council of the A. F. of L had issued a directive
terminating the strike 11 Following the strike, there was no further occasion
for Local 789 to supply employees to the various studios and it has admitted no
further members.
One of the provisions of the strike settlement provided that the employees
who had filled the strikers' jobs were to remain on the Producers' pay rolls for
a period of 60 days, the first 30 of which were to be used to compose jurisdic-
tional differences, failing which, during the next 30 days, a 3-man committee of
the A. F. of L Executive Council would "investigate and determine . . all
jurisdictional questions still involved." When IAM members returned to work
on October 31, 1945, members of the Alliance locals who left their own jurisdic-
tions to fill strikers' jobs returned to their accustomed occupations Members
of Shiffman's Local 789 remained on the pay rolls for the afore-mentioned 60-
day period.
At the October 1945 convention of the International Association of Machinists,
its Executive Council was directed to withhold payment of per capita tax to
the A. F. of L. Late in 1945, or early in 1946, the Los Angeles Central Labor
Council was directed to disassociate from participation in its councils, representa-
tives of the IAM. In January 1946, Brewer demanded of the Producers that
Alliance members who had been replaced by return of IAM members, be rein-
stated to those positions for the reason that the JAM was no longer affiliated
with the A. F of L.12 At or about the same time, according to Shiffman, he made
an agreement with "The Producers Association, the Labor Committee," that mem-
bers of Local 789 who had been taken oft the Producers' pay rolls at the end of
the 60-day period would be granted an indefinite leave of absence without pay.
He testified that the agreement was that "everybody that received the 60 day
pay, they agreed to carry them on leave of absence without pay." Both Brewer
and Shiffman on other occasions renewed demands that members of Local 789
be employed in machinist jobs instead of IAM members
On February 12, 1946, Shiffman sent the Association a wire asserting that
Local 789 represented a majority of the employees employed as machinists in
the respondents' studios and demanding recognition as the bargaining agent.
This claim was discussed on various dates in February with the Labor Com-
mittee, Shiffman demandilng in addition that his members be given jobs. On
March 7, 1946, the A. F. of L Executive Council issued a charter to the Federal
Union. Upon issuance of the charter, Local 789 turned over most of its members
to the newly chartered union. Shiffman remained on as business representative
and financial secretary of the Federal Union.
Following this and on March 18, 1946, Shiffman sent the Association this
telegram :
11 The provisions of the settlement and the working conditions under which the employees
returned to work, known as the Cincinnati Directive, are considered in greater detail in
later portions of this report and no extended comment is pertinent at this time
12 The first agreement entered into in 1937 between the-Producers and IAM contained this
clause "The provisions of this Agreement are predicated upon the understanding that the
Machinists' Studio Local No. 1185 is a part of the International Association of Machinists,
an affiliate of the American Federation of Labor and that upon any'change in such status,
the Producer shall have the right to cancel this Agreement "
0
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 485
This is to formally notify you that a Federal Labor Union Charter No.
23968 has been issued by the American Federation of Labor covering the
jurisdiction formerly held by the International Association of Machinists.
We, the undersigned charter members of this local union hereby demand
an end to the discrimination being practiced by the Producers Association
in denying work to any but members of the IA---NI, and demand an immediate
reinstatement of those men who were replaced by reason of the Cincinnati
Directive The issuance of this charter is conclusive proof of the fact that
the IAM is no longer entitled to any recognition as an A F of L union and
we must insist that no further recognition be given it as such.
According to Brewer, when the charter was issued the Producers were "con-
vinced" that they were under no further obligation to the IAM and agreed to
engage members of the Federal Union. This brought a strike threat from the
CSU which was settled, according to Brewer's testimony, by an agreement worked
out between Eric Johnston, then president of the Motion Picture Producers and
Distributors Association, and later to become president of the respondent Asso-
ciation, and Harvey Brown, International President of the IAM, that henceforth
only machinists would be hired who had been on the Producers' pay rolls. On
March 25, 1946, the Producers engaged about 35 members of the Federal Union
for work as precision and journeymen machinists. There is no record evidence
that any IAM member was displaced by this hiring.
On April 25, 1946, Shiftman posted a notice, containing the following, on the
bulletin boards in the respondent Producers' machine shops :
TO'WHODM IT MAY CONCERN :
By precedent, the Motion Picture Industry has always been recognized
as an American Federation of Labor industry.
Federal Labor Union No. 23968 has been granted a charter by the American
Federation of Labor covering the machine work formerly done by Lodge
1185 of the I. A. M., which has withdrawn from the American Federation
of Labor.
The laws of the American Federation of Labor are as follows : "No
organization nor person that has seceded , or has been suspended or expelled
by the American Federation of Labor or any national or international organi-
zation connected with the Federation, shall, while under such penalty, be
allowed representation or recognition."
Therefore, we are offering the opportunity to any machinists now working
in this jurisdiction to join Federal Labor Union No 23968 by contacting our
office at 6636 Hollywood Boulevard, Room 216, or our stewards on the lots,
and make application for membership in the new American Federation of
Labor Federal local.
In this same period of time, the Federal Union continued its demands of the
Producers that iii iview of the IAM's suspension, they cease discrimination
against "A. F. of L. men" and hire members of the Federal Union who had
been taken off their jobs as a result of the Cincinnati Directive. The Federal
Union also applied to the Central Labor Council for assistance. Accordingly
about May 22, 1946, Brewer representing the Alliance, Joseph Tuohy, the Team-
sters, and W. J. Bassett, secretary of the Central Labor Council, met with the
Labor Committee at the Association. The Labor Committee was told that since
the IAM was no longer affiliated with the A. F. of L, members of A. F. of L.
13 Shiffman was reprimanded for this conduct by respondents Loew and RKO.
809095--49-vol. 79-32
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions, including the Alliance and Teamsters , would not handle any equipment
worked on by the IAM. • m u
Concerning this meeting , Kahane testified as follows :
At that time . . . they made the demand that they cease having this work
done with the I . A. M. machinists involved or else they would declare the
sets hot and their members wouldn't handle them. We protested very
vigorously against any such demand and said that it was very unfair, putting
us in a very bad position . We pleaded with them not to ask us to take any
such action and asked them not to characterize sets as hot , and again said
that this was a jurisdictional situation that we weren't concerned with, and
"Why can't it be handled by the National Labor Relations Board? If there
are any arguments as to who should represent whom and what unit there
should be , go ahead and thresh it out in court , but why put us in this
position again? You will put us in the position of more unfair labor practice
charges. " And they said they had given the matter their thought and this
was their studied and deliberate decision and it was up to us to put this
into effect , and we said, "When'? " and they said "as of now " And we said,
"Well , now, that is too quick for us to make any decision. At least give us it
chance to think this thing out" and he said, "All right , we will give you 21
hours ; we will send you a wire and tell you as of 24 hours that it must be
put into effect."
The producers then met among themselves-the meeting adjourned and
the producers met among themselves and the first time that it happened,
we had our choice of . doing the same thing, laying oft the teamster who
refuses to handle the automotive truck equipment and lay off the cameraman
who refuses to work on the set, but we were well aware of the fact that
to do that would paralyze the entire industry In the one case it meant that
the I . A. T. S. E. in control of projectionists throughout the theatres and
exchange employees throughout our exchanges and the dominant and most
important positions in our studios , would mean that we would have to close
our studios , close our exchanges , close our theatres, face an irreparable
loss, probably not be able to survive because with theatres and exchanges
closed and studios closed , I don ' t think the industry could last a month,
because it meant millions of dollars a week literally.
As against taking that course or taking the - or letting the machinists go,
the few machinists that were involved go , we decided on operating our studios,
on keeping our studios and theatres open.
In the other case you might ask why we didn't do it for the other gentle-
men, and I simply say that we had found after nine months of strike that at
least we could keep our studios open , be it at a high cost, by engaging other
painters and other carpenters It's just a matter of economic pressure on
producers ; they took the course that would enable them to survive . That's
all.
Following the meeting, Bassett sent each of the respondent Producers the fol-
lowing letter :
This letter is to confirm the position taken by the representatives of the
Los Angeles Central Labor Council and various American Federation of
Labor Unions, whose members are employed in the Motion Picture Industry,
in the meeting held in the offices of the Association of Motion Picture Produc-
ers on this date.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 487
The position of the Los Angeles Central Labor Council is that the Council
is calling upon all affiliated Unions, whose members are employed inllthe
Motion Picture Industry, to refuse to accept, work with or handle any prod-
ucts going to or coning from machinists employed by the studios who are not
members in good standing in the American Federation of 1.•ibor.
In order to avoid any misunderstanding, the Council is not presuming to
call a strike in the Motion Picture Industry. All members will be requested
to continue to report to work and perform their duties as usual, except that
they .will reserve the right to refuse to perform operations requiring them
to accept, work with or handle any products going to or coming from ma-
chinists who are not members of the American Federation of Labor.
All persons presently employed to do machine work of any nature in the
studios have the opportunity of becoming members of the Motion Picture
Cineteclinicians Local 23968 [the Federal Union] which is recognized by the
American Federation of Labor as the organization having proper jurisdiction
over machine work, or the Studio Transportation Drivers Local 399 having
jurisdiction over, auto mechanics. The A. F of L. members will recognize all
work performed by iueiubeis of these locals
The next day, Bassett sent each respondent Producer this telegram.
Pursuant To Our Communication of May 22, 1946 Please Be Advised That
All Members Of The American Federation of Labor Are Being Requested To
Comply With The Conditions Set Forth In The Letter On And After Wed-
nesday May 29, 1946.
After.the Central Labor Council took its action, members of the Carpenters
and Painters Unions in retaliation about June 13, 1946, refused to work on
technicolor sets where the technicolor camera had been or was being serviced
by members of the Federal Union Alliance members refused to work on cameras
unless serviced by members of the Federal Union and Teamsters refused to
handle automotive equipment that had been serviced by IAM members. About
June 22, 1946, representatives of the Producers conferred with Brewer and in-
formed him that they were going to file a petition for certification of bargaining
representatives to resolve the conflict. The Producers wanted Brewers' as-
surance that the Alliance would accept the Board's determination as to who
represented the machinists. Brewer agreed to withdraw the order on "hot sets"
provided the Producers agreed not to discriminate against members of the Federal
Union. Shortly thereafter the "hot set orders" were revoked.
In this connection, before passing to a consideration of the individual dis-
charge cases , it should be pointed out that no member of the Alliance or Teamsters
was discharged or otherwise disciplined because of refusal to work on equip-
ment serviced by the IAM. Likewise, as is clear from Kahane's testimony, set
forth above, and as will appear more fully hereafter, employees were discharged
or otherwise discriminated against because of their IAM membership. Finally,
Brewer testified, contrary to Kahane's testimony, that he knew of no specific
threat to take out Alliance projectionists and distribution employees throughout
the country over the "Machinists issue" or over any other issue in dispute be-
tween the unions and the Producers in the spring of 1946. Thus it may be that
Kahane's testimony more accurately reflects, not an actual threatened course
of conduct, but rather the Producers' fears of ultimate retribution unless they
acceded to the Alliance demands
488 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
C. The discharge cases
1. Respondent Universal
The complaint alleges the discriminatory discharge of John M. Mobley and
Reginald G. Hill 34 on May 29, 1946. and a refusal to reinstate until June 26,
'1946. and July 5, 1946, respectively, for the reason that both Mobley and Hill
were members of the IAM.
Mobley and hill are automotive mechanics employed in the garage of re-
spondent Universal. Both are members of the IAM. Their superior is George
Smith, superintendent of transportation, who supervises the work of the
Teamsters who drive automotive equipment and IAM members who repair it.
Day-to-day assignments on the job are given by Foreman Lon Price.
On May 29, 1946, on reporting for work, Price asked Hill it he had seen the
bulletin board There Hill read a Teamsters' notice that effective as of that
date, the Teamsters "were not going to handle any work coming to or from the
Machinists." That evening Hill and Mobley were assigned to work on a bus.
While the two men were at work, Hill was called to the shop telephone to speak
to Lewis B. Shank, assistant business agent of the Teamsters. Shank told Hill
that the "heat" was on ; both men would have to take out cards in the Teamsters
to retain their jobs ; but that they would be permitted to retain their IAM mem-
bership Sometime between 10 and 11 p. m. Smith returned to the garage and
according to Mobley's uncontradicted testimony addressed the two mechanics as
follows : I
If I had known you fellows was going to be laid off and if I had known
this was going to happen 1 would not have had you do the work. . . . You will
have to report to, the personnel office, Mr. McCausland, on Friday morning.
Mobley and Hill reported to McCausland on May 31, 1946. Hill testified that
McCausland told the men they were laid off "due to the Teamsters refusing to
move the bus." The men were told to take home their tools. The undersigned
finds based upon the above testimony of Hill and that of Kahane quoted heretofore
that Hill and Mobley' were in fact laid off because of their IAM membership and
the Teamsters' refusal to drive equipment repaired or serviced by them.
About June 11, 1946, Shank asked Mobley to join the Teamsters. Apparently
he agreed to do so for he was issued a Teamsters permit. Shank then told Mobley
to return to work and on June 13, Mobley was rehired on his old job.
On June 11, 1946, Foreman Price, who was an IAM member, telephoned Hill
and told him Mobley was signing up with the Teamsters and urged him to talk
to Shank. Price told Hill that "it looks like that they [the Teamsters] have
control of things." Hill signed a Teamsters' card and returned to work on his
same job on July 5, 194616
2. Respondent Loew
The complaint alleges that respondent Loew discharged W. E. Zimmerman on
May 29, 1946, and refused, to reinstate him until June 26, 1946, because Zimmer-
man was a member of the IAM.
14 Names of individuals are spelled as given at the hearing. Pursuant to the motion to
conform, the complaint is deemed amended accordingly.
16 Hill was absent from Los Angeles between June 14 and July 2, 1946, due to a death in
his family
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 489
Zimmerman was employed as an auto mechanic in respondent Loew's garage
under P . L. Small, superintendent of the automotive department . , Zimmerman is
a member of both the IAM and International Brotherhood of Electrical Workers,
Local 40, A. F. of L., herein called IBEW.
On May 29, 1946, Zimmerman read the Teamsters ' notice, similar to the one
referred to in the cases above, posted on the garage bulletin board, that the
Teamsters would not handle any equipment "worked on" by IAM members.
Sometime during the day, Small told Zimmerman that he was "fired." When
asked for an explanation , Small answered that all he could say was that orders
to that effect had been issued by William R . Walsh , director of labor relations
for respondent Loew. Zimmerman then saw Walsh and asked why he had been
discharged . Walsh replied there was no explanation ; that Zimmerman's work
had been satisfactory but that orders had "come from higher ups... .
The respondent introduced in evidence a pay-roll notice showing Zimmerman's
"lay-off" on May 29, 1946 . Zimmerman denied ever receiving a copy of the
notice and vigorously asserted that Small told him he was "fired." His testimony
is credited and the undersigned finds Zimmerman was discharged on May 29, 1946,
because of his IAM membership.
While employed at respondent Warner's after his discharge by respondent
Loew, Zimmerman was instructed by the IBEW to report back to respondent
Loew for work. He returned to respondent Loew on June 19, 1946, in the electri-
cal department as an electrician . Zimmerman is satisfied with his present posi-
tion and does not desire reinstatment to his former job as an automotive mechanic.
3. Respondent RKO
The complaint alleges that respondent RKO discriminatorily discharged Wil-
laam J. Pickering on June 13, 1946, and refused to reinstate him until June 26, 1946 ;
discharged Robert Skager on June 13, 1946, and thereafter refused to reinstate
him ; and on June 18 , 1946, transferred Carl H. Honvath to a less desirable position
and refused thereafter to reinstate him because all of the foregoing employees
were IAM members.
Pickering and Skager are the two automotive mechanics employed by respond-
ent RKO in its garage . Skager has been employed since 1920 and during the
last 10 years of his employment acted as a working foreman . In this capacity
he picked up work orders and divided tasks with Pickering.
There is no record evidence that Pickering was an IAM member except as may
be inferred from the provisions of the IAM's last contract, since expired, which
provided that the Producers would employ only workers who are members in
good standing of the IAM. Skager was a member of the IAM as well as IBEW.
On two occasions " prior to June 13, 1946, Shank , the Teamsters ' agent, on visits
to the garage asked Skager to join the Teamsters . Sometime early in June,
Harvey Leavitt , superintendent of transportation , instructed both Pickering and
Skager not to work on any automotive equipment without his express authori-
zation. Between the time of this instruction and June 13 , Skager spent most of
his time idling about the garage.
About 2 p. in. on June 13, Shank asked Skager by telephone to join the
Teamsters , stating that they were "about to take over the auto mechanics and it
would be best . . . to join their local." At about 3 p. in. Pickering and Skager
were called to Leavitt 's office where they were laid off. When asked to give a
reason for the lay-off, Leavitt stated , according to Skager : "..., you have been
around here every day, like I have , and you ought to know . . . the teamster or
driver refused to drive the equipment you worked on today."
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pickering returned to work on - June 27 , 1946. Skager on the other hand,
at the time of his lay-off inquired if he could work in the electrical department.
Skager was told this was satisfactory if he could work it out with Earl Miller,
chief electrician . On June 14 , Skager went to work in the electrical department
at an increase in his hourly rate of 17 cents. Skager is presently employed _n the
electrical department , has lost no time by reason of the transfer and does not
desire reinstatement to his old job as an.auto mechanic.
