Columbia Pictures Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1945

64 N.L.R.B. 490 (N.L.R.B. 1945)

In the Matter Of COLUMBIA PICTURES CORPORATION, LoEw's INCORPO-
RATED, PARAMOUNT PICTURES, INC., RKO RADIO PICTURES, INC.,
REPUBLIC PRODUCTIONS, INC., TWENTIETH CENTURY-Fox FILM CORPO-
RATION, UNIVERSAL PICTURES COMPANY, INC., WARNER BROS. PIC-
TURES, INC., and SCREEN SET DESIGNERS, ILLUSTRATORS & DECORATORS,
LOCAL 1421, AFFILIATED WITH THE BROrlIERHOOD OF PAINTERS, DECO-
RATORS & 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., TWENTIETH CENTURY-FOX FILM CORPO-
RATION, UNIVERSAL PICTURES COMPANY, INC., WARNER BROS. PIC-
TURES, INC., and SCREEN SET DESIGNERS, ILLUSTRATORS & DECORATORS,
LOCAL 1421, AFL, and INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE
UNITED STATES AND CANADA, LOCAL 44, AFL
Vases Nos. 0,1-R-2622, 21-R-1624 through 21-R-2630, and 91-RE-20,
respectvvely
OPINION 1
October 26, 1945
On May 7, 1945, the National Labor Relations Board, herein called
the Board, issued its Decision, Direction of Elections, and Order in
the above-entitled proceeding and, on May 19, 1945,, an Amendment to
Decision and Direction of Elections. In its decision, as amended, the
Board found that all set decorators 2 employed by the Producers,3
excluding supervisory employees, constitute an appropriate bargain-
ing unit. With respect to the determination of representatives, the
Board stated :
... 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
1 For convenience, we have incorporated herein findings made in our Supplemental Deci-
sion and Direction issued on October 8, 1945.
2 These employees are also referred to as set dressers and interior decorators. They will
be referred to herein as decorators.
8 The eight companies involved in this proceeding are referred to collectively as the
Producers.
64 N. L. R. B., No. 90.
490
COLUMBIA PICTURES CORPORATION 491
hearing. At the oral argument, contentions were made that since
the hearing some, if not all, of the strikers either have been prop-
erly discharged 8 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 replace-
ments.
Our rule, in situations where persons are absent from work
because of a current strike not caused by unfair labor practices,
is that both the strikers and the replacement employees are eligible
to vote '9 except that such of the latter as were employed after
the refusal of an unconditional application by the strikers to
return, are not eligible.10 Itis also our general practice to estab-
lish the eligibility date as of the pay-roll period immediately pre-
ceding 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 con-
tentions raised at the oral argument, we cannot now determine
(a) whether the strike is still current, (b) whether the strikers
have been validly 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 sera -,is 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 reflect-
ing employee status as of a fixed time, i. e., the date of the elec-
tion. We shall, accordingly, direct [an] immediate election in
which both the set decorators who struck on March 12 and any
8 Apparently the alleged discharges are asserted to be proper under the principles of
N. L. R. B. v. Sands Mfg. Co., 306 II S. 332.
8 Matter of the Rudolph Wurlitzer Company, 32 N L R. B. ] 63
10 Matter of Kellburn Manufacturing Company, 45 N L R B. 322.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replacement workers will be presumptively 11 eligible to vote,
subject to the right of challenge.
li 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
challenge 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.
On May 24, 1945, pursuant to the Decision, Direction of Election,
and Order, as amended, an election by secret ballot was conducted
under the direction and supervision of the Regional Director for the
Twenty-first Region (Los Angeles, California). Upon the conclusion
of the election, a Tally of Ballots was furnished the parties in accord-
ance with the Rules and Regulations of the Board.
The Tally shows that of the approximately 118 eligible voters, 112
-cast ballots,4 all of which were challenged. Thereafter, the Regional
Director conducted an investigation of the issues raised by the
challenges and incorporated his findings and recommendations with
respect to the challenged ballots in' his Report on Challenges. The
Regional Director's report reveals that 62 ballots were challenged by
the I. A. T. S. E. and the Producers,' and 52 by the Painters. The
Regional Director recommended that 8 of the challenges by the Pro-
ducers and the I. A. T. S. E. be sustained, that the remaining 54
challenges be overruled, and that said 54 ballots be opened and counted.
He made no recommendations concerning the validity of the Painters'
52 challenges, and recommended that if a count of the 54 valid ballots
did not establish a decisive result, a hearing be conducted for the pur-
pose of adducing evidence concerning the issues raised by the Painters'
52 challenges.
Exceptions were duly filed to the Regional Director's report by the•
Producers and the I. A. T. S. E. On June 27, 1945, it appearing that
the Exceptions raised substantial and material issues with respect to
the conduct of the ballot, the Board ordered that a hearing be held
to adduce evidence as to the eligibility of the challenged voters, and
that evidence be directed particularly to the following issues :
(1) Whether the employment status of the set decorators who
Went on strike March 12,1945, and were challenged at the election,
had been lawfully terminated by (a) a valid discharge or (b) a
replacement of a permanent nature prior to the date of the
election ;
(2) Whether any or all of the employees hired between the date
of the strike and the date of the election to take the places of the
4 Although the Tally and the Regional Director 's Report on Challenges state that 112
ballots were cast , the Regional Director ' s report accounts for 114 challenged ballots
3 We have adopted the Regional Director's recommendation , to which no exception was
taken , that the ballot of Walter E Tilford , originally challenged by an agent of the
Board , be considered as challenged by the Producers and the I. A. T. S E.
COLUMBIA PI6TURES CORPORATION 493
striking set decorators acquired the status of bona fide permanent
replacements ;
(3) Eligibility of any other challenged voters, as to whom
the Regional Director made findings and recommendations and
to which rulings exception has been taken; . . .
Pursuant to the foregoing order, a hearing was held upon due notice
sit Los Angeles, California, on various dates between July 9 and August
2, 1945, inclusive, before R. N. Denham, Trial Examiner. The Board,
the Producers, the Painters, and the I. A. T. S. E. were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. The rulings of the
Trial Examiner made at the bearing are free from prejudicial error
and are hereby affirmed. The Painters' allegations charging the Trial
`Examiner with bias against that union are without merit.°
Subsequent to the hearing, the Producers, the Painters, and the
I. A. T. S. E. filed briefs with the Board. Pursuant to leave granted
by the Board, the National Lawyers Guild submitted a brief amicus
curiae. On September 28, 1945, the Producers, the Painters, and the
I. A. T. S. E. argued orally before the Board at Washington, D. C.
On October 8, 1945, the Board, one member dissenting, issued its
Supplemental Decision and Direction in the proceeding. Therein
the Board sustained the challenges by the Producers and the
I. A. T. S. E. to the ballots of 8 persons and the challenge by the
Painters to one ballot. The Board overruled the challenges by the
Producers and the I. A. T. S. E. to the ballots of 54 persons and the
challenges by the Painters to the ballots of 51 persons, and directed
that these ballots be opened and counted. The Board stated that its
full opinion, setting forth the reasoning, determinations and finding
upon which its conclusions were based, would subsequently be filed
and served upon the parties. In accordance therewith, and upon the
entire record in the case, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
I. TILE CHALLENGED BALLOTS
The 52 ballots challenged by the Painters were those of replacement
workers. These ballots were challenged upon the ground, among
others , that the votes were not bona fide permanent replacements,?
° On August 6, 1945, the Painters lodged with the Board a statement in which it
alleged that the Trial Examiner had been biased and prejudiced against it, and on August
20. a memorandum and affidavits in support of its allegations.
' The Painters also grounded its challenges upon the allegations that the voters were
"employed in excess of the employer's manpower requirements" and that the voters were
"illegally hired and contravention of federal regulations governing manpower stabilization
and control for the Southern California area." At the hearing, the Painters offered to
prove certain facts in support of these allegations. We affirm the Trial Examiner's
rejection of this evidence.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 62 challenges by the Producers and the I. A. T. S. E. were made
upon the grounds, in brief, that prior to the election those offering
the ballots (a) had been lawfully discharged or (b) had been per-
manently replaced by other employees. Of these 62 ballots, 10 were
challenged upon the additional ground that the voters-were not em-
ployed by the Producers immediately prior to the strike of March 12,
1945. We shall consider, as "miscellaneous challenges," the chal-
lenges to these 10 ballots and 2 additional ballots before considering
the issues raised by the remaining 102 challenges, 51 of which were
offered by the Producers and the I. A. T. S. E., and 51 of which were
offered by the Painters.
A. The miscellaneous challenges
1. Voters challenged by the Producers and the I. A. T. S. E.
Keough Gleason, Al Spencer, and Raymond Boltz left their employ-
ment as decorators to enter the armed forces of the United States.
Thereafter, they presented themselves in person at the polls and cast
their ballots, in accordance with the Di'rection of Election herein. We
find, as conceded by the Producers and the I. A. T. S. E. in their
briefs, that these employees were eligible to vote in the election. We
therefore have overruled the challenges to their ballots.
The employment of Sidney Clifford, Helen Conway, W. A. (Al)
Greenwood, George Sawley, Rita Lowe, and Jack Mersereaux had been
terminated prior to the strike of March 12, 1945. Accordingly, they
were not employees of the Producers during the period fixed in the
Direction of Election as determinative of eligibility to vote. We
therefore have sustained the challenges to the ballots of these em-
ployees.
John Sturtevant was employed as a decorator by Loew's Incor-
porated until July 29, 1944. On October 24 he was hired by RKO
Radio Pictures, Inc.; his employment was terminated on February
17, 1945. Sturtevant testified that at this time Darrell Silvera, head
of the property department, stated that because Sturtevant was not
a member of the Painters, but merely held a permit, and since there
was no production to which Sturtevant then could be assigned, he
would have to "lay off" Sturtevant for 2 or 3 weeks. The record
otherwise indicates, however, that Sturtevant's status was that of
an "extra" employee, hired only for the duration of each picture on
which he worked and not considered as a regular member of the
studio's staff of decorators." We are satisfied that the evidence is
insufficient to establish that Sturtevant was a permanent employee
8 It is the practice of RKO Radio Pictures, Inc , to utilize such"'extra" employees during
peilods of high production. Their employment is terminated by the company at the con-
clusion of each picture upon which they work.
COLUMBIA PICTURES CORPORATION 495
"temporarily laid off" during the eligibility period. Accordingly,
we have sustained the challenge to Sturtevant's ballot.
Charles C. Nields, who also worked as an "extra" decorator for
RKO Radio Pictures, Inc., was last employed on March 9, 1945.
The Company did not consider Nields a regular decorator and had no
intention of employing him thereafter. We therefore have sustained
the challenge to his ballot.
2. The voter challenged by the Painters
Jasper Cline was discharged by Republic Productions, Inc., on
May 4, 1945, prior to the election. At the hearing, the Producers
conceded that Cline was not eligible to vote. We therefore have
sustained the challenge to his ballot.
