Esquire, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1954

109 N.L.R.B. 530 (N.L.R.B. 1954)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the preferential or exclusive hiring agreement or understand-
ing between Grow and Gibbs, as representative of the Council and of Local 1261,
is illegal within the meaning of the Act, the Trial Examiner will recommend that
the Respondents cease and desist from giving effect to said illegal agreement, and
from entering into , renewing, or enforcing any agreement with Grow or any other
employer which accords preferential or exclusive hiring rights to members of the
Respondent labor organizations.
It has been found that the Respondents caused Grow discriminatorily to refuse
to hire applicant Cooley between August 28 and December 4, 1953. It will be
recommended that the Respondents make Cooley whole for any loss of pay suffered
by reason of the discrimination against him , by payment to him of a sum of money
equal to that which he would normally have earned from the date of the discrimina-
tion to the date of his hire, less his net earnings during. said period. Back ,pay shall
be computed in a manner consistent with the policy established by the Board in
F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found to have been engaged in by the Respondents
are of such character and scope that, in order to insure employees and prospective
employees of full rights guaranteed by the Act, it will be recommended that the
Respondents , and each of them, cease and desist from in any manner restraining,
or coercing employees or applicants for employment in the exercise of rights under
the Act.
On the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Mohawk Valley and Vicinity District Council, United Brotherhood of Car-
penters and Joiners of America, and Local No. 1261, United Brotherhood of Car-
penters and Joiners of America, are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
2. Grow Construction Co., Inc., is an employer within the meaning of Section
2 (2) of the Act.
3. By causing the said employer to discriminate in regard to the hire and tenure
of employment of applicants for employment and of Glen W. Cooley in violation
of Section 8 (a) (3) of the Act, the Respondent labor organizations above named
and the Respondent Gibbs, their agent , have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act, and by restrain-
ing and coercing employees and applicants for employment in the exercise of rights
guaranteed by the Act the said Respondents have also engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. 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.]
ESQUIRE, INC., CORONET INSTRUCTIONAL FILMS DIvISION) and LOCAL
476, STUDIO MECHANICS OF THE INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES & MOVING PICTURE MACHINE OPERA-
TORS OF THE UNITED STATES AND CANADA, AFL, I. A. T. S. E.
Case No. 13-CA-1631. July .9,1954
Decision and Order
On May 6, 1954, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
109 NLRB No. 76.
ESQUIRE, INC. 531
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed? The Board has considered the Intermediate Report, the
Respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Esquire, Inc.,
(Coronet Instructional Films Division), Glenview, Illinois, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 476, Studio ,Me-
chanics of the International Alliance of Theatrical Stage Employees
Moving Picture Machine Operators of the United States and Can-
ada, AFL, I. A. T. S. E., as the exclusive representative of all its
motion picture studio production employees, including electricians,
carpenters, property men, sound mixer, recordist, boomman, set de-
signer, and animation employees, but excluding cameramen, assistant
camerman, film editors, assistant film editors, the truckdriver, office
clericals, commissary employees, sales personnel, producers, directors,
and all other supervisors as defined in the Act, with respect to rates
of pay, wages, hours of employment, or other conditions of
employment.
(b) In any manner interfering with the efforts of the above-named
Union to bargain collectively with Respondent on behalf of the em-
ployees in the aforesaid bargaining unit, as their exclusive bargaining
representative.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of its employees in the appropriate unit, and
i The Respondent contends that the Board erred in its unit finding in the representation
proceeding, and in its resolution of various inclusions and exclusions, and that the Trial
Examiner erred in adopting those findings , and in refusing to permit the Respondent to
adduce further evidence with respect to them. These issues were fully litigated and con-
sidered by the Board in the representation proceeding at its initial stage, in the Board's
consideration of the Regional Director's report on challenged ballots, and again when the
Respondent requested reconsideration of the Board 's supplemental decision. It is clear,
therefore, that these issues are not properly the subject of relitigation in the instant pro-
ceeding Glares tat Manufacturing Company, Inc , 107 NLRB 775; Southwestern Electric
Service Company, 94 NLRB 859.
334811-55-vol. 109-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the event that an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its places of business in Chicago, Illinois, and Glen-
view, Illinois, copies of the notice attached hereto marked "Appendix
A." 2 Copies of said notice, to be furnished by the Regional Director
for the Thirteenth Region, shall, after having been signed by Respond-
ent's representative, be posted by Respondent immediately upon
receipt thereof and maintained by it for a period of sixty ( 60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with Local 476,
Studio Mechanics of the International Alliance of Theatrical
Stage Employees & Moving Picture Machine Operators of the
United States and Canada, AFL, I. A. T. S. E., as the exclusive
representative of all elrlployees in the bargaining unit described
herein with respect to rates of pay, hours of employment, and
other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement.
The bargaining unit is:
All motion picture studio production employees including
electricians, carpenters, property men, sound mixer, record-
ist, boomman, set designer, and animation employees, but ex-
cluding cameramen, assistant cameramen, film editors,
assistant film editors, the truckdriver, office clericals, com-
missary employees, sales personnel, producers, directors, and
all other supervisors as defined in the Act.
2In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
ESQUIRE, INC. 533
WE WILL NOT interfere in any manner with the efforts of the
above-named Union to bargain collectively with us on behalf of
the employees in the aforesaid unit.
ESQUIRE, INC., (CORONET INSTRUCTIONAL
FILMS DIVISION,
Employer.
Dated-------- -------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges having been filed and served , a complaint and notice of hearing thereon
having been served by the General Counsel of the National Labor Relations Board,
and an answer having been filed by the above-named Respondent , a hearing involy-
ing allegations of unfair labor practices by the Respondent in violation of Section 8
(a) (1) and ( 5) of the National Labor Relations Act, herein called the Act, was
held before me in Chicago , Illinois, on March 16, 1954 . The complaint , as amended
at the hearing, alleges that Respondent , since December 16, 1953, has refused to
bargain collectively with the charging party, otherwise called the Union or Local
476, as the exclusive representative of employees in an appropriate unit and thereby
has interfered with , restrained , and coerced its employees in the exercise of rights
guaranteed by the Act. In substance Respondent admits that on or about December
16, 1953, the Union requested Respondent to bargain with it, that it has refused
and still refuses to bargain with the Union but denies that said refusal to bargain
was or is unlawful.
At the hearing all parties were represented and participated in the hearing. The
parties waived oral argument . Respondent and the Union have filed briefs. Upon
the entire record in the case, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is now and all material times has been a corporation duly organized
and existing by virtue of the laws of the State of Delaware . Respondent 's principal
offices are located in Chicago , Illinois, and its studio is located in Glenview, Illinois.
