The Alamo Co.

National Labor Relations Board - Board Decisions

Dec 30, 1960

129 N.L.R.B. 1093 (N.L.R.B. 1960)

THE ALAMO CO., BATJAC ENTERPRISES, INC., ETC. 1093
3. The aforesaid labor practice is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act by the granting of wage increases.
[Recommendations omitted from publication.]
The Alamo Company , Batjac Enterprises , Inc., Batjac Produc-
tions, Inc., Romina Productions , Inc. and American Federa-
tion of Musicians of the United States and Canada , AFL-CIO,
Petitioner. Case No. 21-RC-6449. December 30, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before H. C. Bumgarner, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.'
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons :
The Alamo Company is a limited partnership composed of Batjac
Productions, Inc., and McCullough Tool Company and was formed for
the purpose of producing a motion picture entitled "The Alamo."
During the period of May 16-20, 1960, 80 to 82 musicians, including
arrangers, orchestrators, copyists, proofreaders and librarians, worked
on the musical score of the motion picture. The Petitioner seeks to
represent these musicians, claiming that they are employees of the Em-
i The Petitioner contends that the four entities named in the amended petition and
designated herein as the Employer are a single employer for jurisdictional and unit pur-
poses . The Intervenor , Musicians Guild of America , took no position regarding this con-
tention. The Board has found that Batjac Enterprises, Inc., Batjac Productions, Inc.,
.and Romina Products , Inc., constituted a single employer for jurisdictional as well as
unit purposes . Batjac Enterprises, Inc., 126 NLRB 1281 . The record discloses that the
facts upon which the Board found these three corporations to be a single employer have
not materially changed. In view of the fact that The Alamo Company is a limited partner-
ship in which the general partner, Batjac Productions, Inc., owns over 50 percent of the
partnership and controlled and managed the production efforts of The Alamo Company,
including the contractual arrangements for the musical score of the motion picture as
well as the financial arrangements necessary for production , we find that all `four of the
business entities constitute a single employer . Chicago North Side Newspapers, 124
NLRB 254. As the record shows that Batjac Productions sold goods valued in excess of
$50,000 during the past 12 -month period to another employer which annually ships goods
valued in excess of $ 50,000 directly outside the State of California , we assert jurisdiction
under our indirect outflow standard . Sienzons Mailing Service , 122 NLRB 81.
129 NLRB No. 129.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer. The Employer contends that the musicians are employees of
an independent contractor not a party to this proceeding.
The record shows that the musicians were hired and performed serv-
ices under the following conditions: Batjac Productions, Inc., entered
into a contract with Erosa Music Corporation, of which Dmitri Tiom-
kin is the principal, whereby Tiomkin would compose the score, con-
duct the orchestra, supply musicians, copyists, and other employees,,
and pay all salaries, taxes, and fringe benefits. Under the terms of
this contract, the number of musicians to be supplied on a nonexclu-
sive basis was limited to 60, and Tiomkin agreed to "cooperate" with
the producer in the preparation, photography, and dubbing of the
photoplay. Otherwise Tiomkin was to have complete control over the
musicians. Tiomkin hired Victor Aller, a member of the Petitioner,
as his orchestra manager for purpose of securing musicians. Aller
distributed copies of two agreements to each musician. The first stated
the rate at which each musician was to be paid for each recording ses-
sion, and was signed by Erosa Music Corporation, the orchestra man-
ager, and the individual musician. The second was an agreement be-
tween The Alamo Company, the orchestra manager, and the individual
musician whereby The Alamo Company agreed to pay the musician
the then current recording rate if the sound track were later made into
phonograph records, and the reuse rate if the motion picture were
later released for television viewing.
The Employer (not including The Alamo Company) was formerly
a party to the master agreement with the Petitioner, which expired in
1958, but was continued in effect with interim agreements. The "pack-
age deal" hiring arrangement formerly engaged in by the Employer
involved a contract between the producer and the composer-conductor
which incorporated parts of the master agreement and personal serv-
ice contracts executed by the producer and the individual musicians.
In earlier cases,2 the Board relied specifically on the "package deal" in
finding that the producer was the employer for the purpose of the
representation proceedings. Among other things, the personal service
contract expressly provided that the producer shall at all times have
complete control over the musicians' services. At present, the personal
service contract is not in use, the master agreement has expired, and
the Employer herein is not now a party to any collective-bargaining
agreement.
2 E.g., Independent Motion Picture Producers Association, 123 NLRB 1942 ; Edward
Small Productions, Inc., 127 NLRB 283; Batjac Enterprises , Inc, 126 NLRB 1281. Note