B. Challenges to the votes of the striking employees and the
replacement employees
1. Chronology of events
In June 1937, the Society of Motion Picture Interior Decorators,
herein' called the Society, was organized as a California corporation
to act as bargaining representative of its members who were em-
ployed as decorators in the motion picture industry. In the same
year, the Society executed a collective bargaining agreement, effective
for 5 years, with the Producers °
In January 1942, the I. A. T. S. E. requested the Producers to
include the decorators within the terms of a contract then being
negotiated on behalf of the property department employees repre-
sented by this organization. The producers rejected this request on
the ground that they were parties to a collective agreement with the
Society which governed the working conditions of the decorators 1°
On May 3, 1942, the Society and the Producers executed a new
agreement, effective from April 1, 1942, to April 1, 1947, by the terms
of which the Producers recognized the Society as the exclusive bar-
gaining representative of the decorators and agreed that all decorators
should become and remain members of the Society, subject to the
proviso that the Producers could "try out" non-members for not
more than 6 months. This contract contained the following pro-
visions: o
0 Separate agreements, identical in their provisions, were executed by the Society and
each of the Producers as the result of negotiations between the Society and the Producers'
Labor Committee These agreements and the subsequent superseding agreements, which
were negotiated in the same fashion, are referred to herein as single contracts.
"The I. A T. S E. stated that in view of the Society's contract, it "would pass that
for the time being, pioviding that no other oiganization tried to take them [the decorators]
over "
-496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. GRIEVANCE PROCEDURE AND ARBITRATION :
In the event of any dispute between the Producer and the
Society with respect to any matter or thing arising under this
agreement, the representative of the Society and the labor rela-
tions manager or other representative designated by the Producer
shall attempt to adjust the dispute. In the event that they are
unable to adjust the dispute, the Producer shall refer the matter
to the Motion Picture Producers' Labor Department, and said
Labor Department and the representatives of the Society shall
endeavor to adjust the dispute. In the event that they are unable,
to adjust the dispute, then the aggrieved party shall deliver to
the other party a written statement of the matter in dispute, and
such matter shall be settled by arbitration. For this purpose,
the Producer and the Society shall each promptly designate one
arbitrator. The persons designated need not be disinterested
persons. They shall then promptly designate a third arbitrator.
The decision of a majority of the arbitrators shall be expeditiously
made and given and shall be binding upon the parties hereto.
The hearings and deliberations of the arbitrators shall be closed
to the public and communications to and from them shall be
privileged. The expenses of the arbitration shall be borne equally
by the Producer and the Society.
It is agreed that terms of a new agreement and changes in wages,
hours and working conditions are not arbitrable under this
section.
10. CHANGE OF BARGAINING REPRESENTATIVE:
In the event that a majority of the interior decorators and
assistant interior decorators in the employ of the Producer should
designate a different bargaining representative, the name of such
representative shall be inserted herein in lieu of the name of the
'Society, or the Producer may, at its option, declare this agree-
ment null and void. In the event that the Society should affiliate
with any other labor organization, the name of such labor organ-
ization shall be inserted herein in lieu of the name of the Society,
or the Producer may, at its option, declare this agreement null
:and void.
11. STRIKES: o
The Society agrees that it will not call nor engage in any strike,
slow-down or stoppage of work unless the Producer has failed
to comply with an award of the arbitrators after the procedure
-set forth in Paragraph 9 hereof has been followed. The Society
agrees that it wiD ,use its best efforts in good faith to compel its
COLUMBIA PICTURES CORPORATION 497
members to perform their services for the Producer, even though
other persons or groups of persons may be on strike.
On October 28, 1943, the following motion was made at a meeting
of the Society :
That the Society of Motion Picture Interior Decorators affiliate
with Screen Set Designers' Local 1421 [the Painters] and desig-
nate Local 1421 as the exclusive collective bargaining representa-
tive of all decorators employed by the Motion Picture Producers.
This motion was carried by a vote of 35 to 31, after which a motion to
make the vote unanimous also was carried. Immediately after this
meeting, all the decorators employed by the Producers designated
the Painters as their bargaining representative and became members
of that organization. The Society has held no further meetings, nor
has it engaged in any activities in pursuance of its stated purposes.
Although it has not been dissolved as a corporation and retains sub-
stantial cash assets, it is plain that since October 28, 1943, the Society
has not existed for the purposes of collective bargaining. It exists,
as one of its members testified, "only as a cultural group."
On November 6, 1943, Edward Mussa, business representative of
the Painters, wrote Pat Casey, chairman of the Producers Labor Com-
mittee, as follows :
Please be advised that the Set Custodians and Set Estimators
were organized into a labor group titled "The Set Controllers
and Estimators." They voted to affiliate with our union on Octo-
ber 27, 1943.
The Society of Motion Picture Interior Decorators voted to affili-
ate with Screen Set Designers Local 1421 [the Painters] on Octo-
ber 28, 1943.
Both groups have added their respective jurisdiction (definition
of which is enclosed herewith) to the present jurisdiction of our
local. Said definitions have been submitted to the Brotherhood
of Painters, Decorators & Paperhangers.
The present contract between the Motion Picture Producers and
the Interior Decorators provides for adjustments necessitated by
change in bargaining representatives. It will be necessary to
adjust certain provisions of said agreement to conform with the
Brotherhood constitution and the bylaws of the union.
Please advise us as to your wishes in this matter. .. .
On November 8, 1943, Mussa again wrote to Casey, calling attention
to the fact that the contract between the Painters and the Producers
670417-46-vol. 64-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
governing the terms and conditions of employment of set designers,
set model builders, illustrators and sketch artists would expire on Jan-
uary 1, 1944, and requesting that an early date be fixed for negotia-
tions for a new agreement. The letter continued :
In addition to the groups coming under the existing contract,
we are now including two groups (Set Controllers & Estimators
and Interior Decorators) which have recently affiliated with our
local as previously mentioned in our letter to you under date of
November 6, 1943.
On November 11, 1943, Fred Pelton, the Producers' labor adminis-
trator, told Mussa by telephone that the Producers could not accept
the Painters' notice that the Society had voted to affiliate with the
Painters and that the Society "would have to notify" the Producers
of this. On the same day, Pelton wrote Mussa, in reply to Mussa's
letter of November 8, suggesting that he forward
a written proposal of any modifications or amendments to your
present agreement which you wish to negotiate. After receipt
and analysis of these proposals we shall be very glad to meet with
you or your committee for further discussions.
In reply to Pelton's request, on November 23, 1943, the Painters sub-
mitted a list of proposals, including the proposal that "the same basic
contract provisions apply to all groups included under our jurisdic-
tion." Attached thereto was a copy of a letter to Herbert Sorrell,
president of the Conference of Studio Unions, authorizing Sorrell
to represent the Painters at "the forthcoming negotiations to be held
in New York City" and notifying Sorrell that the Painters proposed
"that all contract provisions which apply to the other members of the
union shall also apply to" the decorators.
Shortly before April 1, 1944, during negotiations between the
I. A. T. S. E. and the Producers in New York City, the I. A. T. S. E.
again requested that the decorators be included within the unit of,
property department employees represented by the I. A. T. S. E. The
Producers again refused this request upon the ground that they had a
.contract with the Society governing the employment of the decorators.
Early in April 1944, a meeting was held in New York City, attended
by representatives of the Producers and representatives of unions
affiliated with the Conference of Studio Unions. Sorrell represented
the Painters. When Sorrell sought to discuss the terms and condi-
tions of employment of the decorators, Pelton stated that lie would
prefer to defer discussion of this matter until the parties returned to
Hollywood, where they could confer with the decorators. Pelton
remarked facetiously that he would "take advantage" of Sorrell "on
COLUMBIA PICTURES CORPORATION 499
the decorators' problem" because he was more familiar with it. Sorrell
agreed to defer the discussion.',
On June 8, 1944, a meeting between representatives of the Painters
and of the Producers was held in Hollywood. The Painters sub-
mitted a proposed contract providing for recognition of the Painters
as the representative of decorators and other employees, in addition
to those included within the terms of the previous contract between
the Painters and the Producers. The Producers stated that they would
not recognize the Painters as the representative of the decorators be-
cause they had received no notice from the Society of the change in
affiliation.12 When asked what was demanded, the Producers replied
that a letter from the Society "serving notice on us it had made the
affiliation" would be necessary. Representatives of the Painters sug-
gested that William Walsh of Loew's, Incorporated, prepare the re-
quested document. Walsh replied in effect that if the Painters would
communicate with him he would be willing to assist 13 At a subsequent
point in the meeting the Producers stated that inasmuch as two deco-
rators were present as members of the Painters' negotiating coln-
lnittee,14 they would listen to what the Painters "had in mind" con-
cerning the decorators. Some discussion of the Painters' demands on
behalf of the decorators followed.
On July 14, 1944, the Producers submitted a counter proposal to the
Painters. This proposed agreement contained no reference to decora-
tors or other groups of employees not included within the terms of the
previous contracts between the Painters and the Producers.
On or about July 28, 1944, the Painters and the Producers held a
further meeting. The Society had not sent the Producers a letter
informing them of the change in affiliation; the Producers repeated
that they would require such notification. The Painters' representa-
tives then dictated a form of letter, to be signed by the president and
secretary-treasurer of the Society, stating that "this is to confirm"
that the Society had affiliated with the Painters on October 28, 1943,
and had designated the Painters "as their exclusive bargaining repre-
11 The findings as to what was said concerning the decorators at this meeting are based
upon the testimony of Sorrell . Casey denied that there was any discussion concerning the
decorators . Victor Clarke , another representative of the Producers , testified that the Pro-
ducers merely refused to negotiate concerning the decorators and denied that anything was
said about negotiating in Hollywood . Pelton did not recall any discussion of the decorators
When asked whether he had told Sorrell that he would "take advantage" of him concerning
the decorators and whether he had suggested that they defer discussion of those employees
until they returned to Hollywood, Pelton stated that this discussion had reference to pub-
licists and that he did not think that such a conversation had occurred respecting the
decorators
12 Casey of the Producers testified that lie demanded notification " Because we had a con-
tract with the Society that was still in existence and I was not going to talk to anybody
else about that until I knew whether or not that contract was still in existence."
11 The Painters did not thereafter communicate with Walsh in this regard.
14 One of the two decorators was Edward Boyle , president of the Society.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative." The Producers stated that this letter was insufficient and
that further proof, such as the minutes of the Society meeting and
the record of the vote of the membership, would be necessary.
Shortly after the meeting, another letter, dated July 28, 1944,
which was signed by the president and secretary-treasurer of the
Society, was submitted to the Producers. The letter was as follows :
This is to advise you that at the general membership meeting of
October 28, 1943, held at the Hollywood Roosevelt Hotel, the
membership of the Society of Motion Picture Interior Decora-
tors, by a majority affirmative vote, adopted the recommendation
of the Committee on Affiliation.
It was later moved, seconded and carried that the following
motion be made unanimous :
That the Society of Motion Picture Interior Decorators af-
filiate with Screen Set Designers Local 1421 [the Painters]
and designate Local 1421 as the exclusive collective bar-
gaining representative of all Decorators employed by the
motion picture producers.
At the meeting of November 1, 1943, of the Board of Directors
of the Decorators it was moved, seconded and carried that the
business representative of Local 1421 advise the motion picture
producers by letter of the action taken by the members of the
Society of Motion Picture Interior Decorators.
