Columbia Pictures Corp.

III the Matter of COLUMBIA PICTURES CORPORATION AND ASSOCIATION OF MOTION PICTURE PRODUCERS , INC and JOSEPH CuccTA In the Matter of COLUMBIA PICTURES CORPORATION AND ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. and IRWIN P. HENTSCHEL In the Matter of REPUBLIC PRODUCTIONS , INC. AND ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. and ROBERT AMES In the Matter of WARNER BROS. PICTURES , INC. AND ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. and L. G. BATCHELDER, PAUL DE SANCTIS, CARL H. GIDLUND, G. M. HAND, CHAS. JENSEN, LEO LAwB, R. M. LORA, H. C. MACDONALD, Dow MACKELLAR, W. J. SIMPSON, GEORGE STOICA, ROBERT BONNING, W. G. WHITE, JESSE L. SAPP, J. C. GOUDIE, CHAS. J. LARSON, FRED SEWARD, B. KENNETH COFFEY AND WILLIS HOWE In the Matter of WARNER BROS. PICTURES , INC. AND ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. and J. HAROLD ROGERS In the Matter of LOEW'S INCORPORATED AND ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. and GEORGE I. GROTH AND ROBERT L. SELGRATH In the Matter of TWENTIETH CENTURY-Fox FILM CORPORATION AND ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. and EUGENE V. MAILES In the Matter of RKO RADIO PICTURES, INC. AND ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. and FORREST MCLONEY Cases Nos. 21-C-2505, 21-C-2562, 21-C-2563, 21-0-2564, 21-C-2660, 21-C-2662, 21-C-2664, and 21-C-2665, respectively.Decided March 31, 1949 DECISION AND ORDER On March 20, 1947, Trial Examiner Mortimer Riemer issued his Intermediate Report in the above -entitled proceeding, finding that certain of the Respondents had engaged in and were engaging in 82 N. L. R. B., No. 70. 568 COLUMBIA PICTURES CORPORATION 569 certain unfair labor practices 1 and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that Respondent RKO had not engaged in the alleged unfair labor practices, and that certain other Respondents had not engaged in certain other alleged unfair labor practices and recommended that these allegations of the complaint be dismissed and that the complaint be dismissed as against Respondent RKO. The Respondents, the Alliance and certain of the complainants 2 filed exceptions to the Intermediate Report and briefs in support of their exceptions. On July 13, 1948, upon request of the Respondents and the Alliance, and pursuant to notice, the Board, at Washington, D. C., heard oral argument. The Respondents, the Alliance, and certain of the complainants were represented by counsel and partici- pated in the argument. 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 Inter- mediate Report, the exceptions and briefs, the contentions advanced at oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and modifications set forth below. 1. We agree with, and adopt, the finding of the Trial Examiner that Respondent Association is an employer within the meaning of the Act.3 2. We are of the opinion that the Trial Examiner correctly denied the Respondents' motion to dismiss the complaint insofar as it alleged discrimination against Seward, Coffey, Howe, and Stanley, on the ground that no charge had been filed on their behalf. There is ample authority to the effect that the contents of the charge do not limit the scope of the complaint, and that a respondent is not prejudiced by failure of the charge to include particular unfair labor practices later litigated so long as the respondent had ample notice and opportunity 1 The provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act, which the Trial Examiner found certain of 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. 2 Joint exceptions and briefs were filed on behalf of complainants Robert W. Ames, George M. Hand, Irwin P. Hentschel, Charles Jensen, Leo Leonard Lamb , Raymond M. Lora, Eugene V. Mailer, Jesse L. Sapp, John L. Selgrath, George Stoica, Jr., and William G. White. Complainants Robert N. Bonning and William J. Simpson each filed a letter, which has been considered as exceptions. 2 Matter of Association of Motion Picture Producers, Inc., et ai., 79 N. L. it. B. 466. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to defend.4 In the instant case, the Respondents do not contend that they were surprised or had insufficient notice.5 3. The Trial Examiner found that Respondent Warner discrim- inatorily discharged 14 prop makers 6 on March 19, 1945, in violation of the Act. We do not agree that they were discharged. Within a few hours after "Off Payroll Notices" were distributed to the entire morning shift of 38 prop makers,7 Francis E. Fuhrmann, head of Re- spondent Warner's technical department, called the "discharged" prop makers to the Warner studio. Addressing them as a group, Fuhrmann urged them to keep the studio operating. They agreed to do so under certain conditions, which Fuhrmaml apparently accepted. Later, Fuhrmann telephoned some of the prop makers, stated that he could not keep the agreement, and asked the prop makers to come to work the next morning as carpenters. None complied. On March 22, the prop makers, by a vote of 19 to 16, determined to return to work under the terms laid down by Fuhrmann.$ The following day, the majority of the prop makers did, in fact, return to the studio. Despite Respondent Warner's policy of taking discharged employees back as new employees with no seniority, Fuhrmann testified that those returning on March 23 were not rehired as new employees and had never been taken off the pay roll. During the remainder of the strike, complainant Stoica, one of the "discharged" Warner prop makers, saw Fuhrmann several times and asked for his old job. Fuhrmann told him that unless he agreed to work in the carpenter shop, he could not work again for Respondent Warner. On this point, Fuhrmann testified as follows : 4 Consolidated Edison Company of New York, Inc, at al v N. L. R. B., 305 U S. 197 ; Matter of Nebel Knitting Company, Inc , 6 N. L. R B. 284, affirmed 103 F. ( 2d) 594 (C. C. A. 4) ; Matter of Bird Machine Company, 65 N L. It. B. '311 ; and Matter of The Hills Brothers Company, 67 N. L. R. B. 1249. See also National Licorice Company v. N. L. R. B , 309 U. S 350. In N. L. R. B v. Hopwood Retinning Co., Inc., at al., 98 F. (2d) 97 (C. C A. 2 ), cited by the respondents , charges were filed against Hopwood. During the hearing, the complaint was amended so as to add Monarch as a party respondent. The court refused to enforce the Board 's order against Monarch. The Hopwood case is distin- guishable from the instant case and the cases cited above, for there Monarch had insufficient notice and was not accorded a reasonable opportunity to prepare its defense. 6 With respect to complainants Seward, Coffey, and Howe, a verified charge was filed with the Board, but it was neither formally docketed nor served on the Respondents. However, counsel for the Respondents discussed these three cases with a representative of the Board. Moreover, the original consolidated complaint , which contained all four names , was served on the Respondents on July 19, 1946, almost 2 months before the hearing. We note, also, that the Respondents did, in fact , offer testimony at the hearing with respect to the dis- charges of Seward, Coffey, Howe, and Stanley. 6 Complainants Batchelder , Bonning , De Sanctis , Gidlund, Hand , Jensen, Lamb, Lora, MacKellar, Rogers, Sapp, Simpson, Stoica and White 7 Fuhrmann testified that "Off Payroll Notices," such as were issued to the prop makers on March 19, were customarily given to employees temporarily laid off as well as to dis- charged employees. The "Off Payroll Notices" do not contain any reference to "discharge" or to "termination." 8 We note that Gibbons, a representative of Respondent , attended the meeting at which this vote was taken , and urged the men to return to work as carpenters. COLUMBIA PICTURES CORPORATION 571 Q. And the only way any of them could have gone back to work after March 19th, 1945, was by being willing to go into the car- penter shop. Is that correct? A. By being willing to go into the carpenter shop, or if we had prop work to do, they would come in as prop makers. In September, two other prop makers returned to the studio and performed carpenter work.9 After the termination of the strike, the prop makers who had not previously returned to work applied for reinstatement. One 11 was reinstated almost immediately and several others were taken back at later dates n In view of the above circumstances, we are convinced that the issuance of "Off Payroll Notices" to the prop makers on March 19 was only a tactical maneuver designed to encourage them to accede to Respondent Warner's demand that they perform carpentry work. The record is clear that any of them could have been reinstated during the strike, if only they agreed to the terms imposed upon them. In fact, the pressure thus brought to bear was successful in securing the capitulation of the majority. It is therefore evident that those.who held out to the end had not been discharged, but voluntarily and collectively withheld their labor rather than indulge in conduct which violated their principles. In effect, they were engaging in a concerted refusal to work, for their mutual aid and protection. Hence, they were strikers 12 and should be treated no differently, in view of the Cincinnati Agreement, than the other strikers mentioned in Section 5, infra. 4. The Trial Examiner found that three other complainants em- ployed by Respondent Warner 13 refused to cross the picket line established by the CSU on March 12, 1945, and remained away from the studio for the duration of the strike. He further found that seven other complainants, employees of various Respondents,14 voluntarily absented themselves from their jobs rather than perform the work of striking employees. We adopt these findings.15 Accordingly, we are of the opinion that these complainants, like the Warner prop makers, were strikers, engaged in concerted activities for their mutual aid and protection. G. Schnell and Harold R. Horner. These employees are not complainants herein. 10 Complainant Paul De Sanctis. " See footnote 17, infra. 12 We do not adopt the Trial Examiner's finding that the Warner prop makers were "partial strikers " is Complainants John G. Goudie , Kenneth B Coffey, and Willis F. Howe. 14 Complainants Larson, Seward, and Stanley, employed by Respondent Warner ; Cuccia and Hentschel , employees of Respondent Columbia ; and Groth and Selgrath, employed by Respondent Loew's. 16 We reject the contention of the complainants that these complainants were construc- tively discharged. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. From October 15 to 24,1945, while the CSU strike was in progress, the Executive Council of the AFL met in Cincinnati, Ohio, to resolve the dispute which had led to the CSU strike. It appears that the Respondents and the Alliance were represented at these meetings. On October 25, the Executive Council of the AFL issued a document re- ferred to as the Cincinnati Agreement. Among other provisions, it ordered that the CSU strike be terminated and that "all employees re- turn to work immediately." This directive was accepted by the unions involved, including the Alliance. While all parties concerned apparently understood that all employ- ees who had been "on call" on March 12, 1945, should return to the jobs they held on that date, a dispute soon arose as to whether or not employees who would be displaced by the returning strikers were to continue to work. To settle this conflict, representatives of the Re- spondents, the Alliance, and the CSU unions went to Washington, reviewed the minutes of the Cincinnati meetings, and conferred with the Executive Council of the AFL. As a result, the Executive Council issued a "clarification" which stated, in effect, that the Cincinnati Agreement had directed that both strikers and replacements were to be employed for at least 60 days, within which period a jurisdictional award was to be made. Furthermore, the Executive Council directed that the Respondents should exercise their "usual prerogative" as to where they assigned their employees to work. In other words, strikers as well as replace- ments were to return to work pending a jurisdictional award, and the Respondents in the meantime had discretion to assign the work among both groups in any manner the Respondents desired. Clearly, the Respondents and the Alliance accepted the Cincinnati Agreement and its "clarification." Under these agreed terms, the CSU strikers returned to work on October 31, 1945. The 24 complainants discussed above had been "on call" on March 12, 1945, the day the strike commenced. They therefore came within the provisions of the Cincinnati Agreement and were entitled to be reinstated to their old jobs after October 31, 1945, on equal terms with the CSU strikers?' All sought reinstatement. The Respondents, how- ever, instead of rehiring these complainants, obliged them to obtain clearance from the Alliance solely because of their activities during the strike. This is unquestionably demonstrated by the instructions issued to the Respondent producers by Fred E. Pelton, the producers' labor administrator, on October 31, 1945. Those few who eventually 26 We reject the contention of the Respondents that the Cincinnati Agreement had no application to recalcitrant Alliance members. COLUMBIA PICTURES CORPORATION 573 secured the necessary clearance from the Alliance were subsequently reinstated,17 but the remainder have never been taken back." Having obligated themselves to take back all strikers, the Respond- ents could not lawfully discriminate against the complainants solely because of their activities during the strike.19 And this is true even though the Respondents, absent the Cincinnati Agreement, might per- haps have justified their discriminatory conduct on the grounds of the strike's arguably "illegal" character. However, whatever defense the Respondents might otherwise have had was waived by the Cin- cinnati Agreement. Thus the Respondents may not now be heard to say that the concerted activities in which the complainants engaged were not protected by the Act. As was said by the Court in the Hazel-Atlas case : 20 In this instance the employer was under no legal compul- sion to take the strikers back since they had violated the govern- ing agreement; but when their breach was overlooked, and it was decided to reinstate them, they were entitled to even handed treatment, and the exclusion of any of therm for reasons con- demned by the statute would have been an unfair labor practice. Pelton's instructions to the Respondent producers cannot be recon- ciled with the over-all settlement of the strike contained in the Cin- cinnati Agreement. As between the two, the terms of the Cincinnati Agreement must prevail, as it was binding on the Respondents and the Alliance. Nor could the Respondents escape responsibility for their discriminatory conduct by the device of requiring the complain- ants, as a condition precedent to obtaining their rights under the 14 Complainant De Sanctis conferred with officials of the Alliance on November 6, 1945, and as a result was reinstated by Respondent Warner on November 7, 1945, as a new employee. Complainant MacKellar was reemployed by Respondent Warner on August 5, 1946, "through the union." Complainant Rogers was called by the Alliance on February 11, 1946, and was told to report to the studio the next day; accordingly , he was rein- stated by Respondent Warner on February 12, 1946. Complainant Selgrath received word from the Alliance on December 18, 1945, advising him to return to work the next day. On December 19, 1945, the Alliance advised Respondent Loew's that Selgrath could return to work in a lower paid position . Selgrath was reemployed by Respondent Loew's on December 19, 1945, as a new employee in a lower paid position . Complainant Stanley was reinstated by Respondent Warner about November 14, 1945, through a call to the Alliance. He was given a total of 6 days' work spaced over a period of 3 or 4 weeks. 11 So far as the record shows, the only complainant who was taken back without clear- ance from the Alliance was Irwin P. Hentschel. He was reinstated by Respondent Colum- bia on October 31, 1945, for 1 day only , then "laid off" at the end of his shift . We find that the "lay off" was, in fact, a discriminatory discharge because of Hentschel 's activities during the strike, motivated by Pelton's instructions of the same day. 39 L. M. Comes, Respondent Warner's chief electrician , admitted that he did not call back any employees who he knew had failed to cross the picket lines during the strike "unless they had good reason." Complainant Stoics testified that Carroll Sacks, Re- spondent Warner's labor relations manager, stated that he could not be reinstated because "it would be unfair to the men who had cooperated with the studio." 21 Hazel-Atlas Glass Company v. N. L. R. B., 127 F. (2d) 109 ( C. C. A. 4), at 118. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cincinnati Agreement, to secure clearance from the Alliance.21 We conclude that the complainants, like the CSU strikers, were entitled to be reinstated to their former positions on and after October 31, 1945, upon application. By discriminatorily refusing to reinstate complainants Batchelder, Bonning, Coffey, De Sanctis, Gidlund, Goudie, Hand, Howe, Jensen, Lamb, Larson, Lora MacKellar Rog- ers, Sapp, Seward, Simpson, Stanley, Stoica and White on the re- spective dates on which they applied for reinstatement 22 because of their collective activities during the strike, Respondent Warner has engaged in unfair labor practices. By discriminatorily discharging complainant Hentschel on October 31, 1945,23 and refusing to rein- state complainant Cuccia on November 15, 1945,24 Respondent Colum- bia has violated the Act. By discriminatorily refusing to reinstate complainant Selgrath on October 31, 1945,25 and complainant Groth on November 3, 1945, Respondent Loew's has engaged in unfair labor 21 We find no merit in the Respondents' contention that referral to the Alliance was required by the closed-shop contracts. Neither the wording of the contracts nor the previous conduct of the parties indicates that the contracts were meant to have such an effect. 22 We find that these complainants applied for reinstatement on the following dates : Batchelder, on October 31, 1945, as found by the Trial Examiner Bonning, on November 14, 1945, contrary to the Trial Examiner's finding. Coffey, on October 31, 1945, as found by the Trial Examiner. De Sanctis, on November 6, 1945, the day before he was reinstated as a new employee Reinstatement as a new employee, we find, was discriminatory. Gidlund, on October 31, 1945. Goudie, on October 31, 1945 Hand, on November 6, 1945, contrary to the Trial Examiner's finding. Howe, on October 31, 1945, as found by the Trial Examiner. Jensen, on November 6, 1945, as testified by De Sanetis Lamb, on October 31, 1945, as found by the Trial Examiner Larson, on November 2, 1945, contrary to the Trial Examiner's finding. Lora, on October 31, 1945, as found by the Trial Examiner 11IacKellar, on November 14, 1945 Rogers, on October 31, 1945, as found by the Trial Examiner. Sapp, on November 6, 1945. Seward, on October 31, 1945, as found by the Trial Examiner. Simpson, on'November 1, 1945. Stanley, on October 31, 1945, as found by the Trial Examiner. Although "rein- stated" in November 1945, he received a total of only 6 days' work spaced over a period of 3 or 4 weeks This intermittent employment, we hold, was not a bona fide rein- statement to his former position, but a discriminatory refusal to reinstate. Stoica, on October 31, 1945, contrary to the Trial Examiner's finding. White, on November 6, 1945, as found by the Trial Examiner. 23 See footnote 18, supra. 24 Cuccia set the date as "sometime in November 1945, right after the strike. It might be the first part of December." We adopt a mean date. 25 Respondent Loew's was advised by the Alliance on October 31 or November 1, 1945, that Selgrath was not in good standing as a member. Selgrath, in fact, was a member in good standing at all pertinent times Assuming, without deciding, that Respondent Loew's relied in good faith on this notice and, for this reason, refused to reinstate Selgrath, we believe that the refusal to rehire him was nevertheless discriminatory. See Matter of General Electric X-Ray Corporation, 76 N. L R B. 64. We are of the opinion that the Cincinnati Agreement superseded the closed-shop contract insofar as reinstatement of the strikers was concerned. We adopt the date of October 31, 1945, as the date of Selgrath's application for reinstatement, rather than the date of November 1, 1945, found by the Trial Examiner. COLUMBIA PICTURES CORPORATION 575 practices. By issuing orders to the Respondent producers on October 31, 1945, which caused Respondents Warner, Columbia, and Loew's to commit these unfair labor practices, Respondent Association has violated the Act. 6. The Respondents and the Alliance argue that the CSIJ strike was not protected activity, that the complainants were not engaged in protected activity because they were "wildcat" strikers, and that the Warner prop makers were properly discharged for insubordination because they attempted to stay on their jobs and draw pay while re- fusing to obey the lawful orders of the Respondents.26 If the com- plainants were not engaged in concerted activity protected by the Act, their conduct may have justified the Respondents in denying them reinstatement. But the Respondents waived this justification by joining in the Cincinnati Agreement.27 Having agreed to reinstate all striking employees (including the CSU strikers) in the interest of industrial harmony, the Respondents could not later discriminate against the complainants because of their conduct before the settle- lnent of the strike. The crux of the Respondents' unlawful discrim- ination is the disparity between their treatment of the complainants and their treatment of the CSU strikers, after having agreed to treat all alike.28 Accordingly, we find it unnecessary to decide herein whether or not, during the strike, the complainants were engaged in protected concerted activity.29 7. The Trial Examiner concluded that the Respondents violated Section 8 (3) of the Act by discriminating in regard to the hire and tenure of employment of the complainants, thereby discouraging mem- bership in the Alliance. The Respondents and the Alliance except to this conclusion, urging that the Respondents' conduct could not 26 As previously found , the Warner prop makers were not "discharged ." The "Off Pay- roll Notices" were merely a tactical maneuver. 24 Stewart Die Casting Corporation v. N. L. R. B., 114 F, (2d) 849 (C. C. A. 7), cert. den 312 U. S . 680; N. L. R. B. v. Aladdin Industries Inc., 125 F. ( 2d) 377 (C C. A. 7), cert. den. 816 U. S. 706; Matter of The Carey Salt Company, 70 N. L. R. B. 1099; Matter of Victory Fluorspar Mining Company, et al., 72 N. L. It. B . 1356; and Matter of The Fafnir Bearing Company, 73 N. L. It. B. 1008. 28 The Respondents argue that they did not rehire the complainants because there were no vacant jobs for them. In view of the fact that the Respondents reinstated all the CSU strikers despite their prior replacement , we find no merit in this contention Assum- ing, for the purposes of argument, that the complainants had been replaced during the strike, the same was undoubtedly true of the CSU strikers . The failure to reinstate the complainants, therefore , serves to emphasize the unequal treatment accorded them. Ac- cordingly , we need not, and do not, make any findings with respect to the replacement of the complainants during the strike. 29 For this reason, we shall not disturb the Trial Examiner 's refusal to take judicial notice of certain administrative and procedural matters arising in connection with the previous representation case ( 64 N. L. It. B. 490 ), offered for the purpose of showing the illegality of the CSU strike. We therefore need not rule on the motion of counsel for the Board and counsel for the Alliance that, if we overrule the Trial Examiner in this respect, the case be remanded for further hearing. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have discouraged membership in the Alliance. We are convinced and find that the discriminatory discharge and refusals to reinstate dis- cussed above constituted interference, restraint, and coercion of the complainants in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8 (1) of the Act. Viewing the discriminatory conduct as a violation only of Section 8 (1) of the Act, we find that effectuation of the policies of the Act requires the remedy set forth below 30 Accordingly, we do not adopt the Trial Exam- iner's finding that the Respondents' conduct discouraged membership in the Alliance in violation of Section 8 (3) of the Act. 8. The Trial Examiner found that sufficient reason existed for Re- spondent Warner's refusal to reinstate complainant Stanley in his old job on and after November 29, 1945,31 because of Stanley's mis- conduct on that date. We adopt this finding, to which no party excepts. 9. On motion of counsel for the Board, the Trial Examiner dis- missed the complaint against Respondent Warner, insofar as it al- leged the discriminatory discharge of H. C. MacDonald. We agree. 10. The Trial Examiner found that Respondent Republic discrimi- natorily refused to reinstate complainant Robert W. Ames on or about October 31, 1945. We do not agree. We adopt the Trial Examiner's finding that Ames' lay-off on March 29, 1945, was not motivated by Ames' refusal to perform carpentry work. As Ames was legitimately laid off, he remained a laid-off employee for the duration of the strike. As such, he was not covered by the terms of the Cincinnati Agreement. He was not a striker, and there is no evidence that he was refused re- instatement because of any concerted activity32 Accordingly, we find that the refusal to rehire Ames on or about October 31, 1945, was not a violation of the Act, and we shall therefore dismiss the complaint against Respondent Republic. 83 so Matter of Texas Textile Mills, 58 N. L. R. B. 353; Matter of Ever Ready Label Corpo- ration, 54 N. L. R. B. 551 ; Matter of Home Beneficial Life Insurance Co., 69 N. L. R. B. 82; and Matter of Spencer Auto Electric Inc., 73 N. L. R. B. 1416. See also N. L. R. B. v. Hymie Schwartz d/b/a Lion Brand Manufacturing Company, 146 F. (2d) 773 (C. C. A. 5), enf'g as mod. 55 N. L. R. B. 798. 81 Stanley was not discharged on November 29, 1945, but merely taken off the call list. After that date, Respondent Warner would not have called him directly , but would have accepted him if he had been sent by the Alliance in response to a general request for "more men." 82 Ames testified that, when he applied for reinstatement after the strike had terminated, he spoke to MacDonald, Respondent Republic's personnel manager. According to Ames, MacDonald said : "Well, your case is different, Ames. You weren't on strike, were you?", and Ames replied ; "No, but since I was laid off I have respected picket lines." It is difficult for us to conceive how an employee , while laid off, can "respect" picket lines. Ames' testimony clearly stamps him as a laid-off employee, rather than a striker. 's Case No. 21-C-2563. The alleged discriminatory refusal to reinstate Ames was the only violation of the Act of which the Trial Examiner found Respondent Republic to have been guilty. COLUMBIA PICTURES CORPORATION 577 11. The Trial Examiner found that Respondent Twentieth Century discriminatorily refused to reinstate complainant Eugene V. Mailes on October 31, 1945. We do not agree. Mailes worked at his regular job during the strike and up to October 1, 1945. During that time he as never asked to perform any work over which the jurisdiction of any of the striking CSU unions had been clearly established. On October 1, 1945, Mailes wcnt on his regular paid vacation which was authorized to run from October 1 to 13, 1945, inclusive. However, he did not report for work again until after the strike was ended. As set forth in the Intermediate Report, he made certain attempts to secure an indefinite extension of his vacation, without pay. It appears that Mailes did not obtain the necessary extension in the prescribed manner, and was therefore dropped from the pay roll after 6 days of unauthorized absence, in accordance with Respondent Twentieth Cen- tury's custom.- There is some evidence that the refusal to reinstate Mailes was based, in part, on Respondent Twentieth Century's belief that he had voluntarily quit.85 Mailes' actual reason for remaining away from his job from the end of his approved vacation until the termination of the strike is not clear. 36 In view of the fact that, prior to his vacation, Mailes had continu- ously crossed the picket line over a period of more than 6 months and had not been asked to perform strikers' work, we cannot assume that Mailes became a striker. Moreover, we agree with the finding of the Trial Examiner that Mailes had requested an indefinite extension of his vacation without pay, and had reasonable ground to believe that his request had been granted. The essence of i strike is the voluntary concerted withholding of labor requested by an employer. It would therefore be illogical to consider as a striker an employee who had re- quested and who believed he had obtained permission to absent himself from work. A striker does not seek permission to strike. Conse- quently, we find that Mailes was not a striker and was not covered by the terms of the Cincinnati Agreement. Accordingly, we find that the refusal to reinstate Mailes on October 31, 1945, was not a violation of 34 The Respondent introduced into evidence a "Daily Report of Changes in Personnel" bearing an "effective date" of October 13, 1945, and stamped October 22, 1945. It lists Mailes under "employees closed today." The Trial Examiner refused to accord any weight to this document on the ground that it was prepared on Octobe,- 13, 1945, before Mailes was due to return. We do not agree. We find that the document was prepared on October 22, 1945, effective as of October 13, 1945, rod have given it due consideration. 85 Mailes testified that Meyer, Respondent Twentieth Century's personnel manager, told him in November 1945, "that the information he had had from the pay roll department was that I had voluntarily quit my job." Se Mailes testified that, on October 15, ls,45, he told his superior h-, desired an extension because "there was a chance of some of us being instrumental in bringing it (the strike) to a quick and amicable conclusion." He further testified that , a few days later, he told another superior he wanted an extension "because of the increased Violence on the picket line." 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act. -We shall therefore dismiss the complaint against Respondent Twentieth Century.37 12. On motion of counsel for the Board, the Trial Examiner dis- missed the complaint against Respondent RKO, insofar as it alleged the discriminatory refusal to reinstate complainant Forrest McLoney from October 31 to December 27, 1945. As the record discloses no .evidence that Respondent RKO engaged in any other conduct violative of the Act, we shall dismiss the complaint against Respondent RKO in its entirety.-38 13. We agree with the Trial Examiner's conclusions that, under the circumstances of this case, the alleged "bonus" payments were not unlawful, and that the Respondents did not violate Section 8 (1) ,of the Act by making such payments 39 14. In view of the fact that we have found Respondent Warner guilty of violating Section 8 (1) of the Act, we deem it unnecessary to determine whether or not Fuhrmann's alleged threat to the Warner prop makers constituted a further violation of Section 8 (1). We therefore do not adopt the Trial Examiner's finding in this respect. 