Universal Pictures Co., Inc.

National Labor Relations Board - Board Decisions

May 8, 1945

61 N.L.R.B. 1001 (N.L.R.B. 1945)

In the Matter of UNIVERSAL PICTURES COMPANY, INC. and SCREEN
OFFICE AND PROFESSIONAL EMPLOYEES GUILD, LOCAL 1, UNITED
OFFICE AND PROFESSIONAL WORKERS OF AMERICA, C. I. O.
Case No. 2-R-5295-3.-Decided May 8, 19.115
Mr. Adolph Schimel, of New York City, for the Company.
Matthew ill. Levy, by Mr. David I3alper, of New York City, for
the AFL.
Boudin, Cohn d Glickstein, by Mr. Leonard B. Boudin, of New York
City, for the CIO.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Screen Office and Profes-
sional Employees Guild, Local 1, United Office and Professional Work-
ers of America,' C. I. 0., herein called the CIO, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Universal Pictures Companyi Inc., New York City,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Leon Novak,
Trial Examiner. Said hearing was held at New York City, on March
9 and 12, 1945. The Company, the CIO, and Motion Picture Office
Employees Union, Local 23169, A. F. of L., herein called the AFL,
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. At the hearing the Trial
Examiner reserved for the Board a ruling on the AFL's motion to
dismiss the petition on the ground that the 'alleged unit is inappro-
priate. For reasons stated hereinafter, the said motion is hereby
denied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with the Board.
1 The amended petition was filed in the name of Local 109 of the same organization but
that local has since merged with Local 1
61 N. L. R. B., No. 168.
1001
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
. Universal Pictures Company, Inc., a Delaware corporation having
its executive offices in New York City, is engaged solely in producing
motion pictures at its studio in the State of California. Through the
instrumentality of subsidiary corporations, the Company distributes
its product to theatres throughout the United States.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Screen Office and Professional Employees Guild, Local 1, United
Office and Professional Workers of America, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
Motion Picture Office Employees Union, Local 23169, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize the CIO as the exclusive
bargaining representative of the salaried readers and has stated that
it will not accord such recognition unless the CIO is certified by the
Board in an appropriate unit. In addition, both the Company and
the AFL contend that a contract which they entered into on August
14, 1944, for a 2-year period covers the employees in the unit which
the CIO seeks to represent and therefore is a bar to this proceeding.
The CIO denies the validity of such contention.
To understand the position of the parties, it is necessary to advert
to the collective bargaining history which preceded the signing of
the 1944 contract between the AFL and the Company. On February
21, 1939, following the winning of a consent election, the AFL 2 en-
tered into a collective bargaining contract with the Company covering
"all classifications of office workers" at the New York City offices of
the Company, excluding officers and executives. The agreement de-
fined an executive as a department head and contained a list of agreed
exclusions in the form of an appendix. Among the specific exclu-
sions was the "story-talent-scenario head" under whose supervision
the readers work. The contract otherwise contained no mention of
readers. In November 1940, the CIO petitioned for a unit of inside
2 For convenience the terms AFL and CIO are used to describe both the present parties
and their predecessors in interest.
UNIVERSAL PICTURES COMPANY, INC. 1003
and outside readers employed by the Company. At a consolidated
hearing in May' 1941 involving similar petitions for reader units in
the New York offices of the major motion picture producing com-
panies, including the Company, the Trial Examiner was apprised for
the first time of the contract between the AFL and the Company.
On the suggestion of the attorney for the Company that the AFL
might have an interest in the proceeding by virtue of its contract, the
Trial Examiner telephoned a representative of the AFL to notify him
of the hearing and gave him the opportunity to appear. The AFL
representative indicated that his union did not have any interest in
the readers and did not make any appearance.3 The Board thereafter
found that a unit of inside readers, excluding the outside readers was
appropriate; 4 and, following an election, certified the CIO as the
collective bargaining representative of such employees 5 However,
the CIO's efforts to secure a written contract covering the readers
were unsuccessful. Meanwhile, on September 1, 1941, and again on
January 4, 1943, the Company and the AFL executed new collective
bargaining agreements covering substantially the same employees as
were included in their original agreement. However, the appendix
of exclusions attached to both of these contracts not only listed the
"scenario-story-talent department head" but also for the first time
"All employees in the reading department, eligible for membership
in the Screen Readers Guild." E' The agreement executed by the Com-
pany and the AFL in 1944, although containing the same coverage
provision as the preceding contract, omits from the exclusionary ap-
pendix the phrase "All employees in the reading department, eligible