Although as pointed out above , the evidence of Pickering ' s union membership
is at best remote , nonetheless it clearly appears that he was laid - off either by
reason of that membership or because the respondent Loew believed he was a
member In Skager's case there can be no question that the lay -off resulted from
his membershp in the IAM , although as events turned out it redounded to his
advantage . Leaving aside for the moment the question of the remedy appro-
priate in a case of this nature, the undersigned is of the opinion that both lay-offs
were discriminatory because directed against individuals due to their union or
suspected union membership and that thereby the respondent RKO discrimi-
nated against both Pickering and Skager . It is so found.16
Carl H. Homuth is a precision machinist , employed by respondent RKO since
January 1946. He has been a member of the IAM since 1937.
Prior to June 18. 1946 , the date of the alleged discrimination against Homuth,
he worked in a small machine shop adjoining the electrical machine shop, at the
then precision machinist rate of $1 .97 an hour . On June 18 , Homuth was in-
structed to adjust an optical printer, which he accomplished by fashioning a
special shaft for the printer Shortly thereafter , Glen Parr , superintendent of
the electrical department , called Homuth to the office of Earl Miller, chief
electrician . Homuth testified credibly and without contradiction as to the
following incident with Miller:
. . . Air. Miller held up the shift . . . . and he says , "Do you know this
shaft?" I says, "Yes , I know " He says, "It is declared hot and so I have
orders to fire you." I asked him, "What do you mean , `hot' ", and he says,
"You know the members of the scab local or scab union, or whatever we call
them, called their business agent in and he declared it hot" because I was a
member of 1185, so they made another shaft and they used the machine after
that.
Farr then asked Homuth if he would like to take out a permit with the IBEW.
Homuth said he would Farr remarked that he did not want to lose Homuth and
he would telephone the IBEW and ask that a permit issue to Homuth . There-
upon Homuth left the studio , picked up his permit and returned later to the lot,
Thereafter , Homuth continued on the job, doing rough machine work in a small
shop next to the electrical machine shop.
Homuth's rate after June 18. 1946 , was decreased . The timekeeper informed
Homuth that since he now belonged to the IBEW he would receive $1 .80 an hour.
About 1 week later he was advanced to $1.97 an hour , the rate lie had earned as
a precision machinist before June 18, 1946 . When Homuth was advanced to this
latter rate he went back " to the same old work ." Thus, it would seem clear that
Homuth, as a condition of employment , was required to obtain membership in
the IBEW.17 Having done so, within a week he was put back on his old job at
his old rate of pay. It is likewise clear that but for his IAM membership and
respondent RKO's acquiescence in the demands made of it . Homuth would not
11 N L R B v. John Eng lehorn & Sons , 134 F (2d) 553 (C C A 3).
"At the time affiliated with the CSU
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 491
have suffered any transfer or loss in earnings resulting therefrom The under-
signed finds Homuth was transferred and reduced in rate by reason of -his JAM
membership.
4. Respondent Warner
The complaint alleges the discriminatory discharge, transfer and demotion and
refusal to reinstate six named employees 18 The answer pleads a general denial.
Edward J Lorenz has been employed by respondent Warner since 1939 as an
auto mechanic and machinist. He is a member of the JAM There are about
12 auto mechanics in the crew working under Foreman Ira Roland and Depart-
ment Head A H. Klein.
Sometime in March 1946, Roland called Lorenz to his office and there intro-
duced him to Shiffman and Herman R. Lentz, president of the Federal Union.
According to Lorenz's credible and uncontradicted testimony, Shiffman stated
to him: "We are taking over here and we are giving you a chance to join our
union" ; showed him a copy of the Federal Union's charter and gave him an
application card. Lorenz asked if it was not necessary to hold an election to
determine this. Shiffman answered that he would not argue the matter, the
Federal Union was "taking over" and if Lorenz wanted to join this was his
opportunity. Lorenz stated that the Teamsters also claimed auto mechanics
and he doubted whether the Federal Union had a majority of employees. Fol-
lowing the conversation with Lorenz, other mechanics were called in " one at a
time" to speak to Shiffman
On May 29, 1946, the notice of the Teamsters that they would not handle
any equipment worked on by JAM members appeared on the bulletin board.
On May 31, Klein told Lorenz to collect his tools and that he was laid off. When
Lorenz asked the reason for lay-off, Klein answered that there was no point
in discussing the matter because Lorenz knew the reason Shortly thereafter,
Klein told Lorenz he was laid off because "The Teamsters refuse to drive that
car you were working on, the Buick That is why you were laid off."
Lorenx was reinstated to his old job by respondent Warner on June 26, 1946.
Glenwood C. Warren is a machinist employed by respondent Warner since
February 1946. He is a member of the JAM.
On May 31, 1946, Warren worked his regular shift as a machinist. About
5 p in. Francis Fuhrmann, head of the technical department, telephoned him
at home and told him he was laid off because "The crafts refuse to handle your
work." Warren returned to the studio the next day and asked Fuhrmann for
a slip giving the reason for his lay-off. Fuhrmann refused to put in writing the
reason for the lay-off.
Warren was reinstated to his old position on July 5, 1946. It appears how-
ever that respondent Warner made reasonable efforts to reinstate Warren on
June 26, 1946. Warren was unavailable for employment between June 3 and
his return to work on July 5, 1946.
Elmer Johnson is a welder , employed by respondent Warner since January
1946. Johnson performs his duties in the machine shop and on the stages in
which connection he works with employees who are members of the Alliance
grip local 80. Johnson is a member of the IAM.
18 Elmer Johnson , discharged May 29, 1946 , reinstated , Julie 26, 1946 ; Edward J Lorenz,
discharged May 30, 1946, reinstated , June 26 , 1946 ; Glenwood C. Warren, discharged M
31, 1946 , reinstated , July 8, 1946 , Royal M. Caldwell , transferred and demoted, June
1946 ; Robert E Davis, transferred and demoted, June 6, 1946 ; and Otto Keller, transferred
and demoted , June 6, 1946.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 29, 1946, while Johnson was at work welding some steel girders on
top of one of the stages, Fuhrmann approached and inquired if he belonged to
the IAM. When Johnson acknowledged that he did, Fuhrmann answered :
"That is all I want to know." Johnson had just finished one welding job and
was preparing to move on to the next when the grip foreman told Johnson that
the grips would not work with him any longer. Later, Foreman Bassett told
Johnson to gather up his equipment and report to Fuhrmann Fuhrmann told
Johnson that he was "through" but he could finish out his shift or go home.
Fuhrmann refused to give any reason for his action and issued no lay-off slip
to Johnson.
Johnson was reinstated on his old job on June 26, 1946. He experienced no
further difficulty in working with Alliance members
Robert E. Davis is a machinist employed by respondent Warner since 1944.
From and after November 1945, Davis was employed on the maintenance of
cameras in the camera machine shop Davis is a member of the IAM
On June 6, 1946, Superintendent Al Tondreau took Davis off camera mainte-
nance work, to make room for two or three machinists, members of the Federal
Union, who were reporting the next day to do camera maintenance work. Davis
went into the machine shop where he performed general machine work. About
1 week later, cameras were brought to where Davis worked in the machine shop
and he commenced his maintenance work again. He was not transferred back
to the camera maintenance shop.
Davis' rate has at all times- remained the same, suffering no reduction by
reason of his transfer. Thus up to June 6, Davis maintained cameras ; on that
date he was transferred to, the machine shop to make room for the Federal Union
men ; he worked 1 week on machine work of a general nature ; and about June 13,
1946, Davis again resumed his camera maintenance work.
The undersigned finds that Lorenz, Warren, Johnson and Davis were discrimi-
nated against by respondent Warner because of their IAM membership.
Royal M. Caldwell and Otto Keller, the other machinists allegedly transferred
and demoted on June 6, 1946, because of their IAM membership, did not testify.
There is no evidence of discrimination against them. It will be recommended
hereafter that the portion of the complaint, alleging a discriminatory transfer
and demotion of Caldwell and Keller be dismissed.
5. Respondent Paramount
The complaint alleges that respondent Paramount on or about February, 20,
1946, and thereafter, refused to hire Glenn Waters because of his IAM mem-
bership
Waters did not testify. J. R. Stehr, IAM business representative, testified
that in February 1946, Ben Hayes, in charge of the machine shop at respondent
Paramount, told him that he would have to reject Waters for employment in
view of orders not to hire additional machinists. In March 1946, Stehr asked
Ted Leonard, director of industrial relations, why Waters was not hired and
Leonard replied that President Balaban had issued orders not to hire more
machinists This completes the evidence respecting Waters.
The undersigned is satisfied, that the foregoing facts, even when considered
in relation to other events, such as for example, the hiring of Federal Union
i embers in March 1946, are not sufficiently reliable, probative and substantial
to warrant a finding of discrimination in refusing to hire Waters. It will be
recommended hereafter that this portion of the complaint be dismissed.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 493
6. Conclusions respecting the discharge and/or lay-offs
From the foregoing it appears that on various dates following May 29, 1946,
certain respondent Producers discharged, laid off or transferred machinists who
were members of the IAM. This action coincided with that of the CentraFLabor
Council, the Alliance and Teamsters in declaring work performed by IAM mem-
bers "hot" and not to be handled by A. F. of L. members. As set forth above, in
retaliation, Conference unions, notably the Carpenters and Painters, declared
"hot" certain work performed by members of the Federal Union. Thereupon,
certain respondent Producers laid off the Carpenters and Painters. Kahane
testified :
Q (By Mr Rissm _ x) Now , let's get to this July 1, 1946, strike. I think
,you testified that members of the Teamsters Union at some time in the
spring of 1946 refused to handle equipment that bad been worked on by
members of Lodge 1185 . Is that correct?
A That is right
Q. And likewise , members of certain locals of the I. A. T. S. E. refused
to work with or handle equipment that had been worked on by members
of Lodge 1185.
A. That is right.
Q. They declared certain equipment hot because it had been worked on by
1185 people , is that correct')
A. That is the expression that was used.
Q. Do you know that when the work of members of Lodge 1185 was declared
hot by the I. A. T. S. E . and by the Teamsters Union the members of 1185,
who had worked on that equipment or machinery , were discharged from the
studios ? Isn't that correct?
A. Laid off is probably a better expression.
Q. Then you said , I think the words you used were " thereafter the carpen-
ters and pa]hters refused to work on sets where I. A. T. S. E. members or
Federal Local machinists had worked ," is that correct?
A. That is correct.
Q. In that case the sets were declared hot by the Painters and Carpenters,
is that correct?
A. That is right.
Q. In that case , who was laid off. the Painters and Carpenters who had
declared the sets hot and refused to work on them, or the members of the
Federal Local who had performed work on the camera which resulted in the
declaration of hot sets?
A The Painters and Carpenters refused to work.
Q. Were any I. A. T. S. E men or any Teamsters laid off, fired , disciplined,
discharged , taken out of work because they refused to handle or work with
equipment that had been worked on or serviced by members of Lodge 1185?
A. They were not. None of them to my knowledge.
Q. Do you know of any explanation for the difference in treatment in one
case and the other?
A Yes.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. There was a difference?
A. Oh, sure.
Later Kahane testified, as set forth fully in his testimony at the beginning of
this section, that the difference in treatment was due to the "economic pressure
on the producers."
Thus the question arises whether economic pressure thus leveled against an
employer can justify what would otherwise appear to be a violation of the Act.
The decision to submit to Alliance threats was made by the Labor Committee
of which Kahane, of respondent Columbia, was chairman Respondent Columbia
did not follow up the decision by discharging TAM members But other respond-
ents did carry out the undertaking of the Labor Committee. The close inter-
locking relationship between the Labor Committee and the Association has been
shown. It has been found that the Association is an employer within the mean-
ing of the Act. And it has been found that the Labor Committee acts for the
Association. In this instance the Labor Committee acted for the Association
and bound it and all respondent Producers who took the action which the Labor
Committee approved.
The undersigned is satisfied that respondents Association. Warner, Loew,
RKO and Universal submitted to the threats of the Alliance, Teamsters and
Central Labor Council and with full knowledge of the meaning of their acts,
determined to discharge, lay off or transfer the IAM members. There is absent
here any persuasive proof that the action taken was mandatory in order to avoid
immediate financial loss or cessation of operations. It is true that such might
have been a future result in view of the dominant position of the Alliance in
the industry; and the costly strike of 1945 which had caused so macli confusion
over a period of 9 months was no doubt uppermost in mind. Yet it is significant
that at the time the respondents took the aforesaid action, no harm or loss had
actually resulted and Brewer, according to his testimony, knew of no specific
threat to take out Alliance projectionists or distribution employees throughout
the country, over the "Machinists issue "
The undersigned thinks it is clear that the acts related above constituted
discrimination in regard to hire and tenure of employment on the part of respond-
ents Association, Warner, Loew, RKO and Universal land that they necessarily
discouraged membership in the IAM. The employees in question were presented
with the alternative of transferring their membership from their chosen organi-
zation, the IAM, to the Teamsters and the Federal Union as a condition to their
remaining on the job The respondents Association, Warner, Loew. RKO and
Universal accordingly committed an unfair labor practice within the meaning
of Section 8 (3) of the Act, and it is so found.
, Threats of economic pressure arising out of jurisdictional conflicts have never
been held to justify a violation of the Act by the Board," although situations may
arise where the Board in the exercise of a wise discretion may withhold its
usual reinstatement and back pay orders 20 The consistent application of broad
principles of law and administrative policy by the Board in denying applicability
of economic factors to justify discrimination has been recognized by the Courts
19 Matter of Star Publishing Go., 4 N. L R. B 498; Matter of Trawler Maris Stella, 12
N L R B 415; Matter of General Motors Corp , 14 N L. R. B 113; Matter of Isthmian
S S. Co, 22 N. L R B. 689 ; Matter of Mooremack, 28 N. L. R. B 869, Matter of Greer
Steel Company, 38 N. L R. B . 65; Matter of Cowell Portland Cement Co., 40 N. L. R. B.
652
20 Matter of New York t Puerto Rico Steamship Co., 34 N. L. R. B 1028
1
01
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 495
as well." In N. L R B v. Gluelc Breivinrg Co.," the Circuit Court of Appeals had
this to say in a factual situation squarely in point :
. . the trouble was entirely caused by the economic pressure by Teamsters
in their effort to compel the Gluek [respondent employer] drivers to transfer
their allegiance from Brewers to Teamsters ; that this pressure was so effec-
tive that it forced Gluek to act ; that this action was motivated, in large
part if not entirely, by the purpose of avoiding disruption and loss of business ;
that Gluek knew its action would have the effect either of changing such
allegiance or of depriving the drivers of their jobs by transferring the work
to a place where it could be done by members of Teamsters; that Gluek
first used pressure to bring about the first alternative ; that failing in this.
it adopted the other alternative, and that the known inevitable result of
such action by Gluck has been to aid one labor union in a conflict with
another union with which it had a labor contract. Albeit unwillingly, yet
there is no doubt that Gluek participated in a jurisdictional labor dispute
and its participation had the effect, well known to it in advance, of favoring
one union over the other. It is clear that it had no purpose-in the sense
of animus or desire-to injure one or to help the other. Its underlying and
compelling purpose was to save itself. But to accomplish this result, it
consciously interfered in a labor situation by actively favoring one union
over another. This was properly held by the Board to be an unfair labor
practice under the Act because economic interests of an employer are not valid
reasons for violation of the Act [citing cases] In N. L. R. B. v. Hudson.
Motor Car Co., 128 F. (2d) 528, 553, it was stated: "We think it right and
just to say that so far as the record shows, respondent has not wilfully vio-
lated the provisions of the Act, but the intent of the employer is not within
the ambit of our power of review When it is once made to appear from
the primary facts that the employer has violated the exprc's provisions of
the Act, we may not inquire into his motives "
The undersigned is satisfied that the respondents were placed in an unenviable
position by the ultimatum of the Central Labor Council, the Teamsters and the
Alliance, but the violation of the Act is unmistakable.
The undersigned finds that respondents Association, Warner, Loew, RKO and
Universal discriminated in regard to the hire and tenure of employment of
Elmer Johnson, Edward J. Lorenz, Glenwood C Warren, Robert E. Davis. W. E
Zimmerman, W. J. Pickering, Robert Skager, Carl H. Homuth, John M. Mobley
and Reginald G Hill, thereby discouraging membership in the IAM, and inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
1
D. Alleged interference , restraint , and coercion
The complaint alleges that on and after March 19, 1945 , the respondents
interfered with , restrained and coerced their employees in the exercise of rights
protected by the Act by :
'-' N L R. B v. Graham, at at. 159 F ( 2d) 787 (C C A. 9 ) , 19 L R . R AI 2303 (de-
cided February 13, 1947 ) ; N. L. R. B. v Gluck Brewing Co, 144 F. ( 2d) 847 ( C. C. A. 8) ;
N. L. R B v . Poison Logginq Co., 136 F. (2d) 314 ( C. C. A 9 ) ; N. L. R B. v. Hudson
Motor Car Co., 128 F. ( 2d) 528 ( C. C. A. 6) , Wilson d Co v. N L. R. B., 123 F. ( 2d) 411
•(C. C A •8) ; N L. R. B. v. Star Publishing Co., 97 F. (2d) 465 (C. C A. 9)
.22144 F. (2d) 847, 853
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) interrogating employees with respect to their union membership and
i;;. affiliation ; and • - -
(2) payment of bonuses to employees who passed the picket lines or
performed the work of strikers during the strike of March to October 1945.
1 Interrogation of employees
Counsel for the Board in complying with the undersigned's ruling to furnish
a bill of particulars, stated orally on the record that the only agent who interro-
gated employees was Francis Fuhrmann, head of respondent Warner's technical
department. This refers to the case of Elmer Johnson, heretofore considered.
