Walt Disney Productions, Ltd.

National Labor Relations Board - Board Decisions

Jul 22, 1939

13 N.L.R.B. 865 (N.L.R.B. 1939)

In the Matter Of WALT DISNEY PRODUCTIONS, LTD. and FEDERATION OF
SCREEN CARTOONISTS
In the Matter Of WALT DISNEY PRODUCTIONS, LTD. and THE SOCIETY OF
MOTION PICTURE FILM EDITORS
Cases Nos. R-1102 and R-1103, respectively. Decided July 22, 1939
Screen Cartoon Industry-Investi,gation of Representatives : controversy con-
cerning representation of employees : refusal of employer to bargain with any
anion until certified by Board-Units Appropriate for Collective Bargaining:
1. animators , animation effects, In -B-Tween , story department , directors and
assistants , lay out and background , camera-test and checking , process laboratory,.
multiplane plan, special effects, cell washers, inking , production stenographic
(front office ), painting and miscellaneous production workers, excluding persons
representing management , sound technicians , film technicians , studio technicians,
musicians , make-up artists , cartoon editors , assistants , and film librarians. 2.
cartoon editors , assistant editors, and film librarians ; no controversy as to-
Representatives : proof of choice : membership in unions-Certifications of Repre-
sentatives : in each unit upon proof of majority representation.
Mr. William R. Walsh, for the Board.
Mr. Gunther R. Lessing and Mr. T. N. Butterworth, of Los Angeles,
Calif., for the Company.
Faries c6 McDonnell, by Mr. Leonard S. Janofslcy, of Los Angeles,
Calif., for the Federation.
Mr. Felix M. Cunzninghanz, of Beverly Hills, Calif., for the Society.
Pacht, Pelton, Warne d Black, by Mr. Clore Warne and Mr. Milton
Black, of Los Angeles, Calif., for the I. A. T. S. E. and for Locals
Nos. 37, 659, 683, 695, and 706 of the I. A. T. S. E.
Mr. Harold V. Smith, of Los Angeles, Calif., for the I. A. T. S. E.
Mr. Elmer L. Smith, of Hollywood, Calif., for the I. A. T. S. E.,
Local No. 695.
Mr. Herbert Aller, of Hollywood, Calif., for the I. A. T. S. E., Local
No. 659.
Mr. Thomas C. Ryan, of Hollywood, Calif., for the I. A. T. S. E.,
Local No. 683.
Mr. Lewis C. Blix, of Hollywood, Calif., for the I. A. T. S. E.,
Local No. 37.
Illr. O. T. Gilbank, of Los Angeles, Calif., for the Musician's Union.
Mr. Henry W. Lehmann, of counsel to the Board.
13 N. L. R B., No. 92.
865
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
CERTIFICATIONS OF REPRESENTATIVES
STATEMENT OF THE CASE
On February 11, 1938, the Federation of Screen Cartoonists, herein
called the Federation, filed with the Regional Director for the,
Twenty-first Region (Los Angeles, California) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Walt Disney Productions, Ltd.,, Hollywood,
California, herein called the Company, and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On March 10, 1938, The Society of Motion Picture Film Edi-
tors, herein called the Society, filed with the same Regional Director
,a petition and on June 15, 1938, an amended petition alleging that
a question affecting commerce had arisen ' concerning the representa-
,tion of employees of the Company and also asking for an investigation
and certification of representatives.
On September 21, 1938, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation in the
case involving the Federation and authorized the Regional Director
to conduct it and to provide for an appropriate hearing upon, clue
notice. On September 27, and on October 11, 1938, respectively, the
Regional Director issued a notice and an amended notice of hearing,
copies of each of which were duly served upon the Company, upon
the Federation, upon the Screen Cartoon Guild, and upon the Inter-
national Alliance of Theatrical and Stage Employees and Moving
Picture Machine Operators of the United States and Canada, herein
called the I. A. T. S. E., upon the Central Labor Council, and upon
the Los Angeles Industrial Union Council. The Screen Cartoon
Guild and the I. A. T. S. E. are labor organizations claiming to
represent employees directly affected by the investigation.
On October 17, 1938, the Board, acting pursuant to Section 9 (c)
of the Act, and Article III, Section 3, of said Rules and Regulations,
3 At the commencement of the bearing in this proceeding , counsel for Walt Disney Pro-
auctions , Ltd., stated that the name of the Company had been changed to Walt Disney
Enterprises , but that it was intended , as soon as possible , to substitute the previous name
Walt Disney Productions , Ltd., for Walt Disney Enterprises . Counsel then stated that
"no matter what the name is, we are willing to stipulate that whatever orders be made
that the correct name be substituted in the record at any time ." The name "Walt Dis-
ney Productions , Ltd.," will be used herein , but shall be deemed applicable to the Com-
pany irrespective of the precise name of the Company at the time of the issuance of this
Decision and Certification of Representatives.
