Twentieth Century-Fox Film Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1941

32 N.L.R.B. 717 (N.L.R.B. 1941)

In the Matter of TWENTIETH CENTURY-FOX FILM CORP. and SCREEN
PUBLICISTS GUILD
In.the Matter of PARAMOUNT PICTURES, INC. and SCREEN PUBLICISTS
GUILD
In the Matter of COLUMBIA PICTURES CORPORATION and SCREEN
PUBLICISTS GUILD
In the Matter Of UNITED ARTISTS CORP. and SCREEN PUBLICISTS
GUILD
In the Matter of RKO RADIO PICTURES, INC. and SCREEN PUBLICISTS
GUILD
In the Matter of UNIVERSAL PICTURES COMPANY, INC. and SCREEN
PUBLICISTS GUILD
In the Matter Of WARNER BROS. PICTURES, INC. and SCREEN
PUBLICISTS GUILD
In the Matter of LoEw's, INC. and SCREEN PUBLICISTS GUILD
Cases Nos. 8-2345 to R-0350 inclusive and R-2394 and 8-2395.-
f Decided June 17, 1941 -
Jurisdiction : motion picture industry.
Investigation and Certification of Representatives : existence of questions: each
of the, Companies contested the appropriate unit and union's majority;
election, necessary.
Units Appropriate for Collective Bargaining : advertising copywriters, 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, employed in the domestic advertising and publicity
departments in the New York City offices -of each of several companies
-.,engaged in the production of ' motion pictures, exclusive of all free-lance
,artists, employees in the foreign publicity departments, stenographers, secre-
taries, clerks, messenger boys, delivery boys, free-lance writers, art studios,
and supervisory employees.
Definitions
Free-lance artists who are not listed on the regular pay rolls of the
various companies, and whose work is subject to the supervision and
32. N..L. R. B., No. 130.
717
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control of the art directors of such companies as a matter of ultimate
result rather than in the manner and method of their performance are
not employees within the meaning of the Act.
Mr. Edwin P. Kilroe and Mr. Harry J. McIntyre, of New York
City, for Twentieth Century.
Mr. George A. Barry, of New York City, for Paramount.
Schwartz d Frolich, by Mr. Arthur H. Schwartz, Mr. Irving
Morose, and Mr. Herbert P. Jacoby, of New York City, for Columbia.
O'Brien, Driscoll d Rafferty, by Mr. Paul D. O'Brien, of New
York City, for United Artists.
Mr. Robert H. Dann, of New York City, for RKO.
Mr. Adolph Schimel, of New York City, for Universal.
Proskauer, Rose cC Paskus, by Mr. Burton A. Zorn and Mr. Eugene
Gordon, of New York City, for Loew's.
Mr. H. S. Bare f ord and Mr. Harold Berkowitz, of New York City,
for Warner.
Boudin, Cohn ct Glicketein, by Mr. Hyman H. Glickstein and
Mr. Sidney Fox, of New York City, for the Guild.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On October 9, 1940, the Screen Publicists Guild , herein called
the Guild, filed with the Regional Director for the Second Region
(New York City ) six separate petitions, each alleging that a question
affecting commerce had arisen concerning the representation of per-
sons employed in the publicity department of the Company named
in such petition at its home office in New York City, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449 , herein
called the Act. The Companies named in the petitions are : Twen-
tieth Century-Fox Film Corp ., herein called Twentieth Century;
Paramount Pictures , Inc., herein called Paramount ; Columbia Pic-
tures Corporation , herein called Columbia ; United Artists Corp.,
herein called United Artists; RKO Radio Pictures , Inc., herein
called RKO; and Warner Bros. Pictures , Inc., herein called Warner.
On December 3, 1940 , and on December 23, 1940, the Guild filed two
similar petitions relative to persons employed in the publicity de-
partments at the home offices in New York City of Universal Pictures
Company, Inc., herein called Universal , and Loew 's, Inc., herein
called Loew's, respectively.
TWENTIETH CENTURY-FOX FILM CORP. 719
On January 10, 1941, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Sections 3 and 10 (c) (2), of National Labor Relations
Board Rules and Regulations-Series 2, as amended, ordered in-
vestigations and authorized the Regional Director to conduct them
and to provide for an appropriate hearing upon due notice, and
further ordered that the above-entitled cases be consolidated.
On January 13, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon each of the Com-
panies involved in these proceedings.
On January 22, 1941, the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 10 (c) (4), of National Labor
Relations Board Rules and Regulations-Series 2, as amended,
ordered that the cases involving Warner and Loew's be severed. from
the cases involving Twentieth Century, Paramount, Columbia, United
Artists, RKO, and Universal and that the case involving Warner
and the case involving Loew's be continued as separate proceedings.
On the same day, the Regional Director served notice by telegram
upon Warner and Loew's, notifying each Company that the hearing
would be postponed and would thereafter be continued upon 3 days'
notice.
Pursuant to notice, a hearing involving each of the Companies
except Warner and Loew's, was held on January 23 to 25 inclusive,
January 30 to February 1. inclusive, February 3 and 4, February 17
to 21 inclusive, and February 24 and 25, 1941, before Daniel Baker,
the Trial Examiner duly designated by the Chief Trial Examiner.
Each of the Companies and the Guild were represented by counsel
and participated in the hearing. Each of the Companies excepted
to the Board's order of January 22, 1941, severing the cases involv-
ing Warner and Loew's. The Trial Examiner made no ruling with
respect to these exceptions. The exceptions are hereby, overruled.
During the course of the hearing, the Guild had marked for identifi-
cation and offered into evidence its Exhibit No. 30-C, comprising a
list of persons employed in the publicity department of Universal
at its home office in New York City who the Guild claimed should
be included in the appropriate unit. The Trial Examiner inadvert-
ently failed to admit this exhibit into evidence. Guild's Exhibit No.
30-C is hereby admitted into evidence as part of the record in these
proceedings. At the close of the hearing Columbia moved "to dis-
miss the proceeding upon the ground that the Guild has failed to
establish the necessary jurisdictional elements to proceed with a hear-
ing of this kind." The Trial Examiner reserved ruling on this mo-
tion for the Board. The motion is hereby denied. During the course
of the hearing the Trial Examiner made several rulings on motions
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and on objections to the admission of evidence. The Board has re-
viewed all the rulings of the Trial Examiner and finds that no pre-
judicial errors were committed. The rulings are hereby affirmed.
On February 21, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon Warner and on
Loew's. Pursuant to notice, a hearing was held on February 26,
1941, at New York City, before Daniel Baker, the Trial Examiner
duly designated by the Chief Trial Examiner, and was on that day
postponed until such time as authorization could be received from
the Board to consolidate both cases. On March 3, 1941, the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section
10 (c) (2), of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered that the case involving Warner
and the case involving Loew's be consolidated. The hearing was re-
sumed on March 5, 6, 7, 10, 11, and 12, 1941. During the course of
the hearing, counsel for Loew's moved to dismiss the petition of the
Guild upon the ground that the unit requested by the Guild was not
an appropriate unit for the purposes of collective bargaining. The
Trial Examiner made no ruling upon this motion. The motion is
hereby denied. During the course of the hearing the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
At the request of all Companies and pursuant to notice served
on all parties a hearing was held before the Board at Washington,
D. C., on April 3, 1941, for the purpose of oral argument. -The
Companies and the Guild each appeared by counsel and participated
in the argument. The Guild and each of the Companies except
Paramount and Universal filed briefs, which have been duly con-
sidered by"the Board.
Although a separate hearing was ' held with respect to the cases
involving Warner Bros. Pictures, Inc. and Loew's, Inc., we shall dis-
pose of all eight cases in one decision, since the issues presented in
these cases are substantially the same.
Upon the entire records in the cases, the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES 1
A. Twentieth Century-Fox, Filnz- Corp., herein called Twentieth
Century, participated, among other companies, in a previous hearing
1 The following statements concerning the business operations of the Companies were
to each instance stipulated to by counsel for the Board and counsel for the Company.
TWENTIETH CENTURY-FOX FILM CORP. 721
conducted by one of the Board's Trial Examiners in 1938, following
which the Board issued its Decision , Certification of Representatives,
and Order .2 That Decision contained under the heading "Findings
of Fact-I. The business of the Companies ," in subdivision E
thereof, a detailed statement of the business operations of Twentieth
Century.3 At the first of the two hearings in the present proceedings,
in which Twentieth Century participated , it was stipulated that the
statement relating to the business operations of that Company in the
Board's Decision above referred to is equally true at the present
time. Section I E of the Findings of Fact contained in the Decision
in the previous case relative to the character and extent of the busi;
ness operations of Twentieth Century is hereby incorporated herein
and made a part of this Decision and Direction of Elections.
Counsel for the Board and counsel for Twentieth Century further
stipulated that for the year 1940 Twentieth Century shipped from
its West Coast studio to its New York office 43 negatives of feature
pictures constituting approximately 387 reels , that approximately 250
prints were made from each negative , or a total of 10,750 prints, that
these prints were shipped to all parts of the United States for ex-
hibition and public performances , and that approximately 30 prints
from each negative , or a total of 1,290 prints were distributed within
the State of New York.
B. United Artists Corp., herein called United Artists, a Delaware
corporation , with its principal place of business in New York City,
is engaged in the distribution and licensing of motion pictures for
exhibition . United Artists distributes motion pictures pursuant to
contracts which it enters into with the producer thereof.
When a motion picture is completed , the negative is delivered to
a laboratory either in California or in the metropolitan area of New
York City. Positive prints are taken therefrom and United Artists,
as distributor , sends these prints to its 26 exchange - centers where they
are picked up by the exhibitors in accordance with the contracts of
license which they have respectively executed with the Company.
The exchanges are located in 26 States , and prints are delivered to ex-
hibitors in every State throughout the country . Of the first 100
prints, 10 are sent to the New York Exchange which serves the terri-
tory of New York and New Jersey. Thus, 90 per cent of the prints
are sent to exchanges in other States . During the year 1940, United
Artists distributed 4,421 prints throughout the country.
2Matter of RKO Radio Pictures ,- Inc., Ass'n of Motion Picture Producers , Inc, Motion
Picture Producers and Distributors of America, Inc, and Pat Casey , et al. and Screen
Publicists Guild, 13 N . L. R. B. 876
3 The statement concerning the business of Twentieth Century appears in 13 N. L R. B
at page 886. _
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The film exchange of United Artists located in New York City
has 825 accounts to which it licenses prints for showing, 190 of which
are located in New Jersey. Following exhibition, the prints are
returned by the exhibitor to the exchange from which they were
obtained.
C. RKO Radio Pictures, The., herein called RKO, a Delaware
corporation, with its home office and principal place of business in
New York City, is engaged in the business of producing and distribut-
ing feature and short subject motion pictures. RKO maintains a
studio located in Los Angeles, California, for the production of
feature and short subject motion pictures. RKO also maintains some
32 branch offices or exchanges located in 26 different States and in the
District of Columbia for the release and distribution of motion pic-
tures in the United States. Three of these exchanges are located in
New York State, two are located in California, and none are located
in New Jersey. The negatives of feature and short subject motion
pictures produced in California are shipped to laboratories located
either in New Jersey, New York, or California. Positive prints of the
motion pictures made at the laboratories are shipped directly to the
respective exchanges.
Of the 49 feature motion pictures distributed by RKO during the
most recently completed motion picture season which commenced
September 1, 1939, and ended August 31, 1940, the negatives of all
but four of such feature motion pictures were shipped to laboratories
in New Jersey, and the positive prints made therefrom were shipped
to the respective exchanges in 26 States and the District of Columbia..
The same was true of 58 of the 89 short subject motion pictures dis-
tributed by RKO during such motion picture season, and of all the
116 news reels distributed during the same period of time. The posi-
tive prints of the feature and short subject motion pictures and of
'the news reels released and distributed by RKO during this period
were exhibited in motion picture theaters throughout the 48 States
and the District of Columbia, under and pursuant to license agree-
ments made by RKO with the respective exhibitors. The positive
prints are shipped or delivered to the exhibitor from the exchange
nearest the exhibitor's theater, and, generally speaking are returned
by such exhibitor to the exchange for inspection before being shipped
or delivered to the next exhibitor.
During the 1939-1940 motion picture season, the minimum number
of positive prints of any feature motion picture distributed by RKO
was 115, and the maximum number was 344. The average number of
positive prints of RKO 'feature •motion pictures was approximately
189. A minimum of 82, a maximum of 321, and an approximate
average of 147 short subject motion pictures, and a minimum of 287,
TWENTIETH CENTURY-FOX FILM CORP. 723
a maximum of 330, and an approximate average of 308 news reels
were so distributed by RKO during the 1939-1940 season. During
the same period of time,, RKO, through its New York City exchange,
had accounts with, and furnished feature or short subject motion
pictures to', more than 600 exhibitors whose theaters. were located
either -in New 'York or New Jersey.
