Marcus Loew Booking Agency

National Labor Relations Board - Board Decisions

Feb 9, 1942

38 N.L.R.B. 1015 (N.L.R.B. 1942)

In the Matter Of MARCUS LOEW BOOKING AGENCY AND LOEW'S, INC. and
SCREEN PUBLICISTS GUILD OF NEW YORK.
Case No. B-3369.-Decided February 9, 19112
Jurisdiction : motion picture distribution industry.
Investigation and Certification of Representatives : existence of question stipu-
lation that a question concerning representation exists by reason of the Com-
pany's refusal to recognize either of two competing unions until one or the other
is certified by the Board ; competing union which made no showing of representa-
tion in the unit found appropriate, not accorded place on the ballot; election
necessary.
Unit Appropriate for Collective Bargaining : all advertising copy writers, press-
book editors and writers, publicity and feature writers, planters and contact
men who work within the State of New York, production men, exploita-
tion men who work mainly in New York City and the surrounding metro-
politan area, and salaried artists employed in the domestic advertising and
publicity department of the New York City office of Marcus Loew Booking
Agency, excluding free-lance artists, secretaries, clerks, messenger boys, de-
livery boys, free-lance writers, artists in art studios, and supervisory em-
ployees; proposed unit of "salaried artists" employed by the respondents and
an independent sign painting company held inappropriate in the absence of
any common agent exercising employer functions, or any previous history of
collective bargaining on the basis of a single unit
Mr. Irving H. Greenfield and Mr. Morris Sher, of New York City,
for the Company.
Boudin, Cohn d Glickstein, by Mr. Sidney Fox, of New York City,
for the Guild.
Mr. Louis Waldman and Mr. Samuel Duker, of New York City, for
Local 230.
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 12 and November 5, 1941, Screen Publicists Guild of
New York, herein called the Guild, filed with the Regional Director for
the Second Region (New York City) a petition and an amended peti-
38 N L R B, No. 188
1015
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, respectively, alleging that a question affecting commerce had
arisen concerning the representation of employees of Marcus Loew
Booking Agency and Loew's, Inc., New York City, herein called the
Companies, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On November 19, 1941, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act, and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
On November 21, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Companies and the
Guild. Pursuant to notice, hearings were held on November 28 and
December 3, 4, 5, 6, and 8, 1941, at New York City, before Frederick R.
Livingston, the Trial Examiner duly designated by the Chief Trial
Examiner. On the second day of the hearing, the Trial Examiner
granted a motion by Sign Pictorial & Display Union, Local 230, herein
called Local 230, to intervene in this proceeding. The Companies, the
Guild, and Local 230 were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. During the course of the hearing, the Trial Ex-
aminer made various rulings on motions and on objections to the ad-
mission of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Marcus Loew Booking Agency is a New York corporation and a
subsidiary of Loew's, Inc. It is engaged in managing theatres and
operating radio station WHN, which is licensed by the Federal Com-
munications Commission. In the course of its business, the Marcus
Loew Booking Agency enters into licensing agreements with exchanges
of Loew's, Inc., and other producers and distributors for the exhibition
of motion pictures.
Loew's, Inc., a Delaware corporation, is engaged in the distribution
of motion pictures in every State of the United States, operating
through the medium of 32 branch offices. The majority of its motion
pictures are produced in California. The negatives of the motion
pictures are sent to laboratories either on the Pacific coast or at Fort
MARCUS LOEW BOOKING AGENCY 1017
Lee, New Jersey. The positive prints are shipped to various exchanges
for distribution to exhibitors who, after using them, return them to the
exchanges. From October 1, 1939, to October 1, 1940, Loew's released
50 feature motion pictures, 70 short subjects, and 104 news reels. Dur-
ing the same period, Loew's New York and New Jersey exchanges,
which are located in New York City, received from the laboratories
1,271 prints of feature pictures, 927 prints of short subjects, and 11,652
prints of news reels. The New York and New Jersey exchanges service
700 theatres in New York and 272 in New Jersey.
Marcus Loew Booking Agency, as well as Loew's, Inc., admit that
they are engaged in commerce within the meaning of the Act. We
find that Marcus Loew Booking Agency and Loew's, Inc., are employ-
ers of the employees here involved within the meaning of Section 2 (2)
of the Act.
