Directors Guild of America, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1972

198 N.L.R.B. 707 (N.L.R.B. 1972)

DIRECTORS GUILD OF AMERICA, INC. 707
Directors Guild of America, Inc. (Association of
Motion Picture & Television Producers, Inc.) and
Milton L. Trager and Association of Motion
Picture and Television Producers , Inc., Party to the
Contract. Case 31-CB-355
August 4, 1972
DECISION AND ORDER
On September 14, 1971, Trial Examiner Allen
Sinsheimer, Jr., issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed cross-exceptions and a supporting brief.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm only so much of that
Decision as is consistent with this Decision and
Order. We find no error, however, in his rulings on
evidentiary or procedural matters.
The Trial Examiner found it unnecessary to
determine whether or not the Respondent Union was
a labor organization. He further found that the
position for which Trager, the alleged discriminatee,
applied was supervisory and, therefore, the discrimi-
nation did not fall within the scope of the Act. We do
not agree. As will appear below we find the position
of second assistant director to be nonsupervisory and
since a substantial number of second assistant
directors participate in and are represented by the
Respondent Union it is clear that the Respondent
Union is a labor organization within the meaning of
Section 2(5) of the Act.
The Trial Examiner based his finding that second
assistant directors were supervisors within the mean-
ing of the Act on a number of factors which he found
that, "taken together and in total context," were
sufficient to confer supervisory status upon them.
These factors consisted of the functions performed
by second assistant directors with respect to the
employing and laying off extras; negotiating adjust-
ments of the pay received by extras; seeing that
extras were in place when needed; handling requests
for breaktime and time off by extras; making
arrangements to get extras and other personnel and
necessary equipment to the proper location; taking
over the functions of first assistant directors in their
absence; participating in management conferences;
and the arranging and executing the background on
the set.
It is evident from the factors relied on by the Trial
Examiner that the principal indicia of supervisory
status are to be found in the relationship between the
second assistant directors and extras. But the record
will not support the conclusion that the seconds' and
the extras stand in the proximate relationship of
supervisors and employees. Thus, extras are general-
ly hired through the casting departments or agencies
and, unless a specific type or specific person is
needed, they select the extras to be hired. And even
in those instances where a specific type or person is
required the seconds are merely following the
requirements imposed by a script and are not
exercising independent judgment in determining the
qualifications of individuals to perform the work. In
like vein, the retention of extras for the next day's
work is largely determined by the demands of the
script and the seconds seldom have the opportunity
to select extras because, in their judgment, one extra
is performing the work better than another. Although
there are, of course, deviations from this modus
operandi because of the wide variety of producing
companies and methods of operation in the industry,
it is apparent that, in general, the seconds have little
opportunity to exercise discretion or judgment in the
hiring or retention of extras.
In finding seconds to be supervisors the Trial
Examiner also relied on the adjustment of the pay of
extras by the seconds. These adjustments in pay are
made for the performance of work beyond the
normal function of an extra. Thus, an extra might be
entitled to additional pay for falling off a horse and
he initially negotiates the matter of payment with the
second. The record indicates, however, that many of
the activities for which additional compensation is
paid are provided for by the collective-bargaining
contract or by general practice in the industry and
that in making adjustments the seconds' authority is
limited by the previous fixing of the amount of
additional pay a second may grant. The record also
discloses that the additional pay generally must be
approved by the seconds' supervisor, the first
assistant director, and that the first also mediates
disputes between the seconds and the extras when
they are unable to reach agreement. We cannot
conclude, under these circumstances, that the sec-
onds exercise the independent judgment contemplat-
ed by the Act in making adjustments in pay.
The seconds' duties with respect to having the
extras in their proper place when needed, making
arrangements for personnel and equipment to be at
the proper location at the time specified, and the
granting of breaktime and time off to extras appear
to us to be nothing more than responsibility for
notification to extras and other personnel as to the
time and place where they are required to perform
their services and the organization of transport and
1 The second assistant directors will frequently be referred to herein as
seconds and the first assistant directors as firsts
198 NLRB No. 103
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other facilities to enable them to do so. There is little
evidence in the record that the seconds exercise
disciplinary powers over the extras and others to
their superiors. We do not regard the performance of
these tasks as falling within any of the indicia of
supervisory status contained in the statute.
In finding that seconds are supervisory employees
the Trial Examiner also relied on the seconds'
participation in the execution and arrangement of
the background of the set. It is true, as the Trial
Examiner found, that the seconds do, at times, direct
the extras in their performances on the set. But, as he
also found, the directions given by a second are
subject to the approval of his supervisor, the first
assistant director, and that changes in the seconds'
directions may be made by either the first or, in some
instances, by a cameraman. The direction of employ-
ees which is thus so closely scrutinized and super-
vised by a superior does not meet the "responsibly to
direct" requirement of Section 2(11) of the Act.
The Trial Examiner also relied, in part, upon the
fact that a second sometimes replaces the first when
the latter may be attending a conference with a
director, eating lunch, or is absent for other reasons.
Other than generalized statements such as being "in
full charge of the crew" there is little evidence in the
record to indicate precisely what duties are per-
formed by a second during the periods that he may
replace a first. Clearly the first is not always
performing the duties of a supervisor and without
some proof that the seconds regularly perform duties
supervisory in nature we cannot rely on their
replacement of firsts for brief periods of time as a
factor in determining their supervisory status.2
We have thus considered the duties of the second
assistant directors which led the Trial Examiner to
find them to be supervisors and we conclude that the
evidence does not justify his finding. It may well be
that second assistant directors do, from time to time,
perform functions which are supervisory, dependent
on their experience and the responsibilities conferred
upon them by a particular director as first assistant
director. But basically the position is administrative
or clerical in nature and the record is wanting in
evidence to show that the supervisory duties are
performed regularly or extensively by the second
assistant directors. We therefore conclude that the
second assistant directors are not supervisors and are
entitled to the protection of the Act.
Although he found that second assistant directors
were supervisory and thus did not fall within the
protection of the Act, the Trial Examiner assumed
arguendo that second assistant directors were em-
ployees for the purpose of considering the legality of
the roster and interchange provisions of the contracts
between the Association of Motion Picture and
Television Producers and the Respondent Union and
some independent motion picture producers and the
Respondent Union . He concluded that the roster and
interchange provisions as interpreted and applied by
the parties were, in general, valid under the Act. He
further found , however , that as applied to the
Charging Party in this case he would have found a
violation of the Act under the Board 's "Miranda
concept" had he found second assistant directors to
be employees .3 The General Counsel has excepted to
the Trial Examiner 's finding that the roster and
interchange provisions are valid under the Act. We
find merit in these exceptions.
The roster provisions provide , insofar as pertinent
herein , that the employer shall give preference to
persons on the Industry Experience Roster in hiring
first and second assistant directors . They further
provide that if no person on the roster is available the
employer may employ others not on the roster and
that such other persons may be added to the roster
after working 90 days as an assistant director. There
is also a training program , jointly administered by
the Association and Respondent Union, which
permits a relatively small number of trainees to
become second assistant directors after completing a
training program . The roster , by agreement of the
parties, is administered by the Employer Association
but the Respondent Union retains the right to protest
the placement of an individual if it does not believe
him to be eligible . Such a protest would ultimately be
decided under the grievance procedure provided for
in the contract.
An industry experience roster has also been
established for unit production managers with
provisions governing placement on the roster similar
to those prescribed for the roster of first and second
assistant directors . Thus the employers signatory to
the contracts are required to give preference in
employment to individuals on the roster but are
permitted to hire other persons if no one on' the
roster is available . And if those persons hired
because no one on the roster is available are
employed for 90 days or more under the contract
they are eligible for placement on the Unit Pro-
duction Manager Roster.
There are also provisions for interchange between
assistant directors and unit production managers.
Assistant directors , both first and second , may serve
2 The Trial Examiner also relied on attendance at management below, we find the roster and interchange provisions as interpreted and
conferences as an indicia of the supervisory status of seconds We are applied to be invalid we do not pass upon the Trial Examiner 's conclusions
unable to find evidence in the record to support this finding. with respect to the Miranda case.
3 Miranda Fuel Company, Inc, 140 NLRB 180 Because , as appears
DIRECTORS GUILD OF AMERICA, INC.
as unit production managers. Unit production
managers, however, must serve in that capacity for a
period of 4 years before becoming eligible for
employment as either a first or second assistant
director.
The parties stipulated at the hearing that the
contracts had been interpreted and applied by the
Association, with the knowledge of the Respondent
Union, to require that the experience necessary to
obtain placement on the roster must be acquired with
employers who are signatories to the contracts. Thus,
a prospective employee of a signatory can be utilized
as a second assistant director only if he has obtained
his qualifying experience with other employers who
themselves are contractually bound to employ
individuals on the rosters.
The operation of the roster provisions, and the
illegality under our statute of the interpretation and
application of them by the parties, is illustrated by
the treatment accorded Milton Trager, the Charging
Party in the instant case . On January 10, 1966,
Trager submitted an application to the Employer
Association, which administers the roster provisions,
requesting that he be placed on the Industry
Experience Roster for assistant director, first or
second, and unit production manager. He also
submitted with his application documents to support
his position that he had the necessary experience to
comply with the requirements of the roster provisions
of the Respondent's contract with the Association.
Trager was apparently placed on the roster by the
Association as a unit production manager but
without right of interchange as an assistant director.
The Respondent Union also registered an objection
to his placement on the roster at this time. Thereaft-
er, Trager spent the next 22 months attempting, at
interviews and meetings with officials of both the
Association and the Respondent Union, to prove
that he was entitled to interchange to assistant
director. The Respondent Union remained adamant
in its position that Trager did not have the 4 years'
experience as a unit production manager necessary
to make him eligible for interchange to assistant
director' required by the roster provisions of the
contracts. On November 16, 1967, Trager therefore
requested arbitration as provided for in the contracts.
On December 5, 1967, an arbitration hearing was
held. In accordance with the contract, the hearing
was conducted by Alfred Chamie, general counsel of
the Employer Association. At the hearing Trager
again submitted his evidence that he had obtained
the requisite experience under the contract provi-
sions. At the hearing Chamie suggested that there
might be a way to get Trager on the roster if the
709
Respondent Union would withdraw its objection.
The Respondent Union refused to do so, however,
and again refused to accept Trager's record of past
employment as qualifying, primarily because it was
not with employers who were signatories of the
Respondent Union's contracts. Chamie, in his
decision, deferred to the Respondent Union's posi-
tion and found that Trager could not be accorded the
right of interchange to assistant director because he
did not have 4 years' "appropriate" experience as a
unit production manager.
The Trial Examiner found, and the record fully
supports his finding, that the documentation submit-
ted by Trager proved that he had served in the
capacity of unit production manager for a period
substantially in excess of the 4 years' experience
required for a unit production manager to acquire
the right under the contract to interchange as an
assistant director. He was, therefore, fully justified in
his conclusion that, had not the Respondent Union
insisted that work experience be with employers
signatory to its contract, Trager's application could
not have been validly rejected.