WALT DISNEY PRODUCTIONS, LIMITED 867
ordered investigations with respect both to the petition filed by the
Federation and that filed by the Society and authorized the Regional
Director to conduct them and to provide for appropriate hearings
upon due notice, and, acting pursuant to Article III, Section 10 (c)
(2), of said Rules and Regulations, further ordered that the cases
involving the two petitions be consolidated for the purpose of hearing
and that one record of the hearing be made. On the same' day the
Regional Director issued a notice of hearing, copies of which were
served upon the Company, upon the Federation, upon the Society,
upon the Screen Cartoon Guild, upon the I. A. T. S. E., upon the
Central Labor Council, and upon the Los Angeles Industrial Union
Council.
On October 18, 1938, the Company filed an answer to the petition
of the Federation and on October 20, 1938, an answer to the petition
of the Society. In each answer, the Company, among other things,
denied that the petitioning labor organization represented the em-
ployees alleged to constitute the appropriate bargaining unit; denied
that the organization named in the petition as claiming to represent
certain of the Company's employees represented any such employees;
denied that the question concerning representation set forth in the
petition was a question affecting commerce within the meaning of
the Act; affirmatively alleged that the enforcement of the provisions
of the Act would deprive it of rights arising from individual con-
tracts between it and various of its employees; and requested that
the petition be dismissed.
Pursuant to the notice, a hearing was held on October 24, 1938,
at Los Angeles, California, before William R. Ringer, the Trial
Examiner duly designated by the Board. The Board, the Company,
the Federation, the Society, and the I. A. T. S. E. were represented
by counsel and participated in the hearing. During the hearing, both
the American Federation of Musicians of the United States and
Canada, herein called the Musicians' Union, and Locals Nos. 37, 659,
683, 695, and 706 of the I. A. T. S. E. orally requested that they might
be permitted to intervene in this proceeding. The Trial Examiner
ruled that after such organizations had filed written petitions for
intervention, they might intervene herein and participate in the
hearing. These rulings of the Trial Examiner are hereby affirmed.
At the commencement of the second day of the hearing, the Musicians'
Union and Locals Nos. 37, 659, 683, 695, and 706 of the I. A. T. S. E.
filed written petitions for intervention and thereafter, in accordance
with the Trial Examiner's ruling, participated in the hearing. The
Musicians' Union was represented by counsel. Counsel for the
I. A. T. S. E. and officials of Locals Nos. 37, 659, 683, 695, and 706
represented such labor organizations. Counsel for the Musicians'
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and for the locals of the I. A. T. S. E. stipulated that all
evidence, admitted into the record prior to the Trial Examiner's ruling
permitting the intervention of such organizations "be considered as
evidence in the entire case."
All the parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the commencement of the hearing, counsel
for the Company renewed the motions made in its answers to dismiss
the petitions. The Trial Examiner did not rule with respect to
these motions. The motions to dismiss are hereby denied. During
the course of the hearing, the Trial Examiner made several rulings
on other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Walt Disney Productions, Ltd., is engaged in the production of
motion picture sound cartoons at Hollywood, California. During
the year prior to the hearing in this proceeding, the Company pro-
duced a feature-length cartoon, "Snow White and the Seven Dwarfs",
and a total of 20 "shorts" bearing the title "Mickey Mouse", "Silly
Symphony", or "Donald Duck". Up to the date of the hearing,
Technicolor Laboratory had made 600 prints of the feature-length
cartoon and an average of 300 prints of each of the "shorts." The
Company releases its productions through R. K. 0. Radio Pictures,
Inc., which makes all contracts with exhibitors, subject to the approval
of the Company. In order to supervise the distribution of its pro-
ductions, the Company maintains offices in New York, London, and
Paris.
In a 12-month period 2 the Company used 1,200,000 feet of sound-
track film, 20,000 feet of colored negative film, 50,000 feet of black and
white negative film, 15 tons of paper, 125,000 pencils, 425,000 sheets of
celluloid, and 235 gallons of paint. The materials purchased in Cali-
fornia by the Company amounted to $31,500 in value and those pur-
chased in places other than the State of California amounted to
$30,000 in value. During the said 12-month period, the Company's
sales in California amounted to $175,000 in value and its sales else-
where amounted to $2,750,000 in value.
