Columbia Pictures Corp.Download PDFNational Labor Relations Board - Board DecisionsMay 7, 194561 N.L.R.B. 1030 (N.L.R.B. 1945) Copy Citation In the Matter of COLUMBIA PICTURES CORPORATION and SCREEN SET DESIGNERS , ILLUSTRATORS & DECORATORS , LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMERICA, AFL In the Matter of LOEW'S INCORPORATED and SCREEN SET DESIGNERS, ILLUSTRATORS & DECORATORS, LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMER- ICA, AFL In the Matter Of PARAMOUNT PICTURES, INC. and SCREEN SET DESIGN- ERS, ILLUSTRATORS & DECORATORS , LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMER- ICA, AFL In the Matter of RKO RADIO PICTURES , INC. and SCREEN SET DE- SIGNERS, ILLUSTRATORS & DECORATORS, LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AFL In the Matter of REPUBLIC PRODUCTIONS , INC. and SCREEN SET DE- SIGNERS, ILLUSTRATORS & DECORATORS , LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMERICA, AFL In the Matter of TWENTIETH CENTURY-FOX FII. vi CORPORATION and SCREEN SET DESIGNERS , ILLUSTRATORS & DECORATORS , LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMERICA, AFL In the Matter of UNIVERSAL PICTURES COMPANY, INC. and SCREEN SET DESIGNERS , ILLUSTRATORS & DECORATORS, LOCAL 1421, AFFILIATED WITH TIIE BROTIIERIIOOD OF PAINTERS, DECORATORS &' PAPERHANGERS OF AMERICA, AFL In the Matter Of WARNER BROS. PICTURES, INC. and SCREEN SET DE- SIGNERS, ILLUSTRATORS & DECORATORS , LOCAL 1421, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMERICA, AFL In the Matter of COLUMBIA PICTURES CORPORATION, LOEW'S, INCORPO- RATED , PARAMOUNT PICTURES, INC., RKO RADIO PICTURES, INC., REPUBLIC PRODUCTIONS, INC., SAMUEL GOLDWYN, INC., LTD., TWEN- TIETH CENTURY-Fos FILM CORPORATION, UNIVERSAL PICTURES COM- 61 N. L R . B, No. 174. 1030 COLUMBIA PICTURES CORPORATION 1031 PANY, INC., WARNER BROS. PICTURES, INC., and SCREEN SET DE- SIGNERS, ILLUSTRATORS & DECORATORS, LOCAL 1421, AFL and INTER- NATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED S'L'ATES AND CANADA, LOCAL 44, AFL. Cases Nos. 21-R4622, 21-R-2624 through 21-R-2630, and 21-RE-20, respectively .-Decided May 7, 194 Loeb and Loeb , by Mr. Milton H. Schwartz , Messrs. William R. Walsh and Fred E. Pelton, all of Los Angeles, Calif ., and Mr. Burton A. Zorn, of New York City, for the Companies. Mr. Frank S . Pestana, of Los Angeles , Calif., for the Painters. Messrs. Michael G. Luddy and Sidney Sampson , of Los Angeles, Calif., for the I. A. T. S. E. Mr. G. J . Fenaja, of Los Angeles , Calif., for the Guild. Messrs . Emanuel Cowitt and Barton H. Thompson , of Los Angeles, Calif., for the Association. Miss Melvern R. Krelow, of counsel to the Board. DECISION DIRECTION OF ELECTIONS AND ORDER STATEMENT OF THE CASE Upon petitions duly filed by Screen Set Designers, Illustrators & Decorators, Local 1421, affiliated with The Brotherhood of Painters, Decorators *& Paperhangers of America, AFL, herein called The Painters, and by Columbia Pictures Corporation, Hollywood, Cali- fornia, Loew's, Incorporated, Culver City, California, Paramount Pictures, Inc., Hollywood, California, RKO Radio Pictures, Inc., Hollywood, California, Republic Productions, Inc., Hollywood, Cali- fornia, Samuel Goldwyn, Inc., Ltd.' Hoolywood, California, Twen- tieth Century-Fox Film Corporation, Los Angeles, California, Uni- versal Pictures Company, Inc., Universal City, California, and Warner Bros. Pictures, Inc., Burbank, California, herein called the Companies, alleging that questions affecting commerce had arisen concerning the representation of employees of the Companies, the National Labor Relations Board consolidated the cases and provided for an appropriate hearing upon due notice before Maurice J. Nico- 1 The Companies moved to strike from their petition Samuel Goldwyn , Inc., Ltd , on the ground that it had none of the employees referred to in any of the petitions . The motion was granted by the Trial Examiner. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, Trial Examiner. Said hearing was held at Los Angeles, Cali- fornia, from March 7 to 17, 1945, inclusive. The Companies, the Painters, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Can- ada, Local 44, AFL, herein called the I. A. T. S. E., Warner Bros. Studio Office Employees Guild; herein called the Guild, and Para- mount Studio Office Employees Association, Inc., herein called the Association, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Ex- aminer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. On April 26, 1945, oral argument was presented before the Board at Washington, D. C. Upon the entire record in the case, the 'Board makes the following : FINDINGS OF FACT I. THE" BUSINESS OF THE COMPANIES Columbia Pictures Corporation, 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 also distributes motion pictures which it produces, though some of its pictures are distributed by foreign distributing companies and licenses. It holds the stock of various foreign distributing companies and of the following sub- sidiary corporations : Screen Gems, Inc., a California corporation; Columbia Pictures Corp. of Louisiana, Inc., a