Association of Motion Picture Producers, Inc., et al.

National Labor Relations Board - Board Decisions

Aug 26, 1949

85 N.L.R.B. 902 (N.L.R.B. 1949)

III the Matter of ASSOCIATION OF MOTION PICTURE PRODUCERS, INC., ET
AL.,1 EMPLOYERS and INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE
UNITED STATES AND CANADA, A. F. L., PETITIONER
In the Matter Of INDEPENDENT MOTION PICTURE PRODUCERS ASSOCIA-
TION,2 EMPLOYER and MOVING PICTURE PAINTERS LOCAL 644, BROTH-
ERI-OOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA,
A. F. L., PETITIONER
Cases Nos. 21-R-4187 and 21-RC-611, respectively.Decided
August 26, 1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidated hearing was held
before Eugene M. Purver, a hearing officer of the National Labor
1 The following groups of employers are named in the fourth amended petition in Case
No. 21-It-4087, as further amended at the hearing :
(1) Association of Motion Picture Producers, Inc., hereinafter called the Association,"
and the following members thereof, hereinafter called "the Majors" :
Columbia Pictures Corp., Samuel Goldwyn Studios, Loew's, Inc., Paramount Pictures,
Inc., Republic Productions, Inc., RKO Radio Pictures, Inc., Hal Roach Studios, Inc.,
Twentieth Century Fox Film Corp., Warner Brothers Pictures, Inc., and Universal Pictures
Co., Inc.
(2) Society of Motion Picture Producers , hereinafter called "the Society ," and the fol-
lowing member thereof : Walt Disney Productions.
(3) The Independent Motion Picture Producers Association and the following members
thereof : Cathedral Films, ' Inc., Monogram Productions, Inc., Nassour Productions, and
John J . Sutherland Productions . The remaining members of this Association , although not
named in this petition , were represented at the hearing . See fn . 2, below. However, as the
petition in this case named only the four foregoing member-Employers , we construe that
petition as not including the other members of this Association.
(4) The following Employers not affiliated with any association , hereinafter called "the
unaffiliated Employers" :
Alson Productions, Inc., Argosy Pictures Corp ., Wilshire Pictures Corp ., California
Studios , Ressan, Inc ., Motion Picture Center Studios , and Pine Thomas Productions.
2 The petition in Case No . 21-RC-611 named Independent Motion Picture Producers
Association alone as the Employer . However, at the hearing counsel for this Association
stated that he was appearing for the entire membership of this Association , consisting of
49 companies . In view thereof , and in the absence of any limiting language in the petition
in Case No. 21-RC-611, we will construe that petition to include as Employers all the
members of the Independent Motion Picture Producers Association, who will be referred
to hereinafter as "the Independents."
85 N. L. R. B., No. 156.
902
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC., ET AL. 903
Relations Board. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.' The hearing
officer referred to the Board the motion of counsel for Association
of Motion Pictures Producers, Inc., to, strike its name from the record
on the ground that it is not an employer within the meaning of the
Act. Section 2 (2) of the amended Act defines "employer" as includ-
ing "any person acting as an agent of an employer." Section 2 (1)
defines "person" as including "associations." It is clear from the
record in this case that the Association has acted as agent of its mem-
bers in negotiating labor contracts, and we find, therefore, that it is
an employer.4 The motion to strike is accordingly overruled.
The hearing officer also reserved for ruling by the Board Painters'
motion to dismiss Case No. 21-8-4087 on the ground that unfair
labor practice charges had been filed against certain of the Employers
involved in that case. However, as it is clear that those charges have
been dismissed, they cannot constitute ground for dismissing Case No.
21-R-4087 5
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in this case, the Board makes the following
findings :
1. The Employers are engaged in commerce within the meaning of
the National Labor Relations Act.
'The Petitioner in Case No. 21-RC-611, hereinafter called Painters, objected to the
qualifications of the hearing officer , charging him with bias and prejudice on the basis of
(1) his alleged conduct in Matter of Columbia Pictures Corporation , Case No. 21-RC-617,
and Matter of Paramount Pictures , Inc., Case No . 21-RC-618 (84 N. L. R . B. 647), in,
refusing to grant a continuance to Local 1421 of Painters , which had intervened in those
cases, and (2 ) the alleged interest of two members of the Board adverse to Painters. We
do not believe that either of these allegations warrants disqualification of the hearing offi-
cer. Moreover, we find no merit in the allegation of bias with respect to the two Board
members.
The hearing officer properly denied Painters ' motion to stay the proceedings in Case No.