Johnson was a welder, member of the IAM, who about May 29, 1946, was asked
by Fuhrmann if he belonged to "1185". Later that day Johnson was laid off
because of his membership. The undersigned has found above that respondent
Warner discriminated against Johnson. However, the undersigned does not be-
lieve that the query addressed to Johnson was a violation of the Act. Johnson
was a welder, represented by the IAM for purposes of collective bargaining,
although his work classification was not covered under the terms of the last
contract in force between the IAM and respondent Warner. The Federal Union
claimed jurisdiction over welders and the Alliance likewise sought to include
them within its jurisdiction At this time, respondent Warner had determined,
as fully set forth above, to lay off members of the IAM, because of the action
of the Central Labor Council and the Alliance in declaring "hot" the work of
the IAM. The regular machinist classification of such men as Warren, Lorenz
and Davis was not doubtful. Johnson's classification as a welder may have been
obscure and uncertain in view of the conflicting jurisdictions. Hence Fuhrmann's
question was intended to ascertain whether Johnson's work was "hot" and hence
banned by the action of the aforesaid unions. The undersigned is of the opinion
that under these peculiar circumstances, this was not a violation of the Act.
It is so found, and it will be recommended hereafter that this allegation of the
complaint be dismissed.
2. Payment of bonuses
The allegatin i concerning the payment of bonuses in derogation of employees'
rights, raises for consideration the circumstances and events preceding and fol-
lowing settlement of the 1945 strike. That strike, starting on March 12, 1945,
was precipitated by Local 1421 of the Painters Union and supported by the CSU.
Alliance locals and a vast majority of Alliance members continued to work
during the strike pursuant to direction of International President Walsh. Some-
time between October 15 and 24, 1945, while the strike was still in progress,
the Executive Council of the A. F. of L., in meeting at Cincinnati, issued a
Directive terminating the strike. The Directive islas follows :
International Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada-Brotherhood of Paint-
ers, Decorators and Paperhangers of America-United Brotherhood of Car-
penters and Joiners of America, et cetera.
Hollywood Studio Union Strike and Jurisdiction Controversy.
1. The Council directs that the Hollywood strike be terminated immedi-
ately.
2. That all employees return to work immediately.
3. That for a period of thirty days the International Unions- affected
make every attempt to settle the juiisdictional questions involved in the
dispute.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 497
4. That after the expiration of thirty days a committee of three members
of the Executive Council of the American Federation of Labor shall investi-
gate and determine within thirty days all jurisdictional questions still
involved.
5. That all parties concerned, the International Allianc.; of Theatrical
Stage Employees and Moving Picture Machine Operators of the United
States and Canada, the United Brotherhood of Carpenters and Joiners of
America, the International Association of Machinists, the United Associa-
tion of Plumbers and Steam Fitters of the United States, and' Canada,- the
Brotherhood of Painters, Decorators and Paperhangers of America, the
International Brotherhood of Electrical Workers of America, and the Build-
ing Service Employees ' International Union, accept as final and binding
such decisions and determinations as the Executive Council committee of
three may finally render.
Before issuance of the Directive and as part of the over-all undertaking in
connection with it, the respondents, represented by Eric Johnston, agreed to accept
the findings of the three-man committee and in the interim period all employees,
including the returning strikers as well as those who had replaced them during
the strike, were to continue on the job. Thus during this 60-day interim period
while jurisdictional questions were being studied both groups of workers were
to be paid 2'
Immediately upon issuance of the Directive a controversy arose as to whether
the replacements who had been hired during the strike were to continue to
work in the studios in the jurisdictions of the striking Conference unions. The
CSU claimed that the Producers could not work the replacements in the classi-
fications formerly held by the strikers, whereas the Alliance insisted that the
return of the strikers did not preclude the Producers' use of the replacements
to the extent that they were needed in the same jurisdictions in which they had
worked during the strike. The question arose then -whether the CSU's inter-
pretation was correct or whether the Alliance's interpretation was correct. In
order to settle this question of Directive application, a meeting was held with
A. F. of L. President Green in Washington, D. C. The respondents were repre-
sented by Johnston, Maurice B. Benjamin, an attorney, Mannix, of respondent
Loew, and others.
President Walsh represented the Alliance" As a result of the Washington
meeting President Green issued the following release embodying the under-
standing reached at the meeting
WASHINGTON, D. C.
October 30, 1945.
It is definitely and clearly understood that all striking employees at
Hollywood who were on call on March 12th shall return to work immediately.
Each employee will return to the position he formerly occupied when the
strike occurred.
-a Brewer testified that this was part of the agreement "with the Producers Association "
24 Brewer , who did not attend the meeting, testified that President Hutcheson of the
Carpenters Union attended the meeting and both Brewer and Sorrell testified that Presi-
dent Lindelof of the Painters Union was present. Benjamin who attended the meeting
did not mention either individual as in attendance and testified that no representative of
the CSU was present
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Management shall exercise its usual prerogative as to assignment of em-
ployees during the sixty-day interim period without interference on the
part of the unions involved.
The next day, October 31, 1945, the strikers returned to work. It was con-
templated under the Cincinnati Directive that all workers-strikers and
replacements alike-would be paid during the 30-day period during which the
unions sought a solution of their jurisdictional differences failing which, they
would be paid during the next 30-day period while the three-man committee
studied the prol:lems and made it's findings which were to be "final and binding."
In general, however, the respondent Producers in order to avoid friction did
not work the replacement employees in the jurisdictions of the returning strikers.
This created a bad situation with idle men on all the studio lots. Sometime
around November 6, 1945, the respondent Producers agreed to pay off in one
lump sum, for the entire 60-day period, all of the replacement employees and to
have the replacements available on call thereafter if need arose. , So actually,
as Brewer explained, the guarantee of employment for 60 days became in fact as
a result of this application of the Directive, a "60-day severance."
In addition to those who thus received the 60-day lump sum award, there was
a large group of workers who were not working on October 31, 1945, in the'
jurisdictions of the returning strikers This included, for example, prop makers
and grips-members of regular studio crews-who during the strike went into
the carpenter shop to do the work of striking carpenters but who prior to or on
conclusion of the strike returned to their regular positions as prop makers and
grips With respect to these workers Brewer testified :
These men who had been doing that work. some of them a few clays, some
of them most of their time, were frozen out of this field of employment
by reason of this settlement, without any severance pay or any compensation
for the loss or potential loss of employment.
Therefore it was subsequently agreed that the severance pay which the
producers had agreed to pay in Cincinnati would be applied to a payment
for each of those workers who had worked some time during this period
in the jurisdiction of these unions that had gone on strike for 15 days or
more, a payment equivalent to $3.50 a day, and we considered that was
compensation for their loss of employment in that area, which they had been
more or less promised when they were asked to go in there and do that work.
.The agreement for this payment was made between Y. Frank Freeman, of re-
spondent Paramount, one of the Association's directors, and a member of the
Labor Committee, and President Walsh and other Alliance representatives.
No one man drew both the 60-day lump sum award and the $3.50 settlement
However, some men who drew the 60-day lump sum, while on call from the
studio making the payment, found work elsewhere and some of those who quali-
fied for the $3 50 settlement, continued to be paid their regular wages as of the
time they assumed their regular employment in their old classifications. At
respondent Warner's several hundred employees drew the $3.50 settlement
sometime in March 1946.
There were certain individual applications of the foregoing types of payment
which did not fit precisely within these broad classifications. But generally
speaking , it is these two payments which the Board urges constituted a bonus
payment for strike breaking and hence a violation of the Act. The 60-day lump
sum award was part of the Cincinnati agreement which settled the strike,
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC: 499•
although the form of payment took a turn different from that originally contem-
plated by the settlement . At least the principle of payment for work to be per-'
formed for the 60 -day period was accepted . The dispute which then arose as a'
result of the CSU 's insistence that the replacements not work in the jurisdictions'
of the returning strikers , led to an unwholesome situation that was settled by
paying off the replacements on the basis of the hourly rate for classification
in which they had last worked.
It is clear from this record and the undersigned is satisfied that the 60-day
lump sum award arose out of the Cincinnati settlement It was made known
to the workers about November 6, 1045,'for the first time and it was never prior
thereto held out as a reward or inducement to any worker to act as a strike
breaker 25 As for the $3.50 settlement , Brewer testified that under the Directive
this payment was applied to the other groups of workers In the case of respond-
ent Warner, payment was made in March 1946. Counsel for the Board urges in
his brief that payment at this time was a deliberate move to reward workers for
their past action in crossing jurisdictional lines and as a subtle suggestion that
the same treatment would be renewed in the event of another strike, "that
Respondents believed was imminent in the spring of 1946 " There was threat
of another strike in March 1946, due to disagreement between the CSU and the
respondent Producers , but to accept the foregoing theory is to draw as logical the
conclusion that the $3.50 settlement, because of its timing , was intended both
as a reward for past services and payment for future favors.
Brewer also testified that the idea of the $350 settlement arose at Cincinnati
rn October 1945 . Regardless of the time when the amount was fixed, there is
no evidence in the record that at any time during the strike , any person was
promised any money other than the regular amount due for work performed.
To accept the Board 's theory again , it would be necessary to reject Brewer 's testi-
mony that at Cincinnati an additional commitment was made to President
Walsh that there would be a settlement to those workers who were dismissed after
the question of jurisdiction was settled by the three -nnan committee . The exact
terms of the settlement were not agreed upon at Cincinnati but the "overall
commitment " was made at that time. In the undersigned 's opinion the exact
terms were those later worked out between Freeman and Walsh.
Reviewing the record as a whole , the undersigned is of the opinion that pay-
ments of the nature indicated above are not violations of the Act . The principle
of payment was agreed upon at the time of the strike settlement , although some-
what later the method and manner of payment was tailored to fit the occasion.
There is nowhere any suggestion in the record that strike breakers were offered
any other than their regular wages for work done or to be performed The 60-day
lump sum award was caused by the position taken by the CSU, whereas the
original intention had been to retain the replacements until the jurisdictional
lines had been straightened out, but in no event longer than 60 days. The $3.50
settlement was worked out subsequent to Cincinnati , when the time and amount
of payment were fixed . The timing of the latter payment lends some credence
to the Board 's theory that it was intended as an inducement to the employees
to act as strike breakers in the event the threat of another strike became real.
But in fact at the time there was no strike , and the undersigned is unable to
accept the Board's theory in the absence of more compelling and persuasive
proof.
Kahane testified that these payments cost the 10 respondent Producers about
$7,000,000
500 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned is of the further opinion that there is no reliable, probative
or substantial evidence that payments of the kind here made were violations
of the Act. It is so found and it will he recommended hereafter that this portion
of the complaint be dismissed.
E. The refusal to bargain collectively
1. The appropriate unit
A. Before the strike
The complaint alleges that a unit composed of all employees of the respondent
Producers "in the following classifications: precision machinists (camera), ma-
chinists (journeymen), automotive mechanic, automotive gang boss, machinists
helpers, apprentice machinist, machinist gang boss (journeymen), machinists sub-
foreman or keyman (journeyman) and machinist foreman, exclusive of all other
employees," would insure to such employees their full right to collective bar-
gaining and otherwise effectuate the policies of the Act. The answer averred
that the respondents were without knowledge as to the appropriateness of the
aforesaid unit. Much evidence was introduced designed to show the uncertainty
of this unit and that a finding that it was appropriate without determining
whether it includes or excludes other categories of employees, would "result in
continuation and aggravation of the jurisdictional dispute existing between
[Alliance] and the International Association of Machinists "
The IAM started to organize the studios in 1936, at which time it was affiliated
with the A. F. of L. In 1937, with the help of the Teamsters, the first contract
was executed between IAM and eight of the respondent Producers herein. Casey
represented the Producers in the negotiations and the IAM was represented by
D. T. Wayne. This first contract effective July 1, 1937, provided that on and
after that date, "all Machinists, Machinists' Helpers and Machinist Apprentices
shall be members of Machinists' Studio Local No. 1185. . . . ' The contract
covered wage scales for precision machinists, journeymen machinists, machinists'
helpers and machinists' apprentices. The contract contained these two pro-
visions :
The studios' present policy of operation shall continue to prevail, and-in
the event any question of jurisdiction should arise between the Machinists
and any other International-such question shall not become cause for inter-
ruption of service or studio operation, and shall be subject to adjudication
between such Internationals concerned.
The provisions of this Agreement are predicated upon the understanding
that the Machinists' Studio Local No. 1185 is a part of the International As-
sociation of Machinists, an affiliate of the American Federation of Labor and
that upon any change in such status, the Producer shall have the right to
cancel this agreement.
Wayne, IAM's business representative from 1937 to January 1946, and at the
time of the hearing a precision machinist, gave the following description of the
work in the classifications covered under this contract :
Precision Machinist.-One "who is required to make, maintain, repair and
service camera projectors, cutting and recording equipment, printing equip-
ment, and other similar types of technical film processing equipment, num-
bering machines, all of which are peculiart',to,the motion picture industry. A
ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 501
precision machinist works on cameras , printers , projectors and film processing
machinery.
Journeyman Machinist.-One who "does general maintenance work of
physical equipment of the studio , as well as any other work on parts that
have to be machined or are to be machined or fitted for some use around the
studio, and has a general knowledge of how to perform that work on call."
A journeyman does general machine shop work.
Machinist Helper-One who assists "machinists around the machine shop
in handling anything too big for one person to handle , and where no skill
is required . .. . s Re
On January 9, 1940, Tuohy of the Teamsters advised Wayne in a letter state-
ment that the Teamsters made "no claim whatsoever on automobile mechanics,"
and that its demands of the Producers excluded from coverage garage employees
who performed "actual mechanical repairs." Up until that time automotive
mechanics were members of the Teamsters . On July 1, 1941 , Casey" notified all
studios that on and after that date all automotive mechanics employed by the
studios "shall be members" of the IAM and the wage ' scale in the agreement then
in force was modified to cover the classification of automotive mechanic 2T This
modified agreement continued in existence until superseded by one executed in
May 1942.
The 1942 agreement was negotiated by Casey and thereafter separate contracts
were executed between the IAM and individual producers . This contract, dated
April 29, 1942 , remained in effect until January 1 , 1944, and was thereafter, by
oral agreement , extended to March 1945 . 28 In this contract , there was included
within the covered classifications , for the first time, machinist gang boss, ma-
chinist sub-foreman or keyman, and machinist foreman, in addition to those clas-
sifications covered under the prior contract . The agreement provided that the
Producers would employ in the classifications set out in the attached "Wage
Scales and Working Conditions . . . only workers who are members in good
employment standing of the Union , and the Union will furnish competent men
to perform the work and render the services required by the Producer under
the provisions of this agreement ." There was no provision therein, as there was
in the prior agreement , giving the Producer the right to cancel upon the IAM's dis-
affiliation with the A; F of L.
In March or April 1944; in negotiations between the IAM and the Producers,
it was agreed to include the classification of automotive gang boss in the bargain-
ing unit. Wayne described these additional classifications as follows :
Machinist foreman-". . . a department head , who is not required to handle
the tools of the trade , and is on so-called weekly call, or on call most of the
time, and is a flat-rate man rather than working by the hour."
Machinists sub-foreman or keyman- " In the so -called camera or precision
machine shops , or where the precision machinist operates , quite often there
will be one man who is a leadman, or who is in charge of certain types
of equipment , and they have three or four other people working with them,
26 Wayne had no knowledge of apprentice machinists being employed
27 Wayne described an automotive mechanic in the industry as one "who is familiar with
and skilled in the building , repairing and changing of all automotive equipment, such as
trucks , busses, passenger cars, motor boats . . . all internal combustion engines, as well
as welding and everything else that is required on those types of equipment"
28 This contract was in force between the IAM and respondents Republic , RKO, Loew,
Warner, Twentieth Century, Paramount , Universal , and Columbia and Samuel Goldwyn
Studios. -
i1
`4+
809095-49--vol 79-33
502 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he is virtually a gang boss or a gang leader ., He gets an increased rate
of pay . . . for his services of leading the crew or groups."
Automotive gang boss-Leads "the gang, possibly passing out the work in
the absence of the foreman , and generally being a subforeman or straw boss."
The 1942 contract with its classifications as extended , was in existence almost
3 years up to March 1945 , when the strike started. During that time it is clear,
in.the undersigned 's opinion , that , the contracts functioned reasonably well with
no insurmountable problems which rendered the unit either unworkable or unfit.
It is likewise true that within the same period of time, some difficulties did
arise, principally over the conflicting contentions of the Alliance and IAM on
machine work in connection with prop making and the servicing of cameras
and camera equipment . For example, according to Brewer , prior to May 1,
1945, the only local of the Alliance which claimed the right to represent machinists
was Local 44, which contended; that machinists performing prop work were within
its jurisdiction . But the only serious dispute , he testified , concerned five em-
ployees in respondent Loew's prop shop who, because they used ' lathes and
planing machines , were claimed by the IAM 29 Brewer testified further that
during the life of the 1942 contract , there was in existence an agreement between
the Alliance and other A. F. of L. unions, not to take into membership employees
doing work under the jurisdiction of other unions. -
Duval was unable to describe each job over which he claimed jurisdiction. He
testified :
they are too numerous , and they vary constantly . You understand
making of equipment for special effects involves rain, wind , fire, snow, water-
falls, and so forth . They are constantly perfecting new methods of getting
the desired effect. The list of properties and the amount of work done on
them and the classification of work is just too long to even try to catalog.
Each day there is a new prop . The last time we were in with the Producers
in illustrating the work of a prop maker , I mentioned that now an atomic
bomb had become a prop , which made quite a laugh. It-was only a matter
of two months after that, that the boys were making atomic bombs, or the
replica.
