Columbia Pictures Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1949

85 N.L.R.B. 1085 (N.L.R.B. 1949)

In the Matter of COLUMBIA PICTURES CORPORATION, PARAMOUNT PIC-
TURES, INC., WARNER BROS. PICTURES, INC., LOEW'S INCORPORATED,
UNIVERSAL PICTURES COMPANY, INC., RKO RADIO PICTURES, INC.,
SAMUEL GOLDWYN PRODUCTIONS, INC.,, REPUBLIC PRODUCTIONS, INC.,
HAL E. ROACH STUDIOS, INC., AND TWENTIETH CENTURY-FOX FILM
CORPORATION, EMPLOYERS and INTERNATIONAL ALLIANCE OF THE-
ATRICAL STAGE EMPLOYEES AND MOTION PICTURE MACHINE OPERA-
TORS OF U. S. & CANADA, PETITIONER
Case No.. 1-R-4006
SUPPLEMENTAL DECISION
AND
DIRECTION
August 31,1949
Pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board on March 9, 1949,2 an election by
secret ballot was conducted by mail during the period from March 24
to April 4, 1949, under the direction and supervision of the Regional
Director for the Twenty-first Region. On April 13, 1949, the Inter-
venor 3 filed its Objections, Motions, and Brief, in which it objected
on various grounds to the Direction of Election, the holding of the
election, and the counting of the ballots 4 On April 28, 1.949, the
Petitioner filed its Motion to Strike the Intervenor's objections, mo-
tions, and brief. On May 4,1949, the parties were served with a. Tally
of Ballots which reflected that there were approximately 44 eligible
voters in the unit, that 51 ballots were cast, and that all 51 ballots were
challenged.
'Pursuant to the combined, unopposed motion of the two companies, Samuel Goldwyn
Productions, Inc., has been substituted as a party herein for Samuel Goldwyn, doing
business as Samuel Goldwyn Studios.
2 81 N. L. R. B. 1313.
3 Brotherhood of Painters, Decorators and Paperhangers of America„ Sefeen Set Design-
ers, Illustrators and Decorators, Local 1421, AFL.
4 The Intervenor also cites as error the alleged action of the hearing officer at the hearing
in this matter in denying the Intervenor's motion to dismiss the petition herein. As the hear-
ing officer did not deny the motion, but referred it to the Board in conformity with Section
203.57 (a) of the Board's Rules and Regulations-Series 5, as amended, this contention
is without merit.
85 N. L. R. B., No. 186.
1085
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 13, 1949, the Regional Director issued and duly served upon
the parties his Report on Challenged Ballots, in which he recom-
mended that the challenges to the ballots of 36 voters, listed in Ap-
pendix A, be overruled, and that the challenges to the ballots of
3 voters, listed in Appendix B, and 6 voters, listed in Appendix
C, be sustained. The Regional Director made no recommendation
with respect to the challenges to the ballots of 6 voters, listed in
Appendix D.
The Intervenor has filed timely Exceptions to the Report on Chal-
lenged Ballots, and the Petitioner has filed an Answer thereto.
Upon the entire record in the case, including the Intervenor's objec-
tions, motions, and brief, the Petitioner's Motion to Strike, the
Regional Director's Report on Challenged Ballots, the Intervenor's
Exceptions, and the Petitioner's Answer,' the Board e makes the
following :
SUPPLEMENTAL FINDINGS OF FACT .
The Intervenor moves for reconsideration of the Decision and Direc-
tion of Election, requests that the election be vacated, and has chal-
lenged 7 the ballots of the 36 voters listed in Appendix A, on the
basis of allegations of coercion which are in substance allegations that
the Employers have committed unfair labor practices. The substance
of these allegations has been made the subject of various charges filed
by the Intervenor, which charges have been dismissed by the General
Counsel." The Board has previously had occasion to consider whether
it might, in a representation case, pass upon allegations of certain
As the afore -mentioned documents adequately present the issues involved herein, the
Intervenor 's request for oral argument is hereby denied.
The Intervenor also moved that the Board disqualify Itself from determining these
matters, because of the alleged bias, prejudice , and pecuniary interest of two present and one
former member thereof. Apart from the clear irrelevancy of such motion as to a former
Board member , we are of the opinion that the motion as to present members is without merit.
T We agree with the Regional Director that the basis for these challenges relates to conduct
affecting the results of the election , rather than to the eligibility of individual voters ;
accordingly, the issues should have been raised by means of objections, rather than chal-
lenges. As the issues were timely raised, however , we shall consider them as if they had
been raised in proper form.
9 The most recent is Case No . 21-CA-255, filed by Intervenor against the Employers. For
the reasons stated in our original Decision ( 81 N. L . R. B. 1313 ), we find to be without
merit the Intervenor 's contention that the pendency of an unfair labor practice charge is
sufficient to prevent the holding of a representation election . Moreover , we are admin-
istratively advised that this charge has been dismissed by the Regional Director , and that
no timely appeal from such dismissal has been taken to the General Counsel.
The Intervenor 's motion that the Board direct the issuance of a complaint in Case No.
21-CA-255, and direct the Regional Director to vacate the dismissals of other charges
previously filed by the Intervenor against the Employers, is likewise denied. As we stated
in our original decision , and as the Intervenor now apparently recognizes , the Board is
without power to direct the issuance of a complaint based upon a charge of unfair labor
practices . Under the amended Act , the General Counsel is the final arbitor, with respect
to the issuance of complaints ; and such refusal to issue complaints is not subject to review
by the Board. Matter of Times Square Stores Corporation, 79 N. L. R. B. 361.
