Paramount Pictures, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1942

45 N.L.R.B. 116 (N.L.R.B. 1942)

In the Matter of PARAMOUNT PICTURES , INC., FAMOUS MUSIC CoRPORA-
.TION AND PARAMOUNT MUSIC CORPORATION and SCREEN OFFICE &
PROFESSIONAL EMPLOYEES GUILD, LOCAL 109, UOPWA (C. I. 0.)
Case No. R-4228.-Decided October 29,1942
Jurisdiction : motion picture producing and distributing industry ; music pub-
lishing industry. i
Investigation and Certification of Representatives : existence of question : stipu-
lation that Company refused to accord any union recognition until certified
by the Board ; elections necessary.
Units Appropriate for Collective Bargaining : separate units comprising office,
clerical , secretarial , and accounting employees , at home office , news office,
and exchange office, of the motion picture producer and distributor, and at
office of the two music publishers ; unit comprising porters, watchmen, and
matron, at home office of the motion picture producer and distributor.
Mr. Austin. C. Keough, by Mr. George A. Barry and Mr. Arthur
Israel, of New York City, for the Company.
Boudin, Cohn ct; Glickstein, by Mr. Leonard B. Boudin, of New
York City, for the Guild.
Mr. Matthew M. Levy, by Mr. David Halper, of New York City,
for the I. A. T. S. E.
Mr. H. G. Moorhead, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by Screen Office & Professional Em-
ployees Guild, Local 109, UOPWA (C. I. 0.), herein called the Guild,
alleging that a question affecting commerce had arisen concerning
the representation of employees of Paramount Pictures, Inc., New
York City, Famous Music Corporation, New York City, and Para-
mount Music Corporation, New York City,' herein called the Com-
I The petition and notice of hearing also named Paramount Pictures Exchange, Inc.,
and Paramount News, Inc, but at the hearing it was stipulated that they are not separate
and distinct corporations , but divisions of Paramount Pictures , Inc. The petition and
notice of hearing were appropriately amended, - without objection.
45 N. L. R. B., No. 24.
116
PARAMOUNT PICTURES , INC. 117
panies, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Frederick R. Livingston, Trial
Examiner. Said hearing was held at New York City on August 19, 21, ,
24, 25, and 26, 1942. The Companies, the Guild, and International
Alliance of Theatrical & Stage Employees, Local B-51 (A. F. of L.),
herein called the I. A. T. S. E., appeared, participated,2 and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings, made at the hearing, are free from prejudicial
error and are hereby affirmed. The parties have filed briefs which the
Board has duly considered.
Upon the entire record in the case , the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Paramount-Pictures, Inc., is a New York corporation engaged in
the business of producing and distributing motion picture films and
licensing them for exhibition. It produces feature pictures in Holly-
wood, California, and in the year ending December 31, 1941, shipped
approximately 37 negatives of feature pictures from California to
New York City, where it made a total of approximately 4,360 prints
which were shipped from New York to film exchanges in various parts
of the United States. Paramount maintains and operates film ex-
changes in the District of Columbia and 15 States, including an
exchange located in New' York City, herein called the Exchange.3
The business of the Exchange is transacted at an office which is sepa-
rate and distinct from the home office in New York City of Paramount
Pictures, Inc. The business of the news division of Paramount Pic-
tures, Inc., and that of the Music Companies are also transacted in
separate office buildings. At its news office, Paramount develops nega-
tives of news reel pictures taken throughout the world, and screens,
edits, cuts, synchronizes, and prints them. In the year 1941, approxi-
mately 1,000 of these prints were released weekly and distributed
throughout the United States and Canada. Pictures known as short
subjects are also produced at the news office. Famous Music Corpora-
tion and its wholly owned subsidiary, Paramount Music Corporation,,
are both New York corporations engaged in the music business.
During the year ending December 31,1941, Famous Music Corporation
shipped 'or caused to be shipped from New York City to points in
2 American Federation of Labor, Federal Union 23619 , which filed a petition for inter-
vention in the proceeding , also participated , but it withdrew prior to the close of the
hearing
s Paramount Film Distributing Corporation , a wholly owned , subsidiary of Paramount
Pictures, Inc., operates 16 other exchanges located in other States.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States of the United States other than New York, approximately
115,000 music sheets. During the same period, Paramount- Music
Corporation shipped or. caused to 'be shipped from New York City
to points in States of the United States other than New York, approxi-
mately 75,000 music sheets. The Companies stipulate that they are
engaged in commerce, within the meaning of the National Labor
Relations Act .4
II. THE ORGANIZATIONS INVOLVED
Screen Office & Professional Employees Guild, Local 109, UOPWA,
is a labor organization . affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Companies.