21-R-4087 pending action by the Board on a motion filed by Painters in other cases involv-
ing certain of the Employers herein , and pending a hearing on certain unfair labor practice
charges heretofore dismissed by the Board . The hearing officer 's rejection of Painters'
motion to include in the record by reference certain testimony before a legislative com-
mittee and certain court records is hereby affirmed , in the absence of any showing as to the.
relevancy of this evidence to the issues in this proceeding.
4 See Matter of Association of Motion Picture Producers , Inc., et at ., 79 N. L . R. B. 466,
where the Board found that the Association was an "employer " within the meaning of
Section 2 ( 2) of the original Act, which defines an "employer " as including "any person
acting in the interest of an employer , directly or indirectly ." See, to the same effect, Mat-
ter of Columbia Pictures Corporation , S2 N. L . It. B. 568 . See also footnote 9, below.
6 For the same reason we overrule Painters ' objection to the consolidation of Case No.
21-R-4087 with Case No . 21-RC-611, which objection was based on the fact that charges,
subsequently dismissed , had been filed against certain of the Employers in the former case.
Painters' request for oral argument before the Board is denied , inasmuch as the record
and briefs adequately present Painters ' position.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Moving Picture Painters Local 644, Brotherhood of Painters,
Decorators and Paperhangers of America, A. F. L., hereinafter called,
Painters, and International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United States and
Canada, A. F. L., hereinafter called I. A. T. S. E., are labor organi-
zations claiming to represent employees of the Employers.
3. Questions affecting commerce exist concerning the representa-
tion of employees of the Employers, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act'.
4. The appropriate unit :
Composition of unit. The parties agree that the appropriate unit
should include scenic artists, painters, paperhangers, decorators, sign
writers, matte-shot artists, and their apprentices and assistants, ex-
cluding set decorators, guards, and supervisors. Painters and the
Independents would include, also, advertising artists and title artists.
Their inclusion is, however, opposed by I. A. T. S. E. and the Society.
The Majors (identified in footnote 1, paragraph (1), above) are
neutral on this point.
While the advertising artists and title artists are not employed in
the same department as the rest of the categories in the proposed unit,
their work, like that of most of the other categories, involves drawing
and painting, and it appears from the record that,they have hereto-
fore been represented by Painters in the same contractual unit with
the other afore-mentioned categories.° We will accordingly include
them in the unit hereinafter found appropriate.
As to the supervisory status of the employees involved, it appears
that the foreman scenic artist hires and discharges all scenic artists,
the head paint foreman hires and discharges his subordinates, the
foremen painters effectively recommend the hiring and discharge of
their subordinates, the foreman advertising artist 7 has the power to
hire and discharge advertising artists. We accordingly find that all
of the foregoing classifications are supervisors.and we will exclude
them from the unit hereinafter found appropriate.
Scope of Unit. In its fourth amended (and final) petition, I. A. T.
S. E. seeks a unit consisting of the Majors, the four Independents
named in its petition (see footnote 1, paragraph (3) above), Walt
Disney Productions (the only member of the Society named in I. A.
T. S. E.'s petition), and the unaffiliated Employers named in its peti-
tion.• Painters seeks a unit limited to the Independents. None of
8 Advertising artists and title artists were covered by the contract between Painters and
the Majors which expired January 1 , 1944, and also by the interim contract of June 29,
1946, between Painters and the Independents.
I At the time of the hearing in this case there was no employee in this classification.
8 See footnote 1, par . ( 4), above.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC., ET AL. 905
the Employers has taken any position on the question of the scope of
the unit.
The first written collective agreement between Painters and the
Majors covering the employees in the proposed unit was executed
.in 1937. Successive agreements were executed thereafter for such em-
ployees until July 2, 1946, when the Majors signed an "interim agree-
.rnent" with Painters for a period of 2 years "pending the completion
of contracts" then being negotiated. These negotiations, eventually
proved fruitless, and no contracts have since been entered into between
Painters and the Majors. All the foregoing contracts were negotiated
by Painters with a "Producers' Labor Cor_lmittee" composed of rep-
resentatives of the Majors.9 The contract terms thus negotiated were
.adopted by each of the Majors in individual agreements with Painters.
The contracts between Painters and the Majors were also auto-
matically adopted without change by the Independents for some
.years prior to 1941. From 1941 to 1946, however, the Independents
negotiated contracts with Painters, which, while adopting basically
the wage patterns set by the Majors' contracts, contained some devia-
tions. On June 29, 1946, the Independents and Painters executed an
"interim agreement" granting a 25-percent wage increase, which was
.to continue in effect until agreement was reached with the Majors.'°
The 25-percent increase granted by the Independents was adopted
by the Majors in their interim agreement of July 2, 1946. However,
except for this instance, the Majors' contracts were negotiated in ad-
vance of the Independents' and, to the extent already indicated, were
adopted by the Independents. Throughout this period, negotiations
with Painters were conducted for the Independents on a multi-
^employer basis by the Independent Motion Picture Producers
Association.