Respondent , among other things, is engaged in the manufacture , production, and
distribution of educational films. During the calendar year 1953, the value of raw
materials purchased by Respondent for use by its Coronet Instructional Films
Division approximated $300,000 , of which approximately 15 percent was obtained
directly from points outside the State of Illinois . The value of the finished product
sold by the Coronet Instructional Films Division of Respondent , was approximately
one million dollars, of which approximately 75 percent was shipped from Chicago,
Illinois, by the Coronet Instructional Films Division of the Respondent to points
outside the State of Illinois. The Respondent admits, and I find , that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 476 , Studio Mechanics of the International Alliance of Theatrical Stage Em-
ployees & Moving Picture Machine Operators of the United States and Canada, AFL,
I. A. T. S . E., is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
On May 29, 1953, after a hearing upon a representation petition filed under
Section 9 (c) of the Act , the Board issued its decision and direction of election,' in
1 Esquire, Inc., ( Coronet Instructional Films Division ), 105 NLRB 205.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it ordered an election by secret ballot in an appropriate unit of Respondent's
employees ( elsewhere in this report called the unit in question ), comprising all
motion picture studio production employees including electricians , carpenters, prop-
erty men , sound mixer, recordist , boomman, set designer , and animation employees,
but excluding cameramen , assistant cameramen , film editors , assistant film editors,
the truckdriver, office clericals, commissary employees, sales personnel, producers, and
all other supervisors as defined in the Act, to determine whether said employees
desired to be represented for collective-bargaining purposes by the Union. The elec-
tion was held on June 25, 1953, and the tally of ballots showed that of approximately
14 eligible voters, 13 voted, of whom 4 cast their ballots for the Petitioner, 4 for no
union, and 5 were challenged.
On July 10, 1953, after an investigation , the Regional Director issued his report
on challenged ballots wherein he recommended that the challenges to the votes of
Ann Whitley, Nancy Dana, and Fred Norman be sustained, that the challenges to the
votes of Paul Seitzinger and Bernard Montgomery be overruled, and that the
Board direct the opening and counting of the ballots of Seitzinger and Montgomery.
On July 20, 1953, Respondent filed exceptions to the Regional Director's report.
The Board, in its supplemental decision and direction' of October 2, 1953, di-
rected the Regional Director to open and count Seitzinger's and Montgomery's bal-
lots and thereafter to prepare and cause to be served upon the parties a supplemental
tally of ballots. On October 8, 1953, Respondent filed exceptions to the aforesaid
supplemental decision and direction and requested reconsideration of its exceptions
to the Regional Director's report on challenged ballots filed July 20, 1953.
On October 28, 1953, treating Respondent's exceptions as a request for recon-
sideration and having reconsidered the matter, the Board denied the request because
it presented no issues not previously considered by the Board. The revised tally of
ballots issued November 4, 1953, showed that 6 ballots were cast for and 4 against
the.Petitioner. On November 24 the Regional Director, on behalf of the Board,
certified the Union as the bargaining representative for the unit in question.
On December 16, 1953, the Union requested bargaining and on December 22,
1953, Respondent refused to bargain giving as its reasons therefor ( so far as they
are relevant to this case ), that:
The decision of the Board with respect to the composition of the unit in ques-
tion and the persons eligible to vote herein ; the decision of the Board excluding
Whitley and Dana from any unit and including Seitzinger and Montgomery in
the unit in question; the Report of the Regional Director upon the Challenged
Ballots of Whitley, Dana, Seitzinger and Montgomery ; the supplemental decision
the Board rendered sustaining the Regional Director with respect to the chal-
lenged ballots of Whitley, Dana, Seitzinger and Montgomery; and the certifica-
tion of Local 476 as the exclusive bargaining agent for the unit in question, are
all arbitrary and capricious, constitute an abuse of the Board's discretion and are
not supported in law or in fact by substantial evidence on the record considered
as a whole:
Local 476 has not been designated or selected by a majority of eligible em-
ployees in any appropriate unit as their exclusive bargaining representative; the
unit in question sought by Local 476 was and is inappropriate ; if a unit of studio
employees under the Board designation of "studio motion picture production
and maintenance employees " is appropriate , employees Whitley and Dana were
at all times relevant therein, properly includable in such a unit and eligible to
vote with the other employees thereof; and , if a unit of studio employees
under the Board designation of "studio motion picture production and main-
tenance employees" is appropriate , such unit should apply to all such employees,
including plant clericals.
These reasons were not new , but merely reiterations of contentions already
fully considered and rejected by the Board as is evidenced by the following quotations
from the Board's findings in Cases 105 NLRB 205 and 106 NLRB No. 208 (see foot-
note 2):
4. The Petitioners seek three separate units of employees at the Employer's
motion picture studio. Local 476 desires to represent the studio production em-
ployees, Local 666 seeks the cameramen and assistant cameramen, and Local
780 would represent the film editors and assistant editors. The Employer
contends that the separate units desired by the Petitioners are inappropriate,
and that only a single unit for all these employees, including also its laboratory
2 106 NLRB No . 208 (not reported in printed volumes of Board Decisions and Orders).
ESQUIRE, INC. 535
employees employed at a separate location, is appropriate. The parties also
disagree as to the inclusion or exclusion of several individuals.
The Employer is engaged in the production and sale of educational motion
pictures and television commercials. It maintains and operates a motion pic-
ture studio which is housed in a three-story building in Glenview, Illinois, a
suburb some 17 miles distant from downtown Chicago. In this studio it makes
all the necessary technical preparations for producing motion pittures, such as
designing and building the sets, photographs the various scenes, except such as are
required to be photographed "on location," and edits the completed films. On
the first floor of this building there is a large room with a suitable stage for
acting or narrating, used for the filming and sound recording of pictures.
To carry on its motion picture business, the Employer makes use of the trade
groups generally employed in the motion picture industry. It employs a set
designer who designs and-with the help of other employees-constructs, ar-
ranges, paints, and sets up the various scenes required by the script of a par-
ticular picture. It employs carpenters, electricians, painters, property men,
and the various other categories that are commonly known as stagehands. It
employs cameramen, assistant cameramen, film editors, and assistant film
editors.
The Employer also maintains and operates a laboratory in downtown Chicago.
All films produced at the studio are processed in this laboratory.' Although the
processing of the films is obviously an essential part of their completion for
marketing, this function is quite apparently not so integrated with the Employer's
studio operations as to make it a completely indispensable part of the Employ-
er's production processes. This is demonstrated by the fact, shown by the
record, that some of the Employer's competitors do not maintain their own
laboratories but send their films for processing to laboratories not connected with
their own operations.'
The Employer contends that the separate units requested by the Petitioners are
inappropriate because of (1) its centralized control and supervision over all its
employees; (2) the functional integration and interdependence of its various de-
partments; and (3) the interdepartmental transfers of its employees.
With respect to the first two reasons advanced, these factors although unques-
tionably present, do not appear to manifest themselves in a substantially greater
degree than in many cases where units less than plantwide have been found to be
appropriate. We do not believe that the centralized control of the Employer's
business and the integration of its various departments are such as to preclude
the establishment of separate units that otherwise would be appropriate.'