He testified further that Local 44 's claim did not rest on where the prop was made
or the machinery used but on the fact that his local makes and operates all
props. The following illustrates the nature of the running dispute between the
Alliance and the IAM : the Alliance claimed jurisdiction over repair work on a
lift at respondent Loew ; fabrication of steps for a railway car of foreign design
at respondent Columbia ; machine work on a water dump , tank at respondent
Warner, all of which work at the time the claims were asserted was being per-
formed by IAM members.
Admittedly these disputes exist and have existed , yet by and large the record
seems clear that up to the time of the strike , the last LAM unit agreed to, served
with reasonable certainty between the parties despite assertions of competing
20 Duval, business representative of Alliance Local 44 testified : "A prop is anything
that goes into a set , other than the four walls, the floor and the ceiling Anything that
is used to decorate a set , that is a prop ; and it is our duty to build them , along with the
miniature . A miniature is anything that is " built at a reduced scale . That is our jurisdic-
tion. Regardless of the material used or, how constructed , it is our jurisdiction to build
it." He acknowledged that differences arose from time to time between his local, the
Producers and other unions as to what is a prop. This is understandable in view of
Duval ' s definition
ASSOCIATION OF -MOTION PICTURE - PRODUCERS, INC. 503
unions. The IAM had never sought inclusion of operators of cameras, printing
equipment and splicers or jurisdiction over employees who make normal adjust-
ment of equipment or apparatus and had not asked to include those who had
serviced and operated special effects and props 90 Apparently without any un-
toward results, the IAM also was recognized as bargaining agent for typewriter,
sewing machine and bicycle mechanics wherever such positions existed. Wayne
testified that he knew of no instance where Alliance members refused to, operate
,or use equipment made or remodeled by IAM members during the period he served
as business representative. Nor had the Teamsters at any time in the period
after their relinquishing jurisdiction over auto mechanics and up to January
1946, made any attempt to recover this classification.
b. Unit contentions follow4ng the strike ,
The strike of March 12, 1945, gave rise to innumerable problems, not the least
of which was who would perform the work in the classifications vacated by the
IAM members. This did and does not mean that the unit was artificial or in-
expedient. It meant that the Alliance and other unions opposed to the CSU now
sought to cover all jurisdictions and stamp out inter-union competition and strife.
It will be recalled that prior to March 12, 1945, the Alliance had no local for
machinists. But about May 1, 1945, Alliance Local 789 was established to fill
those jobs. In all, it had about 275 members working in the studios as machinists,
auto mechanics, and in other classifications. It ceased to function about the time
the strike ended. In addition, during the strike members of Local 44 or its per-
mittees did machinist work in the classifications covered by the IAM contract.
The settlement of the strike and the suspension of the IAM from the A. F. of L.
intensified the desire of the non-Conference unions to retain their hold on the
IAM job classifications that they had filled during the strike.
For example, the decision of the three-man Executive Council Committee of
the A. F. of L., on "Hollywood Jurisdictional Controversy," dated December
'26, 1945, was interpreted by the Alliance to give it "large groups of machinists."
The Alliance demanded that it be recognized as representative of those em-
ployees who serviced the cameras, and who according to Brewer were classified
as precision machinists. It asked also for the men who did machine work on
props. Brewer made the nature of the Alliance contentions as to the unit, very
clear in a meeting he had with the Labor Committee in February 1946. He
testified :
There were two questions at issue. No. 1, what was the status of the
Machinists' problem with respect to their affiliation and their withdrawal
from the American Federation of Labor. And 2, what, if any, of that type
of machine work did the directive °' grant the Machinists.
I made the-point that under this directive the matter of servicing cameras,
certainly, was not given to the Machinists. That the principle which had
been laid down in *the directive, that the I. A. men should service their own
equipment and do the running repairs on their own equipment, certainly
should apply to cameras. That most of the work on cameras was a servicing
job and not•a manufacturing job, and that the only thing that the directive
80 In a few "unusual" instances , IAM members have built mechanical props such as a horse
and octopus.
°° Brewer by use of the word "directive" referred to the above-mentioned decision by the
Committee appointed to render " final and binding" decisions on the "Hollywood Jurisdic-
tional Controversy."
504 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD o
could possibly be interpreted to be giving the Machinists, was the manu-
facturing job in relation to that work that all of the servicing work belonged
to the I. A. unit.
Q. (By Mr. MITCHELL) What did you ask the producers to do about that, if
anything?
A. I asked them to recognize that and put-let the I. A. men who had been
taken off that work be put back on it.
Q. Did you tell the Producers what unit you claimed that work belonged
in?
A. Yes. I said it was a part of the cameramen's unit.
Q. At any time during the spring of 1946, were you present at any dis-
cussion of the matter of machine work on laboratory equipment?
A. Yes, at the same,-I think it was at the same meeting that was dis-
cussed . The same general points were made, that the maintaining of labora-
tory equipment was basically a servicing job. It consisted of oiling and
sometimes wiping the equipment 'down. It is'purely a day service, job and
generally the directive recognized the right of'our crafts to service their
own equipment. That the manufacturing job again was the only job which
was specifically set out as belonging to Machinists. And that this was not
a machining job, it was a servicing job, and therefore should be included in
the laboratory unit.... .
Brewer testified further that prior to the issuance of this decision, in some
studios the work of servicing cameras and equipment had been done by employees
classified as precision machinists. It is understandable that a free interpreta-
tion of the word "servicing" to permit more than normal adjustment for satis-
factory operation, would conflict with the work of an IAM member classified as
a precision machinist.
Commencing in January 1946, the Teamsters demanded of the Labor Committee
representation for the automotive mechanics' Its last contract, however, exe-
cuted in September 1946, did not include auto mechanics. -Furthermore, despite
their claim, Shiffman representing the Federal Union, sought recognition for auto
.mechanics, as well as machinists, welders, and molders.
The conflicting claims of the Federal Union, the Alliance, and Teamsters
represent one aspect of this jurisdictional controversy. On the other hand, the
IAM's demands as opposed to those of the other unions rested upon formal agree-
ment of prior years. Hence, where a prior contract does define an inherently
appropriate unit, the bargaining history should be accorded controlling weight $3
Furthermore, where the dispute as to unit centers around so-called "fringe
groups" rather than, as in this case the basic group of machinists, the Board has
followed the policy of adhering to the unit outlined in the prior collective bar-
gaining contract 34 Before the strike of March 12, the contractual unit func-
tioned After the strike the unit became subject to attack not so much because
of inappropriateness but because competing unions were resolved not to relin-
quish the advantage the stake gave them of filling the IAM jobs in the unit classi-
32 This demand rested on two grounds : (1) Some drivers wanted inside garage mechanics
fobs , and (2) the strike of March 1945 had thrown some Teamsters out of work and they
were determined to avoid similar crises in the future
33 Matter of Screpto Manufacturing Company, 65 N. L R B 222; Matter of Cobbs and
Mitchell Company, 65 N L R B. 488; Matter of City Lines of West Virginia, Inc, 66
N. L R. B 904,; Matter of Quincy Lumber Company, 67 N. L R. B. 1119; Matter of Ludlow
Manufacturing and Sales Company, 67 N L. R. B. 954.
34 Matter of Fairbanks, Morse & Co., 66 N L. R. B. 673.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 505
fications . Thus basically the problem became and remained as to what union
or unions could claim to represent the employees in the contractual unit. The
unions opposing the TAM and seeking to upset the unit did not feel sufficiently
strong to test this question by petition.
The undersigned sees no reason to depart from time tested achievements and
disturb, because of unsettled claims to job rights, a unit established by the
parties.' The undersigned is convinced that with tolerance, reasonableness in
interpretation and the give and take necessary to accomodate conflicting view-
points, the unit herein sought will function in a manner satisfactory to all con-
cerned In view of the above and the record as a whole, particularly the
bargaining history between the TAM and the Producers from 1937 to 1945, the
undersigned is of the opinion that the employees engaged in the work in the unit
classifications establish a definite group possessing a community of interest such
as to warrant a finding that they constitute a unit appropriate for the purposes
of collective bargaining.
The undersigned therefore finds that a unit composed of all employees of
the respondent Producers in the following classifications: precision machinists
(camera) ; machinists (journeymen) ; automotive mechanics , automotive gang
boss, machinists ,helpers, apprentice,, machinist, machinist gang boss (journey-
men), machinists sub-foreman or keyman (journeyman) and machinists fore-
man, exclusive of all other employees, at all times material herein, constituted
and now constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. Representation by the TAM of a majority in the appropriate unit
The complaint alleges that prior to February 28, 1946, and at all times there-
after, a majority of the employees in the unit found appropriate, designated
the TAM as its representative for the, purposes of collective bargaining. The
respondents in their answer disclaim any knowledge of these facts.
The question of the IAM's majority was not seriously questioned at any time
during, the,protracted negotiations between the parties, during the hearing or
in briefs submitted to the undersigned. Indeed in its brief the respondents urge
that at all times prior to July 2, 1946, the respondent Producers recognized the
TAM, "as the collective bargaining agent of machinists employed in job classifi-
cations," in the unit found to be appropriate above. Differences between the
parties arose not over the majority question but over other matters to be
discussed hereafter.
The last contract in existence between the TAM and the Producers provided
that the Producers would employ in the unit classifications "only workers who
are members-in good employment standing of the Union, and the Union will
furnish competent men to perform the work and render the services required by
the Producer." This agreement was extended orally to March 1945. Thus it is
hardly arguable that up to the start of the strike, the IAM's majority was in
question. On termination of the strike, all TAM members returned to work.
According to the uncontroverted testimony of TAM Business Representative
Stehr, between October 31, 1945, and March 25, 1946, the only members of the
TAM were employed in the classifications covered in the IAM's last contract.
On that latter date, at the Federal Union's insistence some 35 members of the
Federal Union were given machinist jobs.
35 See Matter of C. J. Petersen and C F. Lytle, d/b/a Peterson & Lytle, 60 N. L R B. 1070.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was introduced in evidence a pay roll of the machinists employed as
of June 10, 1946, in the classifications covered in the unit found to be appropriate
above, as well as an addendum to that pay roll, explanatory of the names on
the list. The undersigned has relied on these two documents as well as testimony
of respondents'. witnesses in calculating the majority question and -has reached
the conclusions set forth in the following table :
A B C D E
Total No. of
names on list On leave of
plus those IAM members absence since Others at
Respondent producer added based at work on Dec. 29, 1945and not at work onon credible 6-10-46 work on 6-10-46testimony of 6-10-46witnesses
Goldwyn--------------------- 9 5 2 2
Republic---___--'-------------- 12 7 4 1
Loew------------------------- 89 32 26 31
Columbia- --------------- ----- 35, 22 11 2_
1,oach------------------------
,
13 3 ---------- 10
Warner --------------- -------er
89 52 27 10720th y ----------------- - 47 32 8 7
Paramount------------------- 73 41 29 3
Universal--------------------- 29 25 ----------- 4
RKO------------------------- 40 14 ---------- 26
436 233 107 96
Number on leave of absence on June 10, 1946----------------------- 107
Names on pay roll on June 10, 1946------------------------------- 436
'Number working on June 10, 1946 (C+E) -------------------------- 329
Members of IAM at work on June 10, 1946------------------------- 233
In -arriving at the above calculations the undersigned has disregarded the
fact that a certain number of the names counted in Column B were, after June 10,
1946, removed from on-leave status and restored to active work. This fact
would not disturb the IAM 's majority . Likewise disregarded is the testimony
of Shiffman concerning some 49 individuals , who he claimed were all Federal
Union members,, but on leave of absence on June 10, 1946, and who should be.
included as employees in the unit. This is based on Shiffman 's idea of the unit
which would include blacksmiths , molders, welders and even prop makers who
worked as machinsts during the strike. These latter additions are rejected
also because they rest on the uncertain employment status arising out of an
agreement made sometime in January 1946 , between the Labor Committee and
Shiffman, that individuals supplied by him to take the jobs of striking machinists
would be given an indefinite leave of absence without pay. At this time some
of these individuals were members of Cinetechnicians Local 789. Apparently
part of the undertaking with the Labor Committee was to continue this indefi-
nite status until certain questions of jurisdiction could be solved . Those problems
still remain open and the status of such individuals is no more certain now than
it was in January 1946.8 The undersigned has, however , included in the
sa See opinion of Judge Learned Hand In N. L. if. B. v. Remington Rand, Inc., [94 F.
(2d) 862, 871 ( C. C. A. 2)]: "It is of course true that the consequences [ of a strike]
are harsh to those who have taken the strikers ' places ; strikes are always harsh ; it might
have been better to forbid them in quarrels over union recognition. But with that we have
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 507
tabulation above, those 35 members of the Federal Union who were given
employment in March' 1946.
The undersigned finds that on February 28, 1946, and at all times thereafter,
the IAM was, and now is, the duly, designated gepresentativeLof'the majority of
the employees in the aforesaid appropriate unit, and that, by virtue of Section 9
(,a) of the Act; the IAM at all times was, and now is, the representative of all
the respondent Producers' employees in such unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment or other
conditions of employment.
3. The refusal to bargain
a. Chronology ` of events
The complaint alleges a refusal to bargain commencing on or-about February
28, 1946, and in addition that on or about April 17, 1946, all of the respondent
Producers declared they would not negotiate a closed-shop contract with the
IAM.- The; answer denies, both and avers, that by reason of the conflicting claims
of the various unions herein as to the "appropriate collective bargaining unit,"
the respondent Producers (other than Goldwyn) filed an RE petition on June
25, 1946, seeking to have the Board determine the name'or names of bargaining
representatives. The answer further sets forth that on July 2, 1946, it was
agreed between all respondent Producers and the-unions, including the IAM, that
the unions would abide by the Board's decision in the representation case and
pending that decision the respondent Producers would not recognize or bargain
with the IAM or other competing unions.
In January 1945, the IAM's 1942 agreement with the respondent Producers
was extended and at the outset of the strike on March 12, the parties had been
operating under oral extensions of the contract while negotiating for, a new one.
There is no evidence concerning the scope of the oral extension but the 1942
agreement did provide for exhaustion of grievance procedures before any inter-
ruption of work occurred. As heretofore indicated, members of the IAM
absented themselves from work in support of the strike of Local 1421. On April
5, 1945, Casey, on behalf of respondents Columbia, Loew, Paramount, RKO,
Republic, Twentieth Century, Universal, and Warner, and Samuel Goldwyn,
sent the IAM and its International office in Washington, the following wire :
The undersigned producers" hereby rescind and terminate the collective
bargaining contracts now in effect between the undersigned producers and
your union . Such action is taken by us by reason of your breach of your
obligations under such contracts and the failure of your members to perform
their services in accordance with such contracts.
Before continuing with the sequence of events, some consideration is required
of the CSU practice in bargaining with the Labor Committee and the Producers.
The CSU is a confederation of studio unions, all of whom, with one exception,
were at the time of its creation in 1941, A. F. of L. affiliates." Herbert Sorrell,
nothing to do; as between those who have used a lawful weapon and those whose protection
will limit its use, the second must yield ; and indeed, it is probably true today that most
men taking jobs so made vacant, realize from the outset how tenuous is their hold."
17 One local of the Alliance, 683, the Film Technicians local, was or is affiliated with
the CSU.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
business representative of Painters Local 644, has been president of the CSU'
since 1941; D. T. Wayne of the-IAM, vice president," and' Carl Head, also of
Painters Local 644, secretary-treasurer. Sorrell is the dominant figure and
spokesman of the CSU. In meeting with the Producers, he and a CSU committee,
representative of its affiliates, deal with the Producers on general subjects that
affect all of its members. Sorrell never negotiated a contract for any union in the
absence of a representative of that union. Individual contracts are executed by
and between the Producer and the Union. Under the IAM constitution only
its members can approve a contract.
About October 25, 1945, a CSU committee including Sorrell, met with a com-
mittee of the producers to discuss the return to work of the strikers. According to
Sorrell it was there agreed that the returning strikers, including IAM members,
would go back to work "under the terms and conditions of the written contract"
that had existed prior to the strike. Kahane testified that the Producers agreed to
reinstate the old wage scales and, working conditions but refused to reinstate
the contracts. Whether this conflict arises over a failure to distinguish between
a formal reinstatement of an entire written. contract and just compliance with
its terms and conditions is'immaterial. It is,,clear that the, wage scales, and
working conditions that existed prior to the strike and which had been fixed by,
contract were reinstated and the parties shortly thereafter set about negotiating
for new contracts to cover the CSU.unions.
.In the 60 days following the return of the strikers to work, there arose the
problems discussed above under the subject of the bonus. Shortly thereafter,
when under settlement provisions the replaced machinists were to be re-
moved from the pay roll, Shiffman and Brewer succeeded in obtaining from the
Labor Committee a commitment that the replaced machinists, members of Cine-
technicians Local 789, would be granted an indefinite leave of absence. Juris-
dictional problems had not been settled by the three-man committee appointed
by the A. F. of L. Executive Council. At or, about this same time the Teamsters
also served demands that automotive mechanics be included as part of the Team-
sters Unit 98
On February 4, 1946, Sorrell sent the Association the following telegram :
The Conference of Studio Unions on behalf of its Affiliates demands that
immediate negotiations be initiated and contracts signed by February 16.
1946. It is requested that time and place for initial meeting between respec-
tive representatives be set immediately.
Pelton replied on February 6:
that the respective studios that are members of the Association of
Motion Picture Producers, Inc., are prepared to negotiate with the several
unions, on whose behalf your wire was sent who are entitled to such nego-
tiation. However, in conformity with our practice, such negotiations should
be conducted separately with each union.' In order to facilitate these nego-
tiations, we suggest that each union submit, in writing, its proposals, so
that they may be considered in advance of meetings. Upon receipt of such
proposals, meeting dates will be suggested and arranged.