It is clear from the above recital of the facts that
the Respondent Union prevented Trager from
obtaining employment as an assistant director
because he had not engaged in union activities in the
past by obtaining his work experience with employ-
ers who were signatories to contract with the
Respondent Union. We have recently considered
roster provisions imposing such conditions in Inter-
national Photographers of the Motion Picture Indus-
tries, Local 659 of the IATSE,4 and found the roster
provisions , as so interpreted and applied , to be an
invasion of the undoubted right of employees under
Section 7 of the Act to refrain from union activities.
We find no significant difference between that case
and the one now before us. We therefore find, for the
reasons stated in that case , that the Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act
by the illegal application of the roster provisions of
its contracts to Trager's application for placement on
its rosters.
THE REMEDY
In order to effectuate the policies of the Act, it is
found necessary that Respondent cease and desist
from the unfair labor practices found and from any
other invasions of the employees' Section 7 rights;
take certain affirmative action , including making
whole Milton L. Trager with backpay computed on a
quarterly basis, plus interest at 6 percent per annum,
as prescribed in F. W. Woolworth Company, 90
4 197 NLRB No. 134.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716; and post appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Directors Guild of America, Inc., Los Angeles,
California, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Applying its collective-bargaining contracts
with the Association of Motion Picture and Televi-
sion Producers, Inc., its member-employers, or
nonmember-employer outside the Association, in
any manner which discriminates against any employ-
ee with respect to his initial employment and/or
placement on the Industry Experience Roster on the
basis of union representation.
(b) In any like or related manner discriminating
against employees because of experience gained in
the industry while not represented by Respondent.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Notify all employers against whom it applies
the Industry Experience Roster seniority provisions
that it will cease applying such provisions in a
manner that discriminates against any employee with
respect to his initial employment and/or placement
on the Industry Experience Roster on the basis of
union representation.
(b) Make whole Milton L. Trager for any loss of
pay he may have suffered by reason of Respondent's
interpretation and application of the seniority provi-
sions of the Industry Experience Roster, such loss of
earnings to be computed in the manner set forth in
the section entitled "The Remedy."
(c) Post at Respondent's business offices and
meeting places copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Promptly, after receipt of copies of the said
notice from the Regional Director, return to him
signed copies for posting by all employer-members of
the Association of Motion Picture and Television
Producers, Inc., and all other employers against
whom Respondent has applied the seniority provi-
sions of the Industry Experience Roster, if they be
willing, at their places of business, including all
places where notices to employees are customarily
posted.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
° POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and we intend
to carry out the order of the Board and abide by the
following:
WE WILL NOT apply our collective-bargaining
agreements with the Association of Motion
Picture and Television Producers , Inc., its em-
ployer-members, or nonmember-employers out-
side the Association in any manner which
discriminates against any employee with respect
to his initial employment and/or placement on
the Industry Experience Roster on the basis of
union representation.
WE WILL NOT in any other manner restrain or
coerce you in the exercise of the rights guaranteed
in the National Labor Relations Act, which are as
follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection and
To refrain from any and all of these
things.
WE WILL make whole Milton L. Trager, with
interest, for any loss of pay he may have suffered
by reason of the discrimination against him.
DIRECTORS GUILD OF
AMERICA, INC.
(Labor Organization)
Dated By
(Representative) (Title)
DIRECTORS GUILD OF AMERICA, INC. 711
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7352.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Trial Examiner: This proceeding
was heard before me in Los Angeles, California, on
January 12, February 8-12, 19, and 22-26, 1971, upon a
complaint issued November 12, 1970, and a timely answer
of Directors Guild of America, Inc., herein called Respon-
dent.' The complaint alleges a violation of Section
8(b)(1)(A) and (2) of the Act in that Respondent and
named employers have interpreted and applied certain
"Roster and Interchange Provisions" (set forth in the
complaint) so as to "have established and given effect to an
arrangement, understanding or practice which gives
employment preference to individuals based on their
having worked for employers signatory to contracts with
Respondent." The complaint further specifically alleges
violation of Section 8(b)(1)(A) and (2) of the Act by
Respondent's allegedly causing the Association of Motion
Picture and Television Producers, Inc., herein called
Association, to refuse to grant Milton Trager "Interchange
rights and to refuse to place him on the first assistant
director's roster notwithstanding that under the Inter-
change and Roster Provisions [described in the complaint l
Trager's experience with employers not signatory to
contracts with Respondent entitled him to Interchange
rights and to be placed on the roster for first assistant
director."
Upon the entire record, including the oral argument of
the General Counsel and the Charging Party and the brief
filed by the Respondent, and upon my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF AFFECTED EMPLOYERS
administering multiemployer collective-bargaining agree-
ments on behalf of its employer-members with the
collective-bargaining representatives of their employees
including Respondent.
The parties further stipulated that the employer-mem-
bers of the Association signatory to contracts with
Respondent annually, in the course and conduct of their
business operations, collectively sell and ship from their
studios in California goods valued in excess of $50,000
directly to points outside the State of California.
The record also establishes that there are approximately
67 or 69 members of the Association at the present time.
There are also numerous other employers signatory to
contracts with the Respondent having substantially similar
terms and conditions as the Association contract. The
parties stipulated and I find that the Association and its
employer-members are now and at all times material have
been employers engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act .2
II. THE LABOR ORGANIZATION INVOLVED
The Respondent denies that it is a labor organization
within the meaning of the Act , asserting that all of its
members are supervisors . Since I am resolving this matter
on other grounds , I deem it unnecessary to determine
whether or not the Respondent is a labor organization
within the meaning of the Act.3
III. THE UNFAIR LABOR PRACTICES
A. The Complaint
The complaint as previously set forth alleges violation of
Section 8(b)(1)(A) and (2) by the Respondent. The
following paragraphs of the complaint are set forth
verbatim:
6. At all times material herein Respondent and
employer-members of the Association were parties to
separate but identical collective-bargaining agreements
effective from May 1, 1964, through April 30, 1968,
covering a multiemployer bargaining unit, and herein
called the Basic Agreement.
7. At all times material herein, Article VII of the
Basic Agreement described in paragraph 6 above,
contained the following provisions in Section B(1)
herein called the Interchange Provisions, and in Section
B(13) herein called the Roster Provision:
The parties stipulated that the Association of Motion
P:eture and Television Producers, Inc., is an employer
association with its principal office in Hollywood, Califor-
nia, which admits to membership firms engaged in motion
picture and television film production and which exists in
part for the purpose of negotiating, executing, and
I The charge was filed on April 3, 1968.
2 This does not mean that the other employer signatories to contracts
with the Respondent containing substantially similar provisions are parties
to a multiemployer contract as set forth hereafter . There was no such
contention herein and except for the Association members are considered as
individual employers.
3 Such resolution would entail considering a number of job classifica-
tions. One of these , namely second assistant director, is considered in detail
post. I am finding the position to be supervisory under the Act and
recommending dismissal of the complaint on that basis. In the event second
assistant directors were to be found to be employees, then since they
constitute a substantial part of Respondent's membership, a finding that
Respondent was a labor organization would follow.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE VII
Minimum Salaries and Working Conditions of Unit
Production Managers and First and Second Assistant
Directors
s s s s s
SECTION B : WORKING CONDITIONS
1. Interchange
(a) Interchange of Classifications: Nothing herein
shall prevent unit Production Managers or First or
Second Assistant Directors from being interchanged, or
from accepting employment in other capacities, at
prevailing rates of such other classifications. A Second
Assistant Director with less than eighteen months'
experience in the motion picture industry as a Second
Assistant Director shall not be elevated to a First
Assistant Director during such first eighteen months,
except in case of an emergency in which event the
Guild shall be notified as soon as practicable (such
eighteen months shall commence with the date of his
first employment as a Second Assistant Director). Any
Second Assistant Director may be elevated to Unit
Production Manager, in which event the time any such
Second Assistant Director has worked in the motion
picture industry as a Second Assistant Director shall
apply not only towards the eighteen months of
experience referred to above, but as well towards the
period he would otherwise have to work as a unit
Production Manager before becoming eligible to work
as a First Assistant Director. Any First Assistant
Director who hereafter becomes a Unit Production
Manager may perform services either as a Unit
Production Manager or as an Assistant Director. Any
Unit Production Manager who has been employed as such
in the motion picture industry for at least four years, may
perform services either as a Unit Production Manager or
as an Assistant Director. [Emphasis supplied.]
Unless it is agreed upon at the time of hiring, an
employee hired as a First Assistant Director or Unit
Production Manager need not later accept an assign-
ment as a Second Assistant Director during the said
employment and his refusal to do so shall. not
constitute quitting.
Employees initially assigned on a particular picture
by an Employer in a capacity other than a Director,
Unit Production Manager (who is interchangeable with
an Assistant Director, as provided above) or Assistant
Director shall not later be assigned on such picture by
Employer as Director or Assistant Director except in
the case of a bona fide emergency, in which event the
Guild shall be notified as soon as possible.
13. Industry Experience Roster; Trainee Program
and Trust Fund
(a) Employer shall establish an Industry Experience
Roster for Assistant Directors composed of those
qualified and available persons who, as of May 1, 1964,
a) have had experience as First or Second Assistant
Directors in the production of Theatrical or Television
Motion Pictures with Employers in Los Angeles
County, California; or b) are Unit Production Manag-
ers eligible for employment as Assistant Directors
pursuant to Section B 1 of this Article VII. Additional
persons shall be added to said roster as provided in
subparagraph (b) of this paragraph 13 and as provided,
with respect to Unit Production Managers who become
eligible for employment as Assistant Directors, pur-
suant to Section B 1 of this Article VII.
In the employment of First or Second Assistant
Directors, Employer shall give preference of employ-
ment to qualified and available persons on said
Industry Experience Roster; or who are hereafter
added to the roster as provided in the preceding
subparagraph; provided, however, that Employer may
nevertheless employ Trainees pursuant to the provi-
sions of subparagraph (b) of this paragraph 13. In the
event there are no available qualified persons on said
Experience Roster Employer may employ First or
Second Assistant Directors from any source. Persons so
employed may be added to the Roster by Employer
after they have worked for Employer an aggregate of
90 work days after May 1, 1964, as an Assistant
Director.
8. At all times material herein, Respondent and
various independent motion picture industry employers
in Los Angeles County, California, have been parties to
separate but identical collective-bargaining agreements,
herein called the Independent Supplement, covering
single employer units, which agreements incorporate by
reference the basic agreement described in paragraph 6
above except as specifically supplemented and modi-
fied.