As to the interdepartmental transfers, we are not persuaded that they are
such as to preclude the appropriateness of the units sought Several employees
within the groups here involved were originally employed in jobs other than
those they now hold. 1 hese instances appear either to have consisted of the
temporary expedient of placing a new employee in a less desirable job because of
the absence of openings in better positions, or to have involved a short period
of training and adjustment before the employee was placed in the job to which
he appeared most suited. Thus each of the 2 cameramen, hired 6 or 7 years
ago, was originally placed in the studio stockroom for a brief time and then
transferred to general work on the studio floor for several months before taking
over the camera work.' Likewise two employees now in the editorial depart-
ment at the studio formerly worked at the Employer's downtown Chicago lo-
cation performing the comparatively routine functions of cutting, matching,
and sequencing film.' The cameramen and editors appear, however, to be per-
manently assigned to the positions they now occupy.
8 The processing consists of developing the black and white film, removing the "no good"
takes, cutting, splicing, printing, and storing of films. However, all the Employer's motion
pictures are originally taken in color The original color film, before black and white
copies are made, is sent to the Eastman Kodak Company for development.
4 One of the other principal producers of educational motion pictures, The Encyclopedia
Britannica Films, also located in Chicago, has no laboratory of its own, but sends its films
to outside laboratories for processing.
5 See The Visking Corporation, 101 NLRB 39 ; Knox Glass Bottle Co, 100 NLRB 4;
Burke Millwork Co., Inc., 100 NLRB 522
6 One of them also worked in the animation department for several months before going
on the floor as a cameraman
' One of these employees, who was transferred to the editing department about 10
months ago, is still doing cutting and splicing, but is assisting in editing and learning to
use discretion as to cutting film that is essential to the editing process.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is some occasional interchange of work, due to the fact that the Em-
ployer's entire complement is not large and employees may assist each other
in various tasks when needed. It is clear, however, that this occurs most fre-
quently among the studio production employees here sought as a separate unit,
and that the cameramen devote themselves primarily to camerawork and the
editors to their particular function. Further, although it was asserted that there
had been interchange between studio and laboratory employees, the record
discloses that since 1947 when the laboratory was moved from the studio to
its downtown location, employee interchange between the two operations has
been almost nonexistent.'
Upon the entire record in this case, and particularly because in the motion
picture industry groups of employees such as are involved herein have tradi-
tionally been represented in separate units, we find that the units requested by
the Petitioners are appropriate
There remains for consideration the disagreement of the parties as to the in-
clusion of the following individual employees: The Petitioners would include
in the studio production unit, but the Employer would exclude as supervisors,
Bernard Montgomery and Paul Seitzinger. The Employer would include, but
the Petitioners would exclude, . Ann Whitley, [and] Nancy Dana... .
The Employer's supervisory hierarchy is headed by John M. Abraham, a
vice president of the Employer, who is the general manager of the entire film
division, including the studio and laboratory. Under Abraham is the pro-
ducer, Richard Creyke, who is in charge of the entire studio. Under Creyke
there are two directors who divide between them the supervision of the cam-
eramen and studio production employees during the taking of motion pictures
and sound recording. The film editors work under Aubrey Moore, the su-
pervising editor. Peter Butzen supervises the animation department io
Montgomery is primarily a set designer. He reads the script and designs
sets according to the instruction in the script. He also works with the property
man, carpenter, electrician, and the painter, in the actual building of sets. Con-
trary to the Employer's contention, we find that he has no power to hire, dis-
charge, or discipline any of the employees with whom he works, or effectively
to recommend such action. He has never exercised such power. Nor does
he responsibly direct the work of any of the other employees. Upon the
entire record in this case, we find that Montgomery is not a supervisor within
the meaning of the Act, and shall include him in the unit of studio production
employees.
Seitzinger is classified as a sound mixer. He is a highly skilled employee
who performs his work in company with a recordist and a boom man. During
the taking of pictures he is stationed at the sound mixer in the studio and the
recordist is stationed in the sound truck housed in a garage adjoining the studio.
The boom man operates the microphone boom on the set being filmed. Al-
though these 3 employees must work in close coordination, and Seitzinger is
the most skilled of the 3, it does not appear that Seitzinger in fact responsibly
directs the work of the other 2. The Employer asserts that Seitzinger has
authority effectively to recommend the hiring or discharge of the 2 employees
with whom he works, but the record does not appear to support this assertion.
Although Seitzinger was informed when Brennan, the recordist, was hired,
Seitzinger was unacquainted with Brennan. The record does not establish that
8 The Employer also contended at the hearing that its motion picture enterprise should
not be bound by the traditional labor-relations practices of the motion picture industry
on the ground that it is comparatively small business producing principally educational
films , and does not use the technique and the equipment of the large producers of motion
pictures in the entertainment field We are not persuaded from the record made in this
case that there is merit to this contention On the contrary, it appears, as shown by the
modern equipment and techniques used by the Employer and the variety and extent of its
motion picture business, which amounted to approximately $1,000,000 in the last year, that
it is essentially part of the motion picture industry.
sTrans/ilm, Incorporated, 100 NLRB 78; Columbia Broadcasting System, Inc., 97
NLRB 566 The Employer asserts that the units here sought are inappropriate because
they are based solely on the extent of organization As the appropriateness of the units
here sought is supported by other factors, such as the distinctive nature of skills and work
performed, and absence of employee interchange, together with the history of bargaining
in the industry, we find no merit in the Employer's contention
10 The Petitioner generally agrees with the Employer's characterization of the above as
supervisors.
ESQUIRE, INC. 537
Seitzinger was asked to pass on Brennan's qualifications, and he made no recom-
mendation. Upon the entire record we find that Seitzinger is not a supervisor
within the meaning of the Act. We shall include him in the unit of studio
production employees.
Ann Whitley and Nancy Dana are primarily office clerical employees. They
are located in the "front" office, where Dana is responsible for operating the
switchboard and acting as receptionist. Whitley also sometimes performs
this function. Both of them also keep records of the picture production prog-
ress, keep timesheets for the other employees, take care of the producer' s files,
and type out scripts and letters. Upon the entire record we shall exclude Whit-
ley and Dana as office clerical employees.
* * * * * *
We find that the following groups of employees employed at the Employer's
Glenview, Illinois, studio constitute separate units appropriate for purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
Group (a): All motion picture studio production employees including elec-
tricians, carpenters, property men, sound mixer, recordist, boom man, set de-
signer , and animation employees, but excluding cameramen, assistant cam-
eramen, film editors, assistant film editors, the truckdriver, office clericals,
commissary employees, sales personnel, producers, directors, and all other su-
pervisors as defined in the Act.
Group (b): All cameramen and assistant cameramen, excluding all other
employees and all supervisors as defined in the Act.
Group (c): All film editors and assistant film editors, excluding all other
employees and all supervisors as defined in the Act.
The Board then directed elections among the employees in the three groups to
determine whether or not they desired to be represented, for purposes of collective
bargaining, as follows:
In Group (a) by Local 476, Studio Mechanics of the International Alliance
of Theatrical Stage Employees & Moving Picture Machine Operators of the
United States and Canada, AFL, I. A. T. S. E.;
In Group (b) by Lodge 666, International Photographers of the Motion Pic-
ture Industries of the International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada, AFL,
I. A. T. S. E.;
In Group (c) by Local 780, Motion Picture Laboratory Technicians of the
International Alliance of Theatrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada, AFL, I. A. T. S. E.
