Loew's, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1943

52 N.L.R.B. 1453 (N.L.R.B. 1943)

In the Matter of LoEw's, INCORPORATED and METRO-GOLDwYN-MAYER
STUDIO MAINTENANCE GUILD and STUDIO MISCELLANEOUS EMPLOYEES,
LOCAL No. 1104, INTERNATIONAL HOD CARRIERS, BUILDING & COMMON
LABORERS UNION OF AMERICA, AFL and LOCAL No. 99, BUILDING
,,,VICE EMPLOYEES INTERNATIONAL UNION, AFL
Case No. 21-RE-18.-Decided October 16, 1943
Mr. William R. Walsh, of Culver City, Calif., for the Company.
Mr. David Sokol, of Los Angeles, Calif., for the Hod Carriers.
Mr. John C. Stevenson, of Los Angeles, Calif., for the Building
Employees.
Katz, Gallagher d Margolis, by Mr. Ben Margolis, of Los Angeles,
Calif., for the Guild.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon amended petition duly filed by Loew's, Incorporated, Culver
City, California, herein called the Company, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
its employees, the National Labor Relations Board provided for an
appropriate hearing upon due notice before William B. Esterman,
Trial Examiner. Said hearing was held at Los Angeles, California,
on September 25, 1943. The Company; Metro-Gold wyn -Mayer
Studio Maintenance Guild, herein called the Guild; Studio Miscel-
laneous Employees, Local No. 1104, International Hod Carriers,
Building & Common Laborers Union of America, A. F. L., herein
called the Hod Carriers; and Local No. 99, Building Service Em-
ployees International Union, A. F. L., herein called the Building
Employees, appeared, and participated.' All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Exam-
' Studio Utility Employees Union, Local 724, also served with notice, did not appear at
the hearing.
52 N. L. R. B., No. 245.
1453
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Loew's, Incorporated, is engaged in the production and distribu-
tion of motion pictures in every State in the United States. It
operates through a producing studio located at Culver City, Califor-
nia, and 32 branch offices. From October 1, 1939, to October 1, 1940,
the Company produced and released 50 feature-length motion pic-
tures, 70 short subjects, and 104 news reels. A majority of these
pictures was produced at the Metro-Goldwyn-Mayer Studios at Cul-
ver City, California, the only plant of the Company directly involved
in this proceeding. The negatives of the motion pictures are sent
to laboratories at the Metro-Goldwyn-Mayer Studios or to labora-
tories at Fort Lee, New Jersey.' Positive prints of the motion pic-
tures are shipped to various exchanges for distribution to exhibitors,
who, after using them, return them to the exchanges. During the
period noted above, the Company's New York and New Jersey ex-
changes, both of which are located in New York City, received from
laboratories 1,271 prints of feature pictures, 927 prints of short sub-
jects, and 11,652 prints of news reels. The extent of the Company's
business at the present time is substantially the same as in =1939
and 1940.
II. THE ORGANIZATION INVOLVED
Metro-Goldwyn-Mayer Studio Maintenance Guild is an unaffili-
ated labor organization, admitting to membership employees of the
Company.
Studio Miscellaneous Employees, Local No. 1104, International
Hod Carriers, Building & Common Laborers Union of America is
a labor organization affiliated with the American Federation of La-
bor, admitting to membership employees of the Company.
Local No. 99, Building Service Employees International Union, is
a labor organization affiliated with the American Federation of Labor
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On December 30, 1937, the Company entered into a 3-year contract
with the Guild, covering the building service employees at the Com-
pany's Metro-Goldwyn-Mayer studios at Culver City, California.
LOENV'S, INCO RPORATED 1455
On November 13, 1940, the contract was amended and extended to
December 30, 1943.
In April 1943 the Hod Carriers informed the Company that the
Hod Carriers represented a majority of its building service em-
ployees and demanded recognition as their bargaining agent. The
Company refused to recognize the Hod Carriers without proof of
its majority representation. On or about June 3, the Hod Carriers
presented to the Company authorization cards signed by employees
of the Company for checking against the pay-roll signatures. When
the pay-roll check revealed that the Hod Carriers did not represent
a majority of the Company's employees, the Company refused to
recognize the Hod Carriers and cited its contract with the Guild as
a bar to any immediate recognition.' On June 21, the Hod Carriers
presented to the Company additional authorization cards and a letter
addressed to the Company signed by the secretary and a committee-
man of the Guild, advising the Company that on June 20, 1913, the
Guild had voted to merge with the Hod Carriers and that by this
act and notice to the Company, the contract between the Company
and the Guild was, by its provisions, terminated. The cards sub-
mitted with this letter indicated that the Hod Carriers represented
a substantial majority of the Company's employees. On June 23,
the Company formally recognized the Hod Carriers as the sole
bargaining representative of its building service employees at the
studios. On June 30, the president of the Guild advised the Com-
pany by letter that the meeting of June 20 was not a regular, meeting
of Guild members properly called, but a general meeting of em-
ployees of the Company, that the Guild was still in existence as an
independent labor organization, and that members of the Guild pre-
ferred to defer any decision with respect to outside affiliation until
an election should be held by the Board. On July 7, the Company
advised the Hod Carriers of the protest raised by the Guild and
formally withdrew the recognition accorded to the Hod Carriers on
June 23. In the meantime the Building Employees, with which the
Company has contracts for employees in other branches of its enter-
prises, informed the Company that the Building Employees repre-
sented its building service employees at the studios. The Building
Employees submitted to the Company no proof of its claim of
representation.