9. At all times material herein, the Independent
Supplement described in paragraph 8 above, has
modified the Roster and Interchange Provisions of the
Basic Agreement as follows:
ARTICLE VII
SECTION B: WORKING CONDITIONS
1. Interchange
The third paragraph of subparagraph (a) of Section
B(l) of Article VII of said Directors Basic Agreement
of 1964 shall be, and the same hereby is, deleted in its
entirety, and there shall be substituted in lieu thereof
the following:
Employees initially assigned on a particular
picture by an employer in a capacity other than a
Director or Assistant Director shall not later be
assigned on such picture by Employer as a
Director or Assistant Director except in the case
DIRECTORS GUILD OF AMERICA, INC. 713
of a bona fide emergency, in which event the
Guild shall be notified as soon as possible.
13. Industry Experience Roster; Trainee Program
and Trust Fund
qualified persons on said Industry Experience Roster,
Employer may employ Unit Production Managers
from any source. Persons so employed may be added to
the Unit Production Manager Roster by the Employer
after they have worked for Employer an aggregate of
90 work days after November 28, 1966 as a Unit
Production Manager.
Paragraph 13 of Section B of Article VII of said
Directors Basic Agreement of 1964 shall be, and the
same hereby is, amended by adding to subparagraph
(a) of said Paragraph 13 a new subparagraph as
follows:
(a) Employer shall establish an Industry Experi-
ence Roster for Unit Production Managers
composed of those qualified and available per-
sons who, as of May 1, 1964, a) have had
experience as Unit Production Managers in the
production of Theatrical or television Motion
Pictures in Los Angeles County, California, or b)
are Assistant Directors eligible for employment as
Unit Production Managers hereunder.
In the employment of Unit Production Managers,
Employer shall give preference of employment to
qualified and available persons on said Industry
Experience Roster. In the event there are no
available qualified persons on said Industry
Experience Roster, Employer may employ Unit
Production Managers from any source. Persons
so employed may be added to the Roster by
Employer after they have worked for Employer
an aggregate of 90 work days after May 1, 1964,
as a Unit Production Manager.
10. On or about November 28, 1966, Respondent
and the Association amended the Basic Agreement as
follows:
1. Article VII, Section B of such Basic Agreement
is hereby amended to add the following subparagraph
which shall read in its entirety as follows:
13A. Unit Production Manager-Industry
Experience Roster; Trainee Program
(a) Employer,' shall establish an Industry Experience
Roster for Unit Production Managers composed of
those qualified and available persons who (i) as of
November, 28, 1966, have had experience as Unit
Production Managers in the production of Theatrical
or Television Motion Pictures with Employers in Los
Angeles County, California, or (ii) are Assistant
,Directors eligible for employment as Unit Production
Managers pursuant to Section B 1 of this Article VII.
Additional persons shall be added to said roster as
provided in this paragraph 13A.
(b) In the employment of Unit Production Manager,
Employer shall give preference of employment to
qualified and available persons on said Unit Pro-
duction Manager Industry Experience Roster or those
who are hereafter added to said roster as provided in
this paragraph 13A. In the event there are no available
s s s s s
2. Article VII, Section B 1. (a) of the Basic
Agreement is amended to provide that a Unit Pro-
duction Manager who on November 28, 1966 is not on
the Assistant Director's Industry Experience Roster
must be employed as a Unit Production Manager in the
motion picture industry in Los Angeles County,
California, for at least four years on and after
September 15, 1964, before he may be added to the
Assistant Director's Experience Roster or be inter-
changed as an Assistant Director.
The Respondent in its answer admits the allegations of
paragraph 6, set forth above, that the basic agreement
contains the provisions set forth in paragraph 7, admits the
allegations of paragraph 8, admits the provisions set forth
in paragraph 9 of the complaint are contained in the
Independent Supplement , and admits that the provisions
set forth in paragraph 10 of the complaint are contained in
the Basic Agreement as amended. The parties stipulated at
the hearing that:
At all times material herein Respondent has had
knowledge that the Association of Motion Picture and
Television Producers, Inc., has interpreted and applied
the roster and interchange provisions described in
paragraph 7 through 10 of the Complaint herein so as
to place on said roster and grant interchange rights to
only those persons who had worked for employers who
have collective bargaining agreements with Respondent
and in accordance with this interpretation the only
workdays counted for the purpose of qualifying for the
placement on the said roster are those worked for
employers who are party to such collective bargaining
agreements.
B. The Issues
The principal issues are:
1. Whether Respondent is a labor organization which,
as set forth supra, I find unnecessary to determine.
2. Whether or not the position of second assistant
director is a supervisory position. If it is such, there would
appear to be no predicate for the instant complaint, while
if it is not, there may or may not be a valid basis for the
complaint.
3. Whether or not the roster system and interchange
provisions set forth in the contracts between the Respon-
dent and the Association and/or individual employers are
valid as interpreted and applied.
(a) One question is whether or not roster and/or
interchange provisions such as herein contained and
applied and interpreted may be valid.
(b) A second question is whether the interchange
provisions herein involved with respect to unit pro-
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction managers are justifiable and valid under all of
the circumstances.
(c) A third question may be whether the interchange
provisions relating to unit production managers and
assistant directors were properly applied to Milton
Trager and if not, what the effect thereof would be.
4. Paragraph 3 (c) above also may raise a question of
whether or not the Respondent's conduct with respect to
Milton Trager was in violation of the Miranda doctrine as
enunciated by the Board.
C. Initial Discussion
Since about 1944, Milton Trager has worked in the
motion picture industry in various positions commencing
with accounting and cost control accounting, and subse-
quently as a unit production manager and in other
capacities . According to Trager, about 1950 he first
performed the functions of a unit production manager.
Prior to the latter part of 1966, Trager had not worked as
either a first or second assistant director.
On January 10, 1966, Trager sent a letter, attention of
Mr. Batchelder, to the Association of Motion Picture and
TV Producers, Inc., which was received January 13, 1966.
The letter was accompanied by a registration form for the
industry experience roster and certain other documents
relating to Trager's experience. The letter referred to
Trager's experience as a unit production manager, stated
he had applied for membership in the Respondent as early
as March 14, 1965, and had been proposed for membership
by an employer, Talent Associates, but had not received
his card. Trager then stated that according to his
interpretation of the contract, "I am entitled to be on the
industry roster as a unit production manager as well as a
first assistant director." The attached application form was
headed, "Registration for assistant directors experience
roster." Under the heading, "I have worked as a First
Assistant Director or a Unit Production Manager in the
motion picture industry on or before May 1, 1964, as
follows:" were listed under "Name of Company Screen
Televideo From 2/55 To 5/55" and "National Broadcast-
ing Co. From 2/1/59 To 5/1/64" and under "Position
(Specify whether 1st Asst. 2nd Asst. or Unit Prod. Mgr.)"
Trager listed, "Unit Production Mgr."
The application was filed with the Association because
the Association maintained the official roster. Ben Bat-
chelder, who was administrative assistant to Charles Boren,
executive vice president of the Association, was in charge
of the roster during the period involved. Batchelder made
the determination as to the qualifications of the particular
individual usually based on information supplied by
employers as to work performed. The necessary qualifying
experience had to have been acquired in employment for a
signatory to a contract with Respondent. If the Respondent
did not believe an individual was entitled either to be
placed on the roster in any category or to have the
interchange which he requested, then it could protest such
placement or interchange. After Batchelder made a
determination, an appeal could be taken therefrom to and
a hearing held before Alfred Chamie, general counsel of
the Association, who functioned as the final arbiter. From
1964 to about November 28, 1966, there was no separate
roster specifically provided for umt production managers
(who were not interchangeable as assistant directors), but
there was a roster of first assistant and second assistant
directors. On that roster there was indicated through the
number L-4 those unit production managers who could be
employed as unit production managers but did not have
the right of interchange as assistant directors.4
Batchelder, after examining the documents and consider-
ing the matter, determined that Trager should be placed in
the category of L-4 on the then-roster of first and second
assistant directors which meant that Trager could be
employed only as a unit production manager . There is
some conflict in testimony as to what Trager was told at
the time. Trager testified that about mid-February 1966 he
was told by Batchelder that he had been placed on the first
assistant directors' roster as of February 7, 1966. However,
Batchelder denied making such a statement and testified
that he had placed Trager on the roster as L-4, indicating
employment only as a unit production manager. I do not
consider that resolution of this would be dispositive of the
issues herein.
As set forth, Batchelder testified that sometime prior to
receipt of a letter from Respondent, dated February 25,
1966, that Trager had been placed on the roster in the L-4
category. Apparently this was predicated on his having
worked as a unit production manager for Screen Televideo
which was a signatory. On February 25, 1966, the
Respondent sent a letter to the Association (attention of
Batchelder), which was received March 2, 1966, stating
that Respondent was informed that Trager was seeking to
be placed upon the assistant directors' industry experience
roster and was informed and believed that Trager lacked
the requisite experience to be placed on the roster and
Respondent desired to challenge the application. The letter
asked that Trager be so notified and that arrangements be
made for him to supply the necessary proof and if a
hearing were to be held, that he be notified.
According to Trager, the next conversation of signifi-
cance he had was with Abrams, a representative of
Respondent, who looked up his experience in the Guild
files and said_ that his card was marked L-4, which
indicated less than 4 years' experience. Trager said he told
Abrams this didn't agree with what Batchelder had told
him. Trager said he then saw Batchelder again and
reminded him that he had told him that he was oii the first
assistant directors' roster as of February 7, but, that
Abrams had shown him a card marked L-4. Batchelder,
according to Trager, checked and took out a card which he\.
told Trager did say L-4 and was dated February 8.
According to Trager, he asked Batchelder what that meant
and Batchelder told him L-3 meant more than 4 years'
experience and L-4 meant less than 4 years' experience. As
discussed more fully hereafter, the contracts as interpreted
4 This refers to automatic rights of interchange In the event of individuals on particular productions or under special circumstances The
exhaustion of the available roster , employment of second assistant directors latter is considered in some detail in the record but will be discussed herein
could be from any source Also at times, special consideration or sometimes only insofar as necessary
"waivers" would be sought and given by the Respondent for employment of
DIRECTORS GUILD OF AMERICA, INC.
by the parties required 4 years' experience as a unit
production manager with signatories thereto for entitle-
ment for interchange as an assistant director, either first or
second.5
Trager said he asked Batchelder what happened in the
meantime and Batchelder took a letter out and showed him
the objection from the Respondent. According to Trager,
Batchelder told him as long as the Respondent objected,
they could not put him on the roster (as assistant director).
Batchelder testified that the determination of who went on
the roster was up to the Association. Batchelder also
testified that the Respondent would only participate in the
roster to the extent that "they could protest in the event
that if I were to place someone on the roster who was not
qualified and eligible to be on the roster." He then added
that he had placed about 30 or 35 persons in the L-4
classification during the time he was in charge'of the roster.
Batchelder said he was not aware of any protest by persons
classified in L-4 regarding the 4-year interchange rule
other than Trager.