38 This matter of coverage for automotive mechanics was discussed thereafter on five or
six occasions between the Labor Committee and the Teamsters At the end, the Teamsters
were informed that since the matter was now before the Board on the Producers' petition
filed June 25, 1946, it would not be discussed The last Teamsters' contract, executed in
September 1946, did not cover in automotive mechanics.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 509
Sorrell answered on February 7 that Pelton's proposals were unacceptable and
demanded on behalf of the CSU to meet "collectively for the purpose of negoti-
ating.an-interim agreement for each and every one of its affiliated unions to be
signed no later than February 16."
Sorrell testified that in sending the telegram he meant that he' "wasn't going
in alone for the Painters. D. T Wayne wasn't going in alone for the Machinists.
Skelton wouldn't go in alone for the Carpenters. We would go in together.and
negotiate an agreement . . . We would negotiate agreements collectively. . . :.
Kahane in reply to this'latest move telegraphed Sorrell on February 8, that :
a committee consisting of Byron Price, E J. Mannix, Clifford Work,
Frank Freeman and B. B. Kahane, representing the respective studios who
are members of the Association of Motion Picture Producers, will meet with
your committee at the offices of the Association on Monday, February 11,
1946 at two o'clock p. m. . . .39
Pursuant to this latest exchange of telegrams, a full committee of the CSU,
including Stehr of the IAM, met on February 11 with the Labor Committee.
Sorrell was the CSU spokesman and presented to the Labor Committee the fol-
lowing proposal for a 90-day interim agreement, commencing February 18, 1946:
1. Return to thirty-six (36) hour work week with maintenance of present
"take home" pay for forty-eight (48) hour work week, with pay'increase
retroactive to January 1, 1946, for the following unions :
* * * * * *
Studio Machinists Local 1185
* * * * * * *
4. . . ,, the Producers shall extend the last contracts in effect with the
following unions :
* * *
Studio Machinists Local 1185
* * * * * * *
5. Contracts effective January 1, 1946, for the unions listed in 1.... above
shall be negotiated during the ninety (90) day period commencing February
18, 1946.
6. Contracts negotiated during the ninety (90) day Interim period shall
supersede the Interim Agreement and be-retroactive to January 1, 1946.
* * * * * * *
The above proposals were not discussed because, according to Sorrell, the Pro-
ducers insisted that conditions of work be negotiated before taking up the ques-
tion of wages. Sorrell acceded to this position. Sorrell testified : "We discussed
Machinists just the same as we discussed Carpenters, Painters, and others. We
discussed them all. There wasn't any doubt about them [Producers] bargaining
for the Machinists There was a doubt . . . about . . . the Office Workers."
Apparently at the meeting the CSU had made as a condition of further negotia-
tion, the Producers' recognition of the Office Employees Guild at a time when
the Producers were of the opinion that a majority of Guild members had changed
"Price was Chairman of the Board of the Association , Mannix represented respondent
Loew, Work, respondent Universal, Freeman, respondent Paramount ; and Kahane, the
committee chairman , respondent Columbia.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation. Accordingly that day, Kahane sent Sorrell a lengthy telegram that'
the Labor Committee could not negotiate with the CSU if the afore-mentioned'
-condition was imposed for the Office Employees Guild. The telegram concluded:'
In our , conference you, further indicated to us that the observance by
the Carpenters and Painters of the arbitration award , made by the corn-
mittee appointed at the Council of the American Federation of Labor, would
be conditioned upon our agreement to changes in wage rates to be paid to
those crafts .- Since all parties involved including the unions you represent;
agreed unconditionally to-accept and abide by the award of this committee,
we believe we are entitled to complete an unconditional agreement by all
crafts to observe that directive . We request such assurance . If agreement
can be reached upon the matters above set forth, we will take up negotiations
with respect to any proposal as to working conditions and wage rates. We
trust that we can clear these preliminary matters and continue toward a
successful conclusion of negotiations.
Sorrell answered Kahane's telegram the next day by reiterating that an interim
agreement be negotiated for all CSU affiliates by February 16; insisting on rep-
resenting the Office Employees Guild until there - had been a legal change in the
bargaining representative of those employees ; and stating with reference to the
A. F. of L. Directive on jurisdiction , that the CSU was "anxious" to work out
an agreement to prevent further work stoppages which could be accomplished
by further negotiation . Kahane replied that same day that the Labor Committee
would resume discussion with the CSU on February 14.
On February 12, Shiffman likewise wired the Association , asserting that Al-
liance Cinetechnicians Local 789 had a "majority" of employees employed as
machinists in the industry ; protesting the right of the IAM to represent ma-
chinists and demanding recognition as the bargaining agency for machinists
in the industry "as represented by your Association ." The Labor Committee met
with Brewer and Shiffman on these demands and after issuance of the Federal
Union 's charter in March, a compromise solution was achieved by the hiring of
35 members of the Federal Union.
The CSU representatives met with Producers ' representatives on February
13 and 14. Matters relative to all affiliates were discussed . At one of these
early meetings at about this time, Producers ' representatives stated that because
the IAM had been suspended from the A. F. of L . they could not negotiate with
the IAM. Sorrell replied pointedly : "No deal for the Machinists , no deal for
anybody," and prepared to leave the conference. The Producers , after further
consideration , decided to "go along on the Machinists ." Other than this, there
was no particular reference to the IAM. Matters common to all the contracts
were being considered and the vexing problem of the Office Employees Guild
seems to have occupied much time of the conferees . On February 15, Kahane
wrote Sorrell recalling an agreement at the February 14 meeting that Sorrell
would submit the CSU's position on (1) office workers, (2) observance of the
terms of the arbitration award, and ( 3) negotiation of working conditions con-
temporaneously with discussion of wage demands. The rest of Kahane's letter
is set forth :
You have now submitted your reply which we quote, and to which we set
forth our position :
(1) As to Screen Office Employees Guild , you state "Conference will deal
for S . O. E. G. at Goldwyn and Technicolor and that status quo is to be
ASSOCIATION OF- MOTION, PICTURE PRODUCERS, INC. 511
maintained at all other studios until the N . L:•R. B7 has dealt with the,unfair
labor practices."
Since as you are aware the pendency of unfair labor practice charges
prevents any N . L. R. B. election , which would enable office workers to make
a free choice of bargaining representative , your proposal completely negatives
. the right of these employees to choose their own bargaining representatives.
As we have pointed out to you our employees in this category have heretofore
designated , and legally still have bargaining representatives . We will not
engage in any negotiations with you affecting those workers unless and until
you are legally designated to represent them . Until you are so chosen, we
. must recognize and carry out our obligation under our existing contracts.
(2) As to the jurisdictional directive of the Committee appointed by the
Council of the American Federation of Labor you state:
"Conference will assure the Producers that we will not participate
in any strike against the directive of the three man committee."
We have asked for a definite agreement on the part of each union that it
will carry out the terms of that directive , irrespective of the outcome of any
negotiations in which we now engage. We request such agreements as a
preliminary to further discussion of other issues between us . We are com-
pelled to ask a direct agreement by each union as to this matter , as we feel
that any action by or resolution of the Conference of Studio Unions is in-
effective for this purpose.
(3) As to our request that working conditions be negotiated prior to our
discussion of your wage demands, you have replied :
"That we re-iterate our demands that we enter into immediate wage
and interim agreements and that working conditions be worked out
during the three month interim period."
You have demanded wage increases as an interim matter and the later
negotiation of changed working conditions , which obviously will again affect
such increased wage scale . As we pointed out to you yesterday, it is entirely
impracticable to negotiate wage increases in advance of and separate from
negotiation of working conditions . We, therefore , must again repeat our
request that the negotiations must first cover working conditions and that
any contract we enter into must be an entire agreement covering both working
conditions and wages.
Your demand for a 50% increase over the present basic wage scale, which
already is generally higher in the motion picture industry than in other in-
dustries in this area , is unreasonable and unjustified.
In conclusion, may we point out that upon the satisfactory disposition
of the matters herein referred to, we are willing to negotiate the matter
of wage increases.
Sorrell met with the Labor Committee on February 16. He testified, that
at this meeting "the Producers convinced us that . . . they were anxious to con-
summate a deal, and that they were sincere, and that we could work . . . the
situation out without having to strike, ..." At this meeting it was agreed to
start work on a uniform cover sheet covering general conditions applicable to all
Conference unions; then to take up the individual union problems and settle the
question of wages.
After February 16. Sorrell was ill and occupied with other matters. On March
24, Sorrell wired Kahane that nothing had been accomplished in contract. nego-
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations to date, "because of your failure to bargain.in good faith." He demanded
"joint negotiations for an immediate 'w"age increase." ' Kahane answered on
March 25, in the following telegram :
We are at a loss to understand the statement in your telegram today
that the Producers have not bargained in good faith. We have met with
your committee'whenever you requested and have discussed the various
problems presented. The delay in the negotiations had been largely caused
by your absence and your inability to meet on account of your health and
trial involvements. It was agreed that all of your locals were to negotiate
.working conditions prior to wages: As of March 20, 1946, the Readers and
Local 1421 are the only locals who have presented proposals on working
conditions. We are now negotiating with both locals Progress can be
made only if we meet We are ready to resume meetings whenever you
desire. We suggest that you arrange a program of meetings to continue
the negotiations.
The parties resumed their meetings on April 3. Stelir had in the meantime
protested the hiring on March 25 of the 35 members of the Federal Union, but
he was told there was nothing that could, be done about it. Sorrell wanted to
strike when he heard of the incident but apparently dropped such action when
he was informed that the IAM was going to file charges with the Board 4°
At the April 3 meeting, Kahane stated that the Producers "could not negotiate
a union shop or closed shop" with the IAM" Sorrell testified, "I made the re-
mark that open shop for one was open shop for all, and we walked out."
On April 17, the respondent Producers sent the following wire to A. F of L.
President Green and International Presidents L. P. Lindelof, of the Painters,
W. L. Hutcheson, of the Carpenters ; and Edward Brown, of the Electrical
Workers : 42
According to the Hollywood trade papers Herbert K. Sorrell telegraphed
you on Monday night that "because of the Producers' avowed open shop
policy and steadfast refusal to sign contracts, Painters Locals 644, 1421, 1488
and Studio Carpenters, Electricians and Machinists have all taken over-
whelming strike votes. .- . . We request your immediate sanction for such
strike action if necessary."
Mr. Sorrell's charge is without foundation.
The Producers have not proposed an open shop policy in the motion
picture industry. They have been and now are ready to negotiate closed
shop contracts with the Painters, Carpenters, Electricians and other American
Federation of Labor Craft unions which have heretofore had closed shop
contracts, and union shop contracts with the unions and guilds with whom
they have heretofore had such contracts.
The one necessary exception to this policy has been created by the with-
drawal of the Machinists Union from the American Federation of Labor
and the issuance of a Federal Charter to Machinists in the motion picture
industry by the American Federation of Labor. . . . We have been advised
-by the Central Labor Council and the Building Trades Council here that the
American Federation of Labor Federal charter union is the only accredited
American Federation of Labor union for machinists in this industry. Under
40IAM filed charges alleging violation of Section 8 (1) and (3j of the Act on April 12.
43 Sorrell was not certain that Kahane coupled "union shop" with "closed shop " He
acknowledged that he might be mistaken
41 The telegram was published in full in Daily Variety of the same date.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 513
these circumstances we cannot discriminate against this American Federation
of Labor Union by denying employment to machinists who are members of
that Union.
Mr. Sorrell claims a "steadfast refusal to sign contracts." There has been
no such refusal. The only demands made upon us have been for what
amounted to a general 50% wage increase. Nor was there any presentation
of, or opportunity to negotiate, the other elements which would be a n>cessary
part of any contract. The negotiations were broken off by Mr. Sorrell and
not by the Producers, who stand ready to resume at any time.
Sorrell, not to be outdone, followed this up with a telegram of equal length
addressed to the same parties. This telegram read in part as follows :
In double page newspaper advertisements today, Motion Picture Producers
reprint a telegram assertedly sent you, and charge Hollywood unions now
asking International sanction for strike action with misrepresentation of
the, facts.
We emphatically object The open shop policy in question was announced
night of April 3, 1946, by B. B. Kahane, vice president Columbia Pictures
and chairman of Producers' Labor Committee, in presence his committee and
eleven Hollywood business agents. Policy was to apply to Local 1488 of the
Brotherhood of Painters; Decorators and Paperhangers of America. We
refused to discuss it, or open shop for any union. We still refuse. Machinists
were not mentioned at this meeting.
On April 9, following fuller -exposure of their plans, Producers publicly
stated they had no open shop intentions, but went on to add, Quote In a few
instances the studios are unable to grant a closed shop, end quote. This
contradiction, coupled with a long, deliberate stall in negotiations, we also
exposed.
We think this makes their position clear. They have now apparently
retreated to safer ground, thanks to strike votes and international support.
We welcome the change, and have repeatedly advertised we will never strike
for anything which can be won by honest arbitration. But situation remains
the same until they make good on assurance and International sanction for
strike action, if necessary, continues important.
You may also want to know Producers are citing a recently issued Federal
Charter for Machinists as excuse for disregarding the December 26, 1945
ruling of the A. F. L. Executive Council's special committee,on Hollywood
jurisdiction, which the Federation issued at the specific request of the
industry.49
President Green replied in a'telegram sent April 18, and which is reproduced
herein :
Producers at Hollywood have advised me that they will sign a closed shop
agreement with Painters Carpenters Electricians Plumbers and other unions
for membership of said Unions at Hollywood. A Federal Charter has been
issued to Machinists at Hollywood. All Machinists employed at Hollywood
are eligible to membership in Federal Labor Union. International Associa-
43 Sorrell testified that on April 3, Kahane said the Producers would not negotiate a
.closed shop with the IAM In -the telegram herein, Sorrell stated "Machinists were not
mentioned at this meeting," and that the open shop policy applied to the Painters.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`tion of Machinists is no longer affiliated with American Federation of Labor.
For this reason I call upon all representatives of, unions at Hollywood to
recognize and support the American Federation of Labor Union of, Ma-
' chinists as a reply to your telegram of April Seventeenth.
'Despite this unsettled state of affairs , the parties resumed their meetings on
April 23. Sorrell's recollection of 'the meeting is not definite, except that the
closed shop was discussed-and Kahane did not mention it. Sorrell's diary also
disclosed another meeting on April 29, but he had no independent recollection
of the event. About May 4, 1946, the parties met to consider a draft cover sheet
which had been formulated in the meantime.
This draft cover sheet, dated May 4, 1946, was introduced in evidence. Sorrell
did not know its source or who prepared it but he was able to testify that certain
matters included therein were discussed between the parties Regardless of who
prepared the document it does indicate that on or about May 4, the parties were
making progress towards consummation of a cover sheet and were considering
such items as a full recognition clause, closed shop and detailed grievance pro-
cedures as applicable to CSU affiliates. Stehr was present and the IAM was
not excluded "from this discussion about the cover sheet......
On May 10, CSU and Producer representatives met to discuss another draft
of the proposed cover sheet. Sorrell testified that the cover sheet was applicable
principally to the Painters and Carpenters and that, "The Machinists were not
mentioned in this at all," although Stehr was present.
The parties met next on May 28 at which time Stehr was present. , There was
introduced in'evidence a "Typical Proposed Cover Sheet For Closed Shop Unions
In the Conference of Studio Unions," dated May 28, f946. It is not clear whether
the document was available at the time of the meeting or whether it was prepared
subsequently, to incorporate the decisions of the meeting. Sorrell acknowledged
.that the subjects, mentioned therein were discussed. More important, this docu-
ment seems to represent the final draft of' the cover sheet under discussion at
.the May 10 meeting. Although its provisions are applicable to the Painters,. there
is no evidence that discussion of them excluded the IAM At this same meeting
there was also discussed a draft, dated April 12, 1946, of "Proposed Typical Wage
Scales, Hours of Employment and Working Conditions For Employees Subject To
The Wage And Hour Law." This is a complex document dealing with a host of
matters such as hours, overtime, job classifications, meal periods, studio zones,
distant locations, etc. Sorrell testified that in discussing the proposed wage scale
with its vast ramifications, no particular Conference union was in mind and that
its provisions, if adopted, would be applicable to all CSU affiliates: The IAM was
not excluded from discussion and would inherit its benefits and profit by any
applicable provisions. Negotiations at this time were looking forward to agree-
ments to be individually negotiated for the IAM as well as other Conference
unions.
Before May 28, some progress had been made in the negotiation of separate
union contracts for the Painters, Carpenters and other unions. About June 3,
,Sorrell asked Casey that the Producer representatives meet with the IAM.
He was told : "Don't gum it up with the Machinists, bring in Painters."
It is necessary to advert for a moment to other events. In December 1945,
the Screen Publicists Guild, Local 1489, of the Painters, a CSU affiliate, filed a
petition for investigation and 'certification. On May 1, 1946, the respondent
Producers, except Roach, filed an RE petition naming therein as claimants to
representation, the Publicists, an Alliance local, and a third union. Other steps
followed, but on June 6, 1946, while a hearing was being held, the matter was ad-
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 515
,journed to permit the Publicists and the Alliance local to work out an agree-
ment for,a consent, election. As part of -the agreement, on June 7, the Pub-
licists agreed to waive unfair labor practices which had been filed and were
pending.
There was outstanding at this time in early June, the orders declaring "hot"
the work of IAM members. The latter were being discriminated against and
Shifflnan was stepping up his campaign to enroll-IAM members in his local.
Hence, on June 10, Ernest R. White, Grand Lodge representative of the IAM,
,and Stehr sent a lengthy telegram to the Association. Therein, White and Stehr
demanded an immediate bargaining conference. They charged the respondent
Producers and competing unions of collusion in the treatment of IAM members ;
'asserted that the IAM was still the legal collective 'bargaining : agent ; and
that all concerned were bound by the findings of the A. F. of L. committee, dated
'December 26, 1945, respecting the IAM's jurisdiction.