2 The record does not indicate the dates upon which such 12-month period began and
ended.
WALT DISNEY PRODUCTIONS, LIMITED
II. THE ORGANIZATIONS INVOLVED
869
The Federation of Screen Cartoonists is an unaffiliated labor organ-
ization, admitting to its membership employees of the Company,
excluding employees engaged solely in screen writing and employees
representing the management.
The Society of Motion Picture Film Editors is an unaffiliated labor
organization. It admits to its membership motion picture film and
cartoon editors, assistant motion picture film and cartoon editors,
sound and film librarians, and assistant sound and film librarians.
The American Federation of Musicians of the United States and
Canada is a labor organization affiliated with the American Federa-
tion of Labor. It admits to its membership musical conductors, musi-
cal composers, musical arrangers, musical copyists, musical librarians,
musical instrumentalists, and persons employed in sound-effects
departments.
The International Alliance of Theatrical and Stage Employees and
Moving Picture Machine Operators of the United States and Canada
is a labor organization affiliated with the American Federation of
Labor. It admits to its membership employees in the theatrical,
motion picture, amusement, and allied industries.
Locals Nos. 37, 659, 683, 695, and 706 are labor organizations affili-
ated with the International Alliance of Theatrical and Stage Employ-
ees and Moving Picture Machine Operators of the United States of
America which, respectively, admit to their membership studio tech-
nicians, photographers, film technicians, sound technicians, and make-
up artists.
III. THE QUESTIONS CONCERNING REPRESENTATION
On January 31, 1938, the president of the Federation wrote a letter
to Walt Disney Productions, Ltd., stating that a substantial majority
of the Company's employees had authorized the Federation to bargain
collectively for them; requesting that the Company recognize the Fed-
eration as the exclusive representative of all its studio employees for
the purposes of collective bargaining; and further requesting a con-
ference to negotiate a collective agreement. On February 2, 1938, the
vice president of the Company sent a letter in reply to that of the
president of the Federation in which he stated that other organiza-
tions had requested the Company to meet with representatives of its
employees; that for this reason the Company was unable to comply
with the requests of the Federation ; and that the Federation and other
organizations claiming to represent employees of the Company should
settle their jurisdictional problems before attempting to confer and
negotiate with the Company on behalf of its employees.
isTJ3e-'^-rot 13--^e
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated hereinafter, the petition of the Federation was
amended at the hearing to exclude from the appropriate unit de-
scribed therein certain classes of employees in addition to those classes
already excluded from the unit by such petition. During the hear-
ing, counsel for the Federation stipulated that the Federation had
not attempted to bargain with the Company on behalf of the em-
ployees included in the appropriate unit as thus amended. Counsel
for the Company, however, stated at the hearing that the Company
would not recognize any labor organization as the representative
of its employees for the purposes of collective bargaining until such
organization had been certified by the Board as the exclusive repre-
sentative of its employees in the unit found to be appropriate.
On March 9, 1938, certain representatives of the Society met with
one Garrity and the vice president of the Company and requested
that the Company negotiate a collective agreement with the Society.
The Company's vice president stated that the I. A. T. S. E. had also
requested a collective agreement from the Company for certain of
its employees ; that for this reason the Company would not negotiate
a collective agreement with the Society at this time ; and that the
Company was unable to bargain with any labor organization until
the Board had determined with which organization or organizations
the Company was required to bargain. On the following day, March
10, 1938, the Society filed its original petition in this proceeding.
We find that questions have arisen concerning representation of
employees of the Company.
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 of the Company
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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNITS
A. The Federation of Screen Cartoonists
In its petition for investigation and certification of representatives,
the Federation alleged the following as an appropriate bargaining
unit : "Animators, animation effects, in-B-Tween, story department,
directors and assistants, lay out and background, camera-test and
checking, process laboratory, multiplane plan, special effects, cell
workers, inking, production stenographic (front office), painting and
WALT DISNEY PRODUCTIONS , LIMITED 871
miscellaneous production workers, excluding, however, company exe-
cutives, production supervisors, and any other persons representing
management." Such unit would apparently include all employees
of the Company exclusive of persons representing the management.