II. THE ORGANIZATIONS INVOLVED
Screen Publicists Guild of New York is an unaffiliated labor organ-
ization which admits to membership employees of the Company.
Sign Pictorial & Display Union, Local 230, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Companies and the Guild stipulated that a question concerning
representation has arisen by reason of the Companies' refusal to bar-
gain with either the Guild or Local 230, unless such union is certified
by the Board.
A statement by the Regional Director which was introduced at the
hearing indicates that the Guild represents a substantial number of
employees in the unit hereinafter found to be appropriate.' Local 230
admitted that it did not represent any of the "salaried artists" or other
employees within such unit.
We find that a question has arisen concerning the representation of
employees of the Companies.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Companies
' The statement shows that the Guild submitted 8 membership application cards, 6 of
which were dated in May 1941 and 2 in June 1041. All signatures appeared to be genuine
and corresponded to the names of persons appearing on the Companies ' pay roll of October 3,
1941 . From a stipulation entered into at the hearing , it appears that there were , at that
time , 12 persons within the unit which the Guild claims to be appropriate
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. TIIE APPROPRIATE UNIT
The Companies and the Guild stipulated that all advertising copy
writers, press book editors and writers, publicity and feature writers,
planters and contact men who work within the State of New York,
production men, exploitation men who work mainly in New York
City and the surrounding metropolitan area, and salaried artists em-
ployed in the domestic advertising and publicity department of the
New York City office of Marcus Loew Booking Agency, herein called
the Booking Agency, excluding free-lance artists, secretaries, clerks,
messenger boys, delivery boys, free-lance writers, artists in art studios,
and supervisory employees, constitute an appropriate unit.z Local
230 contends that salaried artists employed by the Companies, as well
as another group of salaried artists employed by Loew's, Inc., together
with the salaried artists employed by Sterling Sign Company, herein
called Sterling, constitute an appropriate unit.' Sterling is one of the
Booking Agency's numerous suppliers of lobby displays, marquee
transparencies, signs, and pictorial posters. It devotes about 95 per-
cent of its work to orders of the Booking Agency.
It does not appear, nor is it claimed, that there is any corporate
relationship between Sterling and either Loew's, Inc., or the Booking
Agency. Neither of the Companies has, or exercises, any control over
the operations of Sterling, and the latter does not have, or exercise,
any control over the operations of either of them. On the other hand,
the record indicates that the Companies and Sterling exercise separate
and exclusive control over the essential employer functions of their
respective employees. There is no previous history of collective bar-
gaining by the three companies on the basis of a single unit. Under
the circumstances, we find that a single unit comprising the "salaried
artists" of the three companies, as requested by Local 230, cannot
constitute an appropriate unit for the purposes of collective bargain-
2 After Local 230 intervened, counsel for the Companies stated that he wished to with-
draw from the stipulation, previously catered, the names of McCarthy and Marcus, on the
ground that they were supervisory employees The Guild agreed to the exclusion of
McCarthy as a supervisory employee, but iclused to consent to the exclusion of Marcus
The issue thus presented is discussed below.
3 Local 230 also contends that the artists do not constitute a proper part of a unit which
includes writers and publicists, within a single unit In Hatter of Twentieth Century-Fox
Film Corp . and Screen Publicists Guild, etc, 32 N L R B, No 130, the Board found appro-
priate a unit which combined artists, wi teis, and publicists. We see no reason to reach a
different conclusion in this proceeding.
MARCUS LOEW BOOKING AGENCY 1019
ing within the meaning of the Act.4 In addition, the "salaried artists"
employed by Loew's, Inc. have already been found by the Board to
comprise a part of an appropriate unit of employees of Loew's, Inc.'
There remains for determination the status of Henry Marcus. The
Companies contend that Marcus is a supervisory employee and should
be excluded from the appropriate unit. The Guild claims that lie is
one of the salaried artists and should be included; Local 230 does not
take any position with respect to his inclusion or exclusion. Marcus
is the senior artist in the advertising and publicity department of the
Booking Agency, having been employed there for 11 years. There
are four other artists in that department. The evidence is-conflicting
as to the precise duties and responsibilities of Marcus and his power
to recommend the hiring of artists, but it clearly appears that he does
the same type of work as the other artists, that he is subject to the
same hours of work and discipline as they are, and that most of his
time is spent in actual art work. Under the circumstances, we find
that Marcus is not a supervisory employee and should be included
within the appropriate unit.