D.- Paramount Pictures, Inc., herein called Paramount, I a New
York corporation with its principal place of business in New York
City, is engaged in the production and, together with the Paramount
Film Distributing Corporation, a wholly owned subsidiary, in the
distribution of motion pictures. Paramount Film Distributing Cor-
poration is a Delaware corporation engaged in the business of dis-
tributing motion pictures, and maintains its principal place of
business in Wilmington, Delaware. Paramount maintains and
operates its principal studio for the production of motion pictures at
Hollywood, California, where it-also maintains and operates a film
laboratory. Paramount is qualified to do business as a foreign cor-
poration in' .15 States. - Paramount Film Distributing Corporation
is qualified to do lbusiness as a foreign corporation in 14 States.
The various film exchanges - of : Paramount and' Paramount Film
Distributing Corporation negotiate with exhibitors for licenses to
exhibit Paramount pictures. License agreements so negotiated are
sent by. the local film exchange to the home office of the company
where they are approved or rejected. Paramount Pictures, Inc.
maintains an, office in,the City of New York wherein are situated
the New Jersey exchange which serves certain portions of northern
New Jersey, the Brooklyn exchange, which serves Brooklyn and Long
Island, and the .New York exchange, which serves -certain portions
in the southeast section of New York,State.
In compliance with the terms of the license agreements made
between the distributor and the exhibitor, films are shipped by com-
mon carrier, express, or parcel post from the respective exchanges
to the exhibitor licensees in each locality. Upon the completion of
the exhibition of such motion picture, the exhibitors return the film,
by common carrier, express, or parcel post to -the exchange from
which it came or, upon instructions from the distributor, send it to
another exhibitor.
During the fiscal year, September 1, 1939, to August 31, 1940, 48
negatives were -received by the Long Island laboratory from the
studio. In no case are any negatives or prints transmitted from
either the studio or the laboratory to the home office. Paramount
distributed to the various Paramount film exchanges located through-
out the country in the year beginning September 1, 1939, and ending
August '31, 1940,a total of over 15,000 prints made up of both short
448692-42-vol 32-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and,feature motion pictures.. In excess, of, 96 per cent of these prints
were received; by the Company -,,,it New York, City from, the, West
Coast laboratory and were sent ,by, it X6, points outside the, State
of New York during this fiscal. year. • During -the, fiscal, year,, Sep-
tember 1, 1939, to August 31, 1940,` Paramount, through its five film
exchanges in New York State, had available for exhibition by exhibi-
tors, both within and,without the State of New York, in excess :of
1,500 prints. As a matter of regular practice during 1940' and prior
thereto, which practice is, still in effect, films shown by exhibitors
situated outside the State:of New York, yet,,whose theaters are served
by -film exchanges located in the State of New York, were transmitted
to these exhibitors from the, film exchanges situated in New, York
State by, means of delivering the film to the exhibitor or, his agent,
which-might be a common carrier, an•express company, or the United
States Mail ,service. As a general rule, after, the' picture has been
shown, .the print is returned to the exchange • in the same manner.
The transportation of the print to and from the theater is generally
paid for by the exhibitor, as provided in the license ,agreement. ,
During the season,' September 1, 1939 to August 31, 1940, Paramount
negotiated more than 5,000 licenses'for showing Paramount pictures
to exhibitors situated' outside .the State of New York to whom deliv-
eries were made in the aforesaid manner. During the season; Septem-
ber 1, 1939, to' August 31, 1940, Paramount produced 51 feature and
83 short subject motion pictures.
During the period from,January 1, 1940, to June 1, 1940, Paramount
purchased in excess of 20 million feet of film from Du Pont Film
Manufacturing Corporation at Parlin, New Jersey: This film was
delivered to Paramount News Laboratory in New York City. During
the year 1940, approximately 50 million feet of film was purchased
from J. E. Brulatour Company, Fort Lee, New Jersey, and the said
Du Pont Film Manufacturing Corporation, which film was- delivered
to Paramount's,Long Island City Laboratory.
E. Columbia Pictures Corporation; herein called Columbia,' a. New
'York corporation with offices in New York City, is engaged, in the
business of producing and distributing motion picture -films, and
licensing them for exhibition. Columbia : maintains - a studio. -in,
California where the pictures are produced, and from which it ships
prints to various exchanges throughout the United States for distribu-
tion to the exhibitors. Exchanges are maintained in 25 States and the
District of Columbia, with a shipping center also located in Butte,
Montana.
With reference to the New York exchange,' about 18 prints ari;
received in connection with feature pictures and about 12 prints in
connection with short subjects: At the film -exchange; the prints, are
TWENTIETH CENTURY-FOX FILM CORP. 1 725
made available for exhibitors in the New York area and the New
Jersey area which would be included in the territory known as the
Greater Metropolitan Area. The exhibitors pick up the prints at thy;
New York City office, and, after exhibition, return them to the New
York exchange. During the past year, the New York exchange has
had 760 accounts, which included New York and the New Jersey areas
referred to, and about 100 of which were located in New Jersey.
F. Universal Pictures Company, Inc., herein called Universal, a
Delaware corporation qualified to do business in the States of New
York and California, maintains executive offices in New York City,
and is engaged solely in the business of producing motion pictures
at its studio in California. It is not a distributor. Universal motion
pictures are distributed by Universal Film Exchange, Inc., a Delaware
corporation, which is a wholly owned subsidiary of Universal, and
which distributes these pictures throughout the United States, except
the so:called Metropolitan Area which includes greater New York
City, Long Island, Westchester, parts of New York State, and the
southern part of the State of New Jersey. Universal Film Exchange,
Inc., maintains exchanges in approximately 25 States.
The distributor for Universal pictures in the Metropolitan Area,
as defined, is the Big U. Film Exchange, Inc., a New York corporation,
20 per, cent of whose stock is owned by Universal. Approximately
850 theaters in the State of New York and 300 in the State of New
Jersey are included in the Metropolitan Area which is served by the
Big U. Film Exchange, Inc. Universal ships the negatives of motion
pictures produced by it to a laboratory in Fort Lee, New Jersey,
operated by Consolidated Film Industries, Inc., which is not an
affiliate of Universal. Prints of Universal pictures are thereupon
shipped from the laboratory to various parts of the United States,
including the State of New York. When the prints of,the various
pictures are received in the New York exchange of the Big U. Film
Exchange, Inc., they are delivered in New York City to,exhibitors
under license agreements, made between the exhibitors and Big, U:
Film Exchange, Inc. Under the license agreements, , prints made
available to exhibitors and delivered to the exhibitors are required
to be returned by the exhibitor to Big.U. Film Exchange, Inc., in
New York City.
G. Loew's, Inc., herein, called Loew's, a Delaware corporation; is
engaged in,the distribution of motion pictures in every State in the
country through the medium of 32 branch offices. The combined New
York and New Jersey exchanges of the company are located in
New York City.
The New York area includes Manhattan, the Bronx, Brooklyn,
Staten Island, half of Queens, and certain theaters in the southern
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of Westchester. The New Jersey area includes the other half
of Queens, Suffolk, Nassau, Rockland, Orange, Putnam and Dutchess
Counties, the balance of Westchester, and the City of Kingston in
Ulster._ It also includes all of New Jersey north of Trenton.
From October 1, 1939, to October 1, 1940, the Company - released
50 feature motion pictures, 70 short subjects, and 104 news reels. The
majority of these pictures were produced in California. The negatives
of motion pictures are sent to laboratories either on the West Coast
or at Fort Lee, New Jersey. The positive prints are shipped to the
various exchanges for distribution to exhibitors who, after using the
films, return them to the exchanges.
From October 1, 1939, to October 1, 1940, the New .York and New
Jersey exchanges received from the laboratories 1,271 prints of fea-
ture pictures, 927 prints of short subjects, and 11,652 prints of news
reels.
The combined New York and New Jersey exchanges service a total
of 972 theaters in New York and New Jersey, of which 272 are in
New Jersey. -
Warner Bros. Pictures, Inc., herein called Warner, a Delaware
corporation with offices in New York City, is engaged in the produc-
tion of motion pictures at Burbank, California. The negatives of
the pictures so produced are either delivered to a laboratory in Los
Angeles, or to a laboratory in Brooklyn, New York, which is not
owned by Warner.
.
From the laboratories the prints are shipped to' 30 exchanges,
throughout the United States. These exchanges are operated by
Vitagraph, Inc., a wholly owned subsidiary of Warner, which rents
space from the latter Company at its offices in New York City.
Vitagraph, Inc.', makes licensing contracts with the theaters, ships
prints to the theaters in all 48 States, and, after the prints are returned
to the exchange, reships them to other exhibitors. Vitagraph, Inc.,
operates three exchanges in New -York State which are located in
New York City, Albany, and Buffalo. The exchange in New York
City serves the southern part of the State, including New York City,
and northern New Jersey. It services more than 150 accounts in
north New Jersey, and 500 accounts in southern New York.
Warner annually produces approximately 52 feature motion pic-
tures and a fluctuating number of shorts. About 102 shorts were pro-
duced during the past year and during that period the Company
used an average of about 175 prints of feature pictures and 100
prints of short pictures. It has exchanges, other than -the three
situated in New York State, scattered throughout the United States.
The prints are, in every case, taken by the exhibitors at the exchange,
or they are delivered to the exhibitors direct. Warner does not
ship to the exhibitors.
TWENTIETH CENTURY-FOX FILM CORP. 727
II. THE ORGANIZATION INVOLVED -
Screen Publicists Guild is an unaffiliated labor organization, ad-
initting to its membership publicists in the service of each of the
Companies at their home offices in New York City.
III. THE QUESTIONS CONCERNING REPRESENTATION
All parties at both hearings stipulated that in each case a ques-
tion concerning representation exists. Each company stated that it
contested both the unit proposed by the, Guild and the Guild's
majority.
.There were introduced in evidence statements by the Regional
Director of the Board that the Guild - had submitted to her -member-
ship application and- authorization cards in behalf of its claims to
represent publicists in the service of each of the Companies at their
home offices in New York City. These statements indicate that the
Guild represents a substantial number of publicists in the service of
each Company.'
4 The statements of the Regional Director with respect to the representation claims of
the Guild show the following : -
Twentieth Century. Of the 34 membership application cards submitted by the
Guild, which were variously dated between June and September 1940, all bore the
signatures of employees listed on the Company's pay roll of October 15, 1940, which
contained the names of 36 employees in the unit alleged as appropriate.,
Paramount. Of the 16 membership application cards submitted by the Guild, which
were variously dated between January and October 1940 all bore the signatures
of employees listed on the Company's `pay roll of October 15, 1940, which contained
the names of 26 employees in the unit alleged as appropriate
Columbia. Of the 24 membership application cards submitted by the Guild, which
'\\ere variously dated between November 1939 and September 1940, all bore the sig-
natures of employees listed on the Company's pay roll of October 15, 1940, which
contained the names of 29 employees in the unit alleged as appropriate
United Artists. Of the 15 membership application cards submitted by the Guild,
which were i ariously dated between November 1939 and September 1940, all bore
the signatures of employees listed on the Company's pay roll of October 15, 1940,
which contained the names of 20 employees in the unit alleged as appropriate.
ItKO. Of the 41 membership application cards submitted by the Guild, of which
3 were undated, 1 unsigned, and the remainder variously dated between November 1939
and September 1940, 24 bore the signatures of employees listed on the Company's
pay roll of October 15, 1940, which contained the names of 43 employees in the unit
alleged as appropriate.
Universal. Of the four membership application cards submitted by the Guild, all
of which sere dated in September 1940, all bore the signatures of employees listed
on the Company's pay roll of October-15, 1940, which contained the names of six
employees in the unit alleged as appropriate
Warner. Of the 49 membership application cards submitted by the Guild, uhicli
were variously dated between November 1939 and September 1940, all bore the sig-
natures of employees- listed on the Company's pay roll of October 15, 1940, which con-
tained the names pf approximately 52 employees in the unit alleged as appropriate.
Loew's. Of the 29 membership application cards submitted by the Guild, of which
1 was undated and the remainder variously dated between December 1939 and Sep-
tember 1940, all boie the signatures of employees listed on the Company's pay roll
of October 15, 1940, which contained the names ;of approximately 41 employees in
the unit alleged as appropriate.