Louisiana corporation; and Darmour, Inc., a California corporation. During 1943 Columbia purchased approximately 16,000,000 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 Columbia produced 35 feature length motion pictures and made ap- proximately 7,000 prints of these pictures, of which approximately 6,545 were shipped to points outside the State of California. Columbia also produced, for use during the same season, 28 short subjects, and made approximately 2,800 prints of these pictures, of which approximately 2,492 were shipped to points outside the State of California. The prints and pictures hereinabove described were distributed by Columbia through its office in New York City. Loew's Incorporated, a Delaware corporation engaged in the busi- ness of producing and distributing motion pictures, and whose prin- cipal office is located in New York City, operates studios located at Culver City, California. During the course of each calendar year, Loew's produces more than 30 feature length motion pictures, and a COLUMBIA PICTURES CORPORATION . 1033 number of cartoons and short subjects. It causes the prints of these pictures to be distributed throughout the United States and various foreign countries. Loew's employs many thousands of employees, both in the State of California and in the State of New York. Paramount Pictures, Inc., is a California corporation engaged in the production, distribution, and exhibition of motion pictures, hav- ing a principal office and place of business in New York City, and production facilities located in Los Angeles, California. Paramount is also a parent company with which are associated more than 100 subsidiary and affiliated corporations, located both within and with- out the United States, which are primarily engaged in the exhibition of, motion pictures. 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 approximately $16,500,000 in the produc- tion 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 Paramount through a series of exchanges maintained by it in this country and abroad. RKO Radio Pictures, Inc., a Delaware corporation having its principal office in New York City, operates a studio for the production of motion pictures in the city of Los Angeles, California. It man- ufactures currently in excess of 30 feature length motion pictures per year. Republic Productions, Inc., a New York corporation whose prin- cipal office is located in New York City, operates studios for the pro- duction of motion pictures in Hollywood, California. It produces more than 30 feature length motion pictures each year, which it dis- tributes for exhibition throughout the United States and in several foreign countries. Twentieth Century-Fox Film Corporation, is a New York cor- poration engaged in the production and distribution of motion pic- tures, having its principal place of business in New York City but also maintaining a place of business in the city of Los Angeles, Cal- ifornia. Various subsidiary corporations distribute its motion pic- tures in foreign countries and in the greater part of the United States ; no subsidiary, however, is engaged in the production of motion pic- tures. During the fiscal year of 1943, Twentieth Century-Fox pur- chased several million feet of positive and negative film, the greater portion 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,- 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Only a small proportion of these prints, however, was shipped,from its place of business in the State of California to points outside the State of California, inasmuch as most of such prints were made in the State of New York and distributed from that point. It produced no short subjects or news reels during said period. It employs approximately 3,500 production employees in its studios at Los Angeles. Universal Pictures Company, Inc., 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 Universal in the production of motion pictures is shipped from New York to Universal City, where motion picture negatives are made; the majority of such negatives are then shipped to Fort 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. Uni- versal produces more than 30 feature length motion pictures and a number of short subjects during each calendar year. There is a con- stant flow in interstate commerce of the prints made of such pictures. Warner Bros. Pictures, Inc., is a Delaware corporation whose prin- cipal 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 its motion pictures through Vitagraph, Inc., a subsidiary corporation, which maintains exchanges in 31 cities throughout the United States. Warner Bros. usually produces more than 30 feature length pictures each year at its Burbank studio. Dur- ing its 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 printing and distribution. The Companies admit that they are engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Screen Set Designers, Illustrators & Decorators, Local 1421, affili- ated with The Brotherhood of Painters, Decorators & Paperhangers of America, and International Alliance of Theatrical Stage Em- ployees and Motion