15. We adopt the Trial Examiner's finding, to which no exception was taken, that the Respondents have not violated Section 8 (1) of the Act by interrogating employees with respect to their union mem- bership and affiliation. TB E REMEDY Having found that Respondents Warner, Columbia, Loew's and Association violated S(*ction 8 (1) of the Act, we shall order that these Respondents cease and desist therefrom and take certain affirm- ative action which we `ind necessary to effectuate the policies of the Act. a. Complainants expelled from the Alliance At all material times, the respondent producers were parties to a collective bargaining contract with the Alliance which covers various units containing the' complainants. This agreement contains closed- shop provisions. About 8 months after the discriminatory refusals to reinstate the complainants, certain of the complainants 40 were 3' Case No. 21-C-2664. The alleged discriminatory refusal to reinstate Mailes was the only violation of the At of which the Trial Examiner found Respondent Twentieth Cen- tury guilty. 88 Case No . 21-C-2665. 39 Matter of _4ssocietion of Motion Picture Producers , lite, et al , 79 N L R B. 466 See also R. H Macy d Co. Inc., v. New Yorli State Labor Relations Board, et at, 79 N Y. Sup 2d 847 ( N Y Sup . Ct N Y. County) 40 Under sentence dated May 31, 1946 , and sorved on June 14, 1946 , complainants Gid- lund, Hentschel , Lamb, Lora, Sapp, and Stoica were expelled from the Alliance and complainants Batche'der and Hand were suspended for a period of 6 months starting COLUMBIA PICTURES CORPORATION 579 expelled or suspended from membership in the Alliance. The record is silent as to the reasons for these expulsions and suspensions. The validity of the closed-shop contract is not in question, nor is it disputed that the complainants came within its coverage. The Respondents and the Alliance contend that the expelled and suspended complainants have rendered themselves ineligible ,for employment and that the Board is consequently without authority to order their re- instatement. The Trial Examiner, rejecting these arguments, rec- ommended the reinstatement of the expelled and suspended com- plainants, and the Respondents and the Alliance have excepted to this ruling. We find merit in these exceptions. In considering this matter, we need not pass upon the extent of the Board's power to reinstate the complainants in question. We think that, under the circumstances of this case, it would be unwise to, override the con- tractual rights and obligations of the parties to, a valid closed-shop contract, and thus undermine the effective disciplinary power of the Alliance.41 T)Iereftlre, it would not effectuate the policies of the Act to order the reinstatement of those complainants who. were ex- pelled or suspended from the Alliance. We shall award back pay to each of them only up to the date of his expulsion or suspension, as the case may be. Complainants Gidlund and Lamb were discriminatorily denied reinstatement by Respondent Warner on October 31, 1945, and com- plainant Sapp on November 6, 1945. They were expelled from the Alliance under sentence served on June 14, 1946. Consequently, we shall not order their reinstatement. We shall, however, order Re- spondent Warner to make them whole for any loss of pay they may have suffered by reason of the discrimination against them by pay- ment to each of them of a sum of money equal to that which he normally would have earned as wages from the date he was refused reinstatement, to June 14, 1946, the date he became ineligible for reemployment, less his net earnings during said period 42 June 17, 1946, and fined $300 each, payable within 2 months on pain of automatic expul- sion. Neither Batcheldei nor Hand paid the fine The Respondents were notified of these expulsions and suspensions on June 14, 1946 41 The expulsions and suspensions discussed above occurred more than 8 months after the termination of the strike, and the grounds therefor are not disclosed In view of the lapse of time and the fact that other recalcitrant Alliance members continued in good standing, we cannot assume that the expulsions and suspensions were related to the complainants' activities during the strike The Cincinnati Agreement therefore had no application to this situation Consequently, these cases differ materially from the case of complainant Selgrath, discussed in footnote 25, supra. 42 The Respondents maintain that Sapp made no reasonable effort to obtain employment after being refused reinstatement This contention is apparently based on the fact that Sapp, because of illness, refused a job offered by Respondent Columbia The record reveals that Sapp signed the Alliance call book on November 9, 1945, only 3 days after 580 DECI8IONS OF NATIONAL LABOR RELATIONS BOARD Complainant Lora was discriminatorily refused reinstatement on October 31, 1945. He was expelled from the Alliance by sentence served on July 14, 1946. Accordingly, we shall not order him re- instated. We adopt the Trial Examiner's finding that Lora made no particular effort to secure employment after April 1, 1946. We therefore adopt that part of the Trial Examiner's recommendation which deals with Lora's reimbursement, except that his back pay shall commence on October 31, 1945.43 Complainant Stoica was discriminatorily refused reinstatement on October 31,1945. By sentence served on June 14,1946, he was expelled from the Alliance. Consequently, we shall not direct his reinstate- ment. The Respondents maintain that Stoica did not make reason- able efforts to obtains employment, relying on the facts that he refused an offer of employment by Respondent Columbia on November 16, 1945; that he declined several jobs offered him by hardware manu- factui ing companies, and that he spent time collecting donations for the complainants. We are of the opinion that Stoica had reasonable grounds for refusing the jobs tendered him44 Moreover, it is undis- puted that Stoica signed the Alliance call book on November 9,1945, that he registered with the United States Employment Service '411 that he had been refused reinstatement. On November 24, 1945, the Alliance sent him a tele- gram reading : PLEASE NOTIFY THIS LOCAL UNION IF YOU ARE AVAILABLE TO ACCEPT EMPLOYMENT IN POSITIONS WHICH WE MAY HAVE TO OFFER OR ADVISE WHAT YOU WILL ACCEPT He replied 2 days later as follows WILLING AND ANXIOUS TO ACCEPT POSITION HELD ON MARCH 12. PLEASE ADVISE. Moreover, Sapp was employed for 6 months by the Yalta Restaurant Company and was supervising construction work for one Simon Lazarus, at the time of the hearing Under all the circumstances, we are persuaded that Sapp made reasonable efforts to obtain employment 43 The complainants urge that "consideration should be given to whether he registered with the U S. E S. and whether he refused to accept offers of employment made through the U. S E. S " Registration with the United States Employment Service is conclusive evidence that a reasonable search for employment has been made Matter of The Ohio Public Service Company, Inc., 52 N. L. It. B 725; and Matter of Montgomery Hardwood Flooring Company, Inc, 72 N L R B 113. Accordingly, Lora's back pay may be in- creased by adding thereto any periods between April 1 and July 14, 1946, during which he was registered with the United States Employment Service and did not unreasonably refuse tendered employment or unreasonably quit employment entered upon, less his net earnings during said periods. 44 Stoica testified without contradiction that he rejected the Columbia job because it was on the night shift, was for only 1 or 2 days, and was under one Bendowsky, whose name was on a list of witnesses against Stoica attached to charges filed against him before the Alliance. He also stated that he turned down the hardware positions because "the rate of pay was so low, I wouldn't have been able to support the family . . . just a fraction of what the studios used to pay me." 41 Alliance locals maintain call books upon which a member desiring employment may enter his name Studios seeking employees are sent available men from among those listed in the call books. 46 See footnote 43, supra. The record does not disclose the date on which Stoica regis- tered with the United States Employment Service. COLUMBIA PICTURES CORPORATION 581 he worked 3 weeks at Respondent Republic and 2 days on the Ice Follies, and that he has been working at the Universal studio since May 1946. Stoica testified that from October 31, 1945, until "about February 1946," he spent full time collecting donations for the com- plainants and others. Under these circumstances, we find that, after February 1, 1946, Stoica made reasonable efforts to secure employ- ment. Accordingly, we shall order Respondent Warner to make him whole for any loss of pay he may have suffered by reason of the dis- crimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from Febru- ary 1, 1946,47 to June 14, 1946, the date he disqualified himself for employment, less his net earnings during said period. Complainant Hentschel was discriminatorily discharged by Re- spondent Columbia on October 31, 1945." He was expelled from the Alliance by sentence served on July 14, 1946. Accordingly, we shall not order his reinstatement. We shall, however, order Respondent Columbia to reimburse him for loss of wages in the same manner in which we have heretofore ordered Respondent Warner to reimburse complainants Gidlund, Lamb, and Sapp. Respondent Warner discriminatorily refused to reinstate com- plainant Batchelder on October 31, 1945, and complainant Hand on November 6, 1$45. They were fined and suspended from the Alliance effective June 17, 1946, and subsequently automatically expelled for failure to pay the fines. Accordingly, we shall not order their rein- statement. We shall order Respondent Warner to make them whole for any loss of pay they may have suffered by reason of the discrimi- nation against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date he was refused reinstatement, to June 17, 1946, the date he became ineligible for reemployment, less his net earnings during said period. b. Other complainants Complainant Bonning was discriminatorily refused reinstatement on November 14, 1945.49 He obtained permanent work elsewhere in May or June 1946, and has not desired reinstatement since that time. Accordingly, we shall not order him reinstated. We adopt the rec- 44 Stoica's back pay may be increased by adding thereto any periods between October 31, 1945, and February 1, 1946, during which he was registered with the United States Employ- ment Service and did not unreasonably refuse tendered employment or unreasonably quit employment entered upon , less his net earnings during said periods. 48 See footnote 18, supra. 41 See footnote 22, supra. In view of this finding, we reject Bonning's contention that his back pay should commence March 19, 1945. 838914-50-vol 82-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ommendations of the Trial Examiner with respect to his reimburse- ment, except that his back pay shall commence on November 14, 1945. Complainant De Sanctis applied for reinstatement on November 6, 1945, and was reinstated on the following day as a new employee. We have found that his reinstatement as a new employee was discrimina- tory,50 as it necessarily deprived him of his accumulated seniority.5' We are of the opinion that nothing short of an order of reinstatement would provide him with adequate protection and effectuate the pur- poses of the Act. Accordingly, we shall order Respondent Warner to offer De Sanctis immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his senior- ity or other rights and privileges. It does not appear affirmatively that De Sanctis suffered any monetary loss. However, we shall order Respondent Warner to make him whole for any loss of pay he may have suffered by reason of his discriminatory reinstatement as a new employee, in the event that any such loss has occurred. Complainant Goudie was likewise discriminatorily refused rein- statement on October 31, 1945. He desires reinstatement. The Re- spondents maintain that he wilfully incurred losses in earnings by failing to make a reasonable effort to obtain employment after he was denied reinstatement. Goudie signed the Alliance call book on Febru- ary 14, 1946. He received 5 days' employment at Respondent Re- public, but did not sign the call book again after that. The record discloses no other efforts by Goudie to obtain work. We find that Goudie did not make the kind of effort to obtain other employment which, under present conditions, a discharged employee may reason- ably be expected to make. His loss in earnings is therefore found to have been a wilfully incurred loss, for which Respondent Warner should not, and will not, be directed to reimburse him.52 We shall, however, adopt the Trial Examiner's recommendation with respect to Goudie's reinstatement. Complainant Jensen was, as we have found, discriminatorily re- fused reinstatement on November 6, 1945. The parties stipulated that Jensen is now employed by Respondent Twentieth Century and, since obtaining this employment in February 1946, has no desire to be reinstated to his former position with Respondent Warner. Ac- cordingly, we shall not order Jensen reinstated. We shall, however, adopt the Trial Examiner's recommendations with respect to his re- 11 See footnotes 17 and 22, supra. 51 De Sanctis testified that he had worked for Respondent Warner "about 4 or 5 years." Fuhrmann testified that Respondent Warner's practice on lay-offs, despite the seniority provisions of the Alliance contracts , was to prefer those who had the greatest seniority with the company. 32 Matter of Carroll's Transfer Company, 56 N. L. R B. 935. COLUMBIA PICTURES CORPORATION 583 imbursement, except that his back pay shall commence on November 6, 1945. Complainant Larson, we have found, was discriminatorily denied reinstatement on November 2, 1945. He desires to be reinstated. The Respondents maintain that Larson failed to make a reasonable effort to obtain employment elsewhere. We find merit in this contention. Like complainant Goudie, Larson signed the Alliance call book on February 14, 1946. He did not receive any calls, but explained this by saying, "One trouble was I did not have no telephone at the time, or they probably would have called me." The record does not disclose that he made any further effort to obtain work. He testified as follows : Q. Did you sign it again or keep your name in the call book? A. No. Q. Did you have another job? A. No. Qa Don't you want a job? A. For Warner Bros, yes. Q. Anybody else? A. Not necessarily, no. Q. Well, you were not willing to work for anybody else except Warner Bros., were you? A. Well, I left Warner Bros., and figured I was entitled to go back there. Q. Did you make an effort to get another job? A. No. Under the circumstances, we do not believe that Larson made a reasonable effort to obtain employment elsewhere and we shall not order Respondent Warner to reimburse him for his willfully incurred loss of earnings. We shall, however, adopt the Trial Examiner's recommendation with respect to Larson's reinstatement. Complainant MacKellar was discriminatorily refused reinstatement on November 14, 1945. He was reinstated by Respondent Warner on August 5, 1946.53 Accordingly, we shall not order his reinstatement. It appears that MacKellar spent the first 3 months after he was refused reinstatement working on his house and thus voluntarily made himself unavailable for employment during that period. Accordingly, we shall order Respondent Warner to make MacKellar whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to hint of a sum of money equal to that which he normally would have earned as wages from February 1, 1946, to " We do not accept the date of August 1, 1946, adopted by the Trial Examiner as the date on which MacKellar was reinstated 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 5, 1946, the date of his reinstatement, less his net earnings during said period. Complainant Rogers was discriminatorily refused reinstatement on October 31, 1945. He was reinstated by Respondent Warner on February 12, 1946. Accordingly, we shall not order him reinstated. We shall, however, adopt the recommendation of the Trial Examiner with respect to Rogers' reimbursement, except that his back pay shall commence on October 31, 1945. Complainant Seward was discriminatorily denied reinstatement on October 31, 1945. He desires reinstatement. As justifiably pointed out by the Respondents, Seward made no effort to find work prior to December 1945. At that time, he left on a motor trip, was hospitalized, and was not available for reemployment for 2 or 21/2 months. After regaining his health, he notified the Alliance that he desired employment, and also worked for 3 months laying cement blocks. We are of the opinion that Seward was not entitled to back pay for any period prior to his recuperation. We shall, therefore, adopt the Trial Examiner's recommendations with respect to the re- instatement and reimbursement of Seward, except that his back pay shall commence from the date of his recuperation from his illness. Complainant Simpson was discriminatorily refused reinstatement on November 1, 1945. He desires reinstatement. Simpson was ill and unable to work from about June 1, 1945, to about January 1,1946.54 We shall adopt the recommendations of the Trial Examiner with respect to Simpson's reinstatement and reimbursement, except that his back pay shall commence on January 1, 1946, the date on which he was able to resume his employment. Complainant White was discriminatorily denied reinstatement on November 6, 1945. He desires reinstatement. The Respondents maintain that White made no reasonable efforts to find work.55 We do not agree. White worked for the Yalta Restaurant Company for an undisclosed period of time, and obtained "a couple of days' work, one place and another." In addition, he spent part of time working 54 Simpson testified that he was ill and unable to work for a period of approximately 7 months. He testified that the "discharge " by Respondent Warner made him "very ill" and that "the results of this strike and being discharged , the fact that this is the first job that I was ever discharged from in my life and my association on the Warner Bros .' lot touched me to a point where I had a complete collapse and a break-down ." Simpson maintains that, since his illness was caused directly by his discriminatory "discharge," this period of time should not be deducted from his back-pay order. We do not agree. We note that the "discharge" occurred March 19, 1945, while Simpson's illness commenced several months later. Under all the circumstances , we are not convinced that Simpson's illness can be attributed to the actions of Respondent Warner. 55 This contention is apparently based on White's following testimony : Q. Did you make any effort to get work? A. I worked when I wanted to work. Q. You were able to work whenever you wanted to work , weren't you? A. That's right. COLUMBIA PICTURES CORPORATION 585 on a small walnut ranch which he owns.56 We find that White made reasonable efforts to obtain employment. Therefore, we shall adopt the recommendations of the Trial Examiner with respect to the re- instatement 51 and reimbursement of White, except that White's back pay shall commence on November 6, 1945. Complainant Cuccia, we have found, was discriminatorily denied reinstatement on November 15, 1945. He desires reinstatement. Fol- lowing the refusal of his request for reinstatement, Cuccia was in business for himself until February 1946. After that, he testified, he did not attempt to get other employment and, at the time of the hear- ing, he was "living on my twenty dollars a week right now." The Respondents maintain that, after February 1946, he made no reason- able effort to find work.68 We cannot agree. In view of the fact that Cuccia is a veteran of World War II, we assume that the "twenty dollars a week" mentioned by Cuccia referred to benefits received by him under the Servicemen's Readjustment Act of 1944.59 Registra- tion with a public employment agency is a condition precedent to the receipt of such benefits.80 We therefore conclude that Cuccia made a reasonable search for employment during such periods as he was 08 White does not live on the ranch . We consider the time he spent working on this ranch as a period of self-employment. 67 White is a supervisor. However, exclusion of supervisors from coverage of the amended Act does not affect the Board's power to issue an appropriate order to remedy unfair labor practices involving supervisors which occurred prior to the effective date of the Labor Management Relations Act, 1947. Matter of Republic Steel Corporation ( Upson Devision), 77 N. L. R. B. 1107. "The Respondents apparently base their contention that Cuccia did not make a reason- able effort to work upon his following testimony on cross -examination . Q. Did you work during the period of the strike anywhere? A. No, I did not. Q. Not any place? A. Not any place. Q. Did you try to get work? A. No. I went in the trucking business in which I unfortunately went broke. s r t * ► • Q. All right. After the strike, did you work anywhere? A. No, I did not. Q. Did you try to work anywhere? A. No, I did not. Q. Are you working now? A. I am living on my twenty do'.lars a week now. i µ • n t a • Q. All right. Then did you work anywhere after the latter part of February, 1946? A. No, I didn't then. Q. Did you try to get work anywhere? A. I have been trying to go back to Columbia, yes. Q. Did you try to get work anywhere else? A. No, I didn't. " 38 U. S. C. A. § 693, et seq B0 The Servicemen's Readjustment Act of 1944 provides, in part, as follows : "Such person shall be deemed eligible to receive an allowance for any week of unem- ployment if . . . the person is registered with and continues to report to a public employment office, in accordance with its regulations ...' 38 U. S. C. A. § 696. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD registered with a public employment agency. We adopt that part of the Trial Examiner's recommendation which requires Respondent Columbia to reinstate Cuccia . In addition, we will order Respondent Columbia to make Cuccia 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 November 15, 1945, to the date of the offer of reinstatement, less his net earnings during said period, and exclud- ing such periods, if any, after February 1, 1946, during which he was not registered with a public employment agency and made no reason- able efforts to secure employment. We adopt the recommendations of the Trial Examiner with respect to the reinstatement of complainants Coffey and Howe by Respondent Warner, and of complainant Selgrath by Respondent Loew's. We likewise adopt his recommendations as to the reimbursement by Re- spondent Warner of complainants Coffey ,81 Howe, and Stanley, and by Respondent Loew's of complainants Groth and Selgrath. We shall order Respondent Association to cease and desist from committing the unfair labor practices which we have found it com- mitted. We shall dismiss the complaint as to Respondents Republic, Twentieth Century, and RKO, as we have found that these Respond- ents did not violate the Act. ORDER 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. Respondents Warner Bros. Pictures, Inc., Burbank, California, Columbia Pictures Corporation, Los Angeles, California, and Loew's Incorporated, Culver City, California, and their respective officers, agents, successors, and assigns, shall : 61 The Respondents maintain that Coffey made no reasonable effort to obtain work. This claim is apparently based upon his failure to re-sign the Alliance call book after he was laid off by Respondent Republic and his following testimony on cross-examination : Q. Were you employed steadily during the early part of 1946? A. It wasn't necessary. Q. What wasn't necessary? A. For me to be employed steadily. Q. You didn't want to be employed? A. Not according to the rules and regulations. Q. What do you mean by that? A. Well, do I have to beg for a job? Coffey placed his name on the Alliance call book after the strike, received a call from respondent Republic, where he worked for 4 days, made several other efforts to obtain employment elsewhere, and worked a week at PRC, 11 weeks at Chaplin Studio, and an unspecified period at the Inyokern Naval Base. We consequently find that he made reason- able efforts to obtain employment. COLUMBIA PICTURES CORPORATION 587 1. Cease and desist from interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, 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, or to refrain from any and all of such activities except to the extent that such right may be affected by agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act, by discharging or refusing to reinstate any of their employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment, because of their participation in concerted activities for their mutual aid or protection, or by any like or related conduct. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Respondent Warner Bros. Pictures, Inc., Burbank, California, and its officers, agents, successors, and assigns, shall : (1) Offer Kenneth B. Coffey, Paul De Sanctis, John G. Goudie, Willis F. Howe, Charles J. Larson, Fred Seward, William J. Simpson, and William G. White immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (2) Make whole Lynn George Batchelder, Robert N. Bonning, Ken- neth B. Coffey, Paul De Sanctis, Carl H. Gidlund, George M. Hand, Willis F. Howe, Charles Jensen, Leo Leonard Lamb, Raymond M. Lora, Donald MacKellar, J. Harold Rogers, Jesse L. Sapp, Fred Seward, William J. Simpson, Paul L. Stanley, George Stoica, Jr., and William G. White for any loss of pay they may have suffered by reason of Respondent Warner's discrimination against them, in the manner set forth in "The Remedy," herein. (b) Respondent Columbia Pictures Corporation, Los Angeles, California, and its officers, agents, successors and assigns, shall: (1) Offer Joseph P. Cuccia immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (2) Make whole Joseph P. Cuccia and Irwin P. Hentschel for any loss of pay they may have suffered by reason of Respondent Columbia's discrimination against them, in the manner set forth in "The Remedy," herein. (c) Respondent Loew's, Incorporated, Culver City, California, and its officers, agents, successors, and assigns, shall : 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Offer John L. Selgrath immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (2) Make whole George I. Groth and John L. Selgrath for any loss of pay they may have suffered by reason of Respondent Loew's dis- crimination against them, in the manner set forth in "The Remedy," herein. (d) Post in conspicuous places throughout their respective studios copies of the notices attached hereto marked Appendices "A," "B," and "C." 62 Copies of said notices, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed by representatives of the respective Respondents, be posted by the re- spective Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps each of them has taken to comply herewith. B. Respondent Association of Motion Picture Producers, Inc., Los Angeles, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from advising, urging, or otherwise influencing its member producers, directly or indirectly, to interfere with, restrain, or coerce their employees in the exercise of the right to self-organiza- tion, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activi- ties except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act, by discharging or refusing to rein- state any of their employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or con- dition of their employment, because of their participation in concerted ae Respondent Warner shall sign and post copies of Appendix A, Respondent Columbia shall sign and post copies of Appendix B, and Respondent Loew's shall sign and post copies of Appendix C. In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the respective notices, before the words, "A DECISION AND ORDER," the words, "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." COLUMBIA PICTURES CORPORATION 589 activities for their mutual aid or protection, or by any like or related conduct. 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 D," 63 after they have been signed by a representa- tive of Respondent Association, to all its members, including all the Respondent producers. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed by a representative of Respondent Association, be posted by Respondent Association immediately upon receipt thereof and main- tained 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 Respondent 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 (1) that the Respondents violated Sec- tion 8 (1) of the Act by making "bonus" payments, by interrogating employees with respect to their union membership and affiliation, or by threatening employees that they would never work again in the motion picture industry if they refused to perform the work of striking em- ployees; (2) that Warner Bros. Pictures, Inc., discriminated against H. C. MacDonald; and (3) that Republic Productions, Inc., Los Angeles, California, Twentieth Century-Fox Film Corporation, Los Angeles, California, and RKO Radio Pictures, Inc., Los Angeles, California, committed any unfair labor practices. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. 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: 88 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words , "A DECISION AND ORDER," the words, "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof, by discharging or refusing to reinstate any of our employees, or in any other manner discrimi- nating in regard to their hire or tenure of employment, or any term or condition of their employment, because of their par- ticipation in concerted activities for their mutual aid or protec- tion, or by any like or related conduct. WE WILL OFFER to the employees named below, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed. Kenneth B. Coffey Charles J. Larson Paul De Sanctis Fred Seward John G. Goudie William J. Simpson Willis F. Howe William G. White WE WILL make the following employees whole for any loss of pay suffered as a result of the discrimination against them, in ac- cordance with the Order of the National Labor Relations Board. Lynn George Batchelder Robert N. Bonning Paul De Sanctis Kenneth B. Coffey Carl H. Gidlund George M. Hand Willis F. Howe Charles Jensen Leo Leonard Lamb Raymond M. Lora Donald MacKellar Jesse L. Sapp J. Harold Rogers Fred Seward William J. Simpson Paul L. Stanley George Stoica, Jr. William G. White WARNER BROS. PICTURES, INC., Employer. 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. COLUMBIA PICTURES CORPORATION 591 APPENDIX B 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 interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof, by discharging or refusing to reinstate any of our employees, or in any other manner discrimi- nating in regard to their hire or tenure of employment, or any term or condition of their employment, because of their partici- pation in concerted activities for their mutual aid or protection, or by any like or related conduct. WE WILL OFFER to the employee named below, immediate and full reinstatement to his former or a substantially equivalent posi- tion, without prejudice to any seniority or other rights and privileges previously enjoyed. Joseph P. Cuccia WE WILL make the following employees whole for any loss of pay suffered as a result of the discrimination against them, in accordance with the Order of the National Labor Relations Board. Joseph P. Cuccia Irwin P. Hentschel COLUMBIA PICTURES CORPORATION, Employer. By ------------------------------------ (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C 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 interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof, by discharging or refusing to reinstate any of our employees, or in any other manner dis- criminating in regard to their hire or tenure of employment, or any term or condition of their employment, because of their participation in concerted activities for their mutual aid or pro- tection, or by any like or related conduct. WE WILL OFFER to the employee named below, immediate and full reinstatement to his former or a substantially equivalent po- sition, without prejudice to any seniority or other rights and privileges previously enjoyed. John L. Selgrath WE wiLL make the following employees whole for any loss of pay suffered as a result of the discrimination against them, in ac- cordance with the Order of the National Labor Relations Board. George I. Groth John L. Selgrath LoEw's INCORPORATED, Employer. By -------------------------- Dated (Title) -------------------- (Representative ) This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material,. COLUMBIA PICTURES CORPORATION 593 APPENDIX D NOTICE TO OUR MEMBERS AND TIixIR 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 members and their employees that : WE WILL NOT advise, urge, or otherwise influence our member producers, directly or indirectly, to interfere with, restrain, or coerce their employees in the exercise of the right to self-organi- zation, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act, as guaranteed by Section 7 thereof, by discharging or refusing to reinstate any of their employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their em- ployment, because of their participation in concerted activities for their mutual aid or protection, or by any like or related conduct. ASSOCIATION OF MOTION PICTURE PRODUCERS, INC., Employer. 