728 DECISIONS OF NATIONAL: LABOR RELATIONS BOARD
IV. THE EFFECT OF THE QUESTIONS .CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with- the operations i of each, of the
Companies described in Section I above, have a close, intimate, and
substantial relation to trade, traffic , and, commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNITS
The Guild contends that the following classifications in the domestic
and foreign advertising and ^ publicity departments 6 of each,Company
constitute an appropriate unit : (1), persons employed as advertising
copywriters, press book editors, and writers, publicity and feature
writers, planters and contact men who work within the State of
New York, production men, and, exploitation men 6 who work mainly
in New York City and the surrounding Metropolitan area; (2)
salaried artists; (3) free-lance artists who work on the premises of
the Company on an hourly, daily, weekly, or piece-work basis, irre-
spective of the amounts they have earned; and (4) free-lance artists
who have earned $1,000 or more from the Company during the pre-
ceding year.
Each Company, with the exception of Warner,' concedes that
persons falling within the classifications listed in group 1, above,
who are employed in the domestic publicity departments may properly
be included within the unit." In several instances, as noted below,
the Guild and the individual Companies cannot agree that certain
employees in the domestic publicity departments perform duties which
place them within the classes of employees included in group 1. The
Companies urge that persons falling within the classifications listed in
groups 2, 3, and 4, above, and all employees in the foreign publicity
departments in each case be excluded from the unit.
The Guild seeks to exclude from the unit stenographers, secretaries,
clerks, messenger boys, delivery boys, free-lance writers, art studios,
free-lance artists of national reputation, and supervisory employees
other than those who may only recommend hire and discharge, in
'The domestic and foreign publicity departments of each Company , with the exception
of Universal , are located in'New York City. Universal does not maintain a foreign pub-
licity department in New York City.
e The record indicates that warner had no exploitation men in its employ at the time
of the hearing.
z Counsel for warner refused to state the position of the Company with respect to the
unit, but contended that the question is one for the Board to determine.
S Counsel for the Guild and for Loew 's agreed that a photographer employed in Loew's
domestic department should also be included in the unit.
'TWENTIETH CENTURY-FOX' FILM CORP. - ', 729
either the -domestic, or foreign 'publicity, departments of the Com-
panies; and also seeks to exclude translators employed in the foreign
departments of the respective Companies. The Companies do not
oppose such exclusions. We' shall exclude employees in the foregoing
classifications from ' the appropriate bargaining unit ' for each
Company. .
A. The domestic advertising and publicity departments
An understanding of the operations, of the domestic advertising
and publicity departments 9 of the Companies involved herein is
essential in arriving at a determination of whether or not persons in
the disputed categories may properly be included in the appropriate
units. The advertising and publicity staff of each Company pre-
pares what is known as a press book for each feature motion .picture.
The purpose. of the,press book is to provide the theaters with material
_ which will enable them to -advertise effectively and create publicity
for each motion picture they exhibit. The press book is either sent
directly to. the exhibitor or, is forwarded through the motion picture
exchange from which the exhibitor purchases his films.
The press book may be, roughly. divided into three sections, de-
voted,, respectively, to „advertising,, exploitation and publicity,, and
posters and accessories. •
Copywriters prepare the written advertising material or "copy"
which appears in the advertising section. The illustrations accom-
panying the written portion of the advertisement are prepared by
artists, either those who work on a salary basis or free-lance artists who
may or may not work, on the premises of the Companies. The artists
receive their assignments and instructions from the art director, and
they., may ; also at times confer with the production men„ writers, or
other persons in the department. The artists often specialize in a
particular type of art work. Thus, visualizers or lay-out men sketch
out the general idea of the composition;, letterers draw the lettering
which may be used as the caption or title of the advertisement; re-
touchers finish or touch up photographs which, may be incorporated
in the, drawing; board workers assemble and paste together the
various elements comprising the total advertisement; while other
artists. may specialize in portraiture or in drawing human or animal
figures 10
After the illustrations and written portions of the advertisement
have been integrated and assembled, the material is then sent to the
6 The operations of the foreign publicity departments of the Companies are discussed -
below . . . - '1 1,
10 More detailed discussions of the duties and functions of salaried artists, free-lance
artists who work on the premises , and free-lance artists who do not work on the premises
of the Companies are set forth below.
730 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
production man, who determines the kind of engraving and type
to be used to produce the desired advertising effect. The production
man is responsible for the completion of the advertisement before a
"dead line," determined by the release date of the particular motion
picture, and may also be responsible for the routing of art work and
written material to conform to established schedule.
The exploitation and publicity section of the press book contains
ideas which exhibitors may use to gain public attention through the
medium of the local press, and radio, and also agencies, persons, or
groups in the community whose interest may be aroused. This por-
tion of the press book contains both illustrations and written mate-
rial, and press book editors and writers, publicity writers, feature
writers, artists, and production men contribute to the section. Press
book editors and writers compile in written form ideas which exhibi-
tors may use for securing cooperation from persons in the Community
for the purpose of publicizing the picture. An instance of such
form of publicity is a "tie up" which consists of an arrangement with
the manufacturer of some well'-known nationally advertised com-
mercial product to incorporate the picture'of an actor or actress in
a current motion picture in an advertisement of the product which is
to appear in a magazine or other periodical of wide circulation. A
reproduction of the particular advertisement can then be. incorporated
in a press book, with a suggestion to the exhibitor that he secure the
cooperation of a local merchant interested in selling the particular
commercial product by inducing the latter to use the advertisement
in window or store displays as a means of publicizing the picture.
''Publicity writers prepare a wide variety of articles which the
exhibitor can choose for local newspapers, while feature writers pre-
pare stories which generally deal with the characteristics and habits
of the motion picture actors and actresses who appear in the picture,
and which may be used by the exhibitor in a like manner to gain
public attention.
The third section of the press book "contains reproductions 'of
posters and various accessories, such as heralds," banners, streamers,
lobby displays, and similar material which the exhibitor can purchase
in desired quantities, usually through the motion picture exchanges.
As a general practice, from four to six posters of varying size are
prepared for each feature motion picture. These posters, generally
prepared by free-lance artists, and containing the general advertising
theme which has been established for the particular motion picture,
"A herald is a paper containing an advertisement of the motion picture which the ex-
hibitor may distribute to theater patrons or mail to persons in the community . Since the
herald has a blank space in which additional copy or advertising material may be inserted,
the exhibitor may obtain distribution through local merchants interested in inserting their
own advertisements in the space so provided.
TWENTIETH CENTURY-FOX FILM CORP. r 731
are sold to the exhibitors. Copywriters, production men, and artists
contribute to the material contained in this section of the press book.
The advertising' and publicity departments of the various Com-
panies are not confined in their operations to the production of press
books. Other media of advertising and publicity are utilized." Each
Company employs publicity planters or contact men," whose duties
are to secure the use of publicity material by various agencies' which
reach large audiences, such as magazines or other periodicals of-'gen-
eral circulation, news syndicates, and radio stations and networks.
The planter may write his own material, or he may plant material
which has already been written by other employees in' the, general
advertising and publicity department, such as articles- or stories pre-
pared by publicity or feature writers. -On occasion, the "planting"
may involve a personality which requires arrangement for the ap-
pearance of a motion picture actor or actress on a radio program as a
means of creating publicity for the particular motion picture.
As an additional means of securing publicity, the Companies also
employ exploitation men whose duties are to reach an area which
may not be covered through the media of periodicals or.'radio. - At
the time a motion picture opens, the exploitation men may route a
display or parade through the streets of the community,._or ' may
otherwise arouse public interest in the motion picture by, bringing
it to the attention of educators, students, women's clubs, 'or other
groups within the community. Since the work of the planter and
the exploitation man are closely related, one person may on various
occasions do either or both types of work. '
The common aim of advertising copywriters, press book editors
and writers, publicity and feature writers, production men, planters
and contact men, and exploitation men is to advertise, publicize, and
exploit motion pictures. Their work is closely integrated and
coordinated.
As noted above, the Companies and the Guild agree that the afore-
mentioned categories of employees may properly be included in each
unit, but disagree with. respect to the inclusion of salaried and free-
lance artists, employees of the foreign publicity, departments, and
the proper classifications of certain individual employees perform-
ing services in the domestic publicity departments of the various
Companies. We shall now consider the functions and duties of per-
sons in these disputed categories with respect to the contentions of
the parties concerning the propriety of including such persons in the
appropriate units. '
12 The terms planter and contact man are synonymous. In order to " plant" material
a person engaged in work of this kind must "contact" the periodical or other medium in
Rhich the advertisement is to be placed.
732 DECISIONS OF NATIONALt LABOR RELATIONS 'BOARD
B. Salaried, artists. -
r• Salaried artists are employed in, the art departments of the various
motion picture Companies,13 are listed, as employees upon the, pay
roll's of such Companies, work the same hours, and receive wages
comparable to those received by other employees in the advertising
and publicity departments.' They are assigned work by the art
director, are subject to his orders, and consult with him as well as
with copywriters, exploitation men, production men, or other em-
ployees in the advertising, and publicity departments with respect
to the particular art work in which they are engaged. Both Samuel
Cohen, director of foreign advertising and publicity at United Ar-
tists, and Charles McCarthy, director of advertising" and publicity
at Twentieth Century, stated that they considered the art department
to be part of the advertising and publicity department. The various
Companies generally maintain on their staffs one or more salaried
artists, each of whom specializes in a particular type of art work such
as lettering, lay-out, retouching, etc. In light of the foregoing, and
upon,the-basis of,the entire record, we find that the salaried artists,
by reason of their work on' the press books and various other adver-
tising media prepared by the advertising and publicity departments
of each *off the respective Companies, form an integral part of the
general advertising and publicity department -in each of the Com-
panies. .; We shall include them within the appropriate units. •
C. Free-lance artists
The Companies contend that free-lance- artists are not employees
within the meaning of the', Act,' but instead are independent
contractors.
Free-lance artists may be divided into two classes: (1) those who
work on•the,premises of the Companies; and (2) those who work at
their ,own homes or studios. We shall consider the contention of the
Companies with respect to both classes of artists.
,13 Counsel for the Guild and for Paramount stipulated that in June 1939 half of the
art department at Paramount was discontinued , and in January 1940 the other half was
discontinued , except that since January 1940 Paramount has maintained a small art staff
consisting of three full -time salaried at tists and two part -time artists , all of whom are
paid -on a salary basis.
.
u Warner pays its artists on an hourly rather than a salary basis, although their em-
ployment is continuous . Joseph Chasin , assistant art director in charge of press-sheet
ads at warner, testified that in the latter part of 1940 the artists employed by the Com-
pany conferred with Morton Blumenstock, eastern head of advertising and publicity, with
respect to securing certain privileges concerning holidays with pay , vacations , and other
terms and conditions of employment which were enjoyed by other employees in -the-ad-
vertising and publicity department but which up to that time bad not been enjoyed by
the hourly, paid artists . According to Chasin, whose testimony was uncontradicted,
Blumenstock agreed to give the artists the same privileges as those enjoyed by the other
employees in the department. -
TWENTIETH CENTURY-FOX FILM CORP., 733
Free-lance artists who work on the premises, of, the Companies
may be compensated on an hourly, daily, weekly, or piece-work
basis.15 They are called upon by the Companies to substitute for a
salaried artist who may be absent because of illness or,for other
reasons, or when there is a rush of work, or because the artist called
is proficient in performing a certain type of work. The work they
do is substantially the same as that done by salaried artists and
free-lance artists who do not work on the premises of the Companies;
their work is assigned to them by the art director, is similarly sub-
ject to his criticism and suggestion, and must meet with his approval.
Though the basis upon which payment is made varies, artists in this
category generally submit a bill for the work which they have done.
Unlike the free-lance artists who do not work.on the premises of the
Companies, however, their materials are furnished by the Companies.
. Free-lance artists who do not work on the premises of the Com-
panies either call upon or in turn are called by the art directors of
the various Companies who assign them a specific job. At the time
of the assignment the art director either gives the artist a 'rough
drawing or "visual," incorporating the basic idea which he wishes
the artist to produce, or gives him verbal instructions 1e The artist
then returns to his home or to his studio, where he prepares a rough
drawing. Although he uses his own materials, the cost thereof is
not great and no difference in the ultimate charge for the work is
made in the case where an artist uses his own materials and those in-
stances where the Companies themselves supply the materials. The
artist then returns with the rough drawing he has made, which he
presents to the art director, and the latter, either approves, criti-
cizes, or suggests specific changes. These changes may be suggested
either ,because the, art director is not satisfied with some particular
portion of the work or because he has subsequently changed his idea
of what he wishes to incorporate in the drawing. The finished draw-
ing is then prepared by the artist at his home or in his studio and
is presented to the, art director, who either accepts it or suggests
further changes. If the drawing is accepted, the artist sends the
Company a bill, usually on his own letterhead, and is paid accord-
ingly. The art director may direct a free-lance artist to leave the
n "Piece-work" as here referred to means work 'for which payment has been arranged
at the conclusion of each job or assignment ' The term as it appears in these records is
not used in the same sense as "piece-work" in the ordinary industrial plant. „
10 Glenn C Cravath, a free-lance artist who testified on behalf of the Guild, and who
had worked for M. G. M., RKO, Columbia,- British Gaumont, Twentieth Century, United
Artists, and Paramount, stated that the practice at Paramount had been to give out work
sheets to both free-lance and salaried artists, which contained written instructions with
reference to the particular drawing to be produced. He also testified, however, that in
the latter part of 1940 Paramount abandoned the practice of resorting to work sheets for
the purpose of instructing its artists as to the particular job to be done.