that in Batjac the Board found that the musicians were employees of the producer and
directed the holding of an election. No election was held because as of the prescribed
eligibility date no musicians were eligible to vote under the 1-year eligibility rule and the
petitioner in that case , Musicians Guild of America, then withdrew. Thereafter, Peti-
tioner herein, the Intervenor in the Batjac case, filed a motion to reopen the proceedings
and for a supplemental direction of election asserting that the Employer was scoring The
Alamo motion picture and had employed musicians . The Board denied the motion.
THE ALAMO CO., BATJAC ENTERPRISES, INC., ETC. 1095
Petitioner contends that the present "package deal" arrangement
is substantially the same as that which existed when the Board decided
the cases in Batjac Enterprises, Inc., and Independent Motion Picture
Producers Association, supra. Petitioner relies on the reuse agree-
ment between The Alamo Company and the individual musicians to
show the existence of the necessary employer-employee relationship.
It further states that the present contractual arrangements were ef-
fected because the Employer will not enter into an agreement with the
Petitioner for fear of an unfair labor practice charge, i.e., recogniz-
ing one of the contending unions where a question concerning repre-
sentation exists. Hence, the Petitioner argues that the current agree-
ments merely stand in the place of the now expired basic agreement.
The Employer contends that the musicians are not employees of The
Alamo Company or any of the other named employers in the petition.
It asserts that, rather, the musicians are employed and controlled en-
tirely by Erosa Music Corporation, an independent contractor.
The issue is thus presented whether the named Employer herein
stands in the relationship of an employer to the musicians sought by
the Petitioner. As previously defined by the Board, "an employer-
employee relationship is said to exist . . . where the person for whom
the services in question are performed reserves the right to control not
only the end to be achieved but also the means to be used in achieving
such end." 3 As above noted, in earlier cases 4 in which it was found
that the producer was the employer of the musicians, the Board relied,
in important part, upon the then existing personal service contract
which clearly vested in the producer complete control over the musi-
cians' services. From the evidence of the existing contracts between
the Employer, the musicians, and Erosa Music Corporation, it is clear
that the Employer did not reserve or obtain the right to control the
means by which the musical score was produced. Nor does the record
show such actual control was exercised. All the details of the produc-
tion of the musical score were agreed to be, and were, performed by
Erosa Music Corporation. These included not only the arranging,
the composing and the direction of the orchestra, but the hiring, pay-
ment, and setting of work conditions of the musicians, and Erosa
Music Corporation was not obligated to employ the musicians solely
for the Employer's use. None of the parties disputes, and the record
supports the fact that Erosa Music Corporation is not an agent or
alter ego of the Employer, but that it is an independent contractor.
The Employer's agreement to pay reuse and recording rates to the
musicians, based upon contingencies that in the future the motion pic-
$ independent Motion Picture Production Association, 123 NLRB 1942, 1947 . See also
American Broadcasting Company, a Division of American Broadcasting -Paramount
Theatres, Inc., 117 NLRB 13, 18.
See footnote 2.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture is released for television viewing and records made of the score,
is insufficient in our opinion to create an employer-employee relation-
ship for the purposes of collective bargaining.
Accordingly, we find that the musicians requested by the Petitioner
are not employees of the Employer. We shall therefore dismiss the
petition.5
[The Board dismissed the petition.]
5In view of our decision herein it is unnecessary to pass upon the other issues raised
by the parties
S. G. Tilden, Incorporated and Local 259, United Automobile
Workers, AFL-CIO, Petitioner . Case No. 2-RC-10653. Decem-
ber 30, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Murray N. Shelton, Jr.,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Fanning and
Kimball].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2 (6) and (7) of the Act.
The Employer, which is engaged in the specialized business of
rendering automotive brake and wheel alignment service, has its main
shop and office in Brooklyn, New York. Its operations include eight
shops on Long Island, five shops in New Jersey, and one shop in
Connecticut. The supplies and materials used in all 14 shops are sent
from the main shop in Brooklyn where the Employer's central supply
and purchasing departments are located. Personnel, labor relations,
payroll, bookkeeping, credit, service and sales functions are also pro-
vided by central departments located at the main shop in Brooklyn.
Distance, in miles, between the main office in Brooklyn and the various
shops of the Employer are as follows: Trenton, New Jersey, 63;
Bridgeport, Connecticut, 57; Bay Shore, Long Island, 36; Hunting-
129 NLRB No. 138.