Association of Motion Picture Producers, Inc.

In the Matter of ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. ; PARAMOUNT PICTURES, INC.; `WARNER BROS. PICTURES, INC. ; LOEw's INCORPORAT )D; 'UNIVERSAL PICTURES COMPANY, INC. ; RKO RADIO PICTURES, INC.; COLUMBIA PICTURES !CORPORATION; SAMUEL GOLD- WYN, D.B.A. SAMUEL GOLDWYN_ STUDIOS; REPUBLIC PRODUCTIONS, INC.; HAL ROACH STUDIOS, INC.; AND TWENTIETH CENTURY-Fox FILM CORPORATION and INTERNATIONAL ASSOCIATION OF MACIIINISTS, LODGE 1185 Case No. 21-C-2735.-Decided September. 7, 1948 DECISION AND ORDER i On April 30, 1947, Trial Examiner Mortimer Riemer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices 1 and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that those allegations of the com- plaint be dismissed. The Respondents, the IAM, the Alliance, and Local 789 filed exceptions to the Intermediate Report and briefs in support of their exceptions; and the Respondents filed a brief in reply to the brief of the IAM. On July 13, 1948, the Board at Washington, D. C., heard oral argu- ment, in which the Respondents, the IAM, the Alliance, and Local 789 participated. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, the contentions advanced at oral argument, and the entire record in the case, and hereby adopts 1 The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner found the Respondents had violated, are continued in Section 8 (a) (1) and 8 (a) (3) (of the Act as amended by the Labor Management Relations Act, 1947. 79 N. L. R. B., No. 68. 466 ASSOCIATION OF MOTION PICTURE PRODUCERS, INC.' 467 the findings, conclusions, and recommendations of the Trial Examiner, with the additions and modifications set forth below. 1. We agree with, and adopt, the finding of the Trial Examiner that the Association is an employer within the meaning of the Act. 2. We agree with the Trial Examiner's conclusion that under the particular circumstances of this case the alleged "bonus" payments were not unlawful; and we adopt his finding that,,the Respondents did not violate Section 8 (1) of the Act by making such payments. 3. We agree with the Trial Examiner's conclusion that certain of the Respondents discriminated against the employees listed- in Ap- pendix A of the Intermediate Report; and we adopt his finding that by such discrimination the Respondent producers Universal Pictures Company, Inc., Loew's Incorporated, RKO Radio Pictures, Inc., and Warner Bros. Pictures, Inc., and the Respondent Association violated Section 8 (3) of the Act. We also adopt the Trial Examiner's finding that the Respondents did not discriminate against Royal M. Caldwell, Otto Keller, and Glenn C. Waters. 4. We agree with the Trial Examiner's conclusion that the evidence does not support the allegation that the Respondents failed to bargain in good faith with the IAM; and we adopt his finding that the Respondents did not violate Section 8 (5) of the Act. 5. In view of our determination that the Respondents have not failed to bargain in good faith with the IAM, we find it unnecessary to make any determination concerning the appropriate bargaining unit for machinists in the motion picture industry or any determina- tion concerning the majority status of the IAM. Therefore, we neither adopt nor reject the Trial Examiner's findings on these two subjects, which are better left to representation proceedings. ORDER2 Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Universal Pictures Company, Inc., Universal City, Los Angeles County, California; Loew's Incorporated, Culver City, California; RKO Radio Pictures, Inc., Los Angeles, California; and Warner Bros. Pictures, Inc., Burbank, California ; and their officers, agents, succes- sors, and assigns shall each : 2 At oral argument before the Board , the Respondents stated that they had fully complied with the recommended order of the Trial Examiner by reinstating with back pay the em- ployees found to have been discriminated against and by posting the recommended notices. If the Respondents have complied with the recommended order of the Trial Examiner, they are not required by this Order to repeat their acts of compliance. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in the International Association of Machinists, Lodge 1185, or in any other labor organization of its employees by discharging, laying off, transferring, or demoting any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) In any oilier manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Association of Machinists, Lodge 1185, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole each of the employees against whom it was found to have discriminated, for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The remedy," less his net earnings during the period involved. Respondent Warner shall also transfer Robert E. Davis to his former place of work in its camera machine shop in the manner set forth in the section of the Intermediate Report entitled "The remedy," if the transfer can be accomplished with due regard to the physical facilities and employment practices of the Respondent Warner; (b) Post in conspicuous places throughout its studios copies of the notice attached hereto and marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, after being duly signed by the Respondent producer's repre- sentative, shall be posted immediately upon receipt thereof, and main- tained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. In the event that this Order is enforced by decree of a Circuit Court, of Appeals, there shall be inserted before the words "A DECISION AND ORDER" the words "DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 469 B. The Association of-Motion Picture Producers , Inc., Los Angeles, California, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Advising, urging, or otherwise influencing its member pro- ducers, directly or indirectly , to discourage membership in the Inter- national Association of Machinists , Lodge 1185, or in any other labor organization of their employees by discharging, laying off, trans- ferring, , or demoting any of their employees , or in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of employment; (b) Advising or influencing its member producers , directly or in- directly, in any other manner to deny their respective employees rights guaranteed under the Act; (c) In any other manner interfering with, restraining, or coercing the employees of its member producers in the exercise of the right to self-organization, to form, join , and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Immediately send copies of the notice attached hereto and marked "Appendix B," 4 after they have been duly signed by a repre- sentative of the Association, to all of its members, including all the Respondent producers.' Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall also, after being duly signed by the Association's representative, be posted immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Association to insure that said notices are not altered, defaced, or covered by any other material ; (b) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondents violated Section 8 (1) of the Act by making "bonus" payments; that the Respondents violated Section 8 (5) of the, Act by refusing to bargain with the IAM; that the Respondent Warner discriminated against Royal M. Caldwell * See footnote 3, supra. 809095-49-vol. 79-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and) Otto Keller; and that the Respondent Paramount discriminated against Glenn C. Waters. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1185, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. WE WILL make the employees named below whole for any loss of pay suffered as a result of discrimination. Reginald C. Hill. John M. Mobley Carl H. Homuth William J. Pickering Elmer Johnson Glenwood C. Warren Edward J. Lorenz W. C. Zimmerman All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. UNIVERSAL PICTURES COMPANY, INC., Employer. Dated------------- By --------------------------------------- (Representative ) ( Title) Dated_____________ Dated_____________ Dated_____________ LOEw'S INCORPORATED, Employer. By ------------------==------------------- (Representative ) ( Title) RKO RADIO PICTURES, INC., Employer. By --------------------------------------- (Representative ) (Title) WARNER BROS. PICTURES, INC., Employer. By -------------------------- - ---------- (Representative ) (Title) ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. -471 This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO OUR MEMBERS AND THEIR EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT advise or influence our members directly or in- directly, to deny to their respective employees the rights guaran- teed in the National Labor Relations Act; WE, WILL NOT in any other manner interfere with, restrain, or coerce the employees of any of our members, in the right to self- organization, to form, join, and assist labor organizations, in- cluding INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1185, to bargain collectively through representatives of their own choos- ing, and to engage-in concerted activities, for the purpose of col- lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. By ---------------------------------------------- (Representative ) (Title) Dated-------=--------------- This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Robert Rissman, for the Board. O'Melveny & Myers, by Mr. Homer L Mitchell and Mr. W. W. Alsup, of Los Angeles, Calif., for the respondents. Mr. Wzlliann B. Esterman and Mr. T. R White, of Los Angeles, Calif., for International Association of Machinists, Lodge 1I85. Bodkin, Breslin & Luddy, by llr. Michael G. Luddy, of Los Angeles, Calif., for the Intervenor, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, A. F. of L. Mr. Robert W. Gilbert and Mr. Allan L. Sapiro, of Los Angeles, Calif., for intervenor, Motion Picture Studio Cinetechnicians, Federal Labor Union 23968, A. F. of L. Mr. John C. Stevenson, of Los Angeles, Calif., for intervenor, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Studio Transportation Drivers, Local Union 399. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a second amended charge duly filed on July 18, 1946, by International Association of Machinists, Cinema Lodge 11S5, herein called TAM, and other charges filed at about the same time by certain individuals not now pertinent, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California), issued a con- solidated complaint, dated July 19, 1946, Joining the Association of Motion Picture Producers, Inc., herein called the Association: Paramount Pictures Inc., herein called Paramount ; Warner Bros. Pictures, Inc., herein called Warner; Loew's Incorporated, herein called Loew : Universal Pictures Company, Inc., herein called Universal ; RKO Radio Pictures. Inc., herein called RKO ; Colum- bia Pictures Corporation, herein called Columbia; Samuel Goldwyn Productions, Inc., herein called Goldwyn Productions ; Republic Productions, Inc, herein called Republic : Hal Roach Studios, Inc, herein called Roach ; and Twentieth Century-Fox Film Corporation, herein called Twentieth Century, in one case with eight other consolidated cases against Columbia, Republic, Warner, Loew, Twentieth Century, RKO and the Association in a consolidated action alleging that all of the foregoing companies and the Association had engaged in unfair labor practices within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the consolidated complaint, together with notice of hearing thereon, were served upon all of the above-mentioned companies, the Association and the IAM. By motion dated August 16, 1946, the Association, Columbia, Republic, Warner, Loew, Twentieth Century. RKO, Paramount, Universal. Goldwyn Productions. and Roach, moved to sever the case resting upon the charges filed by the IAM from the other consolidated cases. The Board by order dated August 30, 1946, granted the motion and directed the IAM case severed from the other consolidated cases. Upon the same second amended charge filed July 18, 1946, by the IAM, the Board, by its Regional Director, issued an amended complaint, dated September 3, 1946, against Association of Motion Picture Producers, Inc., herein called re- spondent Association; Paramount Pictures Inc., herein called respondent Para- mount; Warner Bros. Pictures, Inc., herein called respondent Warner; Loew's Incorporated, herein called respondent Loew, Universal Pictures Company, Inc.. herein called respondent Universal ; RKO Radio Pictures, Inc., herein called respondent RKO ; Columbia Pictures Corporation, herein called respondent Co- lumbia ; Samuel Goldwyn Productions, Inc., herein called Goldwyn Productions ; Republic Productions, Inc., herein called respondent Republic ; Hal Roach Studios. Inc., herein called respondent Roach ; and Twentieth Century-Fox Film Corpora- tion, herein called respondent Twentieth Century, alleging that all of the fore- going had engaged in unfair labor practices within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the Act. Copies of the amended complaint, together with notice of hearing thereon, were served upon the counsel for respondents and Goldwyn Productions at the opening of the hearing which had begun on that portion of the consolidated complaint which was identical with the allegations of the amended complaint involving charges filed by the ]AM and which was severed by the Board's order referred to above The amended complaint alleged in substance that: (1) the Association was RKO, Paramount and Universal, on various dates between February 28, 1946, and an employer within the meaning of the Act; (2) the respondents Warner, Loew, ASSOCIATION OF -MOTION PICTURE PRODUCERS, INC. 473 June 18, 1946, discriminated against certain named individuals by the discharge, refusal to reinstate or hire, and transfer and demotion of the said individuals by reason of their membership in the 1AM; (3) prior to February 28, 1946, and thereafter a majority of the employees in a unit set forth in the amended com- plaint and alleged to be appropriate, designated the IAM as its representative for the purposes of collective bargaining, and the IAM, was and now is the exclusive representative of all employees in the said unit for the purposes of collective bargaining; (4) on or about April 17, 1946, all the parties stated that they would not negotiate a closed-shop contract with the IA'-; (5) the parties have since February 28, 1946, refused to bargain collectively with the IAM; (6) the parties paid bonuses to employees who passed the picket lines or performed the work of striking employees during the course of a strike in the motion picture in- dustry, current between March 12 and October 31, 1945, and interrogated em- ployees with respect to their union membership and affiliation ; and (7) by reason of all of the foregoing the respondents and Goldwyn Productions had engaged in violations of Section 8 (1), (3) and (5) of the Act and by these acts and conduct interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act. At the conclusion of the first day of the hearing. respondents asked for and were granted leave to file their answer to the amended complaint Thereafter on September 9, 1946, counsel for the respondents handed to all parties copies of the answer. Therein, were admitted certain factual matters concerning juris- dictional allegations of the amended complaint. It denied that the Association was an employer within the meaning of the Act or that Goldwyn Productions was engaged in the operation of a studio for the production of motion pictures. The answer set forth certain facts concerning the strike of March' 12; 1945 ; denied discrimination against any employees named in the amended co plaint ; asserted lack of knowledge concerning the appropriateness of the uni ; and de- nied the commission of any other unfair labor practice In denying that there had been a refusal to bargain, the answer averred that since February 28, 1946, there had been a dispute between the IAM, the International Alliance of Theatri- cal Stage Employees and Moving Picture Machine Operators of the United States and Canada, A F. of L., herein called the Alliance ; Motion Picture Studio Cinetechnicians, Federal Labor Union, 23968, A. F. of L, herein called the Federal Union ; and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 399, A. F of L. herein called the Teamsters, as to the appropriate bargaining unit and the right to represent the employees therein ; that on June 25, 1946, the respondent Producers filed with the Board a petition for certification of representatives to have the Board certify the name or names of the representatives selected by the employees in an appropriate unit or units; and that on July 2, 1946, it was agreed between the respondent Producers and the afore-mentioned unions that they would abide by the decision of the Board and forego further recognition or bargaining with any union pending that determination. Pursuant to notice, a hearing was held at Los Angeles, California, on various dates between September 3 and October 28, 1946, before Mortimer Riemer, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. On the first day of the hearing, the Alliance and Federal Union moved to inter- vene. The motions were granted. The Board, the respondents, the IAM, the Alliance, and the Federal Union, were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nesses and to introduce evidence hearing on the issues was afforded all the parties. f Counsel for the respondents had moved for a bill of particulars addressed to certain parts of the consolidated complaint which had not been passed upon prior to the Order of Severance. After service of the amended complaint and on the first day of the hearing, counsel moved orally for a bill of particulars, or in the alternative for a more definite statement to determine whether the unit alleged as appropriate in the amended complaint, included employees performing : (1) services in the manufacture or building of properties or miniatures; (2) services in the working or setting tip of action props; (3) services in the supervision, setting up. operating, striking or storing of equipment used in making special effects ; (4) services in the servicing, maintaining and making of running repairs on cameras ; (5) services in the servicing, maintaining and making of running repairs on laboratory equipment and apparatus ; and (6) services in the servicing, maintaining and making running repairs of equipment handled and operated by the Alliance, on the ground that employees performing the afore-mentiond services were covered under contracts between respondent Producers and the Alliance This motion was denied. The respondents likewise moved for a bill of particulars, or in the alternative for a more definite statement, respecting the allegation of the amended com- plaint that the respondents interrogated employees concerning their union mem- bership and affiliation. This motion was granted in part and counsel for the Board \vas directed to furnish the names of the respondents and their agents who interrogated employees and the dates thereof Finally, counsel for the respondents moved to strike from the amended complaint those allegations con- cerning the payment of bonuses to employees who passed the picket•lines or performed the work of strikers, on the ground that no charge incorporating the afore-mentioned matters had been filed and on the further ground that the alleged acts, even if committed, (lid not constitute an unfair labor practice. This motion was denied. On the fifth day of the hearing, during the examination of the witness Pat Casey, the Board- sought to introduce in evidence a contract executed in 1942, between the IADI and Samuel Goldwyn Studios, not named in the amended complaint. Casey acknowledged that in negotiating the contract he represented Samuel Goldwyn as an individual. He did not recognize the difference between Samuel Goldwyn, Incorporated, Samuel Goldwyn Studios and Goldwyn Produc- tions, the company joined in the amended complaint. In view of Casey's in- ability to distinguish between the various Goldwyn enterprises, counsel for the Board moved to amend all pleadings and testimony thus far adduced so that wherever in the title or testimony there appeared, "Samuel Goldwyn Productions, Inc.," it be amended to read, "Samuel Goldwyn Productions, Inc., operating as Samuel Goldwyn Studios." The motion was denied. Counsel for the Board then moved to amend the amended complaint, so that wherever it read, "Samuel Goldwyn Productions, Inc.," it be amended to read, "Samuel Goldwyn Productions, Inc., operating as Samuel Goldwyn Studios." The motion in this respect was granted. Counsel for the respondents, without waiving his objection to the foregoing, then moved to amend the answer to meet the change in pleadings The motion was granted and the denials of the answer ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 475 were deemed amended accordingly. The answer was also amended to deny that "Samuel Goldwyn Productions, Inc., does or ever did business as Samuel Goldwyn Studios." The hearing proceeded thereafter on the basis of the amendments achieved as the result of the foregoing motions Towards the close of the Board's case and during the examination of Marvin A Ezzell, vice president of Goldwyn Pro- ductions and its general manager, as well as general manager of Samuel Goldwyn Studios, herein called Studios, it appeared clearly that Goldwyn Productions did not operate as the Studios. Ezzell was a careful, precise and credible witness. He testified that the Studios as a legal entity meant Samuel Goldwyn d/b/a Samuel Goldwyn Studios; the Studios operated a rental studio, whose services and facilities were available to all producers, including Goldwyn Productions ; Goldwyn Productions produced its motion pictures at the Studios ; Goldwyn Productions employed no machinists but that the Studios did; and that Goldwyn Productions had nothing to do with collective bargaining with employees in the alleged appropriate unit. As a result of this testimony, the Board served notice of its intention to further amend the amended complaint by adding as a party respondent, Samuel Goldwyn doing business as Samuel Goldwyn Studios. On September 18, 1946, counsel for the Board offered as a proposed exhibit a docu- ment entitled, "Amendment to Amended Complaint, Amendment to Second Amended Charge" and an original letter dated September 13, 1946 addressed to Samuel Goldwyn doing business as Samuel Goldwyn Studios, together with affidavits of service upon the said Goldwyn and Homer I. Mitchell, counsel for the respondents. In effect and thereby, counsel for the Board sought to add to the amended complaint, by motion, another party respondent. In support of the motion, counsel for the Board argued that the amendment should be allowed nune pro tune and that all testimony heretofore taken should apply as though Samuel Goldwyn doing business as Samuel Goldwyn Studios had been in the pro- ceeding from its outset. The motion was denied and the proposed exhibit rejected. Thereafter counsel for the Board filed a telegraphic appeal to the Board from the undersigned's ruling and on September 19, 1946, advised the undersigned, and all parties that the Board had denied the appeal.' Counsel then stated that in the absence of any concession from Samuel Goldwyn consenting to be made a party to the proceeding, as Samuel Goldwyn doing business as Samuel Goldwyn Studios, a motion would be filed asking the undersigned to dismiss the entire complaint without prejudice to the issuance of a new complaint correctly naming all parties to the proceeding. On September 20, 1946, counsel for the Board moved to dismiss the amended complaint without prejudice so that a new complaint correctly naming all parties could issue. Counsel for the respondents then moved that the amended complaint be dismissed with prejudice or in the alternative, that his appeal from the refusal of the Regional Director to bold a hearing on the Producers' petition for certification of representatives, be granted 2 and that the representation case be consolidated with the present proceeding and go forward on condition that Samuel Goldwyn doing business as Samuel Goldwyn Studios join in the con- solidated proceeding. The respondents' motions were denied and the motion 1 A copy of the teletype order denying the appeal was read into the record as follows Re Association of Motion Picture Producers, Case 21-C-2735, Board today [Septem- ber 19, 19461 denied Board counsel request for leave to appeal ruling of the Trial Examiner in this case denying Board's motion to amend the complaint . Formal order follows. N. L. R. B., Washington. s Case No. 21-RE-31. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to dismiss without prejudice was granted . The hearing concluded on September 20, 1946, by reason of the latter ruling. Upon a third amended charge, duly filed September 25, 1946, by the IAM, the Board issued a complaint dated September 26, 1946, against all of the parties named in the caption herein, and all referred to hereafter as the respondents.' Copies of the complaint, together with notice of hearing thereon were duly served upon the respondents, the IAM, the Alliance, the Federal Union and Teamsters as well as upon their counsel and representatives. The allegations of the complaint respecting the unfair labor practices are the same as those in the amended complaint and heretofore set forth. The only change was the substitution of Samuel Goldwyn d/b/a Samuel Goldwyn Studios, for the Samuel Goldwyn Productions, Inc. of the amended complaint. The re- spondents filed an answer on October 7, 1946, substantially the same as the answer to the amended complaint With respect to respondent Goldwyn, the answer admitted that he is an -individual doing business as Samuel Goldwyn Studios engaged in the operation of a studio in Hollywood. California The answer denied that the Association was an employer within the meaning of the Act; set forth certain facts concerning the strike of i\Iarch 12, 1945, and again denied the commission of any unfair labor practices. The hearing resumed at Los Angeles on October 14, 1946 The Alliance and Federal Union again moved to intervene and intervention was allowed. There- after, the Teamsters were permitted to intervene. All parties stipulated that the transcript of record made and the exhibits used in the previous hearing between September 3 and 20, 1946, would constitute the record in the new pro- ceeding; the record therein made would apply to all respondents named in the complaint as though present on and after September 3, 1946, and named in the amended complaint ; and that pagination of the record and exhibit numbers would continue consecutively. Thereafter the hearing continued. Just before the respondents rested, there was filed an amendment to the answer, that on September 12, 1946, during the course of the hearing, United Brotherhood of Carpenters & Joiners of America, Studio Carpenters Local 946, A. F. of L., called a strike against the respondent Producers and on September 26, 1946, and thereafter, picket lines were established at the studios of the said respondents and thereafter members of the IAM employed by the respondent Producers refused to work ; on various dates following September 27, 1946, various of the respondent Producers commenced replacing IAM members who refused to work ; by reason of said replacements "and of further replacements which will hereafter be made by respondent Producers," a 'pay roll then in evidence did not reflect the names of the employees now employed and who will hereafter be employed in the job classifications described in the unit set forth in the Board's complaint. Thereupon, the Board moved to strike on the ground that the amendment referred to matters subsequent to the issuance of the complaint and on the further ground that the matters were highly speculative and problematical. Respondents' counsel conceded in part, that some facts alleged had occurred whereas others might not happen but that he did not want to "waive the contention which I may have to make at some time that the status of employ- ment as of June 10th [the date of the pay roll] should control in this case when obviously fundamental and far-reaching changes are going on at this very moment." The motion to strike was granted. S The Producers are referred to collectively as the respondent Producers , the Association as the respondent Association. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. , 477 At the conclusion of the hearing, the Board moved to conform the pleadings to the proof with respect to such matters as dates, spelling of names, and similar items. Over the objection of respondents' counsel, the motion was granted. All counsel were offered an opportunity to present oral argument at the close of the hearing but waived the opportunity. Thereafter the Board, respondents, and Federal Union submitted briefs to the undersigned. When the hearing concluded on October 28, 1946, leave was granted to the respondents, Alliance and Federal Union, good cause being shown, to take the testimony by deposition of W. J. Bassett, secretary-treasurer of the Los Angeles 'Central Labor Council, before the transfer of the case to the Board. At the time of issuance of this Intermediate Report no application had been received to take Bassett's deposition Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENTS 1. Columbia Pictures Corporation, herein called respondent Columbia, a New York corporation having its principal office and place of business in New York City, is engaged in the manufacture of motion pictures. It distributes motion pictures which it produces, though some of its pictures are distributed by foreign distributing companies and licensees. It holds the stock of various foreign dis- tributing companies and of the following subsidiary corporations : Screen Gems, Inc., a California corporation, and Columbia Pictures Corp. of Louisiana Inc., a Louisiana corporation During 1943, respondent Columbia purchased approxi- mately 106,000,000 feet of film from vendors located in the City of Los Angeles, and expended approximately $13,600,000 in the production of motion pictures. For the 1942-1943 season respondent Columbia produced 37 feature-length motion pictures and made approximately 6,300 prints of these pictures, of which ap- proximately 5,810 were shipped to points outside the State of California. Re- spondent Columbia also produced, for use during the same season, 28 short sub- jects, and made approximately 2,900 prints of these pictures, of which approxi- mately 2,744 were shipped to points outside the State of California. The prints and pictures hereinabove described were distributed by respondent Columbia through its offices in New York City. 2 Republic Productions, Inc, herein called respondent Republic, a New York corporation with its principal office located in New York City, operates studios for the production of motion pictures in the City of Los Angeles, California. It manufactures currently in excess of 30 feature-length motion pictures per year. The pictures are distributed throughout the United States and foreign countries. 3. Warner Bros. Pictures, Inc, herein called respondent Warner, is a Dela- ware corporation whose principal 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 motion pictures through Vitagraph, Inc., a subsidiary corporation which maintains exchanges in 31 cities throughout the United States. Respondent Warner usually produces more than 30 feature-length pictures each year at its Burbank studio. During the 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 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. printing and distribution The pictures are distributed throughout the United States and foreign countries. 4. Loew's incorporated, herein called respondent Loew, a Delaware corpora- tion, engaged in the business of producing and distributing motion pictures, and whose principal office is located in New York City, operates studios located at Culver City, California During the course of each calendar year, the respond- ent Loew 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. Re- spondent Loew employs, many thousands of employees, both in the State of California and in the State of New York. 5. Twentieth Century-Fox Film Corporation, herein called respondent Twentieth Century, is a New York corporation engaged in the production and distribution of motion pictures, having its principal place of business in New York City and also maintaining a place of business in the City of Los Angeles, California. Various subsidiary corporations distribute its motion pictures in foreign countries. During the fiscal year of 1943. respondent Twentieth Century purchased several million feet of positive and negative film, the greater propor- tion 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 period, 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. It employs approximately 3,500 production employees in its studios at Los Angeles. 6. RKO Radio Pictures, Inc, herein called respondent R1:O. a Delaware cor- poration having its principal office in New York City. operates a studio foi 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. The pictures so manufactured are distributed throughout the United -States and foreign countries 7. Paramount Pictures Inc., herein called respondent Paramount. is a Call- fornia corporation engaged in the production, distribution. and exhibition of motion pictures, having a principal office and place of business in New York City, and production facilities located in Los Angeles, California- Respondent Para- mount is also a parent company with which are associated more than 100 sub- sidiary and affiliated corporations , located both within and without the United States, which are primarily engaged in the exhibition of motion pictures. Respondent Paramount purchased more than 40,000,000 feet of film for use in the production of motion pictures during the calendar year of 1943 from vendors located in the City of Los Angeles . During the same period , it expended approxi- mately $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 produced 104, issues of news reel, of which approximately 450 prints were made of each issue These prints were distributed by respondent Paramount through a series of exchanges maintained by it in this country and abroad. 8. Universal Pictures Company, Inc., herein called respondent Universal, 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 principally by Universal Film Exchanges, Inc. The raw film used by respondent Universal in the production of motion pictures is shipped from New York to Universal ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 479 City, where motion picture negatives are made: the majority of such negatives are then shipped to Foit 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 purpose of exhibition in motion picture theaters. Respondent Universal produces more than 30 feature-length motion pictures and 'a number of shott subjects during each calendar year There w a constant flow in interstate commence of the prints made of such pictures 9 Samuel Goldwyn, doing business is Samuel Goldwyn Studios, herein called iespondennt Goldwyn, is an individual engaged in the maintenance and operation of a motion picture studio located in Hollywood, California, which respondent Goldwyn lea,3es to poisons and corporations engaged in the production of motion _ucttu'eS In the operation of his business, respondent Goldwyn purchases various types of raw materials, equipment. and supplies of a total value in'excess of a150,0OO annually. The motion pictures produced and made on the premises or respondent Goldwyn with the equipment and facilities of respondent Goldwyn arc sold and distributed throughout the United States and various foreign countries 10• Hal Roach Studios, Inc. herein called respondent Roach, is a California corporation engaged in the production, sale, and distribution of motion pictures During World War II, the premises and facilities of respondent Roach were used in the manufacture of various types of motion pictures for the Armed Services Respondent Roach has now reacquired full use of its facilities and its produc- tion will consist of many motion pictures which will be sold and distributed throughout the United States and in various foreign countries. 11 The Association of Motion Picture Producers, Inc , herein referred to as respondent Association, is now and has been at all tines since 1924, a corpora- tion organized under and existing by N irtue of the laws of the State of California, having its principal office and place of business in the City of Los Angeles, Cali- fornia. The Association is a non-profit corporation organized for the following purposes: To assist in fostering the common interests of those engaged in the motion picture industry in the United States, and especially in the State of Cali- fornia, by establishing and maintaining the highest possible moral and artis- tic standards in motion picture production, by developing the educational as well as the entertainment value and general usefulness of the motion picture, by diffusing accurate and reliable information with reference to the industry, by reforming abuses relative to the industry, by securing freedom from unjust or unlawful exactions, and by other lawful and proper means In promoting and furthering the aforesaid purposes and in the interests of its members, the Association permits certain of its employees to perform services for members of the Association as individual entities and the said employees on behalf of the members of the Association engaged in and now engaged in the following activities : (a) The ascertainment of facts pertaining to wages, hours and working conditions in the motion picture industry ; (b) The analysis and dissemination of information so obtained; (c) The representation of members of the Association as individual entities in their respective labor relations with their employees and in collective bar- gaining negotiations and adjustments of labor disputes; 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) The representation of members of the Association before the Board, its agents and various other Governmental advisory or arbitration commis- sions or bodies ; (e) In general , to advise, instruct and confer with members of the Associa- tion as individual entities in matters pertaining to their employer -employee relations 4 IT. THE ORGANIZATIONS INVOLVED International Association of Machinists, Cinema Lodge 1185, is a labor organi- zation admitting to membership employees of the respondent Producers. International Alliance of Theatrical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada: Motion Picture Studio Cme- technicians, Federal Labor Union 23968: and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Studio Transportation Drivers, Local Union 399, all affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the respondent Producers. III. THE UNFAIR LABOR PRACTICES A Is the Association an employer within the nicaiiing of the Act? The Act defines an employer to include "any person acting in the interest of an employer, directly or indirectly . . .' In a companion Intermediate Report dated March 20, 1947, issued by the undersigned," the question of whether the Association was an employer within the meaning of the Act arose and it was there answered in the affirmative. The record herein presenting the same basic facts, is even more persuasive and leads to the same conclusion The answer acknowledges that the Association permits certain of its em- ployees to perform services concerned with wages, hours and other conditions of employment in the motion picture industry but that the services are per- formed for Association members as individual entities and not pursuant to the authority of the Association. The Association is a non-profit California corporation organized in 1924, for the purpose among other things to foster "the common interests of those engaged in the motion picture industry in the United States." The respondent Produc- ers herein are members of the Association, except possibly respondent Goldwyn. However, Samuel Goldwyn Productions, Inc., is a member of the Association and it is clear from the record that in collective bargaining negotiations respondent Goldwyn is represented by the same individuals and to the same extent as are the other respondent Producers who are members of the Association. Fred E. Pelton is the Producers' labor administrator, which means, as he testified, "the negotiations, contracts, interpretations, and the preparation of labor contracts" for the 10 major producers, the respondents herein e Respond- ents in their negotiations with the unions, function through a committee known as the Producers' Labor Committee, herein called the Labor Committee, and Pelton is responsible to the chairman of that committee. Pelton was first em- ployed by the Labor Committee in 1939, at which time its 3 members represented * The above findings of fact concerning the business of respondent Producers and the Association are based upon allegations of the complaint and admissions contained in the answer. Matter of Columbia Pictures , et al, Case No. 21-C-2505 e Pelton did not know "their legal names" but he included "Goldwyn ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 481 respondents Paramount, Loew and Columbia. His salary is paid by the Asso- ciation, a matter, he explained, of administrative convenience but he testified that the Association had "nothing to do" with his activities. At the time of the hearing the chairman of the Labor Committee was Ben- jamin B. Kahane, vice president and general manager of respondent Columbia. Kahane testified that the Labor Committee is a self-appointed group, meeting with the unions to resolve matters applicable to the R orking conditions in the studios of the producers who are members of the Association. Committee mem- bers in addition to Chairman Kahane are, E J. Mannix of respondent Loew ; Clifford Work of respondent Universal ; Mr Goldberg of respondent RKO ; Marvin A. Ezzell of respondent Goldwyn ; and Herbert Freston, vice president of respondent Warner. During the latter part of 1945, and all during the first half of 1946, this committee negotiated on behalf of the Producers with the unions concerning the multitudinous matters that arose out of the strike, its settlement, and ensuing events The Association's Board of Directors then consisted of Chairman Byron Price; Y. Frank Freeman of respondent Para- mount ; Mannix of respondent Loew ; Work of respondent Universal ; Joseph Schenck of respondent Twentieth Century ; Allen Wilson of respondent Republic ; Peter Rathvon of respondent RKO ; Kahane of respondent Columbia ; Ezzell of respondent Goldwyn ; Freston of respondent Warner and Warren Doane of re- spondent Roach. Thus it is clear that at least five Members of the Association's Board of Directors, Kahane, Manmx, Work, Ezzell and Freston, were members of the Labor Committee Acting for the Labor Committee on frequent occasions in connection with all the matters at issue between it and the unions is Pat Casey, chairman of the Producers' Committee The Producers' Committee is a committee of the presi- dents of the major Producers. Casey and Pelton act as a team and one or the other seems to have been present at every meeting between the Labor Committee and any one of the unions. When asked whether the Labor Committee acted for members of the Association, Kahane testified : Well, I think that you can say that they do because they are practically the members of the Association as a representative on the Labor Committee in the Association. Questioned further, Kahane testified as follows : Q. (By Mr. MITCHELL.) What has the Producers Labor Committee got to do with the Association? A. Well, nothing except some of the men who are on the Labor Committee are members of the Board of Directors of the Association of Motion Picture Producers. For example, Freeman, Work, Mannix, Freston, and myself- five of us-are members of the Board and also on the Labor Committee. Q. Well, other than the fact that you men happen to be on the Board of Directors of the Association, what has the Producers Labor Committee got to do with the Association of Motion Picture Producers, Inc., if anything? * * * * * The WITNESS. I don't think there is any connection between the two. The Association of Motion Picture Producers meets about once a month, sometimes only once every two months, and there we discuss matters generally about the industry. But the Labor Committee has been meeting in the last year or so almost every day, certainly very frequently. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perhaps more revealing than Kahane's testimony is the common acceptance by union representatives and Producers' representatives of the fact that the Asso- ciation does act for the Producers in labor, matters. For example in February 1946, when the Conference of Studio Unions,` hereinafter called CSU, served demands that the Producers resume negotiations with the CSU, the demand was served not upon the Producers but upon the Association. Similarly in March of the same year when the Federal Union received its charter it notified not the Producers of this fact, but the Association, and demanded of the Association, reinstatement ofrits members who had been replaced as a result of the settlement of the strike. In June 1946, the TAM demanded of the Association, a bargaining conference with the respondent Producers. The close interlocking association between the Labor Committee and the Association can be seen also in the telegram that Kahane addressed to Herbert K. Sorrell, president of the CSU, on February 8, 1946, wherein Kahane stated that the Labor Committee, "repre- senting the respective studios who are members of the Association" would meet with Sorrell's committee in the offices of the Association. Not only the foregoing communications which are univ typical, but many others in the record, indicate clearly that coirospondence from the unions was addressed to the Association, and that the unions made then demands known to the Pro- ducers by presenting them to the Association In connection with this type of testimony and documentary evidence, settlement of the industry strike of July 1. 1946, was publicized in a statement appearing over the signatures of Byron Price, chairman of the Association's Board of Directors, Sorrell, president of the CSU, and Roy Brewer, international representative of the Alliance. Also on this aspect of the case, when the March 1945 strike occurred, the Asso- ciation published in the Daily Variety, three notices addressed to employees explaining the position of the Producers concerning the dispute which had given rise to the strike. In one of these notices, the Association pledged that its mem- ber Producers would abide by decisions of the Board and recognize and bargain with any union certified by the Board It is clear that the Labor Committee is designated by the Producers who are the Association. Unions submit their demands and proposals to the Association for later action by the Producers. The undersigned is not persuaded that because Pelton, for example, worked under direction of the Labor Committee that thereby the Association, whose members designated the Labor Committee, can be said to have divorced itself from the Labor Committee and hence cannot be found to be an employer within the meaning of the Act. Realistically, in the under- signed's opinion, when the Labor Committee acts on behalf of the Producers, the Committee is taking a stand and advancing a position which is that of the Asso- ciation, and there can be no valid distinction between the Association as such, and the activities of its members. The undersigned is of the opinion that the Association is an employer within the meaning of the Act, and it is so found., 4 The Conference of Studio Unions "is a group of unions who bound themselves together to protect the autonomy and the democracy of each of the member unions." Its members in- clude locals of the Painters Union ; Carpenters Union ; International Brotherhood of Electri- cal Workers ; Building Service Employees : Sheet Metal Workers ; the IAM, and various talent Guilds. All but one were at the time of their affiliation with the Conference of Studio Unions, members of the American Federation of Labor n See N L R B v Son Tent-Luebbert Company, et at . 151 F. (2d) 483 (C. C. A 9), cert den October 14. 1946. Gluek Brewing v. N. L. R. B , 144 F. (2d) 847 (C C. A. 8) ; N. L R B. v. Long Lake Lumber Co., 138 F. (2d) 363 (C C. A. 9) ; N. L. R. B. v. Grower- Shipper Vegetable Ass'n , 122 F (2d) 368 (C C A 9) ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 483 B. Factual background antedating issuantce of complaint _ t ^ The strike of March 12, 1945 The issues herein arise out of a vast and extremely complex industrial pattern. Years of dispute and conflict between the parties have not lightened the burden of unraveling the facts for clear presentation and understanding. The basic conflict has been briefly referred to as a "gigantic jurisdictional dispute" between competing unions for job supremacy. But it is more than a struggle of competing unions for jobs and security for members. It presents in addition, a situation where fertile ground for jurisdictional disputes exists by reason of industrial practices and habits that have arisen over a long period of years. A complete 'factual background would require study of the industry since its inception in California. All that is presently attempted is a brief presentation of the facts in connection with the employee discharges hereafter considered. On March 12, 1945, Screen Set Designers, Local 1421, affiliated with the Brotherhood of Painters, Decorators & Paper Hangers of America, A. F. of L., called a strike in the motion picture industry! The strike drew the immediate support of the CSU with which Local 1421 was affiliated. Members of the CSU such as the painters, carpenters and machinists left their jobs in support of the strike At the start of the sti ike Richard F. Walsh, international president of the Alliance, issued instructions to Alliance members that they were to cross juris- dictional lines and fill the lobs vacated by striking employees and not to honor picket lines established about the studios. The Alliance had 12 locals under con- tract with the Producers,10 but at the time of the strike had no one local for employees engaged in machinists' work. The first week of the strike, President Walsh made an agreement with the Producers' representatives thus described by Brewer : . . . the arrangement was that if this group or any subsequent group went out on strike in the studios in an effort to cripple their operation for the purposes of prosecuting a jurisdictional strike against the I. A. T. S. E, then the I. A. T. S. E. would, insofar as it was possible, furnish the people neces- sary to keep those studios in operation. That was the general terms of it. It was not a written instrument. It was an understanding which we had. Pursuant to this arrangement, the Alliance engaged Harry M. Shiffman, a member of the Alliance projectionist local to find machinists who had the ability to fill the jobs vacated by members of the IAM. About May 1, 1945, Shiffman organized the Alliance Cinetechnicians Local 789, which took into membership not only employees furnished to the studios to fill the jobs of the machinists, but those who likewise filled the jobs of other striking employees. Local 789 never had a contract with the Producers but enjoyed some sort of verbal understanding that it represented those members which it had supplied the Producers Also, during the strike. Alliance Local 44, the propmen's local, furnished some 30 to 40 propmen to the various studios to perform the work 0 The strike and its background were fully considered in the Board's decision in matter of Columbia Pictures Corporation, 64 N L R. B 490. 10 Local 44, Propmen ; Local 80, Grips ; Local 165, Studio Projectionists ; Local 659. Camera Men : Local 695. Sound Technicians ; Local 75, Costumers ; Local 706, Make-up Artists ; Local 767. First Aid Employees ; Local 776, Film Editors ; Local 728, Studio Electricians ; Local 683, Laboratory Technicians , Local 727, Laborers Thus, in a sense the Alliance is an industrial union with its own craft distinctions. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . of IAM members. All in all, Shiffman recruited about 300 employees during the strike to fill the jobs vacated by IAM members. The strike was settled and the striking employees returned to work on October 31, 1945, after the Executive Council of the A. F. of L had issued a directive terminating the strike 11 Following the strike, there was no further occasion for Local 789 to supply employees to the various studios and it has admitted no further members. One of the provisions of the strike settlement provided that the employees who had filled the strikers' jobs were to remain on the Producers' pay rolls for a period of 60 days, the first 30 of which were to be used to compose jurisdic- tional differences, failing which, during the next 30 days, a 3-man committee of the A. F. of L Executive Council would "investigate and determine . . all jurisdictional questions still involved." When IAM members returned to work on October 31, 1945, members of the Alliance locals who left their own jurisdic- tions to fill strikers' jobs returned to their accustomed occupations Members of Shiffman's Local 789 remained on the pay rolls for the afore-mentioned 60- day period. At the October 1945 convention of the International Association of Machinists, its Executive Council was directed to withhold payment of per capita tax to the A. F. of L. Late in 1945, or early in 1946, the Los Angeles Central Labor Council was directed to disassociate from participation in its councils, representa- tives of the IAM. In January 1946, Brewer demanded of the Producers that Alliance members who had been replaced by return of IAM members, be rein- stated to those positions for the reason that the JAM was no longer affiliated with the A. F of L.12 At or about the same time, according to Shiffman, he made an agreement with "The Producers Association, the Labor Committee," that mem- bers of Local 789 who had been taken oft the Producers' pay rolls at the end of the 60-day period would be granted an indefinite leave of absence without pay. He testified that the agreement was that "everybody that received the 60 day pay, they agreed to carry them on leave of absence without pay." Both Brewer and Shiffman on other occasions renewed demands that members of Local 789 be employed in machinist jobs instead of IAM members On February 12, 1946, Shiffman sent the Association a wire asserting that Local 789 represented a majority of the employees employed as machinists in the respondents' studios and demanding recognition as the bargaining agent. This claim was discussed on various dates in February with the Labor Com- mittee, Shiffman demandilng in addition that his members be given jobs. On March 7, 1946, the A. F. of L Executive Council issued a charter to the Federal Union. Upon issuance of the charter, Local 789 turned over most of its members to the newly chartered union. Shiffman remained on as business representative and financial secretary of the Federal Union. Following this and on March 18, 1946, Shiffman sent the Association this telegram : 11 The provisions of the settlement and the working conditions under which the employees returned to work, known as the Cincinnati Directive, are considered in greater detail in later portions of this report and no extended comment is pertinent at this time 12 The first agreement entered into in 1937 between the-Producers and IAM contained this clause "The provisions of this Agreement are predicated upon the understanding that the Machinists' Studio Local No. 1185 is a part of the International Association of Machinists, an affiliate of the American Federation of Labor and that upon any'change in such status, the Producer shall have the right to cancel this Agreement " 0 ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 485 This is to formally notify you that a Federal Labor Union Charter No. 23968 has been issued by the American Federation of Labor covering the jurisdiction formerly held by the International Association of Machinists. We, the undersigned charter members of this local union hereby demand an end to the discrimination being practiced by the Producers Association in denying work to any but members of the IA---NI, and demand an immediate reinstatement of those men who were replaced by reason of the Cincinnati Directive The issuance of this charter is conclusive proof of the fact that the IAM is no longer entitled to any recognition as an A F of L union and we must insist that no further recognition be given it as such. According to Brewer, when the charter was issued the Producers were "con- vinced" that they were under no further obligation to the IAM and agreed to engage members of the Federal Union. This brought a strike threat from the CSU which was settled, according to Brewer's testimony, by an agreement worked out between Eric Johnston, then president of the Motion Picture Producers and Distributors Association, and later to become president of the respondent Asso- ciation, and Harvey Brown, International President of the IAM, that henceforth only machinists would be hired who had been on the Producers' pay rolls. On March 25, 1946, the Producers engaged about 35 members of the Federal Union for work as precision and journeymen machinists. There is no record evidence that any IAM member was displaced by this hiring. On April 25, 1946, Shiftman posted a notice, containing the following, on the bulletin boards in the respondent Producers' machine shops : TO'WHODM IT MAY CONCERN : By precedent, the Motion Picture Industry has always been recognized as an American Federation of Labor industry. Federal Labor Union No. 23968 has been granted a charter by the American Federation of Labor covering the machine work formerly done by Lodge 1185 of the I. A. M., which has withdrawn from the American Federation of Labor. The laws of the American Federation of Labor are as follows : "No organization nor person that has seceded, or has been suspended or expelled by the American Federation of Labor or any national or international organi- zation connected with the Federation, shall, while under such penalty, be allowed representation or recognition." Therefore, we are offering the opportunity to any machinists now working in this jurisdiction to join Federal Labor Union No 23968 by contacting our office at 6636 Hollywood Boulevard, Room 216, or our stewards on the lots, and make application for membership in the new American Federation of Labor Federal local. In this same period of time, the Federal Union continued its demands of the Producers that iii iview of the IAM's suspension, they cease discrimination against "A. F. of L. men" and hire members of the Federal Union who had been taken off their jobs as a result of the Cincinnati Directive. The Federal Union also applied to the Central Labor Council for assistance. Accordingly about May 22, 1946, Brewer representing the Alliance, Joseph Tuohy, the Team- sters, and W. J. Bassett, secretary of the Central Labor Council, met with the Labor Committee at the Association. The Labor Committee was told that since the IAM was no longer affiliated with the A. F. of L, members of A. F. of L. 13 Shiffman was reprimanded for this conduct by respondents Loew and RKO. 809095--49-vol. 79-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions, including the Alliance and Teamsters , would not handle any equipment worked on by the IAM. • m u Concerning this meeting , Kahane testified as follows : At that time . . . they made the demand that they cease having this work done with the I . A. M. machinists involved or else they would declare the sets hot and their members wouldn't handle them. We protested very vigorously against any such demand and said that it was very unfair, putting us in a very bad position . We pleaded with them not to ask us to take any such action and asked them not to characterize sets as hot , and again said that this was a jurisdictional situation that we weren't concerned with, and "Why can't it be handled by the National Labor Relations Board? If there are any arguments as to who should represent whom and what unit there should be , go ahead and thresh it out in court, but why put us in this position again? You will put us in the position of more unfair labor practice charges." And they said they had given the matter their thought and this was their studied and deliberate decision and it was up to us to put this into effect, and we said, "When'? " and they said "as of now " And we said, "Well , now, that is too quick for us to make any decision. At least give us it chance to think this thing out" and he said, "All right , we will give you 21 hours ; we will send you a wire and tell you as of 24 hours that it must be put into effect." The producers then met among themselves-the meeting adjourned and the producers met among themselves and the first time that it happened, we had our choice of . doing the same thing, laying oft the teamster who refuses to handle the automotive truck equipment and lay off the cameraman who refuses to work on the set, but we were well aware of the fact that to do that would paralyze the entire industry In the one case it meant that the I . A. T. S. E. in control of projectionists throughout the theatres and exchange employees throughout our exchanges and the dominant and most important positions in our studios , would mean that we would have to close our studios , close our exchanges , close our theatres, face an irreparable loss, probably not be able to survive because with theatres and exchanges closed and studios closed , I don' t think the industry could last a month, because it meant millions of dollars a week literally. As against taking that course or taking the - or letting the machinists go, the few machinists that were involved go , we decided on operating our studios, on keeping our studios and theatres open. In the other case you might ask why we didn't do it for the other gentle- men, and I simply say that we had found after nine months of strike that at least we could keep our studios open , be it at a high cost, by engaging other painters and other carpenters It's just a matter of economic pressure on producers ; they took the course that would enable them to survive . That's all. Following the meeting, Bassett sent each of the respondent Producers the fol- lowing letter : This letter is to confirm the position taken by the representatives of the Los Angeles Central Labor Council and various American Federation of Labor Unions, whose members are employed in the Motion Picture Industry, in the meeting held in the offices of the Association of Motion Picture Produc- ers on this date. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 487 The position of the Los Angeles Central Labor Council is that the Council is calling upon all affiliated Unions, whose members are employed inllthe Motion Picture Industry, to refuse to accept, work with or handle any prod- ucts going to or coning from machinists employed by the studios who are not members in good standing in the American Federation of 1.•ibor. In order to avoid any misunderstanding, the Council is not presuming to call a strike in the Motion Picture Industry. All members will be requested to continue to report to work and perform their duties as usual, except that they .will reserve the right to refuse to perform operations requiring them to accept, work with or handle any products going to or coming from ma- chinists who are not members of the American Federation of Labor. All persons presently employed to do machine work of any nature in the studios have the opportunity of becoming members of the Motion Picture Cineteclinicians Local 23968 [the Federal Union] which is recognized by the American Federation of Labor as the organization having proper jurisdiction over machine work, or the Studio Transportation Drivers Local 399 having jurisdiction over, auto mechanics. The A. F of L. members will recognize all work performed by iueiubeis of these locals The next day, Bassett sent each respondent Producer this telegram. Pursuant To Our Communication of May 22, 1946 Please Be Advised That All Members Of The American Federation of Labor Are Being Requested To Comply With The Conditions Set Forth In The Letter On And After Wed- nesday May 29, 1946. After.the Central Labor Council took its action, members of the Carpenters and Painters Unions in retaliation about June 13, 1946, refused to work on technicolor sets where the technicolor camera had been or was being serviced by members of the Federal Union Alliance members refused to work on cameras unless serviced by members of the Federal Union and Teamsters refused to handle automotive equipment that had been serviced by IAM members. About June 22, 1946, representatives of the Producers conferred with Brewer and in- formed him that they were going to file a petition for certification of bargaining representatives to resolve the conflict. The Producers wanted Brewers' as- surance that the Alliance would accept the Board's determination as to who represented the machinists. Brewer agreed to withdraw the order on "hot sets" provided the Producers agreed not to discriminate against members of the Federal Union. Shortly thereafter the "hot set orders" were revoked. In this connection, before passing to a consideration of the individual dis- charge cases, it should be pointed out that no member of the Alliance or Teamsters was discharged or otherwise disciplined because of refusal to work on equip- ment serviced by the IAM. Likewise, as is clear from Kahane's testimony, set forth above, and as will appear more fully hereafter, employees were discharged or otherwise discriminated against because of their IAM membership. Finally, Brewer testified, contrary to Kahane's testimony, that he knew of no specific threat to take out Alliance projectionists and distribution employees throughout the country over the "Machinists issue" or over any other issue in dispute be- tween the unions and the Producers in the spring of 1946. Thus it may be that Kahane's testimony more accurately reflects, not an actual threatened course of conduct, but rather the Producers' fears of ultimate retribution unless they acceded to the Alliance demands 488 DECISION'S OF NATIONAL LABOR RELATIONS BOARD C. The discharge cases 1. Respondent Universal The complaint alleges the discriminatory discharge of John M. Mobley and Reginald G. Hill 34 on May 29, 1946. and a refusal to reinstate until June 26, '1946. and July 5, 1946, respectively, for the reason that both Mobley and Hill were members of the IAM. Mobley and hill are automotive mechanics employed in the garage of re- spondent Universal. Both are members of the IAM. Their superior is George Smith, superintendent of transportation, who supervises the work of the Teamsters who drive automotive equipment and IAM members who repair it. Day-to-day assignments on the job are given by Foreman Lon Price. On May 29, 1946, on reporting for work, Price asked Hill it he had seen the bulletin board There Hill read a Teamsters' notice that effective as of that date, the Teamsters "were not going to handle any work coming to or from the Machinists." That evening Hill and Mobley were assigned to work on a bus. While the two men were at work, Hill was called to the shop telephone to speak to Lewis B. Shank, assistant business agent of the Teamsters. Shank told Hill that the "heat" was on ; both men would have to take out cards in the Teamsters to retain their jobs ; but that they would be permitted to retain their IAM mem- bership Sometime between 10 and 11 p. m. Smith returned to the garage and according to Mobley's uncontradicted testimony addressed the two mechanics as follows : I If I had known you fellows was going to be laid off and if I had known this was going to happen 1 would not have had you do the work. . . . You will have to report to, the personnel office, Mr. McCausland, on Friday morning. Mobley and Hill reported to McCausland on May 31, 1946. Hill testified that McCausland told the men they were laid off "due to the Teamsters refusing to move the bus." The men were told to take home their tools. The undersigned finds based upon the above testimony of Hill and that of Kahane quoted heretofore that Hill and Mobley' were in fact laid off because of their IAM membership and the Teamsters' refusal to drive equipment repaired or serviced by them. About June 11, 1946, Shank asked Mobley to join the Teamsters. Apparently he agreed to do so for he was issued a Teamsters permit. Shank then told Mobley to return to work and on June 13, Mobley was rehired on his old job. On June 11, 1946, Foreman Price, who was an IAM member, telephoned Hill and told him Mobley was signing up with the Teamsters and urged him to talk to Shank. Price told Hill that "it looks like that they [the Teamsters] have control of things." Hill signed a Teamsters' card and returned to work on his same job on July 5, 194616 2. Respondent Loew The complaint alleges that respondent Loew discharged W. E. Zimmerman on May 29, 1946, and refused, to reinstate him until June 26, 1946, because Zimmer- man was a member of the IAM. 14 Names of individuals are spelled as given at the hearing. Pursuant to the motion to conform, the complaint is deemed amended accordingly. 16 Hill was absent from Los Angeles between June 14 and July 2, 1946, due to a death in his family ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 489 Zimmerman was employed as an auto mechanic in respondent Loew's garage under P. L. Small, superintendent of the automotive department. , Zimmerman is a member of both the IAM and International Brotherhood of Electrical Workers, Local 40, A. F. of L., herein called IBEW. On May 29, 1946, Zimmerman read the Teamsters ' notice, similar to the one referred to in the cases above, posted on the garage bulletin board, that the Teamsters would not handle any equipment "worked on" by IAM members. Sometime during the day, Small told Zimmerman that he was "fired." When asked for an explanation , Small answered that all he could say was that orders to that effect had been issued by William R . Walsh , director of labor relations for respondent Loew. Zimmerman then saw Walsh and asked why he had been discharged. Walsh replied there was no explanation ; that Zimmerman's work had been satisfactory but that orders had "come from higher ups... . The respondent introduced in evidence a pay-roll notice showing Zimmerman's "lay-off" on May 29, 1946. Zimmerman denied ever receiving a copy of the notice and vigorously asserted that Small told him he was "fired." His testimony is credited and the undersigned finds Zimmerman was discharged on May 29, 1946, because of his IAM membership. While employed at respondent Warner's after his discharge by respondent Loew, Zimmerman was instructed by the IBEW to report back to respondent Loew for work. He returned to respondent Loew on June 19, 1946, in the electri- cal department as an electrician . Zimmerman is satisfied with his present posi- tion and does not desire reinstatment to his former job as an automotive mechanic. 3. Respondent RKO The complaint alleges that respondent RKO discriminatorily discharged Wil- laam J. Pickering on June 13, 1946, and refused to reinstate him until June 26, 1946 ; discharged Robert Skager on June 13, 1946, and thereafter refused to reinstate him ; and on June 18, 1946, transferred Carl H. Honvath to a less desirable position and refused thereafter to reinstate him because all of the foregoing employees were IAM members. Pickering and Skager are the two automotive mechanics employed by respond- ent RKO in its garage . Skager has been employed since 1920 and during the last 10 years of his employment acted as a working foreman . In this capacity he picked up work orders and divided tasks with Pickering. There is no record evidence that Pickering was an IAM member except as may be inferred from the provisions of the IAM's last contract, since expired, which provided that the Producers would employ only workers who are members in good standing of the IAM. Skager was a member of the IAM as well as IBEW. On two occasions " prior to June 13, 1946, Shank , the Teamsters' agent, on visits to the garage asked Skager to join the Teamsters . Sometime early in June, Harvey Leavitt, superintendent of transportation , instructed both Pickering and Skager not to work on any automotive equipment without his express authori- zation. Between the time of this instruction and June 13 , Skager spent most of his time idling about the garage. About 2 p. in. on June 13, Shank asked Skager by telephone to join the Teamsters, stating that they were "about to take over the auto mechanics and it would be best . . . to join their local." At about 3 p. in. Pickering and Skager were called to Leavitt's office where they were laid off. When asked to give a reason for the lay-off, Leavitt stated, according to Skager : "..., you have been around here every day, like I have , and you ought to know . . . the teamster or driver refused to drive the equipment you worked on today." 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pickering returned to work on - June 27 , 1946. Skager on the other hand, at the time of his lay-off inquired if he could work in the electrical department. Skager was told this was satisfactory if he could work it out with Earl Miller, chief electrician . On June 14, Skager went to work in the electrical department at an increase in his hourly rate of 17 cents. Skager is presently employed _n the electrical department, has lost no time by reason of the transfer and does not desire reinstatement to his old job as an.auto mechanic. Although as pointed out above , the evidence of Pickering ' s union membership is at best remote , nonetheless it clearly appears that he was laid - off either by reason of that membership or because the respondent Loew believed he was a member In Skager's case there can be no question that the lay -off resulted from his membershp in the IAM , although as events turned out it redounded to his advantage. Leaving aside for the moment the question of the remedy appro- priate in a case of this nature, the undersigned is of the opinion that both lay-offs were discriminatory because directed against individuals due to their union or suspected union membership and that thereby the respondent RKO discrimi- nated against both Pickering and Skager . It is so found.16 Carl H. Homuth is a precision machinist, employed by respondent RKO since January 1946. He has been a member of the IAM since 1937. Prior to June 18. 1946 , the date of the alleged discrimination against Homuth, he worked in a small machine shop adjoining the electrical machine shop, at the then precision machinist rate of $1 .97 an hour . On June 18, Homuth was in- structed to adjust an optical printer, which he accomplished by fashioning a special shaft for the printer Shortly thereafter , Glen Parr , superintendent of the electrical department, called Homuth to the office of Earl Miller, chief electrician . Homuth testified credibly and without contradiction as to the following incident with Miller: . . . Air. Miller held up the shift. . . . and he says , "Do you know this shaft?" I says, "Yes , I know " He says, "It is declared hot and so I have orders to fire you." I asked him, "What do you mean , `hot' ", and he says, "You know the members of the scab local or scab union, or whatever we call them, called their business agent in and he declared it hot" because I was a member of 1185, so they made another shaft and they used the machine after that. Farr then asked Homuth if he would like to take out a permit with the IBEW. Homuth said he would Farr remarked that he did not want to lose Homuth and he would telephone the IBEW and ask that a permit issue to Homuth . There- upon Homuth left the studio , picked up his permit and returned later to the lot, Thereafter, Homuth continued on the job, doing rough machine work in a small shop next to the electrical machine shop. Homuth's rate after June 18. 1946 , was decreased . The timekeeper informed Homuth that since he now belonged to the IBEW he would receive $1 .80 an hour. About 1 week later he was advanced to $1.97 an hour , the rate lie had earned as a precision machinist before June 18, 1946 . When Homuth was advanced to this latter rate he went back "to the same old work." Thus, it would seem clear that Homuth, as a condition of employment , was required to obtain membership in the IBEW.17 Having done so, within a week he was put back on his old job at his old rate of pay. It is likewise clear that but for his IAM membership and respondent RKO's acquiescence in the demands made of it . Homuth would not 11 N L R B v. John Eng lehorn & Sons, 134 F (2d) 553 (C C A 3). "At the time affiliated with the CSU ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 491 have suffered any transfer or loss in earnings resulting therefrom The under- signed finds Homuth was transferred and reduced in rate by reason of -his JAM membership. 4. Respondent Warner The complaint alleges the discriminatory discharge, transfer and demotion and refusal to reinstate six named employees 18 The answer pleads a general denial. Edward J Lorenz has been employed by respondent Warner since 1939 as an auto mechanic and machinist. He is a member of the JAM There are about 12 auto mechanics in the crew working under Foreman Ira Roland and Depart- ment Head A H. Klein. Sometime in March 1946, Roland called Lorenz to his office and there intro- duced him to Shiffman and Herman R. Lentz, president of the Federal Union. According to Lorenz's credible and uncontradicted testimony, Shiffman stated to him: "We are taking over here and we are giving you a chance to join our union" ; showed him a copy of the Federal Union's charter and gave him an application card. Lorenz asked if it was not necessary to hold an election to determine this. Shiffman answered that he would not argue the matter, the Federal Union was "taking over" and if Lorenz wanted to join this was his opportunity. Lorenz stated that the Teamsters also claimed auto mechanics and he doubted whether the Federal Union had a majority of employees. Fol- lowing the conversation with Lorenz, other mechanics were called in " one at a time" to speak to Shiffman On May 29, 1946, the notice of the Teamsters that they would not handle any equipment worked on by JAM members appeared on the bulletin board. On May 31, Klein told Lorenz to collect his tools and that he was laid off. When Lorenz asked the reason for lay-off, Klein answered that there was no point in discussing the matter because Lorenz knew the reason Shortly thereafter, Klein told Lorenz he was laid off because "The Teamsters refuse to drive that car you were working on, the Buick That is why you were laid off." Lorenx was reinstated to his old job by respondent Warner on June 26, 1946. Glenwood C. Warren is a machinist employed by respondent Warner since February 1946. He is a member of the JAM. On May 31, 1946, Warren worked his regular shift as a machinist. About 5 p in. Francis Fuhrmann, head of the technical department, telephoned him at home and told him he was laid off because "The crafts refuse to handle your work." Warren returned to the studio the next day and asked Fuhrmann for a slip giving the reason for his lay-off. Fuhrmann refused to put in writing the reason for the lay-off. Warren was reinstated to his old position on July 5, 1946. It appears how- ever that respondent Warner made reasonable efforts to reinstate Warren on June 26, 1946. Warren was unavailable for employment between June 3 and his return to work on July 5, 1946. Elmer Johnson is a welder, employed by respondent Warner since January 1946. Johnson performs his duties in the machine shop and on the stages in which connection he works with employees who are members of the Alliance grip local 80. Johnson is a member of the IAM. 18 Elmer Johnson, discharged May 29, 1946 , reinstated , Julie 26, 1946 ; Edward J Lorenz, discharged May 30, 1946, reinstated , June 26, 1946 ; Glenwood C. Warren, discharged M 31, 1946 , reinstated , July 8, 1946 , Royal M. Caldwell , transferred and demoted, June 1946 ; Robert E Davis, transferred and demoted, June 6, 1946 ; and Otto Keller, transferred and demoted , June 6, 1946. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 29, 1946, while Johnson was at work welding some steel girders on top of one of the stages, Fuhrmann approached and inquired if he belonged to the IAM. When Johnson acknowledged that he did, Fuhrmann answered : "That is all I want to know." Johnson had just finished one welding job and was preparing to move on to the next when the grip foreman told Johnson that the grips would not work with him any longer. Later, Foreman Bassett told Johnson to gather up his equipment and report to Fuhrmann Fuhrmann told Johnson that he was "through" but he could finish out his shift or go home. Fuhrmann refused to give any reason for his action and issued no lay-off slip to Johnson. Johnson was reinstated on his old job on June 26, 1946. He experienced no further difficulty in working with Alliance members Robert E. Davis is a machinist employed by respondent Warner since 1944. From and after November 1945, Davis was employed on the maintenance of cameras in the camera machine shop Davis is a member of the IAM On June 6, 1946, Superintendent Al Tondreau took Davis off camera mainte- nance work, to make room for two or three machinists, members of the Federal Union, who were reporting the next day to do camera maintenance work. Davis went into the machine shop where he performed general machine work. About 1 week later, cameras were brought to where Davis worked in the machine shop and he commenced his maintenance work again. He was not transferred back to the camera maintenance shop. Davis' rate has at all times- remained the same, suffering no reduction by reason of his transfer. Thus up to June 6, Davis maintained cameras ; on that date he was transferred to, the machine shop to make room for the Federal Union men ; he worked 1 week on machine work of a general nature ; and about June 13, 1946, Davis again resumed his camera maintenance work. The undersigned finds that Lorenz, Warren, Johnson and Davis were discrimi- nated against by respondent Warner because of their IAM membership. Royal M. Caldwell and Otto Keller, the other machinists allegedly transferred and demoted on June 6, 1946, because of their IAM membership, did not testify. There is no evidence of discrimination against them. It will be recommended hereafter that the portion of the complaint, alleging a discriminatory transfer and demotion of Caldwell and Keller be dismissed. 5. Respondent Paramount The complaint alleges that respondent Paramount on or about February, 20, 1946, and thereafter, refused to hire Glenn Waters because of his IAM mem- bership Waters did not testify. J. R. Stehr, IAM business representative, testified that in February 1946, Ben Hayes, in charge of the machine shop at respondent Paramount, told him that he would have to reject Waters for employment in view of orders not to hire additional machinists. In March 1946, Stehr asked Ted Leonard, director of industrial relations, why Waters was not hired and Leonard replied that President Balaban had issued orders not to hire more machinists This completes the evidence respecting Waters. The undersigned is satisfied, that the foregoing facts, even when considered in relation to other events, such as for example, the hiring of Federal Union i embers in March 1946, are not sufficiently reliable, probative and substantial to warrant a finding of discrimination in refusing to hire Waters. It will be recommended hereafter that this portion of the complaint be dismissed. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 493 6. Conclusions respecting the discharge and/or lay-offs From the foregoing it appears that on various dates following May 29, 1946, certain respondent Producers discharged, laid off or transferred machinists who were members of the IAM. This action coincided with that of the CentraFLabor Council, the Alliance and Teamsters in declaring work performed by IAM mem- bers "hot" and not to be handled by A. F. of L. members. As set forth above, in retaliation, Conference unions, notably the Carpenters and Painters, declared "hot" certain work performed by members of the Federal Union. Thereupon, certain respondent Producers laid off the Carpenters and Painters. Kahane testified : Q (By Mr Rissm_ x) Now , let's get to this July 1, 1946, strike. I think ,you testified that members of the Teamsters Union at some time in the spring of 1946 refused to handle equipment that bad been worked on by members of Lodge 1185 . Is that correct? A That is right Q. And likewise , members of certain locals of the I. A. T. S. E. refused to work with or handle equipment that had been worked on by members of Lodge 1185. A. That is right. Q. They declared certain equipment hot because it had been worked on by 1185 people, is that correct') A. That is the expression that was used. Q. Do you know that when the work of members of Lodge 1185 was declared hot by the I. A. T. S. E . and by the Teamsters Union the members of 1185, who had worked on that equipment or machinery , were discharged from the studios ? Isn't that correct? A. Laid off is probably a better expression. Q. Then you said , I think the words you used were "thereafter the carpen- ters and pa]hters refused to work on sets where I. A. T. S. E. members or Federal Local machinists had worked ," is that correct? A. That is correct. Q. In that case the sets were declared hot by the Painters and Carpenters, is that correct? A. That is right. Q. In that case, who was laid off. the Painters and Carpenters who had declared the sets hot and refused to work on them, or the members of the Federal Local who had performed work on the camera which resulted in the declaration of hot sets? A The Painters and Carpenters refused to work. Q. Were any I. A. T. S. E men or any Teamsters laid off, fired , disciplined, discharged, taken out of work because they refused to handle or work with equipment that had been worked on or serviced by members of Lodge 1185? A. They were not. None of them to my knowledge. Q. Do you know of any explanation for the difference in treatment in one case and the other? A Yes. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. There was a difference? A. Oh, sure. Later Kahane testified, as set forth fully in his testimony at the beginning of this section, that the difference in treatment was due to the "economic pressure on the producers." Thus the question arises whether economic pressure thus leveled against an employer can justify what would otherwise appear to be a violation of the Act. The decision to submit to Alliance threats was made by the Labor Committee of which Kahane, of respondent Columbia, was chairman Respondent Columbia did not follow up the decision by discharging TAM members But other respond- ents did carry out the undertaking of the Labor Committee. The close inter- locking relationship between the Labor Committee and the Association has been shown. It has been found that the Association is an employer within the mean- ing of the Act. And it has been found that the Labor Committee acts for the Association. In this instance the Labor Committee acted for the Association and bound it and all respondent Producers who took the action which the Labor Committee approved. The undersigned is satisfied that respondents Association. Warner, Loew, RKO and Universal submitted to the threats of the Alliance, Teamsters and Central Labor Council and with full knowledge of the meaning of their acts, determined to discharge, lay off or transfer the IAM members. There is absent here any persuasive proof that the action taken was mandatory in order to avoid immediate financial loss or cessation of operations. It is true that such might have been a future result in view of the dominant position of the Alliance in the industry; and the costly strike of 1945 which had caused so macli confusion over a period of 9 months was no doubt uppermost in mind. Yet it is significant that at the time the respondents took the aforesaid action, no harm or loss had actually resulted and Brewer, according to his testimony, knew of no specific threat to take out Alliance projectionists or distribution employees throughout the country, over the "Machinists issue " The undersigned thinks it is clear that the acts related above constituted discrimination in regard to hire and tenure of employment on the part of respond- ents Association, Warner, Loew, RKO and Universal land that they necessarily discouraged membership in the IAM. The employees in question were presented with the alternative of transferring their membership from their chosen organi- zation, the IAM, to the Teamsters and the Federal Union as a condition to their remaining on the job The respondents Association, Warner, Loew. RKO and Universal accordingly committed an unfair labor practice within the meaning of Section 8 (3) of the Act, and it is so found. , Threats of economic pressure arising out of jurisdictional conflicts have never been held to justify a violation of the Act by the Board," although situations may arise where the Board in the exercise of a wise discretion may withhold its usual reinstatement and back pay orders 20 The consistent application of broad principles of law and administrative policy by the Board in denying applicability of economic factors to justify discrimination has been recognized by the Courts 19 Matter of Star Publishing Go., 4 N. L R. B 498; Matter of Trawler Maris Stella, 12 N L R B 415; Matter of General Motors Corp , 14 N L. R. B 113; Matter of Isthmian S S. Co, 22 N. L R B. 689 ; Matter of Mooremack, 28 N. L. R. B 869, Matter of Greer Steel Company, 38 N. L R. B . 65; Matter of Cowell Portland Cement Co., 40 N. L. R. B. 652 20 Matter of New York t Puerto Rico Steamship Co., 34 N. L. R. B 1028 1 01 ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 495 as well." In N. L R B v. Gluelc Breivinrg Co.," the Circuit Court of Appeals had this to say in a factual situation squarely in point : . . the trouble was entirely caused by the economic pressure by Teamsters in their effort to compel the Gluek [respondent employer] drivers to transfer their allegiance from Brewers to Teamsters ; that this pressure was so effec- tive that it forced Gluek to act ; that this action was motivated, in large part if not entirely, by the purpose of avoiding disruption and loss of business ; that Gluek knew its action would have the effect either of changing such allegiance or of depriving the drivers of their jobs by transferring the work to a place where it could be done by members of Teamsters; that Gluek first used pressure to bring about the first alternative ; that failing in this. it adopted the other alternative, and that the known inevitable result of such action by Gluck has been to aid one labor union in a conflict with another union with which it had a labor contract. Albeit unwillingly, yet there is no doubt that Gluek participated in a jurisdictional labor dispute and its participation had the effect, well known to it in advance, of favoring one union over the other. It is clear that it had no purpose-in the sense of animus or desire-to injure one or to help the other. Its underlying and compelling purpose was to save itself. But to accomplish this result, it consciously interfered in a labor situation by actively favoring one union over another. This was properly held by the Board to be an unfair labor practice under the Act because economic interests of an employer are not valid reasons for violation of the Act [citing cases] In N. L. R. B. v. Hudson. Motor Car Co., 128 F. (2d) 528, 553, it was stated: "We think it right and just to say that so far as the record shows, respondent has not wilfully vio- lated the provisions of the Act, but the intent of the employer is not within the ambit of our power of review When it is once made to appear from the primary facts that the employer has violated the exprc's provisions of the Act, we may not inquire into his motives " The undersigned is satisfied that the respondents were placed in an unenviable position by the ultimatum of the Central Labor Council, the Teamsters and the Alliance, but the violation of the Act is unmistakable. The undersigned finds that respondents Association, Warner, Loew, RKO and Universal discriminated in regard to the hire and tenure of employment of Elmer Johnson, Edward J. Lorenz, Glenwood C Warren, Robert E. Davis. W. E Zimmerman, W. J. Pickering, Robert Skager, Carl H. Homuth, John M. Mobley and Reginald G Hill, thereby discouraging membership in the IAM, and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 1 D. Alleged interference , restraint, and coercion The complaint alleges that on and after March 19, 1945, the respondents interfered with, restrained and coerced their employees in the exercise of rights protected by the Act by : '-' N L R. B v. Graham, at at. 159 F ( 2d) 787 (C C A. 9 ) , 19 L R . R AI 2303 (de- cided February 13, 1947 ) ; N. L. R. B. v Gluck Brewing Co, 144 F. (2d) 847 ( C. C. A. 8) ; N. L. R B v. Poison Logginq Co., 136 F. (2d) 314 ( C. C. A 9 ) ; N. L. R B. v. Hudson Motor Car Co., 128 F. ( 2d) 528 (C. C. A. 6) , Wilson d Co v. N L. R. B., 123 F. ( 2d) 411 •(C. C A •8) ; N L. R. B. v. Star Publishing Co., 97 F. (2d) 465 (C. C A. 9) .22144 F. (2d) 847, 853 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) interrogating employees with respect to their union membership and i;;. affiliation ; and • - - (2) payment of bonuses to employees who passed the picket lines or performed the work of strikers during the strike of March to October 1945. 1 Interrogation of employees Counsel for the Board in complying with the undersigned's ruling to furnish a bill of particulars, stated orally on the record that the only agent who interro- gated employees was Francis Fuhrmann, head of respondent Warner's technical department. This refers to the case of Elmer Johnson, heretofore considered. Johnson was a welder, member of the IAM, who about May 29, 1946, was asked by Fuhrmann if he belonged to "1185". Later that day Johnson was laid off because of his membership. The undersigned has found above that respondent Warner discriminated against Johnson. However, the undersigned does not be- lieve that the query addressed to Johnson was a violation of the Act. Johnson was a welder, represented by the IAM for purposes of collective bargaining, although his work classification was not covered under the terms of the last contract in force between the IAM and respondent Warner. The Federal Union claimed jurisdiction over welders and the Alliance likewise sought to include them within its jurisdiction At this time, respondent Warner had determined, as fully set forth above, to lay off members of the IAM, because of the action of the Central Labor Council and the Alliance in declaring "hot" the work of the IAM. The regular machinist classification of such men as Warren, Lorenz and Davis was not doubtful. Johnson's classification as a welder may have been obscure and uncertain in view of the conflicting jurisdictions. Hence Fuhrmann's question was intended to ascertain whether Johnson's work was "hot" and hence banned by the action of the aforesaid unions. The undersigned is of the opinion that under these peculiar circumstances, this was not a violation of the Act. It is so found, and it will be recommended hereafter that this allegation of the complaint be dismissed. 2. Payment of bonuses The allegatin i concerning the payment of bonuses in derogation of employees' rights, raises for consideration the circumstances and events preceding and fol- lowing settlement of the 1945 strike. That strike, starting on March 12, 1945, was precipitated by Local 1421 of the Painters Union and supported by the CSU. Alliance locals and a vast majority of Alliance members continued to work during the strike pursuant to direction of International President Walsh. Some- time between October 15 and 24, 1945, while the strike was still in progress, the Executive Council of the A. F. of L., in meeting at Cincinnati, issued a Directive terminating the strike. The Directive islas follows : International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada-Brotherhood of Paint- ers, Decorators and Paperhangers of America-United Brotherhood of Car- penters and Joiners of America, et cetera. Hollywood Studio Union Strike and Jurisdiction Controversy. 1. The Council directs that the Hollywood strike be terminated immedi- ately. 2. That all employees return to work immediately. 3. That for a period of thirty days the International Unions- affected make every attempt to settle the juiisdictional questions involved in the dispute. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 497 4. That after the expiration of thirty days a committee of three members of the Executive Council of the American Federation of Labor shall investi- gate and determine within thirty days all jurisdictional questions still involved. 5. That all parties concerned, the International Allianc.; of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, the United Brotherhood of Carpenters and Joiners of America, the International Association of Machinists, the United Associa- tion of Plumbers and Steam Fitters of the United States, and' Canada,- the Brotherhood of Painters, Decorators and Paperhangers of America, the International Brotherhood of Electrical Workers of America, and the Build- ing Service Employees ' International Union, accept as final and binding such decisions and determinations as the Executive Council committee of three may finally render. Before issuance of the Directive and as part of the over-all undertaking in connection with it, the respondents, represented by Eric Johnston, agreed to accept the findings of the three-man committee and in the interim period all employees, including the returning strikers as well as those who had replaced them during the strike, were to continue on the job. Thus during this 60-day interim period while jurisdictional questions were being studied both groups of workers were to be paid 2' Immediately upon issuance of the Directive a controversy arose as to whether the replacements who had been hired during the strike were to continue to work in the studios in the jurisdictions of the striking Conference unions. The CSU claimed that the Producers could not work the replacements in the classi- fications formerly held by the strikers, whereas the Alliance insisted that the return of the strikers did not preclude the Producers' use of the replacements to the extent that they were needed in the same jurisdictions in which they had worked during the strike. The question arose then -whether the CSU's inter- pretation was correct or whether the Alliance's interpretation was correct. In order to settle this question of Directive application, a meeting was held with A. F. of L. President Green in Washington, D. C. The respondents were repre- sented by Johnston, Maurice B. Benjamin, an attorney, Mannix, of respondent Loew, and others. President Walsh represented the Alliance" As a result of the Washington meeting President Green issued the following release embodying the under- standing reached at the meeting WASHINGTON, D. C. October 30, 1945. It is definitely and clearly understood that all striking employees at Hollywood who were on call on March 12th shall return to work immediately. Each employee will return to the position he formerly occupied when the strike occurred. -a Brewer testified that this was part of the agreement "with the Producers Association " 24 Brewer , who did not attend the meeting, testified that President Hutcheson of the Carpenters Union attended the meeting and both Brewer and Sorrell testified that Presi- dent Lindelof of the Painters Union was present. Benjamin who attended the meeting did not mention either individual as in attendance and testified that no representative of the CSU was present 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Management shall exercise its usual prerogative as to assignment of em- ployees during the sixty-day interim period without interference on the part of the unions involved. The next day, October 31, 1945, the strikers returned to work. It was con- templated under the Cincinnati Directive that all workers-strikers and replacements alike-would be paid during the 30-day period during which the unions sought a solution of their jurisdictional differences failing which, they would be paid during the next 30-day period while the three-man committee studied the prol:lems and made it's findings which were to be "final and binding." In general, however, the respondent Producers in order to avoid friction did not work the replacement employees in the jurisdictions of the returning strikers. This created a bad situation with idle men on all the studio lots. Sometime around November 6, 1945, the respondent Producers agreed to pay off in one lump sum, for the entire 60-day period, all of the replacement employees and to have the replacements available on call thereafter if need arose. , So actually, as Brewer explained, the guarantee of employment for 60 days became in fact as a result of this application of the Directive, a "60-day severance." In addition to those who thus received the 60-day lump sum award, there was a large group of workers who were not working on October 31, 1945, in the' jurisdictions of the returning strikers This included, for example, prop makers and grips-members of regular studio crews-who during the strike went into the carpenter shop to do the work of striking carpenters but who prior to or on conclusion of the strike returned to their regular positions as prop makers and grips With respect to these workers Brewer testified : These men who had been doing that work. some of them a few clays, some of them most of their time, were frozen out of this field of employment by reason of this settlement, without any severance pay or any compensation for the loss or potential loss of employment. Therefore it was subsequently agreed that the severance pay which the producers had agreed to pay in Cincinnati would be applied to a payment for each of those workers who had worked some time during this period in the jurisdiction of these unions that had gone on strike for 15 days or more, a payment equivalent to $3.50 a day, and we considered that was compensation for their loss of employment in that area, which they had been more or less promised when they were asked to go in there and do that work. .The agreement for this payment was made between Y. Frank Freeman, of re- spondent Paramount, one of the Association's directors, and a member of the Labor Committee, and President Walsh and other Alliance representatives. No one man drew both the 60-day lump sum award and the $3.50 settlement However, some men who drew the 60-day lump sum, while on call from the studio making the payment, found work elsewhere and some of those who quali- fied for the $3 50 settlement, continued to be paid their regular wages as of the time they assumed their regular employment in their old classifications. At respondent Warner's several hundred employees drew the $3.50 settlement sometime in March 1946. There were certain individual applications of the foregoing types of payment which did not fit precisely within these broad classifications. But generally speaking , it is these two payments which the Board urges constituted a bonus payment for strike breaking and hence a violation of the Act. The 60-day lump sum award was part of the Cincinnati agreement which settled the strike, ASSOCIATION OF MOTION PICTURE PRODUCERS, INC: 499• although the form of payment took a turn different from that originally contem- plated by the settlement . At least the principle of payment for work to be per-' formed for the 60-day period was accepted . The dispute which then arose as a' result of the CSU 's insistence that the replacements not work in the jurisdictions' of the returning strikers , led to an unwholesome situation that was settled by paying off the replacements on the basis of the hourly rate for classification in which they had last worked. It is clear from this record and the undersigned is satisfied that the 60-day lump sum award arose out of the Cincinnati settlement It was made known to the workers about November 6, 1045,'for the first time and it was never prior thereto held out as a reward or inducement to any worker to act as a strike breaker 25 As for the $3.50 settlement , Brewer testified that under the Directive this payment was applied to the other groups of workers In the case of respond- ent Warner, payment was made in March 1946. Counsel for the Board urges in his brief that payment at this time was a deliberate move to reward workers for their past action in crossing jurisdictional lines and as a subtle suggestion that the same treatment would be renewed in the event of another strike, "that Respondents believed was imminent in the spring of 1946 " There was threat of another strike in March 1946, due to disagreement between the CSU and the respondent Producers , but to accept the foregoing theory is to draw as logical the conclusion that the $3.50 settlement, because of its timing , was intended both as a reward for past services and payment for future favors. Brewer also testified that the idea of the $350 settlement arose at Cincinnati rn October 1945 . Regardless of the time when the amount was fixed, there is no evidence in the record that at any time during the strike , any person was promised any money other than the regular amount due for work performed. To accept the Board 's theory again , it would be necessary to reject Brewer 's testi- mony that at Cincinnati an additional commitment was made to President Walsh that there would be a settlement to those workers who were dismissed after the question of jurisdiction was settled by the three -nnan committee . The exact terms of the settlement were not agreed upon at Cincinnati but the "overall commitment" was made at that time. In the undersigned's opinion the exact terms were those later worked out between Freeman and Walsh. Reviewing the record as a whole, the undersigned is of the opinion that pay- ments of the nature indicated above are not violations of the Act . The principle of payment was agreed upon at the time of the strike settlement , although some- what later the method and manner of payment was tailored to fit the occasion. There is nowhere any suggestion in the record that strike breakers were offered any other than their regular wages for work done or to be performed The 60-day lump sum award was caused by the position taken by the CSU, whereas the original intention had been to retain the replacements until the jurisdictional lines had been straightened out, but in no event longer than 60 days. The $3.50 settlement was worked out subsequent to Cincinnati , when the time and amount of payment were fixed . The timing of the latter payment lends some credence to the Board's theory that it was intended as an inducement to the employees to act as strike breakers in the event the threat of another strike became real. But in fact at the time there was no strike, and the undersigned is unable to accept the Board's theory in the absence of more compelling and persuasive proof. Kahane testified that these payments cost the 10 respondent Producers about $7,000,000 500 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned is of the further opinion that there is no reliable, probative or substantial evidence that payments of the kind here made were violations of the Act. It is so found and it will he recommended hereafter that this portion of the complaint be dismissed. E. The refusal to bargain collectively 1. The appropriate unit A. Before the strike The complaint alleges that a unit composed of all employees of the respondent Producers "in the following classifications: precision machinists (camera), ma- chinists (journeymen), automotive mechanic, automotive gang boss, machinists helpers, apprentice machinist, machinist gang boss (journeymen), machinists sub- foreman or keyman (journeyman) and machinist foreman, exclusive of all other employees," would insure to such employees their full right to collective bar- gaining and otherwise effectuate the policies of the Act. The answer averred that the respondents were without knowledge as to the appropriateness of the aforesaid unit. Much evidence was introduced designed to show the uncertainty of this unit and that a finding that it was appropriate without determining whether it includes or excludes other categories of employees, would "result in continuation and aggravation of the jurisdictional dispute existing between [Alliance] and the International Association of Machinists " The IAM started to organize the studios in 1936, at which time it was affiliated with the A. F. of L. In 1937, with the help of the Teamsters, the first contract was executed between IAM and eight of the respondent Producers herein. Casey represented the Producers in the negotiations and the IAM was represented by D. T. Wayne. This first contract effective July 1, 1937, provided that on and after that date, "all Machinists, Machinists' Helpers and Machinist Apprentices shall be members of Machinists' Studio Local No. 1185. . . . ' The contract covered wage scales for precision machinists, journeymen machinists, machinists' helpers and machinists' apprentices. The contract contained these two pro- visions : The studios' present policy of operation shall continue to prevail, and-in the event any question of jurisdiction should arise between the Machinists and any other International-such question shall not become cause for inter- ruption of service or studio operation, and shall be subject to adjudication between such Internationals concerned. The provisions of this Agreement are predicated upon the understanding that the Machinists' Studio Local No. 1185 is a part of the International As- sociation of Machinists, an affiliate of the American Federation of Labor and that upon any change in such status, the Producer shall have the right to cancel this agreement. Wayne, IAM's business representative from 1937 to January 1946, and at the time of the hearing a precision machinist, gave the following description of the work in the classifications covered under this contract : Precision Machinist.-One "who is required to make, maintain, repair and service camera projectors, cutting and recording equipment, printing equip- ment, and other similar types of technical film processing equipment, num- bering machines, all of which are peculiart',to,the motion picture industry. A ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 501 precision machinist works on cameras, printers , projectors and film processing machinery. Journeyman Machinist.-One who "does general maintenance work of physical equipment of the studio , as well as any other work on parts that have to be machined or are to be machined or fitted for some use around the studio, and has a general knowledge of how to perform that work on call." A journeyman does general machine shop work. Machinist Helper-One who assists "machinists around the machine shop in handling anything too big for one person to handle, and where no skill is required. .. . s Re On January 9, 1940, Tuohy of the Teamsters advised Wayne in a letter state- ment that the Teamsters made "no claim whatsoever on automobile mechanics," and that its demands of the Producers excluded from coverage garage employees who performed "actual mechanical repairs." Up until that time automotive mechanics were members of the Teamsters . On July 1, 1941, Casey" notified all studios that on and after that date all automotive mechanics employed by the studios "shall be members" of the IAM and the wage' scale in the agreement then in force was modified to cover the classification of automotive mechanic 2T This modified agreement continued in existence until superseded by one executed in May 1942. The 1942 agreement was negotiated by Casey and thereafter separate contracts were executed between the IAM and individual producers. This contract, dated April 29, 1942, remained in effect until January 1 , 1944, and was thereafter, by oral agreement , extended to March 1945 . 