Picture Machine Operators of the United States COLUMBIA PICTURES CORPORATION 1035 and Canada, Local 44, both affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the Companies. Warner Bros. Studio Office Employees Guild, and Paramount Studio Office Employees Association, Inc., both unaffiliated, are labor organizations admitting to membership employees of Warner Bros. Pictures, Inc., and Paramount Pictures, Inc., respectively. III. THE QUESTIONS CONCERNING REPRESENTATION In June 1937, a group of studio workers then classified as interior decorators, and herein designated as set decorators, formed and ob- tained incorporation of The Society of Motion Picture Interior Deco- rators, herein called the Society. In December 1937, the Society and the Companies executed a collective bargaining contract effective for a 5-year period. On May 3, 1942, the Society and the Companies executed a second collective agreement effective as of April 1, 1942. On October 28, 1943, the members of the Society voted to affiliate with the Painters. Thereafter the Painters and the I. A. T. S. E. made demands upon the Companies for recognition as the collective bargaining representative of the set decorators. The Companies re- fused to recognize either the Painters or the I. A. T. S. E. unless and until certified by the Board. Statements of an agent of the Board, introduced in evidence at the hearing, indicate that the Painters represents a substantial number of employees in the units hereinafter found to be appropriate.2 In view of the fact that we hereinafter find that the set estimators and set controllers do not constitute appropriate units for the pur- poses of collective bargaining, we find that no question has arisen concerning the representation of those employees of the Companies. We find that questions affecting commerce have arisen concerning the representation of employees of the Companies within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS The Painters contends that set decorators should be included in the units it currently represents 3 and, in the alternative, that they constitute separate appropriate units. The I. A. T. S. E. claims that set decorators should comprise a part of the units it currently repre- 2 The Field Examiner reported that the Painters presented 55 current membership records , all of which bear the names of employees appearing on the Companies ' pay rolls of December 16, 1944. There are 55 employees in the appropriate units. The I. A. T. S E submitted 15 current membership records , all of which bear the names of employees on the Companies' pay rolls of December 16, 1944 'Which include set designers , sketch artists, illustrators , assistant costume designers, costume illustrators, and model builders. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sents.4 The Companies, at the hearing, took no position with respect to the appropriateness of the units; however, at the oral argument the Companies agreed with the position of the I. A. T. S. E. Set decorators have evolved from what was known in the theatrical profession as set dressers. Sets in the early days were crudely con- structed, consisting, in the main, of a series of sections of canvas on wood frames on which had been painted the decorations that the set was to portray. The sets of the motion pictures, in the early stages of the industry, were similar to those on the stage. As the motion picture industry progressed, the screen sets and decorations became elaborate. The set is first designed by the screen set designer and is generally encompassed in a blueprint of the dimensional appearances of the set. It then becomes the duty of the set decorator, working in conjunction with the art director or the screen designer, to originate the appropriate decorations depicting the scene as the author had con- ceived it, or as the director of the picture desires. In some instances, where it might be necessary to create and design furniture of a certain period, the set decorator conveys his conception of the finished set to the illustrator who, in turn, will make the detailed drawings and submit them to the set decorator for his • approval. The set decorator will either accept the drawing or make changes, and then will see that the necessary furniture is manufactured in the property department. After the various component parts have been determined, conceived, and obtained, they are moved on the set by the property men and are placed in correct position under the direction of the set decorator. In the actual placing of the furniture and fittings of the set, the set deco- rator takes no manual part. As heretofore stated, the set decorators have for many years constituted a separate bargaining unit recognized and independently represented as such. It is apparent that the set decorators form a homogeneous and well-defined group, and in view of their long collective bargaining history as a separate group, we are of the opinion that the set decorators employed by the respective Com- panies constitute separate appropriate bargaining units. We find that all set decorators of each of the