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 I. Mitchell and Mr. W. W. Alsup, of Los Angeles, Calif., for the respondents Columbia Pictures Corporation, Republic Productions, Inc., Warner Bros. Pictures , Inc., Loew's Incorporated, Twentieth Century-Fox Film Corporation, RKO Radio Pictures, Inc., and Association of Motion Picture Producers, Inc. Katz, Gallagher and Margolis , by Mr. Ben Margolis, of Los Angeles, Calif., for individual complainants Robert W. Ames, G. M. Hand , Irwin P. Hentschel, Charles Jensen, Leo L. Lamb, R. M. Lora , Eugene V. H. Mailes, Jesse L. Sapp, John L. Selgrath, George Stoica, Jr., and W. G. White. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bodkin, Breslin & Luddy, by Mr. Michael G. Luddy, of Los Angeles, Calif., for the Intervenor Alliance. STATEMENT OF THE CASE Upon various charges duly filed between April 6, 1945, and July 19, 1946, by certain named individuals, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California), issued its consolidated complaint dated July 19, 1946, against Columbia Pictures Corporation, herein called respondent Columbia ; Republic Productions, Inc., herein called respondent Republic; Warner Bros. Pictures, Inc., herein called respondent Warner ; Loew's Incorporated, herein called respondent Loew ; Twentieth Century-Fox Film Corporation, herein called respondent Twentieth Century ; RKO Radio Pictures, Inc., herein called respondent RKO ; Paramount Pictures Inc., herein called Paramount ; Universal Pictures Company, Inc., herein called Universal; Samuel Goldwyn Productions, Inc., herein called Goldwyn ; Hal Roach Studios, Inc., herein called Roach ; and Association of Motion Picture Producers, Inc., herein called respondent Association ; alleging that the foregoing had engaged in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Secton 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. By motion dated August 16, 1946, respondents Association, Columbia, Republic, Warner, Loew, Twentieth Century, and RKO, and Paramount, Universal, Gold- wyn, and Roach moved to sever Matter of The Association of Motion Picture Producers, Inc., one of the consolidated cases,' from the other consolidated cases named in the caption above. The Board by order dated August 30, 1946, granted the said motion and directed that the Machinists case proceed to hearing prior to the hearing in the above consolidated cases. On September 3, 1946, the Board through its Regional Director issued an amended consolidated complaint covering the other consolidated cases, copies of which were duly served upon the respondents. The amended consolidated complaint alleged in substance that: (1) the respondent Association is an employer within the meaning of the Act; (2) respondents Columbia, Republic, Warner and Loew on certain dates between March 12, 1945, and October 31, 1945, discharged and/or refused to reinstate certain named employees because the said employees refused to perform the work and take the jobs of other striking employees or pass a picket line, during the course of a strike in the motion picture industry, current between March 12 and October 31, 1945; respondents Twentieth Century and RKO refused on the termination of the strike, to reinstate certain named employees because the said employees refused to pass the picket line during the course of the said strike; (3) the respondent Association, on or about October 31, 1945, advised and instructed the respondent Producers2 not to reinstate or hire employees who refused to cross picket lines during the strike and further advised the said respondents to lay off any such persons if they had been reinstated or employed ; ' The full title is : In the Matter of Association of Motion Picture Producers, Inc., Para- mount Pictures, Inc.; Warner Bros. Pictures, Inc ; Loew's Incorporated; Universal Pictures Company, Inc ; R . K. 0 Radio Pictures, Inc.; Columbia Pictures Corporation ; Samuel Goldwyn Productions, Inc ; Republic Productions, Inc.; Hal B Roach Studio, Inc.; and Twentieth Century-Fox Film Corporation and International Association of Machinists, Lodge 1185, Case No. 21-C-2735. This case involves alleged violations of Section 8 (1), (3), and (5) of the Act. 2 Respondent Producers when used hereafter refers collectively to respondents Columbia, Republic, Warner, Loew, Twentieth Century, and RKO. COLUMBIA PICTURES CORPORATION 595 (4) respondents paid bonuses to employees who passed the picket lines or per- formed the work of striking employees during the strike referred to ; threatened employees that they would never work in the motion picture industry again if they refused to perform the work or take the jobs of striking employees ; and interrogated employees with respect to their union membership and affiliation ; and (5) by reason of all the foregoing the respondents and each of them engaged in violations of Section 8 (1) and (3) of the Act and by these acts and conduct interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. The respondents filed an answer on September 16, 1946, which admitted cer- tain factual matters concerning the jurisdictional allegations of the complaint. It denied that respondent Association was an employer within the meaning of the Act. The answer set forth that : the strike of March 12, 1945, was called by Screen Set Designers, Illustrators & Decorators, Local 1421, of the Inter- national Brotherhood of Painters, Decorators, and Paperhangers of America, affiliated with the American Federation of Labor, herein called Local 1421; prior to the calling of the said strike, both Local 1421 and Local 44 of the Inter- national Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, affiliated with the American Feder- ation of Labor,' herein called Local 44, had presented conflicting claims as to the appropriate unit in which set decorators should be included for the purposes of collective bargaining ; because of the conflicting claims the respondent Pro- ducers on February 27, 1945, filed an employer's representation petition and in the course of a hearing thereon on March 12, 1945, Local 1421 called a strike against respondent Producers for the purpose of forcing them to recognize Local 1421 as collective bargaining representative of the set decorators. The answer denied the discriminatory discharge or refusal to reinstate any of the individual complainants. It averred that by virtue of closed-shop contracts between respondent Producers and the Alliance and its locals, the Producers could not reinstate employees expelled from membership therein. Other de- fenses will be discussed hereafter in considering the cases of the individual complainants. Pursuant to notice, a hearing was held at Los Angeles, California, on Sep- tember 16, 1946, and from September 24 to October 10, 1946, before Mortimer Riemer, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. On the second day of the hearing, the Alliance moved to intervene in the proceedings.' The motion to intervene was granted. At the conclusion of the Board's case, an appearance was noted on behalf of certain individual complainants named in this proceeding. The Board, the respondents, the Alli- ance and certain individuals were represented by counsel and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all the parties. At the outset of the hearing, counsel for the respondents moved to strike that portion of the amended consolidated complaint wherein it was alleged that 3 Hereafter the International Union will be referred to as the Alliance. 4 In its brief the Alliance states that it "intervened in these proceedings because it has a vital interest in avoiding any decision which would directly or indirectly review the disciplinary proceedings taken by it against such of its former members as are parties to these proceedings and in preventing a decision which would frustrate directly or indirectly such proceedings and the orders of the International President which were disobeyed not only by such expelled persons but by other members, parties to these proceedings, against whom disciplinary action was not taken." 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent Association advised and instructed the other respondents not to reinstate or hire employees who refused to cross the picket lines during the strike and to lay off any such persons if reinstated, on the ground that no charge had been filed upon which the said allegation was based. It was also moved for the same reason, to strike that portion of the amended consolidated com- plaint which alleged that respondents paid a bonus to employees who passed the picket lines or performed the work of striking employees ; threatened employees that they would never work in the motion picture industry again if they refused to perform the work of strikers and interrogated employees with respect to their union affiliation , or in the alternative, that this portion of the complaint be made more definite and certain or a bill of particulars be ordered. The motions to strike for the above-stated reason were denied. The motion in the alterna- tive for a bill of particulars was granted in part and counsel for the Board was directed to furnish the particulars as ordered. Counsel for the Board moved to strike those portions of the respondents' answer setting forth facts pertaining to the cause of the strike of March 12, 1945. This motion was denied. On the third day of the hearing counsel for the Board furnished an oral bill of particulars to the respondents in conformity to the undersigned's ruling. With respect to that portion of the amended con- solidated complaint which alleged that the respondents had interrogated em- ployees with respect to their union membership and affiliation, it was stated that there had been no interrogation and that counsel would move to dismiss if not proven. No further proof was adduced in support of this allegation and it will be recommended hereinafter that this allegation be dismissed. The respondents filed an amendment to the answer, to the effect that on or about June 14, 1946, respondent Warner was notified of the expulsion in some instances , and suspension in other instances , from the Alliance, of certain named individual complainants at one time employed by it and that pursuant to con- tracts in effect between the Alliance and Local 44, and respondent Warner, only employees who were members in good standing of both the Alliance and Local 44 could be employed in job classifications covered by the contracts. At the close of its case, counsel for the Board moved to dismiss the allegations of the com- plaint that the respondent Warner on March 19, 1945, discharged H. C. Mac- Donald, and that respondent RKO had refused and failed to reinstate Forrest McLoney. Both motions were granted. During the presentation of the respondents' defense, counsel for the respond- ents called to the attention of the parties, the fact that the third amended charge on which the complaint was issued in Case No. 21-C-2564,° did not contain the names of Kenneth B. Coffey, Willis F. Howe and Paul L. Stanley a Later during the course of the hearing, counsel for the respondents asked to be relieved from the stipulation previously entered into with the Board to the effect that a charge had been filed containing the names of Coffey, Howe, and another in- dividual, Fred Seward. The stipulation did not cover Stanley. Thereupon the counsel for the respondents moved that the complaint be dismissed with respect to Coffey, Howe, Seward and Stanley on the ground that the portions of the complaint alleging discrimination with respect to the named individuals was not based on any charge filed by or on behalf of the said persons. Ruling on the motion was reserved pending an investigation of Board files and a report at the 6 Matter of Warner Bros . Pictures, Inc. and Association of Motion Picture Producers, Inc. et al. 6 The undersigned has adopted for use herein the spelling of names as given at the hear. Ing and pursuant to the motion to conform, such spelling is used hereafter. COLUMBIA PICTURES CORPORATION 597 hearing by counsel for the Board. Without waiving its defense, respondents proceeded to a conclusion of its defense of discrimination with respect to these individuals. On the final day of the hearing counsel for the Board disclosed that there was no official entry in the Board's Regional Office of a charge containing the names of Coffey, Howe, and Seward. He stated that a charge had been presented to the Regional Office by Ben Margolis , on behalf of the named individuals, on or about January 4, 1946, but that no explanation could be offered to explain why a filing date had not been placed upon the charge received by the Regional Office. As to the complainant, Stanley, counsel for the Board admitted that Stanley was not named in any charge and no explanation could be given for the failure to include Stanley's name. Whereupon counsel for the respondents renewed the motion to dismiss with respect to Stanley on the ground that no charge had either been filed or presented to the Regional Office and moved similarly with respect to Coffey, Howe and Seward on the ground that no charge had been filed and served upon the respondents. He admitted, however, that he had discussed with a Board Field Examiner the alleged discrimination against Coffey, Howe, and Seward but did not know at that time whether charges had been filed. The motions to dismiss were denied.? 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 objections of counsel for the respondents, the motion was granted. All counsel were offered an opportunity to present oral argument but indicated a preference and a desire to file briefs. A time was fixed for the filing of briefs and after extensions of time were granted, briefs were submitted by counsel for the Board, the respondents and the Alliance. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS 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, rsepondent 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 office in New York City. I Counsel for the individual complainants moved to amend the third amended charge by inserting in the said charge the names of the above individuals This motion was denied. 838914-50-vol 82-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Warner Bros. Pictures , Inc., herein called respondent Warner, is a Delaware 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. Re- spondent 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 printing and distribution . Pictures are distributed throughout the United States and foreign countries. Loew's Incorporated, herein called respondent Loew, a Delaware corporation, 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 respondent 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 . The respondent Loew employs many thousands of employees, both in the State of California and in the State of New York. 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 coun- tries. During the fiscal year of 1943, respondent Twentieth Century purchased several million feet of positive and negative film, the greater proportion 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 em- ployees in its studios at Los Angeles. RKO Radio Pictures, Inc., herein called respondent RKO, a Delaware corpora- tion having its principal office in New York City , operates a studio for the pro- duction 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. The Association of Motion Picture Producers , Inc , herein referred to as respondent Association , is now and has been at all times since January 18, 1924, a corporation organized under and existing by virtue of the laws of the State of California , having its principal office and place of business in the City of Los Angeles, California . The Association is a non -profit corporation organized for the following purposes : "To assist in fostering the common interests of those COLUMBIA PICTURES CORPORATION 599 engaged in the motion picture industry in the United States, and especially in the State of California, by establishing and maintaining the highest possible moral and artistic 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 interest of its members, including each of the respondents named in this amended consolidated complaint, 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 engage 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; (e) the representation of members of the said Association as individual entities and each of the respondents named herein, in their respective labor relations with their employees and in collective bargaining negotiations and adjustment of labor disputes ; (d) the representation of members of the Association before the Board, its agents and various other governmental advisory or arbitration commissions or bodies ; and (e ) in general to advise, instruct and confer with members of the Association on matters per- taining to their employer-employee relations! II. THE ORGANIZATIONS INVOLVED International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 44, Local 80, Local 727 and Local 728, 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 unthin the meaning of the Act The answer avers that while the Association permits certain of its employees to perform labor services for members of the Association, as for example, the representation of members in collective bargaining negotiations and adjustment of labor disputes, these activities are undertaken pursuant to the direction of the respondent Producer and not pursuant to the direction of the Association. A more detailed analysis of the record, therefore, is in order, to determine whether this distinction is such as to exclude the Association as an employer within the meaning of the Act! In 1928, Pat Casey was chosen chairman of the Producers Committee, a com- mittee of the New York presidents of the major Producers.10 The major Pro- 8 The above findings concerning the business of the respondent Producers and the Asso- ciation are based upon the allegations of the complaint and admissions contained in the answer. ° Section 2 of the Act defines an employer as follows : "The term `employer' Includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States , or any State or political subdivision thereof , or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization ( other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization." 10 The so-called major Producers include respondents Columbia , Republic, Warner, Loew, Twentieth Century, RKO and Paramount Pictures , Inc., Universal Pictures Company, Inc., Samuel Goldwyn Productions , Inc, and Hal Roach Studios, Inc. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ducers are members of the Association. The Producers Committee delegated to Casey authority to act on its behalf in negotiating contracts with the Unions operating in Hollywood. As the complexities of the West Coast situation devel- oped, Casey sought without success to keep negotiations in New York with the International heads of the Unions, separate from the problems which arose on a local basis in Hollywood. Sometime in 1939, Fred E. Pelton was engaged by the Producers Labor Committee, herein called the Labor Committee, to handle the Hollywood end of the negotiations. The Labor Committee is a committee appointed by the major Producers who are members of the Association and the committee acts for all members of the Association in their labor matters. When Pelton was hired by the Labor Committee, it consisted of the repre- sentatives of Paramount Pictures, Inc., and respondents Loew and Columbia. Pelton is known as the Producers Labor Administrator and works as a team with Casey in the preparation and negotiation of contracts, on behalf of the Labor Committee for the 10 major Producers. Pelton is directly responsible to the chairman of the Labor Committee for the execution of whatever contracts the Labor Committee negotiates. His salary is paid by the Association, to which the Producers represented by the Labor Committee belong. He testified that the Association and its officers had no authority over him and that he drew all his authority from the Labor Committee. During the strike, Pelton conferred with member representatives concerning the strike, issuing bulletins and deci- sions of the Labor Committee. He received instructions at this time from the chairman of the Labor Committee, B. B. Kahane, vice president of respondent Columbia. One of Kahane's instructions, issued over Pelton's signature on October 31, 1945, was sent to all of the respondent Producers and directed them to refuse to reinstate members of the Alliance who refused to work during the strike. In further support of the Board's contention that the Association was an employer, acting for and on behalf of its members, the respondent Producers, the Board offered in evidence, copies of notices appearing in Daily Variety, a trade paper, during the week following the onset of the strike. In these state- ments published over the name of the Association, and addressed to the em- ployees of the motion picture industry, the Association spoke on behalf of its members and set forth certain facts concerning the "jurisdictional quarrel" which had precipitated the strike. One advertisement stated that "our studios are crippled" and published facts which it asked the employees to consider. The Association pledged that its member Producers would abide by decisions of the Board, and recognize and bargain with any union certified by the Board. Upon the basis of the facts admitted in the respondents' answer considered together with the testimony of Casey and Pelton, the undersigned is not convinced that a valid distinction has been drawn between the acts of Pelton as a labor administrator acting for and on behalf of the Labor Committee and the interests of the Association in the work of that committee. The Labor Committee is desig- nated by the Producers who are members of the Association. Pelton's salary is paid by the Association. His office is in the Association's building. Unions sub- mit their proposals to Producers by sending them to Pelton as labor administrator at his office in the Association building. The undersigned is not persuaded by the distinction sought to be drawn by the respondents, that because Pelton works under direction of and handles employer-employee relations for the Labor Com- mittee, that thereby the Association, whose members designated the Labor Com- mittee, can be said to have divorced itself from its activities and hence cannot be found to be an employer within the meaning of the Act. The distinction is COLUMBIA PICTURES CORPORATION 601 too subtle and lacks substance. The Labor Committee is appointed by members of the Association and acts for all Association members on labor matters. Realistically, it must be conceded, in the undersigned's opinion, that when the Labor Committee acts on behalf of the Producers who are Association members, the committee is taking a stand and advancing a position which is that of the Association and there can be no valid distinction between the Association as such and the activities of its members. In this connection, Jack Baker, respondent Republic's production manager, testified that its business manager "handles labor negotiations and . . . represents us at meetings with the Association and interprets all union contracts." The undersigned is of the opinion that the Association is an employer within the meaning of the Act. It is so found. B. The contracts and start of the strike of March 12, 1945 On April 17, 1944, at New York City, a basic agreement retroactive to January 1, 1944, was executed by and between the Alliance and respondents Columbia, Loew, Republic, RKO, Twentieth Century, and Warner. The Alliance executed the agreement on behalf of employee members of its West Coast locals employed at the studios of the respondent Producers." The basic agreement provides in part as follows : WHEREAS, The International Alliance represents that the majority of the employees of the Producers, and each of them, in the crafts and classifica- tions of work described in Paragraphs III and IV hereof (all of said crafts and classifications of work constituting an indivisible and integral bargaining unit), are members of the International Alliance and of one or more of its said West Coast Studio Locals: Now, THEREFORE, in consideration of the mutual covenants, conditions and agreements herein contained, the parties covenant and agree as follows : I. TERM OF AGREEMENT The term of this agreement shall be from January 1, 1944 until August 10, 1949, provided, however, that either party may, by written notice given on or before July 15, 1945 and on or before July 15, 1947, request renegotiation of the "Wage Scales, Hours of Employment and Working Conditions" of the West Coast Studio Locals .. . II. SHOP AGREEMENT The Producers severally promise and agree that each and all of their re- spective employees now or hereafter working in the studios of the Producers in the crafts and classifications of work described in Paragraphs III and IV hereof shall at all times be members in good standing of the International Alliance. The Producers severally promise and agree during the term of this agree- ment to employ within the crafts and classifications of work herein described n The West Coast locals of the Alliance are named in the basic agreement as follows : Affilfated Property Craftsmen, Local No 44; Motion Picture Studio Grips, Local No 80 ; Motion Picture Studio Projectionists, Local No. 165; International Photographers of the Motion Picture Industries , Local No. 659 ; Film Technicians of the Motion Picture In- dustry, Local No. 683 ; International Sound Technicians of the Motion Picture, Broadcast and Amusement Industry, Local No. 695; Motion Picture Costumers, Local No. 705; Make-Up Artists and Hair Stylists , Local No. 706; Motion Picture Studio Laborers and Utility Workers, Local No. 727; Studio Electrical Technicians, Local No. 728; and Motion Picture Studio First Aid Employees, Local No. 767. Local Nos. 44, 80, 727, and 728 are concerned in this proceeding. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only those workers who are members in good standing of the International Alliance. The International Alliance promises and agrees to furnish competent men to perform the work and render the services required by the Producers under the provisions of this agreement, and the agreements referred to in Para- graph IV hereof at such rates and under such conditions as are therein pro- vided for and in accordance with the provisions of said agreements. III. SCOPE OF AGREEMENT The crafts and classifications of work subject to this agreement are the crafts and classifications described in the agreements referred to in Para- graph IV of this agreement, and such other crafts and classifications of work in which the Producers shall hereafter recognize the International Alliance as the collective bargaining agent of the employees, or in which the Inter- national Alliance shall be designated by the National Labor Relations Board as the collective bargaining agent of the employees. IV. WAGE SCALES-HOURS OF EMPLOYMENT- WORKING CONDITIONS The wage scales, hours of employment and working conditions applicable to employees in the crafts and classifications of work subject to this agree- ment shall be those contained in agreements between the Producers on the one hand, and the International Alliance and the respective locals on the other hand, entered into concurrently herewith or which may hereafter be entered into pursuant to Paragraph I hereof, with respect to such wage scales, hours of employment and working conditions in the crafts and classifications of work described in those agreements. V. BARGAINING AGENCY It is hereby agreed between and among the parties hereto that all of the crafts and classifications of work set forth in the agreements referred to in Paragraphs III and IV hereof constitute during the term of this agreement, an indivisible and integral bargaining unit of which the International Alli- ance shall during the term of this agreement, act as and be the collective bargaining agency. Concurrently with the execution of the 1944 basic agreement, there was executed between the same respondent Producers and the Alliance, wage scales and working conditions for Affiliated Property Craftsmen, Local 44; the studio grips, Local 80; the studio laborers, Local 727; and the studio electrical techni- cians, Local 728. The wage scales were signed by Richard F. Walsh, Inter- national President of the Alliance, representatives of the local involved and the Producers' representatives. The Local contracts were, like the 1944 basic agreement, effective as of January 1, 1944. Each of the Local contracts is a technical and specialized form of agreement covering studio working conditions, with numerous clauses dealing with situations peculiar to the motion pigture industry. These contracts provide also that in the event any "jurisdictional dispute arises between the Union and any other Union, the subject matter shall be referred to the respective International Presidents for adjustment." On March 12, 1945, a strike was called by Local 1421, of the Painters Union. Local 1421 was at that time affiliated with the Conference of Studio Unions, an association of local unions which numbered among its members, in addition, Local 946 of the Carpenters Union, Lodge 1185 of the International Association COLUMBIA PICTURES CORPORATION 603 of Machinists and Local 644 of the Painters Union. During the course of the strike, the Painters, Carpenters, Machinists and other members of the Conference refused to work and picket lines were established around the studios of the respondent Producers. The day the strike started President Walsh of the Alliance sent B. C. "Cappy" Duval, business representative of Local 44, the following telegram : I have been informed that picket lines have been established around the Hollywood Motion Picture Studios. You are hereby advised that these picket lines are in direct opposition to the best interests of the general membership of the I. A. T. S. E. Therefore instruct your members that they must not in any manner whatsoever violate the Constitution and By- Laws of the International Alliance by refusing to pass through these picket lines or to refuse to render service because of them. On or about the same time Walsh wrote Edwin T. Hill, secretary of Local 44, the following letter : Many rumors concerning the establishment of picket lines at the Holly- wood Studios have reached this office. So that there will be no misunder- standing as to our members honoring these picket lines, this is to notify your local union that before any members of our local unions refuse to go through these picket lines or refuse to render service, you are instructed to contact this office in order to ascertain if these picket lines are considered legitimate by us. It must be understood by your local and the membership thereof that the product being produced in these studios bears the label of the I. A. T. S. E. and it is the duty of the General Office to protect that label for the best interests of the entire membership of the Alliance. At some later date copies of the telegram and letter were sent to members of Local 44. At this time the Alliance had about 10,000 members working in the Hollywood Studios of whom about 1500 belonged to Local 44. On Sunday, March 18, 1945, Walsh addressed a meeting of Alliance members at the Hollywood Women's Club. Walsh stated that the strike of Local 1421 was a strike against the Alliance and called for the purpose of destroying the influence and position of the Alliance in the studios. Walsh pointed out that the Alliance had organized the motion picture industry and up to sometime in 1919 had enjoyed complete jurisdiction, when the Carpenters Union entered the field, taking over some of the jurisdiction of the Alliance. This created the first open jurisdictional conflict between the Alliance and the Carpenters Union. According to Walsh in the period between 1919 and 1933 open shop conditions prevailed in the industry. As a result of a strike in 1933, the membership of the Alliance dropped to about 165 members because members of the Carpenters Union and the Inter- national Brotherhood of Electrical Workers had taken the jobs vacated by striking members of the Alliance. Walsh compared the 1945 strike to the 1933 conditions and foresaw dangers that would result to the Alliance if the member- ship did not respond to Walsh's request that he was making to them, to keep the studios open. Walsh claimed that jurisdictional issues were at the base of the dispute and that Local 1421 wanted to take over the jurisdiction of the Alliance. Walsh urged that it was of primary importance to keep the studios in opera- tion ; for in the event they were closed the groups represented by the Conference 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Studio Unions would then be in a position to dictate the terms on which the strike would close. Walsh argued that the Carpenters Union was determined to control the work which in part was being performed by members of Local 44 and from the Alliance's point of view it was impractical to have set decora- tors come under the jurisdiction of any other union than the Alliance. Walsh claimed similarly that the Painters Union was engaged in aggressive acts designed to take jurisdiction away from locals of the Alliance. Walsh con- cluded his lengthy address by stating that the studios had to be kept open and if they were not, the entire jurisdiction of the Alliance would be placed in jeopardy. He ordered Alliance members to do whatever they were required to do in order to keep the studios in operation, for as long as other unions had gone out on strike in violation of their jurisdictional agreements with the Alliance, these acts had canceled any obligation on the part of the Alliance to respect their jurisdiction. Therefore, Walsh ordered all crafts of the Alliance to cross jurisdictional lines insofar as it was necessary in order to keep the studios, in operation and Alliance members to do everything that they were requested to do by the Studios, except work in the jurisdiction of those unions that were respecting their contracts and were remaining at work. In response to requests made from the floor that Walsh put his orders in writing, there was subsequently addressed to all members of Alliance studio locals a letter, dated March 19, 1945, which read in part as follows : This is to officially advise you that until the end of the emergency, created by the unauthorized strike of Painters Union, No. 1421, members of I. A. T. S. E. Studio Locals, are not to observe any trade jurisdictional lines in the studios. This letter, however, is not to be considered an authorization for any member to work in the jurisdiction of any Local Union whose members are observing their no-strike pledge, and are fulfilling their contractual obliga- tions in the studios.12 C. Employee conduct during the course of the strike Although the strike and the employees' attitude toward the strike furnishes a rather uniform pattern, nonetheless differences exist which make it desirable to present the case of each individual in connection with applicable studio practices. The individual cases will therefore be discussed and resolved with an analysis in each instance of the causes which led up to the termination of employment. Later portions of the report will deal with the problems of back pay and reinstatement in those cases where such recommendations are appropriate. 1. Respondent Warner-Case No. 21-C-2564 The amended consolidated complaint alleged that respondent Warner on or about March 19, 1945, discharged J. Harold Rogers, Lynn G. Batchelder, Paul DeSanctis, Carl H. Gidlund, George M. Hand, Charles Jensen, Leo L. Lamb, Raymond M. Lora, H. C. MacDonald, Donald MacKellar, William J. Simpson, George Stoica, Jr., Robert N. Bonning, William G. White, and Jesse L. Sapp, 12 The above findings concerning the remarks made by Walsh at the Hollywood Women's Club are based upon the testimony of Roy M. Brewer, International representative of the Alliance who was present. Numerous other witnesses testified concerning Walsh's remarks but the clearest exposition is contained in the testimony of Brewer and the undersigned has accepted it. Furthermore, the speech of Walsh sets forth to some extent the back- ground of the situatiton at the time the strike was called. COLUMBIA PICTURES CORPORATION 605 for the reason that each of them refused to perform the work and take the jobs of striking employees. All the foregoing employees were, at the time of the strike, members of Local 44 of the Alliance, employed in respondent Warner's prop shop " The re- spondent's answer acknowledges that on March 19, the named employees were given notices that they were being placed off pay roll for the reason, "Refused To Do Carpenter Work," as directed by respondent Warner. Respondents' brief admitted the foregoing employees were "discharged." Certain preliminary observations on matters common to the Warner cases will be made first before taking up each alleged discrimination. These em- ployees worked on Saturday, March 10, 1945, but did not come to work on Monday or Tuesday, March 12 and 13. Aside from William J. Simpson, who worked throughout the week of March 12, the failure of the others to report to work on March 12 and 13 was apparently due to the presence of a picket line around the studio of respondent Warner. They did, however, return to work on Wednesday, March 14, resuming their duties in the prop shop. On the morning of Saturday, March 17, the rumor spread in the prop shop that prop makers were going to be asked to do the work of carpenters who had either gone on strike or by absenting themselves were supporting the strike of Local 1421. Sapp, a sub-foreman in the prop shop and a leader of the prop makers, was asked to talk to Francis E. Fuhrmann, head of respondent Warner's technical department, about this rumor. Accordingly, Sapp accompanied by Gidlund and Horner, two co-workers, went to see Fuhrmann and told him of these rumors. Fuhrmann replied that as far as he was concerned none of the prop makers would be asked to go outside of their jurisdiction and no one would be discharged for refusing to do so. Sapp reported this conversation to the rest of the prop makers. About an hour later, Fuhrmann called Sapp and told him that he might have to amend the statement and ask the prop men to go into the carpenter shop on Monday, March 19. The prop makers came to work Monday morning, March 19, at their accustomed hour. Shortly thereafter William G. White, foreman of the prop shop, was ordered by Fuhrmann to send all of his crew into the carpenter shop. After the men had gathered there, Fuhrmann entered accompanied by Brewer, Duval and other Alliance representatives. Brewer was the first to address the as- sembled employees. He stated that Alliance members were expected to go into the carpenter shop and perform the work of carpenters or to do any other work required by the studios, under penalty of discharge by the studio for re- fusal to do so. Brewer stated further that Walsh had told the respondent Pro- ducers that he would keep the studios running during the "trouble" and that the Conference of Studio Unions was trying to take over the entire industry. At the conclusion of Brewer's remarks, Fuhrmann told the men to return to their work and that in time they would be asked to take the jobs vacated by the strikers. Shortly after the gathering, Fuhrmann asked White how' the prop men felt about this turn of events. White told Fuhrmann that he believed that the men would refuse to go into the carpenter shop. Fuhrmann then asked if they would take blue slips" rather than work as carpenters and White replied that 13 Local 44, by contract includes within its jurisdiction 21 work classifications and covers a wide variety of specialized skills such as cabinet making, pattern making, ship rigging, sheet metal work, miniature building, and many others. 24 The off pay-roll notice was referred to throughout the hearing as a "blue slip." 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was of the opinion that they would choose this course. Fuhrmann stated, "That is the way it will be." Around noon, Fuhrmann called all the prop men together, told them that they were now expected to go into the mill and perform work as carpenters and for their refusal to do so they would be eliminated from the studios. He stated further that the prop men were expected to build sets because they were then of paramount importance in the production of motion pictures." Fuhrmann's warning that for refusal to perform carpentry work the prop men would not be employed by Warner's nor would they be permitted to work in the industry again was repeated by a number of witnesses and it is found as a fact that Fuhrmann made this statement. Sapp inquired if it would not be wise to get a show of hands and to find out whether the prop men would refuse to go into the carpenter shop. In response to this inquiry, all the prop makers, some 38 in number, indicated that they would refuse to comply with Fuhrmann's direction. Whereupon Fuhrmann said that lots of prop work re- mained to be done and ordered the men to return to their jobs. Following this refusal, Fuhrmann reported the incident to Carroll Sachs, respondent Warner's labor relations manager, who instructed Fuhrmann to terminate the employment of the prop makers. A termination of employment notice was then made out and shortly before the close of the shift, they were distributed to 38 prop makers fe In its brief respondents acknowledge that respondent Warner delivered to the employees named above, "blue slips which it intended should have the effect of discharging such insubordinate employees" and they were "so discharged," despite the contrary contention at the hearing that the prop makers were placed "off payroll" by reason of their refusal. At about 6 p. m. on March 19, White received a telephone call from Fuhrmann requesting him to report to the studio. On arrival White found all the prop makers were present except Sapp and Fuhrmann and Duval were likewise there. Duval read to the assembled prop makers the directive issued by Presi- dent Walsh advising the prop makers that, until the end of the emergency created by the strike of Local 1421, members of Alliance studio locals were not to observe "trade jurisdictional lines" in the studios. Horner, one of the prop makers and Local 44 steward on the lot, asked Duval, "Why make scabs out of us? Why don't you go out and hire some professional strike breakers and leave us fellows alone?" Somebody made a motion that Duval leave the meeting and he did. Fuhrmann then took up the discussion, urging the prop makers to keep the studio "rolling" regardless of what they were asked to do. Someone suggested that other crafts represented by Local 44" be asked to come in on the "deal" as well as the prop makers. The prop makers decided that if they could get the other crafts represented by Local 44 together, to consider this, they felt certain that the membership as a whole would be opposed to working in the carpenter shop and that the prop makers, as a minority group, thus would be 15 Members of the Carpenters Union made the floors, the ceilings and the walls of any desired set. Members of Local 44 made the props which were placed upon or in the set. 16 In this connection Simpson who had not attended either the Brewer meeting or the Fuhrmann meeting and who had not up to that time indicated a refusal to perform car- pentry work was along with the other prop makers given a blue slip. Fuhrmann admitted that he did not know whether Simpson had refused to perform carpentry work but he treated the group as a whole since they indicated at the meeting with him that they would not perform carpentry work and all the prop makers were issued blue slips. 14 This would include, for example, such classifications as upholsterers, seamstresses, greensmen, etc. COLUMBIA PICTURES CORPORATION 607 protected. Fuhrmann was told that if he would call all of the Local 44 crafts together at 9 o'clock the next morning the prop makers would return and ask the entire membership on the Warner lot whether they would work in the mill, and the prop makers would abide by the majority decision of the membership. Apparently this was agreeable to Fuhrmann whereupon all the prop makers left the premises. Late that night or very early on the morning of March 20, Fuhrmann called a number of the prop makers at their homes and told them that he could not keep this agreement and that he expected the prop makers to come to work on March 20, as carpenters. When Fuhrmann called Raymond M. Lora, he told him that most of the prop makers that he had telephoned had agreed to report that morning for work in the carpenter shop . The prop makers met in the morning, again canvassed the situation and found that no one had agreed to go in and it was decided that none of those who had gathered there would report for work in the carpenter shop. On the morning of March 21 , Fuhrmann called White and asked him to re- port to his office. Upon arriving White found Horner and Gidlund present. Fuhrmann asked if there was any change in sentiment among the prop makers and requested White to call a meeting on the lot that afternoon of all the prop men to again consider the demand to the prop makers to work as carpenters. White called the meeting and approximately all those issued blue slips reported that afternoon. At the meeting the men reaffirmed their decision not to work as carpenters . They indicated their willingness , however, to return to their own work as prop makers. Fuhrmann was so advised. On March 22 , James Peck, a sub-foreman , held a meeting of all prop makers at his home so that they could consider again the question of working. White stated that he saw no reason to change the decision and in any event , the group should await the arrival of Sapp, who was meeting with Carl Cooper , seventh international vice president of the Alliance. Sapp arrived and reported no new developments as a result of his interview with Cooper, and that the Alliance request to its members to cross jurisdictional lines still stood . By a vote of 19 to 16, it was decided to return to work as carpenters . It appears that three prop makers , from the afternoon shift, who should have been at work at the time the meeting was held, participated in the vote . There is no record evidence that these three participants had received blue slips and had indicated any re- fusal to go into the carpenter shop. Fuhrmann was then informed that all the prop makers would be in for work the next morning. It appears that about 24 of the prop makers reported for work and about 12 including complainants herein named , refused to go into the carpenter shop and except where differently indicated in this report, refused thereafter to work in the carpenter shop during the period of the strike. The foregoing findings are based principally upon credible and for the most part uncontradicted testimony of White, Sapp and Lora corroborated by the testimony of numerous other witnesses . The foregoing findings also complete the resume of the joint action taken by the prop makers who refused on March 19 to go into the carpenter shop and were on that day discharged . Accord- ingly, the undersigned will now pass to the cases of the individual complainants on respondent Warner's lot. Jesse L. Sapp, sub-foreman in the prop shop , had been employed for about 9 year,§. Under the Local 44 contract with the producers, Sapp was classified as a prop and miniature gang boss . Sapp had spent his entire time in the indus- try in property work and the building of miniatures . In addition , he was the chief lay-out man in the prop shop and did the lay-out work on a complicated 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prop such as a B-17 Flying Fortress. Sapp has never been employed in the carpenter shop at respondent Warner's. Sapp has been a member of the Alli- ance since 1936 and of Local 44 since its organization in 1939. He was expelled from the Alliance by sentence dated May 31, 1946, of which respondent Warner received notice on June 14, 1946. Sapp testified as follows concerning his reasons for refusing to work in the carpenter shop : ". . . in the first place, my conscience wouldn't allow me to be a scab ; and in the second place, it was in direct violation of the oath I took when I joined the International Alliance, Local 44 " Sapp's refusal to perform carpentry work was maintained throughout the strike. After the termination of the strike and about November 1, 1945, Sapp, White and a small committee of prop makers interviewed Brewer and asked him if they had his consent to return to work. Brewer replied that this decision awaited the return of President Walsh to Los Angeles. Sapp signed the Local 44 call book about November 9, 1945, and thereafter received a call to report to respondent Colum- bia but due to an illness was unable to accept the offered post." On November 24, 1945, Local 44 sent Sapp the following telegram : Please notify this Local Union if you are available to accept employment in positions which we may have to offer or advise what you will accept.19 Sapp replied that he would accept the job that he held on March 12, 1945, at respondent Warner's. The wording of the telegram makes it clear that no particular job was being offered to Sapp. William G. White had, prior to March 19, 1945, been employed by respondent Warner for about 9'/2 years. At the time of his discharge he was a foreman and in charge of the prop shop on the morning shift. White supervised from between 75 to 100 employees. White had never worked in the carpenter shop. Around 1930, White had joined Local 946 of the Carpenters Union, but at the time of his discharge and for some time prior thereto was a member of Local 44 of the Alliance. White testified that had he gone into the carpenter shop on March 19, he would have had to build sets or parts of sets that the carpenters had built and had been building for years. Although White was aware of President Walsh's instructions to Alliance members to cross juris- dictional lines he nonetheless refused to work in the carpenter shop, because, as he testified, he would not scab and because of his oath as a union member. He has never refused to perform his customary work in the prop shop. White applied for reinstatement on about November 6, 1945, by telephoning James Gibbons, superintendent of the prop shop, who referred him in turn to Fuhrmann. When White asked for his old job Fuhrmann said there was nothing that could be done and that White would have to see Diival or Brewer. White also wrote respondent Warner a letter asking for his old job to which no reply was sent. White was one of the committee that interviewed Brewer on or about November 1, in an effort to secure Brewer's help in reinstatement RO 18 Alliance locals maintain call books upon which a member could enter his name for employment by telephone or by appearing in person at the union office. Customarily in the industry, when the day's work is done, the employee returns to work the next day, unless notified to the contrary or given a lay-off slip. Regular crew members are called back to work by the studio or told when to report. Temporary employees or those laid off desiring work elsewhere have their names placed on the union call book. 19 Copies of this telegram were also sent to Simpson, Lamb, Gidlund, Hand, Batchelder, Ames, Lora, MacDonald, and Hentschel. 20 Brewer testified that he told the committee that they were not entitled to reinstate- ment on the jobs they held on March 12, but they were entitled, as was any other Alliance member in a like position , to any job they were willing to accept and that he would do what he could to see that jobs were obtained as quickly as possible. COLUMBIA PICTURES CORPORATION 609 Sometime in November, White signed the Local 44 call book, but never received a call. George Stoica, Jr., first started to work for respondent Warner in 1929. Dur- ing the last 11 or 12 years of his employment Stoica was employed in the hard- ware department of the prop shop where he prepared and fabricated such props as door locks and knobs and railroad and ship hardware. Stoica never performed carpentry work or built sets. Stoica did not receive his blue slip on the afternoon of March 19, due to the fact that he had left the lot before the shift ended. He was discharged when he returned to the lot for the 6 o'clock meeting with Fuhrmann and the other prop makers. On March 19, 1945, Stoica was a member of Local 44. He was expelled by sentence dated May 31, 1946, of which respondent Warner received notice on June 14, 1946. Stoica knew of President Walsh's instructions to all Alliance members to cross jurisdic- tional lines. He was not individually asked to perform carpentry work by either Fuhrmann or Gibbons. He admitted that he would not have done so if asked, and he was one of those who along with the other prop makers voted not to go into the carpenter shop on March 19 21 During the course of the strike, Stolen saw Fuhrmann on a number of occasions and asked for his old job. He was told that unless he would go to work in the carpenter shop he would not work again for respondent Warner. After the strike and on November 10, 1945, Stoica asked Fuhrmann for his job and was told to sign the Local 44 call book and in the event prop makers were needed he would be returned to work. Stoica asked Fuhrmann whether he could have a job as a hardware man and Fuhrmann replied that he had one coming in. On one occasion, Carroll Sachs told Stoica that it would be unfair to the melt who had cooperated during the strike and had done carpentry work to reinstate him. Sometime in January 1946, Brewer told Stoica that the Alliance was not keeping the prop makers out of their jobs and that Stoica could return to respondent Warner the next day if he could get his job back. Stoica did sign the Local 44 call book about November 9, and sometime thereafter received a call at respondent Columbia but refused the call. Lynn G. Batchelder was employed by respondent Warner as a prop maker for about a month and a half prior to March 19, 1945. He received the blue slip on that date from Gibbons. At this time Batchelder was a member of Local 44. On June 14, 1946, respondent Warner was notified that effective June 17, 1946, Batchelder was suspended by Local 44 for 6 months and fined the sum of $300. It was stipulated by and between counsel for the Board and the Alliance that the sentence imposing the fine also provided that non-payment of the fine within 2 months automatically expelled the member fined from Local 44. Batchelder not having paid the fine was thus expelled. Batchelder's dues, however, had been paid through to October 31, 1946. Batchelder testified as follows concerning his reasons for refusing to work in the carpenter shop between March 19 and October 31, 1945: "Because I don't care to be a scab. I don't care to do the other fellow's work. I don't feel that the working man has any right to go in and do the other fellow's work. They won't do themselves any good and they won't do Warner Bros. any good and they won't do their country any good." 11 Stoica testified as to his reason for refusing to work in the carpentry shop as follows : "my work as a hardware man brought me in contact with carpenters and set designers, and I felt that if I went in there and done carpenter work that when the strike ended that I would not be able to run that department efficiently." 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 31, 1945, Batchelder was one of many prop makers returning in a group seeking reinstatement and not permitted to enter respondent Warner's lot. The following day Batchelder called Fuhrmann and asked if he had a call and was told that there was no call for him and to stand by. He did not put his name on the Local 44 call book after October 31, 1945, nor did he try to obtain work elsewhere in the industry. He did, however, receive the telegram referred to above from Local 44 on November 24. George M. Hand was prior to March 19, 1945, employed by respondent Warner for about 2 years in the prop shop where he engaged in special effects work and built miniatures. Hand had never worked in the carpenter shop and prior to March 19, had never been asked to work there. Hand was given his blue slip on March 19. He was a member of Local 44 since its organization in 1939 and had paid his dues to November 1, 194G, but was suspended from the Union for a period of 6 months effective June 17, 1946, and fined the sum of $300. Not having paid the fine he was later expelled. Respondent Warner received notice of the suspension on June 14, 1946. Hand acknowledged that at no time during the strike was he willing to perform carpentry work. He testified that he refused to perform carpentry work because he did not want "to be a scab," and because he "didn't want to take jobs away from other men or other crafts and work which did not belong to us." About November 1, 1945, Hand sought reinstatement by telephoning the lot. He spoke to someone, not identified in the record, who told him that there was no work available and that he should get a clearance from Local 44. Hand signed Local 44's call book in November 1945, and thereafter secured a position in the industry working steadily up to about June 1946. Raymond M. Lora was prior to March 19, 1945, employed by respondent Warner for about 2 years as a prop maker doing special effects work. Lora was given his blue slip along with the other prop makers. He was a member of the Alliance but was expelled from Local 44 on May 31, 1946, of which respondent Warner received notice on June 14, 1946. Lora gave the following as his reasons for refusing to go into the carpenter shop: "My card didn't call for me to do carpenter work, and therefore there is no union that is authorized to have you work other than what your card calls for, and I just couldn't go in there and scab, you know, and scab on fellows that live right in my immediate neighborhood. Eight or nine of them live right out there in Burbank right with me, and I couldn't go in and do their work while they were out there in that picket line. I couldn't do that." On October 31, 1945, Lora accompanied the other prop makers who sought rein- statement at respondent Warner's and were denied entrance to the lot. Lora sought out Fuhrmann and asked when they would be permitted to enter and was told by Fuhrmann that the prop makers would not be hired. Lora asked Fuhrmann to speak to Carroll Sachs but no word came back from Sachs as to what was to be done with respect to the prop makers. On November 6, Lora called Gibbons and asked when he and Hand were going to be reinstated and was informed by Gibbons to get the matter straightened out with Local 44. Lora went on Local 44's call book in November and thereafter found work from January to March of 1946. Robert N. Bonning was prior to March 19, 1945, employed for about 21/2 years by respondent Warner. Bonning was a prop and miniature gang boss working on all kinds of props but specializing in metal work. Bonning was given his blue slip on March 19. He was, and still is, a member of Local 44, not having been COLUMBIA PICTURES CORPORATION 611 suspended or expelled from the Union. Boning testified as follows concerning his reasons in refusing to work in the carpenter shop : "Well, one has already been stated, the scabbing. That was one reason. Another reason was all machines in the mill have signs on them : `To be operated by machine operators only.' There was a state compensation law that I don't think would protect us if we operated them. . . . I have a lot of personal friends that is carpenters. I chum around with them " Following the conclusion of the strike, Bonning called Gibbons and asked for his job and was referred to Fuhrmann. Fuhrmann told Bonning that nothing could be done for him and that he would have to clear with his union. There- upon, Bonning spoke to Secretary Hill and asked about his job but was told that Brewer had not made up his mind. Bonning has since found regular employ- ment in the industry, and he testified that since May 1946, he no longer desired reinstatement to his old job. Carl H. Gidlund was employed by Warner since 1929. He was transferred to the prop shop in 1943, where he specialized in sheet metal work. Gidlund had never worked in the carpenter shop. He attended the meeting addressed by Brewer, but did not attend the later meeting addressed by Fuhrmann for he was told by Gibbons that he was not concerned with the meeting and was not equal to the kind of work that the other prop makers had been asked to do. On the afternoon of March 19, Fuhrmann told Gidlund that he was going to be asked to do carpenter work. Gidlund refused to do so, because he had never done it before, had no tools for the trade, and as he testified he would not "scab." Where- upon Fuhrmann said that he was sorry but "that's it." Thereafter Gidlund was discharged. Gidlund worked both during and after the strike in the industry but at the con- clusion of the strike he sought his old job by telephoning Gibbons. Gibbons told Gidlund to await a call and he received the same story from Fuhrmann, to whom he also spoke. On November 24, Gidlund received the telegram from Local 44 to which he replied that he was willing to accept the job from which he was "fired March 12, 1945." Gidlund, an Alliance member, was by sentence of May 31, 1946, and served on respondent Warner on June 14, 1946, expelled from Local 44. Donald MacKellar was employed by respondent Warner for about 7 months prior to the 1945 strike. Most of his time was spent doing plastic work in the prop shop. He refused to work in the carpenter shop and was discharged. MacKellar was a member of Local 44 and in addition has maintained member- ship in the Carpenters Union off and on over a period of years. MacKellar testified as follows concerning his reasons for refusing to work in the carpenter shop: "One was that I would have been going under a threat, which I do not like. . . . The other was, it isn't my principle to take the job of another man that is out on strike. I have been brought up as a union man all my life, and I still have the same ideas that were taught me as a boy what a union man is, and I can't help it. I can't change it." He did not work during the strike but upon its conclusion tried unsuccessfully on about six occasions to get his job back at respondent Warner. He was finally rehired about August 1, 1946, but quit voluntarily about September 7, 1946. This latter quitting is not part of the instant proceeding. Paul DeSanctis has been employed in the motion picture industry for about 20 years, the last 4 or 5 of which was spent with respondent