28 In this contract, there was included within the covered classifications, for the first time, machinist gang boss, ma- chinist sub-foreman or keyman, and machinist foreman, in addition to those clas- sifications covered under the prior contract . The agreement provided that the Producers would employ in the classifications set out in the attached "Wage Scales and Working Conditions . . . only workers who are members in good employment standing of the Union , and the Union will furnish competent men to perform the work and render the services required by the Producer under the provisions of this agreement ." There was no provision therein, as there was in the prior agreement , giving the Producer the right to cancel upon the IAM's dis- affiliation with the A; F of L. In March or April 1944; in negotiations between the IAM and the Producers, it was agreed to include the classification of automotive gang boss in the bargain- ing unit. Wayne described these additional classifications as follows : Machinist foreman-". . . a department head , who is not required to handle the tools of the trade , and is on so-called weekly call, or on call most of the time, and is a flat-rate man rather than working by the hour." Machinists sub-foreman or keyman- "In the so-called camera or precision machine shops, or where the precision machinist operates , quite often there will be one man who is a leadman, or who is in charge of certain types of equipment , and they have three or four other people working with them, 26 Wayne had no knowledge of apprentice machinists being employed 27 Wayne described an automotive mechanic in the industry as one "who is familiar with and skilled in the building , repairing and changing of all automotive equipment, such as trucks , busses, passenger cars, motor boats . . . all internal combustion engines, as well as welding and everything else that is required on those types of equipment" 28 This contract was in force between the IAM and respondents Republic , RKO, Loew, Warner, Twentieth Century, Paramount , Universal , and Columbia and Samuel Goldwyn Studios. - i1 `4+ 809095-49--vol 79-33 502 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he is virtually a gang boss or a gang leader ., He gets an increased rate of pay . . . for his services of leading the crew or groups." Automotive gang boss-Leads "the gang, possibly passing out the work in the absence of the foreman , and generally being a subforeman or straw boss." The 1942 contract with its classifications as extended , was in existence almost 3 years up to March 1945, when the strike started. During that time it is clear, in.the undersigned's opinion, that ,the contracts functioned reasonably well with no insurmountable problems which rendered the unit either unworkable or unfit. It is likewise true that within the same period of time, some difficulties did arise, principally over the conflicting contentions of the Alliance and IAM on machine work in connection with prop making and the servicing of cameras and camera equipment. For example, according to Brewer, prior to May 1, 1945, the only local of the Alliance which claimed the right to represent machinists was Local 44, which contended;that machinists performing prop work were within its jurisdiction . But the only serious dispute, he testified , concerned five em- ployees in respondent Loew's prop shop who, because they used ' lathes and planing machines, were claimed by the IAM 29 Brewer testified further that during the life of the 1942 contract , there was in existence an agreement between the Alliance and other A. F. of L. unions, not to take into membership employees doing work under the jurisdiction of other unions. - Duval was unable to describe each job over which he claimed jurisdiction. He testified : they are too numerous , and they vary constantly . You understand making of equipment for special effects involves rain, wind , fire, snow, water- falls, and so forth . They are constantly perfecting new methods of getting the desired effect. The list of properties and the amount of work done on them and the classification of work is just too long to even try to catalog. Each day there is a new prop . The last time we were in with the Producers in illustrating the work of a prop maker , I mentioned that now an atomic bomb had become a prop, which made quite a laugh. It-was only a matter of two months after that, that the boys were making atomic bombs, or the replica. He testified further that Local 44's claim did not rest on where the prop was made or the machinery used but on the fact that his local makes and operates all props. The following illustrates the nature of the running dispute between the Alliance and the IAM : the Alliance claimed jurisdiction over repair work on a lift at respondent Loew ; fabrication of steps for a railway car of foreign design at respondent Columbia ; machine work on a water dump , tank at respondent Warner, all of which work at the time the claims were asserted was being per- formed by IAM members. Admittedly these disputes exist and have existed, yet by and large the record seems clear that up to the time of the strike , the last LAM unit agreed to, served with reasonable certainty between the parties despite assertions of competing 20 Duval, business representative of Alliance Local 44 testified : "A prop is anything that goes into a set, other than the four walls, the floor and the ceiling Anything that is used to decorate a set , that is a prop ; and it is our duty to build them , along with the miniature. A miniature is anything that is " built at a reduced scale. That is our jurisdic- tion. Regardless of the material used or, how constructed , it is our jurisdiction to build it." He acknowledged that differences arose from time to time between his local, the Producers and other unions as to what is a prop. This is understandable in view of Duval 's definition ASSOCIATION OF -MOTION PICTURE - PRODUCERS, INC. 503 unions. The IAM had never sought inclusion of operators of cameras, printing equipment and splicers or jurisdiction over employees who make normal adjust- ment of equipment or apparatus and had not asked to include those who had serviced and operated special effects and props 90 Apparently without any un- toward results, the IAM also was recognized as bargaining agent for typewriter, sewing machine and bicycle mechanics wherever such positions existed. Wayne testified that he knew of no instance where Alliance members refused to, operate ,or use equipment made or remodeled by IAM members during the period he served as business representative. Nor had the Teamsters at any time in the period after their relinquishing jurisdiction over auto mechanics and up to January 1946, made any attempt to recover this classification. b. Unit contentions follow4ng the strike , The strike of March 12, 1945, gave rise to innumerable problems, not the least of which was who would perform the work in the classifications vacated by the IAM members. This did and does not mean that the unit was artificial or in- expedient. It meant that the Alliance and other unions opposed to the CSU now sought to cover all jurisdictions and stamp out inter-union competition and strife. It will be recalled that prior to March 12, 1945, the Alliance had no local for machinists. But about May 1, 1945, Alliance Local 789 was established to fill those jobs. In all, it had about 275 members working in the studios as machinists, auto mechanics, and in other classifications. It ceased to function about the time the strike ended. In addition, during the strike members of Local 44 or its per- mittees did machinist work in the classifications covered by the IAM contract. The settlement of the strike and the suspension of the IAM from the A. F. of L. intensified the desire of the non-Conference unions to retain their hold on the IAM job classifications that they had filled during the strike. For example, the decision of the three-man Executive Council Committee of the A. F. of L., on "Hollywood Jurisdictional Controversy," dated December '26, 1945, was interpreted by the Alliance to give it "large groups of machinists." The Alliance demanded that it be recognized as representative of those em- ployees who serviced the cameras, and who according to Brewer were classified as precision machinists. It asked also for the men who did machine work on props. Brewer made the nature of the Alliance contentions as to the unit, very clear in a meeting he had with the Labor Committee in February 1946. He testified : There were two questions at issue. No. 1, what was the status of the Machinists' problem with respect to their affiliation and their withdrawal from the American Federation of Labor. And 2, what, if any, of that type of machine work did the directive °' grant the Machinists. I made the-point that under this directive the matter of servicing cameras, certainly, was not given to the Machinists. That the principle which had been laid down in *the directive, that the I. A. men should service their own equipment and do the running repairs on their own equipment, certainly should apply to cameras. That most of the work on cameras was a servicing job and not•a manufacturing job, and that the only thing that the directive 80 In a few "unusual" instances, IAM members have built mechanical props such as a horse and octopus. °° Brewer by use of the word "directive" referred to the above-mentioned decision by the Committee appointed to render " final and binding" decisions on the "Hollywood Jurisdic- tional Controversy." 504 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD o could possibly be interpreted to be giving the Machinists, was the manu- facturing job in relation to that work that all of the servicing work belonged to the I. A. unit. Q. (By Mr. MITCHELL) What did you ask the producers to do about that, if anything? A. I asked them to recognize that and put-let the I. A. men who had been taken off that work be put back on it. Q. Did you tell the Producers what unit you claimed that work belonged in? A. Yes. I said it was a part of the cameramen's unit. Q. At any time during the spring of 1946, were you present at any dis- cussion of the matter of machine work on laboratory equipment? A. Yes, at the same,-I think it was at the same meeting that was dis- cussed. The same general points were made, that the maintaining of labora- tory equipment was basically a servicing job. It consisted of oiling and sometimes wiping the equipment 'down. It is'purely a day service, job and generally the directive recognized the right of'our crafts to service their own equipment. That the manufacturing job again was the only job which was specifically set out as belonging to Machinists. And that this was not a machining job, it was a servicing job, and therefore should be included in the laboratory unit.... . Brewer testified further that prior to the issuance of this decision, in some studios the work of servicing cameras and equipment had been done by employees classified as precision machinists. It is understandable that a free interpreta- tion of the word "servicing" to permit more than normal adjustment for satis- factory operation, would conflict with the work of an IAM member classified as a precision machinist. Commencing in January 1946, the Teamsters demanded of the Labor Committee representation for the automotive mechanics' Its last contract, however, exe- cuted in September 1946, did not include auto mechanics. -Furthermore, despite their claim, Shiffman representing the Federal Union, sought recognition for auto .mechanics, as well as machinists, welders, and molders. The conflicting claims of the Federal Union, the Alliance, and Teamsters represent one aspect of this jurisdictional controversy. On the other hand, the IAM's demands as opposed to those of the other unions rested upon formal agree- ment of prior years. Hence, where a prior contract does define an inherently appropriate unit, the bargaining history should be accorded controlling weight $3 Furthermore, where the dispute as to unit centers around so-called "fringe groups" rather than, as in this case the basic group of machinists, the Board has followed the policy of adhering to the unit outlined in the prior collective bar- gaining contract 34 Before the strike of March 12, the contractual unit func- tioned After the strike the unit became subject to attack not so much because of inappropriateness but because competing unions were resolved not to relin- quish the advantage the stake gave them of filling the IAM jobs in the unit classi- 32 This demand rested on two grounds : (1) Some drivers wanted inside garage mechanics fobs , and (2) the strike of March 1945 had thrown some Teamsters out of work and they were determined to avoid similar crises in the future 33 Matter of Screpto Manufacturing Company, 65 N. L R B 222; Matter of Cobbs and Mitchell Company, 65 N L R B. 488; Matter of City Lines of West Virginia, Inc, 66 N. L R. B 904,; Matter of Quincy Lumber Company, 67 N. L R. B. 1119; Matter of Ludlow Manufacturing and Sales Company, 67 N L. R. B. 954. 34 Matter of Fairbanks, Morse & Co., 66 N L. R. B. 673. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 505 fications. Thus basically the problem became and remained as to what union or unions could claim to represent the employees in the contractual unit. The unions opposing the TAM and seeking to upset the unit did not feel sufficiently strong to test this question by petition. The undersigned sees no reason to depart from time tested achievements and disturb, because of unsettled claims to job rights, a unit established by the parties.' The undersigned is convinced that with tolerance, reasonableness in interpretation and the give and take necessary to accomodate conflicting view- points, the unit herein sought will function in a manner satisfactory to all con- cerned In view of the above and the record as a whole, particularly the bargaining history between the TAM and the Producers from 1937 to 1945, the undersigned is of the opinion that the employees engaged in the work in the unit classifications establish a definite group possessing a community of interest such as to warrant a finding that they constitute a unit appropriate for the purposes of collective bargaining. The undersigned therefore finds that a unit composed of all employees of the respondent Producers in the following classifications: precision machinists (camera) ; machinists (journeymen) ; automotive mechanics, automotive gang boss, machinists ,helpers, apprentice,, machinist, machinist gang boss (journey- men), machinists sub-foreman or keyman (journeyman) and machinists fore- man, exclusive of all other employees, at all times material herein, constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the TAM of a majority in the appropriate unit The complaint alleges that prior to February 28, 1946, and at all times there- after, a majority of the employees in the unit found appropriate, designated the TAM as its representative for the, purposes of collective bargaining. The respondents in their answer disclaim any knowledge of these facts. The question of the IAM's majority was not seriously questioned at any time during, the,protracted negotiations between the parties, during the hearing or in briefs submitted to the undersigned. Indeed in its brief the respondents urge that at all times prior to July 2, 1946, the respondent Producers recognized the TAM, "as the collective bargaining agent of machinists employed in job classifi- cations," in the unit found to be appropriate above. Differences between the parties arose not over the majority question but over other matters to be discussed hereafter. The last contract in existence between the TAM and the Producers provided that the Producers would employ in the unit classifications "only workers who are members-in good employment standing of the Union, and the Union will furnish competent men to perform the work and render the services required by the Producer." This agreement was extended orally to March 1945. Thus it is hardly arguable that up to the start of the strike, the IAM's majority was in question. On termination of the strike, all TAM members returned to work. According to the uncontroverted testimony of TAM Business Representative Stehr, between October 31, 1945, and March 25, 1946, the only members of the TAM were employed in the classifications covered in the IAM's last contract. On that latter date, at the Federal Union's insistence some 35 members of the Federal Union were given machinist jobs. 35 See Matter of C. J. Petersen and C F. Lytle, d/b/a Peterson & Lytle, 60 N. L R B. 1070. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was introduced in evidence a pay roll of the machinists employed as of June 10, 1946, in the classifications covered in the unit found to be appropriate above, as well as an addendum to that pay roll, explanatory of the names on the list. The undersigned has relied on these two documents as well as testimony of respondents'. witnesses in calculating the majority question and -has reached the conclusions set forth in the following table : A B C D E Total No. of names on list On leave of plus those IAM members absence since Others at Respondent producer added based at work on Dec. 29, 1945 and not at work on on credible 6-10-46 work on 6-10-46 testimony of 6-10-46 witnesses Goldwyn--------------------- 9 5 2 2 Republic---___--'-------------- 12 7 4 1 Loew------------------------- 89 32 26 31 Columbia- --------------- ----- 35, 22 11 2 _ 1,oach------------------------ , 13 3 ---------- 10 Warner --------------- ------- er 89 52 27 10 7 20th y ----------------- - 47 32 8 7 Paramount------------------- 73 41 29 3 Universal--------------------- 29 25 ----------- 4 RKO------------------------- 40 14 ---------- 26 436 233 107 96 Number on leave of absence on June 10, 1946----------------------- 107 Names on pay roll on June 10, 1946------------------------------- 436 'Number working on June 10, 1946 (C+E) -------------------------- 329 Members of IAM at work on June 10, 1946------------------------- 233 In -arriving at the above calculations the undersigned has disregarded the fact that a certain number of the names counted in Column B were, after June 10, 1946, removed from on-leave status and restored to active work. This fact would not disturb the IAM's majority. Likewise disregarded is the testimony of Shiffman concerning some 49 individuals , who he claimed were all Federal Union members,, but on leave of absence on June 10, 1946, and who should be. included as employees in the unit. This is based on Shiffman 's idea of the unit which would include blacksmiths , molders, welders and even prop makers who worked as machinsts during the strike. These latter additions are rejected also because they rest on the uncertain employment status arising out of an agreement made sometime in January 1946 , between the Labor Committee and Shiffman, that individuals supplied by him to take the jobs of striking machinists would be given an indefinite leave of absence without pay. At this time some of these individuals were members of Cinetechnicians Local 789. Apparently part of the undertaking with the Labor Committee was to continue this indefi- nite status until certain questions of jurisdiction could be solved . Those problems still remain open and the status of such individuals is no more certain now than it was in January 1946.8 The undersigned has, however, included in the sa See opinion of Judge Learned Hand In N. L. if. B. v. Remington Rand, Inc., [94 F. (2d) 862, 871 ( C. C. A. 2)]: "It is of course true that the consequences [ of a strike] are harsh to those who have taken the strikers ' places ; strikes are always harsh ; it might have been better to forbid them in quarrels over union recognition. But with that we have ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 507 tabulation above, those 35 members of the Federal Union who were given employment in March' 1946. The undersigned finds that on February 28, 1946, and at all times thereafter, the IAM was, and now is, the duly, designated gepresentativeLof'the majority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (,a) of the Act; the IAM at all times was, and now is, the representative of all the respondent Producers' employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment or other conditions of employment. 3. The refusal to bargain a. Chronology `of events The complaint alleges a refusal to bargain commencing on or-about February 28, 1946, and in addition that on or about April 17, 1946, all of the respondent Producers declared they would not negotiate a closed-shop contract with the IAM.- The; answer denies, both and avers, that by reason of the conflicting claims of the various unions herein as to the "appropriate collective bargaining unit," the respondent Producers (other than Goldwyn) filed an RE petition on June 25, 1946, seeking to have the Board determine the name'or names of bargaining representatives. The answer further sets forth that on July 2, 1946, it was agreed between all respondent Producers and the-unions, including the IAM, that the unions would abide by the Board's decision in the representation case and pending that decision the respondent Producers would not recognize or bargain with the IAM or other competing unions. In January 1945, the IAM's 1942 agreement with the respondent Producers was extended and at the outset of the strike on March 12, the parties had been operating under oral extensions of the contract while negotiating for, a new one. There is no evidence concerning the scope of the oral extension but the 1942 agreement did provide for exhaustion of grievance procedures before any inter- ruption of work occurred. As heretofore indicated, members of the IAM absented themselves from work in support of the strike of Local 1421. On April 5, 1945, Casey, on behalf of respondents Columbia, Loew, Paramount, RKO, Republic, Twentieth Century, Universal, and Warner, and Samuel Goldwyn, sent the IAM and its International office in Washington, the following wire : The undersigned producers" hereby rescind and terminate the collective bargaining contracts now in effect between the undersigned producers and your union . Such action is taken by us by reason of your breach of your obligations under such contracts and the failure of your members to perform their services in accordance with such contracts. Before continuing with the sequence of events, some consideration is required of the CSU practice in bargaining with the Labor Committee and the Producers. The CSU is a confederation of studio unions, all of whom, with one exception, were at the time of its creation in 1941, A. F. of L. affiliates." Herbert Sorrell, nothing to do; as between those who have used a lawful weapon and those whose protection will limit its use, the second must yield ; and indeed, it is probably true today that most men taking jobs so made vacant, realize from the outset how tenuous is their hold." 17 One local of the Alliance, 683, the Film Technicians local, was or is affiliated with the CSU. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - business representative of Painters Local 644, has been president of the CSU' since 1941; D. T. Wayne of the-IAM, vice president," and' Carl Head, also of Painters Local 644, secretary-treasurer. Sorrell is the dominant figure and spokesman of the CSU. In meeting with the Producers, he and a CSU committee, representative of its affiliates, deal with the Producers on general subjects that affect all of its members. Sorrell never negotiated a contract for any union in the absence of a representative of that union. Individual contracts are executed by and between the Producer and the Union. Under the IAM constitution only its members can approve a contract. About October 25, 1945, a CSU committee including Sorrell, met with a com- mittee of the producers to discuss the return to work of the strikers. According to Sorrell it was there agreed that the returning strikers, including IAM members, would go back to work "under the terms and conditions of the written contract" that had existed prior to the strike. Kahane testified that the Producers agreed to reinstate the old wage scales and, working conditions but refused to reinstate the contracts. Whether this conflict arises over a failure to distinguish between a formal reinstatement of an entire written. contract and just compliance with its terms and conditions is'immaterial. It is,,clear that the, wage scales, and working conditions that existed prior to the strike and which had been fixed by, contract were reinstated and the parties shortly thereafter set about negotiating for new contracts to cover the CSU.unions. .In the 60 days following the return of the strikers to work, there arose the problems discussed above under the subject of the bonus. Shortly thereafter, when under settlement provisions the replaced machinists were to be re- moved from the pay roll, Shiffman and Brewer succeeded in obtaining from the Labor Committee a commitment that the replaced machinists, members of Cine- technicians Local 789, would be granted an indefinite leave of absence. Juris- dictional problems had not been settled by the three-man committee appointed by the A. F. of L. Executive Council. At or, about this same time the Teamsters also served demands that automotive mechanics be included as part of the Team- sters Unit 98 On February 4, 1946, Sorrell sent the Association the following telegram : The Conference of Studio Unions on behalf of its Affiliates demands that immediate negotiations be initiated and contracts signed by February 16. 1946. It is requested that time and place for initial meeting between respec- tive representatives be set immediately. Pelton replied on February 6: that the respective studios that are members of the Association of Motion Picture Producers, Inc., are prepared to negotiate with the several unions, on whose behalf your wire was sent who are entitled to such nego- tiation. However, in conformity with our practice, such negotiations should be conducted separately with each union.' In order to facilitate these nego- tiations, we suggest that each union submit, in writing, its proposals, so that they may be considered in advance of meetings. Upon receipt of such proposals, meeting dates will be suggested and arranged. 38 This matter of coverage for automotive mechanics was discussed thereafter on five or six occasions between the Labor Committee and the Teamsters At the end, the Teamsters were informed that since the matter was now before the Board on the Producers' petition filed June 25, 1946, it would not be discussed The last Teamsters' contract, executed in September 1946, did not cover in automotive mechanics. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 509 Sorrell answered on February 7 that Pelton's proposals were unacceptable and demanded on behalf of the CSU to meet "collectively for the purpose of negoti- ating.an-interim agreement for each and every one of its affiliated unions to be signed no later than February 16." Sorrell testified that in sending the telegram he meant that he' "wasn't going in alone for the Painters. D. T Wayne wasn't going in alone for the Machinists. Skelton wouldn't go in alone for the Carpenters. We would go in together.and negotiate an agreement . . . We would negotiate agreements collectively. . . :. Kahane in reply to this'latest move telegraphed Sorrell on February 8, that : a committee consisting of Byron Price, E J. Mannix, Clifford Work, Frank Freeman and B. B. Kahane, representing the respective studios who are members of the Association of Motion Picture Producers, will meet with your committee at the offices of the Association on Monday, February 11, 1946 at two o'clock p. m. . . .39 Pursuant to this latest exchange of telegrams, a full committee of the CSU, including Stehr of the IAM, met on February 11 with the Labor Committee. Sorrell was the CSU spokesman and presented to the Labor Committee the fol- lowing proposal for a 90-day interim agreement, commencing February 18, 1946: 1. Return to thirty-six (36) hour work week with maintenance of present "take home" pay for forty-eight (48) hour work week, with pay'increase retroactive to January 1, 1946, for the following unions : * * * * * * Studio Machinists Local 1185 * * * * * * * 4. . . ,, the Producers shall extend the last contracts in effect with the following unions : * * * Studio Machinists Local 1185 * * * * * * * 5. Contracts effective January 1, 1946, for the unions listed in 1.... above shall be negotiated during the ninety (90) day period commencing February 18, 1946. 