734 DECISIONS 01' NATIONAL LABOR RELATIONS BOARD
work he is doing and do other art work instead, or he may assign
the free-lance artist the task of completing or changing drawings
which have been prepared by other artists.
It was testified that, while salaried artists at Loew's receive vaca-
tions, holidays with pay, optional group insurance, and, according
to the amounts of their salaries, annual bonuses, free-lance artists
were not entitled to any of these benefits. It was not shown whether
or not a similar practice prevailed at the other Companies.
The records in these cases show that prices are generally fixed for
posters, and that the prices charged by free-lance artists for other
types of work which they may do are based primarily on the amount
of time consumed, although one artist stated that he computed his
charge on the basis of the difficulty of the drawing and, its importance
to the general advertising scheme in which it was to be used, as well
as on the time required to complete it. The time element, however,
appears to be the primary factor in computing the price which the
artist charges. Some of the free-lance artists added a sales tax to
their bills '17 and some of the Companies deducted a social security
tax, but the practice varied widely, not only as between the various
Companies but also during different periods in the same Company.
Work done by free-lance artists in this category is paid for only on
acceptance and approval by the art director, and not upon delivery.
- The testimony indicates that the free-lance artists generally feel
themselves subject to call by the Company for which they do, a
majority of their work, but no definite agreement to that effect was
shown in any case, although there is evidence in the record that in
several instances art directors of one or another of the respective
Companies have requested free-lance artists to reserve their time so
that they might be free to perform art work which the Companies
would shortly thereafter require. The evidence also indicates that
some of the art directors of the various Companies maintain lists of
free-lance artists whom they most frequently call. Ordinarily free-
lance artists work for more than one of the Companies involved in
this case and also frequently work for companies who are not engaged
in the motion picture industry.
The evidence shows that free-lance artists who work on the premises
of the Companies do so only occasionally-and as a matter of conven-
ience when space is available, and that in all other respects the manner
and conditions governing the performance of their services are the
same as those of free-lance artists who work in their own homes or
studios. The Companies do not list free-lance artists in either cate-
37In 1939 each free-lance artist who worked for United Artists signed a written agree-
ment granting reproduction rights in any art work produced foi the Company. The
agreement in effect provided for a lease by the artist to the Company and was intended
to eliminate the New York City sales tax.
TWENTIETH CENTURY-FOX IILM CORP.. - 735
gory on their regular pay rolls and the supervision and, control over
their work exercised by the - art directors is concerned' less` with the
manner and method of their performance than with tlie_ ultimate
result. Upon the foregoing facts,• and upon the basis of the entire
record, we find that free-lance artists, both those who occasionally
work on the premises of the Companies and those who do not work
on the premises of the Companies, are not "employees" within the
meaning of the Act,18 and we shall not include them in the appropriate
units.
D. The foreign advertising and publicity departments
The Companies urge that all employees in the foreign publicity
departments be excluded from the unit on the ground that the opera-
tions, of the foreign publicity- departments- are separate and distinct
from those of the domestic publicity departments.
The functions of the foreign publicity departments of each of the
respective Companies are: (1) to provide the Company's foreign
offices outside the United States and Canada 19 with advertising and
publicity material; (2) to provide foreign news correspondents sta-
tioned in the city of New York who represent foreign newspapers,
magazines, and other general publications with advertising and pub-
licity material; and (3) to send advertising, and publicity material
directly to foreign publications in other countries.
The advertising and publicity material utilized by the foreign pub=
licity staffs is derived either from the studios of the various motion
picture companies in California or is prepared by the domestic adver-
tising and publicity staffs in New York City.20 On occasion the f or-
eign staff will prepare its own advertising and publicity material
when the press book or other advertising media prepared by the do-
mestic staff is not suitable for purposes of foreign distribution. How-
ever, the foreign publicity staffs in New York City are on the whole
smaller than those of the domestic publicity departments, and material
is See Matter of Federal Ice & Coal Shortage Company and Produce Drivers and Employees
Union, Local No 630 , 18 N. L. R. B. 161 ; Matter of Theurer Wagon Works , Inc. and
International Union United Automobile Workers of America , Locals 259 and 374, 18
N' L R. B 837; and Matter of Houston Chronicle Publishing Company and Houston
Newsboys Union, Local 456. 28 N. L R B 1043 Cf. Matter'of Metro-Goldwyn-Mayer
Studios and Motion Picture Producers Assn, et at. and Screen . Writers' Guild, Inc, 7
N L R B. 662; Matter of Seattle Post-Intelligencer Department of Hearst Publications,
Inc and Seattle Newspaper Guild, Local No. 82, 9 N. L R. B. 1262 ; Matter of KMOX
Broadcasting Station and St Louis Local, American Federation of Radio Artists , affiliated
with A., F of L., 10 N. L. R. B. 479.
10 Canadian offices are generally considered by the Companies as within the jurisdiction
of the domestic publicity department . The domestic department of Loew 's however , serves
offices in Alaska and Hawaii . as well as the United States and Canada.
20 Universal has no foreign and only a skeleton domestic advertising and publicity staff
in New York City . Apparently its foreign staff and the major part of its domestic staff
are located in California.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepared by the, latter, principally the press book, is generally used in
readapted form after required changes in language are made.2'
Although the evidence is not clear in the case of each Company,
it appears that in some Companies the director of foreign publicity
attends conferences held by the domestic publicity department for
the purpose of determining the type of campaign to be used'in adver-
tising' and publicizing a particular picture, and that generally some
form of consultation between the foreign and domestic 'publicity de-
partments occurs at varying intervals both by reason of the fact that
the foreign publicity staffs are smaller and could not possibly prepare
their own campaigns as a matter of regular procedure and because in
actuality much of the material prepared by the domestic departments
is•used'by the foreign staffs.
Writers are employed in the foreign publicity departments for the
purpose of revision or editorial work, and artists and production men
from the domestic departments are used on such occasions as their
services are required. Employees in the foreign departments do
contact work and plant articles in periodicals published abroad in
the same manner as such work is carried on by employees in the
domestic departments with respect to media -of publicity reaching
audiences in this country. Exploitation work in the nature of inter-
views which will reach the public in foreign countries are also
arranged and prepared by members of the foreign staffs.
David Blum, manager of the foreign publicity department at
Loew's, estimated that 90 per cent of the material used by his depart-
ment came from the West Coast studios of the Company, 5 per cent
was derived from the domestic publicity department, and 5 per cent
created in the foreign department. Morris Frantz, an employee in
the foreign publicity department at Loew's, stated that about 60
per cent of the material used by the foreign staff at Loew's was made
by the domestic department and 40 per cent was created in the
foreign department.
While the Guild attempted to show that the managers of the foreign
departments in each of the Companies were responsible to the director
of advertising, publicity, and exploitation, the evidence indicates, how-
ever, that the foreign departments are administratively operated as
separate units under the direction of the foreign sales managers.
While the domestic department and the foreign department of each
Company share the common aim and purpose of creating publicity
in their respective areas, the problems and publicity approach of the
foreign department are often markedly different than those of the
21 with the exception of the English -speaking countries abroad, the primary, if not the
sole, foreign market serviced by the foreign publicity staffs since the,outbreak of the
present war comprises the South American countries.
TWENTIETH CENTURY-FOX FILM, CORP.- , 7,37
domestic department, and the foreign publicity campaign is•inyariably
launched at a later period. - Furthermore, the two departments are
autonomous and -are subject to separate supervision, and control: • -We
find that the employees in the foreign departments have not a sufficient
similarity of interest to be included' within the appropriate units, and
we shall accordingly exclude them. - -
E. Contentions with respect to individual employees
The Guild and the Companies do not agree `that the following em-
ployees in the domestic publicity departments perform duties which
place them within the appropriate-units as heretofore defined.
1. United Artists
The Company maintains that Thomas McCabe, who is listed by the
Guild as a planter in the exploitation department, is in reality only a
shipping clerk and is not to be included in the unit.
. McCabe testified,that he was hired by Norris Wilcox, office manager
for .United Artists, about 7 years ago, and that about a year there-
after he was promoted to his present position in 'the exploitation, de-
partment, where his duties consist of sending material to the theaters
and supplying,the exploitation men in the field with mats, inserts,
broadsides, and other publicity material. McCabe stated that he se-
lects the stills of photographs to be used by the field men and in making
his selection is motivated by their, publicity value. He declared that
he. also corresponds with the men in the field with respect to the, ma-
terials needed and their availability, and that he types such letters
himself. For some time, McCabe wrote copy for the press book, but
had to drop that work when his, regular duties became pressing,, He
works. the same hours as other persons employed in the advertising
and- publicity department. McCabe stated that he has no title and
.that probably "shipping clerk" would be the title of his job.. -^.
Norris Wilcox, office manager and immediate superior of McCabe,
corroborated the latter's testimony. Wilcox testified that of the 200
or more stills shipped to the Company from the West Coast with
reference to one picture, McCabe picks out 20 or 30 and sends them to
the men- in the field. He stated that he believed McCabe used his
own discretion in that respect and admitted that McCabe has had
enough experience to know the stills which have the best advertising
value, and that in making his selection of these stills McCabe would
be exercising substantially the same discretion as that of a planter.
Wilcox further stated that 75 per cent-of McCabe's time is spent in
shipping stills.
From the foregoing, it is apparent that McCabe's duties are not
solely of a clerical nature, that he exercises some discretion in the per-
738 DECISIONS OF , NATIONAL LABOR RELATIONS BOARD
formance 'of his work, and that his services are related to the func-
tions,of -other persons engaged as' publicists by the Companies. We
shall include him in the appropriate unit at United Artists.
2. Paramount
Paramount contends that John Cicero and J. Guilfoyle are not pro-
duction men, as claimed by the Guild, but are clerks and therefore
should be excluded from the unit.
Cicero is carried on the pay roll of the purchasing department, which
performs functions similar to those performed by the production de-
partments of the other Companies. He was employed by Frank
Meyers, who is the head of the purchasing department, is generally re-
ferred to as assistant purchasing agent,. and takes his orders from
Meyers. Cicero performs the mechanical requirements necessary for
preparing an advertisement for publication, and orders photoengrav-
ing, -electrotype, tylography and other material necessary for miscel-
laneous window displays or counter, cards. The materials he orders
may be for the use of the various divisions of either the domestic or
foreign' departments. He frequently consults with persons in the art
department with respect to- the "type of drawing" and its preparation
for printing. He is the only one in the employ of the Company who
purchases the above-stated materials or prepares advertisements for
publication. 'We find that John Cicero performs work substantially
similar to, that of production men of the other Companies and that
he is a production man in the sense that that term has been used in
defining the appropriate unit. We shall include him in the appro-
priate unit at Paramount.
Guilfoyle, according to the testimony of Cicero, is Cicero's clerk,
whose duties are to match the bills received by the Company with the
proper order, check quantities, wrap packages, and assist Cicero ;u
a general way. He does the same general type of work which Cicero
does under the-latter's supervision and control. We find that J. Guil-
foyle performs services of a clerical nature, and we shall, therefore,
exclude him from the appropriate-unit at Paramount.
3. Columbia
The parties are in dispute as to whether or not Mark Freeland,
Sylvia Kossack, Hortense Shorr, Frank McGrann, Jack Kerness, and
Lawrence Kuplei, should be included in the unit.
Mark Freeland is an exploiter whose inclusion in the unit is con-
tested by Columbia on the ground that he ' is now employed ' in the
Boston office of the Company. The criterion claimed by the Guild
for the inclusion of exploitation men was limited to exploiteers who
work mainly out of the New York offices of the Company.