At the hearing, the petition of the Federation was amended upon
motion of counsel for the Federation so as also to exclude from the
unit the following: Cartoon editors, assistants , film librarians, musi-
cians, sound technicians, film technicians, studio technicians, and
make-up artists. The petition of the Federation as thus amended
excluded from the proposed bargaining unit all the employees of
the company with respect to which the Society, the Musicians ' Union,
and all the Locals of the I. A. T. S. E., except possibly Local No. 659,
advanced claims. In its petition for intervention which was granted
by the Trial Exanniner, Local No. 659 of the I. A. T. S . E. alleged
that it was "composed of workers engaged in every type and char-
acter of photography used in the manufacture and production of
motion pictures" and further alleged that it had members who were
employed by the Company. It did not, however, introduce any evi-
dence in support of the allegations in its petition for intervention.
During the hearing, counsel for the I. A. T. S. E., counsel for the
various Locals of the I. A. T. S. E., counsel for the Federation, and
counsel for the Board, stipulated as follows with respect to the mean-
ing of certain terns used in the petition of the Federation as amended
at the hearing :
1. That the term "Sound Technicians" means those workers
commonly known in the motion picture industry in the County
of Los Angeles, State of California, as first sound men, second
sound men, third sound men, sound film loaders, sound public
address operators, industrial sound men and men doing work
directly connected with the setting up, operation, striking, test-
ing, servicing, development and recording of sound.
2. That the term "Film Technicians" means those workers en-
gaged in the processing of all photographic film used in the
manufacture and production of motion pictures.
3. That the term "Studio Technicians" means those workers
engaged in the motion picture industry and in the production
of motion pictures in the occupations commonly known as:
Drapers and upholsterers, grips, nursery men, electricians,
lamp operators, and gaffers, projectionists, property men, prop-
erty manufacturers and miniature workers, special effects
workers, swing gang property men and those workers generally
recognized in said industry as Class B workers (i. e. unskilled
physicial workers; excepting however office, stenographic and
storeroom workers.)
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. That the term "Make-up Artists" means :
Those workers engaged in the art of make up and hairdressing
and all its various effects wherever and whenever makeup or
hairdressing in all its various effects are done by anyone other
than by the actor or actress to him or herself.
The Company raised no objection to the stipulation. Prior to the
time the stipulation was entered into, counsel for the Society had
upon his request been permitted to withdraw from further participa-
tion in the hearing. As noted below, the stipulation does not include
within its scope any employees of the Company within the separate
bargaining unit which the Society claims as appropriate. Under
the circumstances, the terms defined in the above stipulation shall be
deemed to have the meaning given them in such stipulation whenever
used in this Decision and Certification of Representatives.
The Company raised no objection to the unit as set forth in the
petition of the Federation as amended at the hearing and stated
that it desired to maintain a neutral position with respect thereto.
We find that the employees of the Company in the following
classifications : animators, animation effects, In-B-Tween, story de-
partment, directors and assistants, lay out and background, camera-
test and checking, process laboratory, multiplane plan, special effects,
cell washers , inking, production stenographic (front off ice), painting
and miscellaneous production workers, excluding company execu-
tives, production supervisors, and any other persons representing
management, and further excluding sound technicians, film techni-
cians, studio technicians, musicians, make-up artists, cartoon editors,
assistants , and film librarians, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and collective bargaining and otherwise effectuate the
policies- of the Act.
B. The Society of Motion Picture Film Editors
In its petition, the Society alleged that all the cartoon editors,
assistants, and film librarians of the Company constitute an appro-
priate bargaining unit. No party at the hearing voiced any ob-
jection to the appropriateness of such unit: All such employees of
the Company in such unit are eligible to membership in the Society.
We find that the cartoon editors, assistant editors, and film libra-
rians employed by the Company constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
such employees of the Company the full benefit of their right to
self-organization and collective bargaining and otherwise effectuate
the policies of the Act.
WALT DISNEY PRODUCTIONS, LIMITED 873
VI. THE DETERMINATION OF REPRESENTATIVES
A. The Federation of Screen Cartoonists
On February 11, 1938, the date upon which the Federation filed its
petition in this proceeding, the Company employed 675 persons of
whom approximately 602 are in the unit sought by the Federation and
which we have found to be appropriate. The record contains no
evidence as to any change in employment between February 11,
1938, and the date of the hearing.
The Federation submitted in evidence 568 membership applica-
tion cards signed by employees of the Company on or before February
11, 1938.3 It is clear, therefore, that more than a majority of the
employees in the aforesaid appropriate unit signed the membership
application cards. No question was raised at the hearing with re-
spect to the authenticity of the cards. Nor was any evidence pre-
sented relative to any change in the desires of the persons signing
the cards with respect to membership in the Federation or representa-
tion by it.