Companies, excluding all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute separate units appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4 Which include the following classifications : property and miniature foreman, gang boss and journeyman , ship rigger , special effects foreman , gang boss and journeyman, powderman gang boss , licensed powderman , upholsterer and/or draper foreman and gang boss , upholsterer and/or draper , seamstress floorlady , seamstress , propman foreman, prop- erty master , assistant property master, property man gang boss , property man (including checkers , hand propmen , electrical propmen, furniture handlers and flower men), greens- man gang boss and greensman , renters and buyers. COLUMBIA PICTURES CORPORATION 1037 The Painters contends that set estimators and set controllers should be included in the units it currently represents.-9 The Guild and the Association contend that the set estimators and set controllers in Warner Bros. Pictures, Inc., and Paramount Pictures, Inc., should remain in the broad clerical units currently represented by the Guild and the Association, respectively. The Companies similarly maintain that set controllers and set estimators are clerical employees and should continue to be part of the established clerical units .6 Set estimators and set controllers of all the Companies with the ex- ception of Warner Bros. and Paramount have been represented in broad units of clerical employees since 1939 by Screen Office Employees Guild, Local 1391, affiliated with the Painters, herein called Local 1391. On July 15,1941, following certification by the Board,' Local 1391 executed collective bargaining contracts with the Companies with the exception of Warner Bros. and Paramount, effective for a period of 5 years. In September 1944, Local 1391 ceded jurisdiction over the set estimators and set controllers to the Painters. With respect to the set estimators and set controllers at Warner Bros. and Paramount, the Guild and the Association, respectively, have been representing these employees under contract since 1937 in broad clerical units. Set estimators make preliminary estimations of the material and la- bor costs involved in the construction of sets. When the screen set designer draws the plans for the construction of a set, the estimator makes an itemization of its various component parts. The estimates made are totaled so that the art director may determine whether or not the particular set is within his budget. The set estimator is occa- sionally called upon to make budget changes in set designs and to sug- gest changes that will cut down the cost of a particular set or series of sets. The set controller keeps an inventory of various stocks which are usable in the construction of the set; the information is usually kept on cards. He determines which units in the set are to be salvaged and marks such units with a number for future reference. The set con- troller also makes freehand rough drawings and drawings to scale on the cards of units which are stored for future use. When the set de- signer calls for a unit, he will inform the set controller what type of set will be used and the set controller will then consult his records and draw all the appropriate cards for submission to the set designer. Approximately two or three times a week, the set controller goes to the scene dock where units are stored and checks the units in order to have a current inventory. 6 See footnote 3, supra. ° The I . A. T. S E. is not seeking to represent the set estimators and set controllers. 7 Matter of Columbia Pietui es Corporation , et al., 28 N. L . R. B. 57 639678-45-vol. 61-67 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although it does not appear from the foregoing that the set con- trollers and the set estimators would improperly be included in the group of employees which the Painters currently represents, as the Painters requests, since their duties, in part, are of a clerical nature and in view of the long collective bargaining history during which time these employees were included in broad established clerical units, we are of the opinion that with respect to these employees the units peti- tioned for by the Painters are not appropriate. We shall, therefore, dismiss the petitions insofar as they relate to the set controllers and set estimators. V. TILE DETERMINATION OF REPRESENTATIVES We are of the opinion that the questions of representation which have arisen can be most expeditiously resolved by directing immediate elec- tions. However, a serious issue regarding eligibility has been raised. On March 12, 1945, during the hearing, a strike of set decorators was called by the Painters, which was still current at the close of the hear- ing. At the oral argument, contentions were made that since the hearing some, if not all, of the strikers either have been properly dis- charged s or validly replaced by other workers, and the suggestion was made that in consequence the strikers had ceased to be employees within the meaning of Section 2 (3) of the Act and hence should not be eligible to participate in an