The letter was delivered to Casey by Sorrell. Either at this time,
or shortly thereafter, Casey took the position, despite Paragraph 10
of the May 3, 1942, agreement, that the Producers would not recognize
the Painters as the bargaining representative of the decorators until
it was certified as such by the Board.15 This position was set forth
in Casey's letter of August 10, 1944, to Boyle, president of the Society,
as follows :
Receipt is acknowledged of your letter of July 28, 1944, advising
that a majority of the membership of your organization has
selected Screen Set Designers Local 1421 [the Painters] as their
agent for purposes of collective bargaining.
The producers who are parties to contracts with Society of Mo-
tion Picture Interior Decorators, an independent labor organi=
zation, are not willing to recognize Screen Set Designers Local
1421 as the collective bargaining agent of the interior decorators
unless and until Screen Set Designers Local 1421 shall have been
r, The testimony is conflicting as to what occurred when Sorrell gave the Society's letter
to Casey Casey testified in substance that he told Sorrell that the letter was not sufficient
proof of designation or affiliation and that he suggested that the Painters file a petition
with the Board. Sorrell testified that Casey accepted the letter without raising any
objection. In any event, the evidence establishes that on or about August 3 the Producers
notified the Painters that they would not recognize it as representative of the decorators
until a certification by the Board was obtained.
COLUMBIA PICTURES CORPORATION 501
certified by the National Labor Relations Board as the collective
bargaining agent of the persons employed by such producers as
interior decorators.
Pending such certification, the producers will continue to recog-
nize the Society of Motion Picture Interior Decorators, an inde-
pendent labor organization, as the collective bargaining repre-
sentative of the interior decorators employed by them and will
continue to abide by their contract with the Society dated May
3, 1942.
On August 8, 1944, the Painters filed with the Board a petition for
certification as representative of the decorators. Following inter-
vention in the proceedings by the I. A. T. S. E., the Painters withdrew
its petition on August 30. The next day Mussa wrote Casey as follows :
We wish to advise you that the Petition filed by our Local on
August 8, 1944, with the National Labor Relations Board, was
withdrawn without prejudice on August 30, 1944.
We are now prepared to meet with representatives of the
Motion Picture Producers to submit proof that we represent
100% of the former members of the Society of Motion Picture
Interior Decorators, and have been duly designated by them as
their exclusive bargaining representative since October 28, 1943.
Enclosed herewith is a complete list of those members who
affiliated with our Local on October 27, 1943, and other persons
now working under title and jurisdiction of Set Controllers and
Set Estimators as granted to us by the Brotherhood of Painters,
Decorators and Paperhangers. We are changing the aforemen-
tioned designations to the following: in lieu of Set Estimator we
are substituting the title of Estimating Set Designer, and, in lieu
of Set Controller we are substituting the title Custodian Set De-
signer, in order to simplify the jurisdiction of the aforemen-
tioned classifications.
Will you please set a definite date for the resumption of nego-
tiations and so advise us. . .
Shortly after the receipt of this letter, Casey told his assistant,
Victor Clarke, to obtain a list of decorators employed by the Pro-
ducers, and to be prepared to meet with Mussa, who was insisting that
he had authorization cards signed by these employees which would
establish the Painters' right to represent them. A few days later,
Mussa and Clarke checked the names upon the cards against the list
of employees; the comparison of names reflected that the cards rep-
resented practically all the decorators. Clarke reported this to Casey.
On September 13, 1944, Casey acknowledged Mussa's letter of
August 31, but requested that the Painters "describe by job classifi-
cation the unit or units which [it] claims to be appropriate for col-
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining and in which [it] claims to represent a majority
of the employees." In his reply, dated September 14, Mussa adverted
to the definition of the Painters' jurisdiction previously submitted to
the Producers. On September 19, Casey replied as follows :
Receipt is acknowledged of your letter of September 14, 1944,
in which you apparently contend that employees employed by
each of the Producers represented by the undersigned, in the
capacities of Set Designers, Model Builders, Illustrators, Assistant
Costume Designers and Costume Illustrators, Set Decorators,
Set Controllers, and Set Estimators constitute a unit appropriate
for purposes of collective bargaining.
The Producers represented by the undersigned do not agree
that the employees in such job classifications constitute a unit
appropriate for the purposes of collective bargaining and do. not
recognize Local 1421 [the Painters] as the collective bargaining
representative of the employees in such unit.
As you know, the National Labor Relations Board is the proper
governmental agency to determine the question of the appro-
priate unit and the collective bargaining representative of such
unit.
Each of the Producers represented by the undersigned does
recognize Local 1421 as the collective bargaining representative
of Set Designers, Model Builders, Illustrators and Assistant
Costume Designers and Costume Illustrators employed by such
respective Producers, and with respect to employees in those job
classifications only, the undersigned will enter into negotiations
with Local 1421.
Following this letter, the Producers continued to refuse to nego-
tiate with the Painters on behalf of the decorators. On October 5,
1944, the Painters called a strike of the decorators. On or about
October 11, the employees returned to work at the request of the
National War Labor Board, hereinafter called the W. L. B. The
W. L. B. attempted, without success, to obtain a settlement of the
jurisdictional dispute between the Painters and the I. A. T. S. E.
within the American Federation of Labor.
On January 6, 1945, a strike vote was conducted in accordance with
the War Labor Disputes Act."' The ballot set forth that the major
issue in the dispute was the "objection of [the Painters] to the failure
of [the Producers] to recognize it as exclusive bargaining agent for
its set decorators." A majority of the employees voted in favor of
a strike.
On January 26, 1945, the W. L. B. appointed Thomas Tongue "as
arbitrator to decide the case," and on February 8 and 10 a hearing
16 57 Stat. 163.
COLUMBIA PICTURES CORPORATION 503
was held before him. The I. A. T. S. E. refused to participate in the
proceeding on the ground, among others, that the W. L. B. had no
jurisdiction to decide the dispute. The Producers also challenged
the jurisdiction of the W. L. B., taking the position that the case
involved the resolution of a question of representation, a matter solely
within the jurisdiction of the National Labor Relations Board.17
In the "statement of issues" submitted to the arbitrator by the
Painters, this organization took the position that
The present controversy between the members of the Motion
Picture Producers' Association and Local 1421 [the Painters]
is not a jurisdictional dispute. The only issue in dispute is
whether the members of the Motion Picture Producers' Associ-
ation shall be required to substitute Local 1421 for the Society of
Motion Picture Interior Decorators in the present contract be-
tween said Society and the Producers.,"
And, during the hearing, counsel for the Painters contended that
this organization "has the legal right to be substituted in the Society's
contract . . . and that this legal issue is one upon which the [National
War Labor] Board can properly act... ."
On February 17, 1945, the arbitrator issued an award providing that
the Producers and the Painters "shall proceed to operate under the
terms" of the contract of May 3, 1942, between the Society and the
Producers "and to negotiate either amendments to that contract or,
if the Producers are willing, an entire new contract including interior
decorators with other groups represented by [the Painters]." The
award further provided that "these conditions shall continue until
(c) in the event that the National Labor Relations Board should
assume jurisdiction to determine any question of representation, until
a final determination is made by such Board of a different bargaining
agency or unit; ..."
Immediately after the issuance of the award, Sorrell demanded of
the Producers that they bargain with the Painters in compliance
with the award. The producers refused and notified Sorrell that they
intended to appeal to the W. L. B. to set aside the award. On Feb-
"During the hearing, the arbitrator stated that one of the issues he would endeavor to
decide was whether the Painters had "acquired bargaining rights" since the execution of
the contract of âlay 3, 1942. With respect thereto, counsel for the Producers stated that
the arbitrator was without jurisdiction to decide this issue since the National Labor Rela-
tions Board had exclusive jurisdiction in this regard He added , " . . . when and if
the National Labor Relations Board shall determine the appropriate unit in which decorators
belong for purposes of collective bargaining and when and if the National Labor Relations
Board shall have designated the collective bargaining agent of that appropriate unit, the
Producers will bargain with that union "
18 In the course of the hearing, counsel for the Producers stated that if the arbitrator
should determine that the Painters "is entitled to be substituted in the Society's contract
then I think you should also determine that [the Painters] is bound by that contiact so
that there will be no question but that the contract now existing is and will continue to be
the contract coveting these people "
I
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruary 26, 1945, the Producers filed their appeal by telegraph'"
Therein the Producers took the position that the award was "outside
the scope of the powers of the Arbitrator and of the National War
Labor Board" and requested that the W. L. B. order the Painters
and the I. A. T. S. E. to "join with the Producers in submitting them-
selves to the jurisdiction of the National Labor Relations Board upon
petitions requesting that said Board determine the appropriate unit
in which the Interior Decorators belong and what labor organization
represents the employees in that unit."
On the next day, February 27, 1945, the Producers filed their peti-
tion for an investigation and certification of representatives in the
instant proceeding. The petition alleged that a question of repre-
sentation had arisen by reason of the respective claims of the Paint-
ers and of the I. A. T. S. E. that the decorators constituted a part
of a specified bargaining unit which each claimed to be appropriate
and in which each claimed majority representation. In the space
provided for listing persons or labor organizations claiming to rep-
resent employees within the appropriate unit or units, only the Paint-
ers and the I. A. T. S. E. were named. There is no reference in the
petition to the Society or its contract, and the Society made no appear-
ance in the proceedings held pursuant to the petition.
From March 7 to 17, 1945, a consolidated hearing was held upon
the petition filed by the Producers and the petitions previously filed
by the Painters concerning set controllers and estimators. While the
hearing was in progress, the Painters continued to request the Pro-
ducers to bargain with the Painters in accordance with the arbitra-
tor's award. On March 12, 1945, the Painters called a strike because
of the Producers refusal so to do. On March 20, 1945, the W. L. B.
directed that the strike be terminated.
On April 2, 1945, the producers notified the Society by telegram
that "if the members of your society persist in refusing to report and
perform their services by April 4, we shall be compelled to engage men
from other available sources to keep our studios in operation." On
April 4, the Producers sent identical notices of discharge to all decora-
tors, excepting five who had continued to work on pictures for the
government, who were absent because of illness, or who were working
at distant locations.20 The notices were as follows :
You are hereby notified that your employment is terminated.
Such action is taken because of your failure to report for work and
perform services in accordance with your obligations so to do 21
0
19 On march 2, 1945, the I. A. T. S . E also appealed to the w. L. B to set aside the
award.
20 These five employees subsequently joined the strike
21 In their brief , the Producers state . "The breach of obligations referred to in such
notices was the breach of the no-strike provision of the Society contract , the breach of the
no=strike pledge made by the leaders of organized labor to the President of the United states,
and the breach of the duty to abide by the order of the National War Labor Board "
COLUMBIA PICTURES CORPORATION 505
On April 5 the Producers notified the Society by telegram that the
contract of May 3, 1942, was terminated "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."
On various dates between March 16 and May 3, 1945, inclusive, the
Producers transferred employees from the property department or
hired new employees to perform the work of the striking decorators.