I quote further from the Board's supplemental decision and direction of elections
of October 2, 1953:
On July 10, 1953, the Regional Director issued his Report on Challenged Bal-
lots, in which he found that the eligibility of all five challenges had been
expressly determined by the Board in its Decision and Direction of Elections,
and that their duties had not changed since the hearing which preceded that
Decision. He recommended, therefore that the challenges to the votes of
Seitzinger and Montgomery be overruled and that the challenges to the votes
of Whitley and Dana . . . be sustained. On July 20, 1953, the Employer filed
exceptions to these recommendations.
The issue of the alleged supervisory status of Seitzinger and Montgomery
and the issue of the alleged community of interests of Whitley, [and] Dana
with the other employees in the unit were thoroughly investigated at the
hearing and thoroughly briefed to and considered by the Board in its Decision
and Direction of Elections of May 29, 1953. The Employer did not question
the Board 's eligibility determinations before the election, and the exceptions
set forth no newly discovered evidence, change of circumstances, or other
considerations which would lead the Board to alter its previous decision on
these matters. Accordingly, we shall overrule the challenges to the ballots of
Seitzinger and Montgomery and sustain the challenges to the ballots of Whitley,
[and] Dana . . . As the ballots of Seitzinger and Montgomery can affect the
results of the election, we shall direct that these ballots be opened and counted.
At the hearing in the instant case Respondent sought to introduce more evidence.
It pointed out that the petition originally filed by the Union described the unit
involved as including "all studio mechanics" and excluding "all other employees and
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors, as defined in the Act" and that on the last day of the hearing the Union
moved to amend the unit description stated in the petition to include "all motion
picture production employees who work at the employer's studio at Glenview,
Illinois, including electricians, carpenters, property men, mixer, recordist, boomman,
set designer, and animator, and to exclude cameramen, assistant cameramen, film
editors, assistant film editors, office and clerical employees, commissary employees,
outside truckdrivers, sales personnel, producers, directors, and all supervisors as
defined in the Act."
From this, and the position it took that the appropriate unit was a single unit
of all production and maintenance employees and production clericals, Respondent
contended that the testimony it produced at the representation hearing was presented
from, or slanted toward, the point of view of the relationship between all studio
employees, particularly production clericals (Whitley and Dana) and all of the
employees in the entire organization, and that it was not directed to the specific
relationship between the clericals and the production employees in the studio. It
is because, argued Respondent in substance, it was being attempted in the unit
hearing to determine the issue as to whether all employees in the organization were
to belong to one unit or separate craft units and because in the instant case the issue
is whether these two production clericals who worked at the studio should be included
in a unit consisting of studio production employees, that it should be allowed to
present further evidence concerning the relationship between the two clerical workers
and studio production employees. Respondent stated its position was that it might
offer evidence even though not newly discovered on an issue which it says is new
and concerning which there was no occasion to present testimony at the representa-
tion proceeding.
After hearing Respondent's argument and representations in the premises, I de-
clined to allow Respondent to present -evidence, whereupon Respondent made the
offers of proof set forth in "Appendix B" attached hereto, and marked certain exhibits
for identification. I reserved final ruling upon the offers of proof and the reception
of the exhibits until I had had an opportunity to study the testimony, exhibits, briefs,
motions, and other pertinent material in the representation proceeding. This I have
done and I now reject the offers of proof and exhibits.
It is fundamental that issues litigated in a representation proceeding may not
of right be relitigated in a complaint case wherein it is alleged an employer has
refused to bargain with a union which the Board has duly certified?
The basic question for determination here is whether the matter of the includ-
ability or nonincludability of Whitley and Dana in the unit found by the Board
to be appropriate was litigated or could properly have been litigated, in the repre-
sentation proceeding. The issue as to whether there should be 1 or 3 units was
present in the representation ab initlo. In 106 NLRB No. 208 (see footnote 2),
the Board stated that the issue of the alleged community of interests of Whitley and
Dana had been thoroughly investigated, briefed, and considered in 105 NLRB 205.
The issue was particularly emphasized by the allowance of the Union's motion,
without objection, to amend the petition by, inter alia, excluding office and clerical
employees therefrom. It is true that this motion was not made until the opening
of the last day of the hearing. Neither on that day, however, nor in its brief to the
Board filed March 7, 1953, nor in its exceptions to report of Regional Director on
challenged ballots filed July 17, 1953, nor in its exceptions to the supplemental
decision and direction of elections and its request for reconsideration thereof as
well as of the Regional Director's report on challenged ballots, nor at any other
time until the coming on for hearing of the instant case, did Respondent request an
opportunity to present the additional evidence, or evidence of a similar character
as that, which it now seeks to introduce. In its brief filed over a year ago on March
7, 1953, Respondent referred to testimony relating to Whitley's and Dana's duties
at the studio and contended contrary to the request of exclusion in the Union's
amended petition, that they should properly be included in the production and
maintenance unit. In its exceptions to the Regional Director's report, Respondent
again contended that Whitley and Dana should be included in the same unit with
studio production employees because the clerical work they perform is tied up with
phases of production, they assist in phases of production, mingle with production
employees and work in close proximity to, and under the same supervision as,
production employees. As appears above, the Board in its decision and direction
3 See Pittsburgh Plate Glass Co v N. L R B, 313 U. S. 146, 157-163; Allis Chalmers
Mfg Co v. N. L It. B., 162 F. 2d 435, 440, 441 (C. A. 7) ; Wilson Athletic Goods Mfg. Co.,
Inc v. N. L. It. B, 164 F. 2d 637, 639, 640 (C. A 7) ; N L. It. B v . West Kentucky Coal
Co., 152 F 2d 198, 200, 201 (C. A 6).
ESQUIRE, INC. 539
of elections expressly considered the disagreement of the parties as to the inclusion
of Whitley and Dana in the studio production unit and after making a finding
concerning their duties and upon the entire record found that they should be excluded
as office clerical employees.
Respondent would now like to offer more evidence . There is scarcely any lawyer
to whom there does not occur an apt reponse d'escalier after a trial is over. But
litigation cannot go on forever . Plainly the issue as to whether Whitley and Dana
belonged in a studio production unit was raised at the unit hearing . A reading of
the record therein shows that it contains considerable evidence directly concerning
their duties and relationship with other employees both in the studio and in the
laboratory . For convenience , I have set its substance forth in attached Appendixes
"C and D," without , of course , attempting to evaluate it. The question was pre-
sented to the Board. The Board determined it. Respondent 's contention that
the question of the relationship between these two clerical workers and other studio
employees was a new issue which was neither litigated nor susceptible of being
litigated in the representation proceeding is without merit . The facts contained in
the offer, if proved , are not newly discovered . As stated in its brief to me, Respond-
ent's attempt was to introduce "additional evidence" in an endeavor to clarify the
status of certain employees . Under these circumstances I feel myself bound by
the findings already made by the Board. I do not consider that the merit of any
claims that were, or could have been, advanced in the representation case is before
me for determination but rather that I serve only as a medium through whom the
question of such merit may reach the Board for its determination . The Board of
course may alter its decision in the earlier case. But for me to accede to Respond-
ent's request and hear more evidence on a matter the Board has already decided
would be equivalent to making a Board finding subject to review by a Trial Ex-
aminer. This would lead to the incongruous result of permitting a Trial Ex-
aminer , whose findings , under the express provisions of Section 4 (a) of the Act,
are reviewable by the Board , to himself recanvass Board determinations.'