Following the meetings with Abrams and Batchelder in
the spring of 1966, Trager talked with the Respondent
officials and indicated his desire to work this out with the
Respondent. Thereafter, he appeared before a number of
kinds of meetings of the Respondent, either screening
committee or council meetings, and submitted evidence of
his prior work record without satisfactory results. In one
such screening meeting, the chairman, Beaudine, according
to Trager, said, "I grant the fact that you have the four
years experience." But then said, "This meeting does not
constitute a quorum and I cannot report it back to the
Council." Beaudine could not recall making any such
statement with respect to the 4 years' experience. In any
event, Trager, after obtaining no satisfaction through the
Respondent with respect to its acceptance of his work
experience as sufficient for interchange to assistant
director, determined to seek redress through the Associa-
tion grievance mechanism.
Accordingly, on November 16, 1967, Trager wrote a
letter to the Association addressed to Mr. Chamie in which
he stated that on October 20, 1967, "I came in to see you
regarding a hearing concerning my right to interchange in
the Directors Guild of America-UPM/ Ad Division-
which we had also discussed previously." Trager then stated
that at that time Chamie told him that he could arrange for
a hearing by writing a letter of request, having the
Respondent,'write a letter of request, or just having Mr.
Haughton;'the general counsel of the Respondent, call him.
Trager said that he went to the Guild and while there,
Haughton called Chamie regarding the hearing, but he had
heard nothing since and was therefore writing "at this time
to request a grievance arbitration hearing under Art. IV,
Sec. B of the Basic Contract...." Trager then set forth
certain facts, including his application to be on the roster
and some of the matters referred to above, together with a
statement that on March 30, 1966, he was notified by the
Respondent that he "was accepted into membership on
3/7/66, retroactive to 10/4/65, as a UPM only subject to
their receipt of my properly executed application." Trager
5 It was anticipated that any interchange would be as a first assistant
since the pay of a unit production manager or a first assistant director is
715
added he "filed an application on 4/1/66 as a UPM/AD
member. The Guild accepted and never challenged this
application." Trager then stated, "Since that time to the
present, I have attempted to straighten out the matter of
interchange within the Guild. The Guild has never
officially denied or rejected my right to interchange to this
day, nor have they changed my status as a UPM only."
According to Trager, the Guild "tabled the matter for
further investigation, held hearings which did not consist
of a quorum and therefore could not act , have given me
waivers in lieu of interchange, etc. At the last Council
meeting on 11/6/67, after a report by the Screening
Committee was read, it was voted that `It was recommend-
ed he submit all evidence to the MPPA and request a
hearing for determination as to his being eligible for
placement on the Industry Experience Roster as a UPM,
1st & 2nd AD.' " Trager said he was accordingly
requesting a hearing and believed he had the experience to
qualify in the motion picture industry as a qualified UPM
"to warrant my retention on the Roster as an AD as of
2/7/66."
In the minutes of Respondent's Internal Affairs Commit-
tee meeting of October 18, 1967, the committee minutes
discussed Trager's appearance and request for reclassifica-
tion to be placed on the available list as first assistant
and/or second assistant director. The minutes refer to a
conference with Respondent's General Counsel, William
Haughton, and its National Executive Secretary, Joseph
Youngerman, and then state, "it was felt clarification of
statements should be obtained from NBC regarding Mr.
Trager's employment."
The minutes then read:
We were informed by Mr. Oscar Turner of NBC that
Milt was employed by NBC T.V. from May 26, 1955
through 1965 with the title of Senior Film Unit
Manager. His salary was $15,400.00 per year. This
amount does not equal that of a Film Unit Production
Manager. The Senior Film Unit Managers were
assigned by NBC T.V. to observe and supervise the
cost accounting on filmed shows financed by NBC T.V.
At no time would they have been permitted to function
as a Film Unit Production Manager on a filmed show
since NBC T.V. was not a signatory company.
Mr. Trager was in the employ of NBC T.V., a non-
signator at the time of his functions with California
National Productions, on the `LAWLESS YEARS'.
Therefore, the letter from Maxwell Henry is also
disqualified.
It was recommended by Mr. Bill Haughton, Don
Parker and Joseph Youngerman that Mr. Milt Trager
ask for a hearing at the Motion Pictures Producers
Association. At the hearing Mr. Trager will present his
case and Directors Guild will state their position
regarding Mr. Trager's request.
Thereafter appears a memo dated November 3, 1967, as
follows:
From: Don L. Parker
substantially higher than that of a second assistant, but in Trager 's case, he
sought work as a second assistant, as well as a first assistant
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To: Assistant Director-Unit Production Manager
Council Meeting from Internal Affairs Committee
Meeting of Oct 18, 1967
MEMO Milt Trager
Request for reclassification without any restrictions as
to category, allowing him to work as a Unit Production
Manager, First Assistant Director or Second Assistant
Director. Present classification, Unit Production Man-
ager, with four year restriction.
Basis of request were letters of employment, previously
submitted to Screening Committee. No action was
taken at that time, due to a no quorum of the Screening
Committee.
The Internal Affairs Committee, after reviewing all
letters of employment, recommended the Assistant
Executive Secretary confer with Mr. Joseph Younger-
man and Mr. Bill Haughton for clarification of the
eligibility of information listed in the letter of employ-
ment.
Since determination of eligibility for placement on the
Industry Experience Roster is done by the M.P.P.A., it
was recommended to Mr. Trager, that he submit all
evidence to the M.P.P.A. and request a hearing for a
determination as to his being eligible for placement on
the Industry Experience Roster as Unit Production
Manager, First Assistant and Second Assistant Direc-
tor.
At the time of the hearing with the M.P.P.A., Directors
Guild of America will maintain Mr. Trager's employ-
ment was with a non-signator, N.B.C. T. V., therefore, all
employment data submitted from May 26,
1955-February 1965 could not be considered making
him eligible for placement on the Industry Experience
Roster. [Emphasis supplied.]
During the course of the council meetings and also in
conjunction with the hearing which was held on December
5, 1967, before Mr. Alfred Chamie, general counsel of the
Association and arbiter in the particular matter, Mr.
Trager submitted numerous letters from various employers
setting forth his experience under different titles and also
reflecting those instances where it was stated he performed
the work of unit production manager. Normal practice of
the Association was to accept as evidence statements and
letters from employers.
Without detailing all of the documents and correspond-
ence submitted, attention is directed to one particular item
of work experience. Trager from 1955-1965 was in the
employ of NBC except possibly for a few weeks on the
payroll of California National Productions. However,
during this time for a period of years, Trager actually
performed work on matters for California National
Productions, evidently at MGM studios where many TV
programs were being filmed. This time appears to exceed 4
years on work that would qualify as that of a unit
production manager. During the time, California National
Productions was a signatory to contracts with Respondent
covering directors and assistant directors although none
covering unit production managers. At that time, there also
existed a separate unit production manager's guild which
will be discussed subsequently. NBC, during this time, was
not a signatory to a theatrical agreement with the
Respondent covering the positions in question. Batchelder
was asked whether, if a person did work for a signatory but
was paid by a parent company of the company for whom
he did the work, he would get credit for it or not.
Batchelder answered: "Well, always in the past one of the
tests has been-was the man on the payroll of a company that
was signatory. That has been one of the tests." [Emphasis
supplied.] Batchelder then said the question was hypotheti-
cal and when asked about Trager working for CNP while
on the payroll of NBC responded first he didn't disallow
Trager's experience with CNP and then said, "A. I don't
even know who is CNB. (sic)" As set forth, Respondent did
object to giving Trager credit for time worked for
California National Productions while employed by NBC.
The record indicates that CNP was working on various
projects for NBC on a fee basis. There is also some
indication, although not evidence on which a finding can
be based, that CNP may have been a subsidiary of NBC.
On December 5, a hearing was held before Chamie, at
which were also present Haughton and Parker representing
Respondent, Batchelder, Trager, and Newton Kalman, an
attorney for Trager.
There was some discussion as to the matter of applica-
tion of the contract to signatories. Kalman raised a
question as to the basis of the contention that the contract
was applicable only to signatories when the literal language
did not appear to so limit it to signatories. Although the
contract does not specifically refer to signatories, testimo-
ny of Saul Weislow, associate general counsel for the
Association, John Pommer, vice president of Bing Crosby
Productions, and Alfred Chamie, general counsel of the
Association, was that such was the intent of the parties to
the contract and that it was so applied. Weislow so stated
and added:
Well, I think I have told you, haven't I, that we
fashioned this after the IA6 Roster policy: employment
in Los Angeles to work in Los Angeles County area. Or
employed in Los Angeles to work outside the area by a
signatory Employer.
Weislow then testified that during contract negotiations
this was so stated by Charles Boren, `executive vice
president of the Association, and that Respondent Secre-
tary Youngerman said it was reasonable and he would
accept it. Weislow also testified that the use of, a capital
"E" in spelling "Employer" in either the introduction or
recognition clause indicated a Signatory Employer. I find
on the basis of the foregoing that such interpretation \yas
given to the "Basic" and independent supplemental,
agreements by the parties.
There was also discussion at the hearing before Chamie
with respect to the application of the work experience of
Trager and as to the work performed for California
National Productions, a signatory.
Kalman referring to notes said:
,Mr. Trager narrated-or was requested to supply his
6 IA refers to IATSE roster provisions in contracts between IATSE and
the Association and others . See further discussions post
DIRECTORS GUILD OF AMERICA, INC.
credits as unit production manager. One of the credits
which he supplied was his activity at NBC. I think this
activity at NBC was the pivotal credit. If his activity at
NBC was that of a unit production manager, then I
believe that the substance of the meeting was that he
would have had sufficient credit as a unit production
manager to qualify as an assistant director.
I believe at the time that he was at NBC he was not
categorized as a unit production manager, but as an
assistant to the producer. I believe that he reported at
the meeting that occurred on December 5, 1967 that an
assistant to the producer performed all of the duties of
a unit production manager, and that in fact there was
no unit production manager at the time of the activities
which he was performing for NBC.
Kalman subsequently testified:
Well, it is very difficult for me to reconstruct what I
was thinking about at the time, but one of the
objections to the NBC experience was that Mr. Trager
was not classified as a unit production manager at
NBC, and somehow my recollection is that this was
tied into the fact that because NBC had not signed some
kind of a contract that Mr. Trager's experience at NBC
would not be recognized. [Emphasis supplied.]
Chamie testified that the Guild was protesting Trager's
right to interchange as an assistant director. He was asked
what was the Guild's stated position. Chamie answered:
A. Well, as best I can recall at this time, they
objected to counting any time working in the various
companies which were not subject to the collective
bargaining agreement. [Emphasis supplied.]
Q. What do you mean by "not subject to the
collective bargaining agreement"?
A. They were not parties to the collective bargain-
ing agreement, nor did they have provisions which were
similar to the provisions of our collective bargaining
agreement.
Q. Now, do I understand correctly that specifically
they were objecting to counting his experience at NBC?