for membership in the Screen Readers Guild" while continuing to
list as excluded the "scenario-story-talent department head." 7 The
AFL and the Company maintain that by this omission of the readers
from the exclusionary appendix and the continued listing of the
3 On page 80 of the transcript of testimony in the consolidated case Matter of Paramount
Pictures, Inc, et at, 33 N. L. R. B 447, is contained the following statement by the Trial
Examiner in that case.
"Before we go ahead with your proof, the Examiner, after Mr. Schimel [attorney
for the Company] had suggested that there might be a possibility that the American
Federation of Office Employees [ predecessor of present AFL] might have some interest
in the proceeding , communicated with Mr Flaherty [ organizer for AFL].
"Mr. Flaherty informed the Examiner that he did not believe his organization had
any interest in the proceeding or claimed to represent any of the employees claimed
to constitute the appropriate unit.
The Trial Examiner informed Mr. Flaherty of the date and place of next day's
hearing and informed Mr. Flaherty that in the event he did not appear that the Trial
Examiner would assume that Mr Flaherty did not claim any interest in the proceeding
"Mr. Flaherty did not appear at the next day's hearing and is not here today, and
I think we may fairly assume Mr. Flaherty is not interested in the proceeding"
4 Matter of Paramount Pictures , Inc., et at, 33 N. L. R. B 447.
5 Matter of Paramount Pictures , rite, et at, 35 N. L R. B. 464.
U The CIO's predecessor organization
7 The department , in addition to the readers and the department head, also has a secre-
tary and a clerk who are part of the AFL's unit.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scenario department head, the readers, although not specifically
named, were necessarily included within the coverage-of the 1944 con-
tract by implication.
Neither the collective bargaining history which preceded nor the
events which have occurred since the execution of the 1944 agreement
!ends support to the position now urged by the Company and the
AFL. The 1939 agreement, like the 1944 contract, specifically ex-
cludes the scenario department head while making no mention of the_
readers. Nevertheless, the AFL at that time did not consider its
essentially similar contract as including the readers, and the conduct
of the parties to the present agreement since the date of its execution
belies their claim that they intended to include the readers within the
coverage of such agreement. In November 1944, the CIO requested
recognition of the Company as the bargaining representative of the
inside or salaried readers. In the discussions which followed that
demand, the Company never contended that the readers were covered
by the contract with the AFL. The conduct of the AFL subsequent
to the execution of the 1944 agreement likewise is inconsistent with its
present position. Until the day before the hearing the AFL had
never notified the readers that they were included within the coverage
of the 1944 contract, never demanded that they join the union or pay
dues, and never tried to invoke the closed-shop provisions of the agree-
merit against them, although doing so against other employees. Fur-
ther, on the day the 1944 contract was signed, the AFL filed with the
Regional War Labor Board applications, which were favorably acted
upon, for wage .increases for all office employees excepting only the
readers. Up to the day of the hearing, however, the AFL had never
submitted such an application in behalf of the readers. Under all
the circumstances, we are satisfied that the readers are not included
within the coverage of the 1944 agreement. We find, therefore, that
the said agreement does-not constitute a bar to this proceeding.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the CIO represents all of the employees in the unit
hereinafter found appropriate.8
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accord with our previous determination, that all salaried
readers employed by the Company at its New York City office, exclud-
8 The Field Examiner reported that the CIO submitted two authorization cards , that the
names on both cards were listed on the Company's pay roll of January 2, 1945, which con-
tained the names of two employees in the appropriate unit , and that the cards were dated
on November 1, 1944. The AFL relies on its contract to establish its interest
UNIVERSAL PICTURES COMPANY, INC. 1005
ing all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act .9
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
loll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Universal Pic-
tures Company, Inc., New York City, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Second Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during the said pay-roll period because they were ill or
on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding any who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, to determine whether they desire to be repre-
sented by Screen Office and Professional Employees Guild, Local 1,
United Office and Professional Workers of America, C. I. 0., or by
Motion Picture Office Employees Union, Local 23169, A. F. of L.,
for the purposes of collective bargaining, or by neither.
° See Matter of Paramount Pictures, Inc, et at, 33 N I. R B 447 . The terms salaried
and inside readers designate the same individuals.
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