TWENTIETH CENTURY-FOX FILM CORP. 739
David O'Malley, business manager of the advertising and publicity
department at Columbia, testified that about 3 weeks prior to the hear,
ing Freeland had been transferred from the New York City office
of the Company to its office in Boston, that Freeland was to remain
in Boston about 2 months, and that thereafter O'Malley thought,that
Freeland wits going to travel throughout the country. O'Malley fur-
ther stated that Freeland had been employed intermittently at Colum-
bia for about 3 years, and that about one-sixth of his time was spent
in New,York City and the balance on the road. O'Malley further
testified that Freeland spent about 3 months working in New York
City during 1940, and up to the time of the hearing in March 1941
he had,spent all but 3 weeks in New York.
Sylvia Kossack, press book editor at Columbia, testified that at the
time he left for Boston Freeland thought he would return 'to New
York in a couple of months. Freeland is clearly within the unit
if he is working in the New York City office. Since there is,some
doubt on this question, we shall include him in the appropriate unit
at Columbia only if he is listed on the pay roll of the New York
City office, on the date we shall hereafter establish for the purpose
of determining eligibility to vote.
Sylvia Kossack, Frank McGrann, and Hortense Shorr are in charge
of , the press book, exploitation, and publicity departments, re-
spectively. Columbia claims that they are supervisory employees
who have the right to hire and discharge and should therefore, be
excluded from the unit. The Guild, however, contends that these
employees have authority only to recommend hire and discharge and
that they should be included in the unit. ' . .
Sylvia Kossack testified that she works directly under the super-
vision of David Lipton, who is the advertising, publicity, and
exploitation director, and at the present time has two assistants, both
of whom she recommended for hire. Kossack has not exclusive
authority to hire and discharge 22 subordinate employees, but makes
recommendations therefor to Lipton, and her recommendations are
generally followed. In the same way, Kossack has not the,power to
establish, but may only recommend; salaries or salary increases for
the members of her department. The supervisory authority of Frank
McGrann and Hortense Shorr, both of whom also work under David
Lipton, is the same as that exercised by Sylvia Kossack.
Lipton corroborated the testimony- of Kossack with respect to her
authority to hire or discharge, and stated that he would expect the
heads of the various departments under his supervision to make their
2s when on one occasion Kossack was dissatisfied with an employee in her department,
she reported the matter to her superior, 'oho decided to give the employee another chance,
and when the latter did not work out satisfactorily thereafter, his employment was
terminated.
448692-42-vol 32-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations to,him and that such recommendations would gen-
erally be followed, although if he were to disagree with them his
decision would be final.
Since Sylvia Kossack, Frank McGrann, and Hortense Shorr are
in charge of subdepartments over which they respectively have con-
trol, and since their recommendations with respect to hire and dis-
charge bear great weight and are generally followed, we shall exclude
them from the. appropriate -unit at Columbia.23
Jack Kerness is assistant to Jack Meyers, the art director.
Columbia contends that the duties he performs are clerical in nature
and that he may not properly be considered within the unit; the
Guild, however, claims that Kerness is an integral part of the art
department and may appropriately be included in the unit.
David O'Malley, business manager of the advertising and publicity
department, testified- that Kerness''makes out requests for outside
art work, takes care of telephone calls, and interviews outside artists
for the purpose of making appointments for Meyers. O'Malley
stated that Kerness does not do any art work, publicity work, or
exploitation work, and that he merely transmits instructions from the
art director to the artists.
We find that Jack Kerness performs duties of a clerical character,
and we shall accordingly exclude him from the appropriate unit at
Columbia.
Lawrence Kupler is employed in the art department at Columbia.
The Company contends that he is an art student and an apprentice
and does not belong in the unit, while the Guild claims that he is a
salaried artist and should be included in the-,unit.
Sylvia Kossack, press book editor, testified that Kupler is more
or less of an apprentice who does simple lay-outs, and designs simple
posters or lobby-page ads, but does not do any art work which is
very advanced.
David O'Malley, business manager of the advertising and pub-
licity department at Columbia, testified that Kupler is an art student
engaged as an apprentice and spends about 40 per cent of his time on
art work and 60 per cent of his time in taking care of stock and
other routine duties in the art department.
Since Kupler is admittedly employed as an art apprentice, the
nature of his work is essentially of the same character as that per-
formed by salaried artists. We shall include Lawrence Kupler in
the appropriate unit at Columbia.
23 See Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13 N L. R B.
974.
TWENTIETH CENTURY-FOX, FILM CORP. 741
4. Twentieth Century
The Company contends that Sanford Korn is an office boy and
should be excluded from the unit, while the Guild urges that Korn
is a production man and may properly be included within the unit.
Korn testified that he is assistant advertising production manager
under Abe Goodman, who is head of the department. He has been
employed by the Company nearly 6 years and has been working on
his present job for approximately 3 years, although he was actually
doing the same type of work since his first year of employment.
Prior to that time he was in the publicity department, checking pub-
licity as it appeared in newspapers and fan magazines and to some
extent in trade papers. His present duties are to order.type and
engraving upon instructions of the art department, and he is re-
sponsible for seeing that the work is done quickly and in the best
manner possible. He exercises his judgment in determining whether
the work is to be carried out in a particular manner with reference
to the kind of engraving to be done or the type to be used. Korn
and Goodman constitute the production staff of the Company, and
Korn testified that when Goodman was away from the office on 2 days
of the week prior to the hearing, Korn took charge of the department.
We find that Korn is a production man and we shall include him in
the appropriate unit at Twentieth Century.
5. RKO
RKO contends that Florence Fineman, Jack McCarter, Lucy Rob-
inson, Gertrude Smith, and Larence Gross should not, and the Guild
contends that they should, be included in the unit.
Florence Fineman is claimed by the Guild to be a publicity
planter and contact woman, while the Company contends that she
is engaged only in secretarial duties. -
, Arthur.Brilant, press book editor at RKO, testified that Fineman
prepares fashion publicity and special stories with feminine appeal,
and also contacts editors of various periodicals and submits material
to them for publication. Brilant declared that Fineman's work is
concerned with publicizing female star's, and that one of the avenues
of publicity is to describe the costumes worn in particular pictures
as a means of introducing new styles. He stated it to be his im-
pression that Fineman planted material, and that he believed Neilson,
director of publicity, has two secretaries, neither one of which is
Fineman.
Albert Polon, who was employed as a clerk in the publicity de-
partment at RKO from July 1936 until March 1939, testified that
during all the time he was with the Company Fineman was engaged
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing fashion bulletins. Polon stated that during this time
Fineman planted, the material she had written in various periodicals,
but that he does not know whether she is doing so now.'
However, Louis Gaudreau, business assistant to the advertising
manager at RKO, testified that Florence Fineman is the secretary
of Neilson, director of the publicity department, and that Neilson
has no other secretary, although two stenographers also work in the
department. Gaudreau stated that Fineman tried her hand at writ-
ing publicity for feminine interest appeal about 3 years ago but that
she is no longer doing so because her writing was not satisfactory.
He testified that his information in this respect was derived from
Neilson, who informed Gaudreau some 5 or 6 weeks prior to the hear-
ing that Fineman does not write or revise stories or fashion material,
that she performs, secretarial duties, and that most of her time is
spent in attending to Neilson's telephone calls. Gaudreau stated,
however, that he did not know whether she was planting material
at such times as she was speaking on the telephone. He declared that
Fineman does a considerable amount of secretarial work in addition
to taking dictation. Gaudreau further testified that he did not know
whether 'Fineman wrote special material for a syndicated fashion
column, but declared that material arrives at the office from the West
Coast and that Fineman sorts it for. Neilson as part of her duties.
He stated that, as far as he knows, Fineman does not do any writing
or editing of the stories herself. Gaudreau also testified that after
certain stills are selected by Neilson as appropriate for particular
magazines they are turned over to Fineman to call the magazine
editors to pick them up.
We find that Florence Fineman performs duties which are pri-
marily of a secretarial nature, and we shall therefore exclude her
from the appropriate unit at RKO.
Jack McCarter is claimed by the build as a production man. The
Company maintains that it has no production department, that the
chief duties performed in other companies by persons properly de-
scribed as "production men" are spread among the art director, ad-
vertising writers, the, head of the' advertising and publicity depart-
ment, or the assistant to the advertising manager, and that McCarter
is only a subpurchasing agent who acts in a clerical capacity. Mc-
Carter was described by Arthur Brilant, press-book editor at RKO,
as a production man in the art department through whom Brilant
ordered his engravings and special type-set and who directed the
traffic in engraving, printing, and type-setting. Brilant stated that
he did not believe that McCarter did any work other than production.
However, Louis Gaudreau, . business assistant to the advertising
manager, testified that McCarter's job is to call the vendors to pick
TWENTIETH CENTURY -FOX FILM CORP. 743
up copy already prepared by the art department for submission to the
engravers , , photographers , and photostat companies . According to
Gaudreau , McCarter issues purchase requisitions for the material and
when it is returned checks the bills against the requisitions according
to a price schedule furnished him by the purchasing department.
Gaudreau , stated that McCarter does not exercise discretion in the
choice of type, the size of type, or the engraving, and that, generally
speaking , the art director and advertising writer, or , if the job is
a very important one, the advertising manager or purchasing agent
and the art director and advertising writer confer , and decide how
the job will be done from beginning to end. Gaudreau further testi-
fied that the purchasing department has selected an established num-
ber of engravers to whom work is to be given , and that it .is Mc-
Carter's job to rotate the work among the engravers in such a manner
as to avoid delays. Gaudreau further stated that McCarter orders
material for any member in the department but that his duties in this
respect are clerical in nature , since they require only the making of
requisitions for material , and that while McCarter is familiar with
deadlines it is not his duty to see that they are met with reference
to engraving but that the art director "many times does that."
In light of the foregoing , and in view of the fact that the dis-
cretion normally exercised by a production man rests upon persons'
other than Jack McCarter , we shall exclude him from the appropriate
unit at RKO.
Lucy Robinson , according to the contention of the Guild, is en-
gaged in production work. The Company , however, contends that
she is a secretary and should be excluded from the unit.
Arthur Brilant, press -book editor at RKO , testified that Lucy
Robinson assists Jack McCarter in some of his work, also does some
secretarial work for the - head of the art department , and that when
McCarter is away Robinson handles the traffic in engraving. Bril-
ant stated that he also had occasion .to deal with Robinson in ordering
photographs and Velox prints. He did not , however, know how much
time she spent in doing work of this nature in contradistinction to her
secretarial duties.
Louis Gaudreau , business assistant to the advertising manager,
testified that Lucy Robinson is secretary to Strumpf , the art director,
that Robinson 's work consists mostly of taking care of telephone calls
for Strumpf for the purpose of contacting artists, and that Robin-
son assists McCarter in checking invoices , and writing out work
orders. Gaudreau admitted that Brilant's , testimony to the effect
that Brilant himself ordered certain material through Robinson was
accurate . According to Gaudreau, about 75 percent of Robinson's
time is devoted to secretarial duties and 25 per cent to other activities.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in the case of McCarter , Gaudreau testified that Robinson did
not exercise discretion in the choice of type, the size of type, or thq
engraving to be ordered.
We find that Lucy Robinson performs secretarial and clerical
duties , and we shall exclude her from the appropriate unit at RKO.
Gertrude Smith, according to the Company, was to be assigned the
duties of a librarian within a ' week following the conclusion of the
hearing and therefore should be excluded from the unit .21 The
Guild contends that Smith was a press -book writer at 'the time the
hearing closed and is, therefore , to be included in the unit . Gaudreau
testified that the Company was setting up a section for the filing of
publicity matters and that Smith 's new duties would be in the nature
of librarian in charge of the new section, which would be considered
part of the publicity department . According to Gaudreau, Smith
would be engaged in her new position in filing and cataloging various
items in the entire advertising and publicity department of the
Company. On cross -examination , Gaudreau admitted that Smith
was working as a press -book writer at the time of the hearing.
In view of the foregoing , Gertrude Smith will be included in the
appropriate unit at RKO if she is employed as a press -book writer
on the date which we shall hereafter establish for the purpose of
determining eligibility to vote, but will be excluded from the appro-
priate unit if she is employed as a librarian on that date.
Larence Gross, according to the Company, is an office boy or a
shipping clerk and should be excluded from the unit . The Guild
contends that Gross is a publicity writer and should be included in
the unit.
Although Arthur Brilant, press -book editor , testified that Gross
works under the direction of Charles Levy, who is a specialist in the
exploitation department , and that Gross makes some contacts and
writes some material which originates in the department , such as
radio talks which are sent to broadcasting stations throughout the
country, and also special feature publicity stories which are supplied
to men in the field. Brilant 's testimony with respect to the duties of
Gross was based mainly upon his impressions rather - than upon
personal knowledge or direct information.