Three days later on June 13 occurred the "hot set" incident involving the
carpenters, as a result of which, members of the Carpenters and Painters unions
were discharged. Shortly before June 20, while the whole Hollywood scene was
rapidly approaching a climax, the Producers offered to all studio unions a general
wage increase of 10 percent or 181/2 cents an hour, whichever was highest. At
.,the meeting between the Labor Committee and the CSU on June 20, Sorrell re-
jected this offer on the ground that he could not accept less from the 10 major
-producers than had already been obtained in bargaining between the CSU and
,other independent producers. Stehr was present. Either at the same time or at
a previous meeting, Pelton stated that a closed shop could not be granted the
IAM as distinguished from other Conference unions, because of the conflict over
the bargaining unit. Sorrell then stated that if the Producers wanted "to get
,off the spot" on the machinist question all they had to do was to file a petition
with the Board and let it determine the bargaining unit and representative.
Kahane asked if the CSU would abide by a Board decision and if the machinists
question could be "put aside" until a determination was reached. On receiving
Sorrell's affirmative response, Kahane stated that the parties were now in posi-
tion "to get somewhere on this agreement." Sorrell then demanded a 25 percent
across-the-board increase on take-home pay for all crafts which the Producers
,said they would consider.
At or about this time Sorrell and Casey were discussing the problem of re-
turning the carpenters and painters to work over the "hot set" incident. Sorrell
stated that these crafts would return when the Producers showed their "good
.faith by going to the Board" about the Machinists issue. Casey asked that,"the
.Machinists" go to the Board. Sorrell replied, so he testified:
No, we can't file for an election. We already have-legally 1185 is the
bargaining agent, so what would they have an election for? Let the Pro-
ducers go down and have a hearing or whatever is necessary to clear the
thing if they think that they are being picked on. Otherwise, the Painters
are going to work outside. They are not going.to work in'the studios any-
more ; Carpenters likewise.
This conversation was reportefl,to Kahane. On June 22, the Producers informed
`Brewer that they were going to file an RE petition and received his assurances
that the Alliance would-accept the Board's findings on the investigation. The
Producers' attorneys prepared and filed the RE petition on June 25, 1946.44 On
44 21-RE-31.
'516 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 26, 1946, the JAM -filed' a first amended charge alleging violation of Section
8 (1), (3) and (5) of the Act. It would seem clear that the amended charge which
first raised the issue of refusal to bargain antedated the filing of the RE petition.
On June 28, Sorrell learned that the RE petition had been filed. He testified
as follows along this line :
Q. (By Mr. MITCHELL) . . . when the Producers filed their petition with
the National Labor Relations Board, did the Producers tell you that they
were going to hold up negotiating the Machinists until the Board determined
which one of the unions represented the machinists?
A. I don't know if they just put it in that kind of language or not. They
said the Machinists -were now being taken care of by the Board "We have
complied with your request. We asked the Board to settle the matter." And
we sent our people to work ,upon telling us that they had complied with our
-request and would abide by the decision of the Board.'-
Q. Didn't they tell you until the Board determined who was the proper
bargaining representative for machinists, they weren't going to negotiate
about machinists anymore?
A. They probably did. I don't know. It is a little hazy.
At or about this same time, and perhaps on June 28, Sorrell told the Labor
Committee that the CSU insisted upon obtaining better conditions from the
major Producers than those previously granted by the smaller independent Pro-
ducers. Sorrell testified the Producers "wouldn't comply so we [CSU] went on
strike."
b. Partial conclusions
This brings the account of events to a point'where it may be appropriate to
'examine the relationship before passing to consideration of the' Beverly Hills
conference of July 2. It will be conceded, in the undersigned's opinion, that it
is'impossible to divorce the JAM from the CSU in 'the latter's collective bargain-
ing. The JAM was represented at all bargaining conferences, and in those
instances where Sorrell acted alone, he spoke with the authority that was his
as president of the' CSU and of which the JAM was an integral part Had it
been charged here that the respondents had failed to bargain collectively with the
-CSU, the undersigned would have little hesitancy in dismissing such charge. The
Producers were at all times willing to meet with the CSU On one occasion,
Sorrell, so he testified, was convinced of their sincerity in attempting to con-
clude negotiations. Progress during May-was being made -on a uniform cover
sheet. Progress was being made-also in the negotiation of individual agree-
ments for the Carpenters and Painters. Wage demands were being considered.
The bargaining was hard throughout, complicated by the many factors and
facets peculiar to the Hollywood scene.
In this total picture, the JAM's position differed mainly in the following re-
spect. The Producers were1not willing to grant the JAM a -closed shop although
they were willing to negotiate closed-shop contracts with the Painters, Car-
penters,and other A. F. of L. crafts which theretofore had enjoyed closed-shop
contracts. The Producers' position, on this issue with respect to the JAM
.° The "people" returning to work were the carpenters and painters on strike over the
"hot" technicolor sets.
46 Actually, the strike occurred July 1.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 517
stemmed directly from the fact that the IAM had been suspended and a charter
issued by the A F., of L to the Federal Union:' It is' the undersigned's opinion
that, the Producers were, as in the case of the discharges and lay-offs of IAM
members, again submitting to economic pressures exerted by"rival labor organi-
zations. But there is no compelling proof that this position was one of bad
faith and taken for any reason other than the force of rival demands. More
important, however, is the fact that the Producers at no time refused to meet,
bargain, and discuss problems, apparently in a genuine desire to accomplish
results. There was no issue over recognition, as there was in Matter of Albert
Love Enterprises 97 where the Board found in a closely analogous case that
"the respondent declined to recognize" a union which represented a majority of
employees in an appropriate unit. The Producers at all times up to June 28, were
ready and willing to recognize and deal with the IAM either alone or through
the CSU. There seems to, be only one exception to this and that was on the
one occasion when under the turmoil and confusion of the "hot set" incident,
Casey and the Producers met with the Painters instead of the IAM.
This case up to this point in bargaining negotiations represents a picture of
respondents unwilling to grant a concession-the closed shop-which they were
willing to grant other unions, because of a jurisdictional dispute between A. F. of
L. unions and rival claims between the IAM and those unions. But the bar-
gaining picture presents no other unalterable positions and on all other matters
the IAM's status was on an equal plane with other Conference unions.
In reaching these conclusions, consideration has been focused on the fact that
respondent Association and certain Producers-engaged in•independent violations
of'Section 8'(3)' of the Act-and in Mauch 1946, placated Alliance demands by
hiring Federal Union members. All of which may indicate that if the choice
was theirs alone to make, the Producers would prefer to confine the union "rep-
resentation of their employees to A. F. of L. members. But to conclude that
by reason of preference so indicated, coupled with inability to agree finally upon
a contract for the IAM before settlement of all the problems inherent in this
complicated set-up, there has been a refusal to bargain is unwarranted by the
evidence. The undersigned finds that as of about June 28, 1946, there had been
no refusal to bargain collectively on the part of the respondents.
c. Events leading up to the Beverly Hills meeting of July 2, 1946
On the morning of June 30, Sorrell met Casey and his assistant, Clarke, in
Casey's office in the Association building. Sorrell wanted action-completion of
agreements covering Conference unions including the IAM-in order to avoid
another strike in the industry. At this meeting Sorrell gave Casey a memo-
randum of CSU demands "to keep [the CSU] from going on strike on Monday
morning [July 1] ". Sorrell testified further :
.. I believe I mentioned [to Casey], that I had been given to understand
that 100 Federal Union Machinists were going to be put to work in the
immediate future, maybe Monday or Tuesday, and, that we were not out on
account of the Machinists, but we thought that the least they could do was
to leave it status quo until it was-until the Machinists had taken it up
with the Board or until the Board had acted on it, or something of that
kind ..."
4 7 66 N. L. R. B. 416, 423.
809095-49-vol. 79-34
518 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
A memorandum introduced in evidence shows Sorrell presented the following
demands : 97 n - "
1. Major Producers to meet the rates already agreed upon between the
Independents and C. S. U. . . . -
2. In the matter of the weekly guarantee of 36 hours, Sorrell agrees to
give the Producers a period of thirty days, not only to make a survey of the
36 hour week, but also a study of an annual wage.
3. Also during the thirty day period contracts for the crafts under Local
#1421 and the Cartoonists and Story Analysts .will be negotiated.
4. As to Machinists and Publicists-these contracts will be negotiated when
a decision of the N. L. R. B. is handed down and the Producers agree to
abide by the decisions and expedite the procedure.
5 While these matters are before the N. L. R. B. conditions are to remain
frozen. That is to say, no more Publicists nor Machinists are to be hired
pending the N. L. R. B. decision.
It is also understood that if any other comparable crafts get any larger
general increases the C. S. U. members will get similar increases 49
Particular reference is made to points 4 and 5 above. It will be recalled that
the Publicists had filed charges which were withdrawn about June 6, when an
agreement for a consent election was being formulated. Hence in the cage of
the Publicists it seems clear that what was being awaited was the Board's
decision in the forthcoming consent election. As to the 1AM, 8 (1) and (3)
charges had been filed in April, followed by the RE petition on June 25, and
charges of 8 (1), (3) and (5) on June 26. 'In this latter connection, Sorrell
testified that prior to June 30, Casey and other Producer representatives had
suggested. a Board election to settle the machinists controvery but "We would
not do that." He testified further :
We refused to go to the Board -and ask for an election. We always told
them, "You go to the Board." ,
s s s s s s s
A. Well, the only reason we didn't want an election was because we had
got our fingers burned going to the Board in the year previous, and we had
had to strike for eight months and put all kinds of heat on everybody in
the whole United States to get one of these protracted-get all the red
tape loose so that we could get the election and know who was who, so
we refused to go to an election because it would draw it out too long.
Q. (By Mr. RissMArl) Did you state any other reasons to the Producers
as to why you didn't want an election? Do you recall stating any?
A. No, sir. I can't recall any now, because it wouldn't matter to me so
long as you did it quickly, and they agreed to expedite it as fast as possible.
In the undersigned's opinion, what Sorrell had in mind on June 30, irrespective
of any later position to be taken by the Board, was its decision on the RE
petition pending which; the IAM contract was not to be further negotiated.
Casey told Sorrell that he would let him have the Producers' response to his
demands for calling off the strike and their position on the machinist question
This memorandum is based upon notes taken by Clarke at the meeting. Sorrell testified
that it was "approximately" what Clarke wrote at the time. It was stipulated that Clarke
if called would testify it represented his notes of Sorrell's demands and that he-gave one
copy to Sorrell.
ASSOCIATION OF. MOTION PICTURE PRODUCERS, INC . 519
after he conferred with Messrs. Kahane, Mannix,, Freeman and Work. At about
S p. m. Casey delivered to Sorrell the Labor Committee's response. It is herein
set forth :
With reference to the proposals made by you in your conversation this
morning with Messrs Casey and Clarke representing the major producing
companies, we advise you on behalf of those companies as follows :
1. Your proposal that we meet the rates agreed to between your group and
the Independent Producers represented by Mr. Chadwick is accepted.
2. With respect to the proposal that we guarantee six days work per week
of six hours per day, for certain crafts; we accept your suggestion that we
take no action on this matter at the present time, but that during the next
thirty days we make a survey of the matter, as well as a study of a possible
annual wage ; this, however, with the understanding that in doing so we make
no commitment.
3. Your proposal that during the next thirty days we carry on, negotiations
looking to the making of contracts with crafts under Local #1421 and Car-
toonists and Screen Story Analysts, is accepted.
4. Your proposal that negotiations with Machinists and Publicists be
deferred pending decisions by the National Labor Relations Board ; that we
agree to abide by such decisions and to expedite such proceedings, is accepted.
5. Your proposal that we refrain from hiring additional Machinists and
Publicists pending these National Labor Relations Board decisions, is un-
acceptable and is therefore rejected.
6. In respect to your proposal that if comparable crafts in the industry
are given larger general increases than your group, you shall receive like
increases , is accepted with the understanding that this does not apply to
upgrading or adjustWents to take care ,of inequities or with respect to em-
ployees in the lower salary groups.
In addition to the above specific matters covered by your proposals, we
understand from our previous negotiations with you that you are agreeable
to the following :
1. The proposed deal is to extend,until December 31st, 1947.
2. The Unions will agree to an arbitration set-up to settle all jurisdictional
questions and disputes.
3. The Unions will agree to maintain an adequate supply of competent
labor in all classifications to fill calls of the Producers in accordance with
production requirements.
Upon acceptance of the above, we are prepared to enter into formal con-
tracts with each Union covering wage scales and schedules, as well as working
conditions as negotiated at our previous conferences.
(Sgd) PAT CASEY
According to Casey's uncontroverted testimony, when the above was handed
to Sorrell there was no discussion of point 4. However, with respect to point 5,
Sorrell stated that he would submit it to a strike meeting to be held that night
at the Hollywood Bowl. Apparently, the response as a whole' was unacceptable
because on Monday. July 1, the CSU including the IAM, went on strike.
With the start of the strike, Sorrell sent all Alliance business agents the follow-
ing telegram :
Misrepresentation being circulated that we are striking over machinists.
This is utterly false. The machinists issue is before the National Labor
Relations Board and we will abide by the Board's Decision. We are willing
U
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to arbitrate any and all 'disputes of any nature , whether jurisdictional or
not. Conference unions are on strike"because producers' insist on oui sign-
ing a contract terminating December 31st, 1947 . Impossible for us ' to accept
in view of discontinuage of OPA and uncertainty of future cost of living.
We are willing to sign contract terminating December 31st, 1946 . Producers
have agreed to our wage demand but will not put them into immediate effect,
nor will they promise to negotiate within 30 days contracts for our unions.
If producers would put wage raises into immediate effect and sign •interiin
agreements for 30 or 60 days with Conference Unions pending negotiation
of contracts , strikes would end immediately We are striking for con-
tracts, wages , and conditions and earnestly ask for your support ( Emphasis
supplied.)
The third sentence in the telegram is significant . Can it be reasonably con-
tended that this . referred to the IAM charges pending before the =Board and
upon which^ 'no 'complaint had as yet issued-? --Can it lik wise be - in€err-ed that
Sorrell referred to or had in mind , a hearing, issuance of an Intermediate Report
and eventual Decision of the Board with the necessary time lag involved , on those
charges. In view of the history of events to date, it seems reasonably clear that
here again , Sorrell had in mind the disposition by the Board of the Producers'
RE-petition which , as he testified , they had agreed "to expedite."
Sorrell met Brewer on the morning of July 2, at a Teamster 's meeting Sorrell
told Brewer that he meant everything he said in his telegram and Brewer asked
if Sorrell was willing to meet with the ,Producers , in, an attempt to settle the
strike Brewer stated he could assist in arranging a meeting with the Producers
that, afternoon.
That afternoon occurred the meeting of Beverly Hills, and from which there-
after issued what has since been called , and not without reason , the Treaty of
Beverly Hills. It is perhaps significant of this controversy , that a major portion
of a 20-day hearing was devoted to the testimony of witnesses concerning this
meeting without producing accord or what transpired there . Everyone connected
with the Hollywood union situation attended the meeting, including representa-
tives of the Conference unions, Alliance locals, Producers ' representatives and
Actors Guilds.
That morning , the Producers had published an advertisement in the trade
papers, herein set forth in part :
THE STUDIO STRIKE IS NOT OVER WAGES AND HOURS
,The facts are as follows:
At a meeting held 'Sunday', morning, June 30th,;W between Pat Casey and
Victor Clarke, representing the major Studios, and Herbert Sorrell , repre-
senting the Conference ,of Studio Unions, the following proposals were made
by Mr. Sorrell to Mr. Casey and Mr. Clarke :
SORRELL PROPOSED:
1. That the Major Studios meet
the rates already agreed upon be-
tween the Independents and the
Conference of Studio , Unions, . . .
STUDIOS ACCEPTED.
SORRELL PROPOSED:
2. That the Studios take a period
of thirty days to make a survey of
the 36-hour week, and also a study
of an annual wage. -
ASSOCIATION OF MOTION' PICTURE' PRODUCERS, INC. 521
STUDIOS ACCEPTED
with the-provision-that ,by
doing so'they make'no commit-
ment as to final decision.
SORRELL PROPOSED:
4. That as to Machinists and Pub-
licists, these contracts be negotiated
when a decision of the National
Labor Relations Board is handed
down, and that the Studios agree to
abide by the decisions and to expe-
dite the procedure.
STUDIOS- ACCEPTED.
SORRELL PROPOSED :
5. That while these matters are
before the N. L. R. B. conditions are
to remain frozen . that no more
Publicists or Machinists' be hired
pending the N. L. R. B decision.
STUDIOS REJECTED.
SORRELL PROPOSED:
6. That if comparable crafts be
given larger general increases than
his group, it receive like increases.
,,STUDIOS ACCEPTED I
. . . with .-the. understanding
that this shall not apply to
cases where upgrading or ad-
justments are necessary to take
care of isolated inequities or
with respect to employees in a
lower salary group.
In addition to the above specific
matters covered by Mr. Sorrell's
proposals, the Studios understand
from previous negotiations with
him, that he was agreeable to the
following.
1. The proposed deal is to extend
until December 31st, 1947.
2. The Unions will agree to an arbi-
tration set-up to settle,all jurisdictional
questions and disputes.
3. The Unions will agree to maintain
an adequate supply of competent labor
in all classifications to fill calls of the
Studios in accordance with production
requirements.
To attempt to paraphrase the testimony of the principal witnesses to the events
of the meeting would burden beyond readable limits, the length of this Report.