COLUMBIA PICTURES CORPORATION 1087
unfair labor practices, when charges predicated upon such allegations
had been dismissed by the General Counsel.'
In that case, the eligibility of particular strikers to vote in an
election hinged upon the Board's ability to find that they were unfair
labor practice strikers. In determining that it could not, in the face
of the dismissal of the unfair labor practice charges, make such a
finding, the Board stated :10
We are constrained to answer this question in the negative. The
Act, as written, compels this conclusion. To hold otherwise would
not be consistent with the Congressional intent to endow the Gen-
eral Counsel with final authority over the issuance and prosecution
of complaints under Section 10. It would, in addition, create the
undesirable situation of the Board's acting in practice as a forum
for considering the content of charges which the General Counsel,
for reasons satisfactory to himself, has thought it proper to
dismiss.
The Board thereupon concluded that the initial finding as to unfair
labor practices must be made in an unfair labor practice proceeding,
and that, as a finding of unfair labor practices was necessary to a
determination that the strikers were eligible to vote, they must, in
view of the dismissal of the unfair labor practice charges, be deemed
ineligible to vote. Although the situation in this case is not strictly
analogous to the situation in the Times Square case, we believe, never-
theless, that the reasoning of the Times Square case, which caused the
Board to decline to permit a representation case to be used as a forum
for trying unfair labor practice charges which the General Counsel
has declined to prosecute, is equally applicable here. Accordingly, we
hereby overrule the Intervenor's objections and challenges with re-
spect to those matters, and deny its motion for reconsideration and
further hearing and its request that the election be vacated.. We shall
direct that the ballots of the 36 voters listed on Appendix A be
opened and counted, and that a Supplemental Tally of Ballots be
prepared and served upon the parties.
The Intervenor has excepted to the Regional Director's recommenda-
tion that the challenges to the ballots of the' three voters listed in
Appendix B, whose names did not appear on an appropriate pay
roll, be sustained; the Intervenor claims that an unfair labor practice
hearing is necessary to determine whether these. three voters were
discriminated against. The Intervenor has also excepted to the
failure of the Regional Director to make a recommendation with re-
9 Matter of Times Square Stores Corporation, 79 N. L. R. B. 361.
10 Ibid.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spect to the ballots of the six voters listed in Appendix D, all of
whom were named in the charges filed in Case No. 21-CA-255; 11 in this
connection, the Intervenor contends that the names of these six voters
did not appear on an appropriate pay roll solely because of discrimi-
nation on the part of the Employers. For the reasons stated here-
inbefore, we find these exceptions to be without merit.12 The exceptions
are hereby overruled, and the challenges to the ballots of the voters
listed in Appendix B and Appendix Dare sustained.
As no exceptions have been taken to the Regional Director's recom-
mendation that the challenges to the ballots of the six voters listed
in Appendix C be sustained, we hereby adopt such recommendation
and sustain these challenges.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employers, the Regional
Director for the Twenty-first Region shall, pursuant to the Rules and
Regulations of the Board, within ten (10) days from the date of this
Direction, open and count the ballots of the voters listed in Appendix
A attached hereto, and thereafter prepare and cause to be served
upon the parties a Supplemental Tally of Ballots, including therein
the count of said challenged ballots.13
CHAIRMAN HERZOG took no part in the consideration of the above
Supplemental Decision and Direction.
APPENDIX A
James Altwies
John P. Austin
Sidney Clifford
James Crawe
Louis Diage
Ross Dowd
Grace Gregory Dunckel
Oliver L. Emert, Jr,
Al Fields
Paul Fox
Henry W. Grace
Dertram Granger
Julia Heron
George J. Hopkins
Hugh Hunt
Ralph S. Hurst
William Kiernan
Arthur Kramrs
Emile Kuri
Ruby R. Levitt
11 See footnote 8, supra.
"See also, Matter of Bauer-Schweitzer Hop t Malt Co., 78 N. L. R. B. 327, 332, and
Matter of The Kinsman Transit Company , 78 N. L . R. B. 78, 81.
13 The compliance status of the Intervenor has lapsed since the election was held in this
proceeding . In the event the Intervenor secures a majority of the votes counted pursuant
to this Direction, but has failed to renew its compliance with Section 9 (h), the Regional
Director shall advise the Board to that effect. and no certification shall issue in favor
of the Intervenor unless and until compliance has been renewed.
COLUMBIA PICTURES CORPORATION 1089
Fred R. MacLean
Edward H. Miller
R. J. Mills
George Milo
George S. Montgomery
Jack D. Moore
Paul R. Moyer
Richard Pefferle
James S. Redd
Fred J. Rode
Walter M. Scott
Alfred E. Spencer
William Stevens
Charles Thompson
Frank A. Tuttle
Howard Winterbottom
APPENDIX B
Joseph Kish
Ernest Lansing
George Elwin Sawley
APPENDIX C
George W. Brentsen
L. S. Edwards
C. S. Friend
William L. Kuehl
Lyle B. Reifsnider
William G. Wallace
APPENDIX D
James Buckley Thomas Oliphant
Eugene Ceder Leigh Smith
William Magginetti Walter Tilford