As indicated above, Respondent on December 22, 1953, refused the request of
the Union to bargain collectively with the Union . For the reasons expressed above
I feel constrained to reject the Respondent 's defenses to the effect that the Union
was never the duly designated collective -bargaining representative of its employees
in an appropriate unit and that the Board 's certification in the representation proceed-
ing was invalid and of no force or effect.
Accordingly , I find that , on December 22, 1953, and at all times thereafter, the
Respondent has refused and is refusing to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit , which I find
comprises all motion picture production employees including electricians , carpen-
ters, property men, sound mixer, recordist , boomman, set designer, and animation
employees, but excluding cameramen, assistant cameramen , film editors , assistant
film editors , the truckdriver , office clericals, commissary employees , sales personnel,
producers , directors , and all other supervisors as defined in the Act , in violation
4 In its argument in support of its contention that it should be allowed to offer evidence
as to the relationships among the employees at the studio , Respondent referred particu-
larly to production clericals and its offers of proof relate mainly to them However, the
offers also reveal that testimony would be presented to the effect that Seitzinger signed
letters as "Recording Supervisor " and "Sound Supervisor," and that the stage manager,
who resigned in June or July 1952 , exercised supervisory authority . ( Counsel pointed out
that this man was succeeded by Montgomery .) Much evidence relative to the duties of
these two individuals , including their own testimony , was taken in the representation
proceeding . Their status was there at issue, litigated and determined . It scarcely seems
necessary for me to go to such length in dealing with whatever contention Respondent now
may have respecting these men as I have gone in treating the argument respecting Whitley
and Dana upon whose standing Respondent in this case has placed its first emphasis. Suf-
fice it to say, for the sake of brevity , that for the same reasons as those applying to Re-
spondent 's contentions regarding the office clericals , I decline to receive any further testi-
mony concerning the already decided status of Seitzinger and Montgomery . Because of
the fact that , as I read them , the proposed offers of proof contain nothing material to the
status of Hazel Manzelman and Fred Norman , I have refrained from mentioning them in
the general discussion of the case . However, Respondent in its brief to me has reargued
the contentions respecting them which it has previously briefed to the Board in the repre-
sentation case and urges that the Board ' s decision excluding them from the unit is arbi-
trary and capricious Even though the offers should be considered as including proposed
evidence relative to these two employees , I reiterate my belief that the merit of these
previously decided contentions is not before me for redetermination
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8 (a) (5) of the Act, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations'of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged in and is engaging in the unfair
labor practice of refusing to bargain collectively with the chosen representative of
its employees. It will be recommended that it cease and desist therefrom and
from like and related conduct. It will further be recommended that Respondent
bargain collectively, upon request, with the Union as the exclusive representative
of its employees in the aforesaid appropriate unit.
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. Local 476, Studio Mechanics of the International Alliance of Theatrical Stage
Employees & Moving Picture Machine Operators of the United States and Canada,
AFL, I. A. T. S. E., is a labor organization within the meaning of Section 2 (5)
of the Act.
2. All motion picture studio production employees including electricians, carpen-
ters, property men, sound mixer, recordist, boomman, set designer, and animation
employees, but excluding cameramen, assistant cameramen, film editors, assistant
film editors, the truckdriver, office clericals, commissary employees, sales personnel,
producers, directors, and all other 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. Local 476, Studio Mechanics of the International Alliance of Theatrical Stage
Employees & Moving Picture Machine Operators of the United States and Canada,
AFL, I. A. T. S. E., was, on November 24, 1953, and at all times since has been
the exclusive representative of all employees in the aforesaid unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By its refusal to bargain with the Union as such representative on and after
December 22, 1953, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practice, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, thereby engaging in an unfair labor practice within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with Local 476, Studio Mechanics
of the International Alliance of Theatrical Stage Employees & Moving Picture
Machine Operators of the United States and Canada, AFL, I. A. T. S. E., as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment, and other conditions
of employment, and if an understanding is reached, embody such understand-
ing in a signed agreement. The bargaining unit is:
All motion picture studio production employees including electricians,
carpenters, property men, sound mixer, recordist, boomman, set designer
ESQUIRE, INC. 541
and animation employees, but excluding cameramen, assistant cameramen,
film editors, assistant film editors, the truckdriver, office clericals, commis-
sary employees, sales personnel, producers, directors, and all other super-
visors as defined in the Act.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist
Local 476, Studio Mechanics of the International Alliance of Theatrical Stage
Employees & Moving Picture Machine Operators of the United States and
Canada, AFL, I. A. T. S. E., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in Section 8
(a) (3) of the National Labor Relations Act, as amended.
ESQUIRE, INC., (CORONET INSTRUCTIONAL FILMS DIVISION),
Employer.
Dated---------------- By---------------------------------------------
(Representative) (Title)
This notice must be posted for sixty (60) days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix B
Offers of Proof
Myron C. Davis would testify, if permitted, that he has been employed by Esquire,
Inc., as its general counsel since February 1946; that his office is on the 22nd floor
in the general offices of Esquire, Inc., at 65 East South Water Street, Chicago, Illi-
nois; that Esquire, Inc., is in the business of publishing magazines , calendars, and
advertising novelties, and also in the production, sale, and distribution of education
films; that the corporation has been engaged in that business during the years 1953,
1952, and many years prior thereto; that the educational films are and have been
for many years produced by Coronet Instructional Films Division of Esquire, Inc.,
and that the Coronet Instructional Films Division is not a separate business entity
or corporation, but merely a division of Esquire, Inc.; that the production of Coronet
instructional films is and has been carried on in the basement and on the 1st and
22nd floors of the building leased by Esquire, Inc., at 65 East South Water Street,
Chicago, and also carried on at a studio in Glenview, Illinois, a suburb of Chicago;
that the combined production of Coronet Instructional Films Division films is and
has been under the direction and charge of a general manager, John M. Abraham,
who is a vice president of Esquire, Inc., and one of its board of directors; that
Abraham has his office on the 22nd floor of the building at 65 East South Water
Street, in Chicago; that the general offices of Esquire, Inc., are and have been for
years located on the 19th, 20th, 22nd, and 24th floors of the building at 65 East
South Water Street; that the general office employees employed in those general
offices of Esquire, Inc., handle and work upon office transactions relating to the.