International Alliance of Theatrical & Stage Employees, Local B-51,
is a' labor organization affiliated with the American Federation of
Labor, admitting to membership employees of Paramount Pictures,
Inc. 6
III. THE QUESTION CONCERNING REPRESENTATION
,At the hearing the Companies and the Guild stipulated that "a
question concerning representation arises in this matter by reason of
the Companies' position that ,they will not bargain with' any union
until certified by the Board as representing a majority of the employees
within the appropriate unit."
A statement of the Regional Director, introduced in evidence at
the hearing, indicates that the Guild and the I. A. T. S. E. each repre-
sents a substantial number of employees' within the unit which it
claimed to be appropriate .1,
At the hearing, the Companies contended that their employees
should not be grouped in a single unit, but that four units are alipro-
priate, a separate unit for the employees at each of the offices involved
in the proceeding. The I. A. T. S. E. contended that the Exchange
employees should constitute a separate appropriate unit. The Guild
then entered into a stipulation with the , Companies and the
* The Music Companies contend that they do business only in the State of New York, but
concede that their business affects commerce within the meaning of the Act
6 The I . A. T. S. E. claims to represent employees of only one of the divisions of Para-
mount Pictures, Inc., the Exchange.
9 The statement of the Regional Director discloses that the Companies' pay rolls of
June 6, 1942, contain the names of 520 employees within the unit alleged by the Guild
in its petition to be appropriate ; that the Guild submitted membership application cards
bearing the apparently valid and original signatures of 155 of the employees whose names
appear - on the pay rolls ; and that the I. A. T. S. E. submitted cards bearing the apparently
genuine original signatures of 18 of the 41 employees whose names appear on the Exchange
pay roll within the unit claimed by the I. A. T. S. E. to be appropriate. The Companies
contend that 81 of the cards submitted by the Guild should not be counted in computing
its showing of representation , because they are dated in November and December 1941.
we find no merit in the contention.
PARAMOUNT PICTURES, INC. 119
I. A. T. S. E., agreeing that four separate units are appropriate : the
employees at the home office, those at the Exchange, those at the news
office, and those at the office of the Music Companies.? The Companies
thereafter moved that the petition of the Guild, be dismissed with
respect to the news unit, on the ground that the Guild had not made
a showing of substantial representation within that unit. The
I. A. T. S. E. made a similar motion with respect to the Exchange
unit."
A single unit embracing all eligible employees of the Companies
was originally alleged by the Guild in its petition to be appropriate.9
In that unit the Guild has made a substantial showing of representa-
tion. In three of the four units upon which the parties agreed at
the hearing,-viz, the home office, the Music Companies' employees,
and the Exchange,-a substantial showing of representation has been
made by either the Guild or the I. A. T. S. E. and elections are herein-
after directed to be held. Under the circumstances, we believe that
the Exchange employees should be permitted to 'choose between the
I. A. T. S. E. and the Guild and that the news office employees should
also be afforded an opportunity to indicate their choice of a bargaining
agency, if any.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
As stated above, the parties have stipulated that the four following
units of employees' are appropriate: the home office employees, the
Music Companies' employees, the Exchange employees, and the news
office employees. The parties have also stipulated, subject to the
Companies" contention that certain employees considered below should
be excluded from the appropriate units, that each of the units agreed
upon should consist of the following categories of employees : all office,
clerical, secretarial, and accounting employees, excluding executives,
officers, district managers, traveling auditors, lawyers, engineers, film
examiners , film shippers, and film handlers.
7 The I. A. T. S. E. entered into this stipulation for the purposes of this proceeding
only, reserving the right subsequently to request the Board to find that the employees
of Paramount 's exchanges throughout the country constitute a single appropriate unit.
8 The statement of the Regional Director (as corrected by a stipulation entered into by
the parties at the hearing ) discloses that the Guild's showing of representation among
the eligible employees within the respective units is as follows : Home office-457 in
unit, 133 ' cards ; Music Companies-15 in unit , 10 cards ; Exchange-41 in unit , 10 cards ;
News-18 in unit, 2 cards. No question is raised with respect to the Guild 's showing of
representation in the home office and Music Companies units.