On May 24, 1945, the date of the election, all but two of the positions of
the striking employees were filled.22
2. Conclusions
The contentions of the Producers and the I. A. T. S. E. on the one
hand, and of the Painters on the other, are diametrically opposed : the
former urge that the 51 striking decorators who cast ballots were not
eligible to vote in the election and that the ballots of only the 51
replacement decorators should be counted; the Painters urges the
opposite conclusion. The Producers and the I. A. T. S. E. originally
argued that the striking decorators were "lawfully discharged" be-
cause they breached the contract of May 3, 1942, between the Pro-
ducers and the Society,23 and now also because the purpose of the strike
was to compel the Producers to commit an unfair labor practice. They
also argue, in effect, that the employment status of strikers was ter-
minated by reason of the hiring of permanent replacements, and that,
assuming that the replacement of the strikers did not have this effect,
it nevertheless deprived the strikers of sufficient expectancy of future
employment to warrant their participation in the election.
The Painters' position is, in substance, that the decorators left their
work as a consequence of a current labor dispute and therefore re-
mained employees by virtue of Section 2 (3) of the Act; 24 that the
strike was lawful in its conduct and purpose and hence was within the
"concerted activities, for the purpose of collective bargaining or other
22 The evidence concerning the replacements is discussed at greater length below.
23 The Producers and the I A. T S. E also contended that the striking decorators were
lawfully discharged because they had breached Labor's no-strike pledge and because they
had refused to comply with the w L B 's direction that the strike be terminated. We find
no merit in these contentions The no-strike pledge was a voluntary agreement which was
not implemented by legal sanctions And the directives of the W. L. B. could not affect the
tights of the employees under the Act.
ii The relevant provisions of the Act are as follows
Sec. 2 When used in this Act-
* a *
(2) The term "employee" shall include . any individual whose work has ceased
as a consequence of, or in connection with any current labor dispute . .
(9) The term "labor dispute" includes any controversy concerning terms, tenure, or
conditions of employment, or concerning the association or representation of persons
in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions
of employment, regardless of whether the disputants stand in the proximate relation
of employer and employees.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual aid or protection" of Section 7 of the Act; and, therefore, that
no act of the Producers could terminate the strikers' status as em-
ployees 25 The Painters further contends that the persons employed
in the strikers' positions were not in fact permanent replacements, but
were employed temporarily for the purpose of defeating the Painters
in the election; and that, in any event, the unilateral replacement of
the strikers could not terminate their employment status.
We turn to a consideration of the issues raised by the foregoing
contentions.
a. Alleged breach of the contract of May 3, 1942, between the Producers
and the Society
The Producers and the I. A. T. S. E. contend that the strikers were
lawfully discharged because they had breached Section 11 of the May
3, 1942, contract providing that "The Society agrees that it will not
call nor engage in any strike, slow-down, or stoppage of work unless
the Producers has failed to comply with an award of the arbitrators
after the procedure set forth in Paragraph 9 hereof has been fol-
lowed. . . ." It is urged that this contract was in full force and effect
one April 4, 1945, when the Producers notified strikers that they were
discharged; that at no time had the Producers breached the contract;
that with reference to Section 10 of the contract, involving change of
the decorators' bargaining representative, both parties had waived
the provisions thereof ; that even if it be assumed that compliance with
Section 10 was not waived, the Producers did not breach the Society
contract "so as to entitle" the decorators to strike; and that under the
decisions in the Sands 26 and Columbian Enameling 27 cases, the em-
ployees were lawfully discharged for violating their contract.
We are of the opinion that there is no merit in the contention of
the Producers and the I. A. T. S. E. In the first place, we are satisfied
that the contract of May 3, 1942, by the terms of which the Producers
recognized the Society as the exclusive representative of the decorators
for the purpose of collective bargaining, was not in full force and
effect on April 4, 1945, because the parties to the contract mutually
had assented to abandon it. On the one hand, it is plain that the em-
ployees, the principals on whose behalf the Society had executed the
25 The Painters also asserted, in substance, that the strike was caused and prolonged by
unfair labor practices on the grounds that the Producers had refused to bargain collectively
with it in violation of the Act and that the Producers' notices of discharge to the strikers
on April 4, 1945, contravened Section 8 (1) and (3) of the Act In its brief and in oral argu-
ment before us, however, the Painters in effect waived any contention that the Board should
make findings of unfair labor practices for the purposes of its decision in the instant repre-
sentation proceeding Accordingly, we have made no findings as to whether the Producers
have or have not violated Section 8 of the Act.
26 N L R B. v. Sands Mfg Co , 306 U. S. 332
'TN. L. R. B. v. Columbian Enameling & Stamping Co., 96 F. (2d) 948 (C. C. A. 7), aff'd
on other grounds 306 U. S. 292.
COLUMBIA PICTURES CORPORATION 507
contract, no longer recognized its existence. On October 28, 1943, the
employees, as members of the Society, voted to affiliate with the
Painters and designated it as their exclusive bargaining representative.
Although the Society was not dissolved,as a corporation, it ceased
to exist for the purpose of collective bargaining. Nor, despite the
assertion of the Producers to the contrary, did the Painters recognize
that the contract was in effect. It is true that in February 1945, in
the proceedings before the arbitrator appointed by the W. L. B., the
Painters asserted that the "only issue in dispute" was whether the
Producers "shall be required to substitute" the Painters "in the present
contract between said Society and the Producers," and that the
Painters contended that it had "a legal right to be substituted in the
Society's contract . . . and that this legal issue is one upon which the
[National War Labor] Board can properly act ..." Notwithstand-
ing these statements, it is plain from what had occurred prior and
subsequent to the arbitration proceeding that the Painters was not in
fact seeking substitution in the Society's contract, but recognition and
the negotiation of anew agreenient.18
On the other hand, we are satisfied that the Producers by their course
of conduct also had abandoned the May 3, 1942, contract. Between
November 6, 1943, when the Producers first were confronted with the
Painters' request for recognition, and July 1944, the Producers re-
jected such requests on the ground that they had received no notifica-
tion of the change in the decorators' affiliation from the Society. But
after receiving such notification on or about July 28, 1944, the Pro-
ducers refused recognition unless and until the Painters was certified
as statutory representative by the Board, and asserted their intention
to abide by the contract with the Society. This position in effect was
reiterated in the proceedings before the W. L. B. Finally, on February
27, 1945, the Producers filed their petition in the instant proceeding,
alleging that a question of representation had arisen concerning the
decorators by reason of the conflicting unit and representation claims
of the Painters and the I. A. T. S. E. No mention was made therein
of any claim by, or of their contract with, the Society, nor has any
contention been made before us that such a contract was a bar to a
determination of representatives. We think that the Producers' con-
duct, particularly in filing their petition herein, completely negatives
their assertion that they considered the contract with the Society in
as Except as such may be inferred from the Painters' letter of November 6, 1943, to the
Producers, the statements before the arbitrator in February 1945 were the first request by the
Painters to be substituted for the Society as a party to the contract of May 3, 1942. In oral
argument before the Board, counsel for the Producers stated that "this business of inserting
the name in the contract is a trick play that [the Painters] pulled very late; namely, on
February 10, 1945, in that war Labor Board so-called arbitration." We believe that the
Painters took the above-mentioned position before the arbitrator in an effort to establish that
the W. L. B had jurisdiction of the dispute.
508 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
full force and effect. The assertion that a contract providing for ex-
clusive recognition and a union shop with the Society was in effect
was entirely inconsistent with the Producers' conduct in alleging that a
question of representation existed concerning the employees covered by
the terns of the contract and in initiating proceedings looking toward
a certification of either the Painters or the I. A. T. S. E. as statutory
representative. For the Board's certification of labor organization
imposes upon an employer the duty to bargain exclusively with such
statutory representative and to refrain from any further relationship
with any other union.29
By notifying the Painters that they would not bargain collectively
with it until certified by the Board, and thus impliedly stating that
they would bargain with the Painters if so certified,30 and by filing
with us a petition looking toward a certification of the Painters or the
I. A. T. S. E., and not the Society, the Producers unequivocally mani-
tested that they had abandoned their contract with the Society and
recognized that the Society likewise had abandoned its contract.31 It
is true that subsequently, in their telegrams to the Society, the Pro-
ducers purported on April 2 to rely upon the terms of the contract and
on April 5 to terminate the contract in accordance with its terms.
But it then was too late to attempt to revitalize a contract previously
abandoned. We find that prior to April 4, 1945, the parties to the con-
tract of May 3, 1942, had mutually assented to abandon the contract
and thereby had agreed to rescind their contractual duties.
But even if it be assumed arguendo that the contract of May 3, 1942,
was not rescinded by mutual assent, we are satisfied that there is no
merit in the Producers' contention. As previously stated, Section 10
of the contract provides that in the event a majority of the decorators
"should designate a different bargaining representative" or that the
Society "should affiliate with any other labor organization," the name
of such representative or labor organization "shall be inserted herein
in lieu of the name of the Society, or the Producer[s] may, at [their]
2i In N L R B. v Jones & Laughlin Steel Corp , 301 U S 1 , 44, the Supreme Court of the
United States said that "the obligation to treat with the true representative was exclusive
and hence imposed the negative duty to treat with no other."
au As set forth above , the Producers stated in the proceedings before the arbitrator that
they would bargain with the representative certified by the Board
33 That the Producers regarded the contract with the Society as no longer effective is
also indicated by the following : In May 1944 the superintendent of the property depart-
ment at Loew ' s incorporated requested the Painters to issue a work permit to John
Sturtevant who was hired on that day . When Sturtevant was employed by RKO Radio
Pictures , Inc , on October 24, 1944, Silvera , the head of the property department at that
studio , required that Sturtevant obtain a permit from the Painters And, on February 17,
1945, Silvera told Sturtevant that because the latter was not a member of the Painters,
but merely held a permit, and since there was no production to which Sturtevant could
then be assigned , he would have to dismiss him. Similarly , the head of the interior deco-
rating department at Paramount Pictures, Inc , required that Grace Gregory Duenckel
obtain a work permit from the Painters when she was employed in November 1944 About
May or June 1944 , a representative of the Painters adjusted a grievance on behalf of the
decorators at Columbia Pictures Corporation.
COLUMBIA PICTURES CORPORATION 509
option, declare this agreement null and void." It is clear that one of
the contingencies contemplated by this clause-tile designation by a
majority of the decorators of a different representative-occurred;
and that the Producers were notified of this by the Painters on Novem-
ber 6, 1943, by the Society on or about July 28, 1944, and by the card
check held in August or September 1944. The Producers, however,
did not declare the contract null and void, nor did they recognize that
the Painters had succeeded the Society as the decorators' exclusive
representative by inserting the name of the Painters in the exclusive
bargaining contract previously executed with the Society. Instead,
the Producers took the position that they would not recognize or other-
wise bargain with the Painters until the Painters was certified by the
Board, and subsequently filed their petition herein.