Coronet Instructional Films Division, as well as the other division, branches, and
phases of Esquire's business , and that this was true in the year 1953, and for many
years prior thereto; that among the departments in the general offices are to be,
found the following: The accounting and payroll department, the personnel office,
the office of the secretary of the corporation, the office of the treasurer and the con-
troller's office, located on the 19th floor; the purchasing officer, the room where
the switchboard is located, and the power facilities for the switchboard, located
on the 20th floor; the office of the vice president and general manager and his
secretarial staff, the sales and publicity department, the legal department, general
counsel 's office, and the library, located on the 22nd floor; and the office manager, the
teletype room, the fileroom and the mailroom, located on the 24th floor; that he is
familiar with the rooms and areas of the building at 65 East South Water Street
where the general offices are located, and he was familiar with them during
the year 1953 and prior thereto; that on February 11, 1954, he was present when
photographs were taken of the rooms and areas where various departments of the
general offices are located, that these pictures were taken by James DeWitt, who,
is employed by Esquire, Inc., as a still photographer for the publicity and sales
department; that a photograph marked for identification as Respondent's Exhibit
No. I is a view of the portion of the area where the accounting department is
located; that a photograph marked for identification as Respondent's Exhibit No. 2
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is a view of another portion of the accounting department, that a photograph marked
for identification as Respondent's Exhibit No. 3, is the treasurer's office, that a photo-
graph marked for identification as Respondent's Exhibit No. 4 is the office of the
secretary, that a photograph marked for identification as Respondent's Exhibit No. 5
is the personnel office, that a photograph marked for identification as Respondent's
Exhibit No. 6 is a view of the purchasing department; that a photograph marked
for identification as Respondent's Exhibit No. 7 is another view, of the purchasing
department office looking at the door behind which is a room wherein is located
the switchboard for all of the general office and other activities in the building;
that a photograph marked for identification as Respondent's Exhibit No. 8 shows
the switchboard room showing the plug-in type switch, that a photograph marked
for identification as Respondent's Exhibit No. 9 is the room adjoining the switch-
board room containing the electrical apparatus and devices necessary for the opera-
tion of the switchboard; that a photograph marked for identification as Respondent's
Exhibit No. 10 is a view of the sales and secretarial staff room showing the door
to the entrance to Abraham's office; that a photograph marked for identification as
Respondent's Exhibit No. 11 is a view of the library; that a photograph marked for
identification as Respondent's Exhibit No. 12 is the general counsel's office, with
the general counsel sitting at the desk; that a photograph marked for identification
as Respondent's Exhibit No. 13 is the fileroom, that a photograph marked as
Respondent's Exhibit No. 14 for identification is another view of the fileroom, that
a photograph marked for identification as Respondent's Exhibit No 15 is the tele-
type,,room, the place where the secretarial force to the general manager is located,
whose office is to the left of the picture, but not shown in the picture, that a photo-
graph that is marked for identification as Respondent's Exhibit No. 16, is the
mailroom; that all photographs marked for identification are true and accurate
representations of what each of them purports to show at the time DeWitt took
them, that there is no substantial difference in the general appearance of the areas
or rooms shown in any of the photographs marked for identification from the general
appearance of those areas or rooms as they existed in the years 1953 and prior
thereto, that in January 1953, there were about 75 persons employed in the general
offices and that there was no appreciable difference in the number of employees in
the general offices in the year 1952; that the employees in all of the production depart-
ments , in both Chicago and Glenview, take their vacations at the same period dur-
ing the year during a closedown for 2 weeks, and that the employees in the general
offices take staggered vacations during the summer months from about May 1 to
September 1.
Richard Creyke would testify, if permitted, that the production of films is carried
on, in part, at the Glenview, Illinois, studio, and in part in the basement and 1st
and 22nd floors leased by Esquire, Inc., at 65 East South Water Street, Chicago,
Illinois, and that the sole work done at the studio is the production of films; that
the general offices are located on various floors at 65 East South Water Street,
Chicago; that as of the time he testified in Case No. 13-RC-3086 in January 1953,
and prior thereto, he was in charge of the studio; that the general sales and pro-
motion, publicity, accounting, payroll, purchasing, and general secretarial and
clerical work for Coronet Instructional Films was not done at the studio, but rather
at its general offices in Chicago, and that the work of the studio was confined to
the production of films; that his superior is Abraham, whose offices are where his
secretarial and clerical force is also located; that at the time he testified on Jan-
uary 29, 1953, the chart marked for identification as Respondent's Exhibit No. 17
is a true and correct representation of the departmental and supervisory status at
the studio; that his office is located in the studio; that he is familiar with the lay-
out of the studio, and that he has been the producer since June 1947; that the
studio building is about 35- or 40-feet high, and about 60-feet wide, and about
100-feet long; that certain areas of the interior extend in height from the 1st
floor to the roof, while other areas are divided into 1st, 2nd, and 3rd-floor levels;
that the diagram marked for identification as Respondent's Exhibit No. 18 is a
substantially true and accurate diagram of the 1st-floor level of the entire studio
building as it was when he last testified and as it appears at present, that the dia-
gram marked for identification as Respondent's Exhibit No. 19 is a substantially
true and accurate diagram of the 2nd and 3rd-floor level areas of the studio as
it existed when he last testified and as it exists at present; that the area desig-
nated as "studio office" in the document marked for identification as Respondent's
.Exhibit No. 18, is the same office referred to in prior testimony as the "front"
office; that at the time he last testified there were 2 girls working at the studio,
Ann Whitley and Nancy Dana, whose work was largely clerical, but who occa-
sionally assisted other employees in various kinds of nonclerical production work;
that Whitley's and Dana's clerical work was directly related to the production
ESQUIRE, INC. 543
activities, that with respect to the document marked for identification as Re-
spondent 's Exhibit No. 18, the room in which these girls performed their clerical
duties is designated as the "studio office"; that the document marked for identi-
fication as Respondent's Exhibit No. 20 is a photograph of the studio office, and
that it is a true and accurate representation of what it purports to show and that
there is no substantial difference in the general appearance of the studio office
as shown in such photograph from its general appearance at the time when he
last testified ; that the doorway shown in the document marked for identification
as Respondent's Exhibit No. 20 leads to the witness' office; that the photograph
marked for identification as Respondent 's Exhibit No . 21 is another view of
the studio office taken from the doorway to the producer 's office, and looking
through to the reception room ; and that such photograph is a true and accurate
representation of what it purports to show, and that there is no substantial dif-
ference in the general appearance of the studio office depicted therein in Re-
spondent's Exhibit No. 21 from its general appearance at the time he last testi-
fied; that the switchboard shown in Respondent's Exhibit No. 21, for identifi-
cation, has been there for many years, is the only one that the studio ever had,
that the room which is visible beyond the office, and seen through the doorway,
is the main entranceway reception room of the studio, and the object next to the
wooden bench in the reception room is a hot water boiler or heater , and that
behind the bench , a portion of which is visible in the reception room, there is a
space heater located in the reception room which is not visible in the picture used
for heating the commissary ; that through the doorway to the left as shown in
Respondent 's Exhibit No. 21 , for identification , is visible stage No . 1 where shoot-
ing is taking place, and that the location of the doorway from this office to the
studio floor is only comparatively a few feet, that he supervises the 2 production
clericals who work in the studio office in common with all other production
employees at the studio, that he does not supervise any office personnel in Chicago;
that the 2 studio office clericals , in the course of clerical duties, have frequent
contact with the set department at the studio , might even type letters for the stage
manager or the property man, or obtain the floor work schedule from the stage
manager, make phone calls for the purpose of tracing properties , maintain a list
of supply sources for the property man, have contact with the sound supervisor,
have contact with personnel in the sound department in getting the logs of re-
corded sound , have contact with the animation department at the studio, enter
the information respecting logs of scenes on folders, make up a separate report
of animation work, maintain the records of all animation scenes needed for pic-
tures in production , supply the information to the producer in the animation
department , on very rare occasions type some letters for the animation depart-
ment, have contact with the editorial department , keep the film control folders,