9 The allegation was not without basis. Cf. Matter of Warner Brothers Pictures, Inc.
and Warner Brothers Associated Office Employees of Greater New York, 35 N. L. R. B.
739, 742.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties, disagree with respect to a number of employees whom
the Guild and the I. A. T. S. E. would include in, but whom Paramount
Pictures, Inc., would exclude ' from the home office and Exchange
units.
1. The home office;
a. At its home office, Paramount employs six porters, a matron, and
five watchmen. The porters move materials from place to place within
the office and also do some janitorial work, although regular janitorial
work is done by the building staff. All of the six porters are members
of the Guild, but at the hearing the Guild entered into a stipulation
that Head Porter McRea, who is in charge of the porters, should be
excluded from the unit. The matron operates a machine in the
women's washroom, cleans instruments in the doctor's office, and re-
lieves the nurse in the doctor's office at lunch hour. The watchmen
act as floor guards, watching the elevators at night and patrolling
the office. The Guild contends that these employees should be included
in the home office unit or, in the alternative, that they should be desig-
nated, a separate unit. Paramount contends that the porters, watch-
men, and matron have no common interest with the office employees and
should be excluded from the home office unit, but has raised no objec-
tion to their being designated a separate unit. We agree that these
maintenance employees should not be joined in a single unit with the
office employees, but we see no reason for denying them the right to
bargain through a representative if they so desire. We shall therefore
designate the porters, watchmen,* and matron, excluding the head
porter, as a separate unit appropriate for the purposes of collective
bargaining.
b. At the home office, Paramount employs three salaried readers
who were found by the Board to constitute a separate unit in a prior
proceeding.10 They read novels, plays, and other material, and write
synopses of them. At the time of the prior proceeding, they had
designated as their representative the Screen Readers Guild, an unaffili-
ated labor organization which subsequently transferred its property
to the C. I. 0. It appears that Paramount has refused to recognize
the Guild as the representative of the readers as a separate group.
While we believe that the readers may be represented appropriately
in a separate unit, we are of the opinion that .under the circumstances
they may also appropriately constitute a part of the unit of office em-
ployees at the home office. We shall include them in the home office unit.
c. The Guild requests the inclusion of 11 employees in the home office
unit whom Paramount wants excluded on,the ground that they are
supervisory : '
10 Matter of Paramount Pictures , Inc. and Screen Readers Guild of New York (Inde-
pendent ), 33 N. L. R. B. 447 , 35 N. L. R. B. 464, 42 N L. R. B. 221.
- PARAMOUNT PICTURES, INC. 121'
Charles Hickey is the supervisor of the mailing department and
directs eight messengers and six clerks in their duties. Hickey spends
approximately 75 percent of his working time receiving request and
orders on the telephone, and approximately 25 percent of his working
time giving appropriate orders and instructions to his subordinates
for the distribution and routing of mail, and for the transmission of
inter-office communications. We find that Hickey is a supervisory
employee and, as such, not within the appropriate unit.
Lawson, Hodge, and Urch are the heads of divisions operating under
G. B. J. Frawley, the liaison officer between Paramount's selling and
accounting departments. Each of these employees spends at least
half of his time assigning work to the employees under him, correct-
ing errors, administering reprimands, and determining the time to be
spent on various tasks. Each prepares, reports for his division, coor-
dinating the results of compilations made by subordinate employees ;
each also recommends the hire and discharge of employees in his di-
vision and recommends vacations and other time off for employees
under him. Lawson is in charge of the Rental Analysis Division and
has 11 employees under him. Hodge is in charge of the Exchange
Accounting Division and has 9 employees under him. Urch is in charge
of the Contracts Division and has 29 employees under him. We find
that Lawson, Hodge,, and Urch are supervisory employees and should
be excluded from the unit.
Phillip Schenker is an accountant working under- Henry Anderson,
who manages the insurance business of the Companies. Schenker has
only two employees assisting him, and these two employees, like Schen-
ker, do accounting work as part of their duties. Although Schenker
has participated in the hiring of his assistants, his choice is limited
to employees recommended by Anderson. He is paid a higher salary
than his assistants, and has some power to recommend increases for
them, but his alleged supervisory status is not, in our opinion, suffi-
ciently clearly established to warrant his exclusion. We find that he
should be included in the unit.