Rather what is now attempted is a restatement of the positions advanced by the
Producers on the one hand, and Sorrell and White on the other
Sorrell and Kahane were the leading figures at the meeting, the latter presiding
as chairman. Kahane explained how the meeting had been called and then
took as his text the afore-mentioned advertisement. He came quickly to points
4 and 5 about which discussion then centered. It was testified to by Kahane
and all other witnesses called by the respondents and the intervenors that points
4 and 5 were accepted by the CSU and by White representing the IAM, after it
was mutually agreed that both the IAM and the Publicists were to enjoy a
retroactive- 25-percent pay increase and that additional machinists were to be
hired on the open market without recourse to either the IAM, Alliance or
Federal Union as the source of supply. The crucial point of their testimony,
however, is that the wage increase, new hiring practice and postponement of
bargaining with the IAM was to await the decision of the Board on the RE
petition then filed with the Regional Office. Further, that either by express
words or by inference which was so clear that no reasonable person could be
in doubt, the "decision" referred to was that of the Board on the RE petition
and not on the charges filed by the IAM.99
White's testimony is not persuasive to the contrary. It is acknowledged that
it was'agreed to accept the 25-percent increase for Machinists and that hiring
49 Sorrell testified • we agreed to go to work and let the Board settle the case,
rather than to go on strike to settle it." He testified again : "We had the understanding
that the National Labor Relations Board would decide whether they should .continue to
deal with the Machinists or not
522 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD-
of new machinists was to)take place on the open market without recourse to,
any union . White testified , however , that at no time was it understood that
bargaining with the LAM was to await the outcome of the Board 's decision of
the RE petition but rather in accepting the provisions applicable to wage increases
and the hiring of machinists he stated that all he asked of the Producers was
that they "abide by the law," referring inferentially to the charges - then pending
before the Board . White also testified : -
And I told Mr. Kahane all the Machinists wanted the Producers to do was-
abide by -the law, and if they felt in view of the existing controversy they
couldn't recognize us, that they not recognize any other organization that
might be contending for our jurisdiction , that they hire machinists on the-
open market or any other source, but not recognize anyone else.
* * * * * * *
(By Mr. MITCHELL ) . . . Now,'leaving out any controversy about repre-
sentation , didn't Mr. Kahane say that the parties had all agreed that bar-
gaining with the Machinists should be postponed pending the decision of
'the Board: Wasn 't that mentioned?
A. I am not too clear on that point . ' The conversation may have been in
substance along that line. -
He testified further :
Q. (By Mr. MITCHELL ) Well, was anything said about postponing the
negotiations with Lodge 1185 pending the decision?
The WITNESS. Yes. -
Q. What and by whom?
A. I am not exactly clear, but I think Mr. Kahane made some statement
in that regard , and I stated that-this was in conjunction with something
about the negotiations , and I stated that if it were finally determined that
Lodge 1185 were the proper bargaining agent, that we would abide by the
general terms and provisions and rates of pay negotiated by the Conference
of Studio Unions for the standard crafts.
Q. Then you contemplated that bargaining would go on in the meantime
without Lodge 1185 being recognized , didn't you?
A. I am not too sure that I had that contemplation , because the Conference
of Studio Unions in their general negotiations on conditions that involved
all the affiliated organizations had insisted that a representative of Ma-
chinists be present or they wouldn ' t- meet. Whether they were taking an
active part in such discussions or not, I don 't know.
The testimony and, documentary evidence pertaining to the Beverly Hills meet-
ing has been closely analyzed . The logic of it all indicates , in the undersigned's
opinion , that at the meeting the CSU agreed to call off its strike in return for
`certain concessions including the 25-percent wage increase applicable to the
-Machinists and Publicists . It was also agreed that additional machinists would
be hired but not through either the IAM or Federal Union and it was determined
to hold the Machinists ' controversy in abeyance pending the outcome of the
Board's RE decision . This conclusion finds substantial support in the record.
At least one of the reasons for filing the RE petition was Sorrell ' s suggestion that
if the Producers wanted to get "off the spot" they could "go to the Board" but
that the IAM would not file a petition because they saw no reason to petition
the Board for the bargaining rights they already possessed . On July 2, all of
ASSOCIATION OF MOTION PICTURE PRODUCERS, ' INC. 523
the parties knew the petitions had been filed. It is incredible to believe that the
TAM would have agreed to anything that would have postponed bargaining until
a Board decision was reached on 8 (1), (3) and (5) charges, on which a com-
plaint-had not been issued and which gave no assurance of settling the juris-
dictional dispute. -
These conclusions are strengthened by events subsequent to the meeting. Ka-
hane had suggested issuance of a joint release on the meeting's accomplishments.
This was to be prepared by the publicity representatives of the Association and
the CSU and not to be released until approved by Kahane and Sorrell. Arch
Reeves, the Association's publicity man, showed Walter Ruf, who functioned in a
similar capacity for the CSU, a statement which had been prepared for release.
Ruf sought to communicate with Sorrell about it, but unsuccessful, read the state-
ment containing this paragraph to Carl Head, the CSU vice president, who
attended the meeting : ,
Studios to be free to hire machinists on the open market while the ma-
chinists' case is pending before the National Labor Relations • Board, with
agreement on the part of all unions involved that there will be no work
stoppage and no "hot sets" as a result of dispute over machinists' work.
Studios to accept the NLRB decision and negotiate with whatever union is
certified.
Head approved the release containing this paragraph and thus approved it
appeared in the press on July 3. Here for the first time, there crept into the
picture the word "certified." The full significance of the CSU decision, for all
to read if the release was an accurate account of the meeting, was that the
TAM was relinquishing for the moment its insistence on contract negotiations
pending a Board ruling on the RE petition. If this release did not meet Sorrell's
approval, certainly his action in regard to it was not that of one who felt he
had been compromised or tricked into an agreement contrary to his under-
standing. He testified that although it did not please him, he made no com-
plaints to Ruf about it and told Reeves that anything Ruf approved was "sat-
isfactory" to him. He could not recall discussing it with White or protesting its
contents to anyone. At a later point, Sorrell testified with some uncertainty
that he told Casey that the release should not have gone out since it appeared
that the TAM would have to be certified to deal with the Producers. Casey
denied that Sorrell had "protested" in any conversation with him the use of
the word "certification." In view of Sorrell's equivocal testimony, Casey's denial
is credited.
If Sorrell's conduct showed no particular concern about the contents of the
news release as expressing the agreement of the parties, and in view of the con-
tention that Sorrell neither by action or inaction could bind the TAM, White's
conduct was just as equivocal. Upon reading the newspaper account on July
3, he put in a call to Frank Pestano, CSU attorney, and told him that the story
did not check with his understanding of the agreement, particularly the refer-
ence to certification. White told Pestano that there had been no discussion of
certification and the TAM position as expressed on July 2 to Kahane, "was that
such decision or order as the Board might issue-and that was what I wanted
to be sure was contained in this stipulation." 60 White wanted to be certain that
the minutes of the Beverly Hills meeting reflected his understanding.
50 The indefiniteness of this quotation from White's testimony suggests the uncertainty
in his own mind of what it was be wanted the minutes to record.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the meantime, Sorrell, Stehr, Bassett, Pestano, Kahane and others were
meeting to agree on the exact language to incorporate in the minutes of the
Beverly Hills meeting. The suggestion was made that Clarke's niiliu'tds- of the
meeting be approved and signed. Whereupon Kahane read Clarke's minutes
and this portion as applicable to the machinists:
Both sides agree to let machinists enjoy the 25 percent increase pending
the N. L. R. B. decision. We are free to engage machinists in the open
market-not from either union, until the N. L. R. B. decision is made.
Discussion arose over the meaning of the last sentence and it was changed to
read :
We are free to engage machinists as individuals, not through either union.
Sorrell expressed his approval but wanted to check it with White but was unable
to reach him. Shortly thereafter Kahane spoke to White and read the para-
graph as revised over the telephone. According to White: "I indicated that
that was generally in conformity with my understanding of what.was expressed
at the previous meeting." This checks with Kahane's testimony to the effect
that White approved it. However, Kahane,denied -that White -made this further
comment which White testified was included in the phone conversation :
I told him that as far as the [IAM] was concerned I wanted him to
understand thoroughly that by agreeing to that, we were not agreeing that
the unfair labor practices we alleged that Producers had been indulging in
were proper, their failure and refusal to recognize and bargain with us.
And I was agreeing to this for the expedient xeason of getting that work
stoppage settled. This is, in substance, what it was."
Although resolution of this conflict is not altogether free from doubt, in view
of Kahane's general reliability as a witness, the undersigned accepts"White's
version of the phone conversation as the correct one. This is because the con-
versation was followed by a later telephone call from Homer I. Mitchell, re-
spondent's counsel, the substance-of which relates directly to White's injection
of the new note about unfair labor practices and which in the undersigned's
opinion probably prompted Kahane to call Mitchell and ask that he clarify the
matter. This is discussed below
White was asked to explain what was "deferred or postponed or fixed" by use
of the agreed-upon phrase of the minutes, "pending the N. L. 'R. B decision."
He testified that "there wasn't anything deferred or postponed. . . . It was part
of the overall points in controversy that stopped the work, . . . which was re-
solved by this meeting at Beverly Hills, . ." He testified further :
Q. (By Trial Examiner RlEMER) : Is it your testimony, then, that pending
the N. L. R B. decision it was agreed, first, to let Machinists enjoy a 25
percent increase and, second, that the Producers would be free to engage
Machinists without recourse to either union?
A. Well, certainly. They had refused to hire our people some time back,
and they had refused to negotiate with us, and we knew that we were going
to have to get the Board to order them to do so before we could resume
that. What we sought was that they cease recognizing anyone else for
Machinists, and getting their men in those classifications specifically from
51 White admitted he said nothing to Kahane about the word "decision," referring to the
representation petition, nor did he mention "certification."
/ 0
ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 525
them, but get them anywhere they could. We %,ere willing to take our
chance on that
Q. (By Mr. MITCHELL ) : Was anything said about bargaining with Ma-
chinists being postponed?
A. Well, I don't know whether the word bargaining was specifically used,
but when I said, "If you don't feel you can recognize and deal with us
properly , we ask that you don 't recognize and deal with anyone else," we
certainly meant bargaining with anyone else. -
Q. That is, bargaining with anyone else should be postponed pending the
-decision , that is what you meant , isn't it?
A. In substance, yes..
Q. And you meant also bargaining with y4? Should be postponed pending
the decision?
A. I didn't have to ask them to do that . They had already stopped bar-
gaining with us. I. was asking them not to bargain with anyone else.
Q. That is what you meant by this language , isn't it?
A. Well, I am not too sure that is what I meant , I had recognized that
they were not bargaining " with us, and would not bargain with us, and I
didn't want them to bargain with someone else until the Board had done
something about the entire problem.
Q. Isn't it your understanding that bargaining both with someone else
and with you was to be postponed pending the Board 's decision?
The WITNESS . That is not exactly correct. I was requesting that they not
bargain with anyone else . They had already stopped bargaining with us.
Q. (By Mr. MITCHELL ) : Well, then , do you mean to say you indicated
that you were not agreeable to this bargaining being postponed with all
parties pending the decision? .
* * * * * * *
The WITNESS . What I meant , in effect, Mr. Mitchell , was that I recognized
that the Producers were refusing to bargain with us, and so we had filed a
charge under the Board seeking redress, and we were requesting that inas-
much as they had refused to bargain with us, and we hoped the Board would
adjudicate that issue, that they cease bargaining with anyone else until the
Board did adjudicate that issue , and on that basis we were willing to have
the work stoppage settled.
White testified that he instructed Pestano to make it clear in the preparation
of the Beverly Hills minutes that the decision referred to therein was not a
decision on the RE petition . If this be so, the instructions were meaningless for
it appears from Kahane ' s uncontradicted testimony , that no protest was made
about the use of the phrase, "pending the N. L. R. B. decision ." Also, it has been
found above that White approved this language . After securing White ' s approval'
the minutes were signed by Sorrell and Casey . Shortly thereafter a copy of the
minutes containing the approved paragraph applicable to the Machinists was
sent to Sorrell with this covering letter :
Pending the completion of contracts between the individual Unions, mem-
bers of the CSU . . . , and the major Studios , these Minutes . . . shall
constitute an Interim Agreement.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly following the White Kahane telephone conversation on July 3, referred
to above, Mitchell=telephoned White as mentioned-before. The conversation was
reduced to memorandum form by White and a copy introduced in evidence.
Although Mitchell testified generally as to the understanding reached at the
Beverly Hills conference, he did not touch upon his later conversation with
White. Hence, the undersigned accepts the testimony of White and his memo-
randum as a substantially accurate account of the conversation. White's
memorandum relates in part :
I was called by Homer I. Mitchell, ... who advised me that he represented
the major producers as far as any charges of unfair labor practices filed
against these Companies were concerned and he inquired as to whether or
not the International Association of Machinists were going to press the
-charges they have filed .. .
I advised Mr. Mitchell we had every intention of so doing and that until
the' major producers recognized us and entered into collective bargaining
with us; all phases of the problem were entirely in the hands of the National
Labor Relations Board, and that we would never voluntarily agree to a
representation contest under the present circumstances and that even though
the Board might order an election as a result of the "RE" petition filed on
behalf of the major producers, that even [were] such contest held, we would
only find ourselves in the same position we currently enjoy and that is,
that we represent a substantial majority in an appropriate unit and if the
major producers were anxious to clean up the entire situation, we could
very likely settle the entire matter quickly on a basis of a Board approved
settlement of the pending charges. Mr. Mitchell declined to. state whether
or not his clients would agree to this course of procedure.
White when questioned whether Mitchell did not also tell him that it was not
the Producers' understanding that the matter of bargaining should await a
decision in a complaint case answered : "I don't recollect that, Mr. Mitchell. You
may have made that statement to me, but as I said before, I did not attach too
much significance to it."
One final event in this long history remains for disposition. The Treaty of
Beverly Hills sent the strikers back to work but did not, as is clear, dispose of
the. differences between the Producers and the IAM. About August 15, Sorrell
was told by the CSU attorneys "to ask for a Machinists' meeting." He testified :
"but we didn't get it; because there was other'unions 'that I would just 'as soon
have had in there, but they told me to ask for a Machinists' meeting, to see if
I could get it, and I couldn't." According to Sorrell, Casey replied : "Let's
don't get tangled up on that. Let somebody else in." Casey denied any such,
request by Sorrell. The undersigned believes that Sorrell acting on his attorney's
advice did make such a request. it is so found. The circumstances under
which this request was made does not persuade the undersigned that sig-
nificance should attach to Casey's denial. As Sorrell testified, there were other
unions that he "would just as soon have had in there."
d. Conclusions
- Heretofore under subdivision (b) of this section, the undersigned has set forth
his conclusions and,found that up to about June 28, 1946; there had not been
a refusal to bargain collectively on the part of the respondents. There remain
conclusions to be drawn from the events of June 30, culminating in the Beverly
Hills meeting.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 527
There are at least three possible interpretations-of that event:
First: The parties agreed to postpone the negotiation of an TAM contract
until the Board's decision on the RE petition which would fix the unit and
bargaining'agent; the TAM in'the'meantime to enjoy a 25 percent wage in-
crease as well as share in the hiring of riew employees. Later White realized
the significance of his commitment and attempted to withdraw, while still'
preserving the settlement benefits, by asserting that the decision' referred'
to charges pending before tbe.Board.
Second: The parties bargained and thought that an agreement had been
reached but there was never a meeting of the minds. The Producers and
to some extent Sorrell, believed that the decision referred to the RE petition,,
while White, had in mind a decision on the TAM charges. This possibility,
seems to run conga to the weight of credible testimony and the congeries
of facts.
Third: This interpretation follows generally the purport of White's test!-,
mony as the undersigned understood it. It is that the parties agreed on
July 2,-that, pending an - eventual, decision on unfair labor practice charges,
the TAM would receive a•25'percent,increase and participate in-new hirings.
Further, that negotiation of a •machinist contract with any union would be
held -off and when finally consummated, the TAM, if still. found to be the
bargaining representative, would gain the advantage• of•benefits negotiated
in the interim period by the CSU. The undersigned can hardly believe that
White, a skilled trade unionist and negotiator, conversant with Board prac-
tice, would have committed himself in a position which, if carried to its
logical conclusion , would have granted the TAM a questionable status for an
indefinite period.
Although the undersigned is of the opinion that the first is the only interpreta-
tion which is warranted by the record as a whole, the question still remains
whether there has been a refusal to bargain. On June 30, Sorrell wanted action-
action which included negotiation of an TAM agreement. Rejection of CSU
demands led to a strike and the Beverly Hills meeting. Bargaining ensued-
bargaining in a gold fish bowl-followed by concessions from which the TAM
was not excluded. The Producers hedged on the TAM, seeking the same solution
for the machinist question as had been achieved for the publicists, i. e., with-
drawal of charges and a consent election. The undersigned is of the opinion that
this is what they believed they would get from the Beverly Hills meeting. That
they were mistaken does not prove they refused to bargain.
Because of the economic power wielded by the Alliance, the respondents were
and are disposed to treat naked claims of representation; presented by unions
other than the TAM. Yet the respondents have bargained with the TAM either
directly or through the CSU. Down to July 2, the main issue that kept the
parties apart was the IAM's demand for a closed shop. In other respects, as
heretofore pointed out, progress was made on a uniform cover sheet and other
conditions of employment presented no obstacle. Finally the agreement of July 2
from the Producers' view presented a way to resolve a contentious problem. The
entire picture disclosed by this record does not indicate the type of bargaining
contemplated by the, Act. In fact one might conclude that in certain respects
there has been an absence' of bargaining. But the undersigned on a considered
reflection of the entire record is of the opinion that the charge of a refusal to
bargain is not supported by reliable, probative, and substantial evidence. It is
so found. It will be recommended that this allegation of the complaint be dis-
missed as respects all respondents.
m
528 DECISIONS OF NATIONAL LABOR-' RIrLATIONVS1 BOARD=
IV. THE EFFECT 0F• THRnUNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of respondents 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 and have led to labor disputes burdening
and obstructing Commerce and the free flow of commerce.