record all film shot work print that comes from the laboratory, trace the scenes
for the editors which may involve work in going back and forth to the camera-
men and to other departments, type negative match notes, type master script to
be used on the floor and letters when required for the editorial department, may
have to be in the editing department an hour or two at a time in assembling film
records, have to type narrative script, obtain weekly schedules from the editorial
supervisor, and work with him in connection therewith, have contact with the
shooting crew, supply the directors with missing scene lists, send the directors
notice whether scenes are to be reshot , see that the script clerks make up the
payroll requisitions for actors , trace missing scenes in various departments in
the studio , occasionally type letters for the directors or script or cameramen if
needed, get releases from the actors , go to and be in other parts of the studio
where the different production departments are in operation , go to the set de-
partment to contact the stage manager and to the editing department, to contact
the editing supervisor in connection with the weekly production schedule, dis-
tribute production schedules all over the studio , deliver memorandums to the
production employees all over the studio, and track the time slips all over the
studio; that the regular workday at the studio begins at 9 a. m. and ends at
5:15 p. m., for all studio employees including the two girls in the studio office,
that the workweek at the studio of 5 days, Monday through Friday, applies to the
girls in question; that the regular lunch period at the studio, from 12:30 to 1:15
p. m., is observed by the 2 girls in the studio office as well as by the remaining
studio employees, all of the studio employees eat their lunch in the studio com-
missary and the production and clericals eat their lunch with the other girls, and
all of them mingle about in eating their lunch , with the exception that on alter-
nate days each of the 2 studio office clericals will take her turn sitting at the
switchboard , while the other is having her lunch with the other production em-
ployees; that the girl whose turn it is to sit at the switchboard usually eats her
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lunch at the switchboard , and it is not uncommon for other girls engaged in pro-
duction work , or the men engaged in production work, to join the girl sitting at
the switchboard while she is eating her lunch there ; that when a final picture is
screened , the office clericals at the ' studio join with all the other production workers
in viewing it; that it has been the policy at the studio for a number of years to
close the studio down for 2 weeks at a time selected by the Company, and during
that period all studio employees , including the 2 girls who are production clericals,
take their vacations , and that the studio office is not kept during those 2 weeks;
that the studio does not have separate restroom facilities for the 2 studio office
girls but the same restroom is used alike by the 2 office girls and all other women who
do nonclerical production work at the studio ; that the 2 girls in the studio office,
as well as the other production employees , are paid by check every 2 weeks, and
the 2 girls are paid on the same day as all other employees at the studio; and
that carbon copies of 3 letters , the originals of which were ostensibly signed by
Seitzinger ( and bearing on his supervisory status ), were not found at the time
of the original hearing , and were not introduced at the time that similar letters
were introduced in the original representation case.
James Walworth would testify, if permitted, that Frank Swig, to whom he was the
assistant , was the stage manager at the studio in Glenview; that he started to work
there in September 1949, and left the employ of the Company in September 1952;
that during the time he was employed the following was the departmental and organ-
izational setup at the studio : In charge of the entire studio was his producer, under
him there was the shooting crew section , and there were 2 shooting crews, with the
director, the cameramen or assistants , and the script clerk, there was also a set de-
partment of which Swig was head up to December 1949, and of which the witness was
head from September 1949 until September 1952; that there was a sound department
of which Stanfield was the head until Stanfield left approximately in January 1952 and
of which sound department Seitzinger was head after that time; that there was also
at the studio an art and animation department , of which Mr. Peter Butzen was the
head , and that there was an editorial department of which George Wilburn was head
for a portion of the time , and that he was succeeded by Richard Kirschner who was in
turn succeeded by Aubrey C. Moore; that when he started to work in the set depart-
ment as assistant to the stage manager, he was under the direction and supervision of
the stage manager and he succeeded the stage manager in that job when the incum-
bent left the employ of the Company in December 1949; that while he was stage
manager he had power and authority in the use of his independent judgment effec-
tively to recommend the hiring, transfer , suspension , promotion , discharge , and dis-
cipline of employees subject to his supervision , that his powers in that respect are
evidenced by the following illustrations which occurred while he worked for the
Company; that when the stage manager left the Company he became the stage
manager and the only employee in the set department subject to his authority, who
devoted full time to the set department , was George Trojan , but that other employees
from time to time assisted him in building sets whenever it was required ; that Swig,
while he was stage manager , had also been set designer, when the witness took charge
of the set department he attempted at first to get along with the assistant , George
Trojan , and these other employees whom he could get to assist him , and after a few
months he came to the conclusion that he needed another man in the set department
to take care of the front side of the sets , so that he could devote his time largely to
the back side; that he recommended to the producer that an additional employee be
hired, and the producer and the general manager acquiesced ; that the Company
thereupon advertized and there were many replies received from applicants for the
job; that he interviewed these applicants separately and together with the producer,
that one Camille Stoker was one of the applicants , that he liked Stoker's drawings
and recommended that Stoker be hired, and that upon his recommendations Stoker
was hired in the set department under his supervision ; that Stoker did not work out
well, he discussed Stoker's work with the producer on numerous occasions and
after about 4 months, when he was about ready to recommend his discharge , Stoker
found a new job; that he and Producer Creyke again interviewed applicants for a set
designer's job, he interviewed 2 of them alone , and 1 was Robert Zoeller, with whom
Creyke was much more impressed than himself, was hired about June 1950, and
worked for the Company until August or September 1950 when he resigned; that
Creyke and he went over replies they had gotten to the original advertizement and
that they called some of the applicants in to examine them with respect to finding a
replacement for Zoeller, that he again interviewed them , and one was Lester Lawrence
who impressed Creyke and who he hired in September 1950, and, like Stoker, this
employee did not work out well; that he discussed the capabilities of this employee on
many occasions , and the advisability of discharging him; that 1 day while he and
Creyke were discussing the matter , Lawrence walked into the office and said that he
ESQUIRE, INC. 545
was quitting , and when Lawrence had left the room Creyke and he remarked to each
other simultaneously , "That solves that very nicely," that Lawrence left the employ
of the Company about January 1951 ; that he again interviewed other applicants
for a set designer , he personally interviewed Barney Montgomery , recommended
Barney Montgomery, and on the basis of that recommendation Montgomery was
hired and remains in the employ of the Company; that in addition to the 2 men that
he regularly had subject to his supervision , he, because of the workload , found that
he could use an extra man to work on sets, and he found a man , Albert Whaletz, who
impressed him, whom he recommended , and who was hired upon his recommenda-
tion; that in June or July 1952 he advised the producer that he was intending to re-
sign, discussed with him the question of a successor for the stage manager 's job, and
he thought that Montgomery might be qualified to handle the job as well as the work
of set designer and accordingly recommended him for the job; that he on many oc-
casions discussed with the producer the work performance of George Trojan, the
property man, subject to his supervision , that Trojan was a loyal employee and knew
the city and where he could find props, and that he would even bring items from his
own home to be used on the set ; that Trojan however was not the kind of man who
could read a script, did not have sufficient background to determine all of the props
that might be needed , and would need supervision as to the specific kind of item
that he should obtain , and he would give that information and direction to him on
those occasions , that however, he on occasion recommended that Trojan 's salary be
increased ; that while he was stage manager he had authority in his own judgment
responsibly to direct the employees in the set department under his supervision, to
assign work to such employees , and to assign tasks to them ; that his responsibility
was to see that the sets built on the stage were put up in time for shooting scenes on
those sets ; and that by way of illustration he prepared the floor schedules for the
making of pictures , he might have to make the decision as to whether certain sets
could be produced for earlier shooting and would direct such employees as Trojan
to get the necessary props, might on occasion direct the designer , or whoever was
subject to his jurisdiction in that capacity , to get and prepare other items so that the
entire set might be prepared and ready for shooting at an earlier date than was
scheduled.