Milton `Kirshenberg compiles statistics on foreign accounts. He is
assisted by four employees to whom he assigns work. The work which
Kirshenberg distributes is assigned to him by Weltner, who is sub-
ordinate to Hicks, the head of the Foreign Department. Kirshenberg
reroutes part of the work to others and does part of it himself. Only
15 to 20 percent of his time is spent in reviewing the work of other
people, and this, review is in the nature of a continuation of their
work. Employees' requests for increases in salary are passed along .
by Kirshenberg to his superiors with recommendations which have been
disregarded as often as, they have been followed. We are of the
opinion that Kirshenberg is not a supervisory employee, and we shall
direct that he be included in the unit.
122 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cyril D. Valentine works in the Auditing Department under the
Comptroller. He audits contracts with the assistance of two other
employees, one of whom audits the cost of the-contracts, and the other
of whom audits the income; Valentine coordinates and completes the
results. These assistants work independently of Valentine, who spends
no more than an hour a day consulting with them. One of the two
assistants was assigned to him despite the fact that Valentine objected
to the assignment. Valentine corrects errors that he finds in the work
of the employees who assist him, but we are of the opinion that his
work is not essentially supervisory. We shall include him in the unit.
Leonard, Wood, Clark, and Cassidy work under the direction of _
John E. McDermott, who has charge of production, distribution, and
theater accounts and is himself responsible to Comptroller Mohrhardt,
whom he consults with respect to the hire and discharge of employees
in the accounting division. Each of the four employees in question
spends from 15 to 20 percent of his time in work which Paramount
contends is supervisory, but the record shows that their work is routine
in nature and that their supervision is limited to making recommen-
dations through McDermott to Mohrhardt. Although each of these
employees hiss from four to seven employees working under him, we are
of the opinion that their duties are not sufficiently supervisory to
exclude them from the unit. They will be included.
d. Richard L. Worcester does some work.as an architect, but also
does general desk work. He works under Paramount's "practical con-
struction man." Paramount contends that he is a professional em-
ployee and should therefore be excluded. In view, however, of the
nature of his work, and the amount of his salary,' we find that Wor-
cester should be included in the unit.
e. At its home office, Paramount employs two pay-roll auditors, an
assistant investigator, and six secretaries, all of whom it contends
should be excluded from the unit because they are confidential em-
ployees:
The pay-roll auditors are Paul W. Grainer and Raymond V. Kee-
nan. These employees have access to files relating to "Changes, dis-
missals, promotions, demotions, salary increases, in fact with about
everything that deals with the personnel records of any employee of
Paramount Pictures, Inc." Paramount contends, and we agree, that
these employees occupy confidential positions relating to labor rela-
tions and that they should therefore not be included. They will be
excluded from the unit.
Eugene Newman is assistant to Clifton L. Oswald, who investigates
employees for the Companies. Although Oswald has not 'made in-
"Worcester's salary does not appear in the record , but was revealed to the Trial
Examiner in confidence , because of Paramount 's general policy against public disclosure
of its employees ' salaries.
PARAMOUNT PICTURES, INC. 123
vestigations with respect to labor relation matters, he testified that
he might be called upon to perform such work., Newman performs
Oswald's duties when the latter is away from New York City. We
find that Newman should be excluded from the ' unit because of the
confidential nature of his duties.
Katherine Cunninghamr is secretary to Investigator Oswald and has
access to the information in Oswald's possession. We shall exclude
her as a confidential secretary.
Helen Finnegan, Ida Wolf, Esther Jablow, and Eleanor West are
the secretaries, respectively of Assistant General Sales Manager
Reagen, News Sales Manager Morgan; Eastern Division Manager
Owen, and Western Division Manager Smith. These secretaries have
access to all the files of their superiors, who spend 25 percent of their
time in personnel work and have the power to determine matters of
salary and transfer of employees under them. It appears that these
executives are consulted in labor relations matters and that some of
them have participated in negotiations with union representatives.
We find that Finnegan, Wolf, Jablo_w, and West are confidential em-
ployees and should be excluded from the unit.