6. Contracts negotiated during the ninety (90) day Interim period shall supersede the Interim Agreement and be-retroactive to January 1, 1946. * * * * * * * The above proposals were not discussed because, according to Sorrell, the Pro- ducers insisted that conditions of work be negotiated before taking up the ques- tion of wages. Sorrell acceded to this position. Sorrell testified : "We discussed Machinists just the same as we discussed Carpenters, Painters, and others. We discussed them all. There wasn't any doubt about them [Producers] bargaining for the Machinists There was a doubt . . . about . . . the Office Workers." Apparently at the meeting the CSU had made as a condition of further negotia- tion, the Producers' recognition of the Office Employees Guild at a time when the Producers were of the opinion that a majority of Guild members had changed "Price was Chairman of the Board of the Association , Mannix represented respondent Loew, Work, respondent Universal, Freeman, respondent Paramount ; and Kahane, the committee chairman , respondent Columbia. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliation. Accordingly that day, Kahane sent Sorrell a lengthy telegram that' the Labor Committee could not negotiate with the CSU if the afore-mentioned' -condition was imposed for the Office Employees Guild. The telegram concluded:' In our , conference you, further indicated to us that the observance by the Carpenters and Painters of the arbitration award , made by the corn- mittee appointed at the Council of the American Federation of Labor, would be conditioned upon our agreement to changes in wage rates to be paid to those crafts.- Since all parties involved including the unions you represent; agreed unconditionally to-accept and abide by the award of this committee, we believe we are entitled to complete an unconditional agreement by all crafts to observe that directive. We request such assurance . If agreement can be reached upon the matters above set forth, we will take up negotiations with respect to any proposal as to working conditions and wage rates. We trust that we can clear these preliminary matters and continue toward a successful conclusion of negotiations. Sorrell answered Kahane's telegram the next day by reiterating that an interim agreement be negotiated for all CSU affiliates by February 16; insisting on rep- resenting the Office Employees Guild until there -had been a legal change in the bargaining representative of those employees ; and stating with reference to the A. F. of L. Directive on jurisdiction , that the CSU was "anxious" to work out an agreement to prevent further work stoppages which could be accomplished by further negotiation . Kahane replied that same day that the Labor Committee would resume discussion with the CSU on February 14. On February 12, Shiffman likewise wired the Association , asserting that Al- liance Cinetechnicians Local 789 had a "majority" of employees employed as machinists in the industry ; protesting the right of the IAM to represent ma- chinists and demanding recognition as the bargaining agency for machinists in the industry "as represented by your Association ." The Labor Committee met with Brewer and Shiffman on these demands and after issuance of the Federal Union's charter in March, a compromise solution was achieved by the hiring of 35 members of the Federal Union. The CSU representatives met with Producers ' representatives on February 13 and 14. Matters relative to all affiliates were discussed . At one of these early meetings at about this time, Producers ' representatives stated that because the IAM had been suspended from the A. F. of L. they could not negotiate with the IAM. Sorrell replied pointedly : "No deal for the Machinists , no deal for anybody," and prepared to leave the conference. The Producers, after further consideration, decided to "go along on the Machinists ." Other than this, there was no particular reference to the IAM. Matters common to all the contracts were being considered and the vexing problem of the Office Employees Guild seems to have occupied much time of the conferees . On February 15, Kahane wrote Sorrell recalling an agreement at the February 14 meeting that Sorrell would submit the CSU's position on (1) office workers, (2) observance of the terms of the arbitration award, and (3) negotiation of working conditions con- temporaneously with discussion of wage demands. The rest of Kahane's letter is set forth : You have now submitted your reply which we quote, and to which we set forth our position : (1) As to Screen Office Employees Guild, you state "Conference will deal for S. O. E. G. at Goldwyn and Technicolor and that status quo is to be ASSOCIATION OF- MOTION, PICTURE PRODUCERS, INC. 511 maintained at all other studios until the N. L:•R. B7 has dealt with the,unfair labor practices." Since as you are aware the pendency of unfair labor practice charges prevents any N. L. R. B. election , which would enable office workers to make a free choice of bargaining representative , your proposal completely negatives .the right of these employees to choose their own bargaining representatives. As we have pointed out to you our employees in this category have heretofore designated, and legally still have bargaining representatives . We will not engage in any negotiations with you affecting those workers unless and until you are legally designated to represent them . Until you are so chosen, we .must recognize and carry out our obligation under our existing contracts. (2) As to the jurisdictional directive of the Committee appointed by the Council of the American Federation of Labor you state: "Conference will assure the Producers that we will not participate in any strike against the directive of the three man committee." We have asked for a definite agreement on the part of each union that it will carry out the terms of that directive , irrespective of the outcome of any negotiations in which we now engage. We request such agreements as a preliminary to further discussion of other issues between us . We are com- pelled to ask a direct agreement by each union as to this matter , as we feel that any action by or resolution of the Conference of Studio Unions is in- effective for this purpose. (3) As to our request that working conditions be negotiated prior to our discussion of your wage demands, you have replied : "That we re-iterate our demands that we enter into immediate wage and interim agreements and that working conditions be worked out during the three month interim period." You have demanded wage increases as an interim matter and the later negotiation of changed working conditions , which obviously will again affect such increased wage scale. As we pointed out to you yesterday, it is entirely impracticable to negotiate wage increases in advance of and separate from negotiation of working conditions . We, therefore, must again repeat our request that the negotiations must first cover working conditions and that any contract we enter into must be an entire agreement covering both working conditions and wages. Your demand for a 50% increase over the present basic wage scale, which already is generally higher in the motion picture industry than in other in- dustries in this area , is unreasonable and unjustified. In conclusion, may we point out that upon the satisfactory disposition of the matters herein referred to, we are willing to negotiate the matter of wage increases. Sorrell met with the Labor Committee on February 16. He testified, that at this meeting "the Producers convinced us that . . . they were anxious to con- summate a deal, and that they were sincere, and that we could work . . . the situation out without having to strike, ..." At this meeting it was agreed to start work on a uniform cover sheet covering general conditions applicable to all Conference unions; then to take up the individual union problems and settle the question of wages. After February 16. Sorrell was ill and occupied with other matters. On March 24, Sorrell wired Kahane that nothing had been accomplished in contract. nego- 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiations to date, "because of your failure to bargain.in good faith." He demanded "joint negotiations for an immediate 'w"age increase." ' Kahane answered on March 25, in the following telegram : We are at a loss to understand the statement in your telegram today that the Producers have not bargained in good faith. We have met with your committee'whenever you requested and have discussed the various problems presented. The delay in the negotiations had been largely caused by your absence and your inability to meet on account of your health and trial involvements. It was agreed that all of your locals were to negotiate .working conditions prior to wages: As of March 20, 1946, the Readers and Local 1421 are the only locals who have presented proposals on working conditions. We are now negotiating with both locals Progress can be made only if we meet We are ready to resume meetings whenever you desire. We suggest that you arrange a program of meetings to continue the negotiations. The parties resumed their meetings on April 3. Stelir had in the meantime protested the hiring on March 25 of the 35 members of the Federal Union, but he was told there was nothing that could, be done about it. Sorrell wanted to strike when he heard of the incident but apparently dropped such action when he was informed that the IAM was going to file charges with the Board 4° At the April 3 meeting, Kahane stated that the Producers "could not negotiate a union shop or closed shop" with the IAM" Sorrell testified, "I made the re- mark that open shop for one was open shop for all, and we walked out." On April 17, the respondent Producers sent the following wire to A. F of L. President Green and International Presidents L. P. Lindelof, of the Painters, W. L. Hutcheson, of the Carpenters ; and Edward Brown, of the Electrical Workers : 42 According to the Hollywood trade papers Herbert K. Sorrell telegraphed you on Monday night that "because of the Producers' avowed open shop policy and steadfast refusal to sign contracts, Painters Locals 644, 1421, 1488 and Studio Carpenters, Electricians and Machinists have all taken over- whelming strike votes. .- . . We request your immediate sanction for such strike action if necessary." Mr. Sorrell's charge is without foundation. The Producers have not proposed an open shop policy in the motion picture industry. They have been and now are ready to negotiate closed shop contracts with the Painters, Carpenters, Electricians and other American Federation of Labor Craft unions which have heretofore had closed shop contracts, and union shop contracts with the unions and guilds with whom they have heretofore had such contracts. The one necessary exception to this policy has been created by the with- drawal of the Machinists Union from the American Federation of Labor and the issuance of a Federal Charter to Machinists in the motion picture industry by the American Federation of Labor. . . . We have been advised -by the Central Labor Council and the Building Trades Council here that the American Federation of Labor Federal charter union is the only accredited American Federation of Labor union for machinists in this industry. Under 40IAM filed charges alleging violation of Section 8 (1) and (3j of the Act on April 12. 43 Sorrell was not certain that Kahane coupled "union shop" with "closed shop " He acknowledged that he might be mistaken 41 The telegram was published in full in Daily Variety of the same date. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 513 these circumstances we cannot discriminate against this American Federation of Labor Union by denying employment to machinists who are members of that Union. Mr. Sorrell claims a "steadfast refusal to sign contracts." There has been no such refusal. The only demands made upon us have been for what amounted to a general 50% wage increase. Nor was there any presentation of, or opportunity to negotiate, the other elements which would be a n>cessary part of any contract. The negotiations were broken off by Mr. Sorrell and not by the Producers, who stand ready to resume at any time. Sorrell, not to be outdone, followed this up with a telegram of equal length addressed to the same parties. This telegram read in part as follows : In double page newspaper advertisements today, Motion Picture Producers reprint a telegram assertedly sent you, and charge Hollywood unions now asking International sanction for strike action with misrepresentation of the, facts. We emphatically object The open shop policy in question was announced night of April 3, 1946, by B. B. Kahane, vice president Columbia Pictures and chairman of Producers' Labor Committee, in presence his committee and eleven Hollywood business agents. Policy was to apply to Local 1488 of the Brotherhood of Painters; Decorators and Paperhangers of America. We refused to discuss it, or open shop for any union. We still refuse. Machinists were not mentioned at this meeting. On April 9, following fuller -exposure of their plans, Producers publicly stated they had no open shop intentions, but went on to add, Quote In a few instances the studios are unable to grant a closed shop, end quote. This contradiction, coupled with a long, deliberate stall in negotiations, we also exposed. We think this makes their position clear. They have now apparently retreated to safer ground, thanks to strike votes and international support. We welcome the change, and have repeatedly advertised we will never strike for anything which can be won by honest arbitration. But situation remains the same until they make good on assurance and International sanction for strike action, if necessary, continues important. You may also want to know Producers are citing a recently issued Federal Charter for Machinists as excuse for disregarding the December 26, 1945 ruling of the A. F. L. Executive Council's special committee,on Hollywood jurisdiction, which the Federation issued at the specific request of the industry.49 President Green replied in a'telegram sent April 18, and which is reproduced herein : Producers at Hollywood have advised me that they will sign a closed shop agreement with Painters Carpenters Electricians Plumbers and other unions for membership of said Unions at Hollywood. A Federal Charter has been issued to Machinists at Hollywood. All Machinists employed at Hollywood are eligible to membership in Federal Labor Union. International Associa- 43 Sorrell testified that on April 3, Kahane said the Producers would not negotiate a .closed shop with the IAM In -the telegram herein, Sorrell stated "Machinists were not mentioned at this meeting," and that the open shop policy applied to the Painters. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `tion of Machinists is no longer affiliated with American Federation of Labor. For this reason I call upon all representatives of, unions at Hollywood to recognize and support the American Federation of Labor Union of, Ma- 'chinists as a reply to your telegram of April Seventeenth. 'Despite this unsettled state of affairs, the parties resumed their meetings on April 23. Sorrell's recollection of 'the meeting is not definite, except that the closed shop was discussed-and Kahane did not mention it. Sorrell's diary also disclosed another meeting on April 29, but he had no independent recollection of the event. About May 4, 1946, the parties met to consider a draft cover sheet which had been formulated in the meantime. This draft cover sheet, dated May 4, 1946, was introduced in evidence. Sorrell did not know its source or who prepared it but he was able to testify that certain matters included therein were discussed between the parties Regardless of who prepared the document it does indicate that on or about May 4, the parties were making progress towards consummation of a cover sheet and were considering such items as a full recognition clause, closed shop and detailed grievance pro- cedures as applicable to CSU affiliates. Stehr was present and the IAM was not excluded "from this discussion about the cover sheet...... On May 10, CSU and Producer representatives met to discuss another draft of the proposed cover sheet. Sorrell testified that the cover sheet was applicable principally to the Painters and Carpenters and that, "The Machinists were not mentioned in this at all," although Stehr was present. The parties met next on May 28 at which time Stehr was present. , There was introduced in'evidence a "Typical Proposed Cover Sheet For Closed Shop Unions In the Conference of Studio Unions," dated May 28, f946. It is not clear whether the document was available at the time of the meeting or whether it was prepared subsequently, to incorporate the decisions of the meeting. Sorrell acknowledged .that the subjects, mentioned therein were discussed. More important, this docu- ment seems to represent the final draft of' the cover sheet under discussion at .the May 10 meeting. Although its provisions are applicable to the Painters,. there is no evidence that discussion of them excluded the IAM At this same meeting there was also discussed a draft, dated April 12, 1946, of "Proposed Typical Wage Scales, Hours of Employment and Working Conditions For Employees Subject To The Wage And Hour Law." This is a complex document dealing with a host of matters such as hours, overtime, job classifications, meal periods, studio zones, distant locations, etc. Sorrell testified that in discussing the proposed wage scale with its vast ramifications, no particular Conference union was in mind and that its provisions, if adopted, would be applicable to all CSU affiliates: The IAM was not excluded from discussion and would inherit its benefits and profit by any applicable provisions. Negotiations at this time were looking forward to agree- ments to be individually negotiated for the IAM as well as other Conference unions. Before May 28, some progress had been made in the negotiation of separate union contracts for the Painters, Carpenters and other unions. About June 3, ,Sorrell asked Casey that the Producer representatives meet with the IAM. He was told : "Don't gum it up with the Machinists, bring in Painters." It is necessary to advert for a moment to other events. In December 1945, the Screen Publicists Guild, Local 1489, of the Painters, a CSU affiliate, filed a petition for investigation and 'certification. On May 1, 1946, the respondent Producers, except Roach, filed an RE petition naming therein as claimants to representation, the Publicists, an Alliance local, and a third union. Other steps followed, but on June 6, 1946, while a hearing was being held, the matter was ad- ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 515 ,journed to permit the Publicists and the Alliance local to work out an agree- ment for,a consent, election. As part of -the agreement, on June 7, the Pub- licists agreed to waive unfair labor practices which had been filed and were pending. There was outstanding at this time in early June, the orders declaring "hot" the work of IAM members. The latter were being discriminated against and Shifflnan was stepping up his campaign to enroll-IAM members in his local. Hence, on June 10, Ernest R. White, Grand Lodge representative of the IAM, ,and Stehr sent a lengthy telegram to the Association. Therein, White and Stehr demanded an immediate bargaining conference. They charged the respondent Producers and competing unions of collusion in the treatment of IAM members ; 'asserted that the IAM was still the legal collective 'bargaining : agent ; and that all concerned were bound by the findings of the A. F. of L. committee, dated 'December 26, 1945, respecting the IAM's jurisdiction. Three days later on June 13 occurred the "hot set" incident involving the carpenters, as a result of which, members of the Carpenters and Painters unions were discharged. Shortly before June 20, while the whole Hollywood scene was rapidly approaching a climax, the Producers offered to all studio unions a general wage increase of 10 percent or 181/2 cents an hour, whichever was highest. At .,the meeting between the Labor Committee and the CSU on June 20, Sorrell re- jected this offer on the ground that he could not accept less from the 10 major -producers than had already been obtained in bargaining between the CSU and ,other independent producers. Stehr was present. Either at the same time or at a previous meeting, Pelton stated that a closed shop could not be granted the IAM as distinguished from other Conference unions, because of the conflict over the bargaining unit. Sorrell then stated that if the Producers wanted "to get ,off the spot" on the machinist question all they had to do was to file a petition with the Board and let it determine the bargaining unit and representative. Kahane asked if the CSU would abide by a Board decision and if the machinists question could be "put aside" until a determination was reached. On receiving Sorrell's affirmative response, Kahane stated that the parties were now in posi- tion "to get somewhere on this agreement." Sorrell then demanded a 25 percent across-the-board increase on take-home pay for all crafts which the Producers ,said they would consider. At or about this time Sorrell and Casey were discussing the problem of re- turning the carpenters and painters to work over the "hot set" incident. Sorrell stated that these crafts would return when the Producers showed their "good .faith by going to the Board" about the Machinists issue. Casey asked that,"the .Machinists" go to the Board. Sorrell replied, so he testified: No, we can't file for an election. We already have-legally 1185 is the bargaining agent, so what would they have an election for? Let the Pro- ducers go down and have a hearing or whatever is necessary to clear the thing if they think that they are being picked on. Otherwise, the Painters are going to work outside. They are not going.to work in'the studios any- more ; Carpenters likewise. This conversation was reportefl,to Kahane. On June 22, the Producers informed `Brewer that they were going to file an RE petition and received his assurances that the Alliance would-accept the Board's findings on the investigation. The Producers' attorneys prepared and filed the RE petition on June 25, 1946.44 On 44 21-RE-31. '516 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 26, 1946, the JAM -filed' a first amended charge alleging violation of Section 8 (1), (3) and (5) of the Act. It would seem clear that the amended charge which first raised the issue of refusal to bargain antedated the filing of the RE petition. On June 28, Sorrell learned that the RE petition had been filed. He testified as follows along this line : Q. (By Mr. MITCHELL) . . . when the Producers filed their petition with the National Labor Relations Board, did the Producers tell you that they were going to hold up negotiating the Machinists until the Board determined which one of the unions represented the machinists? A. I don't know if they just put it in that kind of language or not. They said the Machinists -were now being taken care of by the Board "We have complied with your request. We asked the Board to settle the matter." And we sent our people to work ,upon telling us that they had complied with our -request and would abide by the decision of the Board.'- Q. Didn't they tell you until the Board determined who was the proper bargaining representative for machinists, they weren't going to negotiate about machinists anymore? A. They probably did. I don't know. It is a little hazy. At or about this same time, and perhaps on June 28, Sorrell told the Labor Committee that the CSU insisted upon obtaining better conditions from the major Producers than those previously granted by the smaller independent Pro- ducers. Sorrell testified the Producers "wouldn't comply so we [CSU] went on strike." b. Partial conclusions This brings the account of events to a point'where it may be appropriate to 'examine the relationship before passing to consideration of the' Beverly Hills conference of July 2. It will be conceded, in the undersigned's opinion, that it is'impossible to divorce the JAM from the CSU in 'the latter's collective bargain- ing. The JAM was represented at all bargaining conferences, and in those instances where Sorrell acted alone, he spoke with the authority that was his as president of the' CSU and of which the JAM was an integral part Had it been charged here that the respondents had failed to bargain collectively with the -CSU, the undersigned would have little hesitancy in dismissing such charge. The Producers were at all times willing to meet with the CSU On one occasion, Sorrell, so he testified, was convinced of their sincerity in attempting to con- clude negotiations. Progress during May-was being made -on a uniform cover sheet. Progress was being made-also in the negotiation of individual agree- ments for the Carpenters and Painters. Wage demands were being considered. The bargaining was hard throughout, complicated by the many factors and facets peculiar to the Hollywood scene. In this total picture, the JAM's position differed mainly in the following re- spect. The Producers were1not willing to grant the JAM a -closed shop although they were willing to negotiate closed-shop contracts with the Painters, Car- penters,and other A. F. of L. crafts which theretofore had enjoyed closed-shop contracts. The Producers' position, on this issue with respect to the JAM .° The "people" returning to work were the carpenters and painters on strike over the "hot" technicolor sets. 46 Actually, the strike occurred July 1. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 517 stemmed directly from the fact that the IAM had been suspended and a charter issued by the A F., of L to the Federal Union:' It is' the undersigned's opinion that, the Producers were, as in the case of the discharges and lay-offs of IAM members, again submitting to economic pressures exerted by"rival labor organi- zations. But there is no compelling proof that this position was one of bad faith and taken for any reason other than the force of rival demands. More important, however, is the fact that the Producers at no time refused to meet, bargain, and discuss problems, apparently in a genuine desire to accomplish results. There was no issue over recognition, as there was in Matter of Albert Love Enterprises 97 where the Board found in a closely analogous case that "the respondent declined to recognize" a union which represented a majority of employees in an appropriate unit. The Producers at all times up to June 28, were ready and willing to recognize and deal with the IAM either alone or through the CSU. There seems to, be only one exception to this and that was on the one occasion when under the turmoil and confusion of the "hot set" incident, Casey and the Producers met with the Painters instead of the IAM. This case up to this point in bargaining negotiations represents a picture of respondents unwilling to grant a concession-the closed shop-which they were willing to grant other unions, because of a jurisdictional dispute between A. F. of L. unions and rival claims between the IAM and those unions. But the bar- gaining picture presents no other unalterable positions and on all other matters the IAM's status was on an equal plane with other Conference unions. In reaching these conclusions, consideration has been focused on the fact that respondent Association and certain Producers-engaged in•independent violations of'Section 8'(3)' of the Act-and in Mauch 1946, placated Alliance demands by hiring Federal Union members. All of which may indicate that if the choice was theirs alone to make, the Producers would prefer to confine the union "rep- resentation of their employees to A. F. of L. members. But to conclude that by reason of preference so indicated, coupled with inability to agree finally upon a contract for the IAM before settlement of all the problems inherent in this complicated set-up, there has been a refusal to bargain is unwarranted by the evidence. The undersigned finds that as of about June 28, 1946, there had been no refusal to bargain collectively on the part of the respondents. c. Events leading up to the Beverly Hills meeting of July 2, 1946 On the morning of June 30, Sorrell met Casey and his assistant, Clarke, in Casey's office in the Association building. Sorrell wanted action-completion of agreements covering Conference unions including the IAM-in order to avoid another strike in the industry. At this meeting Sorrell gave Casey a memo- randum of CSU demands "to keep [the CSU] from going on strike on Monday morning [July 1] ". Sorrell testified further : .. I believe I mentioned [to Casey], that I had been given to understand that 100 Federal Union Machinists were going to be put to work in the immediate future, maybe Monday or Tuesday, and, that we were not out on account of the Machinists, but we thought that the least they could do was to leave it status quo until it was-until the Machinists had taken it up with the Board or until the Board had acted on it, or something of that kind ..." 