A. I believe that was one.
Q. And the stated reason for this objection was that
NBC was not a signatory to the contract with D GA.; is
that right?
A. Well, they were not subject to a collective
bargaining agreement having these provisions. [Emphasis
supplied.]
Chamie added by provisions he meant roster provisions.
Chamie, also testified that the hearing on December 5,
1967;' was held as the result of a protest by Respondent
which objected to Trager's application for interchange on
the basis it was not warranted.
Trager testified:
On all the shows prior to NBC Mr. Chamie disallowed
my experience, because I didn't have the actual title of
production manager, or unit production manager, and
so forth. [Emphasis supplied.]
He would not accept assistant production manager,
and so forth, and he said the letters stating the
functions were not enough; that I had to have a title.
717
THE Wimaiss: He said the function of a unit
production manager was not enough; I had to have the
actual title.
* * * *
THE WrrriEss: He did however grant me three
months on screen televideo, [sic] where I did have the
title of production manager.
Oh, and the three months was accepted by the Guild
representative also.
A. Mr. Chamie then asked me about my NBC
experience, and he said that-I believe in this case it was
Mr. Naughton that objected to my experience at NBC-
CNP, because I did not work for a signatory to the Guild
contract.
Q. Is that your best recollection-that it was Mr.
Naughton? [Emphasis supplied.]
A. Yes.
Q. All right.
A. My attorney, Mr. Kalman, said that he couldn't
find that anywhere in the contract-where it required
signatory experience.
I believe that it was Mr. Chamie that agreed with
Mr. Haughton, and said that this was very-it was their
interpretation, and his interpretation of the contract.
I then brought up the fact again that my experience
was with California National Productions, and they
were a signatory to the Guild contract. And as a matter
of fact, NBC was a signatory to the Guild contract.
But they objected to the fact that there were-that
they were not signatory-that NBC was not a signatory
to the theatrical portion of the contract. [Emphasis
supplied.]
Q. Who was it that objected to that? Do you recall?
A. I believe it was Mr. Haughton.
Q. Is that your best recollection?
A. My best recollection is that Mr. Chamie backed
him up.
Trager then testified he brought up that CNP paid NBC
;$25,000 for his services in one production and then
(testified:
But Mr. Chamie's decision was, again , over my lawyer's
objection about the contract that as long as I was on the
payroll of a nonsignatory to the theatrical contract my
experience could not be allowed, even though I had the
title. [Emphasis supplied.]
Trager then said that in addition to Screen Televideo he
,was allowed six months' experience credit for work with
'Talent Associates or a total of rune months' credit.
Trager further testified:
I believe-to the best of my recollection, Mr. Chamie
said that possibly there might be a way to get on the
roster if the Guild would withdraw its objection.
And the Guild would not withdraw its objection. [Empha-
sis supplied.]
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
* s s
Now, when you said, "And the Guild would not
withdraw its -objection," did someone for the Guild
speak up at that time or not?
THE WITNESS: I believe Mr. Haughton said that it
would not withdraw its objection.
Following the hearing, Mr. Chamie issued a document in
which he stated:
In 1966 Mr. Batchelder placed Mr. Traeger [sic] on
the Roster as a Unit Production Manager who was not
interchangeable as an Assistant Director because he
did not have the appropriate four years' experience as a
Unit Production Manager.
Mr. Trager claims he should be classified as being
interchangeable as an Assistant Director because he
allegedly worked more than four years as a Unit
Production Manager. The claim is based upon the
attached resume of his experience.
The Guild contended he did not work four years as a
Unit Production Manager and that Mr. Trager's work
with NBC was not experience subject to the collective
bargaining agreement. [Emphasis supplied.]
Mr. Batchelder appropriately classified Mr. Milton
Trager on the Roster as a Unit Production Manager
without interchange as Assistant Director because he
had not had four years of appropriate Unit Production
Manager experience. [Emphasis supplied.]
Dated this 6th day of December, 1967.
/s/ ALFRED P. CHAMIE
ALFRED P . CI-IAMIE
Vice President & Secretary,
AMPTP
The foregoing indicates there were two elements in-
volved. One related to "signatory" and the other to the
kind of work performed. From Chamie's testimony and the
position taken by Respondent, it appears the requirement
of "signatory" was a primary one insofar as both
Respondent's objection and Chamie's resolution were
concerned. The actual work performed was evidently
brought up and discussed. Respondent indicated that it did
not consider Trager's work had been the equivalent of that
performed by a unit production manager, but this does not
appear to have been fully considered or analyzed in detail.
However, substantial documentation 7 mostly in the form
One method utilized as proof to establish roster entitlement.
8 Letters, other exhibits , and Trager's testimony reflect that this included
work for CNP on matters pursuant to agreement with NBC among which
were the "Jim Backus" show-38 shows or 1 year; the "Lawless Years"-59
shows or 2 years, "Kentucky Jones"-13 in series or 6 months ; "pilots" of
about 15 months and "specials" of about 9 months for a total of 5-1/2 years
Numerous letters confirm that Trager performed the work of unit
production manager on the above-named productions and also certain
"pilots" and "specials " Although his title may not have been such-in some
cases it was "Associate Producer" and at times "Film Unit Manager", the
"Jim Backus" show, "Lawless Years" and "Kentucky Jones" appear to
represent 3-1/2 years performance by Trager as a unit production manager,
without considering the claimed 2 years on "pilots" and " specials " I also
note Trager was credited with 9 months as a unit production manager for
work as such for Screen Televideo (3 months) and Talent Associates (6
months). His total established experience as such clearly appears to
substantially exceed 4 years and more than 6 years is indicated.
of letters from employer officials submitted by Trager to
the Respondent and the Association, indicates that his
work was so considered to be unit production manager
work.8 As such, it does not appear that had Trager's work
been for a "signatory" (as interpreted by the Association
and Respondent) it could have been validly rejected.9
Attorney Kalman testified that at some time either before
or after this meeting in Chamie's office:
A. I can only recall, one that Mr. Chamie did come
out to talk to us in the hallway, and two, that somehow
Mr. Chamie indicated that if somehow Mr. Cham-
ze-Mr. Trager could make his peace-and again, I can't
remember with whom, but I surmise with Mr. Haugh-
ton-that Mr. Chamie would interpose no objections to
Mr. Trager's being categorized as an assistant director.
[Emphasis supplied.]
Q. Could this hallway conversation have been after
the hearing?
A. My recollection is that it was before the hearing.
It might have been after; it's hard for me to recall those
things.
Trager, supra, referred to such a position by Chamie during
the hearing.10 This raises a question concerning the
position taken by the Respondent with respect to Trager,
particularly as to Trager's work with California National
Productions not being considered to be with a signatory
because Trager was on the payroll of NBC. I will consider
this again as to both the claimed violation of Section
8(b)(2) and as to possible application of the Miranda
doctrine under Section 8(b)(1)(A).
D. The Matter of Supervisory Status of Second
Assistant Directors
The status of first assistant directors will be considered
before that of second assistant directors. Although the
parties would not stipulate with respect thereto, no
question was raised as to their supervisory status. In
addition, there is uncontradicted testimony from Arthur
Schaefer, industrial relations manager of Warner Bros., a
witness for the General Counsel. Schaefer testified that the
first assistant director "supervises the activities of the crew,
for example, if they are working on one set and they have a
move to make to another set or another stage he directs the
various crew chiefs to make their moves and get over to the
other location." Respondent witness Hilton Green, pro-
duction manager of feature pictures at Universal City
9 Were it clear that the principal or the sole predicate for denial of
Trager's claim by Chamie had been rejection of the exhibits submitted by
Trager, that would pose a different problem.
to Trager was able from time to time to work as a second assistant
director either by "waiver" or unavailability of second assistants on the
roster. On January 28, 1969, Respondent sent Trager a letter advising that it
had been notified by the Association that Trager had been placed on the
roster as a second assistant director. The letter added that Guild records
indicated Trager had acquired the necessary 90 days' employment as a
second assistant director on December 24, 1968 . It further advised that his
status was then as unit production manager and second assistant director
and he must be employed as a second assistant director for 24 months
before he could work as a first assistant director
It appeared that during the course of the hearing , Trager was completing
the necessary time as a second assistant director to qualify for and be placed
on the first assistant directors' roster.
DIRECTORS GUILD OF AMERICA, INC. 719
Studios, Inc., testified: "The director is the key man
making a picture. The first assistant is his righthand. The
first assistant runs the set. We like to feel that our first
assistants are in full charge of the crew. When he leaves,
the second assistant steps in and takes over those duties."
From the foregoing it is clear, and I find, that first
assistant directors are supervisors within the meaning of
the Act.
Schaefer testified as to duties of a unit production
manager as follows:
A. In the first place, it is not necessary to assign a
unit production manager to a picture if the company
chooses not to. In that event, then, the first assistant
director will perform those duties.
The unit production manager is usually the first
person employed of that staff. He will break the script
down, or for budgeting purposes, and if the go-ahead is
made to produce the picture, then he will break it down
even further for production purposes.
He will do a lot of those activities that I mentioned
earlier, as far as scouting locations, finding housing
facilities, eating facilities, arranging for those facilities
that are not available. He will arrange for sanitary
facilities. He will make flight rentals, if they have to be
made. He will rent a particular piece of property to
photograph a scene.
That sometimes is done in the preproduction area.
He will work with the director in the laying out of the
sets , the scenes, what the requirements will be. It is
basically the preplanning for the logistical efforts
needed on the production.
Q. Now, what does he do in the production stage?
A. The unit manager is usually not attached with
the shooting company as much as the first-if there is a
first. He will in a lot of cases be working on the
requirements needed for the future, and usually is
available for any decision that is made.
He will report to the production office if it is a
company-owned picture, because the activities of that
picture are responsible to our production office.
Don Parker , assistant executive secretary of the Guild
and a one time unit production manager, in response to a
question of whether he had heard previous witnesses'
descriptions of unit production managers' functions and
whether there were any variations in his understanding
thereof, testified he had heard them and:
A. Primarily I would stress much more than they
that unit production managers' functions are related to
business managers in preproduction, primarily to the
logistics and preparation of that show, rather than to
any on-set activities during production.
During the production, which is the actual shooting
of the picture, their functions are not primarily on-set,
but more for off-set production, to continue the further
production on that picture.
Responsibilities of the production of the picture are
left to the assistant directors.
The foregoing indicates unit production managers are
part of management. The extent to which they may
supervise persons is not spelled out in the above, but
testimony does reflect that a unit production manager
necessarily does direct others in performing various aspects
of his work.
The status of second assistant directors was vigorously
contested with several witnesses testifying on behalf of the
General Counsel and several on behalf of the Respondent
with respect to their duties.)) The testimony of these
witnesses (except for certain testimony of Milton Trager
which I do not rely on for reasons set forth below),12 in
some instances differs in degree and emphasis rather than
by way of contradiction. It also reflects differences in
function depending on the attitude of the first assistant and
also on the personality and experience of the second
assistant. In addition, there are differences dependent on
the size of the employer and the extent and scope of the
particular film or feature.