Appendix C
Anne Whitley at the studio talks to Helen Miller who selects film at the labora-
tory; finds out for cameramen whether scenes have been approved ; makes a great
many reports for the producer , the director , the cameraman , and others ; does some
typing in the office, sometimes works on the switchboard , often prepares meals used
in a picture ; at times gives advice regarding placement of properties , sometimes
helps maintain the camera log and does script work; acts as a focal point for com-
munications between the studio and the laboratory ; follows up in locating actors,
has assisted cameramen in checking the camera and moving articles to be photo-
graphed at close range; frequently takes bit parts; did office, clerical , and research
work until transferred to the studio approximately 3 years ago ; as one who keeps
reports she is required to pitch in and get sets ready when necessary ; is paid on a
weekly basis, works the same hours and enjoys the same benefits as other employees;
acts as a receptionist when at the switchboard ; does some typing and some type
of clerical work for the producer ; has a desk in the same area with the switchboard;
she does not help the cameraman with insert work ; sometimes engages in cheat
acting; works in the front office; she does no sound work ; the set designer has never
seen her do any work on properties , nor set construction nor painting on sets; she
relieves Dana at the switchboard ; occasionally hands a script to the set designer;
writes letters at the request of the prop man; she is carried on the daily time report
as performing general office work ; writes in the daily time sheets at the studio;
either she or Dana or both sometimes make out work schedules which are usually
received in the sound department from one of the office girls; 65 percent of her
work is with production control , the rest is typing for different people, scripts, nar-
rations, and keeping files ; keeps the information based on the logs made out by the
crews, reports from the laboratory and logs from work print inspection report, from
the sound department and the control folder; makes copies of information, trans-
poses information from reports to logs; quite often assists at the switchboard when
Dana is elsewhere engaged; often receives calls from laboratory personnel ; used to
work in the research and script department ; has helped in making up and costuming
actors, operates a ditto machine typing scripts and schedules ; does the heavy typ-
ing at the studio; types originals and copies of letters for signature , records infor-
mation from the animation department on the production control ; takes letters in
longhand and transcribes them; retypes letters placed on her desk; puts letters in
final shape and types them; takes dictation of a sort ; takes care of the producer's
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
typing, often typing letters for him; keeps the producer's files consisting of all the
information going into each picture and copies of letters she types for him; gets
material from the files for the producer, takes dictation from everyone there, from
both of the directors and types letters for the stage manager, the assistant stage
manager, the prop man; works in the front office with the producer and Dana; 65
percent of her time is spent in keeping records and the balance in operating the
switchboard, typing script and helping out on the set; helps Dana put account num-
bers on timesheets; acts as a receptionist; has quite a bit of correspondence; and it
is intended to give more, and as much purchasing work as possible to her and Dana.
Appendix D
Nancy Dana has worked for a number of years at the studio; she is located on
the telephone switchboard quite a bit; she has been a script clerk keeping the cam-
eraman's log up until the last 3 or 4 months-the log being a record of each scene
and each take of each scene as it is shot; at present she continues to fill in as a
script clerk; follows up for the men on the floor; assists in locating properties; runs
the ditto machine; does typing; makes out reports for herself and for others who do
not run a typewriter; assists with suggestions on sets; telephones to secure mem-
bers for casts; formerly interviewed prospects for casts; finds out for cameramen
whether scenes have been approved; might help move inserts around; as one who
keeps reports she is required to pitch in and get sets ready when necessary; is paid
on a weekly basis, works the same hours and enjoys the same benefits as other em-
ployees; acts as a receptionist when at the switchboard near which she is located
quite a bit of the time; is more responsible than others for watching this switch-
board, has a working space in the area which she uses in getting out reports; she
does not help the cameramen with inset work; sometimes engages in cheat acting;
her main duty is on the switchboard where she sits at a desk but formerly had been
a script girl; she comes to the studio and talks but most of the time is at the switch-
board in the office; has no definite job connected with the studio; probably informs
the sound recordist when the amplifier for the public address system in the front
office is not working; does no sound work, property work, set design work; car-
pentry work nor animation work; when she was a script girl she sounded clappers
at the beginning of a take, and put something in the record; the set designer does
not recall ever having seen her painting or doing any other work on, nor pushing
a dolly on, a set; she now spends most of her time at the switchboard; when a
script girl she located actors in their homes or agencies, kept some kind of a log,
touched up actors with powder and took nonspeaking parts; writes letters at the re-
quest of the prop man; she is carried on the daily time report as performing general
office work; either she or Whitley or both, sometimes make out work schedules which
are usually received by the mixer in the sound department from one of the office
girls; she works with whomever is in the front office typing out the time reports,
sometimes goes out on the floor as an actor and helps with making lunch, has been
seen painting scenery, painting sets, and putting them together a couple of times
and pushing dollies; formerly did all things pertaining to the work of a script girl;
has done some slicing in the script department; telephones to locate properties and
does some casting, helps in costuming actors; types out some letters of and for
the producer; usually places telephone calls for the producer; works in the front
office with the producer and Whitley; makes out time sheets; has helped out in the
editorial department; spends 75 or 80 percent of her time in the front office; acts
as a receptionist; has been seen operating the mixer on a sync take before she came
to the front office; and it is intended to give more and as much purchasing work
as possible to her.
BAIRD-WARD PRINTING CO., INC. and NASHVILLE PRINTING PRESSMEN
& ASSISTANTS' UNION No. 37, INTERNATIONAL PRINTING PRESSMEN
& ASSISTANTS' UNION OF NORTH AMERICA, AFL . Case No. 10-CA-
1773. July N9,1954
Decision and Order
On April 2, 1954, Trial Examiner Loren H. Laughlin issued his
Intermediate Report in the above-entitled proceeding, finding that
109 NLRB No. 96.