RKO Radio Pictures, Inc.

National Labor Relations Board - Board Decisions

May 5, 1942

40 N.L.R.B. 1185 (N.L.R.B. 1942)

In the Matter of RKO RADIO PICTURES, INC. and SCREEN OFFICE
AND PROFESSIONAL EMPLOYEES GUILD, LOCAL 109, U. O. P. ' W. A.,
C.I.O.
Case No. R-368.-Decided May 5, 1940
Jurisdiction : motion picture industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until certified by the Board,; election
necessary
Unit Appropriate for Collective Bargaining : all of the clerical, secretarial, and
accounting employees of a motion picture producing and distributing subsidiary
with specified inclusions and exclusions; unit requested by Companies (the
producer and distributor sulisidiary and the service subsidiary' which peti-
tioned to intervene) for a multiple employer unit comprising employees in the
above enumerated classifications in both of the subsidiaries held inappropriate
Gordon E.' Youngman, by Mr. Robert H. Dann and Mr. William
F. Whitman, of New York City, for the Companies.
Boudin, Cohn and Glick-stein, by Mr. Sidney Fox, of New York
City, for the Union.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
' AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition, duly filed by Screen Office and Professional Em-
ployees Guild, Local 109, United Office and Professional Workers of
America, C. I. 0., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of RKO Radio Pictures, Inc., New York City, herein called
RKO Radio, the National Labor Relations Board provided for an
appropriate hearing upon clue notice before Frederick R. Livingston,
Trial Examiner. Said hearing was held at New York City from
March 9 to 13, 1942, inclusive. At the hearing the Trial Examiner
granted the motion of RKO Service Corporation, New York City,
herein called RKO Service, to intervene.) RKO Radio and RKO
'As is discussed more Cully under "IV The appropriate unit," infra we reject the
contention of RICO Radio and RICO Service, that the appaopriate unit consists of-
employees of both Companies
40 N L R. B., No. 203.
455771--42-vol 40-75 1185
l
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service, herein collectively called the Companies, and the Union
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings made at
,the hearing are free from prejudicial errors and are hereby affirmed.
Briefs were filed by the parties and have been considered by the
Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RKO RADIO
RKO Radio Pictures, Inc., a Delaware corporation, with its home
office and principal place of business in New York City, is a wholly
owned subsidiary of Radio-Keith-Orpheum Corporation, herein called
•RKO, and is engaged in producing and distributing feature and
short subject motion pictures. , It maintains a studio in Los Angeles,
California, for the production of motion pictures and some 32 branch
offices or exchanges in 26 States and in the District of Columbia for
the release and distribution of motion pictures. Negatives of the mo-
tion pictures produced in California are shipped to laboratories in
New York, New Jersey, and California. Positive prints of the
motion pictures made in the laboratories are shipped directly to the
respective exchanges from which they are released to exhibitors
throughout the United States.2 The New York office, which is in-
volved herein, performs executive, supervisory, managerial , and other
similar services.
RKO Radio admits that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Screen Office and Professional Employees Guild, Local 109, United
Office and Professional Workers of America, is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership employees of RKO Radio.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that a question concerning representation
has arisen by reason of RKO Radio's refusal to bargain with the
2 The parties stipulated at the hearing that the Board' s decision in Matter of Twentieth
Oentury-Fox Film Corp ., et al and Screen Publicists Guild, 32 N. L. R B. 717,
correctly sets forth the operations of RKO Radio as conducted at the time of the
hearing in the instant case The above statement in the text is based upon the detailed
statements contained in the aforesaid decision of the Board
RKO RADIO ^PICTU'RES, INC. 1187
Union unless and until it has been certified by the Board as the
exclusive representative of employees in an appropriate bargaining
-unit. A statement of the Regional Director introduced into evidence
at the- hearing indicates that the Union represents a substantial
number of employees in the unit hereinafter found to be appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of RKO Radio, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The Union- requested a unit composed of all office, clerical, secre-
tarial, and accounting employees of RKO Radio, employed in the
RKO building, 1270 Sixth Avenue, New York City, including par-
ticularly auditors; accountants; bookkeepers; bookkeeping machine
operators; comptometer operators; accounting, contract, file, mail,
print and negative, playdate, publicity, purchasing, research, sales,
scenario, statistical, talent, typing, and general clerks; -page boys, re-
ceptionists; reproduction machine operators, including ditto, mimeo-
graph, multigraph, photostat, and addressograph machine operators;
secretaries; statisticians; stenographers; statistical typists; tabulating
machine operators, including keypunch, sorter, verifier, and printer
machine operators; telegraph operators; and typists; but excluding
executives ; officers ; traveling auditors ; I lawyers ; supervisory em-
ployees having the power to hire and discharge or the duty to make
recommendations concerning the hire and discharge of employees,
wage increases, or other adjustments of working conditions (such
supervisory employees being included in Appendix "A," attached
hereto) ; and employees who come within the bargaining units found
appropriate by , the Board in Matter of RKO Radio Pictures, Inc.
and Screen Publicists Guild, Case No. R-2349,4 and Matter of RKO
Radio Pictures, Inc. and Screen Readers Guild of New York, Case
No. R-2554; regardless of whether or not the employees in such
units are covered by a collective bargaining contract or contracts
with RKO Radio. The Companies agreed that the enumerated classi-
fications of employees comprise an appropriate unit, but contended
that the operations of the Companies are so integrated that the
bargaining unit should embrace such employees of both Companies.