The Respondent's position is that second assistants
generally perform certain duties that make them supervi-
sors within the meaning of the Act. The General Counsel's
position is that the duties they generally perform are not
such as to make them supervisors. The General Counsel
also raises a number of contentions with respect to duties
that the Respondent claims are supervisory. The General
Counsel describes certain functions in different terms and
11 These included for the General Counsel: Arthur Schaefer , industrial
relations manager of Warner Brothers ; Howard Fabrick , director of
industrial relations and personnel ; for Columbia Picture Studios: Coley
Knight , executive assistant and administrator of the collective bargaining
agreement and also head of personnel employment and office service of
Twentieth Century Fox; Maurice Corwin, director of operations and
facilities for NBC television on the west coast (employed by the National
Broadcasting Company of the West Coast ); and Milton Trager. And for
Respondent, Stan Hough, vice president of Twentieth Century Fox and at
various times a second assistant and a first assistant director and also a unit
production manager; Hilton Green , production manager, Feature Pro-
ductions Universal City, with experience in like positions ; and Fred Ahern,
associate producer on a Warner Brothers picture with long experience as a
production manager.
12 I have carefully considered Trager's testimony as to the duties of
second assistant directors . In part it illustrates that the second assistant's
function may depend on the director or the first , as well as the experience of
the second . It also reflects that the duties of a second assistant director may
depend on the feature being filmed , the need for extras both as to number
and days as well as scenes , and the number of second assistants involved.
The latter may result in varying duties among seconds and account in given
pictures for Trager not having certain duties therein . Trager testified he
worked on three pictures where there were a large number of extras-"Hello
Dolly" with 12 or 14 second assistants; "Justine" where the director selected
all the extras and where another second assistant director took care of the
"adjustments"; and "Hang 'Em High" on which he worked a few days and
,'there were two other second assistants-on this Trager said he mainly called
actors and handled cards, and on a large street scene followed through on,
what the director wanted and the cues given for the start of background
'action.
Trager's actual experience as a second assistant director in films where aI
substantial number of extras were involved was accordingly limited. His(
duties were also limited on these occasions by the presence of other seconds
assistants, some of whom had precedence over him, and in one case by the!
large number of seconds, and in another by the director's hiring of extras.1
Although I do not question Trager's intention or effort to answer)
truthfully, complete objectivity may at times be lacking when one is!
personally involved. In the light of the foregoing and the fact that the!
various previously named witnesses for the General Counsel and Respon-I
dent all have had such extensive experience in the industry as to be familiar
with the duties of second assistant directors, I shall rely on and accept their,
testimony (rather than Trager's) as to such duties where such testimony is
generally consistent or substantially in accord, as reflected in certain'
conclusions which I am setting forth hereafter.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aspects from those set forth by Respondent. The General
Counsel also asserts that if any number of second
assistants are not supervisors then assistant directors
cannot be viewed as a class as supervisors. She takes this
position particularly with respect to testimony of Milton
Trager as to his duties.13 First, with regard to this
contention, even if I did rely on Trager's testimony were
Trager the only "second assistant" who did not have
supervisory duties, it would be questionable whether he
was performing the work of a second assistant. However,
what is necessary to resolve in my opinion is whether or
not the duties of second assistants in general entail
supervisory functions such as to make them supervisors
under the Act.
Although the issue may be arguable, it appears that in
general, second assistant directors perform certain func-
tions and have certain responsibilities that make them
supervisors within the meaning of the Act. The duties of
second assistant directors are considered hereafter first in
the overall and then the specific.
Arthur Schaefer, industrial relations manager for Warner
Brothers, testified with respect to the second assistant
director:
Basically, he assists the first assistant director.
He-in working with the first assistant director-plans
the next day's requirements, based upon information
that they have, and is responsible for seeing that many
of the elements needed for the next day are ready to go
when the director wants to start shooting.
Q. What do you mean by "elements"?
A. Well, I say he does this in conjunction many
times with the first. They establish the number of
people needed in various categories as a crew for the
next day; the time that they want those people to report
for work; also, any special equipment or props, or
something like that, that have to be ready for that day.
And he usually is the first one in the next morning to
see that all of those personnel are there ready to go.
Q. What does he do in the nature of seeing to it
that all personnel are there and ready to go?
Schaefer responded that, if an actor had a 6 o'clock call for
makeup , the assistant was to be there making sure the actor
was there and, if the actor overslept or was otherwise
delayed, he would alert the production office to the effect
there would be a delay and then he would try to find out
what the reason for the delay was and expedite the matter.
Schaefer said the decision as to the number of persons
needed each day would be made by the first or the unit
production manager, but the crew chief might discuss it first
with either the first or second assistant director. According
to Schaefer, the second assistant also writes up requisitions
for necessary persons and equipment and the like, as a
result of his discussions with the first or the unit production
manager.
The second assistant also maintains a daily production
report, which, according to different witnesses, could take
anywhere from a half hour or 45 minutes to several hours,
depending on the particular first assistant or the method
followed at a given studio. The production report is a diary
of the day's operations which in some instances was a
comparatively short report and in others treated as the
"bible" of the operation . In some instances it is written
during the workday and in others after the normal
workday. According to Schaefer and other witnesses, the
second assistant has greater responsibility on a distant
location than at the studio. The second assistant also
performs functions with respect to seeing that persons are
transported to location both as to who is to be sent and in
what order and also upon return from location to the
studio or starting point. The second also has to see that hot
lunches are provided on location.
In addition , the second assistant has certain duties with
respect to the hiring of extras and the releasing or
termination of extras , certain functions with respect to the
background action, including that of the extras and
location of certain equipment or props , and certain
functions with regard to adjustments in the payment of
extras, for special services which may occur . He also
replaces the first in his absence . The second participates in
the management meetings which decide the particular
operations in the planning stages. A second also may
instruct and train trainees.
In certain situations involving second units, he may
either replace the first in the original unit, or he may take
over as first assistant of the second unit . On location a
second has added duties with respect to both the
employment of extras and additional matters incident to
being on location. Some of the foregoing duties will be
analyzed in more detail where there is contention as to
whether the duties involve matters which would make the
second assistant director a supervisor within the meaning
of the Act.
The General Counsel takes the position that the basic
function of the second assistant is a routine clerical one,
requiring no exercise of independent judgment. The
Respondent listed many items which it argues establish
supervisory status . Some of these relate to the matter of
dealing with extras , including their selection, both at the
studio and on distant locations, the handling of adjust-
ments , the question of discipline and the direction of extras
on the set.
Hereafter will be considered those matters which I
believe are dispositive of the issues . First, the second
assistant does participate in the management meetings
relating to the action and program to be followed. This is
one item which the Board has considered indicative of
supervisory status. Second, as indicated above, the second
assistant is to see that the arrangements are made to have
the actors, the equipment , the extras, and others on the set
at or about a specified time. The General Counsel contends
this is a matter of requesting and seeking cooperation
rather than the imposition of direction as a matter of right
and since it is evident that the second cannot direct the
actors, he therefore does not have authority over the extras.
In my opinion this is a nonsequitur . It is evident from
testimony of various witnesses that the second assistant
director is expected to get the extras on the set from
whatever else they may be doing, whether it is from playing
13 I have indicated supra why I am not relying on Trager's testimony
with respect to the duties of second assistant directors
DIRECTORS GUILD OF AMERICA, INC.
cards or the telephone, etc., and it also appears that if the
extra does not respond, as required, that he will not
continue working on that particular picture. The question
of the second assistant's authority will be considered in
more detail in discussing the subject of discipline.
When on location the director and first assistant leave
for the location in the first car. The second is left behind
and he is in charge of assembling and dispatching the
actors, extras, crew, and necessary equipment for the
location. If a key person does not arrive on time, the
second has to use judgment as to whether to hold the entire
company or dispatch them to location and in what manner
or order. The second also may have to deal with the
question of replacement including that of a key individu-
al.''
With respect to disciplinary action, it appears from the
record that the second can remove an extra if he were
drunk and that if an extra did not respond to a proper
request that either the second could remove him from the
set at the time or recommend such to the first and that the
individual not be recalled at all. From the record there do
not appear to be many situations where disciplinary action
has to be initiated by the second, but the testimony
indicates that a second's recommendation as to extras
would be given substantial weight by the first assistant
director and that the same would also be true with respect
to the second's recommendations if a member of one of the
crews working on the set were involved. While the
testimony does not reflect a definitive picture, it does
reflect that the second's recommendations would probably
be followed and that in certain instances that he could
replace or let people go.15 This will become more evident
in connection with the hiring and layoff of extras discussed
hereaf ter.
Second assistants may grant breaktime and, according to
Fred Ahern, also time off to stand-ins and extras for
personal matters when not needed. In other words, they
may make a judgment as to whether or not an individual
can be excused for a time period. The second is responsible
for seeing that these persons are available when needed.
The testimony reflects a diversity of opinion as to the
extent of the second's authority and function in the
direction of extras involved in background action on the
set. It does appear that the second is expected to see that
the background action comes off smoothly, that the
persons are walking or otherwise proceeding in a proper
sequence, that conflicts are avoided, that continuity is
maintained in scenes so that the same persons (who have
been "established") 16 would appear in the same locations
and that he may at times improvise certain additional items
to make the scene more realistic or the action more
appropriate to the situation.17 The latter varies according
to the experience of the second and the relationship of the
14 See uncontroverted testimony of General Counsel witnesses Arthur
Schaefer and Hilton Green to such effect.
15 In support of the above conclusions, see testimony of General Counsel
witnesses Arthur Schaefer, Howard Fabrick, and Coley Knight and
Respondent witnesses Hilton Green and Fred Ahern.
16 "Established" referring to persons shown in prior scenes in such
manner as to be a definitive part thereof.
17 See in support of the above conclusions testimony of General Counsel
witnesses Arthur Schaefer and Howard Fabrick and Respondent witnesses
721
second and the first, with some seconds assuming more
responsibility and exercising greater initiative.18
Changes or variations made by the second are subject to
either approval or change by the first. The extent or degree
to which a first may alter the second' s actions is one of the
variables. However, there is no question that the second
does perform certain functions in this respect and does
have certain responsibilities as set forth. One of Respon-
dent's witnesses Fred Ahern, associate producer of Warner
Brothers, and normally a production manager, testified
that any changes that are made are usually made by the
cameraman rather than the first.
The General Counsel contends that the judgment
required in staging backgrounds appears to be more in the
realm of creative composition than the type of independent
judgment and direction of employees contemplated by the
Act. This is an interesting contention, but I question
whether it is applicable where the direction of employees is
also involved. If direction related only to inanimate
settings and props, such might be the case . The General
Counsel's argument in essence views extras as props. While
in a sense this may be so they are much more since they are
persons subject to action, reaction, direction, etc.