We find that the Federation has been designated and selected by
a majority of the employees in the appropriate unit here involved as
their representative for the purposes of collective bargaining. It is,
therefore, the exclusive representative of all the employees in such unit
for the purposes of collective bargaining, and we will so certify.
B. The Society of Motion Picture Film Editors
At the time of the hearing on February 11, 1938, the Company had
in its employ 15 persons in the unit consisting of cartoon editors, as-
sistant editors, and film librarians. The Society submitted in evi-
dence designations of the Society as bargaining representative, signed
by each of said 15 employees. Thirteen of the designations were
signed on October 12, 1938, and the remaining two on October 21, 1938.
We find that the Society has been designated and selected by a ma-
jority of the unit composed of cartoon editors, assistant editors, and
film librarians employed by the Company as their representative for
the purposes of collective bargaining. It is, therefore, the exclusive
representative of all such employees in such unit for the purposes of
collective bargaining, and we will so certify.
VII. THE PETITION OF THE I. A. T. S. E. AND OF ITS LOCALS
In this petition to intervene in the present proceeding, the I. A. T.
S. E. and its Locals request that each such labor organization be certi-
L After opportunity was afforded for inspection of the cards and cross-examination based
on such inspection , the cards were withdrawn with consent of counsel for the Company
and counsel for the Board.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled as the representative of such -of the Company's employees as to
whom its claim is extended. As we have noted above, the Trial
Examiner allowed the said labor organizations to intervene. Neither
the I. A. T. S. E. nor its Locals, however, submitted any evidence with
respect to any membership among the employees of the Company.
Moreover, after amendment by the Federation of its petition so as to
exclude,from- the unit which it claimed to be appropriate, sound tech-
nicians, film technicians, studio technicians, and make-up artists, the
I. A. T. S. E. and its Locals withdrew from further participation in
this proceeding. We, therefore, hereby dismiss the requests for cer-
tification contained in the petition to intervene.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CoNcLusloNs OF LAW
1. Questions affecting commerce have arisen concerning the repre-
^:entation of employees of Walt Disney Productions, Ltd., Hollywood,
California, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. The employees of the Company in the following classifications:
animators, animation effects, In-B-Tween, story department, directors
and assistants, lay out and background, camera-test and checking,
process laboratory, multiplane plan, special effects, cell washers, ink-
ing, production stenographic (front office), painting and miscellane-
ous production workers, excluding company executives, production
supervisors, and any other persons representing management, and fur-
ther excluding sound technicians, film technicians, studio technicians,
musicians, make-up artists, cartoon editors, assistants, and film librar-
ians, constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the National Labor
Relations Act.
3. The Federation of Screen Cartoonists is the exclusive repre-
sentative of all the employees in such unit for the purposes of col-
lective bargaining, within the meaning of Section; 9 (a) of the
National Labor Relations Act.
4. Cartoon editors, assistant editors, and film librarians employed
by the Company constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
5. The Society of Motion Picture Film Editors is the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the
National Labor Relations Act.
WALT DISNEY PRODUCTIONS, LIMITED
CERTIFICATIONS OF REPRESENTATIVES
875
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,
IT IS HEREBY CERTIFIED that the Federation of Screen Cartoonists
has, been designated and selected by a majority of the employees of
Walt Disney Productions , Ltd., Hollywood, California, in the fol-
lowing classifications : animators , animation effects, In-B-Tween,
story department , directors and assistants , lay out and background,
camera -test and checking, process laboratory , multiplane plan, spe-
cial effects , cell washers ; inking, production stenographic (front
office ), painting and miscellaneous production workers, excluding
company executives , production supervisors, and any other persons
representing management , and further excluding sound technicians,
film technicians , studio technicians, musicians , make-up artists, car-
toon editors , assistants , and film librarians , as their representative
for the purposes of collective bargaining and that, pursuant to the
provisions of Section 9 (a) of the Act, the Federation of Screen
Cartoonists is the exclusive representative of all such employees for
the purposes of collective bargaining in respect to rates of pay , wages,
hours of employment , and other conditions of employment; and
IT IS HEREBY CERTIFIED that The Society of Motion Picture Film
Editors has been designated by a majority of the cartoon editors,
assistant editors, and film librarians employed by Walt Disney Pro-
ductions , Ltd., Hollywood, California , as their representative for
the purposes of collective bargaining and that, pursuant to the pro-
visions of Section 9 (a) of the Act, The Society of Motion Picture
Film Editors is the exclusive representative of all such employees
for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment , and other conditions of employment.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Certifications of Representatives.