Sophie Weinberg is secretary to Insurance Manager Anderson,
whose duties include the bonding of employees. Weinberg has a desk
in Anderson's office and has access to his files, which contain informa-
tion pertaining to investigations of employees. We find that she is a
confidential employee and that she should be excluded' from the unit.
2. The Exchange:
a. Secretaries Muriel J. Lanahan and E. M. Hogan have access to
the files of their respective superiors, District Manager Kusell and
Branch Manager Randel. These files contain personnel information.
Kusell and Randel have at times been consulted with respect to labor
relations matters, once with Hogan present. We find that secretaries
Hogan and Lanahan are confidential employees and that they should
be excluded from the Exchange unit.
b. Jack C. Perley is the head booker at the Exchange. He spends a
substantial portion of his time assigning work and giving instructions
to seven bookers who are under his supervision. He has control of
working conditions in his office, and his recommendations 'with respect
to vacations are followed. Of the employees in his office, he is the
only one who attends the conventions which Paramount holds yearly
in various sections of the country. His work does not include the set-
ting of play dates, as does the work of the bookers; he spends a major
part of his time in correspondence with exhibitors, in answering ques-
tions asked by the bookers, and in conferring with the Branch Man-
ager and the Sales Manager. He has the power to settle questions
which,arise with respect to playing time required on contracts. We
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Perley is a supervisory employee and should be excluded
from the Exchange unit.
c. Joseph Davis is-chief accountant and office manager at the Ex-
change and has 13 employees under his supervision. He assigns work,
directs employees to work overtime, determines vacation dates, grants
time off, has the power to discharge, and makes recommendations with
respect to-the hire and promotion of employees. We find that Davis
is a supervisory employee and should be excluded from the Exchange
unit.
We find that each of the following groups of employees constitutes
a separate unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act:
(1) All office, clerical, secretarial, and accounting employees, and
salaried readers at the home office of Paramount Pictures, Inc., in
New York City, excluding executives, officers, district managers, trav-
eling auditors, lawyers, engineers, film examiners, film shippers, film
handlers, and supervisory and confidential employees.
(2) All office, clerical, secretarial, and accounting employees at the
Exchange office of Paramount Pictures, Inc., in New York City, ex-
cluding executives, officers, district managers, traveling auditors, law-
yers, engineers, film examiners, film shippers, film handlers, and
supervisory and confidential employees. -
(3) All office, clerical, secretarial, and accounting employees at
the News office of Paramount Pictures, Inc., in New York City, ex-
cluding executives, officers, district managers, traveling auditors,
lawyers, engineers, film examiners, film shippers, and film handlers.
(4) All office, clerical, secretarial, and accounting employees at the
office of Famous Music Corporation and Paramount Music Corpora-
tion in New York City, excluding executives, officers, district man-
agers, traveling auditors, lawyers, engineers, film examiners, film
shippers, and film handlers.
(5) The porters, watchmen, and matron employed at the home
office of Paramount Pictures, Inc., in New York City, excluding the
head porter.
N V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by elections by secret ballot. The I. A. T. S. E.
has requested, and we shall direct, that its name appear only on the
ballot in the election among employees in the Exchange unit. The
Guild contends that eligibility to vote at the elections should be de-
termined by the Companies' pay rolls of May 27, 1942, but no reason
appears for not following our practice of using a current pay roll.
PARAMOUNT PICTURES, 'INC. 125
We shall direct that the employees eligible to vote in the elections
shall be those in the appropriate units who were employed,during
the pay-roll period immediately preceding the date of the Direction
of Elections herein, subject to the limitations and additions set forth
in the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions 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 to ascertain represen-
tatives for the purposes of collective bargaining with Paramount
Pictures, Inc., Famous- Music Corporation, and Paramount Music
Corporation, New York City, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction of Elections, 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
the employees in each of the units found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including any such employees
who did not work during said 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 any who have
since quit or been discharged for cause, to determine whether the
employees in the Exchange unit (unit "(2) ") desire to be represented
by Screen Office & Professional Employees Guild, Local 109, UOPWA
(C._ I. 0.), or by International Alliance of Theatrical & Stage Em-
ployees, Local B-51 (A. F. of L.) for the purposes of collective bar-
gaining, or by neither; and to determine whether or not the employees
in each of the other units desire to be represented by Screen Office
& Professional Employees Guild, Local 109, UOPWA (C. I. 0.),
for the purposes of collective bargaining.
I