Contracts between Painters and the Society likewise followed the
same general pattern as those between the Majors and Painters.
There was no evidence in the record concerning the bargaining history
of the unaffiliated Employers in this case.
As to categories of employees other than those involved in this case,
it appears that in 1947 the Majors, the Independents, and the Society,
acting together, participated in joint bargaining, through a commit-
9In Matter of Columbia Pictures Corporation, 82 N. L . R. B. 568, and Matter of Asso-.
ciation of Motion Picture Producers, Inc., 79 N. L. R. B. 466, the Board affirmed the findings
of the Trial Examiner that the Producers' Labor Committee was, in effect, an alter ego
of the Association . The evidence in the present cases is to the same effect , and we accord-
ingly find that in the negotiations with Painters the Producers' Labor Committee acted for
the Association, which, in turn, acted for the Majors.
10 The Independents ' "interim agreement" was not urged as a bar to this proceeding.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tee of their representatives, with the Screen Actors' Guild, and later
with the Screen Directors' Guild. However, there is no evidence of
such joint, multi-association bargaining as to any other categories of
employees ; on the contrary, the record indicates that the various unions
which, like Painters, are affiliated with Conference of Studio Unions
have, like Painters, bargained separately (1) with the Majors through
their association, and (2) with the Independents through their
association.
So far as the record shows, there has been no effective bargaining
by I. A. T. S. E. for the employees involved in this proceeding.
From the foregoing bargaining history there emerges a pattern
of multi-employer bargaining by Painters with three separate groups
of Employers: namely with the Majors, acting through their associa-
tion, with the Independents, acting through their association, and
with the Society acting for its members, the two latter organizations
generally, but not always, adopting the terms of the Major's contracts.
Under such circumstances, a multi-employer unit broader than any
one of the foregoing groups would, in our opinion, not be appropriate.
As the Board said in Matter of Associated Shoe Industries of South,
eastern Massachusetts, Inc"
. .. the essential element, in our opinion, for establishing a
multiple-employer unit is participation by a group of employers,
whether members or non-members of an association, either per-
sonally or through an authorized representative, in joint bar-
gaining negotiations.
In the Associated Shoe case, while finding that the contracts nego-
tiated by the -employer association were customarily adopted by non-
members of the association who did not participate in its negotiations,
the Board held that this fact did not warrant inclusion of the non-
members' employees in the same unit with the employees of the
members of the association. Similarly, we do not believe that in this
case the customary adoption by the Independents and the Society of
substantially the same terms as those negotiated by the Majors renders
appropriate the inclusion of the employees of the Independents and of
the Society in the same unit with the employees of the Majors.
In Matter of Columbia Pictures Corporation,12 the Board held that
the pattern of organization for a special classification of employees-
in that case, set designers-should follow the pattern of multi-
employer bargaining established for other employees of the employer..
" 81 -N. L . R. B. 224.
22 84 N . L. R. B. 647.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC., ET AL. 907
So far as the record in this case discloses, the pattern of bargaining
for other trades and crafts employed by the Employers in this case,
with the few exceptions noted above, has conformed, as already stated,
to the pattern of bargaining by Painters; that is, joint bargaining has
been on an association-wide basis only, and there has been no multi-
association bargaining.
The following additional considerations militate against a finding
that the unit sought by I. A. T. S. E. is appropriate :
1. Of 17 or 18 members of the Society, I. A. T. S. E.'s fourth
amended petition seeks inclusion in the proposed unit of only 1, Walt
Disney Productions.13 No reason appears for excluding the other
members of the Society.
2. In the absence of any evidence in the record concerning the
bargaining history of the unaffiliated Employers named in
I. A. T. S. E.'s fourth amended petition, there is no basis for a finding
that it would be appropriate to include them in the unit sought.
In view of the foregoing, we find that the unit sought by
I. A. T. S. E. is inappropriate. 14 However, as I. A. T. S. E. has made
a sufficient showing of interest among the employees of the Majors
and as the Majors have bargained jointly through their Association,
as set forth above, we find that a separate unit consisting of all the
Majors is appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act. In the absence of
any history of joint bargaining by the unaffiliated Employers, we
find that each such unaffiliated Employer constitutes a separate appro-
priate unit. Although I. A. T. S. E. has made a sufficient showing of
interest as to the employees of these unaffiliated Employers, considered
12 Vanguard Films , Inc., the only other member of the Society named in I . A. T. S. E.'s
petition , is no longer in existence and was stricken from the petition by the hearing officer
on motion.