Warner in its prop shop DeSanctis is a skilled cabinet worker. DeSanctis, along with the others, 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to do carpentry work and thereafter received his blue slip.22 At the con- clusion of the strike DeSanctis along with Charles Jensen. another prop maker, called upon Fuhrmann seeking reinstatement and they were instructed to clear it with Local 44. Thereafter DeSanctis saw Duval about reinstatement and the next day was given a call at respondent Warner and returned to work on November 7, 1945. DeSanctis was working for respondent Warner at the time of the hearing. Leo L. Lamb was prior to March 19, 1945, employed by respondent Warner for about 2 years. Most of this time had been spent as a gang foreman on rigging and submarine work under the jurisdiction of the prop shop. Lamb refused to do carpentry work and received his blue slip on March 19, 1945. Lamb was a member of the Alliance, having joined Local 44 sometime after 1942. He also was, and had been for some 20 years, a member of the Carpenters Union. In June 1946, Lamb was expelled from the Alliance. On October 31, 1945, Lamb applied for reinstatement and was told that there were no jobs available for prop makers . Lamb then talked to Gibbons who stated that the "case" of the prop makers who had refused to perform carpentry work had not been settled ; that there was no opening for Lamb and referred him to Local 44. When Lamb spoke to Gibbons and Fuhrmann thereafter, he was in each instance referred to Local 44. At this time Lamb was a member in good standing of Local 44 and was ready and willing to return to his job. On Novem- ber 24, Lamb received the telegram heretofore referred to, and he replied that he was willing to accept the position that he held on March 12. William J. Simpson was in charge of the special effects department in the prop shop from 1937 to 1945. Simpson worked the entire week of March 12, 1945, not respecting the picket line and came to work on March 19, 1945. He did not attend either the Brewer or Fuhrmann meeting. Nonetheless he was discharged at the close of his shift. When he received the blue slip he asked Gibbons why he was given it since he had not been asked to do any carpentry work. Gibbons did not answer the question. After Simpson was discharged he was asked to do carpentry work for the first time at the meeting held that evening with Fuhr- mann. Fuhrmann acknowledged that he treated Simpson as though he had refused to perform carpentry work but could not testify with certainty whether Simpson had actually refused to perform the work. It seems clear that although prior to discharge Simpson had not indicated a refusal to perform carpentry work, he did indicate at the evening meeting with Fuhrmann that he would not perform any work outside of his jurisdiction. Simpson was and still is a member of Local 44. He did not work for respond- ent Warner after March 1945, although he tried on several occasions to get his job back. Simpson testified that he did not ask for his job back at Warner until after October 31, but that during the strike lie would have returned as a prop maker. In May 1945, Simpson became physically incapacitated and apparently was not well enough to work until January 1, 1946, actually returning to work elsewhere in March of that year. Simpson acknowledged that he was unable to work dur- ing the strike because of his illness. Charles Jensen (lid not testify due to his absence in Europe at the time of the hearing. However, it was stipulated by and between counsel for the Board 22 The Board alleged that DeSanctis was refused reinstatement following discharge. It appears that DeSanctis was rehired in November 1945 , and the Board's motion to amend its complaint accordingly , was granted. COLUMBIA PICTURES CORPORATION 613 and the respondents that Jensen, if called as a witness, would have testified that: (1) he was employed by respondent Warner from November 1944, to March 19, 1945, in the prop department and that Gibbons was his foreman ; (2) he was a member of Local 44 of the Alliance; (3) he did not work on March 12 or March 13, but reported on March 14 and finished the week ; ( 4) on March 19, 1945, he attended the Fuhrmann meeting when he was asked along with others to work in the carpenter shop and that he with the others refused to do so; (5) he was given a blue slip; (6) he was now and has been since February 1946, employed by respondent Twentieth Century, and he no longer desired reinstatement. The foregoing covers the cases of the prop makers employed by respondent Warner named in Case 21-C-2564. There is yet to be considered the cases of those named therein but who worked at different occupations and are members of different locals 23 2. Other Warner cases The amended consolidated complaint alleges that on March 19, 1945, respondent Warner discharged Charles J. Larson and Fred Seward R4 and thereafter refused to reinstate them because they refused, along with others, to take the jobs of striking employees. With respect to John C. Goudie, Kenneth B. Coffey, Willis F. Howe, and Paul L Stanley, the amended consolidated complaint alleges that respondent Warner, on and after October 31, 1945, refused to reinstate these named em- ployees to their former positions because they refused to cross picket lines during the strike and engaged in concerted activities for their mutual aid and protection. Charles J. Larson started to work for respondent Warner in 1934. On and after 1941, and up to March 19, 1945, Larson was employed as a grip. Larson has been a member of Local 80 of the Alliance since 1942, and at the time of the hearing was in good standing. On March 19, 1945, Tull, foreman of the grip gang, asked Larson to erect a set on the stage, work which up to this time had been performed by car- penters Larson refused to perform this work and was then told by Tull: "If you don't do carpenter work, go over to the grip room." Larson testified and it is found that, when Tull requested him to erect the set, he remarked to Tull that on a previous occasion when he attempted to perform work of a similar nature, he had been instructed not to do the job because such work was under the carpenter's jurisdiction. Larson saw Ketcham, head of the grip de- partment, and asked for discharge and availability slips. Ketcham however stated that too many of them had already been issued and told Larson : "You just go home." On November 12, 1945, Larson called the grip office to inquire about a call and was informed that there was no work for him. About December 2, Larson asked Ketcham for a call and was told that he would have to inquire about it at the Union. Larson accompanied John C. Goudie, when the latter had a conversation with Barrett, referred to hereafter, wherein Barrett stated that Larson, as well as Goudie, would not be rehired by respondent Warner because of agreements made between President Walsh of the Alliance and the Producers a The case of H C. MacDonald , in Case 21-C-2564, was dismissed on motion of the Board at the hearing. 24 Seward 's case is discussed hereafter 838914-50-vol. 82-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Producers would not reinstate those individuals who refused to pass picket lines during the strike." Although Larson signed the Union call book about November 14, 1945, he made no particular effort to find another job. He testified that he "figured" that he was "entitled to go back there." John C. Goudie started with respondent Warner as a carpenter in 1928, was injured in 1934, and returned to work as a grip in 1936 ? When he went to work as a grip he became a member of Local 80 of the Alliance. Goudie worked at respondent Warner's during the week ending March 10, 1945. He did not work on March 12, the day the strike started, because as he testified : "I went to the studio and they had a picket line across the entrance, so I didn't go through." At the conclusion of the strike Goudie reported for work because of his understanding that all who had been out during the strike, whether on strike or not, were to return to work. He saw Ketcham and asked for a call but Ketcham stated that there was no work for him. Goudie was a careful and precise witness. He testified credibly and without contradiction, and it is found, that on or about November 2, 1945, Ketcham told Goudie that if Bar- rett, the business agent of Local 80, would give Goudie a release and telephone Ketcham to that effect, Ketcham would give Goudie a call. Barrett told Goudie that President Walsh of the Alliance and the Producers had agreed not to hire anyone who refused to go through picket lines and there was nothing he could do for him under the circumstances. Goudie made further efforts at reinstate- ment and in January 1946 asked Bill McConnell, head of the scenic department, to help him get his job. On a later occasion, McConnell told Goudie that he had sought the help of Alliance Vice-President Cooper but that Cooper would do nothing for Goudie because he had filed charges against respondent Warner. On January 21, 1946, Barrett told Goudie that even if a call did come from re- spondent Warner for a grip, Goudie would not get the call because of the pending charges. Goudie has never received a call to return to respondent Warner through Local 80.2` Seward, Coffey, Howe, and Stanley After the Board had concluded its case, counsel for the respondents moved in the midst of their defense to dismiss the complaint against Seward, Coffey, Howe and Stanley on the ground that no charge had been filed on their behalf. This procedural aspect has been adverted to above and as there indicated, the motion was denied. It appears without a question that no charge was ever filed on behalf of Stanley. With respect to Seward, Coffey, and Howe, however, their at- torney did present a verified charge to the Board's Regional Office, and for some unknown reason the charge was never formally docketed. However, with respect to these three individuals, counsel for the respondents was aware of the discrimi- 25 Larson did not strike and never joined a picket line. He apparently refused to pass through the picket line on and after March 19, 1945. 25 A grip performs rough carpenter work such as the erecting of platforms for lighting sets and at times assists the cameraman in shooting pictures . A grip has also been defined as one who performs all manual labor work in and around a motion picture studio concerned only with the handling of scenery parts. See Dictionary of Occupational Titles, Part I, U. S Government Printing Office, Washington , D. C. (1939). 21 The above findings concerning Goudie's efforts at reinstatement are based upon his credible and uncontradicted testimony, despite the fact that the said testimony is largely hearsay in character. Ketcham, McConnell and Barrett did not testify . Moreover the testimony impressed the undersigned as reasonable and worthy of belief. COLUMBIA PICTURES CORPORATION 615 nation asserted and did discuss the cases with a Field Examiner who represented the Regional Office. The technical and procedural irregularities, brought to light as a result of re- spondents' motion to dismiss, were not, in the undersigned's opinion at the time of the hearing, of sufficient weight to warrant dismissal of the complaint in those respects. Upon further consideration of the matter the undersigned is still of the same opinion. The Act does not preclude the Board from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board 28 It has likewise been held that rulings permitting an amendment to a complaint during the course of the hearing, by adding another employee to those alleged to have been wrongfully discharged, affords no basis for challenging the validity of the hearing ' In the instant proceeding counsel for the respondents had notice by service of the original consolidated complaint, dated July 19, 1946, that the Board alleged discrimination on the part of respondent Warner against Seward, Coffey, Howe and Stanley. Moreover, the Board was permitted and did without objection present its case with respect to them and it was not until the respond- ents reached their defense that the motion first was made to dismiss because of the absence of the charge. For these reasons, therefore, the undersigned is of the opinion that the respondents had ample notice to prepare their defense, that adequate opportunity was given at the hearing for the trial of the issues raised in the amended consolidated complaint against these individuals, and that the respondents were not prejudiced by the rule denying the motion to dismiss. These cases, therefore, will be discussed on the merits. Fred Seward started to work for respondent Warner in 1934 as a grip. He was and still is a member of Local 80 of the Alliance. On either Monday morning, March 12, or 19, 1945, Brewer addressed all the studio grips and told the assembled men that they would be expected to do car- pentry work in order to keep the studios running. Shortly after, Fuhrmann asked the grips to keep the studios in production and to do everything that was asked of them. On March 19, Ketcham told Seward that he had to go into the mill, whereupon Seward walked to the grip room, took off his overalls, and told Ketcham that he did not feel right about doing carpentry work; he was not going to do it ; and was going home. Seward added that it was not right for him to do carpentry work and that it was the same as "scabbing." Ketcham instructed Seward to report to Fuhrmann. On reporting to Fuhrmann, Seward said that he did not feel right about going into the carpenter shop and that he would like to have a blue slip. Fuhrmann told him that he could not give him a blue slip and that he would have to report to his union. Thereafter, and during the course of the strike, Seward did not work for respondent Warner. Seward was not willing to return to work to perform carpentry duties between March 19 and October 31, 1945. The day the strike was over, Seward sought out Ketcham and was told that there was no job for him but that he could leave his telephone number and he would be called. Seward never received a call thereafter from respondent Warner. He went on the Local 80 call book after the end of the strike, became ill sometime later and was hospitalized. Kenneth B. Coffey has been employed in the motion picture industry since 1914 and started to work for respondent Warner in 1922. Coffey is a lamp operator. m National Licorice Co. v. N. L. It. B., 309 U. S. 350, 368, 369. 21 Consolidated Edtson Co . v. N. L. It. B., 305 U. S. 197, 224, 225. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He has been a member of the Alliance since 1911, and at the time of the strike belonged to Studio Electrical Technicians, Local 728.'° Coffey reported for work on Monday, March 12, observed the picket line and refused to cross it. Coffey did not work in the industry during the strike, but on October 31, 1945, presented himself at the gate seeking reinstatement. He was with Stanley and Howe, other lamp operators, and they were told that there was no call for them on that day. Sometime in November, Coffey asked Jack Ohl, assistant chief electrician, why the "boys" could not return to work. Ohl answered that it was "somebody higher up than I am that is keeping you fellows out." al The respondents' answer respecting Coffey consists of a general denial. At the hearing, however, L. M. Comes, respondent Warner's chief electrician , testi- fied concerning Coffey's lack of ability due principally, according to Comes, to his addiction to the use of alcohol. Comes testified generally that Coffey was an "old timer" ; everybody felt sorry for him ; as long as he could get around he was kept on the job; he had been warned several times about drinking ; and if he did not stop drinking he would be dismissed This was over a period of about 2 to 3 years prior to March 1945. Despite Comes' intimate knowledge of Coffey's habits over a period of some 28 years he had never discharged him. He admitted that he knew that Coffey had requested work about October 31, 1945, but testified that there was no need for him at the time. The undersigned is persuaded that the Labor Committee's instruction issued by Pelton on October 31, 1945, to all of the Producers, rather than habits condoned over a long period of years, was the true cause of respondent Warner's refusal to reinstate Coffey. This instruction is herein set forth : Additional Instructions #2-Issued Oi t. 31, 1945, 4: 30 p m. Members of I. A. T. S. E. who bolted from their locals and/or refused to come to work during the strike, shall not return to their regular I. A. jobs without approval of the I. A. local concerned. If you have called any of these people by mistake, explain the error to the individual and lay off such people. I. A. replacements who were borrowed from any of the original 12 I. A. locals shall not return to work in their respective Locals without making advance arrangements with the Business Agents. [ S I F. E. PELTON When questioned concerning this document , Comes acknowledged that he had received instructions that men who did not work during the strike were to report to their locals before employment 22 Comes never discharged Coffey or advised Local 728 that he no longer desired to have him on the lot. 20 Coffey was a member of a construction local of the International Brotherhood of Elec- trical Workers , A F. of L., up to sometime in 1945. 11 Ohl denied this testimony . The denial is not credited because the substance of the conversation is consistent with instructions issued on October 31 , by Pelton, to all of the Producers and which is the subject of comment hereafter. 11 Brewer testified that Herbert Sorrell , president of the Conference of Studio Unions, was interpreting the directive that settled the strike so as to require the reinstatement of those who observed picket lines during the strike Brewer accordingly told Carroll Sachs of respondent Warner that the Alliance would not agree to the displacement of any of its members by the reinstatement of these men ; that the Alliance had filled the jobs at a difficult time and it would not agree to the displacement of the men supplied ; that the rights of the job holders as well as the job seekers were to be determined by the Alliance and the Producers and not by Sorrell and the Producers He testified further that he had no objection to the rehiring of the job seekers but it must not be in a way that would displace an Alliance member unless in accordance with "our rules and regulations " COLUMBIA PICTURES CORPORATION 617 Willis F. Howe was first employed by respondent Warner in 1938 as an elec- trician. Howe was and is a member of Alliance Local 728. Howe reported for work on Monday March 12, saw a picket line around the studio and did not go through the line. He did not report for work at any time thereafter during the course of the strike. On October 31, Howe reported for work accompanied by Coffey and Stanley. They were informed that there was no call for them. On November 1, 1945, Howe spoke to Ohl and was told that things were "awfully slow." At the same time, Ohl acknowledged that some 48 permit men were at work but that the refusal to reinstate Howe was due to conditions beyond Ohl's control.' Some- time later in November, Howe spoke to Robert C. Amy, a call clerk in the electri- cal department, and was told by Amy that his request for reinstatement would be taken care of in time. Paul L. Stanley was first employed by respondent Warner in 1926 as a lamp operator. He is a member of Local 728 of the Alliance. Sometime in September 1945, Comes asked Stanley to go into the carpenter shop. Stanley refused, saying that he did not believe it was right to do so. The matter apparently was dropped. Stanley worked after this incident until about October 1, when he stayed out for the balance of the strike. On October 31, Stanley accompanied by Howe, Coffey and others reported to the studios and sought a call but they were informed that they would not be hired. About 2 weeks after the strike ended, Stanley received a call through his local to report to respondent Warner. He worked one day. On November 29, Stanley telephoned the studio and ask Amy, the call clerk, to punch his time card for him. Amy refused to do so and, on investigating the matter, discovered that Stanley had also checked in on November 28, without receiving a call. Amy reported the matter to Comes who thereafter informed Stanley that if he got a call through his local, Comes would hire him, but that he would not place him on the regular call list. Respondent Warner never called Stanley after his request to Amy. Stanley worked irregularly for other Producers until March or April, 1946, when he decided that he "had enough." Thereafter, Stanley went into business for himself and from that time no longer wished reinstate- ment to his old position at respondent Warner. In the undersigned's opinion the refusal to reinstate Stanley on October 31 stems from Pelton's instruction to the Producers, previously mentioned. It does appear that Stanley was given calls at respondent Warner and other Producers following the termination of the strike. Sufficient reasons exist, in the undersigned's opinion, for respondent Warner's refusal to place Stanley in his old job on and after November 29, 1945, because of his improper request to Amy on that date to punch his time card. 3. Respondent Warner-Case No. 21-C-2660 J. Harold Rogers was first employed by respondent Warner in 1921. For a number of years thereafter, he was assistant to Louis Gelb, head of the Technical Department. At other times Rogers worked as a carpenter but in 1943 he became a prop maker and was transferred into the prop shop. Rogers has been a member of the Alliance since 1919, and was at the time of the strike a member of Local 44. as Ohl denied this conversation with Howe. The undersigned has credited Howe's testa-' mony for the same reasons as indicated in footnote 31, pertaining to a similar denial of a conversation that Ohl engaged in with Coffey. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rogers was one of the prop makers who on the morning of March 19, 1945, heard Brewer and Fuhrmann address the prop makers and who thereafter re- fused to perform carpentry work as requested by Fuhrmann . He was given a blue slip similar to those issued to the other prop makers. On October 31, Rogers sought reinstatement . After a group of carpenters had passed through the gate, Rogers and other prop men came to the window where Fuhrmann stood. Fuhrmann stated the question of their employment had not been settled and they could not return to work. About November 2, 1945, Rogers telephoned the studio and was told that there had been no ruling on the question. Rogers signed the call book on November 3, and thereafter received numerous calls from his Local to work at other studios, all of which he turned down, because they were not at respondent Warner's. Rogers was reinstated on February 12, 1946. He worked for about 1 week and then asked Fuhrmann for an indefinite leave of absence which was granted . Rogers no longer desires reinstatement. 4. Respondent Columbia-Case No. 21-0-2505 The amended consolidated complaint alleges that respondent Columbia dis- charged Joseph P. Cuccia on or about April 3, 1945, and thereafter refused to reinstate him because he refused to perform the work of striking employees and engaged in concerted activities with other employees. Respondent's answer is a general denial. Cuccia was employed by respondent Columbia from June to August 1942, when he was inducted into the United States Army. He returned to work for respond- ent Columbia in May 1943, after his honorable discharge . When Cuccia was rehired he told Tom Stevens , his superior, that his army discharge was due to defective eyesight and sinus trouble. Cuccia was a laborer and a member of Studio Laborers and Utility Workers, Local No. 727. It was his job to stand by with shooting companies , sweep the stages and after sets had been struck by the grips, he would assist in loading the sets on to trucks for storage. When a company was not engaged in shooting a picture , Cuccia "would kind of clean up . . ." Cuccia never did any painting while employed by respondent Columbia. About March 27, 1945, Cuccia was ordered to stage 4 , where he found 10 to 15 members of the Local together with Al Erickson , the business representative, and Tom Stevens. Erickson stated that the men would have to go into the paint shop and wash paint buckets, a task which had previously been performed by members of a Hod Carriers' local, not affiliated with the Alliance. Prior to the strike , members of Cuccia's local had not been admitted to the paint shop. Erickson stated furthermore , that his orders were that unless members of Local 727 worked in the paint shop their employment would be terminated . Where- upon the employees voted not to work in the paint shop. Following this event, Cuccia returned to his regular work. On the morning of April 3 , Cuccia's pusher ordered him to report to Dave Vail, the special effects boss, "to go painting." Cuccia refused stating that he would report to the office instead. Cuccia testified that on reporting , Stevens gave him an availability slip and a time card, and told him to punch out . However, the availability slip that Cuccia presented at the hearing was dated July 13, 1943, and it is the under- signed's opinion that Cuccia's recollection of this incident is not correct . Rather, the undersigned is of the opinion , and finds, based upon Stevens' testimony, that upon reporting to Stevens, Cuccia was told to report to his local. Stevens testi- fied that he had been instructed to send laborers to their local "if they didn't COLUMBIA PICTURES CORPORATION 619 work for Mr. Vail," presumably for their refusal either to paint or to wash paint pots. Cuccia testified that he refused to go into the paint shop because of his physical defects [sinus trouble] and for the further reason that he could not see himself "being used as a strike breaker." On the afternoon of April 3, Cuccia asked Erickson to help him get his job back. Erickson called the studio, but was unsuccessful in securing Cuccia's reinstatement. On April 5, Cuccia returned to the studio for his check and asked for an availability slip stating the reasons for his "discharge." He was issued a Statement of Availability which gave no reason for his separation. A. I. Chancey, respondent Columbia's head timekeeper, testified that when Cuccia saw him on April 5, Cuccia stated that he wanted an availability slip because he was going to work in a war plant and that it was the practice to issue a Statement of Availability when an employee requested one for the purpose of leaving the motion picture industry. The undersigned concludes and finds that Cuccia was not discharged as alleged, but rather that he voluntarily absented himself on and after April 3, because of his decision not to fill the job of a striker. In either November or December, 1945, Cuccia asked Stevens for his job but was told that the matter was out of his hands and that he did not know what he could do for Cuccia. Again in June 1946, Cuccia asked Stevens for a job and received substantially the same response . During the strike, and up to about February 1946, Cuccia was in the trucking business . Following the latter date, he did not attempt to secure work other than at respondent Columbia. 5. Respondent Columbia-Case No. 21-0-2562 The amended consolidated complaint alleges that respondent Columbia dis- charged Irwin P. Hentschel on or about March 19, 1945, and thereafter failed to reinstate him because he refused to perform the work and take the job of a striking employee. The respondent's answer is a general denial. Hentschel, a prop maker, was first employed by respondent Columbia in 1937. On March 19, Hentschel was at work drilling rubber arrowheads in the prop shop. At about 1 p. in. Hentschel was instructed by his foreman, Geza Gasper, to attend a meeting in the carpenter shop. There Hentschel observed Supervisors Vail and Gasper and Brewer, DuVal and other Alliance representatives. Brewer in- structed the members of Local 44 to do any work required of them by the studio. None of the studio officials spoke. Following the meeting Hentschel returned to his work. Shortly thereafter, according to Hentschel's testimony, Gasper told him to drop the work that he was doing, fashioning rubber arrowheads, and go over and "paint those arrows, or else you will have to see Mr. Vail." Gasper testified that what he told Hentschel to do was to tone down the arrow shafts. He denied that he instructed Hentschel to paint arrow shafts, although he admitted that he might have instructed Hentschel to "age" them. Gasper admitted that when he instructed Hentschel to process the arrow shafts, Hentschel stated that this was painting and that Gasper told him that if he did not want to do the operation he should see Vail." On this day, the painters were not at work at the studio. 8' Regardless of whether the process was one of painting or aging, it is clear from Gasper's other testimony that there had never been a previous occasion in his department to do work of this nature, it having been done elsewhere. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hentschel told Vail that he had been asked to paint and that under no cir- cumstances would he take the job of a man on strike because it was against his principles 35 Hentschel told Vail that he had been hired as a prop maker and that prop making did not include the task of painting. Hentschel asked if he was to understand that if he refused to paint his services would no longer be required and Vail answered affirmatively. Hentschel asked for an availability slip but Vail said that he would have to obtain it from the time office. At the time office, Hentschel was told that Vail had his availability slip. Hentschel then went to Lacey, the personnel manager, and asked why he had been "discharged." Lacey replied that his hands were tied. Lacey told Hentschel that he could have an "extended availability slip" but Hentschel demanded an availability slip that would permit him to work out of the motion picture industry. Chancey testified that Lacey instructed him that there was no reason to issue an availability slip to Hentschel because he had not been discharged. According to Chancey's further testimony when an employee was discharged, a close-out slip was made which was not done in Hentschel's case. The undersigned con- cludes and finds that Hentschel was not in fact discharged but rather refused to perform the work of painters and for this reason left his job. On the morning of October 31, 1945, Gasper asked Hentschel to return to work the next day on the afternoon shift Hentschel told Vail in a later telephone conversation that it was his intention to report October 31, at 1 o'clock, to talk to Vail before resuming work, so that an understanding could be reached as to the hours of his employment and respondent Columbia's attitude toward him as an employee. That afternoon Gasper assigned him to work. At the end of his shift, Hentschel was told that there was no more work and that he would be on call thereafter. Gasper testified that he was not responsible for Hentschel's failure to continue working after October 31, and he knew of no reason why Hentschel could not work as a prop maker after that date. He acknowledged also that union members with less seniority than Hentschel were continued in em- ployment after October 31. It seems clear that Hentschel's dismissal was due to respondent Columbia's enforcement of Pelton's orders. Hentschel was employed in the industry from September 1945 to June 1946, when his employment was terminated because of his expulsion from the Alliance. 