Thus, regardless of the propriety under the Act of requiring a certifi-
cation by the Board, it is plain that the Producers breached the con-
tract by failing either to substitute the Painters for the Society as
the recognized exclusive bargaining representative of the decorators or
to declare the contract null and void. But, the Producers urge, the
other party to the contract waived the Producers' breach by failing
to exercise the right of selection granted in Section 10 within a reason-
able time after the Producers had failed to exercise this right.32 This
argument ignores the fact that the Producers' conduct made it futile
to do so. After the members of the Society had selected the Painters
as their exclusive representative, the Producers refused to recognize
such designation until notified by the Society; after the Society had
given notification and the Painters had submitted proof of its rep-
resentative status, the Producers demanded certification by the Board
as a condition precedent to recognizing the Painters and asserted their
intention to abide by the contract with the Society pending such cer-
tification. Even when the Painters, during the arbitration proceed-
ings, stated that the only issue involved was substitution of the Paint-
ers for the Society in the contract of May 3, 1942, the Producers in
effect stated that this involved a representation question which was
within the exclusive jurisdiction of the Board 33 and that they con-
sidered the contract with the Society to be in effect. For the employ-
ees, through the Society, to have notified the Producers to substitute
the Painters as the employees' representative in the exclusive bargain-
se In this connection, the Producers rely upon certain sections of the Caiiforma Civil Code
which provide, in substance , that when a party having the right of selection between
alternative acts fails to make his selection within the time provided , or within a reason-
able time, the right of selection passes to the other party.
83 It cannot be contended , as the Producers appear to contend, that substitution of the
Painters for the Society in the May 3, 1942 , contract and recognition of the Painters as
exclusive representative are separate and distinct . By the terms of the contract, the
Producers recognized the Society as the exclusive bargaining representative of the
decorators Obviously, substitution of the Painters for the Society would have constituted
a grant of exclusive recognition to the Painters.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing contract of May 3, 1942, or to have notified the Producers to
declare the contract null and void would plainly have been an idle
gesture in view of the position taken by the Producers. Hence, we do
not agree that the employees, either through the Society or the Paint-
ers, waived the Producers' breach of the contract. Nor can we accept
the Producers' contention that even if it be assumed that compliance
with Section 10 was not waived, they could not be "guilty of any breach
of contract until the claimed breach had been submitted to arbitration
in accordance with the provisions of the contract." Again, in the light
of the Producers' position that they would not recognize the Painters
until certified by the Board and that they would continue to abide by
the contract with the Society pending such certification, any effort by
the Society to secure through arbitration the substitution of the Paint-
ers as exclusive representative or a declaration by the Producers that
the contract was null and void would have been useless. Indeed, as set
forth above, the Producers maintained the employees' change of desig-
nation involved a representation question solely within the jurisdiction
of the Board.
We find that, even if it be assumed that the contract of May 3, 1942,
was not rescinded by mutual assent, the Producers breached Section 10
of the contract by failing either to substitute the Painters for the
Society therein as the exclusive representative of the decorators or to
declare the contract null and void; that the Producers' conduct ren-
dered futile and therefore unnecessary the invocation of the grievance
and arbitration procedure set forth in Section 9 of the contract ; and,
accordingly, that the employees did not strike in violation of Section
11 of the contract, nor can the Producers be heard to say that they
did 34
For the reasons set forth above, we have rejected the contention that
the striking decorators were lawfully discharged for breach of
contract.
b. Alleged illegality of the strike because of its purpose
At oral argument before the Board, the Producers and the I. A. T.
S. E. for the first time raised the contention that the strike was not
within the "concerted activities" to which the Act applies, because its
purpose was to compel the Producers to commit an unfair labor prac-
tice and, therefore, that the Producers "properly fired these strikers
for engaging in a strike" for this purpose. They point to the facts that
the strike was called by the Painters to secure "recognition" as the
The Sands and Columbian Enameling cases , cited in footnotes 26 and 27 , supra, are
,tot apposite to the instant situation : in both cases the court found that the employees had
struck in violation of their agreement , and that the employer therefore was free to treat
ahem as having terminated their employment . In the instant case it was the employer.
lather than the employees , who breached the agreement
COLUMBIA PICTURES CORPORATION 511
exclusive bargaining representative of the decorators, and that at the
time a question concerning the representation of the decorators had
arisen. The Producers argue that had they granted what the strikers
sought, they would have violated the Act. Thus, the argument con-
tinues, the strike was for an object prohibited by law, and under the
decision of the Board in Matter of American News Company, Inc.,35
such a strike was not a concerted activity within the intendment of
the Act and constituted legal cause for discharge.
We find it unnecessary to decide whether or not it would have been
an unfair labor practice had the Producers granted recognition, the
object sought by the Painters; 36 assuming arguendo that such was the
case, we nevertheless are of the opinion that the doctrine of the Ameri-
can News case is not applicable to the instant situation.
In the American News case, the union and the employer had bar-
gained to an agreement for wage increases and, in accordance with
applicable federal regulations, had made a joint application to the
National War Labor Board for approval of the proposed increases.
Before such approval had been obtained and with knowledge that,
under existing wage stabilization legislation 37 and regulations, the
proposed wage increases could not lawfully be put into effect prior to
such approval, the union resorted to strike action to force the employer
to pay the proposed wage increases immediately. The employer re-
garded the action of the union members in resorting to a strike as a
termination of their employment and consistently maintained the
position that it was justified in doing so because the purpose of the
strike was to require it to take action unlawful under a statute of the
United States. In upholding the employer's contention, the Board
adverted to the relevant wartime wage stabilization legislation and the
orders and regulations thereunder. The Board noted that violation of
this legislation subjected the offender to heavy criminal penalties and
observed that the passage of such legislation "was brought about to
curb an inflationary spiral which threatened the value of our currency
and the ability of the nation to prosecute the war." The Board further
observed that the Emergency Price Control Act of January 30, 1942,
expressly enjoined this Board, among other agencies, "to work toward
a stabilization of prices, fair and equitable wages, and cost of produc-
tion." The Board then stated that
In the light of the foregoing, it is impossible to escape the
conclusion that the wage stabilization statute is the kind of
85 55 N . L. It. B. 1302.
86 The Painters, relying epon the fact that substantially all the decorators had desig-
nated it as their bargaining representative , contends that it would not have been illegal
for the Producers to have recognized it As indicated above, however , we consider it
unnecessary to determine whether there is merit in this argument . Cf Matter of Midveat
Piping and Supply Co, Inc, 63 N L R B 1060 , and cases cited therein in footnote 15
87 Emergency Price Control Act of January 30, 1942 , 56 Stat 24 , Economic Stabilization
Act of October 2, 1942 , 56 Stat. 764
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enactment to which the National Labor Relations Act should be
accommodated if this can reasonably be done. Certainly legisla-
tion of such immense importance as that of the Act of October 2,
1942, enacted during a critical war, should not be severed from
the body of Congressional legislation of which it is a part and
read in isolation. See United States v. Hutcheson, 312 U. S. 219,
234-235; Southern Steamship Co. v. N. L. R. B., 316 U. S. 31.
Following appraisal of the legislative history of the National Labor
Relations Act and of related court decisions to determine whether
Congress intended the protection of the Act to extend to "concerted
activities" irrespective of their objective, the Board stated that
... we think it most improbable that the Congress meant to
invest this Board, or the courts in reviewing our action, with any
broad discretion to determine what we or the courts might choose
to consider the proper objectives of concerted activity. See N. L.
B. B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. (2d)
503 (C. C. A. 2). By the same token, we think it most unlikely
that Congress intended to exclude from the concerted activities
protected by Section 7 all conduct deemed tortious under state
rules of decision or statutes, or city ordinances, merely because of
the objective sought to be accomplished. See N. L. R. B. v. Reed
et3 Prince Mfg. Co., 118 F. (2d) 874 (C. C. A. 1), certiorari denied,
313 U. S. 595; cf. Allen-Bradley Local v. Board, 315 U. S. 740.
It is quite another matter, however, to suggest that Congress,
either in 1935 or 1942,_ intended us to ignore the character of a
strike knowingly prosecuted to compel an acknowledged viola-
tion of an act of the Congress itself. [Italics supplied.]
The Board concluded "that a strike prosecuted in order to compel
an employer to violate the [Economic Stabilization] Act of October 2,
1942, is not within the concerted activities protected by Section 7."
We regard the decision in the American News case as one of narrow
application, intended to apply primarily to a, situation in which em-
ployees deliberately and knowingly strike to compel an employer to
violate a statute which, when read in the setting in which it was
enacted, manifested the inexorable intention of the Congress that its
mandate be obeyed. That is not the situation before us in this case.
The moral climate is different. Here the Painters called the strike
on March 12, 1945, to obtain recognition as exclusive representative
of the decorators, an objective which they had been seeking to realize
since November 1943. The Producers had refused to grant such rec-
ognition, notwithstanding that it was plain, since 1944, that prac-
tically all the decorators had selected the Painters as their bargain-
ing representative and that the arbitrator appointed by the W. L. B.
COLUMBIA PICTURES CORPORATION 513
had issued an award calling for recognition until we should decide
otherwise.
Although there is doubt whether the W. L. B. arbitrator had juris-
diction to determine this question, and although his award was stayed
pending appeal, the fact remains that the Painters and its members
were not acting in conscious bad faith. They assumed, perhaps
erroneously but without that deliberate intent to compel unlawful
conduct which was present in American News '38 that the Producers
might properly have complied with the order of the only govern-
mental authority that had so far spoken on the merits of the con-
troversy. That is not the only respect in which the equities appear
to lie with the Painters. While it is true that the crucial unit question
had not yet been decided by this Board, it is also true that one conse-
quence of the Board's later unit finding (setting the decorators apart)
was to confirm the Painters' contention that, in fact, it represented a
majority within the unit ultimately found appropriate.39 By declin-
ing to extend the American News doctrine so as to deny the ballot on
such a set of facts, we should not be taken as retracting the views
expressed on the very different set of facts in the Midwest Piping com-
plaint case, in which the employer contracted with a favored union
while a petition was pending. Here we need decide only whether
the "discharge" of men who strike under these circumstances and for
such a purpose operates to deprive them of the right to vote in a
Board election. We hold that it does not.
We are satisfied and find that the Painters struck to secure an
objective to which that union and its members believed themselves
entitled under the Act and that they were entirely unaware that
recognition by the Producers at that moment might have constituted
an unfair labor practice. Indeed, it is plain that the Producers did not
consider that the grant of recognition might have been an unfair
practice and that such action, whether pursuant to strike pressure or
not, was furthest from their mind. Not until the oral argument before
us on September 28, 1945, was the American News contention made.
It is evident that the Producers were not motivated by this consider-
ation in sending the notices of discharge to the strikers. The notices
of discharge, as amplified in the Producers' brief,40 make this abun-
dantly clear.
It is true that the strike was called during the Board's hearing
and investigation to resolve the question at issue in the strike. Were
Is See the concurring opinion of the Chairman in Matter of Rockwood Stove WVo1°s, 6:;
N. L. R. B. 1297, decided October 2, 1945, 17 L R R 198
aB We have heretofore found that a question in fact existed concerning the representation
of the decorators, and accordingly do not intend to imply that, on the record before us, the
Producers acted illegally by withholding recognition. We consider the circumstances to
which we have adverted relevant only in evaluating the employees' objective in striking
'0 See footnote 21, supra.