The Regional Director ' s statement shows that , the Union submitted 119 application-
for-membership cards ; 112 are dated between September 15, 1941, and March 15, 1942;
7 are undated; 118 appear to bear genuine signatures ; and 101 appear to be signed by
persons whose names are on RKO Radio's'pay roll of February 27, 1942. On February 27,
1942, RKO Radio employed approximately, 265 persons in the unit found appropriate.
4 32 N. L R. B 717
5 N. L. R B 447 -
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RKO Service is wholly owned by Keith-Albee-Orpheum Corpora-
tion, herein called KAO, the stock control of which was acquired by
RKO in July 1941. RKO Service is a non-profit organization, en-
gaged in managing 96 RKO theaters, located throughout the United
States and in performing managerial, accounting, insurance, tax,
publicity, advertising, and other services for RKO subsidiaries and
affiliates.
The employees of RKO Radio and RKO Service all work in the
RKO building in New York City. The average scale of wages of
the employees in corresponding classifications is approximately the
same, except in the case of RKO Service mimeograph and multigraph
operators whose wages are considerably higher than those of similar
operators of RKO Radio. Since July 1941 the employees have had
uniform hours of work. The Companies also have had a uniform
policy as to supper money and vacations with pay, and as to treatment
of employees who are drafted or volunteer for military service. The
two Companies have a joint comptroller, treasurer, secretary, and
general counsel. However, these executives act not only in behalf
of RKO Radio and RKO Service but also in behalf of the entire
RKO organization. Since January 1942, certain employees of RKO
Radio and RKO Service, in the New York office, have been under
the general supervision of a single office manager, who has final
authority to hire and discharge upon recommendation 'by dej)artment
heads. His duties are concerned with office personnel, job analysis,
salary standardization, and office method and routine. He also super-
vises various departments or groups of employees, which perform
services for both RKO Radio and RKO Service, such as office furni-
ture and equipment department, appliances and supplies department,
receptionists and page boys,c and telephone, telegraph, and photostat
operators He likewise supervises the departments dealing with mim-
eographing and multigraphing, typing, mailing, and filing, although
each of the Companies maintains a separate department staffed by
its own employees for these functions. Even in these departments
which service both Companies, the employees are divided between the
pay rolls of the Companies, the Companies' brief indicating that the
employees under the supervision of the office' manager are about
equally divided between the pay rolls of RKO Radio and RKO
Service.
Until March 9, 1942, there were separate departments toi the ieceptionisis and
page boys of each company Page boys wore the unitoiin of their particular company,
had separate dressing rooms, and were carried on the pay rolls of their company
On March 9, 1942, the departments were combined , and all receptionists and page boys
were placed in charge of the head of the RKO Service receptionist and page boy depart-
ment The record does not disclose whether these employees are still carried on
separate pay rolls
RHO RADIO PICT JR 'ES, INC. 1189
As- indicated above, the business of the two Companies is totally
different . Peculiar to RKO Radio 's business in the production and
distribution of motion pictures are such departments as research,
scenario , talent, sales , contract and playdate , foreign , print and nega-
tive, for which no corresponding departments are found in RKO
Service. RKO Service also has various departments, such as real
estate, maintenance , film booking, vaudeville and theater producing,
which, concern its particular business and for which there are no cor-
responding departments in RKO Radio. Although each of the two
Companies maintains accounting, tabulating, purchasing, publicity,
statistics , mailing and supply departments , such departments are
separately maintained and necessarily perform different services in
view of the differing functions of the two organizations . Each of
the Companies also employs its own cashier, paymaster, and steno-
graphic employees.
RKO Service performs all duties pertaining to tax and insurance
matters not only for both Companies , but for the entire RKO
organization, the cost being prorated among various corporations.
The legal work, which until July 1941 was performed by separate
legal departments for each Company, is now handled by one depart-
ment, under supervision of a general counsel, which renders legal
services for all RKO Companies . However, even after the establish-
ment'of a single department, the attorneys who act for,RKO Radio
still have offices separate from those of the attorneys who act for
RKO Service and are paid by RKO Radio.
With the exception of those departments which perform services
for both Companies , the employees of RKO Radio and RKO Service
are physically separated from each other, each Company having its
own office space. The employees are carried on separate pay rolls
and receive their wages from the Company on whose pay roll they
are carried . They have separate identification cards bearing the name
of their respective employer. Employees of RKO Service' and its
theaters participate in a welfare fund which exists for their exclusive
benefit. RKO Radio ' employees publish a house organ called
"FLASH " which is distributed exclusively among them . While the
employees of the two Companies join in certain social functions, such
as an annual outing , a bowling league, and a baseball team, these
functions are not limited solely to their employees; employees of the
entire RKO organization may also participate. Although the Com-
panies submitted evidence of occasional transfer of employees from
one company to the other , the evidence does not establish that this is
a general or established practice.