Louis Gaudreau, business assistant to the advertising manager,
testified that Gross is an office boy working in the exploitation de-
partment, and that his job is to collect , 'assort, and insert material
in envelopes and arrange for mailing and delivery to the mail depart-
ment various items which are sent out daily to men in the field and
to various exhibitors . Gaudreau characterized Gross as a shipping
The Company states in its brief that Gertrude Smith assumed her new duties as. 24
librarian on March 3, 1941.
TWENTIETH CENTURY-FOX FILM CORP. 745
clerk. He stated that Gross did not do contact work, and was not
hired to do, and has not done, any writing. He admitted, however,
that he did not see all the material that leaves the department and
that it was possible that some of the material he did not see might
have been written by Gross. While Gaudreau admitted the possi-
bility of such a circumstance, he stated that he doubted it very much
and explained that Brilant might have conceived the idea that Gross
was doing a considerable amount of writing by reason of the fact
that Gross occasionally on his own volition has written stories, some
of which he might have submitted to Brilant to get his opinion.
We find that Larence Gross is employed in a clerical capacity, and
we shall therefore exclude him from the appropriate unit at RKO.
6. Loew's
The Company contends that Bryan Lee, Paul Kamey, Thomas
Gerety, William O'Brien, William Wang, Arthur. Bretzfield, and
Bernice Fields should be excluded from the unit. The Guild urged
that these employees be included in the unit:
Bryan Lee and Paul Kamey are claimed by the Guild as exploita-
tion men. The Company contends that these men should be excluded
from the unit because they do not spend the majority of their time
physically within the home office of the Company at New York City,
and the mere fact that they work in and around New York City a
substantial part of the time is not sufficient to show a community of
interest with the advertising and publicity men.2-1
Paul Kamey testified that he is employed in the exploitation de-
partment and that his duties at' present consist of writing a service
sheet or bulletin which is issued twice a week. The bulletin presents
ideas which may be used for exploitation purposes and is sent to
certain exhibitors and to members of the Company's exploitation
staff. He testified that he has been an exploitation man since Christ-
mas 1937, and that a principal part of his time during the past year
has been devoted to preparation of the bulletin. In addition to this
work, Kamey testified that during the early part of 1940 he spent
approximately 2 months away from New York City on one exploita-
tion assignment and that on four other occasions during the year he
did exploitation work in Pennsylvania and New Jersey, for periods
varying from ^ 3 to 10 days on . each occasion. He estimated that
one-third of his total working time during the past year had been
25 It is the position of the Company that the proper test for determining whether or not
exploitation men should be included in the unit is whether they do the same type of
work as exploitation men in the field, and not, as contended by the Guild, whether they
iNork mainly in and around the New York area The Company concedes that Joseph
Flynn , who works in the exploitation department and is responsible for the exploitation
section of the press book, may properly be included in the unit.
746 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
spent ,-away from the New York City office on outside . exploitation
work. , He declared that in a short time he was to do outside exploi-
tation work on a picture which was about to be released, and that
this assignment might, keep him away from the, office for a period of
6 weeks to 2 months. Kamey testified that he did not think that
his assignment to write the bi-,weekly bulletin was permanent because
he had been told that if there was a possibility of new exploitation
territory being established, or someone dying or resigning, he might
be given the job. While he is out in the field doing exploitation
work on occasional assignments, Kamey still carries on the bi-weekly
bulletins by either preparing them far enough in advanre or else
returning to New York City to write them.
Patricia Reis, executive assistant to the director of advertising and
publicity at Loew's, testified that the bi-weekly bulletin was begun
in about 1936, and it is generally written by Joseph Flynn'26 who
works in the,exploitation 'department on the exploitation section of
the press book, ,and that between assignments Kamey has merely-been
assisting Flynn. She could not say how much of Kamey's total time
had been spent in the office during' 1940 or the first 3 months of 1941.
Jefferson Livingston, publicity writer in the short subject depart-
ment at Loew's, stated that at the present time the exploitation work
in the field done by KameyIand Lee is quite different from the work
done by exploitation men working outside of the New York City
office. Livingston declared that, through conversations with Kamey.
it was his understanding that,Kamey had been out of the office only
infrequently, if at all, during the last year.
Bryan Lee' did not testify, but Kamey stated that Lee has a desk
in the exploitation department and that . he is in and out of the
-office every day. This testimony of Kamey was corroborated by
Livingston, but Patricia Reis testified, when asked whether Lee had
a regular desk in the office , that there is desk space which is used by
any exploitation man that desires it. Reis further testified with
respect to Lee that she had been informed , presumably by Ferguson,
the head of the exploitation department, that although Lee works in
tine New York City office, he also goes out of the city . However, she
did not know how frequently he had been away in 1940 but stated
that during the summers of 1939 and 1940 lie spent a good deal of
time at Flushing, Long Island, doing exploitation work in connection
with the World's Fair. She testified that Lee had worked on com-
mercial tie -ups with several national advertisers. Reis stated that
Lee has no regular working hours, that he does not report to the
office' every day, but that she did not know how many hours a week
2 The , Company concedes that Flynn should be included in the unit.
TWENTIETH CENTURY-FOX, FILM CORP. , 747
he works. She testified that she was told by Ferguson that Lee 'and
Kamey, among other duties, are used as substitutes for other ex-
ploiteers in cases of emergency. On the other' hand, Jefferson Liv-
ingston testified that Lee is frequently in and out of the office during
the day and that to the best of Livingston's knowledge there is not
more than one full week during the year when Lee is not in the
office in New York City. Livingston further testified that hebelieved,
but could not say definitely, that Lee on rare occasions goes out of
town in connection with'the opening of some picture.
The Company points to the fact that they employ, a ,third field
exploiteer, namely Volney Phifer, who is associated with-the New
York office, and that the Guild has assumed an inconsistent position
with respect to Phifer since it does not also seek to include him in
the unit. Patricia Reis, who testified for the Company, stated,that '
Phifer concentrates mostly on national promotional stunts on. a big
scale, such as touring the country with a lion or a buffalo in a cage.
However, Jefferson Livingston, a witness for the Guild,,,stated that
Phifer lives in New'Jersey and spends agreat deal of his time in
that State, and that Livingston has seen Phifer come into the New
York City office only on rare occasions, which he approximated as
once a week. Livingston further stated that, while both Kamey and
Lee have desks in the exploitation department, there is no desk for
Phifer, and that letters for him are sent to Ferguson's secretary.
We find that Bryan Lee and Paul Kamey are engaged in. exploita-
tion work in 'the New York City office of the Company. We .shall
include them in the appropriate unit at Loew's.
Thomas Gerety and 1'17illiam O'Brien are in charge of the press
book accessories and syndicate division, and the production. depart-
ment, respectively. The Company contends that Gerety' and O'Brien
are but two of the nine supervisors of separate departments com-
prising the advertising and publicity staff of the Company and that
the,Guild's position is inconsistent in seeking to include Gerety and
O'Brien and excluding the remaining seven persons from the unit.
The Guild took the position at the hearing that it wishes to exclude
certain department heads because they are in charge of major depart-
ments such as the art department, the advertising department, the
exploitation department, and the publicity department, that the head
of the short subjects department is assigned work by the director of
the advertising and publicity department with reference to the actual
production or mechanics of making a picture, and that all of the
above-stated people have the right to hire and discharge whomever
they please, whereas Gerety and' O'Brien are merely sub-department
heads, who can only recommend the hire and discharge, of other
persons.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Gerety and O'Brien are responsible to' Howard Dietz, head
of the advertising and publicity department of the Company.
Gerety y-testified that he could hire a person without consulting Dietz
as to whom the individual would be, but would give his recommenda-
tion to Dietz in case of discharge, and that he feels the rules and
regulations of the Company require a recommendation in such a
situation. Gerety testified that there are three people in his depart-
ment, that one of these is his secretary, the other works on the pub-
licity section of -the press sheet, and the third handles details of
road display material and writes advertising copy. He stated that
he .had made requests to Dietz for a ,salary increase for his secretary,
although his recommendations in this respect have not been uni-
formly followed, and that' the two publicists in the department have
been there longer than he has and have continued to see Dietz directly
regarding their salaries. He stated that he nas been with Loew's
about 1 years and has only recommended one person for discharge,
that person being a clerical assistant. Gerety testified that he be-
lieves the other department heads under Dietz operate as he does,
that they have authority to hire, and that the general practice is to
consult Dietz regarding the appropriation and not regarding the
specific individual which the department head may wish to employ.
Patricia Reis, executive assistant to the director of advertising
and publicity, stated- that there is no difference in the authority of
the various department heads 'under Dietz and each has authority
to, hire other persons without consulting him if they wish. She
stated that O'Brien, the head of the production department, hired
,an employee in his department, but could not recall whether he had
discussed it with either Dietz or- herself.' Reis also stated that
Gerety hired ,his secretary, and that he secured her from the steno-
graphic staff without consulting Dietz.28 Later, however, she testi-
fied that Gerety told her of his choice before he hired Miss Lamb and
that he did so because 'Limb was in Reis' department and implied
that the information was offered her as a matter of courtesy rather
than as a matter of right. , Reis declared that Gerety would not be
expected to go to Dietz regarding the hiring or discharging of his
secretary, but would be expected to go to him with respect to the
hiring or discharging of either of the two publicists on his staff.
"'Counsel for the Guild, however, contends that the employee referred to by Reis was
hired by Dietz, and not by O'Brien
Is The Guild takes the position that exclusion from the unit on the basis of the right
to hire and discharge refers to the hire and discharge of publicists and not secretaries.
The Company counters by saying this position is inconsistent since the production de-
partment, of which Gerety is bead, has no publicists in reply, the Guild answers that the
production staff is a sub -department of the other departments which do advertising and
publicity work.
' . TWENTIETH CENTURY-FOX FILM CORP. 749
Reis further testified that Ferguson, head of the exploitation depart-
ment, hires and discharges exploiteers without consulting Dietz?°
Since Thomas Gerety' and William O'Brien are in charge of sub-
departments and their recommendations with respect to hire and dis-
charge would bear great weight, we shall exclude them from the
appropriate unit at Loew's.3o
William Wang is claimed by the Guild as a publicity- planter and
contact man. Loew's contends that he is merely a clerk. Livingston,
editor of the magazine issued by the short subject department which
is headed by Morgan, testified that he has been closely associated
with Wang for a period of over 5 years and that Wang assists Hey-
man, Weiss, and Mrs. Gelbin, who are contact men and; women.
Livingston stated that Wang personally contacts editors of various
rotogravure sections of newspapers and that previously he had
worked in the newspaper clipping department and had been an em-
ployee of the Company for 15 years. He declared that Wang has
contacted all the newspapers in New York City and a large number
of the fan magazines but that some time between August and October
1940, another person was taken into the office to do that work as a
result of which Wang's actual physical contact with newspapers,
magazines, and syndicates has been somewhat reduced. According
to Livingston, a large part of Wang's work is in connection with
verbal requests that come in over the telephone to him or to Heyman,
Weiss, or Mrs. Gelbin; that, subject to Heyman's approval, he selects
from a set of stills, of which there may be perhaps 300 on one picture,
those which he feels may be used for reproduction in connection with
the publicity lay-out. Livingston stated that Wang still goes out
on occasions to magazines and more frequently to newspapers to
plant photographic material and that his work also consists of keep-
ing publicity lists comprising the names of newspapers, magazines,
and theaters who get services issued by the publication department.
Livingston testified that these lists are an important factor in the
successful dissemination of publicity through the mail. In addition
to these duties and answering telephone calls, as well as doing general
work around the department, Livingston stated that he had been
informed by Wang that the latter makes up stories and stills for
Life Magazine.
Patricia Reis, executive assistant to the director of-advertising and
publicity, stated that she had discussed Wang's duties with Schmidt,
the head of the publicity department, and that she herself was also
29 The Company contends in its brief that the testimony of both Gerety and Reis was
somewhat indefinite because there has been "virtually no hiring and firing in the depart-
ment outside of exploiteers for many years," and that the uncertainty was not confined
to the authority of O'Brien and Gerety alone but extended to all department heads,
with the exception of Ferguson who is in charge of the exploitation section.
81 See footnote 23, supra. '
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
familiar with Wang's work. She declared that Wang was formerly
a mailing department boy, that he keeps the service lists referred
to, by Livingston, that he' gets requests from editors and newspapers
for specific material which he sends them, and that he assists Heyman
in collecting stills. Reis testified that she had been informed by
Schmidt that Wang is a clerk in the publicity department and has
no assignments of a creative nature. Reis admitted that she had
not discussed with Schmidt the planting of material by Wang and
did not know whether he had done such work.
Wang has worked for the company between 15 and 20 years and
receives $25 per week. The salaries of other persons in the depart-
ment who admittedly do the work of publicists vary form $40 to
$125 per week, although Livingston, editor of the short subject mag-
azine, receives only $30 per week.. We find that Wang's work is es-
sentially clerical in character. We shall exclude him from the
appropriate unit at Loew's.