election. Whatever the facts are upon which these contentions rest, they have not been litigated and are not now before us. The question arises, therefore, whether we can now definitively rule upon the eligibility of the persons who went on strike or of their replacements. Our rule, in situations where persons are absent from work be- cause of a current strike not caused by unfair labor practices, is that both the strikers and the replacement employees are eligible to vote," except that such of the latter as were employed after the refusal of an unconditional application by the strikers to return, are not eligible 11o It is also our general practice to establish the eligibility date as of the pay-roll period immediately preceding our Direction of Election, and to hold ineligible those persons who since that date and prior to the election have been discharged for cause and have not been rehired or reinstated. Applying these principles to the facts before us and the contentions raised at the oral argument, we cannot now determine (a) whether the strike is still current, (b) whether the strikers have been validly 0 8 Apparently the alleged discharges are asserted to be proper under the principles of N L R. B v. Sands Mfq Co .306 U. S 332. 9 Matter of The Rudolph Wurlitzer Company, 32 N. L. R B. 163. 10 Matter of Kellburn Manufacturing Company. 45 N L R. B 322 COLUMBIA PICTURES CORPORATION 1039 discharged, or (c) whether the strikers have been validly replaced. In this situation, two courses seem open to us: we could now reopen the record to take evidence as to the employment status of the strikers and any replacement workers; or we could direct immediate elections permitting both groups to participate. The first alternative has the serious defect that any determinations we might make would still be subject to revision in the light of employment changes occurring there- after and prior to an election; the latter appears to us to be the more likely to resolve the issue of representation sooner, since once a poll is taken we can finally determine any questions which may be raised regarding eligibility by reference to facts reflecting employee status as of a fixed time, i. e., the date of the elections. We shall, accordingly, direct immediate elections in which both the set decorators who struck on March 12 and any replacement workers will be presumptively eligible to vote, subject to the right of challenge. DIRECTION OF ELECTIONS Y By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Columbia Pictures Corporation, Hollywood, California, Loew's, Incorporated, Culver City, California, Paramount Pictures, Inc., Hollywood, California, RKO Radio Pictures, Inc., Hollywood, California, Republic Produc- tions, Inc., Hollywood, California, Twentieth Century-Fox Film Cor- poration, Los Angeles, California, Universal Pictures Company, Inc., Universal City, California, and Warner Bros. Pictures, Inc., Burbank, California, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction under the direction and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the units found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Di- rection, including employees who did not work during the said pay- roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who "Nothing in this Decision should be construed as indicating that the Board has pre- judged in any respect, any of the questions which may be drawn into the issue by a chal- lenge to the eligibility of certain voters including such questions as to whether or not (1) a new employee is a permanent replacement or (2) a striking employee has been validly discharged or replaced. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present themselves in person at the polls , and employees who were on strike at that time, but excluding those who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections , to determine whether they desire to be represented by Screen Set Designers, Illustrators & Decorators, Local 1421, affiliated with The Brotherhood of Painters , Decorators & Paper- hangers of America, AFL, or by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada , Local 44, AFL , or by neither. ORDER Upon the basis of the foregoing findings of fact, the National Labor Relations Board hereby orders that the petitions for investigation and certification of representatives of employees of Columbia Pictures Corporation , Hollywood , California , Loew's, Incorporated , Culver City, California , Paramount Pictures , Inc., Hollywood , California, RKO Radio Pictures , Inc., Hollywood , California , Republic Produc- tions, Inc., Hollywood , California , Twentieth Century-Fox Film Cor- poration, Los Angeles, California, Universal Pictures Company, Inc., Universal City, California , and Warner Bros. Pictures , Inc., Burbank, California , filed by Screen Set Designers , Illustrators & Decorators, Local 1421 , affiliated with The Brotherhood of Painters , Decorators & Paperhangers of America , AFL, insofar as they relate to set estimators and set controllers , be, and they hereby are, dismissed. Copy with citationCopy as parenthetical citation