In addition, with respect to the issue of supervisory
authority, there is the testimony of General Counsel
witness Coley Knight stating that if a grip or crew member
were told by a second assistant to do something that he
would ordinarily follow through and do it because he
would assume that such authority had been delegated by
the first assistant or the unit production manager.
The second assistant is salaried rather than hourly. His
pay scale now is $320 per week for work in studio and $420
for location. Scale for a first assistant is now $550 in studio
and $750 on location. Also indicative of supervisory
position is that the number of extras on productions may
change from 30 to 40 to 300 or 400 or more.
In the studio, extras are obtained usually through a
casting office. In some cases, so many bodies are needed
and nothing more has to be said. In others, a general
description is made and is forwarded to the casting office
and the types supplied. In still other cases, requests may be
made by the director, first or second, for particular persons
whom they know can perform certain functions if they are
available, such as driving a car, riding a horse or who
possess certain characteristics or are types commonly used,
such as a bartender.19 While on location, a second would
have more responsibility to ferret out the types and select
the persons who might be desired subject to the approval
of the first or the director. It is evident from the record that
on location a second has more discretion and authority in
the selection of extras.20
Testimony of General Counsel witness Howard Fabrick
was that "generally speaking" when extra calls are reduced
Stan Hough and Hilton Green.
1s See in particular the testimony of Respondent witnesses Stan Hough,
Hilton Green, and Fred Ahern.
19 See testimony of General Counsel witnesses Arthur Schaefer and
Coley Knight and Respondent witnesses Fred Ahern and Hilton Green and
others.
20 In support of these conclusions see testimony of General Counsel
witnesses Arthur Schaefer and Coley Knight and Respondent witnesses
Hilton Green and Fred Ahern.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the second assistant would determine who went and who
stayed and Coley Knight testified that at Twentieth
Century the second assistant "signed off the extra people."
However, it is evident from record testimony that some of
the layoffs are automatic with regard to those who would
be retained, such as those who have "established"
themselves in a scene and also certain types. At times it is
evident who is to be let go. Also, at times, layoffs may be
automatic by selecting one half of a group to the left or
right. In other instances the second may retain those whom
he believes would be more appropriate for particular work.
Obviously the requirements and practice vary according to
the situations.
One matter, as to which there was considerable testimo-
ny, related to the function of the second with respect to the
payment of extras. There is no question that when payment
of the extra is a set amount the function is automatic. Issue
arises when extras claim added payment for performing
something additional, such as walking past a "star," or
falling off a horse or some action that would not be
required in performing the normal function for which the
extra was hired. In such cases, the second negotiates with
the extra. The second's authority is necessarily limited as to
amount. In some cases a set limitation per extra is specified
by the first, in other cases, there may be an overall total
that can be expended.
The amounts agreed upon by the second and extra or
extras would normally have to be approved by the first. It
appears that generally the second's negotiations are
approved by the first, although there are some exceptions.
There also may be grievances where the extra isn't satisfied
with the offer made by the second.21
The General Counsel describes the second's functions as
in essence being that of a horse trader, with the first
exercising the independent judgment. While the second
may be trading or negotiating, it also appears that in most
instances , he is effecting the final figure that will be paid to
the extra and, accordingly, is exercising independent
judgment on behalf of the employer.
After a training period of 18 months before May 1, 1968,
or 2 years now, a second assistant director can move up to
function as a first assistant director. In addition, there is
now a training program of 400 days of actual on-the-job
training in which new persons train to become second
assistant directors. These trainees are under the direction
of a second assistant director. However, the number of
trainees and the number of second assistants whom they
may work for is evidently relatively small. I do not
consider this item involves a sufficient number of second
assistant directors to be considered a decisive factor herein.
The significant item is that there are trainees for the
position of second assistant director, learning that work,
that when they become second assistants, they assume
certain responsibilities, and, finally, that the position of
second assistant in turn leads to that of first assistant 22 In
addition, the second assistant director replaces the first
21 In support of the above conclusions see testimony of General Counsel
witnesses Arthur Schaefer, Howard Fabrick, and Coley Knight and
Respondent witnesses Hilton Green, Fred Ahern, and Stan Hough.
22 It is, of course, also true an individual may, under certain
circumstances, also become a second assistant by working as one for 90
days when there are no available second assistants.
during times when the first leaves his set. This may be for a
conference with the director, may be for a luncheon date,
or for other reasons. While there are situations where the
first does not leave the set, it appears that in general there
are times when for a half hour or an hour a day he does.
According to Trager, all that occurs then is that the second
rolls the cameras. However, there is no question that the
second in such case is in charge of the set and he would
have more responsibility than merely rolling the camera.23
Also, in the case where there is a second unit on location,
the second may either move up to be the first or may
become the first over the second unit 24 In either situation
he then has all the duties, responsibilities, and authority of
the first.
Section 2(11) of the Act provides as follows:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires
the use of independent judgment.
As set forth, this section is in the disjunctive so that any
one of the elements set forth is sufficient to cause a finding
or conclusion of supervisory status.
The foregoing duties and responsibilities of the second
assistants with respect to employment and layoff of extras,
negotiation of adjustments, handling and granting of
breaktime and time off, seeing that extras and others are in
place at the proper times and places, taking over for the
first assistant director in his absence, arrangement and
execution of the background on the set, participation in
management conferences, and arrangements for getting
persons and equipment onto location, together and in total
context, in my opinion, lead to the conclusion that second
assistant directors are performing supervisory functions
and are supervisors within the meaning of the Act. There
are numerous cases which so indicate including N.L.R.B. v.
Big Ben Department Stores, 396 F.2d 78 (C.A. 2, 1968), enfg.
160 NLRB 1925 (authority to transfer employees from one
department to another on own initiative sufficient to make
a supervisor); Pacific Intermountain Express, 412 F.2d 1
(C.A. 10, 1968), enforcement denied of 173 NLRB 470 (line
dispatchers who participate in management meetings,
assign drivers and schedule departures, approve pay
claims, grant drivers time off and send home drunk or unfit
drivers); Furr's Inc. v. N.L.R.B., 381 F.2d 562 at 565-566
(C.A. 10, 1967), enfg. 157 NLRB 387 at 392; Eastern
Greyhound Lines v. N.L.R.B., 337 F.2d 84,88 (C.A. 6, 1964),
enforcement denied of 138 NLRB 8; N.L.R.B. v. Kolpin
Bros., 379 F.2d 488 at 490 (C.A. 7, 1967), enfg. 149 NLRB
1378; Trailmobile Division, 'ullman v. N.L.R.B., 379 F.2d
420 at 422, (C.A. 5, 1967), enforcement denied on other
'grounds 156 NLRB 483; N.L.R.B. v. Gary Aircraft, 368
23 In support of these conclusions see testimony of General Counsel
witnesses Coley Knight and Arthur Schaefer and Respondent witnesses
Hilton Green and Stan Hough.
24 See testimony of General Counsel witness Arthur Schaefer and
Respondent witnesses Stan Hough and Fred Ahern.
DIRECTORS GUILD OF AMERICA, INC. 723
F.2d 2^3, 224 (C.A. 5, 1966), enfd. 151 NLRB 7. See also
Block Southland Sportswear, 170 NLRB 936 at 942. And
see Vega v. N.L.R.B., 341 F.2d 576, 577 (C.A. 1, 1965),
affirming 145 NLRB 452.
I accordingly find that second assistant directors are
supervisors within the meaning of the Act.
Since I find second assistant directors are supervisors
within the meaning of the Act, there can be no case on
behalf of Milton Trager, inasmuch as the Act does not
protect supervisors. I accordingly find that Respondent has
not violated either Section 8(b)(1)(A) or 8(b)(2) as alleged
by its conduct with respect to Milton Trager.25
In addition, if first assistant directors, unit production
managers, and second assistant directors are all supervi-
sors, then the matter of the roster and the interchange
provisions could not be the subject of a case under the Act
herein and any further consideration thereof would be
unnecessary. I have found that first and second assistant
directors are supervisors within the meaning of the Act and
unit production managers are managerial employees who
may be supervisors. While the record indicates that unit
production managers possess supervisory authority, I do
not consider it necessary to resolve such as I am finding the
roster and interchange provisions valid in any event.
E. Validity of Roster and Interchange
As set forth assuming that the positions of first assistant
director, unit production manager, and second assistant
director were all supervisory there would be no necessity
for considering the validity or legality of the roster
provisions. However, (without resolving the status of unit
production managers) and assuming that the second
assistant directors are not supervisors I will consider the
issue as to the legality of the roster and interchange
provisions.
First, as to the roster provisions, the Respondent's
position supported by testimony of John Pommer, vice
president, Production, Bing Crosby Productions, and Saul
Weislow, associate general counsel and assistant secretary
of the Association, is that these provisions were designed to
provide an orderly way for employing qualified persons in
the categories involved herein in the motion picture and
television industry. Also according to Weislow and
Pommer, these provisions were designed to assure that
reasonably uniform requisites and qualifications are
required of persons employed by employers signatory to
contracts with Respondent and to protect the training
program established under the contracts. Although the
basic agreement and independent supplements are not
identical, the provisions appeared to be substantially
similar and the training program, roster provisions and
interchange provisions except as indicated supra26 are
essentially the same.
The roster provisions are similar to those which I have
considered in another case namely: International Photogra-
phers of the Motion Picture Industries, Local 659 of the
IATSE, Cases 31-CB-189, 31-CB-198, TXD (SF)-73-71,
issued June 18, 1971. Therein the General Counsel
contended the roster provisions were illegal on the basis of
certain cases involving mergers or (consolidations) and
resultant seniority contentions. Specifically referred to
there and here were: N.L.R.B. v. Whiting Milk Corp., 145
NLRB 1035, enforcement denied 342 F.2d 8, (C.A. 1, 1965)
and also Woodlawn Farm Dairy, 162 NLRB 48 at 49, 50,
and Teamsters Freight Local No. 480, etc.; Hilton D. Wall,
167 NLRB 920, enfg. 409 F.2d (C.A. 6).
Therein discrimination against employees not represent-
ed by a union in establishing a new or merged seniority list
was held to be illegal. Whatever may be the effect of these
cases, there is no doubt that seniority does not have to be
limited to the relative length of employment of respective
employees nor based on any precise standard. See Ford
Motor Company v. Hoffman, 345 U.S. 330 and Humphrey v.
Moore, 375 U.S. 335 at 349.
More pertinent is -the fact that the roster and the
interchange provisions herein essentially involve a method
of hiring and transferring persons.. Accordingly, it would
appear that cases relating to the validity of hiring systems
or arrangements would be more applicable. The Board has
held valid hiring arrangements predicated on work time for
specified employers where limited to a particular area.
