Paramount Pictures, Inc.

In the Matter of PARAMOUNT PICTURES, INC., FAMOUS MUSIC CoRPORA- .TION AND PARAMOUNT MUSIC CORPORATION and SCREEN OFFICE & PROFESSIONAL EMPLOYEES GUILD, LOCAL 109, UOPWA (C. I. 0.) Case No. R-4228.-Decided October 29,1942 Jurisdiction : motion picture producing and distributing industry ; music pub- lishing industry. i Investigation and Certification of Representatives : existence of question : stipu- lation that Company refused to accord any union recognition until certified by the Board ; elections necessary. Units Appropriate for Collective Bargaining : separate units comprising office, clerical, secretarial, and accounting employees, at home office, news office, and exchange office, of the motion picture producer and distributor, and at office of the two music publishers ; unit comprising porters, watchmen, and matron, at home office of the motion picture producer and distributor. Mr. Austin. C. Keough, by Mr. George A. Barry and Mr. Arthur Israel, of New York City, for the Company. Boudin, Cohn ct; Glickstein, by Mr. Leonard B. Boudin, of New York City, for the Guild. Mr. Matthew M. Levy, by Mr. David Halper, of New York City, for the I. A. T. S. E. Mr. H. G. Moorhead, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petition duly filed by Screen Office & Professional Em- ployees Guild, Local 109, UOPWA (C. I. 0.), herein called the Guild, alleging that a question affecting commerce had arisen concerning the representation of employees of Paramount Pictures, Inc., New York City, Famous Music Corporation, New York City, and Para- mount Music Corporation, New York City,' herein called the Com- I The petition and notice of hearing also named Paramount Pictures Exchange, Inc., and Paramount News, Inc, but at the hearing it was stipulated that they are not separate and distinct corporations , but divisions of Paramount Pictures , Inc. The petition and notice of hearing were appropriately amended, -without objection. 45 N. L. R. B., No. 24. 116 PARAMOUNT PICTURES , INC. 117 panies, the National Labor Relations Board provided for an appro- priate hearing upon due notice before Frederick R. Livingston, Trial Examiner. Said hearing was held at New York City on August 19, 21, , 24, 25, and 26, 1942. The Companies, the Guild, and International Alliance of Theatrical & Stage Employees, Local B-51 (A. F. of L.), herein called the I. A. T. S. E., appeared, participated,2 and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings, made at the hearing, are free from prejudicial error and are hereby affirmed. The parties have filed briefs which the Board has duly considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Paramount-Pictures, Inc., is a New York corporation engaged in the business of producing and distributing motion picture films and licensing them for exhibition. It produces feature pictures in Holly- wood, California, and in the year ending December 31, 1941, shipped approximately 37 negatives of feature pictures from California to New York City, where it made a total of approximately 4,360 prints which were shipped from New York to film exchanges in various parts of the United States. Paramount maintains and operates film ex- changes in the District of Columbia and 15 States, including an exchange located in New' York City, herein called the Exchange.3 The business of the Exchange is transacted at an office which is sepa- rate and distinct from the home office in New York City of Paramount Pictures, Inc. The business of the news division of Paramount Pic- tures, Inc., and that of the Music Companies are also transacted in separate office buildings. At its news office, Paramount develops nega- tives of news reel pictures taken throughout the world, and screens, edits, cuts, synchronizes, and prints them. In the year 1941, approxi- mately 1,000 of these prints were released weekly and distributed throughout the United States and Canada. Pictures known as short subjects are also produced at the news office. Famous Music Corpora- tion and its wholly owned subsidiary, Paramount Music Corporation,, are both New York corporations engaged in the music business. During the year ending December 31,1941, Famous Music Corporation shipped 'or caused to be shipped from New York City to points in 2 American Federation of Labor, Federal Union 23619 , which filed a petition for inter- vention in the proceeding, also participated, but it withdrew prior to the close of the hearing s Paramount Film Distributing Corporation , a wholly owned , subsidiary of Paramount Pictures, Inc., operates 16 other exchanges located in other States. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD States of the United States other than New York, approximately 115,000 music sheets. During the same period, Paramount- Music Corporation shipped or. caused to 'be shipped from New York City to points in States of the United States other than New York, approxi- mately 75,000 music sheets. The Companies stipulate that they are engaged in commerce, within the meaning of the National Labor Relations Act .4 II. THE ORGANIZATIONS INVOLVED Screen Office & Professional Employees Guild, Local 109, UOPWA, is a labor organization . affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Companies. International Alliance of Theatrical & Stage Employees, Local B-51, is a' labor organization affiliated with the American Federation of Labor, admitting to membership employees of Paramount Pictures, Inc. 6 III. THE QUESTION CONCERNING REPRESENTATION ,At the hearing the Companies and the Guild stipulated that "a question concerning representation arises in this matter by reason of the Companies' position that ,they will not bargain with' any union until certified by the Board as representing a majority of the employees within the appropriate unit." A statement of the Regional Director, introduced in evidence at the hearing, indicates that the Guild and the I. A. T. S. E. each repre- sents a substantial number of employees' within the unit which it claimed to be appropriate .1, At the hearing, the Companies contended that their employees should not be grouped in a single unit, but that four units are alipro- priate, a separate unit for the employees at each of the offices involved in the proceeding. The I. A. T. S. E. contended that the Exchange employees should constitute a separate appropriate unit. The Guild then entered into a stipulation with the , Companies and the * The Music Companies contend that they do business only in the State of New York, but concede that their business affects commerce within the meaning of the Act 6 The I . A. T. S. E. claims to represent employees of only one of the divisions of Para- mount Pictures, Inc., the Exchange. 9 The statement of the Regional Director discloses that the Companies' pay rolls of June 6, 1942, contain the names of 520 employees within the unit alleged by the Guild in its petition to be appropriate ; that the Guild submitted membership application cards bearing the apparently valid and original signatures of 155 of the employees whose names appear -on the pay rolls ; and that the I. A. T. S. E. submitted cards bearing the apparently genuine original signatures of 18 of the 41 employees whose names appear on the Exchange pay roll within the unit claimed by the I. A. T. S. E. to be appropriate. The Companies contend that 81 of the cards submitted by the Guild should not be counted in computing its showing of representation , because they are dated in November and December 1941. we find no merit in the contention. PARAMOUNT PICTURES, INC. 119 I. A. T. S. E., agreeing that four separate units are appropriate : the employees at the home office, those at the Exchange, those at the news office, and those at the office of the Music Companies.? The Companies thereafter moved that the petition of the Guild, be dismissed with respect to the news unit, on the ground that the Guild had not made a showing of substantial representation within that unit. The I. A. T. S. E. made a similar motion with respect to the Exchange unit." A single unit embracing all eligible employees of the Companies was originally alleged by the Guild in its petition to be appropriate.9 In that unit the Guild has made a substantial showing of representa- tion. In three of the four units upon which the parties agreed at the hearing,-viz, the home office, the Music Companies' employees, and the Exchange,-a substantial showing of representation has been made by either the Guild or the I. A. T. S. E. and elections are herein- after directed to be held. Under the circumstances, we believe that the Exchange employees should be permitted to 'choose between the I. A. T. S. E. and the Guild and that the news office employees should also be afforded an opportunity to indicate their choice of a bargaining agency, if any. We find that a question affecting commerce has arisen concerning the representation of employees of the Companies, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS As stated above, the parties have stipulated that the four following units of employees' are appropriate: the home office employees, the Music Companies' employees, the Exchange employees, and the news office employees. The parties have also stipulated, subject to the Companies" contention that certain employees considered below should be excluded from the appropriate units, that each of the units agreed upon should consist of the following categories of employees : all office, clerical, secretarial, and accounting employees, excluding executives, officers, district managers, traveling auditors, lawyers, engineers, film examiners, film shippers, and film handlers. 7 The I. A. T. S. E. entered into this stipulation for the purposes of this proceeding only, reserving the right subsequently to request the Board to find that the employees of Paramount 's exchanges throughout the country constitute a single appropriate unit. 8 The statement of the Regional Director (as corrected by a stipulation entered into by the parties at the hearing ) discloses that the Guild's showing of representation among the eligible employees within the respective units is as follows : Home office-457 in unit, 133 ' cards ; Music Companies-15 in unit, 10 cards ; Exchange-41 in unit, 10 cards ; News-18 in unit, 2 cards. No question is raised with respect to the Guild 's showing of representation in the home office and Music Companies units. 9 The allegation was not without basis. Cf. Matter of Warner Brothers Pictures, Inc. and Warner Brothers Associated Office Employees of Greater New York, 35 N. L. R. B. 739, 742. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties, disagree with respect to a number of employees whom the Guild and the I. A. T. S. E. would include in, but whom Paramount Pictures, Inc., would exclude ' from the home office and Exchange units. 1. The home office; a. At its home office, Paramount employs six porters, a matron, and five watchmen. The porters move materials from place to place within the office and also do some janitorial work, although regular janitorial work is done by the building staff. All of the six porters are members of the Guild, but at the hearing the Guild entered into a stipulation that Head Porter McRea, who is in charge of the porters, should be excluded from the unit. The matron operates a machine in the women's washroom, cleans instruments in the doctor's office, and re- lieves the nurse in the doctor's office at lunch hour. The watchmen act as floor guards, watching the elevators at night and patrolling the office. The Guild contends that these employees should be included in the home office unit or, in the alternative, that they should be desig- nated, a separate unit. Paramount contends that the porters, watch- men, and matron have no common interest with the office employees and should be excluded from the home office unit, but has raised no objec- tion to their being designated a separate unit. We agree that these maintenance employees should not be joined in a single unit with the office employees, but we see no reason for denying them the right to bargain through a representative if they so desire. We shall therefore designate the porters, watchmen,* and matron, excluding the head porter, as a separate unit appropriate for the purposes of collective bargaining. b. At the home office, Paramount employs three salaried readers who were found by the Board to constitute a separate unit in a prior proceeding.10 They read novels, plays, and other material, and write synopses of them. At the time of the prior proceeding, they had designated as their representative the Screen Readers Guild, an unaffili- ated labor organization which subsequently transferred its property to the C. I. 0. It appears that Paramount has refused to recognize the Guild as the representative of the readers as a separate group. While we believe that the readers may be represented appropriately in a separate unit, we are of the opinion that .under the circumstances they may also appropriately constitute a part of the unit of office em- ployees at the home office. We shall include them in the home office unit. c. The Guild requests the inclusion of 11 employees in the home office unit whom Paramount wants excluded on,the ground that they are supervisory : ' 10 Matter of Paramount Pictures , Inc. and Screen Readers Guild of New York (Inde- pendent ), 33 N. L. R. B. 447 , 35 N. L. R. B. 464, 42 N L. R. B. 221. - PARAMOUNT PICTURES, INC. 121' Charles Hickey is the supervisor of the mailing department and directs eight messengers and six clerks in their duties. Hickey spends approximately 75 percent of his working time receiving request and orders on the telephone, and approximately 25 percent of his working time giving appropriate orders and instructions to his subordinates for the distribution and routing of mail, and for the transmission of inter-office communications. We find that Hickey is a supervisory employee and, as such, not within the appropriate unit. Lawson, Hodge, and Urch are the heads of divisions operating under G. B. J. Frawley, the liaison officer between Paramount's selling and accounting departments. Each of these employees spends at least half of his time assigning work to the employees under him, correct- ing errors, administering reprimands, and determining the time to be spent on various tasks. Each prepares, reports for his division, coor- dinating the results of compilations made by subordinate employees ; each also recommends the hire and discharge of employees in his di- vision and recommends vacations and other time off for employees under him. Lawson is in charge of the Rental Analysis Division and has 11 employees under him. Hodge is in charge of the Exchange Accounting Division and has 9 employees under him. Urch is in charge of the Contracts Division and has 29 employees under him. We find that Lawson, Hodge,, and Urch are supervisory employees and should be excluded from the unit. Phillip Schenker is an accountant working under- Henry Anderson, who manages the insurance business of the Companies. Schenker has only two employees assisting him, and these two employees, like Schen- ker, do accounting work as part of their duties. Although Schenker has participated in the hiring of his assistants, his choice is limited to employees recommended by Anderson. He is paid a higher salary than his assistants, and has some power to recommend increases for them, but his alleged supervisory status is not, in our opinion, suffi- ciently clearly established to warrant his exclusion. We find that he should be included in the unit. Milton `Kirshenberg compiles statistics on foreign accounts. He is assisted by four employees to whom he assigns work. The work which Kirshenberg distributes is assigned to him by Weltner, who is sub- ordinate to Hicks, the head of the Foreign Department. Kirshenberg reroutes part of the work to others and does part of it himself. Only 15 to 20 percent of his time is spent in reviewing the work of other people, and this, review is in the nature of a continuation of their work. Employees' requests for increases in salary are passed along . by Kirshenberg to his superiors with recommendations which have been disregarded as often as, they have been followed. We are of the opinion that Kirshenberg is not a supervisory employee, and we shall direct that he be included in the unit. 122 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cyril D. Valentine works in the Auditing Department under the Comptroller. He audits contracts with the assistance of two other employees, one of whom audits the cost of the-contracts, and the other of whom audits the income; Valentine coordinates and completes the results. These assistants work independently of Valentine, who spends no more than an hour a day consulting with them. One of the two assistants was assigned to him despite the fact that Valentine objected to the assignment. Valentine corrects errors that he finds in the work of the employees who assist him, but we are of the opinion that his work is not essentially supervisory. We shall include him in the unit. Leonard, Wood, Clark, and Cassidy work under the direction of _ John E. McDermott, who has charge of production, distribution, and theater accounts and is himself responsible to Comptroller Mohrhardt, whom he consults with respect to the hire and discharge of employees in the accounting division. Each of the four employees in question spends from 15 to 20 percent of his time in work which Paramount contends is supervisory, but the record shows that their work is routine in nature and that their supervision is limited to making recommen- dations through McDermott to Mohrhardt. Although each of these employees hiss from four to seven employees working under him, we are of the opinion that their duties are not sufficiently supervisory to exclude them from the unit. They will be included. d. Richard L. Worcester does some work.as an architect, but also does general desk work. He works under Paramount's "practical con- struction man." Paramount contends that he is a professional em- ployee and should therefore be excluded. In view, however, of the nature of his work, and the amount of his salary,' we find that Wor- cester should be included in the unit. e. At its home office, Paramount employs two pay-roll auditors, an assistant investigator, and six secretaries, all of whom it contends should be excluded from the unit because they are confidential em- ployees: The pay-roll auditors are Paul W. Grainer and Raymond V. Kee- nan. These employees have access to files relating to "Changes, dis- missals, promotions, demotions, salary increases, in fact with about everything that deals with the personnel records of any employee of Paramount Pictures, Inc." Paramount contends, and we agree, that these employees occupy confidential positions relating to labor rela- tions and that they should therefore not be included. They will be excluded from the unit. Eugene Newman is assistant to Clifton L. Oswald, who investigates employees for the Companies. Although Oswald has not 'made in- "Worcester's salary does not appear in the record , but was revealed to the Trial Examiner in confidence , because of Paramount's general policy against public disclosure of its employees ' salaries. PARAMOUNT PICTURES, INC. 123 vestigations with respect to labor relation matters, he testified that he might be called upon to perform such work., Newman performs Oswald's duties when the latter is away from New York City. We find that Newman should be excluded from the ' unit because of the confidential nature of his duties. Katherine Cunningham r is secretary to Investigator Oswald and has access to the information in Oswald's possession. We shall exclude her as a confidential secretary. Helen Finnegan, Ida Wolf, Esther Jablow, and Eleanor West are the secretaries, respectively of Assistant General Sales Manager Reagen, News Sales Manager Morgan; Eastern Division Manager Owen, and Western Division Manager Smith. These secretaries have access to all the files of their superiors, who spend 25 percent of their time in personnel work and have the power to determine matters of salary and transfer of employees under them. It appears that these executives are consulted in labor relations matters and that some of them have participated in negotiations with union representatives. We find that Finnegan, Wolf, Jablo_w, and West are confidential em- ployees and should be excluded from the unit. Sophie Weinberg is secretary to Insurance Manager Anderson, whose duties include the bonding of employees. Weinberg has a desk in Anderson's office and has access to his files, which contain informa- tion pertaining to investigations of employees. We find that she is a confidential employee and that she should be excluded' from the unit. 2. The Exchange: a. Secretaries Muriel J. Lanahan and E. M. Hogan have access to the files of their respective superiors, District Manager Kusell and Branch Manager Randel. These files contain personnel information. Kusell and Randel have at times been consulted with respect to labor relations matters, once with Hogan present. We find that secretaries Hogan and Lanahan are confidential employees and that they should be excluded from the Exchange unit. b. Jack C. Perley is the head booker at the Exchange. He spends a substantial portion of his time assigning work and giving instructions to seven bookers who are under his supervision. He has control of working conditions in his office, and his recommendations 'with respect to vacations are followed. Of the employees in his office, he is the only one who attends the conventions which Paramount holds yearly in various sections of the country. His work does not include the set- ting of play dates, as does the work of the bookers; he spends a major part of his time in correspondence with exhibitors, in answering ques- tions asked by the bookers, and in conferring with the Branch Man- ager and the Sales Manager. He has the power to settle questions which,arise with respect to playing time required on contracts. We 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that Perley is a supervisory employee and should be excluded from the Exchange unit. c. Joseph Davis is-chief accountant and office manager at the Ex- change and has 13 employees under his supervision. He assigns work, directs employees to work overtime, determines vacation dates, grants time off, has the power to discharge, and makes recommendations with respect to-the hire and promotion of employees. We find that Davis is a supervisory employee and should be excluded from the Exchange unit. We find that each of the following groups of employees constitutes a separate unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act: (1) All office, clerical, secretarial, and accounting employees, and salaried readers at the home office of Paramount Pictures, Inc., in New York City, excluding executives, officers, district managers, trav- eling auditors, lawyers, engineers, film examiners, film shippers, film handlers, and supervisory and confidential employees. (2) All office, clerical, secretarial, and accounting employees at the Exchange office of Paramount Pictures, Inc., in New York City, ex- cluding executives, officers, district managers, traveling auditors, law- yers, engineers, film examiners, film shippers, film handlers, and supervisory and confidential employees. - (3) All office, clerical, secretarial, and accounting employees at the News office of Paramount Pictures, Inc., in New York City, ex- cluding executives, officers, district managers, traveling auditors, lawyers, engineers, film examiners, film shippers, and film handlers. (4) All office, clerical, secretarial, and accounting employees at the office of Famous Music Corporation and Paramount Music Corpora- tion in New York City, excluding executives, officers, district man- agers, traveling auditors, lawyers, engineers, film examiners, film shippers, and film handlers. (5) The porters, watchmen, and matron employed at the home office of Paramount Pictures, Inc., in New York City, excluding the head porter. N V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot. The I. A. T. S. E. has requested, and we shall direct, that its name appear only on the ballot in the election among employees in the Exchange unit. The Guild contends that eligibility to vote at the elections should be de- termined by the Companies' pay rolls of May 27, 1942, but no reason appears for not following our practice of using a current pay roll. PARAMOUNT PICTURES, 'INC. 125 We shall direct that the employees eligible to vote in the elections shall be those in the appropriate units who were employed,during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. 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 DIRECTED that, as part of the investigation to ascertain represen- tatives for the purposes of collective bargaining with Paramount Pictures, Inc., Famous- Music Corporation, and Paramount Music Corporation, New York City, an election by secret ballot shall be con- ducted 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 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 the employees in each of the units found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period 'because they were ill or` on vacation, or in the active military service or training of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether the employees in the Exchange unit (unit "(2) ") desire to be represented by Screen Office & Professional Employees Guild, Local 109, UOPWA (C._ I. 0.), or by International Alliance of Theatrical & Stage Em- ployees, Local B-51 (A. F. of L.) for the purposes of collective bar- gaining, or by neither; and to determine whether or not the employees in each of the other units desire to be represented by Screen Office & Professional Employees Guild, Local 109, UOPWA (C. I. 0.), for the purposes of collective bargaining. I