670417-46-vol. 64-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we called upon to determine whether the action of the employees
in striking was well considered, we should say unhesitatingly that it
was not. It showed a disregard for the orderly processes of the Board,
and an unwillingness to rely upon the machinery which Congress had
made available as an alternative to the strike ; it contributed materi-
ally to the prolongation of a dispute which the Board could other-
wise have decided many months ago. But the strikers' "wisdom or
unwisdom, their justification or lack of it" is a matter with which we
cannot be concerned; 41 the question which we must decide is whether
the Act continues to protect employees who choose to strike in these
circumstances. We find nothing in the Act, in its legislative history,
or in the court decisions thereunder, which points to the conclusion
that the strikers' conduct herein removed them from the ambit of the
Act. On the contrary, the language of the Act and the decisions of
the Board and the courts snake plain that a strike of this character-
to obtain recognition and collective bargaining is within the "con-
certed activities" contemplated therein and cannot render strikers vul-
nerable to loss of their status as "employees" because this is their
purpose .12
Section 13 provides that "Nothing in this Act shall be construed so
as to interfere with or impede or diminish in any way the right to
strike." Thus Congress, while providing a peaceful alternative to the
strike, one which has been widely utilized since the statute became
effective, was plainly creating an alternative and not a mandatory
substitute. Like our dissenting colleague, we prefer to encourage
resort to the peaceful alternative. We doubt, however, whether such
4i N L R B v . Mackay Radio d Telegraph Co , 304 U S 333
^=In N L R B v Remington Rand, Inc, 94 F (2d) 862 (C C A 2), the Circuit Court
of Appeals for the Second Circuit stated
. . . The Act expressly preserves the right to strike, and that includes
a strike for refusing to negotiate as well as any other It is a remedy parallel with
recourse to the Labor Board , its use, when unsuccessful , but in a controversy where
the men are right, ought not therefore to be prejudicial to them idol cover-and this
is conclusive-the remedy which the Act provides expressly includes reinstatement as
a part of it It is of course true that the consequences are harsh to those who have
taken the strikeis ' places , strikes are always harsh , it might have been better to
forbid them in quarrels over union recognition . But with that we have nothing to
do , as between those who have need a lawful weapon and those whose protection will
limit its use, the second must yield . . [Italics supplied ]
In Black Diamond S S Corporation v. N. L R B, 94 F (2d) 875 (C C. A. 2), the em-
ployees involved struck to obtain, among other things, recognition and collective bargaining
The strike commenced subsequent to a decision in which the Board had found that a ques-
tion existed concerning the representation of the employees , but prior to the election which
had been directed to resolve this question In this connection the court stated
Under the Act men who cease working because of a labor dispute retain
the status of emplo\ ees All engineers were employees under the Act, who_
had left work in consequence of labor disputes But , having clone so before any
unfair labor practice, they were relying, and were only entitled to rely, upon a test of
economic strength They struck at a time when the Board was conducting an elec-
tion Since the Act expressly leaves the right to strike unaffected , any remedies they
had were unaffected by continuing on strike . .
COLUMBIA PICTURES CORPORATION 515
resort would be encouraged by the result which he suggests, for it
would more probably tend to dissuade unions from filing representa-
tion petitions with the Board, lest any stoppage called during their
pendency result in outlawry of employees who. choose to exercise
their economic power.
We find that the conduct of the striking decorators was within the
"concerted activities" to which the Act applies. We therefore have
rejected the contention of the Producers and the I. A. T. S. E. that the
strikers' conduct was such as to permit the Producers to sever, or to
regard as severed, their status as employees. At the very least, it can-
not deprive them of the franchise.
c. Replacement of the strikers
We have previously found that on various dates between March 16
and May 3, 1945, the Producers transferred or hired employees to per-
form the work of the striking decorators; and that on May 24, 1945,
the date of the election, the jobs of all but two of the strikers were
filled. The Producers and the I. A. T. S. E. contend that the employ-
ment status of the strikers was terminated by reason of their replace-
ment, and that even if it be assumed that they remained employees as
defined by the Act, their replacement deprived them of sufficient
expectancy of future employment to warrant their participation in the
election. The Painters contends that the persons employed in the
strikers' positions were not in fact replacements, but merely were tem-
porarily employed for the purpose of defeating the Painters in the
election and, accordingly, were not eligible to vote; and that assuming
that those employed in the strikers' jobs were genuine replacements,
this could not deprive the strikers of their status as employees or
otherwise render them ineligible to participate in the election.
At the time the strike began, the striking decorators represented a
large majority of the skilled and experienced decorators in the motion
picture industry. Most of the strikers have had many years of expe-
rience in decorating sets and have become highly skilled in this call-
ing.43 Prior to their employment as decorators, in the main they had
been employed as property men or members of the swing gangs; 44 had
been employed as interior decorators in commercial life, or had come
from similar employment on the legitimate stage. In general, the
replacements were selected from the same sources. Of the 51 here
involved, 33 were promoted from the property departments of their
studios, where they had worked in conjunction with the decorators.
"Hunt, one of the striking decorators, testified . "The amount of knowledge that is
necessary, sir, to cover a decorator's background in the motion picture industry is so varied
and so immense that it is comparable to that of a curator of a large museum."
" These are the persons who handle the furniture and decorations and place them under
the direction of the decorator
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nearly all of those who came from outside the studios reported, when
interviewed for employment, experience as decorators in the motion
picture industry, on the legitimate stage as stage managers, in com-
mercial establishments as interior decorators, or in their own busi-
nesses as interior decorators. There is no evidence that any replace-
ment was employed as a decorator without being known to the prop-
erty department head, who generally did the hiring, as an old em-
ployee in that or other studios, or without reporting some background
of experience from which a decorator might be developed. No limi-
tation was placed upon the tenure of any of the replacements when
they were assigned to their duties as decorators.
Following their employment, the replacements were assigned to
the work of decorating sets or incidental tasks ordinarily performed
by decorators. Only a few of the replacements were capable of assum-
ing immediately all the responsibilities and duties of the striking
employees, with the same minor degree of supervision from the prop-
erty department heads. All required more than average supervision
at first, but as time progressed most of them were given progressively
more responsibility and less direct supervision. ' The pictures pro-
duced at the studios since the commencement of the strike have been
made on sets decorated by the replacements, with the exception of sets
which had been started by the striking decorators.45 It is plain, how-
ever, that the replacements, on an average, have not reached that de-
gree of skill which permits a highly skilled decorator to undertake any
set, no matter how difficult or ornate.
Much testimony was adduced concerning the permanency of the
replacements' employment. In general, policy making officials of the
studios testified that the replacements would be retained as long as
their work was satisfactory, notwithstanding an application for rein-
statement by the striking employees. The testimony of certain of
the decorators' immediate superiors, who possess authority to hire
and discharge, indicates, however, that the work of some of the re-
placements was not entirely satisfactory and, for this and other rea-
sons, that the striking decorators had, as of the time of the election and
of the hearing, some expectancy of future employment. The following
is a summary of the testimony in this regard:
At RKO Radio Pictures, Inc., the votes of six striking decorators
and of six replacements, who had been transferred from other jobs,
were challenged. Leon Goldberg, studio manager, testified that the
replacements "will be given permanent employment as long as their
work is satisfactory." Darrell Silvera, head of the property depart-
11 The record contains documentary and other evidence of the work performed by each
of the replacements indicating that, for the most part, the replacements have been en-
gaged consistently at the various duties ordinarily performed by decorators.
COLUMBIA PICTURES CORPORATION 517
went, testified that two' of the replacements had been "tried . . . on
several sets and several types of sets," but that they had not "quali-
fied"; that these two employees had no expectancy of continued em-
ployment; and that if the strike were terminated, "one or two at the
most" of the replacements would be retained. Goldberg also testified
that Silvera had told him that "one or two of these men [the replace-
ments] after a trial period, hadn't evidenced sufficient abilities" and
that he had advised Silvera that the latter "should continue to be on
the lookout for additional men when, as and if we are able to get addi-
tional men with better qualifications than these two whose work up to
that point had not been satisfactory and we might consider changes."
At Paramount Pictures, Inc., the votes of nine striking decorators
and of nine replacements, who had been transferred from other jobs,
were challenged. Charles Boren, the studio manager, testified that
it is the policy of this studio to retain the replacements "as long as
they perform satisfactory services." Samuel Comer, a member of
the Painters who is in charge of the interior decorating department,
testified, however, that since the beginning of the strike this studio
has "not had one picture with a set to test" any of the replacements
and "what their capacities are on a good decorating job I have had no
chance to find out." Comer further testified, when asked whether he
would retain the replacements if the strikers were available, that he
would desire to rehire the strikers for the reasons, among others, that
they were his friends and that they required less supervision than the
replacements.
At Twentieth Century-Fox Film Corporation, the votes of six strik-
ing decorators and of six replacements, one of whom had been trans-
ferred from another job and the remainder of whom were newly hired,
were challenged. One of the replacements, Leonard Solomon, whose
work was unsatisfactory, was dismissed subsequent to the election;
another replacement, Alfred E. Kegerris, resigned because of illness.46
Fred S. Meyer, director of industrial relations, testified with respect
to the replacements that "all those assigned to perform the work of
interior decorators are in the same status, capacity, as anyone else,
and they are to remain as long as they are qualified and competent to
perform the work." Thomas Little, head of the property department,
testified that as of the date of the election he had not definitely decided
whether the quality of the work being done by the replacements was
such as to entitle them to permanent employment; he was also unde-
cided as to whether he would rehire the strikers should they apply.
At Warner Bros. Pictures, Inc., there were seven strikers and seven
replacements whose votes were challenged. All the replacements had
'6 Both Solomon and Kegerris have since been replaced.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been transferred from other jobs to jobs as decorators. Tennant C.
Wright, general studio manager, testified that the replacements will
be retained, notwithstanding an application for reinstatement by the
strikers, as long as they perform their work satisfactorily. Albert
Wilson, manager of the decorating department, testified that if the
strikers were available he "would endeavor to try to work out a plan
whereby the strikers would be returned to their jobs, and the replace-
ments would be returned to their respective jobs" as property men, but
indicated that he would not discharge the replacements if this were
necessary to provide jobs for the strikers. Wilson further testified
without contradiction, and we find, that the replacements had told him
"they would be happy to see this situation brought to a successful con-
clusion to the end that the boys that they had worked with for years
could return . . . to their jobs, and they in turn resume their old
places as first company property men." Wilson added, "That to me
personally would be quite agreeable." Shortly after the transfer of
the replacements from the job of property man to that of decorator,
one of the replacements, in the presence of others, sought and received
assurance from representatives of the I. A. T. S. E., which represented
the property men, that his seniority as a property man would be pre-
served in the event he returned to this work. On this occasion, another
replacement stated, according to his testimony,
That I couldn't see any reason to disregard the human element
in this strike, and when men came bar} it might be adverse to
us and our positions . . . that is, between us and the strikers
. . . and for security's sake I felt we should have a contract [as
property men] running for five years at the then existent I. A. T.
S. E. salary scale.
At Republic Productions Inc. there were four decorators who struck
on March 12, 1945. Of the four replacements thereafter employed,
the employment of one, Jasper Cline, was terminated prior to the
election, as heretofore found. Howard A. McDonnell, studio man-
ager, testified with respect to the hiring of replacements that "the
studio policy was to set up a group or staff of interior decorators of
permanent character at the earliest possible date and to retain them as
permanent employees as long as they performed satisfactorily."
