Edward Small Productions, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1960

127 N.L.R.B. 283 (N.L.R.B. 1960)

EDWARD SMALL PRODUCTIONS, INC. 283.
other matters agreed upon by the Respondent and the Union during the course of
collective bargaining and preceding the date when the Respondent broke off negotia-
tions with the Union.
Having found that the Respondent's whole course of conduct from the date of
the certification of the Union is the antithesis of good-faith bargaining, it will
further be recommended that on request and with respect to matters not already
agreed upon and incorporated in a contract pursuant to the recommendation above,
the Respondent bargain with the Union as the representative of its employees in an
appropriate unit and if an understanding is reached, embody such understanding
in a written and duly executed agreement.
It is further recommended that the Respondent forthwith furnish to the Union a
copy of its health and welfare plan.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All millworkers, mixermen, merchandisers, truckdrivers, and warehousemen
employed at the Respondent's Twin Falls, Idaho, plant, excluding all office clerical
employees, professional employees, managers and assistant manager, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. The Union was on August 28, 1958, and at all times since has been, the exclu-
sive representative of all employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9(a) of the Act.
4. On March 26, 1959, the Union and the Respondent reached an agreement on
wages and other matters covering the employees in the above-described appropriate
unit.
5. Since March 26, 1959, the Respondent has refused repeated requests by the
Union to execute a contract incorporating matters agreed on as of March 26, 1959.
6. By its refusal to execute the said agreement, and by an entire course of con-
duct that is the antithesis of good-faith bargaining, the Respondent has refused to
bargain collectively with the Union as exclusive representative of employees in the
above-described appropriate unit, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) of the Act.
7. By the said refusal to bargain the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed them in Section 7 of
the Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Edward Small Productions , Inc.; I Vogue Pictures, Inc.; Peer-
less Productions , Inc.; Premium Pictures , Inc. and Musicians
Guild of America , Petitioner . Case No. t1-RC-5778. April 19,
1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Max Steinfeld, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
1 The name of the Employer appears as amended at the hearing.
127 NLRB No. 36.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Jenkins and
Fanning].
Upon the entire record in this case, the Board finds :
1. Edward Small Productions, Inc.,2 owns all the 'stock of Vogue
Pictures, Inc.,' Peerless 'Productions, Inc.,' and Premium Pictures,
Inc.5 All four corporations are located at the same address, share
common offices, and are engaged in the same business. The president,
vice president, and general counsel of all four companies are the same.
Edward Small furnishes the services of its executives, studio manager,
bookkeepers, and some of its secretaries to all the companies, rents
studio space and other facilities for all the companies most of the
time; and provides money for picture production. The officers and
directors of each respective company determine policy as to which
pictures are to be produced; however, in most instances the officers
and directors are the same. In view of the foregoing, we find that
the four corporations constitute a single Employer." As Edward
Small and Peerless both received in excess of $50,000 annually from
the sale of their product outside the State of California, we assert
jurisdiction under our direct outflow standard.'
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Intervenor, American Federation of Musicians of the United
States and Canada, AFL-CIO, moved to dismiss the petition on the
ground that none of the four corporations has employed musicians
and that only one of the companies plans future picture production.8
The record shows that Premium, Vogue, and Peerless were parties to
the Basic Agreement with the Intervenor and that these companies
scored their pictures through use of the "package deal" arrangement
whereby a composer-conductor is engaged to compose and conduct the
music as well as hire and pay the musicians. The musicians utilized
by the composer-conductor work under the provisions of the Basic
Agreement between the Employer and the Intervenor, which provides
2 Hereinafter referred to as Edward Small.
Hereinafter referred to as Vogue
Hereinafter referred to as Peerless
5 Hereinafter referred to as Premium.
6 See Chicago North Side Newspapers, 124 NLRB 2.54
7 Siemens Mailing Service, 122 NLRB 81.
8 The Employer and Intervenor also moved to dismiss the petition on the ground that
the Petitioner made no claim for representation on the Employer to recognize the Peti-
tioner for purposes of collective bargaining At the shearing, however, the Employer
declined to recognize the Petitioner. Accordingly, we find that a question concerning
representation exists within the meaning of Section 9(c) (1) of the Act, and deny the
motion. See Advance Pattern Company, 80 NLRB 29.
EDWARD SMALL PRODUCTIONS, INC. 285
that a personal service contract be executed for each recording session
which the Employer signs as the employer of the musicians. In view
of our determination of voting eligibility of musicians in the motion
picture industry, infra, our finding that the four corporations herein
constitute a single employer, and the fact that the Board has held that,
film producers who hire musicians under such an arrangement are
employers and musicians employees within the meaning of the Act,
the motion is hereby denied .9
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer,
within the meaning of Section 9(c) (1) and Section 2(6) and (7) of
the Act.
4. The appropriate unit :
The parties agree as to the classifications of employees in the pro-
posed unit. The Intervenor and the Employer contend that the peti-
tion should be dismissed as to three of the four corporations because
they have no plans as to future picture production, and as to Edward
Small and Peerless, on the ground that no pictures have been produced
in recent years. In view of the facts discussed in paragraph 1, above;
we find that the four corporations constitute a single Employer for
unit purposes, and therefore reject the contention.
As the record does not indicate whether or not conductors and
leaders possess supervisory authority within the meaning of the Act,
and as this issue is raised by the incorporation of the record and briefs
of an earlier case before this Board,10 we shall permit the conductors
and leaders to vote subject to challenge.
Accordingly, we find the following unit appropriate for purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act :
All musicians employed by the Employer or its successors in Los
Angeles County, California, including arrangers, orchestrators, copy-
ists, proofreaders, librarians, recording and sideline musicians, but
excluding composers and supervisors as defined in the Act.
5. In accordance with our voting eligibility formula for musicians
in the motion picture industry, we find that all musicians who have
been employed in the unit herein for 2 or more days during the year
preceding this decision are entitled to vote in such unit."
[Text of Direction of Election omitted from publication.]
O Independent Motroon Picture Producers Association , Inc., 123 NLRB 1942
10 Id
21 Id