Arthur Bretz field is claimed by the Guild to be a publicity writer,
and by the Company to be a clerk. Jefferson Livingston, editor of
the short subject magazine, testified that Bretzfield works under the
supervision of Livingston and'Morgan, the head of the short subject
department, and that Bretzfield's duties are outlined for him by
Morgan and Livingston in collaboration with Heyman, who is a
magazine contact man in the publicity department. Bretzfield has
been working in the short subject department for approximately a
year and a half. Livingston testified that Bretzfield works on the
production of the short story magazine which is issued by the short
subject department, rewriting and editing material which comes from
the West Coast, subject to Livingston's approval. Livingston stated
that from time to time Bretzfield supplies Livingston with exploita-
tion ideas which the latter writes up for practically each short subject
motion picture and that Bretzfield writes the page in each issue of the
magazine containing a synopsis of previous motion picture shorts
reviewed in the magazine.31 Livingston declared that Bretzfield
handles all type corrections, both of'a typographical and grammatical
nature, and is the only person who is responsible for getting all the
material of the magazine assembled, prior to its submission to the
printer. Livingston stated that another phase of Bretzfield's duties
is the writing of trade stories for trade publications, that he also
handles publicity matter over the telephone such as giving out infor-
mation to people from magazines and newspapers who call in refer-
ence to short subject publicity. Livingston declared that Bretzfield
also takes care of trade screenings. A trade screening is a preview of
the motion picture short which is shown to the exhibitors and trade
" The Company contends that this writing is a routine matter and Is not creative.
TWENTIETH CENTURY-FOX, FILM CORP. 751
reviewers. Since short subjects run only 10 or 20 minutes, the Com-
pany groups six or seven of them together so that the exhibitors
can spend an hour and a half in the projection room perhaps once
a month and review a number of the shorts. Bretzfield makes up
synopses of the shorts which can be used for reference by the trade
reviewers and also arranges for the prints to be delivered to the pro=
jection booth and sits in at the screenings, either with or without
Livingston, to answer any questions Which the trade representatives
may ask and to generally see that the screening is conducted in a way
that will accrue to the benefit of the Company.
Patricia Reis, executive assistant to the director of advertising
and publicity, who testified on behalf of the Company, stated that
Morgan had asked her to recommend a clerk and that she had sent
Bretzfield, who had formerly been a clerk and clipping boy,'to him.
Reis testified that she had spoken to Morgan about Bretzfield's duties
and had been informed by him that Bretzfield takes charge of short
subject publicity files and files specific requests on publicity which are
received from outside sources ; that Bretzfield assists Livingston on
the short subject magazine by checking it for errors in spelling and
that he also has some duties in the mimeograph and mail department.
Reis testified that she had been informed by Morgan that Bretzfield's
work is in no way creative. Bretzfield receives a salary of $20 per
week.
We find that Bretzfield, like Wang, is engaged primarily in clerical
duties, and therefore we shall exclude him also from the appropriate
unit at Loew's. '
Bernice Fields is claimed by the Guild as a publicist, while the
Company contends that she is merely a secretarial employee. Fields
testified that she has been employed by Loew's since January 1938
and works in the short subject department. She stated that her duties
are divided between research work, secretarial, work, and publicity
work, and that she spends about one-third of her time on each. With
respect to her publicity work, Fields testified that she plants all the
stills in the short subject department, arranges screenings, and writes
stories for the magazine issued by that department. Fields stated
that she goes over the stills as they come in on each picture and
decides whether or not they have any pictorial or news value which
would be of interest to a magazine or newspaper; that if she decides
that any of the stills have such value she usually discusses it with
Morgan and suggests that it might be placed in one of- the_maga-
zines or newspapers ; and that in some instances she does not discuss
it with. Morgan but instead directly contacts a magazine or news-
paper with reference to placing a still. She stated that it is her
business to convince the magazine that they should use the still and'
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that 'if they do not like the one she has she can suggest that others
be made up especially for them. Fields stated that she has also
arranged merchandise tie-ups with Macy's Department Store in New
York City. She stated that she has written synopses of pictures
as well as captions'and catch-lines, and is now working on a feature,
interview of a particular woman and writing the story, which she
was asked to do by Morgan. With reference to her research duties
Fields explained that if Morgan decides that some subject has a
possibility for a short subject she will tap available sources of ma-
terial in the libraries or newspaper morgues, or if it is a person, in-
terview the person, and, after the material is gathered, assemble it
and write a treatment which is presented to Morgan. With respect
to her secretarial duties Fields stated that she answers the telephone,
takes dictation from Morgan and Livingston, transcribes letters, and
does' filing. In addition to these duties Fields stated that she also
arranged radio shows in two instances.
Jefferson Livingston, the editor of the short subject magazine,
corroborated Fields' testimony and stated that he would estimate
that 25 percent of her time would be devoted to publicity work, if
all her duties other than publicity were considered together. Liv-
ingston admitted that Fields is known throughout the publicity staff
as Mr. 'Morgan's secretary, but later testified that he was informed
by Miss Fields that she had been called into the office of Patricia
Reis, executive assistant to Howard Dietz, director of advertising and
publicity, who told her about the job which she now holds and in-
formed her that it would require a certain amount of writing and
would not be considered solely a secretarial job.
Patricia Reis testified that she was asked by Morgan for a stenog-
rapher whom he could also send on errands to newspaper morgues
and libraries, and that Reis suggested Fields for the job. Reis ' de-
clared that Morgan did not indicate to her that he wanted someone
capable of doing publicity writing. She stated that she checked
with Morgan with regard to Fields' duties and was told by him that
Fields was his secretary, that she performed all the duties of a sec-
retary so far as dictation and mail were concerned and occasionally
went' out' on his instructions to libraries in search of information for
him, and that Morgan stated that Fields does absolutely no creative
work. Reis admitted that she had been told by Morgan that Fields
has occasionally planted material in various magazines but declared
that Morgan had informed her that when Fields did so, it was on her
own volition and not as part of her duties.
We find that Bernice Fields spends a substantial part of her work-
ing time as a -publicist. We shall include her in the appropriate
unit at Loew's.
TWENTIETH CENTURY-FOX. FILM CORP: 753
7. Warner Bros., , -
The Guild contends that ' Larry Golob, Eastern picture director,
Lee Blumberg, press book department head, Paul Lazarus,, Jr., press
book ad copy head, Gilbert Golden, head of the trade ad section.
Sidney, Rechetnik, in the trade paper contact and house 'organ and
short subject publicity section, and Kenneth Aneser, production
head, 32 should be included in the unit. The Company contends. that
these employees exercise supervisory duties and should be excluded
from the unit.
The Company further contends 'that Hy, Cernow,33 who is listed
by the Guild as an--exploitation and press book writer, is not an em-
ployee, but was engaged by the Company ,at the time of the hearing
in the publicity department on a 4-week assignment at a gross pay of
$200 and that it is not contemplated that his services will again be
needed ,when that work is completed. Since Cernow is admittedly
engaged in publicity work, we shall include him in the appropriate
unit at Warner if he is listed as an employee of the Company on the
date which we shall hereafter establish for the purpose of determin-
ing eligibilty to vote.
With reference to inclusion of the employees claimed by the Com-
pany to exercise supervisory functions, the Company-claims the,posi;
tion of the Guild is inconsistent since it attempts to include these
employees but does not attempt to include Rawson, the publicity
manager, Gablik, the art director, or Tisman, the, accessories art
director.
Morton Blumenstock, Eastern head of -advertising and publicity
for Warner, testified that the heads of the various departments under
his supervision, which include Rawson, Gablik, and Tisman, as well
as the six employees whom the Guild wishes'to include in the unit,
are required to make recommendations to Blumenstock concerning
the hire or discharge of their immediate subordinates, ,and although
in an emergency they are permitted to exercise directly the right of
discharge they must nevertheless in such an event secure 'the sub-
sequent' approval of Blumenstock. Blumenstock _ declared' that
Rechetnik 34 is not in the same general classification as the other de-
partment heads 'since he is not solely in charge of a division, and
that his immediate superior is Rawson, although Rechetnik 'on occa-
31 These designations appear on an exhibit introduced at the hearing by the Guild.
The Company also introduced an exhibit in which the above-named employees are desig-
nated as follows : L. Golob, as a newspaper and 'magazine contact man in the publicity
department ; L. Blumberg, as press book editor ; P. Lazarus, as press book advertising
manager, G. Golden, as trade advertising manager; Sidney Rechetnik as trade publicity
contact manager ; and K. Aneser, as the production head.
33 Designated as Hy Carnov on the list of employees submitted by the Guild. - -
31 Rechetnik's staff consists of but one employee.
754 DECISIONS OF - NATIONAL' LABOR RELATIONS , BOARD
sion also works for Blumenstock. Blumenstock further testified that
in his absence Rawson takes charge of the advertising and publicity
department.
We fi'nd' that' Larry Go]oU; Lee `Blurriberb, Paul Lazarus, Jr.,' Gil-
bert 'Golden, and Kenneth Aneser are sub-department heads who
have' supervisory authority, and we shall exclude them from the
appropriate unit at Warner. 15 We further find that Sidney Rechet-
nik is not to be regarded in the same category, as the foregoing de-
partment heads, and we shall accordingly include him in the appro-
priate unit at Warner.
From the foregoing facts, and upon the basis of the entire records
in 'these* cases, we find `that advertising copywriters, press book
editors and writers, publicity,and feature writers, planters and, con-
tact men wlio`work within the State of New York, production men,
exploitation men- who work mainly in New York City and the sur-
rounding Metropolitan area, and salaried artists, employed in the
domestic advertising and publicity departments in the New York
City, offices. of each of the Companies, exclusive of all free-lance
artists, employees in the foreign publicity departments, stenog-
raphers, secretaries, clerks, messenger boys, delivery boys, free-lance
writers, art studios, and supervisory employees, constitute, in the
ca`se' of each Company, a unit appropriate for the purposes of collec-
tive bargaining and that said units will insure to employees of each
Company the full benefit of their right, to self-organization and col-
lective bargaining-and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
All parties at both hearings either expressly requested that the
Board hold an election or assumed that such a procedure would be
followed.. We, find that the questions concerning representation
which have arisen, can best be resolved by separate elections by
secret ballot.
The Guild urges that February 25, 1941, the date of the closing
of the first hearing in these cases, be used for the purpose of deter-
mining eligibility to vote. Loew's contends that March 12, 1941,
the date of the closing of the hearing in which Loew's and Warner
participated, be established as the eligibility date. The remaining
seven Companies, however, contend that the date of the elections
should in each case govern. In accordance with our usual practice,
we shall direct that persons eligible to vote in the respective elec-
tions shall be the employees in the appropriate unit at each Company,
respectively, whose names appear upon the Company's pay roll im-
35 See footnote 23, supra.
TWENTIETH CENTURY-FOX FILM, CORP. 755
mediately preceding the date of this Direction of Elections, subject
to such limitations and additions as are set forth in the Direction
hereinafter.
Upon the basis of the above findings of fact and upon the entire
records in these cases, the Board makes the following :
CONCLUSIONS OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of each of the Companies within the meaning
of Section 9 (c)' and Section 2 (6), and (7) of the Act.
. 2. All advertising copywriters, '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 'Me't'ro-
politan area, and salaried artists, employed in the domestic advertis-
ing and publicity departments in the New York City offices of each
of the Companies, exclusive of all free-lance artists, employees in the
foreign publicity departments, 'secretaries, clerks, messenger boys,
delivery boys, free-lance writers, art studios, and supervisory em-
ployees, constitute, in the case of each Company, a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the National Labor Relations Act.
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
Dn ECTED that, as part of the investigations authorized by the
Board to, ascertain representatives for the purposes of collective
bargaining with Twentieth Century-Fox Film Corp., Paramount
Pictures, Inc., Columbia Pictures Corporation, United Artists Corp.,
RICO Radio Pictures, Inc., Universal Pictures Company, Inc., War-
ner Bros. Pictures, Inc., and Loew's, Inc., separate elections by secret
ballot shall be conducted 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 Sec-
ond 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 copywriters, press book ed-
itors and writers, publicity and feature writers, planters and contact
men who work within the State of New York, production men, ex-
448692-42-vol 32-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ploitation men who work mainly in New York City and the sur-
rounding Metropolitan area, and- salaried artists employed in the
domestic advertising and publicity departments in the New York
'City offices of the Companies during the pay-roll period imme-
diately preceding 'the date of this Direction of Elections, including
any employees who did not work during said pay-roll period because
they were ill or on vacation or in the active military service or train-
ing of the United, States, or temporarily laid off, but excluding all
free-lance artists, employees in the foreign publicity departments,
secretaries, clerks, messenger boys, ;delivery boys, free-lance writers,
art studios, and supervisory employees, and employees who have since
quit or been discharged for cause, to determine whether or not said
employees desire to be,represented by Screen Publicists Guild for
the purposes of collective bargaining.