2 Section 10 of the contract provides:
In the event any court, board or other governmental or administrative agency or
tribunal, pursuant to law determines or orders that this agreement , or any part
thereof, shall or should be disestablished or terminated or that the employees, or some
of them„ are or are entitled to be represented by some one other than the Guild, or if
the Guild affiliates or merges or consolidates with any other employees ' association
or organization , this agreement may be terminated forthwith by either party. Such
termination shall be effected by the service of a notice of termination by the party so
terminating upon the oilier.
1456 DECISIONS OF NATIONAL LABOR RE'LATION'S BOARD
On July 11, the Guild called a meeting for the purposes of hear-
ing talks by representatives of the Hod Carriers and the Building Em-
ployees. At the meeting there was a heated discussion by employees
with respect to their retaining or abandoning the Guild. Two votes
were informally taken. The first vote called for a decision whether
the Company's employees should retain the Guild as their bargaining
agent or whether they would join an affiliated labor organization.
This vote resulted in a 22 to 38 vote in favor of joining an affiliated
organization. A second vote was called to ascertain the employees'
choice between the Hod Carriers and Building Employees. This vote
resulted in 34 votes cast for the Hod Carriers and 26 votes cast for the
Building Employees. Subsequent to this meeting, its legality and
the efficacy of the voting done were questioned. The meeting was
not called with the formality of notice prescribed by the bylaws of
the Guild and non-members of the Guild as well as members par-
ticipated in the voting.3 The president of the Guild, by letter, ad-
vised the Company of the situation and on August 3, the Company
filed the petition in the instant proceeding.
The Company contends that there is no bona fide jurisdictional dis-
pute between the Hod Carriers and the Building Employees; that the
Guild is torn by conflicting factions among its employees; that the
Guild has not functioned as an active labor organization since March
1943; that its contract with the Guild is therefore no bar to a deter-
mination of representatives at this time; and that an election is neces-
sary to resolve the question concerning the representation of its em-
ployees. The Guild contends that it is an existing labor organization
and that its contract with the Company, expiring December 30, 1943,
is a valid and existing contract and constitutes a bar to a determination
of representatives at this time. On the one hand, the Hod Carriers
contends that 3 years is an unreasonable time for the duration of a
contract between the Company and its employees and that the contract
between the Company and the Guild is for this reason no bar to a
determination of representatives. On the other hand, the Hod Car-
riers contends that the Guild has by its own action ceased to exist
as an unaffiliated labor organization; that its members have signed
cards either for the Hod Carriers or for the Building Employees or
for both; that a jurisdictional dispute, therefore, exists between two
labor organizations affiliated with the same parent organization, both
of which claim to represent the same employees of the Company;
and that for this reason the Board should dismiss the petition of the
Company filed herein. The Building Employees expressed no posi-
tive position with respect to the several issues thus raised.
8 The bylaws of the Guild require that all members be notified in writing at least one
week in advance of assembly meetings.
LOEW'S, INCORPORATED 1457
The original contract between the Company and the Guild had run
for a 3-year period in 1940 when it was formally amended and re-
newed for an additional 3-year period terminating D3cember 30,
1943. At this time the renewed contract has run its full course except
for a period less than 90 days. We find it unnecessary to make any
finding with respect to the reasonableness of the 3-year term or the
effect of the provision for an earlier termination. We find that, in any
event, the contract between the Company and the Guild is about to
expire and that it does not therefore constitute a bar to a determina-
tion of representatives for the purposes of negotiating a new contract
to succeed the contract now in force .4
The Hod Carriers and the Building Employees, both of which are
affiliated with the American Federation of Labor, each claims to
represent the Company's building service employees. We do not
ordinarily entertain a petition for investigation and determination of
representatives upon the petition of a labor organization when a
competing organization affiliated with the same parent body claims
to represent the same employees. The Company, and not a labor
organization, filed the petition herein. The Guild is not affiliated
with the American Federation of Labor. If it is a competing labor'
organization, we cannot, by dismissing the petition, remit to a single
parent organization of affiliated unions the resolution ' of their re-
spective jurisdiction over the employees concerned. The Hod Car-
riers contends that the Guild has ceased to exist as a labor organiza-
tion. The Company cites the defection of Guild members and the
uncertainty of its existence in support of the Company's need for
an adjudication by the Board. The Guild has a constitution and by-
laws setting forth in usual terms its aims and purposes as a labor
organization of the Company's employees. It has served as their
bargaining representative since 1937. On two occasions in the past it
entered into bargaining contracts with the Company, one of which
has not yet expired. In March 1943, the Guild conferred with the
Company with respect to a wage increase for janitors. On March
29, by letter, the Guild reported to the Company its formally con-
sidered position with respect to the amount of the raise sought.