14 In its brief, I. A. T. S . E. requests an "industry -wide" unit , which would be even
broader than that sought in its fourth amended petition . Our reasons for finding the
latter unit inappropriate would apply a fortiori to an industry -wide unit.
The contention in I. A . T. S. E.'s brief that in numerous cases union -shop referenda
among employees in the motion picture industry have been held on an industry -wide basis
is not supported by the Board's records. Those records show that only in one case, 21-UA-
1321, involving teamsters and related employees , was the referendum on what appears to
be an industry -wide basis. Other referenda 'have been held on a single -employer basis,
or on the basis of a multi-employer unit comprising only a small fraction of all employers
in the industry; e. g., 21-UA-2000 (script clerks), 21-UA-5 (actors), 21-UA-1324
(janitors ). In the three cases last cited the unit included some, but not all, of the Em-
ployers named in I. A. T. S. E.'s fourth amended petition. In all four cases cited above
the unit was agreed to by the parties , and there is no evidence in the record in the instant
proceeding that any of the foregoing referenda has resulted in bargaining on an industry-
wide basis or on the basis of the unit sought in I. A. T. S. E.'s fourth amended petition.
Under all the circumstances , we find that the union -shop referenda conducted in the
motion picture industry afford no support for I. A. T. S . K's position as to the scope of the
unit.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a whole, no information is available as to I. A. T. S. E.'s interest
with respect to the employees of each of these Employers, considered
individually. The election directed below with respect to each of
these unaffiliated Employers is accordingly conditioned on the ascer-
tainment by the Regional Director, before such election is held, that
I. A. T. S. E. has a sufficient interest among the employees of such
Employer.
In view of the history of joint bargaining by all the Independents
through their Association, we find that the unit sought by I. A. T. S. E.
limited to the four Independents named in I. A. T. S. E.'s fourth
amended petition is inappropriate, and that the unit sought by Paint-
ers, consisting of all the Independents, is alone appropriate. We shall
accordingly direct an election in the' latter unit.
The history of joint bargaining through the Society by all the
members thereof similarly renders inappropriate a unit consisting
only of Walt Disney Productions, the only member of the Society
named in I. A. T. S. E.'s final petition. As I. A. T. S. E. does not seek
to represent the employees of the entire membership of the Society,
we will not direct an election among such employees.
We will accordingly direct separate elections among the following
employees of (1) the members of the Independent Motion Picture
Producers Association; (2) the members of the Association of Motion
Picture Producers, Inc.; and (3) each of the unaffiliated Employers
enumerated in paragraph 4 of footnote 1, above 15
All scenic artists, painters, paperhangers, decorators, sign writers,
Iuatte-shot artists, advertising artists, title artists, and their appren-
tices and assistants, excluding set decorators, guards, foreman scenic
artist, head paint foreman, foreman painters, foreman advertising
artist, and all other supervisors.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain'representatives for the pur-
poses of collective bargaining with the Employers herein, separate
elections by secret ballot shall be .conducted as early as possible, but
not later than 60 days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Region in which
this case was heard, and subject to Sections 203.61 and 203.62 of the
National Lal3or Relations Board Rules and Regulations, among the
employees in the units found appropriate in paragraph numbered 4,
above, who were employed during the pay-roll period immediately
1' A separate election will be held for each of the first two groups enumerated above. In
the third group , a separate election will be held for the employees of each Employer in
that group.
ASSOCIATION OF MOTION PICTURE PRODUCERS, INC., ET AL. 909
preceding the date of this Direction of Elections, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, but excluding those employees who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the elections, and also excluding em-
ployees on strike who are not entitled to reinstatement, (1) to deter-
mine whether the employees of the members of the Independent Motion
Picture Producers Association desire to be represented, for purposes of
collective bargaining, by Moving Picture Painters Local 644, Brother-
hood of Painters, Decorators, and Paperhangers of America, A. F. L.,
or by International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada,
A. F. L., or by neither; and (2) to determine whether the employees
of the members of the Association of Motion Picture Producers, Inc.,
and of the unaffiliated Employers listed in paragraph 4 of footnote 1,
above, desire to be represented, for purposes of collective bargaining,
by International Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada
A. F. L., or by Moving Picture Painters Local 644, Brotherhood of
Painters, Decorators, and Paperhangers of America, A. F. L., or by
neither "
16 Any participant in these elections may, upon its prompt request to, and approval
thereof by , the Regional Director , have its name removed from the ballot.