'MR. EDWIN S. SMITH, dissenting :
I cannot agree with that part of,the decision which excludes from
the appropriate units free-lance artists, employees in the foreign
publicity departments, and certain employees in the domestic
publicity departments.
I particularly regard the failure to find that the free-lance artists
in these' cases are 'employees within the meaning of the Act as an
unwarranted restriction of the right of self-organization and repre-
sentation which the Act was intended to afford. The narrow inter-
pretation placed by the majority upon the employment relationship
in this instance is contrary to the broad and liberal policy of
statutory construction heretofore followed by this Board.36
mMatter of Metro -Goldwyn-Mayer Studios and Motion Picture Producers Assn, et at.
and Screen Writers ' Guild, Inc ., 7 N. L' R B. 662; Matter of Seattle Post -Intellsgenccr
Department of Hearst Publications, Inc. and Seattle Newspaper Guild, Local No. 82,
9 N L. R. B. 1262; Matter of KMOX Broadcasting Station and St. Louis Local , American
Federation of Radio Artists , Affiliated with A. F. of L, 10 N. L R B. 479; Matter of The
Connor Lumber & Land Company and International Woodworkers of America, Local No.
125 (C. I 0.), 11 N L. R B. 776; Matter of Interstate Granite Corporation and Granite
Cutters' International Association of America, Charlotte Branch, 11 N. L. R. B. 1046;
Matter of Washington Branch of the Sun Life Insurance Company of America and Indus-
trial and Ordinary Insurance Agents Union, No. 21354, Industrial and Ordinary Insurance
Agents Council, 15 N. L. R. B 817; Matter of The Park Floral Company and United
Greenhouse and Floral Workers Union No. 510 of the United Cannery, Agricultural, Pack-
ing and Allied Workers, of America, affiliated with the Congress of Industrial Organiza-
tions , 19 N. L. R. B. 403; Matter of Edward F. Reichelt , Robert J. Hill and Russell J.
Jensen, doing business as a co-partnership under the name and style of Paul A. Reichelt
Company and Chicago Fur Workers Union, Local No 45, 21 N. L R B 202; Matter
of Cape Cod Trawling Corporation . et al and American Communications Association,
affiliated with the C 1 0, 23 N L R B 208; Matter of Hearst Publications Incor-
porated Corporation ( Los Angeles Examiner Department ) and Newspaper Circulators,
Wholesale Distributors and Miscellaneous Employees Union No 21666 , American Federa-
lion of Labor, 25 N L It It 621 ; Matter of John Hanocl•• Mutual Life Insananee
Company and American Federation of Industrial and Ordinary Insurance Agents Union
No. 2157, East St Louis and Vicinity, Illinois, et at, 26 N L It B 1024, and Matte,
TWENTIETH CENTURY-FOX FILM CORP. I' l i`1 757
In a prior decision presenting a comparable set of facts, the Board
held that free-lance writers of various motion picture studios were
employees within the meaning of the Act.37 ' In that case a number
of writers were employed on a free-lance basis under contracts pro-
viding for a week-to-week continuation' of their employment or' -for
the completion of a certain piece of work at a specified aggregate
compensation. The writers were given assignments and 'performed
their work under the direction of a producer or an associate producer;
who might assign several writers to, the preparation of one play at
the same time or direct separate writers to work on different parts,of
a play. The writers could be taken off, work to which they had been
assigned and given other work to do. The writers worked closely
with the producer and customarily consulted him at various stages
of the work. At those conferences changes were suggested, and it
was the function of the writers to' embody such changes which had
been determined upon by the producer into the script. The pro-
ducer had the authority to require the writers to rewrite material
iri'accordance with the producer's suggestions and the producer's word
was generally final as to the contents and ultimate form of the written
material.- While the Company usually supplied ' the' writers withh an
office and with necessary supplies, such as writing material; and with
a stenographer, in some cases the writers would not work at, all on
the premises of the Companies but would prepare their work either
at their homes or at some country resort.
The terms and the conditions of employment, as well as the manner
in which the work was performed by free-lance writers in' that ,de-
cision are analogous to those of the free-lance- artists in these ca'se's,
and the measure of supervision and control is substantially the same:
The supervision and control of the art directors here is no less con-
cerned with the manner and method- of performance than was, that,
exercised through the similarly broad authority of the - producer. or
associate producer in the case of the free-lance' writers.38 Indeed,,
of Stockholders Publishing Company, Inc., et al , and Los Angeles Newsboys Local Industrial
Union No. 75, C. I. 0., 28 N L. R.'B. 1006.
The cases in which the Board has held that no employment relationship exists are clearly
to be distinguished by an absence of supervision and control , which is present here, over
the persons whom it is contended hold the status of employees . See, for example, Matter
of Federal Ice & Cold Storage Company and Produce Drivers and Employees Union, Local
No. 630, 18 N. L. R. B 161; Matter of Theurer Wagon Works, Inc. and International
Union, United Automobile Workers of America, Locals 259 and 374, 18 N. L. R. B. 837;
and Matter of Houston Chronicle Publishing Company and Houston Newsboys , Union,
Local 456, 28 N. L. R. B. 1043
si Matter of Metro-Goldwyn -Mayer Studios and Motion Picture Producers Assn, et al.
and Screen Writers' Guild, Inc., 7 N. L. R. B. 662; see also Matter of EMOX Broad-
casting • Station and St. Louis Local, American Federation 'of Radio Artists, Affiliated with
A. F. of L., 10 N. L. R. B. 479. , . ; I'll . . , ,
11 The mere matter of physical location which marks the sole difference between free-
lance artists who work on the premises of the Companies and those who work in their
own homes or studios does not provide a sufficient basis for distinction in determining the
existence of an employment relationship.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the records in these cases .show that the work of both the salaried
artists and the free-lance artists is subject to the same'kind and degree
of criticism and control exercised by the art director, and that in
each case the word of the art, director is final as to the ultimate form
of the drawing and the changes to be made.- Nor is the. fact that
the free-lance writers in the former case worked under the terms of
a, formal contract of controlling importance. The Board has pre-
viously indicated that it will not consider itself bound by contractual
definitions which the parties may assign to their relationship. Thus,
it has said :
'The -matter is not conclusively determined by a contract-which
adverts to and purports to establish the status of such person
other than as an employee. ' Public interest in the administration
of the Act permits an inquiry into the material facts and sub-
stance of the relati6nship.40 '
I would find that the free-lance artists in these cases are employees
is defined in the. Act, that ' their, work is closely related to and
integrated with the work of the other employees in the domestic
publicity departments, and that their wages, hours, and working con-
ditions are sufficiently similar to entitle them to be included in the
appropriate units. Accordingly, I would include in the appropriate
units those free-lance artists who had worked on the premises of the
Companies during the period from the date of the filing of the
petitions to the date of the hearing in each of these cases, and those
free-lance artists who -had worked in their own homes or studios and
had earned $1,000 or more during the preceding year '41 exclusive of
art studios and artists of national reputation.
89 The work of artists of national reputation who are occasionally 'called upon by the
Companies is not subject to the criticism or approval of the art director ., Thus, Joseph
Chasin, assistant art director of press sheet ads at Warner , testified that when the Company
wanted Anton Otto Fischer to make several paintings , they first called in a free-lance
artist to prepare rough drawings embodying the ideas desired, and that a number of
changes were made in these rough drawings because "we couldn't possibly change the
things that Mr. Fischer could do, so we wanted to give him a very accurate idea of what
we • wanted ." As noted above the Guild does not seek to include in the unit artists of
national reputation.
.
'OMatter • of Seattle Post-Inteliigeneer Department of Hearst Publications, Inc. and
Seattle Newspaper Guild, Local No. 82, 9 N. L. it. B . 1262 at 1275 . See also Matter of The
Park 'Floral Company and United Greenhouse and Floral Workers Union No. 510 of the
United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with the
Congress of Industrial Organizations, 19 N. L R B . 404, where the Boai d held that
the execution of leases to persons working in greenhouses did not preclude the finding of an
employment relationship.
41 Although free-lance artists who work in their own homes or studios perform services
for a number of Companies over a period of time, the ' test proposed by the Guild of annual
minimal earnings of $1,000 provides a reasonable basis .for including in the appropriate
units only those free -lance artists in this category who have established an employment
relationship with one or more Companies of sufficient continuity to show a substantial
interest in bargaining collectively about . their conditions of employment.
TWENTIETH CENTURY-FOX FILM CORP. , , ; 759
With respect to the foreign publicity departments, the records in
these cases show that the hours, wages, and conditions of employment,
and the character of work of the employees in those departments are
substantially similar to those of the employees in the domestic pub-
licity departments. Writing, contacting, planting, and exploitation
work relating to the foreign field is performed by the persons on the
foreign publicity staffs in the same manner and for the same purpose
as similar work concerned with the domestic field is performed by
persons employed in the domestic departments. Samuel Cohen, di-
rector of foreign publicity for United Artists, testified that : "The
foreign publicity department parallels in, the foreign market pre-
cisely the same type of work in all respects that the domestic depart-
ment does in. the United States and, Canada." The records here in-
dicate that whenever the need may arise the foreign departments rely
in great measure upon the services of artists and production men
assigned to the domestic staffs. In this connection, Morton Blumen=
stock, eastern" head of the advertising and publicity department' at
Warner, stated that it was the function of 'his department to make
available for ready use of the foreign publicity department any art,
publicity copy, or advertising text material, or anything which could
be adapted in publicizing the motion pictures of the Company in
the foreign market. The mere fact that the two departments are
operated under separate supervision as an ' administrative matter,
that the publicity approach of the foreign 'department is accommo-
dated to a different area, and that its campaign is conducted later in
point of time are not of controlling importance in view of the co-
ordination of function and similarity of duties performed by em-
ployees of both staffs. I would find that the employees in the foreign
publicity departments of the Companies, sought to be included` by
the Guild, are a part of, and should be included in, the appropriate
units .12
With reference to the proper classifications to be accorded specific
employees in the domestic publicity departments about whom the
parties cannot agree, I would include Jack McCarter in the appro-
priate unit at RKO on the ground that his duties are essentially
those of a production man rather than a clerk. I would also tenta-
tively include Florence Fineman and Lucy Robinson in the appro-
priate unit at RKO and would permit them to vote under challenge,
since I regard as inconclusive the evidence with respect to the precise
nature of their duties.
"In lists which it submitted at the hearings , the Guild failed to Include the names
of any employees In the foreign publicity departments of Twentieth Century or of Universal.
The evidence shows that the latter Company does not maintain a foreign publicity staff
in New York City . The employees listed - by the Guild In the foreign departments of each
of the remaining companies vary from 1 to 3 in number.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with the long established- rule of the Board to include
in the appropriate unit, upon request of the sole labor organization
involved, minor supervisory employees who are eligible to member-
ship, I would include Sylvia Kossack, Frank McGrann, and Hortense
Shorr in the appropriate unit for Columbia; Thomas Gerety and
William O'Brien in the appropriate unit for Loew's; and Larry
Golob, Lee Blumberg, Paul Lazarus, Jr., Gilbert Golden, and Kenneth
Aneser, in addition to Sidney' Rechetnik, in the appropriate unit for
Warner. These employees have no authority to hire and discharge,
are in each instance subject to the direct supervision and control of
the director of the domestic publicity department, and in each case
are subject to the superior authority of the domestic publicity di-
rector in matters relating to management and personnel. Under
these circumstances, the employees here involved are not, in my
opinion, in complete charge of separate, autonomous sub-departments,
and hence should be included in the appropriate collective bargaining
unit in each instance in accord with the Board's usual rule 43
-'I would further include William Wang and Arthur Bretzfield in
the appropriate unit at Loew's. Despite the length of Wang's em-
ployment at Loew's and the size of the salary which he receives, the
services which he in part performs in the selection of stills seem no
different to me than those performed by Thomas McCabe who has
been included in the appropriate unit at United Artists. As for
Bretzfield, his duties with reference to the short subject publicity files,
the short subject magazine, and the trade screenings place him in the
category of a publicist rather than a clerk.
43 See Matter of Walter Lantz Production, Universal Pictures Co., Inc., et al. and
screen Cartoon Guild, 16 N. L. R. B. 215. Cf. Matter of Brooklyn Daily Eagle and News-
paper Guild of New York, 13 N. L. R. B. 974.