These appear to recognize the employment problem
created by a situation where employees are not customarily
and ordinarily, employed continuously by one employer
but rather work on a particular job or project and may
work at different times for various employers. In such case,
some orderly system which provides for both some
protection to those working and usually living in the area
and some basis or standard of experience appears to be
justified.
Numerous cases have found "area limitations to be
valid. See Bricklayers, Masons and Plasterers International
Union of America, et at, 134 NLRB 751, International
Marine Terminals, Inc., et at, 137 NLRB 588, Local Union
No. 337, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, 147 NLRB 929 and 930, Interna-
tional Union of Operating Engineers, Local No. 98, AFL-
CIO, 155 NLRB 850 at 852.
Also see particularly JM Company, Inc., 173 NLRB 227
(involving both area and limitation of experience to
contract signatories ) where the Board affirmed Trial
Examiner Foley who stated:
I find from this evidence that Parker and Pate were
discriminated against on January 22, 1968, by being
denied recall on that date by Respondent Union, and
by being replaced on that date by two men referred by
Respondent Union and hired by Respondent Compa-
ny. There now remains for disposition the vital question
of whether the evidence shows they were discriminated
against because of non-membership in the Union and not
because they lacked area residence and work experience
with contractors signatory or parties to the Contract. If
the discrimination was for the latter reason, there, is no
violation. (Citing Local 357 Teamsters v. N.L.R.B., 365
U.S. 667.) [Emphasis supplied.]
25 See Great Lakes Towing Co., 168 NLRB 695 at 702
26 As set forth in the complaint the independent supplement (in 1964) provisions differing from the 1964 independent supplement.
provided for a unit production manager's roster. In November 1966, the
basic agreement was amended to provide for such a roster but with
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The legality of the exclusive hiring hall operated by
Respondent Union is not in issue. However, illegality
does not attach per se to an exclusive hiring hall system
operated by a union under a collective-bargaining
contract providing that in connection with referrals by
the union a preference shall be given to area residents of
2 years or more in accordance with the extent of their
work experience as employees of employers signatory or
parties to the collective-bargaining contract, and providing
that no discrimination against persons seeking employ-
ment because of membership or non-membership in the
union shall be shown by the union either in the
maintenance of a referrals for employment, and that the
selection of applicants for referral by the union shall
not in any way be based on or affected by union
membership, by-laws, rules, regulations, constitutional
provisions, or any other aspect of union membership,
policies or requirements. The evidence shows that the
exclusive hiring hall operated by Respondent Union is
operated under such a collective-bargaining contract.
Therefore there is no presumption that the denial by the
Respondent Company and Respondent Union, in the
operation of e exclusive hiring hall system, of
reemployment to non-members lacking permanent resi-
dence in the area specified in the Contract, and lacking
work experience as employees of contractors signatory or
parties to the Contract, is on its face discriminatory
conduct violative of the Act. The burden is on the General
Counsel to prove that the conduct in issue constitutes
illegal discrimination. [Citing cases] [Emphasis sup-
plied.]
I find from the evidence that Respondent Union had
a referral list or register containing names of competent
operating engineers with 2 years' permanent residence
who were either living in the specified area or had left it
temporarily with the intention to return, kept current
by the re-registration of these engineers on the list or
register on the first Monday in each quarter of each
calendar year. I find that these engineers received a
seniority or priority number based on the extent of work
experience as employees of contractors signatory or
parties to the Contract, and were listed on the register or
list in the order of these numbers from lower to higher. I
find no evidence in the record that the names were
placed on the list or register, or in any order of
preference on the list or register, by reason of member-
ship in the Union or in connection with membership in the
Union. It may well be that all those registered on the
referral list and having seniority numbers were union
members since the Contract and prior collective-bargain-
ing contracts had union security clauses requiring
membership in the Union after 7 days of employment, or
after 30 days prior to the amendment that changed the
period for the construction industry to 7 days after
employment from 30 days after employment. In any
event, if it was the case, it cannot be assumed that the list
or register was discriminatory in favor of those having
membership in the Union, and against those not having
membership in the Union. [Citing cases.] [Emphasis
supplied.]
And see- also International Union of Operating Engineers,
Local 302, AFL-CIO, 186 NLRB 21.
The foregoing in my opinion established the validity of a
hiring, arrangement or roster system such as here con-
taii4ed, unless there is other evidence relative thereto which
would reflect an illegal preference because of union
membership. Finally there is also the decision of the
United States Supreme Court cited in some of the cases
above, Local 357, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, 365
U.S. 667. Therein the Court held that the NLRB could not
find hiring hall provisions to be illegal per se or infer
discrimination merely because the hiring hall was operated
by a union. The Court said that it would not assume that
the union conducted its operations in violation of law.
Similarly, it may not be assumed herein that the operation
of the roster system is illegal per se.
Accordingly, I conclude the roster system is a valid one
unless the interchange provisions were to make it improp-
er. These interchange provisions particularly with respect
to the interchange of unit production managers are
attacked by the General Counsel who asserts that the 4-
year requirement for interchange by the unit production
manager to be an assistant director is an unreasonable and
arbitrary requirement. These requirements were worked
out in connection with a merger between the former Unit
Production Managers' Guild and the Respondent. They
were designed to effect a working arrangement that would
meet the requirements of the Respondent particularly with
respect to conforming to its training program for first
assistant directors. This in essence requires an approximate
4-year period between the time a trainee starts and
completes his initial training period and then completes his
period as a second assistant director before becoming a
first assistant director. The total equates the 4-year
requirement of work as a unit production manager.
The General Counsel attacks this on the basis that
second assistant directors may become such in a 90-day
period in the event of unavailability of second assistant
directors when the employer may hire without regard to a
training period or the roster. Respondent's brief asserts
that "the four-year restriction was imposed for the purpose
of protecting the training program for the reason that the
employers insisted on hiring new Unit Production Manag-
ers from any source." If there had been no requisite as to
the interchange of unit production managers in 1964, and
(until a training program therefore was recently set up)
since anyone could be hired as a unit production manager
and, when a roster was subsequently established be placed
thereon after 90 days, there would have been a gap in the
requisites (under the training program) to become a first
assistant director. Accordingly, were there complete
interchangeability, an individual could have been placed
on the roster as a unit production manager in a very short
time and then been able to transfer as a first assistant
director.27 Respondent contends that the 4-year require-
mentwas therefore a reasonable one. I am of the opinion
27 Another point to note is that most first assistant directors and unit capacities or had been unit production managers for many years and met
production managers at the time of this merger either were eligible in both the 4-year requirement.
DIRECTORS GUILD OF AMERICA, INC.
that this position is a valid one and that the interchange
provision accordingly is not illegal.
In this respect, Trager's case is somewhat unusual in that
he was seeking to become either a first or second assistant
director. Pommer testified that this was something that
wasn't discussed in negotiations relating to the 1964 Basic
Agreement as it was not anticipated that unit production
managers would want to work as a second assistant
director since the pay was much less. However, Trager
sought interchange as either a first or second assistant
director in a number of instances as set forth in the record.
Another question is the application of the roster and
interchange system to Trager A have set forth supra that
Trager evidently had the requisite experience in work as a
unit production manager for interchange were the contract
given a literal interpretation. Was it unreasonable or illegal
to interpret it as the Respondent and the Association have
done so as to apply only to signatories? In my opinion, the
parties could adopt a reasonable interpretation or even an
oral amendment so long as such was not directed against a
particular individual or group, or done for illegal or
discriminatory reasons, which have not been shown herein.
I accordingly conclude that the interpretation or applica-
tion to signatories is valid.
A second question is with respect to the interpretation of
the contract in such way as to limit a "signatory" to an
employer on whose payroll the person appears. Trager was on
the payroll of NBC but performing work for CNP. The
General Counsel contends that this was an arbitrary
limitation and further that it was improper in view of the
fact that the contract had been so interpreted that if an
employer became a signatory, any person employed by
such employer, who had the necessary background, would
be treated as if the employer had been a signatory at all
times. Such an interpretation, although apparently incon-
sistent, may be viewed as a practical and necessary
adjustment if other employers were to enter into contracts
with Respondent such as the Basic or Independent
Supplements.
However, with respect to Trager, the Respondent took
the position that his work for CNP could not be credited
because NBC was not a signatory even though CNP was.
As set forth supra there is evidence that the Association
indicated a willingness to go along with Trager's applica-
,'tion if Respondent would withdraw its objections. It
accordingly appears that this interpretation was not only
highly technical and apparently arbitrary but such as to
raise a question as to the motivation of the Respondent
and to the validity of such an interpretation or application
of the contract. On' this basis, a finding might be made,
were Trager an employee, that the Respondent thereby
violated Section 8(b)(2) of the Act.
F. Application of the Miranda Concept
The foregoing could also be considered under the
Miranda doctrine.28 If a second assistant director were an
employee, then it would appear that Respondent 's positions
taken in Trager's case, wherein it distinguished between the
28 140 NLRB 181.
29 1 have previously found that the record indicates that Trager actually
725
employer for whom the work was performed and the
employer who paid the employee so as to disqualify
Trager, was so fine, technical, and unwarranted as to
amount to an arbitrary, invidious, and irrelevant consider-
ation and action when advanced against the interests of a
member, Trager. Such conclusion becomes even more
evident in the light of the testimony of Saul Weislow and
Alfred Chamie that a major premise for the signatory
requirement was that this would give assurance that the
work was being performed and experience gained under
like or similar circumstances.
I recognize that NBC was in the television industry, that
CNP was performing certain work therein, and also that
CNP had a contract covering assistant directors but not
unit production managers. Nevertheless, the distinction
between "work" and `payroll" as it was applied herein
seems to be a clearly arbitrary one. Accordingly, assuming
Trager were an employee, it appears if he had been on the
payroll of CNP, he would then have met all the asserted
"requirements" of interchange,29 no valid objection could
have been made, and he would have been eligible for the
assistant director's roster.
However, if Trager, as a unit production manager, were a
supervisor, then assuming second assistant directors were
employees, there might be an issue as to the application of
Miranda to Trager as a supervisor member. Does the union
have a duty under ie Miranda doctrine to a member
supervisor if he were seeking interchange to a position as
an employee? By analogy, it appears from the Board's
decision in Steelworkers Local 1070 (Columbia Steel and
Shafting Co.), 171 NLRB 945, involving claimed discrimi-
nation in seniority application to a foreman upon his
returning to the bargaining unit that the Act may apply. If
so, and if second assistant directors were employees (which
I have found they are not), then I would consider the
Miranda doctrine applicable. Since I have found second
assistant directors to be supervisors (and unit production
managers do not appear to be employees), I find the
Miranda doctrine to be inapplicable to Trager herein.
Conclusions of Law
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the
following conclusions of law:
1. The Association is an employer within the meaning
of the Act.
2. Second assistant directors are supervisors within the
meaning of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) and (2) of
the Act as alleged.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclu-
sions, it is hereby recommended that the complaint in the
above matter be dismissed in its entirety.
functioned as a unit production manager for the requisite period.