Film & Dubbing Productions, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 583 (N.L.R.B. 1970)

FILM & DUBBING PRODUCTIONS 583
,Film & Dubbing Productions , Inc. and Asociacion
Puertorriquena de Artistas Y Tecnicos Del
Espectaculo , Petitioner . Case 24-RC-3783
March 6, 1970
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 24, 1969, the Regional Director for
Region 24 issued his Decision and Order in the
above-entitled proceeding, in which he dismissed the
petition on the ground that the translators sought to
be represented were independent contractors within
the meaning of Section 2(3) of the National Labor
Relations Act, as amended. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, the
Petitioner filed a timely request for review of the
Regional Director's Decision contending that the
translators are employees. The Employer filed an
opposition to the Request for Review.
On October 28, 1969, the National Labor
Relations Board by telegraphic Order granted the
request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the entire record in this
case with respect to the issues under review, and
makes the following findings.
The Petitioner seeks to represent approximately
five individuals who do translation work for the
Employer. The Regional Director, in agreement
with the Employer, found that these individuals are
independent contractors and, accordingly, dismissed
the petition.
These five individuals translate film dialogues for
the Employer who in turn supplies the translations
to Telemundo, Inc., for television broadcast. The
translator, upon being assigned a film, views the
film at the Employer's premises so as to acquaint
himself with the type of film involved and the
numbers and types of dialogues used by the actors.
The translator then is given a tape on which he is to
write the translation. This tape has been prepared by
an employee of the Employer, called a detector, who
indicates with appropriate markings on the tape the
beginnings and endings of the actors' spoken words
and whether the words involve open mouth or half
closed mouth movements of the actors. The
translator's job is to write, with a dark-lead pencil,
the translation on the spaces indicated by the
detector's markings. This is "adjusting" the actors'
dialogue. The translator also fits, i.e., synchronizes,
the translations to the actors' mouth movements.
The translators do the actual translation work in
their own homes at their own convenience without
any direct supervision.
The completed tape is subjected to an inspection
by the Employer's verifier. The verifier indicates
what he believes to be errors with respect to
grammar, idiomatic expressions, translation,
dialogue adjustment, and synchronization. The
translator makes any necessary corrections.
Prior to retention of a translator, the Employer
administers a test to determine the translator's
abilities. Translators are paid a fee for each film
translated and are free to' accept or reject any job
offered. Translators are also free to work for other
employers. The Employer makes no deductions for
social security or income tax and does not provide
workman's compensation insurance. Further, the
Employer can terminate the relationship at any
time.
On the basis of the above facts, the Regional
Director found that the translators are independent
contractors. We disagree.
It is well established that the existence of an
employment relationship, as opposed to that of
independent contractor, depends upon whether the
principal has retained the right to control the
manner and means by which a result is to be
accomplished by the individual performing the
service. Where the control is limited to the result
sought, the relationship between the individual
performing the service and the principal is that of
independent contractor. In determining whether an
individual is an employee or independent contractor
"all of the incidents of the relationship must be
assessed and weighed with no one factor being
decisive." N.L.R.B. v. United Insurance Co., 390
U.S. 254, 258. And while some factors will point
unmistakably to either an independent contractor
relationship or to an employee-employer
relationship, other factors may be indicative of
neither.
Consistent with this approach we find here,
contrary to the Regional Director,' that the
Employer has retained the right to control the
manner and means by which the translators perform
their work. Thus, while the Regional Director found
that the translators are free to work at their own
'Among the cases cited by the Regional Director is the Board 's decision
in El Mundo , Inc , 127 NLRB 538, involving the predecessor of this
Employer' s parent corporation The Board found there that translators
were independent contractors
The Employer contends that the translators sought in the present case
are the same as those dealt with in El Mundo , Inc , supra Assuming the
Employer to be correct in this contention, an assumption not supported by
the record, the Board is not thereby precluded from again considering the
status of these individuals as it may appear from the present record.
Cement Transport Inc, 162 NLRB 1261, see also Chrysler Corporation,
173 NLRB No 160 at fn 3, and The Maxwell Company, 164 NLRB 713.
The Regional Director also relies on Twentieth Century Fox Film
Corp, 89 NLRB 102 at 112, fn 5, and Twentieth Century Fox and
Movietone News. Inc, 39 NLRB 579 at 581, fn 2 We find these two
cases inapposite In the former the petitioner did not seek to represent
translators , and in the latter the election was directed in an agreed-upon
unit which excluded translators
181 NLRB No. 86
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speed and convenience, the record makes clear that
the work performed by the translators is a necessary
and continuous part of the Employer's business.
Further each translator is given a fixed day every
week to submit his or her film for inspection and
verification . 2 In addition , on at least one occasion,
the Employer has withheld work where a translator
overstayed a vacation. The Employer determines
qualifications of translators and tests prospective
translators. Translators are paid fees, as found by
the Regional Director, rather than wages, but these
fees are determined by the Employer and are not
subject to negotiation, and the Employer is also able
to control a translator's earnings by determining the
number and type of the translator's assignments.
Though translators are free to perform the
translation at a place other than the Employer's
premises , the translators must initially view the film
and later verify the translation at those premises.
And while the translators perform the actual work
of translating without contemporaneous supervision
that work is circumscribed and controlled by the
tape prepared by the Employer's detector and by the
inspection procedure performed under the
supervision of the Employer's verifier. In all these
'While translators can and do make arrangements among themselves for
submitting their tapes for verification the Employer is notified Whether or
not the Employer must authorize the schedule change is not clear from the
testimony However, an inter-office memorandum dealing with the
schedule states that "any change that may arise because of problems of the
translator should be consulted directly with the Manager 's office"
circumstances we find that . the translators are
employees. 3
Accordingly, we find that a question affecting
commerce exists concerning the representation of
employees of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
We find that the unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act consists of:
All translators employed by the Employer at its
place of business at El Mundo Building, Hato
Rey, Puerto Rico, excluding all other employees,
administrative personnel, guards and supervisors
as defined in the Act.
[Direction of Election S omitted from publication.]
3Cf J R Osherenko, 73 NLRB 670
'The parties stipulated that, in the event the translators were found to be
employees, a unit limited to translators is appropriate
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, NLRB v Wyman-Gordon
Company, 394 U S 759 Accordingly, it is hereby directed that an election
eligibility list containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 24
within 7 days of the date of this Decision on Review and Direction of
Election The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed