R. K. O. Radio Pictures, Inc.

In the Matter of R. K . O. RADIO PICTURES , INC., COLUMBIA PICTURES CORP., SAMUEL GOLDWYN STUDIOS, LOEW 'S INCORPORATED, PARAMOUNT PICTURES, INC., REPUBLIC PRODUCTIONS , INC., 20TH CENTURY-FOX FILM CORP., PRINCIPAL ARTISTS PRODUCTIONS, UNIVERSAL PICTURES CO., INC., WARNER BROS. PICTURES, INC., VANGUARD FILMS, INC. and SCREEN PLAYERS UNION Cases Nos. 21-R-2263 to 21-R-2273 inclicsive, respectively. Decided November 8, 1944 Freston d Files, by Mr. Arthur Freston, of Los Angeles, Calif., for Warner Bros. Mitchell, Silberberg d Krupp, by Mr. Jaques Leslie, of Los An- geles, Calif., for R. K. 0., Columbia, and Principal Artists. O'Melveny d Myers, by Mr. John Whyte, of Los Angeles, Calif., for Paramount. Wright d Millikan, by Mr. Charles E. Millilcan, of Los Angeles, Calif., for Vanguard. Loeb d Loeb, by Mr. Milton H. Schwartz, of Los Angeles, Calif., for Loew's, Universal, Republic, and Goldwyn. Mr. Alfred Wright, of Los Angeles, Calif., for 20th Century-Fox. Mr. Alexander H. Schullman, of Los Angeles, Calif., for the Inde- pendent. Beilenson d Berger, by Mr. William Berger, of Los Angeles, Calif., for the Guild. Mr. William R. Cameron, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE Upon petitions duly filed by Screen Players Union, herein called the Independent, alleging that questions affecting commerce had arisen concerning the representation of employees of R. K. O. Radio Pictures, Inc., Los Angeles, California, Columbia Pictures Corp., Hollywood, California, Samuel Goldwyn Studios, Los Angeles, Cali- 59 N. L. R. B., No. 32. - 132 R. K. O. RADIO PICTURES, INC. 133 fornia, Loew's Incorporated, Culver City, California, Paramount Pictures, Inc., Los Angeles, California, Republic Productions, Inc., Hollywood, California, 20th Century-Fox Film Corp., Los Angeles, California, Principal Artists Productions, Culver City, California, Universal Pictures Co., Inc., Universal City, California, Warner Bros. Pictures, Inc., Burbank, California, and Vanguard Films, Inc., Cul- ver City, California, herein respectively called R. K. 0., Columbia, Goldwyn, Loew's, Paramount, Republic, 20th Century-Fox, Principal Artists, Universal, Warner Bros., and Vanguard, and collectively called the Companies, the National Labor Relations Board provided for an appropriate consolidated hearing upon due notice before Charles M. Ryan, Trial Examiner. Said hearing was held at Los Angeles, California, commencing on March 6 and continuing on vari- ous intermediate dates to July 5, 1944. The Companies, the Inde- pendent, and Screen Actors Guild, Inc., herein called the Guild, ap- peared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. Goldwyn moved the dismissal of the petition filed by the Independent in Case No. 21-R-2265 in which it is in- volved. For reasons hereinafter appearing, this motion is hereby granted. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY R. K. 0. Radio Pictures, Inc., a Delaware corporation having its principal office in New York City, operates a studio for the production of motion pictures in the city of Los Angeles, California. It manu- factures currently in excess of 30 feature length motion pictures per year. R. K. 0. concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. Columbia Pictures Corp., a New York corporation having its prin- cipal office and place of business in New York City, is engaged in the manufacture of motion pictures. It also distributes motion pictures which it produces, though some of its pictures are distributed by foreign distributing companies and licenses. It holds the stock of various foreign distributing companies and of the following subsid- iary corporations: Screen Gems, Inc., a California corporation; Columbia Pictures Corp. of Louisiana, Inc., a Louisiana corporation; and Darmour, Inc.,,a California corporation. During 1943 Columbia purchased approximately 16,000,000 feet of film from vendors located 134 DECISIONS OF NATIONAL LABQR RELATIONS BOARD in the city of Los Angeles, and expended approximately $13,600,000 in the production of motion pictures. For the 1942-1943 season Columbia produced 35 feature length motion pictures and made approximately 7,000 prints of these pictures, of which approximately 6,545 were shipped to points outside the State of California. Columbia also pro- duced, for use during the same season, 28 short subjects, and made approximately 2,800 prints of these pictures, of which approximately 2,492 were shipped to points outside the State of California. The prints and pictures hereinabove described were distributed by Colum- bia through its office in New York City. We find that Columbia is engaged in commerce within the meaning of the National Labor Relations Act. Loew's Incorporated, a Delaware corporation engaged in the busi- ness of producing and distributing motion pictures, and whose prin- cipal office is located in New York City, operates studios located at Culver City, California. During the course of each calendar year, Loew's produces more than 30 feature length motion pictures, and a number of cartoons and short subjects. It causes the prints of these pictures to be distributed throughout the United States and various foreign countries. Loew's employs many thousands of employees, both in the State of California and in the State of New York. Loew's concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. Paramount Pictures, Inc., is a California corporation engaged in the production, distribution, and exhibition of motion pictures, hav- ing a principal office and place of business in New York City, and production facilities located in Los Angeles, California. Paramount is also a parent company with which are associated more than 100 subsidiary and affiliated corporations, located both within and with- out the United States, which are primarily engaged in the exhibition of motion pictures. Paramount purchased more than 40,000,000 feet of film for use in the production of motion pictures during the calen- dar year of 1943, from vendors located in the city of Los Angeles. During the same period it expended approximately $16,500,000 in the production of motion pictures; produced 29 feature length pictures, of which approximately 4,500 prints were made; produced 13 short subjects, of which approximately 1,000 prints were made, and pro- duced 104 issues of news reel, of which approximately 450 prints were made of each issue. These prints were distributed by Paramount through a series of exchanges maintained by it in this country and abroad. Paramount concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. Republic Productions, Inc., a New York corporation whose prin- cipal office is located in New York City, operates studios for the pro- duction of motion pictures in Hollywood, California. It produces R. K. O. RADIO PICTURES, INC. 135 more than 30 feature length motion pictures each year, which it dis- tributes for exhibition throughout the United States and in several foreign countries. Republic concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. 20th Century-Fox Film Corp. is a New York corporation engaged in the, production and distribution of motion pictures, having its prin- cipal place of business in New York City but also maintaining a place of business in the city of Los Angeles, California. Various subsidi- ary corporations distribute its motion pictures in foreign countries and in the greater part of the United States; no subsidiary, however, is engaged in the production of motion pictures. During the fiscal year of 1943, 20th Century-Fox purchased several million feet of posi- tive and negative, film, the greater portion of which was purchased within the State of California from suppliers who obtained the film from sources outside the State of California. During the same pe- riod, it expended more than $20,000,000 in the production of motion pictures, produced approximately 40 feature length pictures, and caused more than 10,000 prints to be made of all its pictures. Only a small proportion of these prints, however, were shipped from its place of business in the State of California to points outside the State of California, inasmuch as most of such prints were made in the State of New York and distributed from that point. It produced no short subjects or news reels during said period. It employs approximately 3,500 production employees in its studio at Los Angeles. 20th Cen- tury-Fox concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. Principal Artists Productions is a limited partnership, organized under the laws of the State of California, whose principal office is lo- cated in Culver City, California. During the calendar year 1943 it produced more than three feature length motion pictures which were distributed through the United States for exhibition. It does not, however, distribute its own pictures. Principal Artists concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. Universal Pictures Company, Inc., a Delaware corporation whose principal office is located in New York City and whose studio is located at Universal City, Los Angeles County, California, is engaged in the production of motion pictures, which are distributed princi- pally by Universal Film Exchanges, Inc. The raw film used by Uni- versal in the production of motion pictures is shipped from New York to Universal City, where motion picture negatives are made; the majority of such negatives are then shipped to Fort Lee, New Jersey, where positive prints are made; and the prints are distributed from the laboratory in New York to various points throughout the United States for the purposes of exhibition in motion picture theaters. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal produces more than 30 feature length motion pictures and a number of short subjects during each calendar year. There is a con- stant flow in interstate commerce of the prints made of such pictures. Universal concedes that it is engaged in commerce within the mean- ing of the National Labor Relations Act. Warner Bros. Pictures, Inc., is a Delaware corporation whose prin- cipal office and place of business is located in New York City. Its principal studio is located at Burbank, California, where it employs more than 3,000 employees, not including those employed on a daily basis. It distributes its motion pictures through Vitagraph, Inc., a subsidiary corporation, which maintains exchanges in 31 cities throughout the United States. Warner Bros. usually produces more than 30 feature length pictures each year at its Burbank Studio. During its fiscal year ending August 27, 1943, it expended more than $19,000,000 on the production of motion pictures. Some of the prints of its- pictures are printed in California, but others are printed in New York from master negatives shipped from California for the. purpose of printing and distribution. For the purposes of this pro- ceeding, Warner Bros. concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. Vanguard Films, Inc., is a corporation incorporated under the laws of the State of California on or about August 2, 1942, whose prin- cipal place of business is located in Culver City, California. It is not affiliated with either a parent or subsidiary company. During its fiscal year ending in February 1944, Vanguard purchased approxi- mately 600,000 feet of motion picture film, though it had not com- pleted the production of any feature length pictures or made any short subjects, during such year. As of the date of commencement of the hearing herein, Vanguard was engaged in the production of a motion picture, of which it was contemplated that prints would be made and exhibited in various theaters throughout the United States, and, on such date, it employed approximately 200 employees. We find that Vanguard is engaged in commerce within the meaning of the National Labor Relations Act. It was stipulated by the parties at the hearing that Samuel Gold- wyn Studios is not a producing organization, but a rental organiza- tion, and therefore does not hire extras. Inasmuch as it thus appears that Goldwyn is not an employer of employees within the unit in-, volved in this proceeding, we shall direct that the petition herein filed by the Independent with respect to Samuel Goldwyn Studios be dismissed. II., THE ORGANIZATIONS INVOLVED Screen Players Union is an unaffiliated labor organization admit- ting to membership employees of the Companies. - R. S4 O . RADIO PICTURES, INC. 137 Screen Actors Guild, Inc., is a labor organization affiliated with the Associated Actors and Artistes of America, which in turn is affiliated with the American Federation of Labor, admitting to membership employees of the Companies. III. THE QUESTIONS CONCERNING REPRESENTATION The Independent, by letters dated October 27, 1943, informed each of the Companies of its claim that the Independent, through its Com- mittee, had been designated as collective bargaining representative by the majority of the actively working extras and/or actors who are Class B members of the Guild, and requested recognition and a col- lective bargaining conference. The Companies respectively replied by letter, stating that they were parties to a collective bargaining agreement with the Guild, and refusing to grant the Independent's requests so long as such agreement was in effect, or until it shall have been determined that the Guild no longer represents the extra players." A statement of the Regional Director, introduced in evidence at the hearing, indicates that the Independent represents a substantial number of employees in the unit hereinafter found appropriate.2 We find that questions affecting commerce have 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 UNIT The Independent seeks a unit composed, in general, of extras em- ployed by the Companies to perform before the motion picture cam- era. It designates those whom it seeks as the extra players, and would include within the unit not only those performing strictly extra work,3 but also those performing other types of work which it 1 The basic contract between the Companies and the Guild was executed , as hereinafter above set forth, on May 15, 1937, for a term of 10 years, but with a provision for negotia- tion of modifications proposed by committees appointed by each of the parties at joint meetings of such committees to be held on April 1 of each year. In its recognition clause, this contract specifically provides for termination by the Companies at any time that the Guild is determined by this Board not to be the exclusive collective bargaining agent. The parties , at the hearing, did not urge the contract as a bar to this proceeding. 2 The Regional Director reported that the Independent submitted 1,615 authorization cards, all bearing apparently genuine original signatures , and bearing dates from March 1943 through January 1944 , designating the Independent , through its Committee, as collective bargaining representative. Of the signatures affixed to said cards , 1,542 were the names of persons whose names were on the Class B membership list of the Guild, con- sisting of the names of 4,767 employees within the unit claimed by the Independent to be appropriate. The Guild relies on its closed-shop contract, covering all actors and extras, as sufficiently establishing its interest herein. 3 The greater portion of extra work is performed under employment obtained through assignment by Central Casting Corporation , which is a corporation organized by a number of-motion picture producing companies , substantially the same as those involved in this proceeding, for the purpose of engaging extra talent. 40 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contends that many extra players throughout the history of the indus- try have customarily been employed to perform. The Independent further defines the unit which it seeks as comprising all persons who perform within the various classifications of extra work set forth in, the proposed "Code for Extra Players" formulated by the Guild in October 1939, hereinafter discussed, together with all extra 'players who, pursuant to day player, stock, or free-lance contracts, within cer- tain specified salary ranges, perform in bits or small parts. The Inde- pendent, however, would limit the unit to those performing the fore- going types of work who are now members in Class B of the Guild's present division of membership, as distinguished from the Guild's Class A and Class A Junior members. - The record reveals that there is some difference of opinion as to the meaning of the term "extras." However, the meaning of the term herein adopted is that which designates generally the extras or extra -players, who perform extra work as distinguished from bits and parts which involve the speaking of at least a line or lines of essential story dialogue.¢ Extra work is further delineated in the proposed "Code for Extra. Players," to which reference is made by the Independent in describing the unit which it seeks, which was formulated by the Guild and presented to the Standing Committee of the producers and the Guild on October 26, 1939, as the basis of the Guild's demands in arbitration which it was then seeking to secure. This document set forth the proposed wage rates and other provisions as to working conditions of those performing within various categories of extra work. The categories listed therein may be summarily described as including performances of atmospheric or background work in crowds, as well as in smaller groups, and numerous types of individual work, 4 Section 3 (b) of the 1937 basic contract between the motion picture producers and the Guild adopts, as its definition of "extras ," the provisions of the former N. R. A. motion picture code relating to extras, as follows : The term "extra player" or "extras" includes stand -ins, dancers , cowboys and all other classifications included under the term as used in the 'lotion Picture Code under the National Industrial Recovery Act and the rules enacted pursuant thereto or under Industrial Order No 16-A hereinbefore referred to, except stunt men who are specifi- cally treated in this agreement . . . The N. R. A code above referred to, Section 3, entitled "Provisions Regarding 'Extras' ", paragraphs 2, 2 (a) and 3 (a), respectively , contained the following : Such standing committee under the supervision of the Code Authority shall cause a reclassification of "extras" and "extra talent" to be undertaken, based upon the fol- lowing qualifications for such labor : "Extra players " shall be those who by experience and/or ability are known to be competent to play group and individual business parts and to otherwise appear in a motion picture in other than atmospheric background or crowd .. . provided that, if any "extra player" employed as such is required to play a part or bit with essential story dialogue , such "extra player" shall not be deemed to be an "extra player" and shall become a "bit player" . . . [Italics supplied ] No specific provisions relating to stunt men , above mentioned , were contained in the basic contract, other than that their minimum daily pay was agreed upon, and-it was provided that rules covering their working conditions should be worked out by committees appointed by the parties . The modification agreement of 1938 and the supplemental agreement of 1941, however, each contained additional specific provisions relating to the pay and work- ing conditions of the stunt men. R. K. O. RADIO PICTURES, INC. 139 including both crowd and individual performances in costume, make- up, or street clothes, impersonations of various types of characters, photographic doubling, and the performance of bits, or stunts, or the speaking of a line or lines, in instances wherein the person employed was originally engaged solely as an extra. Under the heading of "Special Classifications" this proposed Code also contained provisions for dancers, performing either in groups or in solo work of various types, for stand-ins, and for singers, either in groups or as soloists, with reference to recording, rehearsing, or mouthing to a play-back. While the Guild objects to the use of its proposed code as a guide to the delineation of extra work, on the ground that it was merely tenta- tive and never actually embodied in an agreement, it nevertheless appears that its objections to such categories are largely directed to the inclusion therein of work in the fields of stunts and singing. We shall, therefore, adopt the listing of types contained in the proposed "Code" as indicating generally the classifications intended to be in- cluded under "extra work" as we shall use that term herein, except as to stunts and singing, which we shall hereinafter discuss. The Companies and the Guild contend that the unit sought by the Independent is inappropriate for the purposes of collective bargain- ing, and that only a unit which comprises all who work before the camera is appropriate. In support of this contention the Guild points to its history of bargaining for all classes of performers in motion pictures, including both actors and extras, since the time of its organi- zation. The record discloses that the Guild was formed by a small group of actors in June of 1933, as a result of circumstances arising out of the "bank holiday" in that year, and was thereafter incorpo- rated as a non-profit corporation under the laws of the State of Cali- fornia. Although it was originally composed solely of actors, the Guild's membership was opened to extras in October 1933. On No- vember 15, 1934, through the intervention of Actors Equity Associa- tion, the Guild became affiliated with the American Federation of Labor under a charter issued by the Associated Actors and Artistes of America. On May 15, 1937, the Guild secured the execution by a representative group of motion picture producers of a written collec- tive bargaining contract providing for a Guild shop as to all classes of actors and extras.5 This contract is known in the industry as the "Basic Minimum Contract of 1937" and has since been signed by sub- stantially all producers of motion pictures in the United States. The contract, as hereinbefore noted,6 is for a term of 10 years, with pro- vision for the negotiation of modifications thereof, through the action of committees representing the respective parties, meeting jointly on "In respect to extras , the Guild shop provision consisted of the limitation of employ- ment to Guild members only , on locations within 300 miles of Los Angeles, or "of the studio base of operation of the picture." 6 See footnote 1, supra. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 1 of each year. This contract was subsequently amended by a' modification agreement executed on September 26, 1938, and by a sup- plemental agreement executed on August 4, 1941, and, as so amended, remains in effect at the present time. The Guild further indicates its viewpoint to be that in the event any separation should be made of any part of the broader unit, the line of demarcation could only be drawn at the point at which it as- serts that acting is distinguished from extra work, i. e., at the speaking of a line or lines' of dialogue. However, it is clear that throughout the history -of the industry, as well as since the organization of the Guild, the extras have never been limited solely to the performance of atmospheric background, or other strictly extra work. The record discloses that the types of work which might be performed by extras have always been limited only by the ability of the respective individ- uals to obtain such work. The amount of earnings which might be made from strictly extra work has always been, on the whole, quite small,' and it has generally been necessary for extras attempting to make a livelihood in motion picture work to supplement such extra work by the performance of work in higher wage or salary brackets. A substantial number of extra players customarily have done, and now do, not only extra work, but also bits, small parts," and stunts. The Independent, in support of its contention that the unit of extras and bit and small part players which it seeks is appropriate, introduced evidence to show that throughout the history of bargaining these em- ployees have evinced dissatisfaction with bargaining as conducted by the Guild; that the Guild itself has recognized a fundamental disparity of interests between the extras in the B classification and its other mem- bers; and that the Guild has discriminated against the extras and has effectively restricted their participation in collective bargaining. In support of the latter contention the Independent sought to establish that the Guild has largely failed to secure adequate wage increases for the extras; that the Guild has failed to consult the extras or submit for 7 Substantially all extra work is performed under employment on a day-to-day basis for very short periods of time. The report and recommendations of the Standing Committee appointed by the producers and the Guild to study the "extra problem ," which report was issued in October 1940 , discloses that during the year 1936 the extra players worked an average of 11 72 days per individual and earned an average of $105 63,'this computation being based on placements of extras by Central Casting Corporation In succeeding years the amounts were slightly higher, though in 1939 the average was still no greater than 28 89 days per individual with yearly earnings of $317 26 The statistics compiled by the general manager of Central Casting Corporation , hereinafter above referred to, based both on records of placements through that organization and on records of the employers who are parties to this proceeding, disclose that during the year 1943 , 5,243 members of the Guild earned a total of $5,712 ,324 78 in employment at extra work , which is an average of $1,089 51 per person 8 As previously indicated , and hereinafter discussed , the Independent seeks to represent those performing in bits and small parts only within certain salary ranges Extra players may originally be employed to perform extra work and then subsequently be assigned to the performance of a bit or part with a corresponding adjustment in their pay; they may also be hired directly to perform bits or parts pursuant to day player, stock, or free -lance contracts. R. K. 0. RADIO PICTURES, INC. 141 their approval collective bargaining agreements which affect their interests; and that the officers and directors of the Guild, being solely responsible to the actors and actresses in the higher membership classi- fications, have on a number of occasions acted arbitrarily and contrary to the best interests of the extras. Concerning many of these conten- tions there is controversy in the record, the Guild disputing either their truth or their materiality to the issues here involved. We find it unnecessary, however, to resolve the controversy in each instance, since we are of the opinion that the record, viewed as a whole, clearly estab- lishes that there is a separation of interests between the two principal classes of employees who are employed to perform before the motion picture camera. The record discloses that during the entire history of its organiza- tion the Guild has segregated extras into a separate class of member- ship, and has restricted their voting rights. The Guild's original bylaws divided its members into four classes, two of which, designated as Class A and Class B, were composed of those who had certain ex- perience on the stage, or "on the screen as a motion picture actor other than as an extra . . ." The third original class of membership was composed of those acting or intending to act on the motion picture screen but who could not meet the eligibility requirements of the two preceding classes. The testimony on behalf of the Guild, of its former executive secretary, establishes that this latter class, then designated as Class C, was that to which the beginners and the extras belonged. The fourth class was purely honorary, and was designated as such. The original bylaws further provided that only the Class A members were entitled to notice of meetings, and to vote. Although its bylaws have been several times revised, and the specific designations and eligibility requirements of its membership classifica- tions altered, the fundamental distinction between the extra players and other motion picture actors has continued to be reflected in the structure of the Guild. The present bylaws of the Guild divide its membership into three principal classes, designated as Class A, Class A Junior, and Class B. Class A is composed of those motion picture actors who, at the time of making application for membership, have acted on the screen during the preceding year in at least two parts for which screen credit was received, or who have acted. on the stage in a speaking part during a portion of each of at least 3 of the 5 preceding years.9 Class A Junior is composed of those who, at the time of making appli- cation, are pursuing the profession of a motion picture actor and have, obtained an engagement for a speaking part, or a part requiring the speaking of a line or lines, and who are not eligible for Class A mem- 9 Provision is also made for admission to Class A of any actor whom the board of direc- tors, in its discretion, may deem eligible by reason of present or past achievement , though he does not otherwise come within the qualifications. -142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership.10 Class B is composed of all those who have performed, or are performing, or are about to perform in motion pictures but are not eligible for membership in Class A or Class A Junior. Inasmuch as' none of the Class A Junior members, and no Class A members who joined the Guild after February 13, 1938, are permitted by the Guild to do extra work,11 substantially all of those who perform extra work are found in the Class B membership of the Guild. The present Guild bylaws, like the original bylaws, restrict the right to receive notices of Guild meetings, and to vote, solely to the Class A members. The board of directors, which is the governing and policy-making body of the Guild, is elected by the Class A membership and, with the exception of the executive secretary who need not be a member of the Guild, is com- posed of Class A members. Although Class B members are specifically granted the right to vote on the question of, a strike of the Class B membership, to vote at Class B membership meetings, to vote on ap- proval of collective bargaining agreements made by the board of direc- tors affecting their interests, and to initiate and vote for a specified manner of withdrawal of Class B members from the Guild, all such voting privileges are qualified by restrictive provisions, and it is ap- parent that essential control of the Guild is effectively retained by its Class A members. Further recognition by the Guild of the separateness of the interests of the extra players is reflected by the fact that, on at least two oc- casions, it has offered to the extras the privilege of separating into an autonomous organization, with release from the provisions of the Guild- shop contract. In May 1939, apparently as a response to unrest and agitation among the extra players, the Guild circulated to its Class B members a ballot on the question "Shall the Extras Remain in the Guild?" In October 1943, the board of directors mailed to its Class B members ballots on the question of whether the extras should be sepa- rated from the Guild and formed into a separate union, according to an autonomy plan which provided for a separate union under either a direct charter from the "Four A's" 12 or local charter from the Guild. The results of the balloting in each instance indicated rejection of the Guild's offers by the very great majority of the Class B members who voted. The record further discloses, however, that in each of the fore- going instances of proffered autonomy the Guild clearly indicated that "Class A Junior members, except singers, are permitted to wbrk at a minimum of not less than $25 a day. u Section 2 (a) of the bylaws provides that "Class A Junior members shall not do extra work in motion pictures within the radius of 300 miles of Fifth & Rossmore Streets, Los Angeles, . . . except with the express permission of the Board of Directors." Rule 27 of the Guild's Rules and Regulations provides that "Class A members who joined the Guild after February 13, 1938, other than Juvenile members under the ages of Sixteen ( 16) years, shall not be eligible to do extra work in motion pictures in California except with the express permission of the Board of Directors." 32 Associated Actors and Artistes of America , A. F. of L., with which, as hereinbefore mentioned, the Guild is affiliated. R. K. O. RADIO PICTURES, INC. 143 it would release its jurisdiction only as to atmospheric or background work, and would retain it as to all other types of performance before the camera. In literature accompanying the May 1939 ballots the Guild stated that it would reserve jurisdiction over "any player who speaks a line, plays a part, or does a stunt in motion pictures." Juris- diction of the proposed new union under the autonomy plan of Oc- tober 1943 was described by the Guild as confined to extras who appear in motion pictures for atmosphere and background purposes only; no jurisdiction would be granted over persons doing work involving4he speaking of lines of dialogue, or over stunt performers, and singers. The "Screen Actor," a publication of the Guild, issue of April 1943, emphasizes the difference in interests of the extra players and, dis- cusses the issue of autonomous organization by the Class B member- ship. The position of the Guild is therein stated as follows : The reasons for separation between the two groups date back to the beginning of the Guild, which was organized for the pro- tection of the professional actor. Because actors were trying to obtain their first contract from producers, it was thought ad- visable to have that contract negotiated by a single bargaining agency representing actors and extra players alike. This deci- sion was reached not, primarily, because the actor and the extra player had common problems, so much as because jointly they possessed a strength they did not have singly, and in obtaining that first contract, all strength that could be summoned was needed. Particularly was this true of the Class B players. Without the support of the Class A member, the extra player had little bargaining power; it is doubtful if he could have won' a contract for himself. This factor outweighed all the obvious disadvantages of having both groups in a single organization.. Admittance of extra players to the Guild was, from the beginning on a non-voting basis. This was recognized by everyone as un- democratic in structure, but no other course was feasible. The Class B members far outnumber the Class A group. If they were given a vote, they would determine the policy of the entire Guild-a condition which would be not only impractical, but un- fair to the actors for whom the Guild are organized.. . . Furthermore, it places on a single organization the task of solv- ing the problems of two groups which, in many instances, have different interests and different professional needs. As long as the Guild continues to try to serve both groups, it cannot be sure that it is doing the best possible job for either of them... . [Italics supplied] It thus appears that the organizational structure of the Guild, where- by ultimate control has been retained by the class above referred to as 618683-45-vol. 59-11 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "professional actors," comprising the stars, featured players, and others who have received screen credit for their performances, was the result of recognition by this group of the existence of a sharp con- flict between their interests and the interests of the extras. Although we customarily are reluctant to depart from a unit established by collective bargaining history, we nevertheless do not regard bargain- ing history to be necessarily conclusive. In view of all the circum- stances herein disclosed, we are of the opinion that, as a group, em- plgyees performing extra work and bits and parts such as have been generally performed by Class B members of the Guild, constitute a separate appropriate unit for the purposes of collective bargaining. As indicated above, the Independent also seeks to include within the unit only those extra players performing in bits and small parts whose compensation therefor falls within certain wage or salary 'limitations, i. e., those employed at rates from $25 to $50 per day 13 under day player contracts, $250 per week or less under stock contracts, from $100 to $250 per week under free-lance contracts, and from $25 to $50 per day or $100 to $250 per week at employment for "pantomime" work. At the hearing there was introduced in evidence 14 summaries of records of employment, both through Central Casting Corporation and directly by the studios involved in this proceeding, of employees in the several membership classifications of the Guild, within the employment classifications with which we are here concerned. These summaries disclose that 953 Class B members 15 were employed during the year 1943, under 2,171 day-player contracts within the $25 to $50 daily wage range, and that 113 of the Class B members were employed under 231 such contracts at a higher daily rate.16 As to work per- formed under free-lance contracts,17 these summaries disclose that 377 Class B members were employed, during the year 1943, under 499 such contracts within the range of $100 to $250 per week, and that 30 Class B members were employed under 39 such contracts at a. higher rate.18 Thus, 143 Class B members were employed during 1943 at rates in 13 The bottom figures , where given , correspond to present minimums established for per- formances under the respective types of contract. 14 Board's Exhibits Nos. 2-A to 2-E, prepared by the general manager of Central Casting Corporation at the request of all the parties hereto. 15 The above represents a total of the figures as to Class B , Class B Special, and Class B Minor members appearing in the exhibit The latter two divisions , however, constitute a relatively small portion both of the Class B membership and of the employment reflected in the report. 15 Although the record discloses that in the preparation of the summaries not all stunt work was separated from the employment represented by the above figures, these figures principally represent employment at bits and small parts . A separate compilation as to stunt work supports similar conclusions as to the wage ranges under which it is performed by Class B members 11 Free-lance contracts , as distinguished from day-player agreements, primarily involve employment on a weekly basis, with a guarantee of a minimum of,1 week's employment in a designated role at a minimum salary of not less than $100 per week. 18 The summaries, in general , however, indicate a greater number of performances by Class A and Class A Junior members of the Guild than by Class B members . This is true especially in the case of free-lance work. R. K. 0. RADIO PICTURES, INC. 145 excess of the wage limitations sought herein by the Independent. The record does not establish that all of such employees were not. required to rely also upon earnings received from the performance of extra work to maintain a livelihood. The Independent contends, in support of the proposed salary or wage rate limitation by which it seeks to delimit the unit, that such restriction would serve to exclude those whose work and interests are more nearly aligned with those of the Class A and Class A Junior members than with those of the other Class B members of the Guild. As we have heretofore indicated, we regard all those who engage in extra work, including both those who may be employed solely for extra work and those who, in addition to performing extra work, are also employed to perform bits and parts either directly pursuant to day player, stock, or free-lance contracts or by adjustment subsequent to being employed originally for extra work, as possessing substantial in- terests such that they may be joined in a single bargaining unit. How- ever, we do not believe that Class B members of the Guild who engage solely in the performance of bits and parts possess like interests, since it is apparent that they are not forced to rely on extra work for a portion of their livelihood and would thus have interests more nearly aligned to the Class A and Class A Junior members of the Guild who as a group likewise perform no extra work.19 Adoption of the Independ- ent's proposed wage limitation would be to ignore the foregoing divergence of interests between the two groups of Class B members who perform bits or parts; it would exclude those employees who, although they perform bits and parts at rates in excess of the proposed limitation, nevertheless have not received sufficient recognition in their profession to warrant relinquishing the performance of extra work as a means of livelihood and it would include others performing exclu- sively in bits and parts. We are of the opinion, therefore, that a more reasonable demarcation with respect to those Class B members of the Guild who perform bits and parts would be to include within the unit all employees who perform both extra work and bits or parts, and to exclude, all employees who perform bits and parts exclusively; and we shall so delineate the unit. ' The Guild contends that stunt work is not extra work. As noted hereinabove, the 1937 basic contract, which we have adopted as part of our delineation of extra work, excludes stunt work from that cate- gory. However, in the proposed "Code for Extra Players," which we have also utilized in such delineation, stunt work was included as extra work in instances wherein it was performed by persons orig- 19 As hereinabove noted, Class A members who became such members prior to February 13, 1938, are permitted also to engage in extra work. The number of such Class A mem- bers performing extra work- is quite small , not exceeding 40 during the year of 1943. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inally engaged as extras. At the hearing, stunt work was described by a professional stunt man as being performed principally by 25 or 26 leading stunt men, who earn their livelihood by performance of the more hazardous stunts, are competent to assume entire charge of preparation for and execution of the more difficult stunt peiformances, and are paid at rates commensurate with the type of stunts performed. All but two of these professional stunt men are Class A or Class A Junior members of the Guild and hence do not engage in extra work. The record shows, however, that many of the Class B members of the Guild are employed to perform work which is designated as stunt work. In view of the entire record, we are of the opinion that, as contended by the Guild, stunt work, as such, is not properly to be con- sidered extra work. However, inasmuch as it appears that many extras also have customarily performed this type of work, we are of the opinion that the reason for including those who perform both extra work and bits and parts, as above discussed, is equally applicable to those performing both extra work and stunts. Accordingly, we shall include in the unit those employees performing stunts who also rely upon extra work for a livelihood. ' None of the parties herein contends that singing has not customarily been classified as extra work, and, as indicated above, the "Code for E*tra Players" included, singing among the classifications listed there- in. The Guild contends, however, that in the motion picture industry singing is more nearly akin to acting, and that consequently the in- terests of the singers are more closely allied to those of the actors who are Class A and Class A Junior members of the Guild. The record dis- closes that there are approximately 250 recognized singers in the Guild, the great majority of whom do not do extra work, and who are engaged directly by the studios rather than through Central Casting Corpora- tion. The singers all originally were Class B members of the Guild, but due to anxiety concerning the possibility of a change in their status should the Guild accord autonomy to the Class B members; they as a group requested transfer to membership in Class A Junior or Class B. The Guild, in August 1943, granted this request, and approximately 183 singers thereupon transferred to Class A or Class A Junior membership and were thus precluded from the performance of extra work; the remainder, however, retained their Class B mem- bership. In view of the foregoing, we are of the opinion that the interests of the singers as a class are more closely allied with those of the actors included within-the Class A and Class A Junior member- ship'of the Guild than those of the extras; we shall accordingly not include the singers as a group within the unit. However, the retention of B membership by some of the singers makes it apparent that there may be some who, like the bit players and stunt men discussed above, find it necessary to rely in part upon employment at extra work for a R. H. 0. RADIO PICTURES,- INC. 147 livelihood and who would thus have interests in common with the ,extras. Accordingly, we shall exclude only those employees who engage solely in the performance of singing work. We find that all employees of the Companies who perform extra work '20 including those who, in addition to the performance of extra work, also perform stunts, singing, or bits or parts involving a line or lines of essential story dialogue '21 either directly pursuant to day player, stock, or free-lance contracts or by adjustment subsequent to being employed originally for extra work, but excluding all employees who perform exclusively stunts, singing, or bits or parts with essential story dialogue, and all Class A and Class A Junior members of the Guild,` constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.23 V. THE DETERMINATION OF REPRESENTATIVES The Independent seeks to exclude from participation in the elec- tion all "temporary war members" of the Guild. In order to fill the many vacancies in the extra ranks caused by the withdrawal of players to enter the armed services, the Board of Directors of the Guild, by a bylaws amendment adopted November 8, 1943, created a class of membership known as the "Temporary Class B Special War Member- ship." There are now more than 300 members of the Guild in this classification. However, in order to provide opportunity for reem- ployment of the members now on military withdrawal at such time as they may return from service, the amendment also provides that such membership shall be subject to termination and revocation at any -time. Inasmuch as they otherwise have been employed under the same conditions as regular Class B members of the Guild, we are of the opinion that they possess sufficient interests in common with the other employees in the unit to justify their participation the election. Accordingly, we find that they are eligible to vote.24 The record indicates that among the extras some receive very little employment and apparently do not depend upon extra work for any substantial portion of their livelihood. The Independent desires to exclude such employees, and therefore requests that eligibility to par- 20 As such term is adopted herein , i. e , as generally defined in the Basic Minimum Con- tract of 1937 and further delineated by the proposed "Code for Extra Players" formulated by the Guild 21 The record discloses that in exceptional cases acting is done entirely in pantomime, i. e , without spoken words . In adopting the definition of bits and parts as involving the speaking of essential story dialogue it is also intended to include those occasions wherein comparable performances are executed entirely in pantomime. 22 It is intended hereby also to exclude those Class A members who, solely by virtue of having held such membership prior to February 13, 1938, are permitted to do extra work. 23 Inasmuch as it is apparent that none of the employees within the unit thus described possesses supervisory authority, we have omitted excluding supervisory employees within our customary definition . However, we do not intend theieby to include in the unit any employees occupying a supervisory status. 24 See Matter of Northern Indiana Public Service Company , 51 N. L. R. B. 500, 504. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticipate in the election be limited to those in the appropriate categories who have worked not less than 30 days during the past year. The Independent, in requesting the foregoing eligibility limitation, makes no clear distinction as to the type of work at which employees must have been employed for the requisite 30 days. However, since, the unit herein found appropriate is primarily one composed of extras, we are of the opinion that the 30-day limitation should be one confined to employment at extra work. Accordingly, we find that employees who have been employed by the Companies in the performance of extra work less than 30 days during the year preceding the date of this Direction do not possess sufficient interests in the results of the election to justify their participation therein; they shall be ineligible to vote. The Independent also desires to exclude those who work on "waiv- ers," though they may be employed within the classifications constitut- ing the appropriate unit herein. The record discloses that, in view of the limited membership of the Guild and the varying employment requirements of the motion picture producers, it is not always possible for requests for employment to be filled from within the Guild mem- bership in accordance with the Guild-shop contract. In such event, it is customary for the producer to demand, and the Guild to issue, a waiver permitting employment of a non-member of the Guild. The Independent contends that those who are employed on waivers usually work for only one specific job and do not become regularly employed in the industry. It would appear, however, that those employed on waivers, who have nevertheless received sufficient employment to meet the requirements for eligibility herein set forth, possess sufficient pros- pect of frequent reemployment to justify their participation in the election. We find, therefore, that employees otherwise eligible to vote in the election, are not ineligible solely by reason of employment on waivers issuecrby the Guild. We shall direct that the question concerning representation which has arisen be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed 30 or more days in the performance of extra work by the Companies during the year immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direc- tion. The Regional Director is hereby authorized, in his discretion, to conduct the election in whole or in part by mail. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby • L R. K. 0. RADIO PICTURES, INC. 149 DImc D that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with R. K. O. Radio Pictures, Inc., Los Angeles, California, Columbia Pictures Corp., Hol- lywood, California, Loew's Incorporated, Culver City, California, Paramount Pictures, Inc., Los Angeles, California, Republic Produc- tidns, Inc., Hollywood, California, 20th Century-Fox Film Corp., Los Angeles, California, Principal Artists Productions, Culver City, Cali- fornia, Universal Pictures Co., Inc., Universal City, California, War- ner Bros. Pictures, Inc., Burbank, California, and Vanguard Films, Inc., Culver City, California, 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, under the direction and supervision of the Regional Director for the Twenty-first 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 in the performance of extra work not less than 30 days during the year immediately preceding the date of this Direction, including employees who did not work during said period because they were ill, or on vacation, or temporarily laid off, and including employees in the armed forces of the United States who were employed in the performance of extra work not less than 30 days during the year immediately preceding their induction and who present themselves in person at the polls, but excluding any who have since quit or been' discharged 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 Players Union, or by Screen Actors Guild, Inc., for the purposes of 'collective bargaining, or by neither. ORDER On the basis of the above findings of fact in respect to the business of Samuel Goldwyn Studios, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of Samuel Goldwyn Studios, Los An- geles, California, filed by Screen Players Union, be, and it hereby is, dismissed.