6. Respondent Republic-Case No. 21-C-2563 The amended consolidated complaint alleges that respondent Republic dis- charged Robert W. Ames on or about March 29, 1945, and refused to reinstate him thereafter for the reason that Ames refused to take the job of a striking employee. Respondent's answer denies the discharge ; admits that on October 31, Ames was refused employment, and advised that all calls for employment in the prop department were being placed with Local 44 of the Alliance ; and that respondent Republic would employ Ames should he be sent by the Local. Ames was first employed by respondent Republic about January 1945. He is a wood carver and was employed in the prop shop making props and building miniatures. Ames has been a member of Local 44 of the Alliance since 1937. About March 15, 1945, Ames refused to assist in the construction of a set, telling his foreman Dwight Holson that this was carpenter's work. A few days later, Ames again refused to do carpentry work, contending that it was not within 31 Hentschel was shop steward of Local 44. COLUMBIA PICTURES CORPORATION 621 the jurisdiction of his craft. Ames stated that he objected "to doing scab work, that it was work for which I was not employed, that I was a prop maker, and I insisted on remaining a prop maker." About March 20, Howard A. McDonell, respondent Republic's business manager, told Ames that he understood that Ames did not wish to cooperate with respondent Republic. Ames replied that if McDonell meant that he had refused to act as a strike breaker it was true, because it was against his principles. McDonell urged Ames to get in line and do the work that he had been asked to do, but Ames reiterated his refusal to perform carpenter's work. About March 28, Ames again refused to do some carpentry work. On March 29 ' Holson told Ames that he was laid off ; the studio was closing for a few days ; but he was not fired. Ames acknowledged that he was never told that he was discharged and that no threats of discharge were made to him because of his refusal to do carpentry work. He testified however, that in his conversation with McDonell, it was Indicated clearly that he would be discharged because of his continued refusal to perform carpentry work ' Ames' lay-off occurred not more than 1 day after the conversation with McDonell and at the same time, 9 other men were laid off, some of whom, unlike Ames, had performed carpentry work. Jack Baker, respondent Republic's production manager, testified that about March 15, respondent Republic determined to curtail its production. In ac- cordance with its determination, Baker conferred with Ted Lydecker, head of the prop department, and Kenneth S. Svedeen, the latter in charge of special effects and miniatures, in the prop shop. These two supervisors were instructed by Baker, about March 21, to cut prop makers from a force of 21 to about 11. According to Svedeen, he and Lydecker selected the individuals for lay-off. Svedeen testified that no one was discharged or laid off because of his refusal to do carpentry work, that in this respect, the men's feelings were respected. He testified, however, that Ames was laid off because he would not perform his work as a prop maker and that he spent about half his time gathering up small crowds of employees and talking to them. It seems clear from Svedeen's testimony that prop makers who did obey respondent Republic' s instructions to cross jurisdictional lines were laid off either before or on the day that Ames was laid off, and that some prop makers who refused to do carpentry work were not laid off. The purport of Svedeen's testimony was that Ames was laid off for lack of work and because he was the ringleader in starting discussions among the prop makers, who respected his opposition to crossing jurisdictional lines. Svedeen acknowledged that he never cautioned Ames but he did complain to Holson about the matter. Svedeen admitted also that other individuals stood around talking, but he contended that no one was as prominent as Ames in this respect. When Ames was laid off, these discussion groups had quieted down and according to Svedeen, Ames was performing his work satisfactorily. In the lay-off and in the later rehire of prop makers, respondent Republic made no effort to comply with the seniority clauses of the Local 44 contract, which provides generally that junior members of the Union shall be laid off before 36 This date was fixed by Ames. "Ames testified as follows concerning this conversation with McDonell : "The substance of it was, 'Do as we say, or you will be fired.' Now , that is as clear as I can make it." 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, senior members in a job classification " When Ames was laid off, junior members were retained. There is no showing, however, that Ames possessed the qualifica- tions of the prop makers retained. The undersigned is satisfied from an examination of the record that respond- ent Republic curtailed its production in March 1945, and that Ames, as well as other prop makers who had refused to perform carpentry work, were laid off in accordance with the new production schedule. Prop makers, however, who re- fused to perform carpentry work, were not laid off and respondent Republic followed no set seniority pattern in determining who or who should not be retained. It also appears that respondent Republic hired two prop makers dur- ing the course of the strike, but it is not clear that Ames was qualified to perform the work of the prop makers thus hired. The undersigned is not persuaded in view of all the facts set forth above that Ames' refusal to perform carpentry work was the motivating cause for his lay-off. On a day following the end of the strike, Ames spoke to McDonell and told him that he wanted to come back to work. McDonell replied that Ames' "case" was different. He asked Ames if he had been on strike and Ames said "No, but since I was laid off I have respected picket lines." McDonell told Ames he would check on his "case." That afternoon McDonell again asked Ames if he had been on strike. Ames replied, as he had previously stated in the morning, that he had been respecting picket lines since his lay-off for refusal to do carpentry work. McDonell then said that he had been laid off because he was not a good prop maker. This was the first warning that Ames received that he was not an efficient workman. About January 1946, some months after Ames had filed charges under the Act, he received a message from the Regional Office to call McDonell. Upon doing so McDonell advised Ames that respond- ent Republic would be glad to reinstate him ; that the strike had been difficult for all ; and that as soon as Ames informed McDonell when he wished to return McDonell would arrange it. Ames replied that as soon as he was free to return, he would call McDonell. Following this conversation Ames never communi- cated with respondent Republic to notify it when he would be available to return to work. Thus, it appears that since January 1946, Ames has not availed himself of the opportunity to return to work at the studio. It seems clear that respondent Republic's failure to rehire Ames about Oc- tober 31 was due to the fact that it was complying with Pelton's instructions of October 31, not to rehire any Alliance member who had refused to cross the picket line during the strike and that failure to rehire him from that time up to sometime in January 1946, is attributable to those instructions. The under- signed so finds. Ames was expelled from Local 44 of the Alliance on 'June 14, 1946, and respondent Republic was served with notice thereof. 7. Respondent Loew-Case No. 21-C-2662 The amended consolidated complaint alleges that respondent Loew discharged George I. Groth on or about March 23, 1945, and refused to reinstate him to his 18 The seniority section provides in part as follows : B. The Producer shall have freedom of selection within the Senior Group for hiring, filling vacancies and making promotions , and shall not be required to lay off Senior mem- bers on any fixed basis. C. Junior members in any job classification shall be laid off in all cases before any Senior members in such job classification are laid off . Upon request from the Union, a Junior member shall be replaced by a Senior member within a job classification, but no Junior member need be laid off until he has completed his current assignment. COLUMBIA PICTURES CORPORATION 623 former position and discharged John L. Selgrath on or about March 24, 1945, and refused to reinstate him until December 19, 1945, and that the discharges and refusals to reinstate were due to the fact that the said employees refused to per- form the work and take the jobs of striking employees. The answer denies any discrimination, but admits that about November 14, 1945, Selgrath made application for reemployment which was refused because of the fact that re- spondent Loew was advised by Local SO of the Alliance that Selgrath was not in good standing in the Union, and that upon being further advised about De- cember 19 that Selgrath was now in good standing, he was offered employment. George I. Groth first started to work for respondent Loew in January 1942, as a member of the labor gang. Groth is a member of Local 727 of the Alliance. On the morning of March 22, Groth was asked to fill holes and cracks with putty using a broad knife. Groth worked with his fingers, instead of using the knife ; continued on his job for about 30 minutes ; and then slipped out to the card rack to observe his time card. He noticed that his rate had been changed from that of a laborer to that of a painter. On March 23, Groth reported to work at his accustomed place and was then sent to the leather room where, along with others, he was handed a paint brush and painters' tools by a pusher. Groth told the pusher that he would not paint, and was sent to Herb Schuetze, the gang boss. On reporting to Schuetze, Groth was asked if he wanted to work and he replied, "Yes, but I don't want to paint." Groth, accompanied by three or four other employees who had also refused to paint, started to leave the lot and upon reaching the gate were sent to the office of Fred Gabourie, superintendent of construction. There, Groth was told if he would not paint, he would not be paid. Thereupon Groth left the studio. Groth had never done any painting of any kind during the history of his employment, nor had he performed any painter 's work such as filling holes or cracks with putty. Groth testified that he refused to do the work of painters because he had never done anything but labor work in the studio and "painting is highly technical. I do not know the first thing about it. Besides, it was someone else's work. I did not wish to do it." Groth admitted that he gave no reason to his supervisor for his refusals to paint , he just told them that he would not do it. Groth returned to the studio on April 2 because, he testified, "I just wanted to go back to work." He reported to the scene dock where the laborers met and then he was sent to a stage by Schuetze. Paint brushes and painters' tools were again passed out but Groth refused to accept them. On his refusal, he was ordered to take his time card to Schuetze's office Schuetze asked Groth if he wanted to work and Groth replied that he did but he did not wish to paint. Schuetze told Groth that he knew the "set up" and Groth left the lot. Early in April 1945, when Groth paid his union dues, he told Orville Brown, financial secretary of the local, that he was willing and anxious to take a labor call. Brown, however, stated that things were in bad shape and that he could not give Groth "a straight labor call." In the latter part of October, Groth again repeated that he was eager to return to work for respondent Loew or get a job elsewhere and Brown informed him that he would do what he could. Groth called the studio on November 3, 1945, and Schuetze asked him where he had been. Groth answered that he had off. Schuetze stated : "As far as I am concerned, you are still off," and hung up. Groth started to work for the Hal Roach Studios on March 9, 1946, and since that date no longer desired reinstate- ment with respondent Loew. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John L. Selgrath has been employed by respondent Loew for about 20 years. Selgrath has been a key grip since 1933, and in March 1945 was a member of Local 80. As a key grip, Selgrath was assigned to a camera man and on pro- duction, among other duties, supervised the moving of walls and the setting up and use of reflectors. On March 23, 1945, Selgrath worked at his usual tasks as key grip and on the 24th his superior, Andy McDonald, the grip foreman, assigned him to do some carpentry work. Upon his refusal, Selgrath was instructed to report to William Barrett, business representative of Local 80. Selgrath told Barrett that he would not do carpentry work, whereupon Barrett called McDonald and told him to dis- charge Selgrath. Selgrath returned immediately to the studio and saw Mc- Donald, who stated that he had no right to fire Selgrath and he did not know- what to do. Selgrath then asked McDonald if arrangements could be made for him to see William R. Walsh, respondent Loew's labor relations director 09 Selgrath saw Walsh on Monday, March 26. During a lengthy conversation, Selgrath asked Walsh what was going to be done with him. Walsh replied that he did not know. He would not discharge Selgrath nor would he lay him off. Selgrath then agreed to go home until the strike was over. Selgrath told Walsh that he would be willing to cross the picket lines to do his own work but he would not perform carpentry work. Following Selgrath's conversation with Walsh, he saw Jerry Mayer, the studio manager. Present on this occasion, in addition to Mayer and Selgrath, were Gabourie, superintendent of construction, Walsh, and Hopper, assistant to General Manager Mannix. Mayer took the lead in the conversation and urged Selgrath and employee Scoggins, who accompanied Selgrath, to return to work. Selgrath told Mayer that the issues precipitated by the strike should be settled by the union leaders and that his experiences during the strike of 1933 were such that he could not take the job of an employee who was out on strike.40 Following the meeting with Mayer, Hopper told Selgrath that General Manager Mannix wanted to see him. At this meeting, Mannix told Selgrath that he did not like to see him leave and tried to persuade Selgrath to help out by doing part time carpentry work and continue with his regular job. In addition, Mannix told Selgrath that the Carpenters Union was trying to take work away from the Alliance ; that the Alliance was going to try to keep the studios open ; and he suggested that Selgrath "stick" with his union and do whatever work was asked of him. Mannix was asked if Selgrath would be discharged for refusing to do carpentry work and Mannix replied that he did not think so. Selgrath asked if he could return to his regular work and Mannix answered that he could do so by spending part of his time in the carpenter shop." Selgrath sought reinstatement on October 31, and saw McDonald who told him that he would consult Gabourie. McDonald later instructed Selgrath to return the next morning and that he would be reemployed as a key grip. When Selgrath came to work the next morning, he found his time card missing, and 79 Not to be confused with Richard F. Walsh, International President of the Alliance. 10 Selgrath testified : "I told him that in 1933 , when I was working in the carpenter shop that this same thing had come up again, told him how that previous to that time how they came to the studio, if we didn't take a job as a grip or stand-by carpenter that we were fired, so I took that job, and told him about my daughter coming home one day from school and telling me that she couldn't play with the other kids because her dad was a scab. So that ended that." 41 In July and October 1945, Selgrath was offered his job provided he would work from 30 minutes to 2 days in the mill as a carpenter. Selgrath refused to accept employment under those conditions. COLUMBIA PICTURES CORPORATION 625 he was ordered to report to Gabourie , who in turn told him to report to his union. At the union offices, Barrett stated that there was nothing he could do for Selgrath. On November 14, Selgrath wrote Walsh , in part, as follows : I now request reinstatement to my job without discrimination . I would appreciate an immediate reply advising me when I should report for work or the reasons for the demise of my request. In reply, Walsh answered, on November 26, in part: Please be advised that we operate the Grip Department by virtue of a closed-shop agreement with Local No. 80, I. A. T. S. E., and employ only members in good standing with that organization. At present your organi- zation has advised us you are not in good standing with it. In the event your union advises us that you are in good standing, we will consider you for employment.92 Sometime after this, Local 80 instructed Selgrath to report for work on Decem- ner 19, 1945. On reporting, Gabourie told Selgrath that there were no vacancies for key grips and that he would be hired as a new man at the rate of $1.63 an hour instead of the rate of $2.05 an hour for key grips. Although Gabourie had informed Selgrath that he was being rehired on December 19, as a new man, he was given his old clock number, and deduction authorizations for various pur- poses which Selgrath had previously executed were continued in force and opera- tion after his return. At the time of the hearing Selgrath was still employed as a grip. He testified that key grips were on a weekly salary of $139.50 for about a 60-hour week. It appears clear from the facts found above, that Selgrath was neither dis- charged nor laid off and was offered every inducement to continue his work as a key company grip provided that he would spend part of his regular hours of employment doing carpentry work. This Selgrath refused to do, voluntarily abstaining from his job , because of personal convictions that he could not perform any part of the work of employees out on strike or supporting the strike. The undersigned so finds. The discrimination, if any, with respect to Selgrath, in the undersigned's opinion therefore, rests on respondent Loew's action taken on and after October 31, when Selgrath sought reinstatement as a key company grip. In this connection Walsh testified that either on October 31 or November 1, Barrett telephoned and told him that Selgrath had not worked during the strike and was not to be returned to work because he was no longer in good standing in Local 80.13 In addition, Walsh received a copy of Pelton's instructions to members of the Association. He testified that those instructions applied equally to both Selgrath and Groth. About December 19, Walsh was advised by Local 80 that Selgrath had been cleared for rehire. It was pursuant to this advice that Selgrath was then reemployed as a grip on December 19, 1945. 8. Respondent Twentieth Century-Case No. 21-C-2664 The amended consolidated complaint alleges that respondent Twentieth Century refused to reinstate Eugene V. H. Mailes to his former position of greens- 12 Selgrath testified that he was always a member of Local 80 and that be was never advised by the Union that he was not in good standing. 41 At this time Selgrath's job had not been taken by his assistant, Carl Reed, who resigned in March 1946 The job has not been filled, there being no need , according to Walsh, to fill the post. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man, between October 31, 1945, and February 18, 1946, because :Miles refused to pass the picket lines during the strike. Respondent Twentieth Century an- swers this by general denial and avers further that on June 14, 1946, it was noti- fied that Mailes had been expelled from membership in Local 44 of the Alliance ; that respondent Twentieth Century had entered into a closed-shop contract with Local 44 covering Mailes' classification, and pursuant thereto, only workers who are members in good standing of the Alliance could be hired. Mailes has been employed by respondent Twentieth Century for about 21/2 years as a greensman. Mailes joined Local 44 in 1939. He was expelled from the Union on June 14, 1946. Mailes worked at his regular job during the entire course of the strike and up to October 1, 1945. During that time Mailes performed certain work over which no clear jurisdictional lines had been established. However, lie was never asked to perform any work over which the Carpenters' jurisdiction had been clearly established. On October 1, 1945, Mailes went on his regular vacation An em- ployee's vacation notice introduced in evidence shows that Mailes' vacation with pay was approved for a pay period of 12 days from October 1 to October 13, 1945. Mailes did not return to the studio on Monday, October 15, the day he was scheduled to return from his vacation. Instead he called the studio and spoke to Fred Lutz, assistant chief of his department, on the morning shift. Mailes testified that when he spoke to Lutz on October 15, he asked for an extension of his vacation, on the ground that he believed that he might be helpful in settling the strike and that Lutz stated that he would hold up his vacation slip until he was informed to the contrary. Whether in doing so Lutz exceeded his authority, Mailes was unable to state. He testified that he assumed that Lutz, as a responsible assistant department chief, had such authority. Lutz testified, however, that he could recall no specific conversation with Mailes about extending his vacation. He testified, moreover, that he had no authority to do so. He admitted that he had held a number of conversations with Mailes but he could not distinguish one talk from another. Lutz was not a persuasive wit- ness. His testimony was general in nature and at times contradictory. The undersigned is satisfied that on or about October 15, Mailes did telephone to Lutz and asked for a vacation extension. There seems no doubt concerning Lutz's general supervisory authority. In his capacity as a supervisor, he spent most of his time in the office and gave instructions to foremen. The undersigned finds, therefore, that Mailes did ask for an extension of his vacation and that he had reasonable grounds for belief, as the result of his conversation with Lutz, that his vacation had been extended. About October 18, Mailes spoke to Charles Hickson, assistant chief of the department, on the afternoon shift, and told him that because of increased vio- lence he preferred to remain away from the studio. Hickson replied that this was satisfactory; Nick Kalten, the head of the greens department, understood the situation and did not want any of his employees to take chances 44 These findings are based upon Mailes' undenied and credible testimony.46 Following the announcement of the strike settlement about October 29, Mailes went to his union to pay his dues. Then he called Lutz and asked for permission to return to work on his regular shift. Although Lutz could not recall anything about the request from Mailes to return to work, he did acknowledge that Mailes 44 There had been no violence on the picket line around respondent Twentieth Century's studio during the month of September and Mailes knew of no violence during the month of October. It does appear that there was violence elsewhere about this time. 41 Neither Hickson nor Kalten testified. COLUMBIA PICTURES CORPORATION 627 telephoned him seeking reinstatement and that he instructed Mailes to contact his local, because the union had advised the studio that Mailes "had lost his card, or wasn't in favor with the union, or something." Secretary Hill told Mailes that Brewer was not satisfied with the way Mailes had spent his time since October 1. Then Mailes went to the studio and spoke to Kalten. Mailes asked Kalten if he could return to work, but Kalten was non-committal stating that he would have to check with Meyer, the personnel manager, and further that Mailes was the only individual who had caused his department any difficulty. On November 12, 1945, Mailes saw Meyer at the studio. Meyer stated that the studio was willing to reinstate him if the Union had no objection. Mailes replied that all he knew was that he could not work. Meyer then stated that according to his information, based upon pay-roll department records, Mailes had quit his job. Mailes replied that he had gone on vacation ; that his vacation had been extended by Lutz ; that thereafter Hickson had given further permission to stay out ; and subsequently, Mailes had gone to the Union, paid his dues, sought reinstatement through Kalten and had been unsuccessful up to date. Respondent Twentieth Century introduced in evidence a record entitled "Daily Report of Changes In Personnel," dated October 13, 1945, which pur- ported to show that, effective as of that date, Mailes had been marked off the pay roll. How this document could be dated October 13, when Mailes was not due to return from his vacation until October 15, is not clearly explained. Lutz testified that a close-out sheet would not be made out in the case of an employee whose vacation had been extended. Lutz had nothing to do with the preparation of the document and he could not remember talking to Kalten about it. Lutz also acknowledged that despite a close-out, a regular employee such as Mailes would be rehired if there was work to do. Finally, Lutz testified that the close-out sheet was made, in the case of Mailes, because he failed to return to work within 6 days after his vacation ended. This still does not explain the effective date of October 13. The undersigned is not convinced that this document is en- titled to serious consideration. The effective date renders it suspicious, as well as the fact that Lutz's testimony concerning it was not specific, and Kalten was not produced as a witness to testify concerning its preparation or his signature on the document. The undersigned finds, therefore, that the document can be ac- corded no weight to support the respondent's theory that Mailes voluntarily quit his employment. In the latter part of January 1946, Mailes was informed that the way had been cleared for him to return to the studio. Mailes went to the studio and saw Lutz, telling him that he now understood that he could return to work. Lutz, however, stated that there had been no change in his status. Thereupon Mailes called Meyer and explained to him what he had been told. Meyer explained that he had no objection to Mailes' employment but that all hiring was done through the Union and that if Mailes was sent to the studio by Local 44, Meyer would hire him. Sometime thereafter Mailes protested to Secretary Hill that he was not being recalled whereas permit greensmen were at work in the studio. About the middle of February 1946, Mailes was reemployed at his regular job on the afternoon shift in the landscape department. In this connection DuVal testified that Mailes was entitled to his job over any permit man employed in November 1945, provided Mailes was a member in good standing." To Duval's knowledge, Mailes was in good standing in the Union at that time. He had not been suspended or expelled. se Under Local 44's policy of policing its contracts, permit men were replaced by unem- ployed members of equal skill. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mailes continued to work for respondent Twentieth Century until June 16, 1946, when the studio notified him of his expulsion from the Union and he was laid off. 9. Respondent RKO-Case No. 21-C-2665 The case of Forrest McLoney, alleged to have been refused employment by respondent RKO from October 31 to December 27, 1945, was dismissed at the hearing on motion of counsel for the Board. It will be recommended hereafter that the complaint be dismissed in respect to respondent RKO. D. Conclusions The foregoing covers in detail the employment history of each complainant after March 12, 1945. There is no single uniform pattern of conduct applicable to all. The various cases separate themselves into three main classifications with separate in-group distinctions: those who were discharged outright for re- fusal to perform the work of a striker ; 41 those who refused to perform assigned work, some of whom were denied discharge slips or availability slips and either were sent to their unions or went home and were subsequently refused reinstate- ment ; 48 and finally those who voluntarily absented themselves during the strike or refused to cross the picket lines and were thereafter denied reinstatement.99 The rights of the complainants, if any, rest upon law applicable to these broad fact situations . At the outset however, there must be considered the strike of Painters Local 1421, which set in motion the chain of events culminating in this proceeding. On the final day of the hearing, respondents' counsel asked the undersigned and the Board to take judicial notice of a long series of adminis- trative and procedural matters, commencing with the request for a strike vote filed by Local 1421 on December 6, 1944, under the provisions of the War Labor Dis- putes Act, including the respective unit contentions and dispute between Local 1421 and the Alliance over the right to represent set decorators, and ending with the representation hearing held from March 7 to 17, 1945, on the consolidated petitions of certain respondent Producers 5° and the unions 51 involved. At the conclusion of the request to take judicial notice of the foregoing mat- ters, counsel for the Board and for the individual complainants asked for an expression of the undersigned's intention. The undersigned stated that he had no authority to bind the Board to take judicial notice of the various matters, stating however, that decisions of the Board and its opinions were controlling upon the undersigned. Counsel urged that the request was in effect an offer of evidence to take judicial notice of certain facts and that the materiality of the facts was as much in issue as if the same facts had been presented through an offer of proof. It was further urged that in the absence of a ruling counsel would then consider the request covered material matters and an opportunity was therefore desired to introduce further evidence on the same subjects, which would require presentation of a number of witnesses and the preparation of documents. Counsel objected to a consideration of the matters for the reason, not that they were matters of which the Board could not take judicial notice, but on the 47 Batchelder, Bonning, DeSanctis , Gidlund, Hand, Jensen, Lamb, Lora, MacKellar, $ogers, Sapp, Simpson, Stoica, and White. 48 Ames, Cuccia, Groth, Hentschel, Larson, Selgrath, and Seward. ^ Coffey, Goudle, Howe, Mailes and Stanley. 50 Case No 21-RE-20. 41 Case Nos. 21-R-2630, 21-R-2622, 21-R-2624, 2625 , 2626, 2627, 2628, 2629, and 2630. COLUMBIA PICTURES CORPORATION 629 ground that they were incompetent, irrelevant, and immaterial to any issue in this proceeding. Respondents' counsel urged that these were matters of which the Board must take judicial knowledge and that there was nothing for the undersigned to rule upon. In view of these objections, the undersigned ruled for the purpose of this proceeding, that he would treat the request as an offer of proof and that had it been made as an offer it would have been rejected for immateriality. Because of this opinion that the matters referred to are im- material, the undersigned has not taken judicial notice of those matters. The undersigned, however, does recognize and has taken judicial notice of and re- ferred to the opinion of the Board in Matter of Columbia Pictures, et al '2 The ultimate question herein presented for consideration and resolution is whether the Act and applicable law as found by the Board and sustained by the Courts give employees the right by concerted action to refuse to take the jobs of striking employees or perform work vacated by striking employees, or those who although not striking, by absenting themselves from work support the strike. Subsidiary to the main question above is the other, whether the complainants herein, by their action in withholding services for all reasons assigned, did thereby engage in a "partial strike" of a nature which warrants protection of the Board, in the absence of any unfair labor practice on the part of the em- ployers. First there is to be considered those cases wherein the concerted activity was followed by discharge and the other group of cases wherein the dis- crimination, if any, following a voluntary abstention from work, was in the refusal to reinstate. There also arises the question of whether the conduct was unlawful because taken to support a strike called by another union, of which the complainants were not members, during the course of a representa- tion hearing. 