47 66 N. L. R. B. 416, 423. 809095-49-vol. 79-34 518 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD A memorandum introduced in evidence shows Sorrell presented the following demands : 97 n - " 1. Major Producers to meet the rates already agreed upon between the Independents and C. S. U. . . . - 2. In the matter of the weekly guarantee of 36 hours, Sorrell agrees to give the Producers a period of thirty days, not only to make a survey of the 36 hour week, but also a study of an annual wage. 3. Also during the thirty day period contracts for the crafts under Local #1421 and the Cartoonists and Story Analysts .will be negotiated. 4. As to Machinists and Publicists-these contracts will be negotiated when a decision of the N. L. R. B. is handed down and the Producers agree to abide by the decisions and expedite the procedure. 5 While these matters are before the N. L. R. B. conditions are to remain frozen. That is to say, no more Publicists nor Machinists are to be hired pending the N. L. R. B. decision. It is also understood that if any other comparable crafts get any larger general increases the C. S. U. members will get similar increases 49 Particular reference is made to points 4 and 5 above. It will be recalled that the Publicists had filed charges which were withdrawn about June 6, when an agreement for a consent election was being formulated. Hence in the cage of the Publicists it seems clear that what was being awaited was the Board's decision in the forthcoming consent election. As to the 1AM, 8 (1) and (3) charges had been filed in April, followed by the RE petition on June 25, and charges of 8 (1), (3) and (5) on June 26. 'In this latter connection, Sorrell testified that prior to June 30, Casey and other Producer representatives had suggested. a Board election to settle the machinists controvery but "We would not do that." He testified further : We refused to go to the Board -and ask for an election. We always told them, "You go to the Board." , s s s s s s s A. Well, the only reason we didn't want an election was because we had got our fingers burned going to the Board in the year previous, and we had had to strike for eight months and put all kinds of heat on everybody in the whole United States to get one of these protracted-get all the red tape loose so that we could get the election and know who was who, so we refused to go to an election because it would draw it out too long. Q. (By Mr. RissMArl) Did you state any other reasons to the Producers as to why you didn't want an election? Do you recall stating any? A. No, sir. I can't recall any now, because it wouldn't matter to me so long as you did it quickly, and they agreed to expedite it as fast as possible. In the undersigned's opinion, what Sorrell had in mind on June 30, irrespective of any later position to be taken by the Board, was its decision on the RE petition pending which; the IAM contract was not to be further negotiated. Casey told Sorrell that he would let him have the Producers' response to his demands for calling off the strike and their position on the machinist question This memorandum is based upon notes taken by Clarke at the meeting. Sorrell testified that it was "approximately" what Clarke wrote at the time. It was stipulated that Clarke if called would testify it represented his notes of Sorrell's demands and that he-gave one copy to Sorrell. ASSOCIATION OF. MOTION PICTURE PRODUCERS, INC. 519 after he conferred with Messrs. Kahane, Mannix,, Freeman and Work. At about S p. m. Casey delivered to Sorrell the Labor Committee's response. It is herein set forth : With reference to the proposals made by you in your conversation this morning with Messrs Casey and Clarke representing the major producing companies, we advise you on behalf of those companies as follows : 1. Your proposal that we meet the rates agreed to between your group and the Independent Producers represented by Mr. Chadwick is accepted. 2. With respect to the proposal that we guarantee six days work per week of six hours per day, for certain crafts; we accept your suggestion that we take no action on this matter at the present time, but that during the next thirty days we make a survey of the matter, as well as a study of a possible annual wage ; this, however, with the understanding that in doing so we make no commitment. 3. Your proposal that during the next thirty days we carry on, negotiations looking to the making of contracts with crafts under Local #1421 and Car- toonists and Screen Story Analysts, is accepted. 4. Your proposal that negotiations with Machinists and Publicists be deferred pending decisions by the National Labor Relations Board ; that we agree to abide by such decisions and to expedite such proceedings, is accepted. 5. Your proposal that we refrain from hiring additional Machinists and Publicists pending these National Labor Relations Board decisions, is un- acceptable and is therefore rejected. 6. In respect to your proposal that if comparable crafts in the industry are given larger general increases than your group, you shall receive like increases, is accepted with the understanding that this does not apply to upgrading or adjustWents to take care ,of inequities or with respect to em- ployees in the lower salary groups. In addition to the above specific matters covered by your proposals, we understand from our previous negotiations with you that you are agreeable to the following : 1. The proposed deal is to extend,until December 31st, 1947. 2. The Unions will agree to an arbitration set-up to settle all jurisdictional questions and disputes. 3. The Unions will agree to maintain an adequate supply of competent labor in all classifications to fill calls of the Producers in accordance with production requirements. Upon acceptance of the above, we are prepared to enter into formal con- tracts with each Union covering wage scales and schedules, as well as working conditions as negotiated at our previous conferences. (Sgd) PAT CASEY According to Casey's uncontroverted testimony, when the above was handed to Sorrell there was no discussion of point 4. However, with respect to point 5, Sorrell stated that he would submit it to a strike meeting to be held that night at the Hollywood Bowl. Apparently, the response as a whole' was unacceptable because on Monday. July 1, the CSU including the IAM, went on strike. With the start of the strike, Sorrell sent all Alliance business agents the follow- ing telegram : Misrepresentation being circulated that we are striking over machinists. This is utterly false. The machinists issue is before the National Labor Relations Board and we will abide by the Board's Decision. We are willing U 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to arbitrate any and all 'disputes of any nature, whether jurisdictional or not. Conference unions are on strike"because producers' insist on oui sign- ing a contract terminating December 31st, 1947 . Impossible for us' to accept in view of discontinuage of OPA and uncertainty of future cost of living. We are willing to sign contract terminating December 31st, 1946 . Producers have agreed to our wage demand but will not put them into immediate effect, nor will they promise to negotiate within 30 days contracts for our unions. If producers would put wage raises into immediate effect and sign •interiin agreements for 30 or 60 days with Conference Unions pending negotiation of contracts, strikes would end immediately We are striking for con- tracts, wages , and conditions and earnestly ask for your support ( Emphasis supplied.) The third sentence in the telegram is significant. Can it be reasonably con- tended that this . referred to the IAM charges pending before the =Board and upon which^ 'no 'complaint had as yet issued-? --Can it lik wise be - in€err-ed that Sorrell referred to or had in mind , a hearing, issuance of an Intermediate Report and eventual Decision of the Board with the necessary time lag involved , on those charges. In view of the history of events to date, it seems reasonably clear that here again, Sorrell had in mind the disposition by the Board of the Producers' RE-petition which, as he testified , they had agreed "to expedite." Sorrell met Brewer on the morning of July 2, at a Teamster 's meeting Sorrell told Brewer that he meant everything he said in his telegram and Brewer asked if Sorrell was willing to meet with the ,Producers , in, an attempt to settle the strike Brewer stated he could assist in arranging a meeting with the Producers that, afternoon. That afternoon occurred the meeting of Beverly Hills, and from which there- after issued what has since been called , and not without reason, the Treaty of Beverly Hills. It is perhaps significant of this controversy , that a major portion of a 20-day hearing was devoted to the testimony of witnesses concerning this meeting without producing accord or what transpired there . Everyone connected with the Hollywood union situation attended the meeting, including representa- tives of the Conference unions, Alliance locals, Producers ' representatives and Actors Guilds. That morning , the Producers had published an advertisement in the trade papers, herein set forth in part : THE STUDIO STRIKE IS NOT OVER WAGES AND HOURS ,The facts are as follows: At a meeting held 'Sunday', morning, June 30th,;W between Pat Casey and Victor Clarke, representing the major Studios, and Herbert Sorrell , repre- senting the Conference ,of Studio Unions, the following proposals were made by Mr. Sorrell to Mr. Casey and Mr. Clarke : SORRELL PROPOSED: 1. That the Major Studios meet the rates already agreed upon be- tween the Independents and the Conference of Studio , Unions, . . . STUDIOS ACCEPTED. SORRELL PROPOSED: 2. That the Studios take a period of thirty days to make a survey of the 36-hour week, and also a study of an annual wage. - ASSOCIATION OF MOTION' PICTURE' PRODUCERS, INC. 521 STUDIOS ACCEPTED with the-provision-that ,by doing so'they make'no commit- ment as to final decision. SORRELL PROPOSED: 4. That as to Machinists and Pub- licists, these contracts be negotiated when a decision of the National Labor Relations Board is handed down, and that the Studios agree to abide by the decisions and to expe- dite the procedure. STUDIOS- ACCEPTED. SORRELL PROPOSED : 5. That while these matters are before the N. L. R. B. conditions are to remain frozen . that no more Publicists or Machinists' be hired pending the N. L. R. B decision. STUDIOS REJECTED. SORRELL PROPOSED: 6. That if comparable crafts be given larger general increases than his group, it receive like increases. ,,STUDIOS ACCEPTED I . . . with .-the. understanding that this shall not apply to cases where upgrading or ad- justments are necessary to take care of isolated inequities or with respect to employees in a lower salary group. In addition to the above specific matters covered by Mr. Sorrell's proposals, the Studios understand from previous negotiations with him, that he was agreeable to the following. 1. The proposed deal is to extend until December 31st, 1947. 2. The Unions will agree to an arbi- tration set-up to settle,all jurisdictional questions and disputes. 3. The Unions will agree to maintain an adequate supply of competent labor in all classifications to fill calls of the Studios in accordance with production requirements. To attempt to paraphrase the testimony of the principal witnesses to the events of the meeting would burden beyond readable limits, the length of this Report. Rather what is now attempted is a restatement of the positions advanced by the Producers on the one hand, and Sorrell and White on the other Sorrell and Kahane were the leading figures at the meeting, the latter presiding as chairman. Kahane explained how the meeting had been called and then took as his text the afore-mentioned advertisement. He came quickly to points 4 and 5 about which discussion then centered. It was testified to by Kahane and all other witnesses called by the respondents and the intervenors that points 4 and 5 were accepted by the CSU and by White representing the IAM, after it was mutually agreed that both the IAM and the Publicists were to enjoy a retroactive- 25-percent pay increase and that additional machinists were to be hired on the open market without recourse to either the IAM, Alliance or Federal Union as the source of supply. The crucial point of their testimony, however, is that the wage increase, new hiring practice and postponement of bargaining with the IAM was to await the decision of the Board on the RE petition then filed with the Regional Office. Further, that either by express words or by inference which was so clear that no reasonable person could be in doubt, the "decision" referred to was that of the Board on the RE petition and not on the charges filed by the IAM.99 White's testimony is not persuasive to the contrary. It is acknowledged that it was'agreed to accept the 25-percent increase for Machinists and that hiring 49 Sorrell testified • we agreed to go to work and let the Board settle the case, rather than to go on strike to settle it." He testified again : "We had the understanding that the National Labor Relations Board would decide whether they should .continue to deal with the Machinists or not 522 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD- of new machinists was to)take place on the open market without recourse to, any union. White testified , however, that at no time was it understood that bargaining with the LAM was to await the outcome of the Board's decision of the RE petition but rather in accepting the provisions applicable to wage increases and the hiring of machinists he stated that all he asked of the Producers was that they "abide by the law," referring inferentially to the charges -then pending before the Board. White also testified : - And I told Mr. Kahane all the Machinists wanted the Producers to do was- abide by -the law, and if they felt in view of the existing controversy they couldn't recognize us, that they not recognize any other organization that might be contending for our jurisdiction , that they hire machinists on the- open market or any other source, but not recognize anyone else. * * * * * * * (By Mr. MITCHELL ) . . . Now,'leaving out any controversy about repre- sentation , didn't Mr. Kahane say that the parties had all agreed that bar- gaining with the Machinists should be postponed pending the decision of 'the Board: Wasn't that mentioned? A. I am not too clear on that point . ' The conversation may have been in substance along that line. - He testified further : Q. (By Mr. MITCHELL ) Well, was anything said about postponing the negotiations with Lodge 1185 pending the decision? The WITNESS. Yes. - Q. What and by whom? A. I am not exactly clear, but I think Mr. Kahane made some statement in that regard, and I stated that-this was in conjunction with something about the negotiations , and I stated that if it were finally determined that Lodge 1185 were the proper bargaining agent, that we would abide by the general terms and provisions and rates of pay negotiated by the Conference of Studio Unions for the standard crafts. Q. Then you contemplated that bargaining would go on in the meantime without Lodge 1185 being recognized , didn't you? A. I am not too sure that I had that contemplation , because the Conference of Studio Unions in their general negotiations on conditions that involved all the affiliated organizations had insisted that a representative of Ma- chinists be present or they wouldn't- meet. Whether they were taking an active part in such discussions or not, I don't know. The testimony and, documentary evidence pertaining to the Beverly Hills meet- ing has been closely analyzed . The logic of it all indicates , in the undersigned's opinion, that at the meeting the CSU agreed to call off its strike in return for `certain concessions including the 25-percent wage increase applicable to the -Machinists and Publicists . It was also agreed that additional machinists would be hired but not through either the IAM or Federal Union and it was determined to hold the Machinists' controversy in abeyance pending the outcome of the Board's RE decision . This conclusion finds substantial support in the record. At least one of the reasons for filing the RE petition was Sorrell 's suggestion that if the Producers wanted to get "off the spot" they could "go to the Board" but that the IAM would not file a petition because they saw no reason to petition the Board for the bargaining rights they already possessed . On July 2, all of ASSOCIATION OF MOTION PICTURE PRODUCERS, ' INC. 523 the parties knew the petitions had been filed. It is incredible to believe that the TAM would have agreed to anything that would have postponed bargaining until a Board decision was reached on 8 (1), (3) and (5) charges, on which a com- plaint-had not been issued and which gave no assurance of settling the juris- dictional dispute. - These conclusions are strengthened by events subsequent to the meeting. Ka- hane had suggested issuance of a joint release on the meeting's accomplishments. This was to be prepared by the publicity representatives of the Association and the CSU and not to be released until approved by Kahane and Sorrell. Arch Reeves, the Association's publicity man, showed Walter Ruf, who functioned in a similar capacity for the CSU, a statement which had been prepared for release. Ruf sought to communicate with Sorrell about it, but unsuccessful, read the state- ment containing this paragraph to Carl Head, the CSU vice president, who attended the meeting : , Studios to be free to hire machinists on the open market while the ma- chinists' case is pending before the National Labor Relations • Board, with agreement on the part of all unions involved that there will be no work stoppage and no "hot sets" as a result of dispute over machinists' work. Studios to accept the NLRB decision and negotiate with whatever union is certified. Head approved the release containing this paragraph and thus approved it appeared in the press on July 3. Here for the first time, there crept into the picture the word "certified." The full significance of the CSU decision, for all to read if the release was an accurate account of the meeting, was that the TAM was relinquishing for the moment its insistence on contract negotiations pending a Board ruling on the RE petition. If this release did not meet Sorrell's approval, certainly his action in regard to it was not that of one who felt he had been compromised or tricked into an agreement contrary to his under- standing. He testified that although it did not please him, he made no com- plaints to Ruf about it and told Reeves that anything Ruf approved was "sat- isfactory" to him. He could not recall discussing it with White or protesting its contents to anyone. At a later point, Sorrell testified with some uncertainty that he told Casey that the release should not have gone out since it appeared that the TAM would have to be certified to deal with the Producers. Casey denied that Sorrell had "protested" in any conversation with him the use of the word "certification." In view of Sorrell's equivocal testimony, Casey's denial is credited. If Sorrell's conduct showed no particular concern about the contents of the news release as expressing the agreement of the parties, and in view of the con- tention that Sorrell neither by action or inaction could bind the TAM, White's conduct was just as equivocal. Upon reading the newspaper account on July 3, he put in a call to Frank Pestano, CSU attorney, and told him that the story did not check with his understanding of the agreement, particularly the refer- ence to certification. White told Pestano that there had been no discussion of certification and the TAM position as expressed on July 2 to Kahane, "was that such decision or order as the Board might issue-and that was what I wanted to be sure was contained in this stipulation." 60 White wanted to be certain that the minutes of the Beverly Hills meeting reflected his understanding. 50 The indefiniteness of this quotation from White's testimony suggests the uncertainty in his own mind of what it was be wanted the minutes to record. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, Sorrell, Stehr, Bassett, Pestano, Kahane and others were meeting to agree on the exact language to incorporate in the minutes of the Beverly Hills meeting. The suggestion was made that Clarke's niiliu'tds- of the meeting be approved and signed. Whereupon Kahane read Clarke's minutes and this portion as applicable to the machinists: Both sides agree to let machinists enjoy the 25 percent increase pending the N. L. R. B. decision. We are free to engage machinists in the open market-not from either union, until the N. L. R. B. decision is made. Discussion arose over the meaning of the last sentence and it was changed to read : We are free to engage machinists as individuals, not through either union. Sorrell expressed his approval but wanted to check it with White but was unable to reach him. Shortly thereafter Kahane spoke to White and read the para- graph as revised over the telephone. According to White: "I indicated that that was generally in conformity with my understanding of what.was expressed at the previous meeting." This checks with Kahane's testimony to the effect that White approved it. However, Kahane,denied -that White -made this further comment which White testified was included in the phone conversation : I told him that as far as the [IAM] was concerned I wanted him to understand thoroughly that by agreeing to that, we were not agreeing that the unfair labor practices we alleged that Producers had been indulging in were proper, their failure and refusal to recognize and bargain with us. And I was agreeing to this for the expedient xeason of getting that work stoppage settled. This is, in substance, what it was." Although resolution of this conflict is not altogether free from doubt, in view of Kahane's general reliability as a witness, the undersigned accepts"White's version of the phone conversation as the correct one. This is because the con- versation was followed by a later telephone call from Homer I. Mitchell, re- spondent's counsel, the substance-of which relates directly to White's injection of the new note about unfair labor practices and which in the undersigned's opinion probably prompted Kahane to call Mitchell and ask that he clarify the matter. This is discussed below White was asked to explain what was "deferred or postponed or fixed" by use of the agreed-upon phrase of the minutes, "pending the N. L. 'R. B decision." He testified that "there wasn't anything deferred or postponed. . . . It was part of the overall points in controversy that stopped the work, . . . which was re- solved by this meeting at Beverly Hills, . ." He testified further : Q. (By Trial Examiner RlEMER) : Is it your testimony, then, that pending the N. L. R B. decision it was agreed, first, to let Machinists enjoy a 25 percent increase and, second, that the Producers would be free to engage Machinists without recourse to either union? A. Well, certainly. They had refused to hire our people some time back, and they had refused to negotiate with us, and we knew that we were going to have to get the Board to order them to do so before we could resume that. What we sought was that they cease recognizing anyone else for Machinists, and getting their men in those classifications specifically from 51 White admitted he said nothing to Kahane about the word "decision," referring to the representation petition, nor did he mention "certification." / 0 ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 525 them, but get them anywhere they could. We %,ere willing to take our chance on that Q. (By Mr. MITCHELL ) : Was anything said about bargaining with Ma- chinists being postponed? A. Well, I don't know whether the word bargaining was specifically used, but when I said, "If you don't feel you can recognize and deal with us properly, we ask that you don't recognize and deal with anyone else," we certainly meant bargaining with anyone else. - Q. That is, bargaining with anyone else should be postponed pending the -decision , that is what you meant, isn't it? A. In substance, yes.. Q. And you meant also bargaining with y4? Should be postponed pending the decision? A. I didn't have to ask them to do that . They had already stopped bar- gaining with us. I. was asking them not to bargain with anyone else. Q. That is what you meant by this language , isn't it? A. Well, I am not too sure that is what I meant , I had recognized that they were not bargaining "with us, and would not bargain with us, and I didn't want them to bargain with someone else until the Board had done something about the entire problem. Q. Isn't it your understanding that bargaining both with someone else and with you was to be postponed pending the Board 's decision? The WITNESS . That is not exactly correct. I was requesting that they not bargain with anyone else . They had already stopped bargaining with us. Q. (By Mr. MITCHELL ) : Well, then , do you mean to say you indicated that you were not agreeable to this bargaining being postponed with all parties pending the decision? . * * * * * * * The WITNESS. What I meant, in effect, Mr. Mitchell , was that I recognized that the Producers were refusing to bargain with us, and so we had filed a charge under the Board seeking redress, and we were requesting that inas- much as they had refused to bargain with us, and we hoped the Board would adjudicate that issue, that they cease bargaining with anyone else until the Board did adjudicate that issue, and on that basis we were willing to have the work stoppage settled. White testified that he instructed Pestano to make it clear in the preparation of the Beverly Hills minutes that the decision referred to therein was not a decision on the RE petition . If this be so, the instructions were meaningless for it appears from Kahane's uncontradicted testimony, that no protest was made about the use of the phrase, "pending the N. L. R. B. decision ." Also, it has been found above that White approved this language . After securing White's approval' the minutes were signed by Sorrell and Casey . Shortly thereafter a copy of the minutes containing the approved paragraph applicable to the Machinists was sent to Sorrell with this covering letter : Pending the completion of contracts between the individual Unions, mem- bers of the CSU . . . , and the major Studios , these Minutes . . . shall constitute an Interim Agreement. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly following the White Kahane telephone conversation on July 3, referred to above, Mitchell=telephoned White as mentioned-before. The conversation was reduced to memorandum form by White and a copy introduced in evidence. Although Mitchell testified generally as to the understanding reached at the Beverly Hills conference, he did not touch upon his later conversation with White. Hence, the undersigned accepts the testimony of White and his memo- randum as a substantially accurate account of the conversation. White's memorandum relates in part : I was called by Homer I. Mitchell, ... who advised me that he represented the major producers as far as any charges of unfair labor practices filed against these Companies were concerned and he inquired as to whether or not the International Association of Machinists were going to press the -charges they have filed .. . I advised Mr. Mitchell we had every intention of so doing and that until the' major producers recognized us and entered into collective bargaining with us; all phases of the problem were entirely in the hands of the National Labor Relations Board, and that we would never voluntarily agree to a representation contest under the present circumstances and that even though the Board might order an election as a result of the "RE" petition filed on behalf of the major producers, that even [were] such contest held, we would only find ourselves in the same position we currently enjoy and that is, that we represent a substantial majority in an appropriate unit and if the major producers were anxious to clean up the entire situation, we could very likely settle the entire matter quickly on a basis of a Board approved settlement of the pending charges. Mr. Mitchell declined to. state whether or not his clients would agree to this course of procedure. White when questioned whether Mitchell did not also tell him that it was not the Producers' understanding that the matter of bargaining should await a decision in a complaint case answered : "I don't recollect that, Mr. Mitchell. You may have made that statement to me, but as I said before, I did not attach too much significance to it." One final event in this long history remains for disposition. The Treaty of Beverly Hills sent the strikers back to work but did not, as is clear, dispose of the. differences between the Producers and the IAM. About August 15, Sorrell was told by the CSU attorneys "to ask for a Machinists' meeting." He testified : "but we didn't get it; because there was other'unions 'that I would just 'as soon have had in there, but they told me to ask for a Machinists' meeting, to see if I could get it, and I couldn't." According to Sorrell, Casey replied : "Let's don't get tangled up on that. Let somebody else in." Casey denied any such, request by Sorrell. The undersigned believes that Sorrell acting on his attorney's advice did make such a request. it is so found. The circumstances under which this request was made does not persuade the undersigned that sig- nificance should attach to Casey's denial. As Sorrell testified, there were other unions that he "would just as soon have had in there." d. Conclusions - Heretofore under subdivision (b) of this section, the undersigned has set forth his conclusions and,found that up to about June 28, 1946; there had not been a refusal to bargain collectively on the part of the respondents. There remain conclusions to be drawn from the events of June 30, culminating in the Beverly Hills meeting. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 527 There are at least three possible interpretations-of that event: First: The parties agreed to postpone the negotiation of an TAM contract until the Board's decision on the RE petition which would fix the unit and bargaining'agent; the TAM in'the'meantime to enjoy a 25 percent wage in- crease as well as share in the hiring of riew employees. Later White realized the significance of his commitment and attempted to withdraw, while still' preserving the settlement benefits, by asserting that the decision' referred' to charges pending before tbe.Board. Second: The parties bargained and thought that an agreement had been reached but there was never a meeting of the minds. The Producers and to some extent Sorrell, believed that the decision referred to the RE petition,, while White, had in mind a decision on the TAM charges. This possibility, seems to run conga to the weight of credible testimony and the congeries of facts. Third: This interpretation follows generally the purport of White's test!-, mony as the undersigned understood it. It is that the parties agreed on July 2,-that, pending an - eventual, decision on unfair labor practice charges, the TAM would receive a•25'percent,increase and participate in-new hirings. Further, that negotiation of a •machinist contract with any union would be held -off and when finally consummated, the TAM, if still. found to be the bargaining representative, would gain the advantage• of•benefits negotiated in the interim period by the CSU. The undersigned can hardly believe that White, a skilled trade unionist and negotiator, conversant with Board prac- tice, would have committed himself in a position which, if carried to its logical conclusion, would have granted the TAM a questionable status for an indefinite period. Although the undersigned is of the opinion that the first is the only interpreta- tion which is warranted by the record as a whole, the question still remains whether there has been a refusal to bargain. On June 30, Sorrell wanted action- action which included negotiation of an TAM agreement. Rejection of CSU demands led to a strike and the Beverly Hills meeting. Bargaining ensued- bargaining in a gold fish bowl-followed by concessions from which the TAM was not excluded. The Producers hedged on the TAM, seeking the same solution for the machinist question as had been achieved for the publicists, i. e., with- drawal of charges and a consent election. The undersigned is of the opinion that this is what they believed they would get from the Beverly Hills meeting. That they were mistaken does not prove they refused to bargain. Because of the economic power wielded by the Alliance, the respondents were and are disposed to treat naked claims of representation; presented by unions other than the TAM. Yet the respondents have bargained with the TAM either directly or through the CSU. Down to July 2, the main issue that kept the parties apart was the IAM's demand for a closed shop. In other respects, as heretofore pointed out, progress was made on a uniform cover sheet and other conditions of employment presented no obstacle. Finally the agreement of July 2 from the Producers' view presented a way to resolve a contentious problem. The entire picture disclosed by this record does not indicate the type of bargaining contemplated by the, Act. In fact one might conclude that in certain respects there has been an absence' of bargaining. But the undersigned on a considered reflection of the entire record is of the opinion that the charge of a refusal to bargain is not supported by reliable, probative, and substantial evidence. It is so found. It will be recommended that this allegation of the complaint be dis- missed as respects all respondents. m 528 DECISIONS OF NATIONAL LABOR-' RIrLATIONVS1 BOARD= IV. THE EFFECT 0F• THRnUNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occurring in connection with the operations of respondents described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to and have led to labor disputes burdening and obstructing Commerce and the free flow of commerce. V. THE REMEDY It has been found above that the respondents Association , Warner, Loew, RKO and Universal discriminated in regard to the tenure of employment of certain named individuals because of their IAM membership and that thereby the said respondents discouraged membership in the IAM and interfered with, restrained, p and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. These individuals were discriminated against because the respondents submitted to threats of economic pressure raised by the Alliance and the Team- sters, and in submitting thereto decided that a violation of the Act was eco- nomically speaking less hazardous than continuation in employment of IAM members . It was found' above, and it is again 'e'mphasized,'that by such conduct on the part of the respondents , individual workers were punished for exercising rights guaranteed to them in the Act. The violations of the Act herein found, are by ordinary standards sufficiently grave in the undersigned's opinion to warrant the recommendation that the respondents be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act 62^ The undersigned 's' opinion in this regard is strengthened by the fact that the IAM is no longer affiliated with the American Federation of Labor and, in view of the respondents' action, it should be made clear to their employees that membership in a union not affiliated with the American Federation of Labor will not jeopardize their positions or their rights guaranteed in the Act. To the extent that the employees can be assured that their rights will-not be interfered within the future, the-undersigned is, recommending hereafter that the respondents be ordered to cease and desist from in any manner infringing upon rights guaranteed in Section 7 of the Act. It has been found that respondents Association , Universal , Loew, RICO and Warner discriminated against certain named individuals by reason of their IAM membership. It was also found, however, that all of the said individuals, other than those transferred to other positions by reason of their IAM member- ship, were shortly reinstated to their old jobs or to other positions. Therefore, except as hereinafter indicated , the general remedy provisions for reinstatement are not required. Hence, the matter of back pay does not raise any substantial problem other than the question of the principle involved . In this connection, the respondents in their brief urge that because the employer respondents named above acted in good faith and violated the Act as a result of economic threats, the Board's decision in The New York & Porto Rico Steam s7iip Co. case 52 should be followed and no back pay should be awarded. The undersigned has considered the general applicability of the Board's de- cision in the Porto Rico case and rejects that decision as appropriate here. Rather, the undersigned follows the decision of the Board as laid down in The 52N L R B v. Express Publishing Company, 312 U S. 426 May Department Stores Co v N L. R B, 326 U S 376. . 53 34 N. L. R. B. 1028. ASSOCIATION OF MOTION'-PICTURE PRODUCERS, INC. 529 Greer Steel Company case 51 where the Board, in,discussing its conclusions in the Porto Rico case, said: We do not regard that case as decisive of the present proceeding, nor did we there hold that the policies of the Act will be effectuated py withholding the normally applicable affirmative remedy whenever an employer engages in unfair labor practices upon the insistence of a labor organization of his employees or because of the threat of economic pressure or hardship. In the Porto Rico case, the discharges which we found to be discriminatory were made only after effective sit-down strikes had occurred and had caused the employer considerable financial loss. The strikes there were called and took place immediately prior to the discriminatory discharges and for the express purpose of compelling them. We found that the employer's only alternative to discharging the employees in question was to cease operations entirely, and that the employer had "continuously and consistently exerted efforts," both directly and through outside persons and agencies, to settle the dispute between the rival unions and to- protect. the-positions of the disputed employees No similar showing is made in the present proceeding of actual exercise by a labor organization of its economic power to the demonstrated financial detriment of the respondent for the purpose of compelling the very action of which complaint has been made.55 The undersigned adopts this language from the Board's decision in the Greer case as applicable to the present proceeding and, in conformity therewith, will hereafter make appropriate recommendations respecting back pay. Respondent-Universal Reginald G. Hill was laid off May 31, 1946, and rehired July 5, 1946. It was found above that for personal reasons,, Hill was absent from Los Angeles between June 14 and July 2, 1946, and that July 5 was the first day that he could return to work. Accordingly, the undersigned recommends that respondent Universal make him whole for any loss of pay he may have suffered by reason of-respondent Universal's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from May 31, 1946, to June 14, 1946, less his net earnings 55 during the said period. John M. Mobley was found to have been laid off on May 31, 19461-and reinstated to his old position on June 13, 1946. The undersigned therefore recommends that respondent Universal make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from May 31, 1946, to June 13, 1946, less his net earnings during the said period. Respondent Loew W. E. Zimmerman was found to have been discharged on May 29, 1946. He was reinstated as an electrician in the electrical department on June 19, 1946. Zimmerman does not desire reinstatement to his old job as an automotive mechanic. It is therefore recommended that respondenfLeow make Zimmerman whole for any loss of pay he may have suffered by reason of the discrimination &' 38 N L. R B. 65. 5 Id, 72, 73. 56 Matter of Crossett Lumber Co „8 N. L it. B 440, 497-498. 530 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD against him, by, payment,ito him of a sum of money equal to that which he normally would have earned as wages from May 29. 1946, to June 19, 1946, less his net earnings during the said period. - Respondent RKO William J. Pickering was laid off on June 13, 1946. He was reinstated to his former position on'June 27, 1946. It is recommended that Pickering be made whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from June 13, 1946, to June 27, 1946, less his net earnings during the said period. Robert Skager was laid off on June 13; 1946, at the close of the shift. He returned to work on June 14, 1946, in the electrical department without any loss of time. This transfer was made at Skager's request. He does not desire rein- statement to his former position as an automotive mechanic. Skager's transfer to the electrical department was accomplished with an increase in his hourly rate. Therefore, no recommendation with respect to back pay is appropriate in his case and none is made. Carl H. Homuth was transferred on June 18, 1946, from his place of work and, because of his membership in the IAM, to another place of work where he did a different type of machine work. By reason of this transfer and for a period of 1 week, Homuth lost 17 cents an hour in his hourly rate. At the end of 1 week his rate was increased to that enjoyed previous to the transfer. He was like- wise put to work on the same tasks that he performed previous to his transfer. It would appear that no recommendations 'with respect to reinstatement are necessary. Accordingly; the undex',signed recommends that the respondent RKO make Homuth whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the difference between what he would have earned if he had continued on his old job and that which he did earn for the period from Juhe 18, 1946, to a date approximately 1 week later when his rate was advanced'to that prevailing previous to the transfer. Respondent Warner Edward J. Lorenz was laid off on May 29, 1946. He was reinstated to his former position on June 26, 1946. Accordingly, the undersigned recommends that respondent Warner make Lorenz whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which. he normally would have earned as wages from May 29, 1946, to June 26,-1946, less his net earnings during the said period. Glenwood C. Warren was laid off on May 31, 1946. He was reinstated to his old job on July 5, 1946. Warren, however, was absent from Los Angeles between June 3 and July 5, 1946, and was actually unavailable for employment from June 3 until his return to work. Accordingly, the undersigned recommends that Warren be made whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from May 31, 1946, to June 3, 1946, less his net earnings during the said period Elmer Johnson was laid off on May 29, 1946. He was rehired on June 26, 1946, in his old position. Accordingly, the undersigned recommends that Johnson be made whole for any loss of pay he may have suffered by reason of the respon- dent's discrimination against him by payment to him of a sum of money equal ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 531 to that which he normally would have earned as wages from May 29, 1946, to June 26, 1946, less his net.earnings during the said period. Robert E. Davis was, because of his membership in the IAM, transferred on June 6, 1946, from the camera machine shop to the general machine shop. He suffered no loss of pay by reason of the transfer and about 1 week thereafter 'Davis resumed the type of work that he was formerly performing in the camera machine shop. No recommendation is made for back pay in the case of Davis. However, it is recommended , consistent with respondent Warner's accustomed method of operating its camera machine shop, that Davis be returned to his - place of work in the camera machine shop. On the basis of the above findings of fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists , Cinema Lodge 1185 , is a labor organization within the meaning of Section 2 (5) of the'Act.' International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada , Motion Picture Studio Cinetechnicians, Federal Labor Union 23968, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Studio Trans- portation Drivers, Local Union 399 , all affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees listed in "Appendix A" of this Report , thereby discouraging mem- bership in the International Association of Machinists , Cinema Lodge 1185, the respondents Assdcintion,Univdrsal, Loew , RKO, and Warner have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. All employees of the respondent Producers in the following classifications : ,precision machinists ( camera ) ; machinists ( journeymen ) ; automotive mechan- ics, automotive gang boss, machinist helpers, apprentice machinist , machinist gang boss ( journeymen ), machinist sub-forman or keyman (journeyman), and machinist foreman , exclusive of all other employees , at all times material herein, constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. International Association of Machinists , Cinema Lodge 1185, was at all times material herein and now is the exclusive representative of all the em- ployees in such unit for the purposes of collective bargaining within the mean- ing of Section 9 (a) of the Act. 5. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, respondents Association, Uni- versal , Loew, RKO, and Warner have engaged in and are engaging in unfair . labor practices within the meaning of Section 8 ( 1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. Respondent Warner has not violated Section 8 ( 3) of the Act by the trans- fer and demotion of Royal M . Caldwell and Otto Keller. 8. Respondent Paramount has not violated Section 8 (3) of the Act by its refusal to hire Glenn C. Waters. 9 Respondents Paramount, Columbia , Goldwyn, Republic, Roach, and Twen- tieth Century have not violated Section 8o(3) of the Act. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. The respondents have not violated Section 8 (1) of the Act by the payment of bonuses to those employees who passed the picket line or performed the work of strikers during the strike of March 12 to October 31, 1945. 11. The respondents have not violated Section 8 (1) of the Act by interrogat- ing employees with respect to their union membership and affiliation. 12. The respondents have not violated Section 8 (5) of the Act by refusing to bargain collectively with the IAM. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that : A. Universal Pictures Company, Inc., Universal City, Los Angeles County, California ; Loew's Incorporated, Culver City, California ; RKO Radio Pictures, Inc., Los Angeles, California; and Warner Bros. Pictures, Inc., Burbank, Cali- fornia ; their officers, agents , successors, and assigns , shall : 1. Cease and desist from: (a) Discouraging membership in the Inter-national Association of Machinists, Cinema Lodge 1185, or in any other labor organization of their employees, by discharging, laying off, transferring, or demoting any of its employees, or in any other manner discriminating in regard to the hire and tenure of employment and any terms and conditions of employment ; (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist International Association of Machinists, Cinema Lodge 1185, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Make whole the employees listed in "Appendix A" for any. loss of pay they may have suffered by reason of the discrimination against them in regard to their hire and tenure of employment, in the manner set forth in the section entitled""The remedy," less their net earnings during the said period; (b) Transfer Robert E. Davis to his former place of work in the camera machine shop at respondent Warner in the manner set forth in "The remedy," if the said transfer can be accomplished with due regard to the physical facilities and employment practices of the respondent Warner ; (c) Post in conspicuous places throughout the studios of the respondents Universal, Loew, RKO, and Warner copies of the notice attached herewith marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, after being signed by the respondents' representatives, shall be posted immediately by the respondents on the receipt thereof and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material. B. The Association of Motion Picture Producers, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall: ASSOCIATION OF MOTION PICTURE PRODUCERS, INC . 533 1. Cease and desist from : (a) Advising, urging, or otherwise influencing its member producers, directly or indirectly, to discourage membership in the International Association of Machinists, Cinema Lodge 1185, or in any other labor organization of their employees, by discharging, laying off, transferring, or demoting any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment and any terms and conditions of employment ; (b) In any other manner advising or influencing the member Producer em- ployers, directly or indirectly, to deny to their respective employees rights guaranteed employees under the Act; (c) In any other manner interfering with, restraining, or coercing the em- ployees of its member Producers, including the employees of Universal Pictures Company, Inc. ; RKO Radio Pictures, Inc. ; Loew's Incorporated ; and Warner Bros. Pictures, Inc., in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. - 2. Take the following affirmative action, which the undersigned finds will ef- fectuate the policies of the Act : i (a) Immediately send copies of notices attached hereto and marked "Appen- dix C," after they have been signed by a representative of the Association, to all of its members, including all respondents herein. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, after being signed by the Association's representative, shall be posted also, immediately on receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are custom- arily posted. Reasonable steps, shall be taken by the Association to insure that said notices are not altered, defaced, or covered by any other material. It is further recommended that the respondents herein separately notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps each of them has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, respondents notify the Regional Director in writing that they will comply with the foregoing recommen- dations, the National Labor Relations Board issue an order requiring the re- spondents to take the action aforesaid. It is also recommended that the allegations of the complaint that the respon- dent Warner discriminated against Royal M. Caldwell and Otto Keller be dismissed. It is recommended that the allegation of the complaint that respondent Para- mount discriminated against Glen C. Waters be dismissed. It is also recommended that the allegations of the complaint that the respond- ents engaged in interference, restraint, and coercion by the payment of bonuses to employees who passed the picket lines or performed the work of strikers during the strike above described, be dismissed against all respondents. It is also recommended that the allegation of the complaint that the respond- ents engaged in interference, restraint, and coercion by interrogating employees with respect to their union membership and affiliation be dismissed as against all respondents. 809095-49-vol. 79-35 534 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is finally recommended that the allegations of the complaint that the re- spondents failed and refused to bargain collectively with the International Asso- ciation of Machinists , Cinema Lodge 1185, be dismissed as against all respondents. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board , Series 4, effective September 11, 1946 , any party or counsel for the Board may, within fifteen ( 15) days from the date of service of the order transferring the case to the Board , pursuant to Section 203:38 of said Rules and Regulations , file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period , file an original and four copies of a brief in support of the Intermediate 'Report , Immediately upon the filing of such statement of exceptions and/or briefs , the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further. provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten ( 10) days from the date of service of the order transferring the case to the Board. MORTIMER RIEMER, Trial Examiner. Dated April 30, 1947. APPENDIX A Robert E. Davis John M. Mobley Reginald G. Hill William J. Pickering Carl H . Homuth Robert Skager Elmer Johnson Glenwood C. Warren Edward J. Lorenz W. E. Zimmerman APPENDIX B NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with,, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations , to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, CINEMA LODGE 1185, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL make the employees named below whole for any loss of pay suffered as a result of discrimination. Reginald G. Hill John M. Mobley Carl H. Homuth William J. Pickering Elmer Johnson Glenwood C. Warren Edward J . Lorenz W. E Zimmerman ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 535 All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. I UNIVHRSAL PICTURES COMPANY, INC. Employer. Dated ------------------------- By --------------------------------------- (Representative) (Title) LOEW'S INCORPORATED Employer. Dated ------------------------- By --------------------------------------- (Representative ) (Title) RKO RADIO PICTURES, INC. Employer. Dated ------------------------- By --------------------------------------- (Representative ) (Title) WARNER BROS. PICTURES, INC. Employer. Dated ------------------------- By --------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX C NOTICE TO OUR MEML'EIRS AND THEIR EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT advise or influence our members directly or indirectly, to deny to their respective employees the rights guaranteed in the National Labor Relations Act; WE WILL NOT in any other manner interfere with, restrain, or coerce the employees of any of our members, in the right to self-organization, to form, join, and assist labor organizations, including INTERNATIONAL ASSOCIATION OF MACHINISTS, CINEMA LODGE 1185, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities; for the purpose of collective bargaining or other mutual aid or protection, 'as guaranteed in Section 7 of the National Labor Relations Act. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. Dated ----------------------------- By ----------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material.