Until September 1941 there was no organization among the employ-
ees of either company. About that time, the Union which consists
1'190 DECISIONS OF, NATIONAL LABOR -RELATIONS BOARD
of chapters of the employees -of the major film companies in New
York City, set up an RKO chapter and solicited members among the
employees of both Companies. Customarily each chapter is headed
by one director who'is responsible for the organizational work in his
chapter. Davidson, general organizer for the Union, testified that
the lack of integration, social contacts, and accessibility,,between the
employees of the two Companies necessitated the election of separate
directors in November 1941,for RKO Radio and RKO Service. There
are a few RKO Service employees who have joined the Union. The
Union has been successful in organizing only the employees of RKO
Radio.
It is evident from the foregoing that the Companies are separate
enterprises each with its own employees.? Furthermore, although
organization was originally projected for the employees of both
Companies in a single unit, it has been successful , and his progressed
only among the employees of RKO Radio. , .
Under all the circumstances, we find; that all office, clerical, secre-
tarial, and accounting employees of RKO Radio, employed in the
RKO building, 1270 Sixth Avenue, New York City, including par-
ticularly auditors; accountants; bookkeepers; bookkeeping machine
operators; comptometer operators; accounting, contract, file, mail,
print and negative, playdate, publicity, purchasing, research, sales,
scenario, ' statistical, talent, typing, and general clerks ; page boys;
receptionists; reproduction machine operators, including ditto, mim-
eograph, multigraph, photostat, and addressograph machine op-
erators; secretaries'; statisticians; stenographers'; statistical typists;
tabulating machine operators, including keypunch, sorter , verifier,
and printer machine operators; telegraph operators; and typists; but
excluding executives; officers; traveling auditors; lawyers; super-
visory employees having the power to hire and discharge or the duty
to make -recommendations concerning the hire and discharge of em-
ployees, wage increases, or other adjustments of working conditions
(such supervisory employees being included in Appendix "A," attached
hereto) ; and employees who come within the bargaining units found
appropriate by the Board in Matter of RKO Radio Pictures, Inc. and
Screen Publicists Guild, Case No. R-2349, and Matter of RKO Radio
Pictures, Inc. and Screen Readers Guild of New York, Case No.
R-2554, regardless of whether or not the employees in such units are
7 The Trial Examiner correctly excluded proof as to the corporate structure , functional
control , and interrelation of departments of Loev's Inc , and Marcus Loew Booking
Agency, whose employees of the type involved herein were included in a single unit-
pursuant , however , to the stipulation of the parties thereto-in Matter of Loew's Inc
and Marcus Loew Booking Agency and Screen Office and Professional Employees Guild,
Local 109 , of the U 0. P W. A., CIO, Case No R-3405, 38 N L. R. B. 602. Under
the Act ( Section 9 (b)), the Board is required to determine the appropriate unit under,
the circumstances of each case
,. I / RKO RADIO PICTURES , INC. 1191
covered by -a collective bargaining contract , or contracts with RKO
Radio Pictures , Inc., constitute a unit appropriate for the purposes
of'collective bargaining within the meaning of Section ' 9 (b) of the
Act.
. . I , , . . , •
V. 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
hearing, the Union requested that eligibility to vote be determined as
of the date of the hearing, inasmuch as the pay roll of that date was
used in arriving at the specific inclusions and exclusions of employees
from the alleged appropriate unit. The Company requested a cur-
rent pay roll. The reason assigned by the Union is not sufficient to
warrant a departure from the Board's usual practice. Accordingly,
we shall direct that those eligible to vote shall be the employees in
the appropriate unit 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 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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with RKO Radio Pictures, Inc., New York City, an election by secret
ballot shall be conducted as soon 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 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 the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including any such
employees in the above categories 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 employees who have since quit or been discharged
for cause, to determine whether or not they desire to be represented
by Screen Office and Professional Employees Guild, Local 109,
United Office and Professional Workers of America, C. I. 0., for the
purposes of collective bargaining.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
The supervisory employees referred to, appearing on the pay roll
for the week ending March 14, 1942, are as follows :
Advertising and Publicity
L. E. Gaudreau
Scenario Department
Leda Bauer
Talent Department
Arthur Willi
Marian Robertson
Research. Department
Harold Hendee
Print and Negative Department
Sid Kramer
Finance Department
Henry Holms
Playdate and Contract Department
E. J. Smith
Sales Contract Department
Lou H. Miller
William E. Dahler
Emmet Cashman
Accounting Department
Arthur White
- Export Department
B. D. Lion
M. Hoffay
H. Ehhreich
V. Lissim
R. K. Hawkinson