John McCarthy, head of the property department, testified as to the
three replacements then employed that if the strike were terminated
at the time of the hearing before the Trial Examiner, he would rein-
state strikers in the place of two," but that he "might retain" the
third.
47 McCarthy also testified that one of these two "might make in time a fair decorator,"
but that he "would be inclined to replace [her] if possible to get another person with ex-
perience." McCarthy stated that he believed that the other "would work into a pretty fair
decorator if he had . . . the experience of decorating a few more pictures "
COLUMBIA PICTURES CORPORATION 519
At Loew's Incorporated, there were 10 striking decorators and 9
replacements whose votes were challenged. Four of the replacements
had been transferred from other work; the remainder were newly
employed. Edwin B. Willis, superintendent of the property depart-
ment, testified that the company will retain the replacements as long
as they perform satisfactory services and that he regarded the re-
placements as employees whom the company would be willing to
retain indefinitely as decorators. At another point in his testimony,
when asked whether he would retain 2 named replacements in the
event of an application by the strikers, he stated: "I want to see how
they work out. I still think they need some time. Whether I would
have that same opinion later I wouldn't know." Shortly after the 2
replacements under discussion had been transferred from the job
of property man to that of decorator, they sought and received assur-
ance from representatives of the I. A. T. S. E., which represented the
property men, that their seniority as property men would be pre-
served.
At Columbia Pictures Corporation the votes of five striking decora-
tors and of five replacements, who had been transferred from other
work, were challenged. Max Schoenberg, head of the property de-
partment, testified that the replacements would be retained as deco-
rators even if the strikers should apply for reinstatement.
At Universal Pictures Company, Inc., there were six striking deco-
rators and six replacements who had been transferred from other
jobs. Russell A. Gausman, manager of the property department,
testified that the replacements would be retained in their jobs, whether
or not the strikers applied for reinstatement.
From the foregoing, and upon the entire record, we find that the
51 persons listed in Appendix B of our Supplemental Decision and
Direction herein, Whose ballots were challenged by the Painters, con-
stituted bona fide replacement employees.48 They therefore were eli-
gible to vote in the election, in accordance with the rule enunciated
in our Decision, Direction of Election, and Order herein.49 Accord-
ingly, we have overruled the challenges of the Painters to their ballots
and have directed that their ballots be opened and counted.
As stated above, it has been, urged that the replacement of the strik-
ers ipso facto deprived them of their employment status and that they
48 N L R B. v Mackay Radio d Telegraph Co , 304 U. S 333 Matter of Republic Steel
Corporation ( 98" Strip Mill) 62 N. L R . B 1008 Compare Firth Carpet Company v.
N L R B., 129 F (2d) 633 (C. C. A 2).
40 We stated • " Our rule, in situations where persons are absent from work because of a
current strike not caused by unfair labor practices , is that both the strikers and the replace-
ment employees are eligible to vote " This rule is based upon our decision in Matter of
The Rudolph Wurlitzer Company, 32 N. L R. B 163, and subsequent cases As previously
stated , we have made no findings herein as to whether or not the strike of the decorators
was caused or prolonged by unfair labor practices and, for the purposes of this decision,
have considered the strike as unrelated to unfair labor practices
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore were not eligible to vote in the election. We find no merit
in this contention. At the time of the election, the dispute between
the striking decorators and the Producers was current. The striking
decorators therefore continued to be "employees," within the mean-
ing of the Act.50 That replacement of striking employees by the
employer's unilateral act cannot, in and of itself, terminate their
employment status is manifest from the Mackay Radio case," in
which the Supreme Court of the United States held that persons who
had struck for reasons unrelated to any unfair labor practices and
who had been replaced by persons to whom the employer had prom-
ised permanent employment "remained employees for the purpose of
the Act."
Nor are we persuaded by the argument that the striking employees
had so little "expectancy" of future employment that they should have
been disfranchised in the election. The language and legislative his-
tory of the Act impel the conclusion, which we reach, that employees
who have ceased to work as a consequence of, or in connection with any
"current labor dispute" shall be permitted to participate in the choice
of a bargaining representative,J2 and we have consistently so held.53
The currency of this dispute at the time of the election, let alone now,
cannot be questioned. The balloting took place only 10 weeks after
the strike began.
But, even aside from this manifestation of the intent of the Con-
gress, we are unable to conclude that these striking employees' expec-
tancy of future employment was so remote or minute as to warrant
withholding from them a voice in the selection of a representative.
In the first place, even if strikers have been replaced by other employ-
ees, it is impossible during the currency of an economic strike to
determine, despite what an employer may predict, whether or not the
strikers will return to their jobs. It is common knowledge that strikes
frequently have been concluded by settlements pursuant to which the
so See footnote 24, supra.
61 See footnote 41. supra See also Matter of Ideal Seating Company, 36 N. L R . B. 166.
51 In addition to the subsections quoted in footnote 24, supra , see Section 9 (c) of the
Act, which provides for the taking of "a secret ballot of employees" to ascertain their statu-
tory representative , and Section 13, which provides that "Nothing in this Act shall be con-
strued so as to interfere with or impede or diminish in any way the right to strike."
With reference to the definition of "employee " in the Act , the Senate Committee Report
(Sell Rep No . 573, 74th Cong ., 1st Sess [ 1935] ) states u
. . The bill thus observes the principle that men do not lose their right to be
considered as employees for the purposes of this bill merely by collectively refraining
from work during the course of a labor controversy . Recognition that strikers may
retain their status as employees has frequently occurred in judicial decisions . . .
To hold otherwise for the purposes of this bill would be to withdraw the government
from the field at the very point where the process of collective bargaining has reached
a critical stage and where the public interest has mounted to its highest point.
ca See Matter of A Sartoraous f Co , Inc, 9 N L R B 19 , 10 N L R B . 493 ; Matter
of The Rudolph IVurlitzer company, 32 N L R B 163, and subsequent cases.
COLUMBIA PICTURES CORPORATION 521
strikers have been reinstated.54 Were we to hold that, during the
height of an economic contest, strikers are ineligible to vote because
they have no expectancy of returning to work, our holding would be
tantamount to a determination that the struggle had been lost by the
strikers. Such a holding assumes a result which is not at all clear
and which in fact is contrary to the very term "current labor dispute."
Although economic strikers certainly have no absolute right to their
jobs, if replaced under the Mackay doctrine, they should be permitted,
while the strike is still current, to select representatives to bargain
with the employer on the question of their possible reinstatement.
The success or failure of such bargaining is not the concern of this
Board, but it is our concern to make certain that the bargaining is not
rendered abortive by denying strikers the opportunity to select a
spokesman. Any other policy would leave them no alternative but
continued use of naked economic power, and would deny recourse to
the peaceful election machinery of the Board at the very moment when
it is most acutely needed.
Secondly, apart from the possibility of settlement of the dispute
by the return of the striking employees to their jobs, there is evidence
indicating that at least some of the strikers will return to work. As
we have previously found, the strikers are highly skilled and experi-
enced employees who comprised a major portion of the decorators in
the motion picture industry. It is true that executives of various of
the Producers testified that it is the policy of those Producers to
retain the replacements as permanent employees, but only so long as
their work is satisfactory. The testimony, previously set forth, of
several of the replacements' immediate superiors, who possess author-
ity to hire and discharge and whose judgment undoubtedly will de-
termine whether or not the replacements have the necessary
sc The Board and the courts have recognized that the jobs of those who replace strikers
are tenuous . In N L . R B. V. Remington Rand, Inc, 94 F ( 2d) 862, the Circuit Couit of
Appeals for the Second Circuit observed • " . . it is probably true today that most
men taking jobs so made vacant realize from the outset how tenuous is their hold." The
Restatement of the Law of Torts ( 1939 ), Section 776 includes within the definition of
"employee" a person who is "on strike ." In the comments on this definition , it is said
. . so long as the strike . . . continues [ the strikers ] retain the priveleges
and liabilities of concerted action by employees. For this purpose a strike does not
necessarily end when the employer fills the places left by the strikers The strike
continues so long as the workers have not abandoned it by taking permanent em-
ployment elsewhere or otherwise , even though the employer has filled their places and
is operating at normal capacity . When workers are still continuing their concerted
strike activities and their efforts to prevent normal operations , their replacement can-
not be regarded as permanent . It is probably true today that most men taking jobs
so made vacant realize from the outset how tenuous is their hold
The validity of these comments is illustrated in the instant case by the evidence, pre-
viously set forth, that certain of the replacements sought assurance that their seniority
rights would be preserved in the jobs from which they had been transferred and that others
had stated to their superior that they desired to see the strikers return to their jobs as
decorators and they , in turn , to their jobs as property men.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualifications, indicates that in several instances the work of the
replacements is not satisfactory or would not be considered satis-
factory were the strikers available for employment. In these cir-
cumstances, it is a reasonable inference, which we draw, that even
if the strike is not terminated under agreement to reinstate the strik-
ing employees, many of them soon will obtain employment by the
Producers upon the termination of the strike.
For the reasons set forth above, and because we have found noth-
ing in the strikers' conduct which gave the Producers' legal justi-
fication to terminate, or to regard as terminated, the strikers' status
as employees by virtue of the Act, we have overruled the challenges
by the Producers and the I. A. T. S. E. to the ballots of the 51 striking
employees whose names are included in Appendix A of our Supple-
mental Decision and Direction and have directed that their ballots,
as well as those of the replacements, be opened and counted.
MR. GERARD D. REILLY, dissenting:
Since that portion of the majority decision which requires the votes
of the discharged strikers to be opened and counted seems to me
contrary to well settled legal principles, I feel constrained to indi-
cate the grounds of my disagreement.
It is true that the Direction of Election in this case did contemplate
that striking employees should be permitted to vote, but it excluded
from the category of eligible voters persons who had quit after the
designated pay-roll date or who had been "discharged for cause." 55
It appears that all of the employees in the appropriate unit who went
on strike were given a written notice of discharge with the exception
of five." The text of these discharge notices makes it clear that these
were discharges for cause unless we can hold that the discharges were
in violation of Sections 7 and 8 of the Act. I do not see how we can
so hold. Even ignoring the technical argument that the unfair labor
practice charges subsequently filed were waived and therefore cannot
be considered in this proceeding, the record itself makes it abundantly
55 "DIRECTED that, . . . elections by secret ballot shall be conducted as early as
possible, . . among the employees in the units found appropriate in Section IV, . . .
who were employed during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during the said payroll period because
they were ill or on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person at the polls, and em-
ployees 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, Illus-
trators & Decoratois, Local 1421, affiliated with The Brotherhood of Painters, Decorators
& Paperhangeis of America, AFL, or by Inteinational Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of the United States and Canada, Local 44,
AFL, or by neither " [Italics supplied.]
Si "You are hereby notified that your employment is terminated. Such action is taken
because of your failure to report for work and perform services in accordance with your
obligations so to do."
COLUMBIA PICTURES CORPORATION 523
clear that the discharged employees are not entitled to affirmative
relief from this Board.