1. The discharge cases There is no showing here that the action of the complainants was in violation of contract or otherwise violative of Board policy, and there is, in the under- signed's opinion, no element of unlawfulness which presents itself for considera- tion. Section 7 of the Act expressly guarantees employees the right to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. By Section 2 (9) of the Act, the term "labor dispute" includes any controversy concerning terms, tenure, or conditions of employment. By Section 2 (3), an employee who ceases work because of, or in connection with, a current labor dispute retains his employment status by virtue of Section 2 (3) and (9) and the complainants were thereby entitled to the protection of the Act 63 In Carter Carburetor Corporation v. N. L. R. B." the Circuit Court of Appeals stated : Section 7 gives employees the right "to engage in concerted activities, or for the purpose of collective bargaining or other mutual aid or protection." This "mutual aid" and "concerted activities" include, we think, the right to join other workers in quitting work in protest over the treatment of a 6' 64 N. L. R. B. 490, 17 L. R. R. 290 (1945). ' N. L. R. B. v. Mackay Rad4o & Telegraph Co., 304 IT. S. 333 ; N. L. R B. v. American -Manufacturing Company, 106 F. (2d) 61 (C. C. A. 2), affirmed as modified 309 U. S. 629. 64140 F. (2d) 714 (C. C. A. 8). 838914-50-vol. 82--41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coemployee, or supporting him in any other grievance connected with his work or his employer' s conduct.' Applying the above principles to facts found above, it is clear that 14 prop makers, members of Local 44,66 all employees of respondent Warner, were be- cause of their concerted protests against their employer's direction to have them work as strike breakers discharged on March 19, 1945. The jobs they were asked to fill were those of strikers and their refusal to take them was due to the fact that compliance would have placed them in the position of helping to break a strike.67 Their refusal, accordingly, constituted concerted activity protected by the Act and their discharges insofar as they were motivated by such refusals were discriminatory 68 Before passing to a consideration of the other cases attention is focused upon another line of cases cited by respondents and Intervenor Alliance, under au- thority of which if applicable, a discharge for concerted activity and a refusal to reinstate which thereafter follows, would be held non-discriminatory, because the concerted protest or activity was in support of an "unlawful strike," violative of Board policy. In principal support thereof is cited the line of cases starting with and following the Board's decision in the American News case." The Board laid down the principle in American News, that strikers whose objective was to induce the employer to give them a wage increase, without prior approval from the War Labor Board, as required by Executive Order under the Stabilization Act, were riot engaged in "concerted activity" of the kind protected by Section 7 of the Act. Accordingly, the employer's treatment of the strikers' action, the termination of their employment, and his refusal to reinstate all men were held not to constitute an unfair labor practice. The serious impro- priety in the labor conduct there involved was clearly plain, since the employer's compliance with the strikers' objective would have subjected him to criminal penalties under Wage Stabilization legislation. Whether the "illegal objectives'.' test should be applied here in the instant pro- ceeding requires reference to the Columbia Pictures case 8° and the Board's opinion therein. There the Board had before it the strike precipitated by Local 1421 55 Citing N. L R B v . Peter Cailler Kohler Swiss Chocolates Co , 130 F. (2d) 503 (C C A 2) ; Fir tit Carpet Co. v. N L. R B., 129 F (2d) 633 (C C. A. 2) ; N. L. R B v. Good Coal Co, 110 F. (2d) 501 (C C A. 6) ; Rapid Roller Co. v. N. L R B., 126 F. (2d) 452 (C C A 7) 6° Batchelder, Bonning, DeSanctis , Gidlund, Hand, Jensen, Lamb, Lora, MacKellar, Rogers, Sapp, Simpson, Stoica and white 57 "Certainly nothing elsewhere in the Act limits the scope of the language to 'activities' designed to benefit other 'employees' , and its rationale forbids such a limitation when all the other woikinen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a 'concerted activity' for 'mutual aid or protection', although the aggrieved workman is the only one of them who has any immediate stake in the outcome The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping, and the solidarity so established is 'mutual aid' in the most literal sense, as nobody doubts. So too of those engaging in a 'sympathetic stiike', or secondary boycott, the immediate quarrel does not concern them, but by extending the number of those who will make the enemy of one the enemy of all, the power of each is vastly increased " N L R B v. Peter Cailler Kohler Swiss Chocolates Co , Inc., 130 F. (2d) 503, 505, 506 (C C A 2). 'IN L. R. B v J G Boswell Company, et at, 136 F (2d) 585 (C C A. 9), United Biscuit Co V. N L R B , 128 F. (2d) 771 (C C A 7) , Rapid Roller Co. i. N L R. B , 126 F. (2d) 452 (C C A 7) 5s Matter of The American Neu s Co , Inc , 55 N L R B 1302 60 Matter of Columbia Pictures Corporation, et at , 64 N L R 13 490. COLUMBIA PICTURES CORPORATION 631 on March 12, 1945, and which thereafter, during its course, gave rise to the actions of the complainants herein. Respondent's theory in short is, since the strike of Local 1421 was called for an improper objective, applying the "illegal objectives" test of American News, the action taken by employees, who were not members of Local 1421, in support of an improper objective, places these latter employees in. no better or different position than those who were members of Local 1421, and since the discharge of Local 1421 members would have been justified, similar action against non-members for supporting the unlawful strike is likewise privileged. The theory thus advanced is rejected for two reasons. The Board in Colum- bia Pictures did not pass on the alleged illegality of. the strike, holding : We find it unnecessary to decide whether or not it would have been an unfair labor practice had the Producers granted recognition, the object sought by the Painters; assuming arguendo that such was the case, we never- theless are of the opinion that the doctrine of the American News case is not applicable to the instant situation el The Board then went on to distinguish the American News case pointing out that the strike therein prosecuted to compel an employer to violate the Wage Stabili- zation statute, was the kind of an action to which the Act should be accommodated if this could reasonably be done. In pointing this out, the Board stated that it regarded the decision in the American News case as one of narrow application, intended to apply primarily to a situation in which employees deliberately and knowingly strike to compel an employer to violate a statute which, when read in the setting in which it was enacted, manifested the inexorable inten- tion of the Congress that its mandate be obeyed e: That was not the situation in the Columbia Pictures case, the Board said. It was further pointed out that the Board was satisfied that the Painters had struck to secure an objecive which that Union and its members believed themselves entitled to under the Act. They were entirely unaware that recognition by the Producers at that moment might have constituted an unfair labor practice. The Board stated that a strike called during the Board's hearing and investigation to resolve the question at issue in the strike showed a disregard for the orderly processes of the Board, but it found nothing in the Act and its legislative history, or in court decisions thereunder, which pointed to the conclusion "that the strikers' conduct . . . removed them from the ambit of the Act. On the contrary, the language of the Act and the decisions of the Board and the courts make plain that a strike of this character-to obtain recognition and collective bargaining- is within the `concerted activities' contemplated therein and cannot render strikers vulnerable to loss of their status as `employees' because this is their purpose." 63 Thus it is clear that the Board has not passed upon the legality of the strikers' conduct in the Columbia Pictures case, and in fact held, moreover, that the strike fit 64 N L. R B 490, 511. °R Id. at 512. 68 Id at 514. In the Peter Casper decision cited supra, the Court at p. 506 said : "But so long as the 'activity' is not unlawful, we can see no justification for making it the occasion for a discharge . In five other decisions, the Board has found occasion to discuss the American News doctrine and has deemed that doctrine inapplicable in all cases See Fairmont Creamery Co, 64 N L R B. 824 (1945) , Rockwood Stove Works, 63 N L R B 1297 (1945) ; Republic Steel Corp. 62 N L R. B. 1008 (1945) ; Indiana Desk Co, 58 N. L. R. B 48 (1944) ; S. & S. Cone Corp, 57 N L. R B. 260 (1944). 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therein was a concerted activity. This being so, the undersigned cannot accept, the premise that the strikers' conduct therein was illegal and that the com- plainants' action herein was any the less legal. Certainly, the complainants who did not strike and were not members of the striking unions should not be placed in a more hazardous position than the strikers, whose activity has been protected. For these reasons also, cases such as the Phelps Dodge Copper case are not deemed apposite to the situation here presented.' The second reason for rejecting the doctrine of American News as applicable here is that there can be no justifiable finding that the complainants "deliber- ately and knowingly" struck to compel an employer to violate either Board policy or statute. They exercised their protest against doing strikers' jobs, a concerted activity, as heretofore found. Their concerted protest was not to force the respondent Producers to accomplish an illegal purpose but rather to permit continuance of fixed and determined patterns of work and conditions of employment. In this aspect of the case they are not on the same or equal footing as the primary strikers. The complainants were in fact willing to work during the strike. They asked only that they be permitted to continue their accustomed employment. This they had a legal right to do." All the complainants herein stand on a different footing than the primary strikers and their rights rest upon established principles of law which protect the type of concerted activity in which they engaged." 2. Refusals to reinstate The legal rights of the complainants who were not discharged but who on and after October 31, 1945, were refused reinstatement to their former jobs, rest upon other considerations now pertinent. It will be recalled that on the afternoon of October 31, 1945, Pelton issued instructions to all the respondent Producers, that Alliance members who refused to come to work during the strike were not to be returned to their regular jobs without approval of the Alliance. These instructions came from B. B Kahane, chairman of the Producers Labor Committee. Pelton could not recall any discussion of this document or its contents with Alliance officials. Yet it seems incredible that it could have been issued without prior consultation by some Producers' representative. There is abundant proof that all com- plainants were refused reinstatement on and after October 31, 1945, and in those instances where reinstatement had occurred, lay-offs followed, the instruc- tions thus being completely obeyed. Later reinstatements as in the cases of DeSanctis and Selgrath for example, were had only with Alliance approval. This record contains no evidence that on October 31 any of the complain- ants had "bolted" from their locals, although it is true that by refusing to 84 63 N. L. R. B. 686, 687. Where the Board held : "We are of the opinion that if, during the pendency of an election directed by the Board to resolve a question concerning representation, an employer extends or renews an existing contract with a labor organiza- tion, or makes a new one, he violates the Act insofar as that organization is accorded recognition as exclusive bargaining representative or employees are required to become or remain members thereof as a condition of employment." 65 Matter of Firth Carpet Company, 33 N L. R. B. 191 ; enforced Firth Carpet Co. v. N L. R. B., 129 F. 2d 633 (C C.A.2). U It is clear that the complainants were not members of the striking Union. Lack of membership in the Union or ineligibility for membership is immaterial. Non-union mem- bers may join sympathetically in the activit of a union in which the are not eligible for membership without relinquishing the protection afforded by the Act. See Matter of Club Troika, Inc., 2 N. L. if. B. 90, 94; N. L. R. B. V. Bales-Coleman Lumber Co., 98 F. 2d 16 (C. C. A. 9). COLUMBIA PICTURES CORPORATION 633 cross jurisdictional lines they had not complied with instructions of their Inter- national President 81 Nor is there persuasive evidence that any complainant was at this time expelled or under suspension from his local. So far as the record indicates they were all in good standing as Alliance members. In short, they were denied reinstatement to their regular jobs because the respondent Producers followed instructions emanating from their Labor Committee, fash- ioned to punish union members for daring to protest orders to cross jurisdic- tional lines. In the undersigned's opinion this is a clear case of refusal to rein- state for engaging in concerted activities protected by the Act and it is so found. As in the case of the discharged employees, those individuals who vol- untarily absented themselves, or refused to perform assigned work and were sent home still remained employees for the purposes of the Act. The refusal to reinstate was due to the fact that each had engaged in withholding his labor, "a partial strike." A partial strike is a form of concerted activity that is protected under the Act.88 Upon the entire record, the undersigned finds that respondent Warner dis- charged 14 prop makers on March 19, 1945, and that respondent Producers refused on or about October 31, 1945, to reinstate all of the complainants herein because of their concerted activities, thereby discriminating in regard to the hire and tenure of employment of such employees and that the respondents thereby en- gaged in unfair labor practices within the meaning of Section 8 (3) of the Act. It is found further that by such action, the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. E. Interference, restraint , and coercion The amended consolidated complaint alleges that on or about March 19, 1945, respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in the Act, by threatening employees that they would never work in the motion picture industry again, if they refused to per- form the work or take the jobs of striking employees. In compliance with an order of the undersigned, counsel for the Board furnished an oral bill of particu- lars to respondents' counsel stating that foregoing allegation applied to a statement made by Francis E. Fuhrmann, head of respondent Warner's prop department, on March 19, 1945. 87 In Matter of Washougal Woolen Mills, 23 N L R. B. 1, certain employees joined a walk-out of other employees over a labor dispute . The Board held : ". . . these em- ployees, by leaving the plant, did not intend thereby permanently to discontinue the normal employer-employee relationship , and that these employees were engaging in concerted ac- tion to secure a demand with respect to terms and conditions of employment. Whether or not this concerted action was authorized by the Union is, of course , immaterial in this connection . We find that the employees who participated in the walk -out remained employees within Section 2 (3) of the Act." The undersigned also believes it immate- rial that certain employees asked for and obtained availability slips. At that time they were needed to procure employment elsewhere, in the absence of which , the respondents could legitimately protest failure to look for and obtain work. 88 By virtue of Section 2 (3) and ( 9), the individuals here concerned remained employees after the date that their concerted activity commenced and were thereafter entitled to the protection of the Act. N. L It. B v. Mackay Radio & Telegraph Co , 304 U. S 333; Rapid Roller Co. v. N. L. R. B, 126 F. 2d 452 (C. C. A. 7) ; Black Diamond S S. Corp. v. N. L. It. B., 94 F. 2d 875 (C. C. A. 2); N. L. It. B. v. Good Coal Co., 110 F. 2d 501 (C. C. A. 6). Moreover , whether or not they were employees of the respondent Producers, a refusal to employ them for unlawful reasons would contravene Section 8 (1) and (3) of the Act. Phelps Dodge Corp . v. N. L. it. B., 313 U. S. 177 ; N. L. It. B. v. Waumbec Mills, 114 F. 2d 226 (C. C. A. 1). 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Witnesses testifying on behalf of the Board °° testified that on the morning of March 19, 1945, Fuhrmann stated to the assembled prop makers, during the course of the meeting heretofore referred to, that in the event the prop makers refused to comply with his instructions to go into the carpenters' shop and per- form the work of striking carpenters, for their refusal to do so, they would not be able to work in the motion picture industry again. Sapp and Lora testified that Fuhrmann used the word "eliminated " White and Batchelder testified that Fuhrmann stated that the prop makers would not be permitted to work in the in- dustry again. Fuhrmann when questioned concerning this testimony acknowl- edged that he said that in the event they refused to do carpentry work they would be terminated "with the studio and would no longer work there." He denied that he had stated that they would no longer work "in the industry." The under- signed credits testimony of Board witnesses, substantially in accord as it was, and finds that Fuhrmann made the statement attributed to him and that in effect he warned the employees that for their refusal to labor as carpenters they would not be permitted to work again in the motion picture industry. By the said statement, respondent Warner interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act.'0 It will be recommended hereafter that this allegation of the complaint be dismissed respecting the other respondents joined in the amended consolidated complaint. F. Alleged interference, restraint, and coercion The amended consolidated complaint alleged further that the respondents engaged in interference, restraint, and coercion by the payment of bonuses to those employees who passed the picket lines or performed the work of the strikers during the strike of March 12. This allegation raises for detailed con- sideration voluminous testimony concerning the circumstances under which the strike was settled and particularly the so-called "Cincinnati Agreement." While the strike was in progress, between October 15 and 24, 1945, the Execu- tive Council of the American Federation of Labor met at Cincinnati, Ohio. There issued from the council meeting the following directive: International Alliance of Theatrical Stage Employees And Moving Picture Machine Operators Of The United States And Canada-Brotherhood Of Painters, Decorators And Paperhangers Of America-United Brotherhood Of Carpenters And Joiners Of America, Et Cetera. Hollywood Studio Union Strike And Jurisdiction Controversy. 1. The Council directs that the Hollywood strike be terminated im- mediately. 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 jurisdictional questions involved in the dispute. 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. 69 Batchelder, Lora, Sapp, and White. 70 No evidence was adduced in support of the allegation that the respondents interrogated employees with respect to their union membership and affiliations. It will be recommended hereafter that this allegation of the amended consolidated complaint be dismissed with respect to all respondents. COLUMBIA PICTURES CORPORATION 635 5. That all parties concerned, the International Alliance 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 Association of Plumbers and Steam Fitters of the United States and Canada, the Brother- hood of Painters, Decorators and Paperhangers of America, the Inter- national Brotherhood of Electrical Workers of America, and the Building Service Employees' International Union, accept as final and binding such decisions and determinations as the Executive Council committee of three may finally render. The striking employees returned to work on October 31, 1945. Under the terms of the Cincinnati Directive the first 30 days thereafter were to be used by committees in Hollywood in an attempt to compose jurisdictional differences. Any differences then remaining unsettled were to be adjusted during the fol- lowing 30-day period by the three-man committee appointed by the Executive Council whose decision was to be final and binding on all the parties. Under the Cincinnati Directive "all employees" were to return to work immediately. There arose, however, after the issuance of the directive on or about October 25, the question whether those individuals who would eventually be replaced by the returning strikers, were to work in the studios along with them. Leaders of the Conference of Studio Unions demanded that the replaced individuals be taken off the lots. Walsh, president of the Alliance, however, contended that this was contrary to the directive. In order to resolve this question, representatives of the parties convened in Washington to review the minutes of the Executive Council. The Producers were represented at Washington by Mannix, of respondent Loew, Eric John- ston, who was later to become president of the respondent Association, and others As a result of this trip to Washington a clarification was issued, to the effect that the respondent Producers should use their judgment in deter- mining whether the replaced workers, who were members of the Alliance, should or should not work during the ensuing 60-day period side by side with members of the Conference of Studio Unions who were returning to work. This clarifica- tion was issued in time to permit the return to work of the strikers on October 31, 1945." Under the clarification, it had been agreed that all men on call on March 12, 1945, the day the strike started, were to return to those jobs and all who might be displaced at the end of the 60-day period by the settling of jurisdictions were to be given other employment in the studios during that period. Instead of the replacements working during that 60-day period, about November 12, it was decided to pay off the replacements in it lump sum and they were not required to report thereafter, unless the Producers asked for them. This lump sum was based upon the classification rate on October 31, 1945, and was adjusted to the normal working time for the ensuing 60-day period. Some of the workers who received this lump sum award did, in fact, after receiving it take other jobs in the industry, and were of course paid for work performed on other jobs. The original settlement had contemplated that "all employees" would work during the 60-day period, but because of'the position taken by the Conference that its members would not work with the replacements on or after October 31, 71 During the strike , in addition to Alliance members who had crossed jurisdictional lines to take the jobs of strikers , Alliance locals had furnished employees to fill vacated jobs. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than upset the settlement agreement, President Walsh of the Alliance agreed to the proposition that an additional award would be made to certain categories of workers. It had been agreed that pay for the 60-day period was to go only to those workers who were on the pay rolls as of October 31. How- ever, those not on the pay roll as of that date, but who had previously worked for 15 days or more as replacements during the strike, were to receive another award, computed at the rate of $3.50 a day for every day they had worked out of their jurisdiction (luring the strike. This award was agreed to at or about the time of the Cincinnati agreement and it would appear that no suggestion had been made at any time during the strike and up to October 25, 1945, that any person who had worked during the strike would receive any money other than the regular amount for work performed. The $3.50 award went to some workers who were totally displaced and to others who were not at work on October 31. Some of them had worked a few days, others during most of the period. No man who received the $3.50 a day settle- ment received the 60-day award. In addition, those workers who, for example, as prop makers had gone into the carpenter shop and performed the work of car- penters during the strike, and who after October 31, returned to their original jobs as prop makers, did receive an award based upon $3.50 a day for all days that they had worked outside of their jurisdiction. At respondent Warner, several hundred employees, under Fuhrmann's supervision, received the extra com- pensation of $3.50 a day for every day those employees had gone outside their jurisdiction to work as carpenters. This award was made to them sometime in March or April 1946, while they were regularly employed in their original juris- dictions. Fuhrmann testified that he never heard the $3.50 a day award referred to as "severance pay" and understood, according to his testimony, that it was given as extra compensation to employees for working outside of their jurisdic- tions during the strike. There is one additional payment which is not explained by any of the fore- going facts. Geza Gasper, foreman of the prop makers at respondent Columbia, testified that in the spring of 1946, he received a bonus check of some $900, which represented his salary for a period of about 8 weeks. Gasper acknowl- edged that during the strike he acted at times as foreman in the carpenter shop. The foregoing covers in substantial detail the matter of extra compensation paid pursuant to the Cincinnati Directive for work performed during the strike. In the undersigned's opinion not all the details and intricacies of the financial arrangements were fully disclosed and brought forth. Undoubtedly, there were certain applications of the Cincinnati Directive and payments made to many workers which did not fit precisely into the situations set forth above. However, the question remains whether these facts sustain the allegation of the amended consolidated complaint that payment of the above awards to em- ployees who passed the picket lines or performed the work of strikers, consti- tuted interference, restraint, and coercion on the part of the respondents. In the undersigned's opinion, crucial to a finding that the Board's complaint in this respect has been sustained is some element of proof that workers were promised or told that for their conduct in passing through the picket lines or performing the work of strikers, they would receive in addition to their fixed compensation, an additional bonus and that the bonus became an inducement to the workers to help break the strike. Although such may have been the case either by rumor or assurance on the part of representatives of the Alliance and the respondents, there is no testimony in this record that prior to October 24, 1945, any worker had been given to understand that he would for his conduct during the strike COLUMBIA PICTURES CORPORATION 637 participate in the declaration of a bonus. Rather it appears affirmatively that the first knowledge that such a bonus would be declared or granted became known on or after October 25, when the strike had been settled and under the terms of the Cincinnati agreement, arrangements had been made to return the strikers to their old jobs. It appears clear that the Executive Council of the American Federation of Labor by reason of its directive had ordered "all workers" to return pending a determination of the jurisdictional conflict and that during this period they would be paid for the time spent on the job. Presumably the commitment to pay all workers, strikers and non-strikers alike, for the 00-day period, was acceptable to all parties who had participated in the Cincinnati agreement. This payment under no circumstances could be considered an inducement to any worker to cross picket lines or take the jobs of striking employees. It is not quite as clear in the application of the $3.50 payment, given to those who worked 15 days or more during the course of the strike. But here again, this additional award was not held out as an inducement, at any time, to the individuals who received it, to induce them to cross picket lines. It is true that because of these financial arrangements, those who worked during the strike or took the jobs of strikers fared better financially than the strikers or those who by their concerted protest refused to work. But there is, in the undersigned's opinion, an absence of any element of proof nor can it by logical deduction be found that the financial payment interfered with, restrained, or coerced the respondents' employees. It will be recommended hereafter that this allegation of the complaint be dismissed in respect to all respondents. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occurring in connection with the operations of the 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 Having found that the respondent Warner violated Section 8 (1), and that all the respondents violated Section 8 (3) of the Act, the undersigned will recommend that the respondents cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that respondent Warner, on March 19, 1945, discharged 14 prop makers, members of Local 44 of the Alliance, because of their concerted protest against efforts of the respondent Warner to force them to perform the work of carpenters in the carpenter shop. Attempts of some of the individual prop makers to return to work during the course of the strike, to perform the jobs held the day of discharge, were unsuccessful. Moreover, it has been found that on or about October 31, 1945, when under the terms of the Cincinnati agreement all workers were returned to work, the prop makers were denied reinstatement because of instructions issued through Pelton on behalf of the Producers Labor Committee and complied with by the respondent Warner. It has also been found that on March 19, Fuhrmann, speaking on behalf of respondent Warner, advised all the prop makers that for their refusal to take jobs in the carpenter shop they would never again be employed in the motion 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picture industry. It has been found that thereby the respondent Warner engaged in interference, restraint, and coercion and denied employees rights guaranteed in Section 7 of the Act. It has been found further that on October 31, all the complainants named herein, except those previously reinstated, and more particularly those com- plainants who voluntarily absented themselves during the course of the strike, were denied reinstatement by various of the respondent Producers because the respondent Producers were carrying out the instructions of the Producers Labor Committee. These individuals thus were being discriminated against for having exercised individually and with others a protest against demands to do the work of strikers or take the jobs of individuals who were supporting the strike. It was found above and it is again emphasized that by such conduct on the part of the respondent Producers, the individual workers were being punished for daring to protest in concerted fashion against the actions of the respondent Producers requiring them to act as strike breakers. The violations of the Act herein found, particularly the discharges and refusal to reinstate because of concerted activity, 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.72 Ordinarily the undersigned would make such recommendation. It appears, however, that the respondent Producers enjoy closed-shop contracts with the Alliance and its locals. The only evidence of independent interference, restraint, and coercion is contained in the statement of Fuhrmann, employed by respondent Warner. Because of the peculiar nature of the violation, the undersigned will not recommend that respondent Producers be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. The undersigned found that respondent Warner discriminated regarding the hire and tenure of employment of the 14 prop makers named in Appendix A attached hereto. The reinstatement with back pay for the individuals named in the Appendix A will be in accordance with the following recommendations: The undersigned will recommend that the respondent Warner offer Hand, Gidlund, Lamb, Sapp, Stoica, and White immediate and full reinstatement to their former or substantially equivalent positions73 without prejudice to their sen- iority or other rights and privileges. The undersigned further recommends that respondent Warner make them whole for any loss of pay they may have suffered by the reason of the respondent's discrimination against them by pay- ment to each of them of a sum of money equal to that which he normally would have earned from the date of discrimination to the date of the offer of reinstate- ment, less his net earnings 74 during the said period. Batchelder testified that he made no effort to secure a position in the motion picture industry during the course of the strike. Accordingly, the undersigned will recommend that the respondent Warner offer Batchelder immediate and full reinstatement to his former or substantially equivalent position without preju- dice to his seniority or other rights and privileges. The undersigned will further 72 N L. R . B v Express Publishing Company, 312 U. S. 426; May Department Stores Co. V. N. L. R. B, 326 U. S. 376. 73 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible , but if such position is no longer in existence, then to a substantially equivalent position ." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N L. R B 827. 14 Matter of Crossett Lumber Co ., 8 N. L. R. B. 440, 497-498. COLUMBIA PICTURES CORPORATION 639 recommend that the respondent Warner make Batchelder whole for any loss of pay he may have suffered by the reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from October 31, 1945, the date he was refused reinstatement, to the date of the offer of reinstatement less his net earnings during the said period." Lora testified that he made no particular effort to secure employment after April 1, 1946. Accordingly it will be recommended that respondent Warner offer Lora immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. The undersigned further recommends that respondent Warner make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to Lora of a sum of money equal to that which he normally would have earned from the date of the discrimination up to April 1, 1946, less his net earnings during the said period. Bonning testified that he made no effort to work during the course of the strike. He does not desire reinstatement. The undersigned will recommend that re- spondent Warner make Bonning 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 October 31, 1945, the date of respondent Warner's refusal to reinstate, to May 1, 1946, the date of regular employment elsewhere, less his net earnings during the said period. MacKellar testified that during the first 3 months of the strike he spent his time working on his home. He was reinstated by respondent Warner about August 1, 1946, and voluntarily quit his employment on September 7, 1946. Accordingly reinstatement will not be recommended for MacKellar. However, the under- signed will recommend that respondent Warner make MacKellar whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination up to August 1, 1946, the date of his reinstatement, less the period of 3 months which MacKellar spent working on his home, and less his net earnings during the said period. DeSanctis was reinstated by respondent Warner on November 7, 1945. Accord- ingly, it will be recommended that respondent Warner make him whole for any loss of pay he may have suffered by reason of respondent Warner's discrimina- tion against him, by payment to him of a sum of money equal to that which he normally would have earned, from the date of the discrimination to the date of his reinstatement, less his net earnings during the said period. Simpson. It appears from the record that due to ill health Simpson was unable to work on and after June 1, 1945, and was unable to resume his employment until about January 1, 1946. The undersigned will recommend that respondent Warner offer Simpson immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges. However, the undersigned recommends that respondent Warner make Simpson whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the dis- crimination to June 1, 1945, and from January 1, 1946, thereafter to the date of "The expression "former or substantially equivalent position ," when used hereafter is defined in footnote 73, supra. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the offer of reinstatement, less Simpson's net earnings during the two fore- going periods. Jensen does not desire reinstatement, having found regular employment else- where, beginning about February 1, 1946. Accordingly, the undersigned recom- mends that respondent Warner make Jensen whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to February 1, 1946, when he found other regular employment, less his net earnings during the foregoing period. Rogers was reinstated on February 12, 1946, by respondent Warner. Accord- ingly, the undersigned i commends respondent Warner make Rogers whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he nor- mally would have earned, from the date of the discrimination to the date of his reinstatement, less his net earnings during the foregoing period. The effect of the expulsion from membership in the Alliance In making the foregoing recommendations, the undersigned has considered the effect of the stipulation entered into between counsel for the Board and the Alliance that Stoica, Lora, Gidlund, and Lamb were expelled from the Alliance on June 14, 1946, and that Batchelder and Hand were suspended and by reason of non-payment of the fine imposed by the sentence, they likewise stood expelled from membership in the Alliance. Councel for the respondents and intervenor urge that by virtue of the closed- shop contracts between the respondent Producers and the Alliance and its locals, only members in good standing in the locals can be employed, and expelled members cannot be reinstated by reason of membership disqualification. The unfair labor practices herein found occurred while all of the employees were in good standing in the Alliance. All were entitled to reinstatement on October 31, 1945, at which time they were in good standing, but for the unfair labor practices committed by the respondents. Nothing less than restoration of the employees' status as it existed prior to the commission of any unfair labor practice would effectuate the policies of the Act and preserve all the employees' rights, which it is the duty of the Board to protect. "There is nothing in the Act which limits the reinstatement remedy to members of labor organizations or even to striking employees who are primarily and directly aggrieved by an unfair labor practice which causes a strike." 79 The Act does not preclude the making of a valid closed-shop contract. But when limitations of the contract conflict with the paramount obligation placed upon the Board to effectuate the policies of the Act, it is the undersigned's opinion that the rights of the Alliance to full enforcement of a closed-shop agreement must give way to the obligation placed upon the Board to effectuate the law of the land. The paramount obligation of the Board to effectuate the purposes of the Act requires that in doing so these employees be reinstated to the jobs they held prior to the discrimination against them. In the Star Publishing case,77 the respondent urged its inability to comply with a Board order and the Court answered in this language: 76 N. L. R. B. v. Bales-Coleman Lumber Co , 98 F (2d) 16, 23 (C. C A 9). 77 N. L. R B. v. Star Publishing Co., 97 F. (2d) 465, 470 (C. C. A. 9) ; N. L. R. B. V. John Englehorn & Sons, 134 F. ( 2d) 553, 557, 558 (C. C. A. 3). COLUMBIA PICTURES CORPORATION 641 Finally, respondent contends that compliance with the Board's order "from a practical standpoint, means exactly the same situation which the respondent faced on the morning of July 2" and that it "would mean a closed plant" because the Drivers will refuse to haul the papers. Assuming that respondent's prophecy is correct, it is no obstacle to the enforcement of the order By the act, Congress has said that certain unfair labor practices cause strikes which have the effect of burdening interstate and foreign commerce. It has acted to protect such commerce, by prohibiting certain practices which it has termed "unfair". It did not choose to pro- tect such commerce from all impediments or strikes, but simply attempted to prevent certain acts which would affect such commerce because such. acts lead to strikes. No attempt was made to prevent strikes as such, but only certain acts which might cause strikes The act of the Drivers in refusing to work, is not one of the acts prohibited. Respondent's con- tention in the last analysis, is that it is subjected to great hardship, which should also have been dealt with by Congress. We think that such an argument should be submitted to Congress but not to us. Whether or not Congress may deem it wise to enlarge its policy, will be pertinent here, but only when it has done so. In the Wallace Corporation case," where the validity of a closed-shop contract was under attack, the Supreme Court stated : We do not construe the provision authorizing a closed shop contract as indicating an intention on the part of Congress to authorize a majority of workers and a company, as in the instant case, to penalize minority groups of workers by depriving them of that full freedom of association and self-organization which it was the prime purpose of the Act to protect for all workers. It was as much a deprivation of the rights of these minority employees for the company discriminatorily to discharge them in collabora- tion with Independent as it would have been had the company done it alone. For these reasons the undersigned has recommended herein that reinstatement shall prevail without limitation by reason of membership disqualification, caused by expulsions occurring subsequent to the unfair labor practices. There now remain remedy recommendations appropriate to the cases of the remaining complainants who were not discharged but were refused reinstate- ment. From the facts found above, these employees ceased work on various dates during the strike, in consequence of, and in connection with, a current labor dispute at the respondent Producers' studios and when they applied for and were refused reinstatement on or about October 31, 1945, they were still em- ployees within the meaning of Section 2 (3) of the Act." It has been heretofore found that the respondents discriminated regarding the hire and tenure of employment of the employees hereafter mentioned, by refusing to reinstate them, or continuing them in employment on and after October 31, 1945. The undersigned will accordingly recommend that respondent Warner offer to Goudie, Larson, Seward and Howe, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. The undersigned further recommends that re- spondent Warner make them whole for any loss of pay they may have suffered 71323 U S 248, 256; Local Lumber Workers Union v N. L R. B., 158 F (2d) 365 (C C A 9), 19 L R R M 2098, N. L. I? B v. Graham, et at., 159 F. (2d) 787 (C. C A. 9), 19 I. R R M 2303 (deeided February 13, 1947). 79 Wilson d Co. v. N. L R B., 124 F. (2d) 845 (C. C A 7). 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by reason of respondent Warner's discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from October 31, 1945, to the date of the offer of reinstatement, less his net earnings during the said period. Coffey refused to cross the picket line at respondent Warner on and after March 12. He was denied reinstatement on October 31. The undersigned passes no judgment on Coffey's alleged addiction to alcohol, commented upon at some length above. It is true that it offered reasonable grounds for dismissal, but, since as heretofore indicated, it was not this reason, but rather Pelton's instructions, which motivated the respondent Warner in refusing to reinstate Coffey, it is found that on October 31, Coffey was refused reinstatement because of his concerted activ- ity, and it is recommended that the provisions of the remedy set forth in the para- graph above apply with equal force to Coffey. Cuevia testified that after collapse of a private business venture in February 1946, he made no effort to secure work other than at respondent Columbia. It is recommended that respondent Columbia offer immediate and full reinstatement to Cuccia, to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. The undersigned further recom- mends that the respondent Columbia make Cuccia whole for any loss of pay he may have suffered by reason of the respondent Columbia's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from October 31, 1945, to February 15, 1946, ° less his net earn- ings during the said period. Stanley does not desire reinstatement. He was, however, refused employment on October 31, and given irregular employment thereafter by respondent Warner and other producers until about November 29, 1945, when for the reasons hereto- fore stated, his name was stricken from respondent Warner's call list. Accord- ingly, it will be recommended that respondent Warner make Stanley whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from October 31, 1945, to on or about November 29, 1945, less his net earnings during the said period. Hentschel was reinstated by respondent Columbia on October 31, but at the end of the day was placed on call because of compliance with Pelton's instructions. The undersigned will recommend therefore, that the respondent Columbia offer Ientschel immediate and full reinstatement to his former or substantially equiv- alent position, without prejudice to his seniority or other rights and privileges. This recommendation is made in order to effectuate the purposse of the Act, although it appears that in June of 1946, Hentschel was expelled from the Alliance. The undersigned further recommends that the respondent make Hentschel whole for any loss of pay he may have suffered by reason of the respondent's discrimi- nation against him by payment to him of a sum of money equal to that which he normally would have earned from November 1, 1945, to the date of the offer of reinstatement, less his net earnings during the said period. Ames was denied reinstatement on October 31, 1945, by respondent Republic, but was offered employment in January 1946, which Ames rejected, with the understanding that he would acquaint respondent Republic when he was willing to accept employment. It appears from the record that he has never done so, hence no recommendation will be made respecting his reinstatement by respondent so Approximate date selected as the time when Cuccia dropped his private business venture. COLUMBIA PICTURES CORPORATION 643 Republic. However, the undersigned does recommend that respondent Republic make Ames whole for any loss of pay he may have suffered by reason of the re- spondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from October 31, 1945, to January 15, 1946,81 less his net earnings during the said period. (froth was denied reinstatement by respondent Loew on or about November 3, 1945. He does not desire reinstatement, since March 9, 1946, when he found regular employment elsewhere in the motion picture industry. The undersigned does recommend that respondent Loew make Groth whole for any loss of pay he may have suffered by reason of respondent Loew's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from November 3, 1945, to March 9, 1946, less his net earnings during the said period. Selgrath was refused reinstatement as a key grip by respondent Loew on November 1, 1945. Respondent Loew acknowledged Selgrath's application for "employment" but asserts it was refused because of advice that Selgrath was no longer a member in good standing of Local 80; that upon being advised by Local 80 on December 19, 1945, that Selgrath was then in good standing, he was offered employment. The issue of Selgrath's union membership involving a question of internal union affairs was not litigated at the hearing. Selgrath did testify that he had always been a member in good standing of Local 80 and had never been advised by anyone connected with the Local that he was not in good standing. Walsh testified that he was advised by Local 80 on October 31, or November 1, that Selgrath was not to be employed because he was no longer in good standing as a member. In addition, Walsh had before him a copy of Pelton's instructions and he acknowledged that these instructions applied to Selgrath. The undersigned is of the opinion and finds that Selgrath was re- fused reinstatement on November 1, 1945, because respondent Loew complied with Pelton's instructions. Selgrath was reinstated by respondent Loew as a grip on December 19, 1945, which was not the position he held in March of 1945. Accordingly, it will be recommended that respondent Loew offer Selgrath immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges 82 The undersigned further recom- mends that respondent Loew make him whole for any loss of pay he may have suffered by reason of respondent's discrimination against him by payment to Selgrath of a sum of money equal to that which he normally would have earned as a key company grip from November 1, 1945, to December 19, 1945, and further that he be paid any difference in wages between that which he would have earned as a key company grip on and after December 19, 1945, and that which he earned as a grip after that date, up to the date of the offer of reinstatement to his old job as a key company grip, less his net earnings during the said period. Mailes was refused reinstatement on October 31, 1945, but reinstated by re- spondent Twentieth Century on February 15, 1946, and worked thereafter until June 16, 1946, when he was expelled from the Alliance. Because this expulsion took place after respondent Twentieth Century attempted to restore the status quo, so far as Mailes was concerned, no recommendation will be made that Mailes, be reinstated to his former job. However, the undersigned does recommend that respondent Twentieth Century make Mailes whole for any loss of pay he may 81 This date is chosen as an approximation of the time when he was offered employment by respondent Republic. 82 Matter of Western Felt Works, 10 N L R B 407, 450. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Oc- tober 31, 1945, to February 15, 1946, less his net earnings during the said period. Reinstatement for all of the foregoing employees ordered reinstated shall be effected in the following manner : the undersigned recommends that the respond- ent Producers be required to displace employees by transfer or otherwise who have succeeded to the former positions of any of these employees. Further, all employees hired on and after March 12, 1945, for the same or substantially equivalent positions, shall, if necessary to provide employment to the persons to be offered reinstatement, be dismissed. If, even after this is done, there is not by reason of a reduction in force of employees needed, sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among remaining em- ployees, in accordance with the respondent Producers' usual method of reducing its forces, without discrimination against any employee because of his union affiliation or activity, following a system of seniority to such extent as has here- tofore been applied in the conduct of the respondent Producers' business. Those employees remaining after such distribution, for whom no employment is imme- diately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such lists, be reemployed in their former or substantially equiva- lent position as such employment becomes available and before other persons are hired for such work 88 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 Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local Nos. 44, 80, 727 and 728, 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 named in Appendices A and B of this report, thereby discouraging membership in the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, the respond- ents have engaged in and are engaging in unfair labor practices within the mean- ing of Section 8 (3) of the Act." 3 By interfering with, restraining, and coercing its employees in the exercise (.f the rights guaranteed in Section 7 of the Act, respondent Warner has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 83 Matter of Firth Carpet Co., 33 N L R B 191 84 Respondents urge in their brief that there is a failure of proof that by the discharges and refusals to reinstate, membership in the Alliance was discouraged and that conse- quently the complaint must be dismissed . Such contention is without merit While the discouraging effect of discharges may not manifest itself immediately under these circum- stances, the possibility that such effect will be demonstrated in the future, is not foreclosed. Indeed, a discharge which is directed against concerted or union activity per se discourages membership in a labor organization involved As the Court stated in N. L. R. B. v. John Englehorn if Sons, 134 F (2d) 553, 556, 557 (C. C A. 3), All that need be established to show a violation of § 8 is conduct by an employer which is defined therein as an unfair labor practice That section does not require proof that the proscribed conduct had its desired effect. COLUMBIA PICTURES CORPORATION 645 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent Columbia, respondent Republic, respondent Loew, respondent Twentieth Century, and respondent Association have not violated Section 8 (1) of the Act by threatening employees that they would never work again in the motion picture industry. 6. The respondent Producers and the respondent Association have not violated Section 8 (1) of the Act, by the payment of bonuses to those employees who passed picket lines or performed the work of strikers during the strike of March 12 to October 31, 1945. 7. The respondent Producers and the respondent Association have not violated Section 8 (1) of the Act by interrogating employees with respect to their union membership and affiliation. 8. Respondent RKO has not engaged in unfair labor practices within the mean- ing of Section 8 (1) or (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that respondent Columbia Pictures Corporation, Los Angeles, California ; respondent Republic Productions, Inc., Los Angeles, California ; re- spondent Warner Bros. Pictures, Inc, Burbank, California; respondent Loew's Incorporated, Culver City, California ; respondent Twentieth Century-Fox Film Corporation, Los Angeles, California, and respondent Association of Motion Pic- tures Producers, Inc., Los Angeles, California, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, A. F. of L., any of its affiliated locals or any other labor organization of its employees, by discharging and refusing to reinstate any of their employees, or by discriminating in any other manner with respect to their hire or tenure of employment or any terms or conditions of employment ; (b) Utilizing, applying, or administering the closed-shop provisions of their contracts with the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, or any of its locals, in such manner as to discharge or otherwise discriminate against any of their employees for exercising their rights under the National Labor Relations Act to engage in concerted protests or activities concerning terms or conditions of their employment ; (c) Engaging in any like or related act or conduct which interferes with, restrains, or coerces their employees in their effort to engage in concerted pro- tests or activities concerning the terms and conditions of their employment. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Respondent Warner will offer to Lynn G Batchelder, Carl H. Gidlund, George M. Hand, Leo L Lamb, Raymond Al. Lora, Jesse L. Sapp, George Stoica, Jr., William J. Simpson, William G. White, Kenneth B. Coffey, John C. Goudie, Willis F. Howe, Charles J. Larson, and Fred Seward immediate and full re- instatement to their former or substantially equivalent positions,B° without prejudice to their seniority or other rights and privileges. 86 See footnote 73, supra. 838914-50-vol. 82-42 ,646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Columbia will offer to Joseph P. Cuccia and Irwin P. Hentschel immediate and full reinstatement to their former or substantially equivalent positions,'" without prejudice to their seniority and other rights and privileges. Respondent Loew will offer to John L. Selgrath immediate and full reinstate- ment to his former or substantially equivalent position B7 without prejudice to his seniority and other rights and privileges. Reinstatement to their former or substantially equivalent positions in accord- ance with the foregoing recommendations, shall be in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immediately available upon a preferential list, in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (b) Make whole those employees listed in Appendices "A" and "B" for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them in regard to their hire and tenure of employment, in ac- cordance with the recommendations set forth in "The remedy," less their net earnings during the said periods; (c) Post in conspicuous places throughout the studios of the respondent Columbia, Los Angeles, California ; respondent Republic, Los Angeles, Cali- fornia ; respondent Warner, Burbank, California ; respondent Loew, Culver City, California ; respondent Twentieth Century, Los Angeles, California ; and in the offices of the respondent Association, Los Angeles, California, copies of the notice attached hereto marked "Appendix C." 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 upon receipt thereof and maintained by them for sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (d) 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 the respondents have 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, the respondents notify the Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. It is also recommended that the allegations of the amended consolidated com- plaint, that the respondents 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 It is recommended also that the allegation of the amended consolidated complaint, that the respondents engaged in interference, restraint, and coercion by interrogating employees with respect to their union membership and affilia- tion be dismissed as against all respondents. It is recommended that the allegation of the amended consolidated com- plaint, that the respondents engaged in interference, restraint, and coercion by threatening the employees that they would never work in the motion picture 88 Id. 87 See footnote 73, supra. COLUMBIA PICTURES CORPORATION 647 industry again if they refused to perform the work or take the jobs of striking employees be dismissed as against respondent Columbia, respondent Republic, respondent Loew, respondent Twentieth Century, and respondent Association. It is recommended that the allegations of the amended consolidated com- plaint that respondent Warner discriminated against H. B. MacDonald be dismissed. It is finally recommended that the amended consolidated complaint be dis- missed as against respondent RKO. 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, Wash- ington 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 Sec- tion 203.39, should any party desire permission to argue orally before the Board, Tequest 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 March 20, 1947. APPENDIX A Lynn G. Batchelder Charles Jensen Jesse L. Sapp Robert N. Bonning Leo L. Lamb George Stoica, Jr. ' Paul DeSanctis Raymond M. Lora William J. Simpson Carl H. Gidlund Donald MacKellar William G. White George M. Hand J. Harold Rogers APPENDIX B Robert W. Ames George I. Groth Eugene V. H. Mailes Kenneth B. Coffey Irwin P Hentschel John L. Selgrath Joseph P. Cuccia Willis F. Howe Fred Seward John C. Goudie Charles J. Larson Paul L. Stanley APPENDIX C 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 discourage membership in INTERNATIONAL ALLIANCE OF THE- ATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UNITED STATES AND CANADA, LOCAL Nos. 44, 80, 727, AND 728, A. F. of L., or any other labor organization of our employees, by discharging or refusing to reinstate any of our employees, or by discriminating in any other manner with respect to their hire or tenure of employment or term or condition of employment. WE WILL NOT apply, administer, or put into operation the closed-shop provisions of our contracts with the INTERNATIONAL ALLIANCE OF THEATRICAL, STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, LOCAL Nos. 40, 80, 727, AND 728, A. F. OF L., or of any- contract executed in the future, in such manner as to discourage membership. in the INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, LOCAL. Nos. 44, 80, 727, AND 728, A. F. of L., or any other labor organization of our em- ployees, by discharging or otherwise discriminating against any of our employees for exercising their rights under the National Labor Relations Act to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT engage in any like or related act or conduct which interferes with, restrains, or coerces our employees in their efforts to engage in con- certed activities over terms and conditions of employment or other mutual aid or protection during the term of closed-shop contracts presently in exist- ence or that may be executed in the future. WE WILL OFFER to the employees named below, immediate and full rein- statement to their former or substantially equivalent positions, without prej- udice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimina- tion against them in accordance with the recommendations of the Inter- mediate Report. 11 Lynn G. Batchelder Kenneth B. Coffey Joseph P. Cuccia Carl H. Gidlund John C. Goudie George M. Hand Irwin P. Hentschel Willis F. Howe Leo L Lamb Charles J. Larson Raymond M. Lora Jesse L. Sapp John L. Selgrath Fred Seward William J. Simpson George Stoica, Jr. William G. White COLUMBIA PICTURES CORPORATION, Employer. By ----------------------------------- (Representative ) ( Title) REPUBLIC PRODUCTIONS, INC., Employer. By ----------------------------------- (Representative) (Title) WARNER BROS. PICTURES, INC., Employer. By ----------------------------------- (Representative ) (Title) COLUMBIA PICTURES CORPORATION 649 Dated -------------------- Dated -------------------- LOEW'S INCORPORATED, Employer. By ----------------------------------- (Representative) (Title) TWENTIETH CENTURY-Fox FILM CORPORATION, Employer. By ----------------------------------- (Representative ) (Title) AssocIATION OF MOTION PICTURE PRODUCERS, INC. By ----------------------------------- (Representative ) (Title) Dated -------------------- NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must mot be altered, defaced, or covered by any other material.