V. THE REMEDY
It has been found above that the respondents Association , Warner, Loew, RKO
and Universal discriminated in regard to the tenure of employment of certain
named individuals because of their IAM membership and that thereby the said
respondents discouraged membership in the IAM and interfered with, restrained,
p and coerced their employees in the exercise of rights guaranteed in Section 7 of
the Act. These individuals were discriminated against because the respondents
submitted to threats of economic pressure raised by the Alliance and the Team-
sters, and in submitting thereto decided that a violation of the Act was eco-
nomically speaking less hazardous than continuation in employment of IAM
members . It was found ' above, and it is again 'e'mphasized,'that by such conduct
on the part of the respondents , individual workers were punished for exercising
rights guaranteed to them in the Act.
The violations of the Act herein found, are by ordinary standards sufficiently
grave in the undersigned 's opinion to warrant the recommendation that the
respondents be ordered to cease and desist from in any manner infringing upon
the rights guaranteed in Section 7 of the Act 62^ The undersigned 's' opinion in
this regard is strengthened by the fact that the IAM is no longer affiliated with
the American Federation of Labor and, in view of the respondents ' action, it
should be made clear to their employees that membership in a union not affiliated
with the American Federation of Labor will not jeopardize their positions or their
rights guaranteed in the Act. To the extent that the employees can be assured
that their rights will-not be interfered with in the future , the-undersigned is,
recommending hereafter that the respondents be ordered to cease and desist from
in any manner infringing upon rights guaranteed in Section 7 of the Act.
It has been found that respondents Association , Universal , Loew, RICO and
Warner discriminated against certain named individuals by reason of their
IAM membership . It was also found, however, that all of the said individuals,
other than those transferred to other positions by reason of their IAM member-
ship, were shortly reinstated to their old jobs or to other positions. Therefore,
except as hereinafter indicated , the general remedy provisions for reinstatement
are not required . Hence, the matter of back pay does not raise any substantial
problem other than the question of the principle involved . In this connection, the
respondents in their brief urge that because the employer respondents named
above acted in good faith and violated the Act as a result of economic threats,
the Board 's decision in The New York & Porto Rico Steam s7iip Co. case 52 should
be followed and no back pay should be awarded.
The undersigned has considered the general applicability of the Board's de-
cision in the Porto Rico case and rejects that decision as appropriate here.
Rather, the undersigned follows the decision of the Board as laid down in The
52N L R B v. Express Publishing Company, 312 U S. 426 May Department Stores
Co v N L. R B, 326 U S 376.
. 53 34 N. L. R. B. 1028.
ASSOCIATION OF MOTION'-PICTURE PRODUCERS, INC. 529
Greer Steel Company case 51 where the Board, in,discussing its conclusions in the
Porto Rico case, said:
We do not regard that case as decisive of the present proceeding, nor did
we there hold that the policies of the Act will be effectuated py withholding
the normally applicable affirmative remedy whenever an employer engages
in unfair labor practices upon the insistence of a labor organization of his
employees or because of the threat of economic pressure or hardship. In
the Porto Rico case, the discharges which we found to be discriminatory
were made only after effective sit-down strikes had occurred and had caused
the employer considerable financial loss. The strikes there were called and
took place immediately prior to the discriminatory discharges and for the
express purpose of compelling them. We found that the employer's only
alternative to discharging the employees in question was to cease operations
entirely, and that the employer had "continuously and consistently exerted
efforts," both directly and through outside persons and agencies, to settle
the dispute between the rival unions and to- protect. the-positions of the
disputed employees No similar showing is made in the present proceeding
of actual exercise by a labor organization of its economic power to the
demonstrated financial detriment of the respondent for the purpose of
compelling the very action of which complaint has been made.55
The undersigned adopts this language from the Board's decision in the Greer
case as applicable to the present proceeding and, in conformity therewith, will
hereafter make appropriate recommendations respecting back pay.
Respondent-Universal
Reginald G. Hill was laid off May 31, 1946, and rehired July 5, 1946. It was
found above that for personal reasons,, Hill was absent from Los Angeles between
June 14 and July 2, 1946, and that July 5 was the first day that he could return
to work. Accordingly, the undersigned recommends that respondent Universal
make him whole for any loss of pay he may have suffered by reason of-respondent
Universal's discrimination against him by payment to him of a sum of money
equal to that which he normally would have earned as wages from May 31, 1946,
to June 14, 1946, less his net earnings 55 during the said period.
John M. Mobley was found to have been laid off on May 31, 19461-and reinstated
to his old position on June 13, 1946. The undersigned therefore recommends
that respondent Universal make him whole for any loss of pay he may have
suffered by reason of the discrimination against him by payment to him of a sum
of money equal to that which he normally would have earned as wages from
May 31, 1946, to June 13, 1946, less his net earnings during the said period.
Respondent Loew
W. E. Zimmerman was found to have been discharged on May 29, 1946. He
was reinstated as an electrician in the electrical department on June 19, 1946.
Zimmerman does not desire reinstatement to his old job as an automotive
mechanic. It is therefore recommended that respondenfLeow make Zimmerman
whole for any loss of pay he may have suffered by reason of the discrimination
&' 38 N L. R B. 65.
5 Id, 72, 73.
56 Matter of Crossett Lumber Co „8 N. L it. B 440, 497-498.
530 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
against him, by, payment,ito him of a sum of money equal to that which he
normally would have earned as wages from May 29. 1946, to June 19, 1946, less his
net earnings during the said period. -
Respondent RKO
William J. Pickering was laid off on June 13, 1946. He was reinstated to his
former position on'June 27, 1946. It is recommended that Pickering be made
whole for any loss of pay he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that which he
normally would have earned from June 13, 1946, to June 27, 1946, less his net
earnings during the said period.
Robert Skager was laid off on June 13; 1946, at the close of the shift. He
returned to work on June 14, 1946, in the electrical department without any loss
of time. This transfer was made at Skager's request. He does not desire rein-
statement to his former position as an automotive mechanic. Skager's transfer
to the electrical department was accomplished with an increase in his hourly rate.
Therefore, no recommendation with respect to back pay is appropriate in his
case and none is made.
Carl H. Homuth was transferred on June 18, 1946, from his place of work and,
because of his membership in the IAM, to another place of work where he did
a different type of machine work. By reason of this transfer and for a period of
1 week, Homuth lost 17 cents an hour in his hourly rate. At the end of 1 week
his rate was increased to that enjoyed previous to the transfer. He was like-
wise put to work on the same tasks that he performed previous to his transfer.
It would appear that no recommendations 'with respect to reinstatement are
necessary. Accordingly; the undex',signed recommends that the respondent RKO
make Homuth whole for any loss of pay he may have suffered by reason of the
discrimination against him by payment to him of a sum of money equal to the
difference between what he would have earned if he had continued on his old
job and that which he did earn for the period from Juhe 18, 1946, to a date
approximately 1 week later when his rate was advanced'to that prevailing
previous to the transfer.
Respondent Warner
Edward J. Lorenz was laid off on May 29, 1946. He was reinstated to his
former position on June 26, 1946. Accordingly, the undersigned recommends
that respondent Warner make Lorenz whole for any loss of pay he may have
suffered by reason of the discrimination against him, by payment to him of a
sum of money equal to that which. he normally would have earned as wages
from May 29, 1946, to June 26,-1946, less his net earnings during the said period.
Glenwood C. Warren was laid off on May 31, 1946. He was reinstated to his
old job on July 5, 1946. Warren, however, was absent from Los Angeles between
June 3 and July 5, 1946, and was actually unavailable for employment from
June 3 until his return to work. Accordingly, the undersigned recommends that
Warren be made whole for any loss of pay he may have suffered by reason of
the discrimination against him by payment to him of a sum of money equal to
that which he normally would have earned from May 31, 1946, to June 3, 1946,
less his net earnings during the said period
Elmer Johnson was laid off on May 29, 1946. He was rehired on June 26, 1946,
in his old position. Accordingly, the undersigned recommends that Johnson
be made whole for any loss of pay he may have suffered by reason of the respon-
dent's discrimination against him by payment to him of a sum of money equal
ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 531
to that which he normally would have earned as wages from May 29, 1946, to
June 26, 1946, less his net.earnings during the said period.
Robert E. Davis was , because of his membership in the IAM, transferred on
June 6, 1946, from the camera machine shop to the general machine shop. He
suffered no loss of pay by reason of the transfer and about 1 week thereafter
'Davis resumed the type of work that he was formerly performing in the camera
machine shop . No recommendation is made for back pay in the case of Davis.
However, it is recommended , consistent with respondent Warner's accustomed
method of operating its camera machine shop , that Davis be returned to his
- place of work in the camera machine shop.
On the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , Cinema Lodge 1185 , is a labor
organization within the meaning of Section 2 (5) of the'Act.'
International Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada , Motion Picture Studio
Cinetechnicians , Federal Labor Union 23968, and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , Studio Trans-
portation Drivers, Local Union 399 , all affiliated with the American Federation
of Labor, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees listed in "Appendix A" of this Report , thereby discouraging mem-
bership in the International Association of Machinists , Cinema Lodge 1185, the
respondents Assdcintion,Univdrsal, Loew , RKO, and Warner have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. All employees of the respondent Producers in the following classifications :
,precision machinists ( camera ) ; machinists ( journeymen ) ; automotive mechan-
ics, automotive gang boss, machinist helpers, apprentice machinist , machinist
gang boss ( journeymen ), machinist sub-forman or keyman ( journeyman), and
machinist foreman , exclusive of all other employees , at all times material herein,
constituted and now constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. International Association of Machinists , Cinema Lodge 1185, was at all
times material herein and now is the exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , respondents Association, Uni-
versal , Loew, RKO, and Warner have engaged in and are engaging in unfair
. labor practices within the meaning of Section 8 ( 1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
7. Respondent Warner has not violated Section 8 ( 3) of the Act by the trans-
fer and demotion of Royal M . Caldwell and Otto Keller.
8. Respondent Paramount has not violated Section 8 (3) of the Act by its
refusal to hire Glenn C. Waters.
9 Respondents Paramount, Columbia , Goldwyn, Republic , Roach, and Twen-
tieth Century have not violated Section 8o(3) of the Act.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. The respondents have not violated Section 8 (1) of the Act by the payment
of bonuses to those employees who passed the picket line or performed the
work of strikers during the strike of March 12 to October 31, 1945.
11. The respondents have not violated Section 8 (1) of the Act by interrogat-
ing employees with respect to their union membership and affiliation.
12. The respondents have not violated Section 8 (5) of the Act by refusing
to bargain collectively with the IAM.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that :
A. Universal Pictures Company, Inc., Universal City, Los Angeles County,
California ; Loew's Incorporated, Culver City, California ; RKO Radio Pictures,
Inc., Los Angeles, California; and Warner Bros. Pictures, Inc., Burbank, Cali-
fornia ; their officers, agents , successors, and assigns , shall :
1. Cease and desist from:
(a) Discouraging membership in the Inter-national Association of Machinists,
Cinema Lodge 1185, or in any other labor organization of their employees, by
discharging, laying off, transferring, or demoting any of its employees, or in
any other manner discriminating in regard to the hire and tenure of employment
and any terms and conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist International Association of Machinists, Cinema Lodge
1185, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Make whole the employees listed in "Appendix A" for any. loss of
pay they may have suffered by reason of the discrimination against them in
regard to their hire and tenure of employment, in the manner set forth in the
section entitled""The remedy," less their net earnings during the said period;
(b) Transfer Robert E. Davis to his former place of work in the camera
machine shop at respondent Warner in the manner set forth in "The remedy,"
if the said transfer can be accomplished with due regard to the physical facilities
and employment practices of the respondent Warner ;
(c) Post in conspicuous places throughout the studios of the respondents
Universal, Loew, RKO, and Warner copies of the notice attached herewith
marked "Appendix B." Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region, after being signed by the respondents'
representatives, shall be posted immediately by the respondents on the receipt
thereof and maintained by them for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the respondents to insure that
said notices are not altered, defaced, or covered by any other material.
B. The Association of Motion Picture Producers, Inc., Los Angeles, California,
its officers, agents, successors, and assigns , shall:
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC . 533
1. Cease and desist from :
(a) Advising, urging, or otherwise influencing its member producers, directly
or indirectly, to discourage membership in the International Association of
Machinists, Cinema Lodge 1185, or in any other labor organization of their
employees, by discharging, laying off, transferring, or demoting any of its
employees, or in any other manner discriminating in regard to their hire and
tenure of employment and any terms and conditions of employment ;
(b) In any other manner advising or influencing the member Producer em-
ployers, directly or indirectly, to deny to their respective employees rights
guaranteed employees under the Act;
(c) In any other manner interfering with, restraining, or coercing the em-
ployees of its member Producers, including the employees of Universal Pictures
Company, Inc. ; RKO Radio Pictures, Inc. ; Loew's Incorporated ; and Warner
Bros. Pictures, Inc., in the exercise of the right to self-organization, to form,
join, and assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities, for the purpose
of collective bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act. -
2. Take the following affirmative action, which the undersigned finds will ef-
fectuate the policies of the Act : i
(a) Immediately send copies of notices attached hereto and marked "Appen-
dix C," after they have been signed by a representative of the Association, to all
of its members, including all respondents herein. Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, after being
signed by the Association's representative, shall be posted also, immediately on
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to members are custom-
arily posted. Reasonable steps, shall be taken by the Association to insure
that said notices are not altered, defaced, or covered by any other material.
It is further recommended that the respondents herein separately notify the
Regional Director for the Twenty-first Region, in writing, within ten (10) days
from the date of the receipt of this Intermediate Report, what steps each of them
has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, respondents notify the Regional
Director in writing that they will comply with the foregoing recommen-
dations, the National Labor Relations Board issue an order requiring the re-
spondents to take the action aforesaid.
It is also recommended that the allegations of the complaint that the respon-
dent Warner discriminated against Royal M. Caldwell and Otto Keller be
dismissed.
It is recommended that the allegation of the complaint that respondent Para-
mount discriminated against Glen C. Waters be dismissed.
It is also recommended that the allegations of the complaint that the respond-
ents engaged in interference, restraint, and coercion by the payment of bonuses
to employees who passed the picket lines or performed the work of strikers during
the strike above described, be dismissed against all respondents.
It is also recommended that the allegation of the complaint that the respond-
ents engaged in interference, restraint, and coercion by interrogating employees
with respect to their union membership and affiliation be dismissed as against all
respondents.
809095-49-vol. 79-35
534 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is finally recommended that the allegations of the complaint that the re-
spondents failed and refused to bargain collectively with the International Asso-
ciation of Machinists , Cinema Lodge 1185, be dismissed as against all respondents.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board , Series 4, effective September 11, 1946 , any party or counsel
for the Board may, within fifteen ( 15) days from the date of service of the
order transferring the case to the Board , pursuant to Section 203:38 of said
Rules and Regulations , file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding ( including rulings upon all motions or objections ) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period , file an original and
four copies of a brief in support of the Intermediate 'Report , Immediately
upon the filing of such statement of exceptions and/or briefs , the party or counsel
for the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director . Proof of service on the
other parties of all papers filed with the Board shall be promptly made as
required by Section 203.65. As further . provided in said Section 203 39, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten ( 10) days from the date of
service of the order transferring the case to the Board.
MORTIMER RIEMER,
Trial Examiner.
Dated April 30, 1947.
APPENDIX A
Robert E. Davis John M . Mobley
Reginald G . Hill William J. Pickering
Carl H . Homuth Robert Skager
Elmer Johnson Glenwood C. Warren
Edward J. Lorenz W. E. Zimmerman
APPENDIX B
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with,, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor
organizations , to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS,
CINEMA LODGE 1185, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or
protection.
WE WILL make the employees named below whole for any loss of pay
suffered as a result of discrimination.
Reginald G. Hill John M. Mobley
Carl H. Homuth William J . Pickering
Elmer Johnson Glenwood C. Warren
Edward J . Lorenz W. E Zimmerman
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 535
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization. I
UNIVHRSAL PICTURES COMPANY, INC.
Employer.
Dated ------------------------- By ---------------------------------------
(Representative) (Title)
LOEW'S INCORPORATED
Employer.
Dated ------------------------- By ---------------------------------------
(Representative ) (Title)
RKO RADIO PICTURES, INC.
Employer.
Dated ------------------------- By ---------------------------------------
(Representative ) (Title)
WARNER BROS. PICTURES, INC.
Employer.
Dated ------------------------- By ---------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
APPENDIX C
NOTICE TO OUR MEML'EIRS AND THEIR EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT advise or influence our members directly or indirectly, to
deny to their respective employees the rights guaranteed in the National
Labor Relations Act;
WE WILL NOT in any other manner interfere with, restrain, or coerce the
employees of any of our members, in the right to self-organization, to form,
join, and assist labor organizations, including INTERNATIONAL ASSOCIATION
OF MACHINISTS, CINEMA LODGE 1185, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities; for
the purpose of collective bargaining or other mutual aid or protection, 'as
guaranteed in Section 7 of the National Labor Relations Act.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC.
Dated ----------------------------- By -----------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date thereof, and must
not be altered, defaced, or covered by any other material.