22 N.L.R.B. 705 (N.L.R.B. 1940)

Warner Bros. Pictures, Inc.

National Labor Relations Board - Board DecisionsApr 4, 1940

22 N.L.R.B. 705 (N.L.R.B. 1940)

In the Matter Of WARNER BROS. PICTURES , INC., WARNER BROS. CIR- CUIT MANAGEMENT CORPORATION , PRODUCERS SETTLEMENT CORPORA- TION , CIRCUIT SETTLEMENT CORPORATION , FIRST NATIONAL PICTURES, INC. (MD.), GLOBE EXPORT CORPORATION , VITAGRAPH , INC., MUSIC SALES CORPORATION , MUSIC PUBLISHERS HOLDING CORPORATION and AMERICAN FEDERATION OF OFFICE EMPLOYEES , (A. F. OF L.) LOCAL #20940 Case No. R-1769.-Decided April 4, 1940 Motion Picture Supply Industry-Investigation of Representatives : contro- versy concerning representation of employees : refusal by employer to recognize union as exclusive representative of employees until proven that it had been designated by majority of employees in an appropriate unit ; petition for dis- missed as to one company-Unit Appropriate for Collective Bargaining: ware- house employees in fourth floor warehouse , excluding executive and supervisory employees and department heads-Election Ordered Mr. Mark Lauter, for the Board. Mr. Harold Bare ford, of New York City, for all the Companies except Music Sales Corporation. Mr. Edward K. Flaherty, of New York City, for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE On May 26, 1939, American Federation of Office Employees, Local #20940, herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition alleging that a ques- tion affecting commerce. had arisen concerning the representation of employees of Warner Bros. Pictures, Inc., Warner Bros. Circuit Management Corporation, Producers Settlement Corporation, Circuit Settlement Corporation, First National Pictures, Inc. (Md.), Globe Export Corporation, Vitagraph, Inc., Music Sales Corporation, and Music Publishers Holding Corporation, herein called the Companies, 22 N. L . R. B., No. 34. 705 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 20, 1939, 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 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an ap- propriate hearing upon due notice. On March 11, 1940, the Union -filed an amended petition with the Regional Director. On March 11, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Companies and the Union. Pursuant to the notice, a hearing was held on March 18, 1940, at New York City, before Berdon M. Bell, the Trial Examiner 'duly designated by the Board. The Board and the Companies, except Music Sales Corporation, were represented by counsel, the -Union by its representative, and all participated in the hearing. Full 'opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner granted mo- tions by counsel for the Board to strike Music Sales Corporation and First National Pictures, Inc. (Md.) from all the formal papers. The Trial Examiner also granted a motion to amend the petition and formal papers to conform to the proof. 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 re- viewed all 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 COMPANIES Warner Bros. Pictures, Inc., is a Delaware corporation having its .principal executive offices in New York City. Warner Bros. Circuit Management Corporation, Producers' Settlement Corporation, Cir- cuit. Settlement Corporation, Globe Export Corporation, Vitagraph, Inc.; and Music Publishers Holding Corporation are wholly owned subsidiaries of `Varner Bros. Pictures, Inc. Warner- Bros. Pictures, Inc., Warner Bros. Circuit Management Corporation, Vitagraph, Inc., and Globe Export Corporation main- tain and operate a warehouse located on the fourth floor of, a -build- ing at 619 West 54th Street, New York City, for the purpose of pur- chasing, shipping, and distributing motion-picture stills, lithographs, WARNER BROS. PICTURES, INC. 707 posters, advertising accessories, office supplies, and related products to various branch offices throughout the country. In 1939, these com- panies distributed goods valued in excess of $100,000, 80 per cent of which were shipped to points outside the State of New York. These companies, admit for the purpose of this proceeding that they are engaged in interstate commerce within the meaning of the Act. Producers Settlement Corporation and Circuit Settlement Corpora- tion are disbursing agents for the afore-mentioned four companies. Music Publishers Holding Corporation is engaged in the receiving and shipping of sheet music on the third floor of the building located at 619 West 54th Street, New York City. II. THE ORGANIZATION INVOLVED American Federation of Office Employees, Local #20940, is a labor organization affiliated with the American Federation of Labor. It admits to membership warehouse employees, excluding executive and supervisory employees and department heads. III. THE QUESTION CONCERNING REPRESENTATION On May 3, 1939, the Union requested the Companies to bargain with it as the exclusive representative of the employees in the fourth- floor warehouse of the Companies , and presented a proposed contract. The Companies refused to bargain with the Union prior to proof that it had been designated as representative by a majority of the Companies ' employees in -an appropriate unit. We find that a question has arisen concerning the representation of employees of the Companies. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen. occurring in connection with the operation of the Companies described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among'the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union urges that all warehouse employees of the Companies at their fourth-floor warehouse located at 619 West 54th Street, New York City, _except executive and supervisory employees and depart- ment heads, constitute a unit appropriate for the purposes of col- 'lective bargaining: The only controversy concerning the unit has to 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do with Will Hill and Edward Clewley and the employees of Music Publishers Holding Corporation. The Union claims that Hill and Clewley are department heads and therefore supervisory employees. The Companies admit,that Hill and Clewley are department heads, but maintain that they are not supervisory employees. Hill is in charge of the domestic-shipping department and Clewley is in charge of the foreign-shipping depart- ment. Hill and Clewley are stationed at desks in their respective departments, have the right to recommend the hire or discharge of employees in their departments, distribute the pay checks in their departments, and have the power to grant time off to employees for illness or other reasons. We find that Hill and Clewley are super- visory employees and should be excluded from the unit. The Companies urge the inclusion of the warehouse employees of Music Publishers Holding Corporation in the unit and the Union urges their exclusion. These employees work on the third floor of the building located at 619 West 54th Street, New York City, and are engaged in handling and shipping sheet music. The Union has never attempted to organize these employees. Under the circumstances, we see no reason for not finding an appropriate unit which coincides with the extent of the Union's organization. We find that the em- ployees of Music Publishers Holding Corporation should be excluded from the unit. We find that all the warehouse employees of the Companies at their fourth-floor warehouse located at 619 West 54th Street, New York City, excluding executive and supervisory employees and department heads. constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- panies full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES According to the Companies' time sheet for the week ending March 9, 1940, there were 13 employees in the appropriate unit. A rep- resentative of the Union testified that eight of these employees had designated the Union as their bargaining representative . In accord- ance with our usual practice we -.hall direct an election by secret ballot to resolve the question concerning representation. The Union urges that one Charles Solomon and one Louis Shaktman should be eligible to vote. Solomon and Shaktman were laid off by the Companies on May 5, 1939, because of a change in method of opera- tion making their services unnecessary . They have not been re- placed by the Companies and the purchasing agent in charge of the warehouse testified that the Companies do not contemplate any WARNER BROS. PICTURES, INC. 709 additions to their warehouse staff. We find that they are not eligible to vote. Those eligible to vote in the election shall be employees in the appropriate unit who were employed by the Companies during the pay-roll period immediately preceding the date of our Direction of Election, including employees who did not work during such pay- roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those employees who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Warner Bros. Pictures, Inc., Warner Bros. Circuit Management Corporation, Producers Settlement Corporation, Circuit Settlement Corporation, Globe Export Corporation, and Vitagraph, Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All warehouse employees of the Companies named in the pre- ceding paragraph employed at the fourth-floor warehouse located at 619 West 54th Street, New York City, excluding executive and supervisory employees and department heads, constitute a unit ap- propriate for the purposes of collective, bargaining, within the mean- ing of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Warner Bros. Pictures, Inc., Warner Bros. Circuit Management Corporation, Producers Settlement Corporation, Circuit Settlement Corporation, Globe Export Corporation, and Vitagraph, 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 supervision of the Regional Di- rector for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the warehouse employees 283033-41-voI 22-46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the said companies at their fourth-floor warehouse located at 619 West 54th Street, New York City, who were employed during the pay- roll period immediately preceding the date of this Direction, includ- ing employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have -since been temporarily laid off, but excluding executive and super- visory employees, department heads, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by American Federation of Office Employees, Local #20940, affiliated with the American Federation of Labor, for the purposes of collective bargaining. AND rr Is ORDERED that the petition, in so far as it concerns Music Publishers Holding Corporation be, and it hereby is, dismissed.