We find that all advertising copy writers, press-book editors and
writers, publicity and feature writers, planters and contact men who
work within the State of New York, production men, exploitation men
who work mainly in New York City and the surrounding metropoli-
tan area, and salaried artists employed in the domestic advertising
and publicity department of the New York City office of Marcus
Loewy Booking Agency, excluding free-lance artists, secretaries, clerks,
messenger boys, delivery boys, free-lance writers, artists in art studios,
and supervisory employees, constitute a unit appropriate for the pur-
poses of collective bargaining, and that such unit will insure to the
employees of the Companies the full benefit of their right to self-
organization and to collective bargaining, and otherwise will effectu-
ate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. At the
close of the hearing, the Guild moved to deny Local 230 a place upon
the ballot; the Trial Examiner reserved the motion for the Board. In
4 Section 9 (b) of the Act. See Matter of Lehigh Portland Cement Co , d Modern Valve
and Bag Co and Lime & Gypsubn Workers, Local No. 167, affiliated with the A F of L., 38
N L R. B 167; Matter of Bulk Sales Depwtinent, (Gulf Refining Co and The American
Federation of Labor, 21 N L R B 1033; Matter of M. & J Tracy, Inc and Inland Boat-
men's Union, 12 N L R B 936, Matter of F B Booth & Company et at and Montei ey
Bay Area Fish Workers Union No 23, 10 N L R B 1491
Matter of Twentieth Centui y-Xox Film Go) p and Screen Publicists Guild 32 N L R B
No 130
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the failure of Local 230 to show that it represents any of the
employees within the unit found herein to be appropriate, we shall
grant the motion and shall not permit Local 230 to appear upon the
ballot.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Marcus Loew Booking Agency and Loew's,
Inc., New York City, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All advertising copy writers, press-book editors and writers, pub-
licity and feature writers, planters and contact men who work within
the State of New York, production men, exploitation men who work
mainly in New York City and the surrounding metropolitan area, and
salaried artists employed in the domestic advertising and publicity
department of the New York City office of Marcus Loew Booking
Agency, excluding free-lance artists, secretaries, clerks, messenger boys,
delivery boys, free-lance writers, artists in art studios, and supervisory
employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National Labor
Relations Act.
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 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Marcus Loew Booking Agency and Loew's, Inc., New York City,
an election by secret ballot shall be conducted as soon as possible but
O At the hearing , Local 2 30 contended that it has an agreement with the Companies which
has been in effect since about 1930 , wherein the art work of those companies is to be per-
formed by members of Local 230 only . The Companies did not take any position with re-
spect to the alleged agreement It was not produced at the hearing for the stated reason
that it was customary for Local 230 to destroy all documents which were more than 5 years
old Moreover , as noted above, Local 230 admitted that it did not have any members among
the employees of the Companies . Under these circumstances , we do not believe that the
alleged agreement entitles Local 230 to a place on the ballot . The Companies and the
Guild request that in the event an election is held, eligibility to vote be determined by the
pay roll next preceding the date of the Direction of Election In accordance with our usual
practice, we shall duect that those eligible to vote in the election shall be the employees
within the appropriate unit , who weme employed by the Companies during the pay-roll
period numedrately preceding the date of this Direction of Election, subject to the lunita-
tions and additions set forth in the Direction
MARCUS LOEW BOOKING AGENCY 1021
not later than thirty (30) days from the date of this Direction of
Election, under the direction and supervision of the Regional Director
for the Second Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among all advertising copy writers, press-book
editors and writers, publicity and feature writers, planters, and contact
men who work within the State of New York, production men, exploi-
tation men who work mainly in New York City and the sur-
rounding metropolitan area, and salaried artists employed in the do-
mestic advertising and publicity department of the New York City
office of Marcus Loew Booking Agency, who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election, including employees who did not work during such pay-
roll period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding free-lance artists, secretaries, clerks, messenger boys, delivery
boys, free-lance writers, artists in art studios, supervisory employees,
and employees who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by Screen Pub-
licists Guild of New York, for the purposes of collective bargaining.