• At the time of the strike, a petition of the Producers and several
petitions of Painters were pending before the Board. Painters,
claiming substantial representation among the decorators , had sub-
mitted its claims to the Board for determination . I. A. T. S. E., like-
wise claiming substantial representation among the decorators, had,
by its petition for leave to intervene, submitted its claims to the Board
for determination. The Producers, without espousing the cause of
either union, had presented these conflicting claims to the Board for
determination in the manner prescribed by the Board's Rules and
Regulations. The Board was employing its processes to determine
the questions thus raised.
Painters , however, was not content to allow the questions to be
determined through the orderly processes of the only governmental
agency empowered to resolve such matters. Notwithstanding it had
invoked the Act and the processes of the Board to determine the ques-
tion, the Painters struck to compel the Producers to recognize it
immediately as majority representative under the Act. Now, after
flouting the same law and processes by its efforts through strike action
designed to compel the Producers also to ignore the Act and the
Board by violating the established law which prohibited the Producers
from recognizing and bargaining with any union as the exclusive rep-
resentative of the decorators while there was pending a very real
question concerning representation over which the Board had as-
sumed jurisdiction and was, at the time, actively investigating by
means of a hearing then in progress-a hearing in which Painters
was an active participant-Painters contends that the strikers were
discharged without cause and, therefore , as strikers are entitled to
cast valid ballots.
Producers state in their brief,
The Producers refused to determine , at their peril , the con-
flicting claims of I. A. Local 44 and Painters Local 1421 as to the
unit in which Set Dressers should be included for purposes of
collective bargaining.
It was Producer 's obligation to take this position and to refuse to
deal with either union as the bargaining representative of the dec-
orators, especially after the petition had been filed, if they hoped to
remain within the law and not be subjected to the remedial processes
of the Act.
In platter of Elastic Stop Nut Corp., 51 N. L. R. B. 694, the Board
entered an 8 (2) cease and desist order largely bottomed on recogni-
tion of one of two contending unions under similar circumstances,
and used the following language :
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A neutral employer, when faced with the conflicting representa-
tion claims of two rival unions, would not negotiate a contract
with one of them until its right to be recognized as the collective
bargaining representative had been finally determined under the
procedures set up under the Act.
In Matter of Phelps Dodge, etc., 63 N. L. R. B. 686, the Board
again enunciated the same principle and held discharges under a
closed-shop contract-extended after maturity to hold over during
representation proceedings-to be in violation of Section 8 (3),
saying:
We are of the opinion that if, during the pendency of an
election directed by the Board to resolve a question concerning
representation, an employer extends or renews an existing con-
tract with a labor organization, or makes a new one, he violates
the Act insofar as that organization is accorded recognition as
exclusive bargaining representative or employees are required
to become or remain members thereof as a condition of
employment.
In Matter of Midwest Piping and Supply Co., Inc., 63 N. L. R. B.
1060, decided September 21, 1945, the respondent executed a union
shop agreement with one of two contending unions while a represen-
tation petition filed by the other union was pending. We said:
The respondent knew, at the time that the contract was exe-
cuted, that there existed a real question concerning the repre-
sentation of the employees in question. The record shows that
both the Steamfitters and the Steelworkers had vigorously
campaigned in the plant, had apprised the respondent of their
conflicting majority representation claims, and had filed with
the Board conflicting petitions, which are still pending, alleging
the existence of a question concerning the representation of the
employees covered by the agreement. In these circumstances,
the Congress has clothed the Board with the exclusive power to
investigate and determine representatives for the purposes of
collective bargaining. In the exercise of this power, the Board
usually makes such determination, after a proper hearing and at
a proper time, by permitting employees freely to select their
bargaining representative by secret ballot. In this case, how-
ever, the respondent elected to disregard the orderly representa-
tvve procedure set up by the Board under the Act, for which
both unions had theretofore petitioned the Board, and to arro-
gate to itself the resolution of the representation dispute against
the Steelworkers and in favor of the Steamfitters. In our
opinion such conduct by the respondent contravenes the letter
COLUMBIA PICTURES CORPORATION 525
,and the spirit of the Act, and leads to those very labor disputes
affecting commerce which the Board's administrative procedure
is designed to prevent.
We further find that the respondent's afore-mentioned con-
duct also constitutes a breach of its obligation of neutrality.
As we have previously held, a neutral employer, on being con-
fronted with conflicting representation claims by two rival unions,
"would not negotiate a contract with one of them until its right
to be recognized as the collective bargaining representative had
been finally determined under the procedure set up under the
Act." Here, the respondent knew that the Board already had
jurisdiction over the existing question concerning the representa-
tion of the employees covered by the contract, and that, in ac-
cordance with its usual practice, the Board would not proceed to
a resolution of that question until it had passed upon the then
pending original complaint herein, hearing on which had already
been concluded. That no unfair labor practices are found herein
on the original complaint does not alter the effect of the respond-
ent's later breach of its neutrality obligation. [Italics supplied.]
The same general rule is inherent in the Board's numerous decisions
that such a contract entered into after representation proceedings
have been instituted, is no bar. See Radio Corporation of America,
63 N. L. R. B. 235; 16 L. R. R. 883.
In Matter of American News Company, Inc., 55 N. L. R. B. 1302,
the protection of the Act was denied discharged strikers who had
sought, by means of their strike, to compel their employer to grant
them a wage increase without the previous approval of the War Labor
Board as required under the Emergency Price Control Act of Jan-
uary 30, 1942, 56 Stat. 24, and the supplementary wage stabilization
legislation of October 2, 1942. In our decision in that case, an ex-
haustive analysis was made of the legislative history of the Act and
numerous decisions of the courts as they pertain to permissible limi-
tations on the protection of "concerted activities," based upon the
lawfulness of their objectives. I find no reason for again exploring
the same ground. However, some of our observations there com-
mand repetition now. Having reviewed the historical background,
we observed :
Mindful of that history, we think it most improbable that the
Congress meant to invest this Board, or the courts in reviewing
our action, with any broad discretion to determine what we or
the courts might choose to consider the proper objectives of
concerted activity. ^ee N. L. R. B. v. Peter Cailler Kohler Swiss
Chocolates Co., 130 F. (2d) 503 (C. C. A. 2). By the same token,
we think it most unlikely that Congress intended to exclude from
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the concerted activities protected by Section 7 all conduct deemed
tortious under state rules of decisions or statutes, or city ordi-
nances, merely because of the objective sought to be accom-
plished. See N. L. R. B. v. Reed & Prince Mfg. Co., 118 F. (2d)
874 (C. C. A. 1), certiorari denied, 313 U S. 595; cf. Allen-
Bradley Local v. Board, 315 U. S. 740: It is quite another matter,
however, to suggest that Congress, either in 1935 or 1942, in-
tended us to ignore the character of a strike knowingly prose-
cuted to compel an acknowledged violation of -an act of the Con-
gress itself. The cases heretofore cited provide compelling sup-
port for this analysis.
Our footnote to the foregoing is also pertinent:
It may be noted that the American Law Institute adopts what
has been referred to as the objectives test with careful limitation
to two situations. IV Restatement of the Law of Torts (1939)
declares:
"§ 794. Object Prohibited by Law. An act by an employer
which would be a crime or a violation of a legislative enactment
or contrary to defined public policy is not a proper object of con-
certed action against him by workers."
"§ 795. Object Prohibited' by Contract. An act by an em-
ployer which workers are, by a collective contract with him,
under a duty not to demand is not a proper object of concerted
action against him by such workers."
In the American News Company case, the strikers were attempting
to force their employer to violate a statute, passed as a war measure
and carrying a heavy fine as a penalty. We held that such "con-
certed action," designed to bring about a violation of an Act of
Congress under which another administrative body of the Govern-
ment functions, could not, in consonance with the orderly administra-
tion of the affairs of Government, be condoned or protected. We
sustained the contention of the employer that those strikers had been
effectively discharged. Here, the conduct of the strikers falls into
the same category.57
67 The majority opinion seems to imply that the strikers were seeking to bring about a
compliance by Producers with the war Labor Board arbitrator ' s award , which Producers
were contending was void for lack of jurisdiction I do not find it necessary to consider the
validity of that award or the question of the arbitrator's jurisdiction , although the subse-
quent course of conduct of the parties makes it clear that all of them recognized that the
war Labor Board had no jurisdiction to pass upon a question , the determination of which
Congress has vested in another agency At the time of the strike , both Producers and
I A T S . E had filed their appeals to the war Labor Board for a review of the arbitrator's
proceedings and award The appeal was then pending and thereby the award was sus-
pended In such state , it conferred no then existing rights on Painters , regardless of the
merits of the claims of lack of jurisdiction . The pendency of the appeal was extended by
the strike and Painters were so notified by the war Labor Board at the same time it
ordered them to resume their work in order to permit that Board , under its consistent
policy, to dispose of the matters on appeal
COLUMBIA PICTURES CORPORATION 527
In its brief, Painters, in commenting on the doctrine of the Amer-
ican News Company case, states :-
This Board held that the purpose of the strike was, in effect,
to compel the employer to violate federal law and hence the strike
was not a "concerted activity" which was protected by Section 7
of the NLRA. The case is inapposite here. The purpose of the
strike here was to obtain recognition and collective bargaining
which the Set Designers (Painters) had been seeking to obtain
without avail for a period in excess of 15 months after they had
obtained 100 percent representation of all the decorators.
* * * That the action in striking for recognition was a con-
certed activity within the meaning of Section 7 is beyond
question.
* * *
The position of the Set Designers as to the reason for the
strike has been constant. It is expressed in the strike notice
which is on file with the Board. The reason : Refusal of
recognition by Producers.
This admission in the Painters' brief reveals that the avowed ob-
jective of the strike was to compel the Producers to commit an act
which we have repeatedly held is an unfair labor practice in direct
contravention of the purposes and provisions of the Act it is our duty
to administer. If we may not ignore strike attempts to compel vio-
lations of other Congressional legislation, it would seem absurd to
deem a strike which had no other purpose than to bring about a vio-
lation of this very statute within the scope of the "concerted activity"
which Congress meant to protect.
The majority's avoidance of what seems to me the inexorable logic
of the decided cases rests in large part upon the assumption that the
Producers' motive for discharging the strikers was not based upon
the American News doctrine. Assuming that this theory is correct,
it nevertheless seems irrelevant in view of the Supreme Court's hold-
ing in the Fansteel decision,5° the leading case on the subject of illegal
concerted activity. In that case, an employer had discharged certain
employees for engaging in an unlawful sitdown strike. It subse-
quently rehired a large number of them, but refused to reinstate cer-
tain persons who had been conspicuous on the striking side. The
Board inferring a discriminatory motive from this circumstance or-
dered reinstatement of all the strikers. The Supreme Court in re-
versing this order held that by their unlawful conduct the strikers
were not entitled to look to a Federal agency for affirmative relief.
"N L It B v Fansteel Metallurgical Corp , 306 U. S 240
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In other words, the decision makes it clear that the motive of an
employer in this kind of situation is not a relevant factor.
I also have difficulty in understanding how the policy of the Act
is promoted by this kind of decision. Since one of the express ob-
jectives of the Act is to promote industrial peace, it would seem to be
our duty to encourage resort to the administrative processes rather
than resort to economic warfare. The practical effect of this deci-
sion accomplishes the very opposite.