About this time, and before any action was taken by the Company
with respect to the increase, the Hod Carriers made its demand upon
the Company. The Company did not thereafter grant the increase
requested by the Guild. On June 23, the Company withdrew its
recognition of the Guild. There is no evidence to indicate that the
Guild lacks officers, members, or funds to prevent its effective repre-
sentation as bargaining representative of the Company's employees.
Cf Matter of Rosedale Knrotttng Company, 23 N L R . B. 527 ; Matter of Chrysler Motor
Parts Corporation , 38 N. L . R B. 1378.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Guild was represented at the hearing and participated in this
proceeding. We find that the Guild has not ceased to exist as a
labor organization representing the Company's employees. The rec-
ord, however, clearly discloses a present difference of preference
among the Company's employees for a bargaining representative.
Under these circumstances, ive find that the jurisdictional dispute
between the Hod Carriers and the Building Employees does not
constitute a bar to our determination of the question concerning the
representation of the Company's employees.5
A statement of the Field Examiner introduced into evidence at
the hearing indicates that the Guild, the Hod Carriers, and the
Building Employees each represents a substantial interest among
employees in the unit herein found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties agree, and we find, that all janitors, matrons, and
streetsweepers employed by the Company in and about its studios
should be included in the bargaining unit and that the department
head, the assistant department head, night foremen, and day fore-
men should be excluded therefrom. In accordance with our usual
custom, and our definition of the term, we shall also exclude all other
supervisory employees from the bargaining unit.
We find that all janitors, matrons, and streetsweepers employed
by the Company in and about its Metro-Goldwyn-Mayer Studios at
Culver City, California, excluding the department head, the assistant
department head, night foremen, day foremen, and all other super-
visory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of -employees, or
Matter of Weyerhaeuser Timber Company, 42 N L R B. 499
e The Guild submitted 5 petitions bearing in all the names of 36 employees of the Com-
pany on the pay roll of August 7, 1943. All petitions were dated August 1913 and reaffirmed
the designation of the Guild as the collective bargaining agent of employees whose names
they bore.
The Hod Carriers submitted 75 application cards bearing apparently genuine signatures
of employees on the Company's pay roll of August 7, 1943. Of the cards, 5 were undated,
and the remaining dated in 1943.
The Building Employees submitted 23 cards bearing apparently genuine signatures_ of
employees on the pay roll of August 7, 1943. Of the cards, 5 were undated, and the
remaining dated in 1943.
Eight of the names appearing on the applications of the Hod Carriers appeared also on
the cards submitted by the Building Employees and by the Guild. Thirteen names appear-
ing on the cards submitted by the Hod Carrieis were the names of employees appearing on
the petitions submitted by the Guild, but not on the cards submitted by the Building Em-
ployees. Seven of the names appearing on the cards submitted by the-Hod Carriers appeared
on the cards submitted by the Building Employees , but not on the petitions of the Guild.
Eight of the names appearing on the petitions submitted by the Guild appeared on the cards
submitted by the Building Employees , but not on the cards submitted by the Hod Carriers.
There are approximately 96 employees in the appropriate bargaining unit.
LOEW'S, INCORPORATED 1459
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
V. TEE DETERMINATION OF REPRESENTATIVES
We find that the question concerning the representation of the Com-
pany's employees can best be determined by an election by secret
ballot.
Those eligible to vote in the election shall be all employees of the
Company in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately, preceding the
date of the Direction of Election herein, subject to the limitations and
additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Loew's, Incorpo-
rated, Culver City, -California, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Twenty-first Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Ar-
ticle III, Sections 10 and 11, of said Rules and Regulations, among all
employees of the Company in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding employees who have since quit or been discharged for
cause, to determine whether they desire to be represented, by Metro-
Goldwyn-Mayer Studio Maintenance Guild, or by Studio Miscella-
neous Employees, Local No. 1104, International Hod Carriers, Build-
ing & Common Laborers Union of America, A. F. L., or by Local No.
99, Building Service Employees, International Union, A. F. L., for
the purposes of collective bargaining, or by none.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.
549875-44-vol. 52-93