The Association of Motion Picture Producers, Inc., et al

In the Matter of THE AssoclATION OF MOTION PICTURE PRODUCERS,, INC., ET AL.,1 EMPLOYERS and INTERNATIONAL ALLIANCE OF TI-IEAT- RICAL STAGE EMPLOYEES AND MOVING PICTURE OPERATORS OF THE UNITED STATES AND CANADA, AFL, PETITIONER In the Matter of COLUMBIA PICTURES CORPORATION, ET AL.,2 EMPLOYERS and SCREEN PUBLICISTS GUILD, PETITIONER Cases Nos. 21-RC-728 and 21-RC-8541.-Decided December 15, 19419 DECISION DIRECTION OF ELECTION AND ORDER. Upon separate petitions duly filed, a hearing in these consolidated cases 3 was held in Los Angeles, California, on June 30, July 1, 8, 11, and 13, 1949, before Eugene M. Purver, hearing officer. The hearing I The following Employers are included in the petition in Case No . 21-RC-728: Columbia Pictures Corporation ; Loew's Incorporated ; Paramount Pictures, Inc. ; Twentieth Century- Fox Film Corporation ; Universal Pictures Company, Inc. ; Warner Bros. Pictures, Inc. Samuel Goldwyn , doing business as Samuel Goldwyn Studios ; RKO Radio Pictures, Inc. and Republic Productions , Inc. The hearing officer granted it motion by the Petitioner in Case No . 21-RC-728 to amend its petition by striking therefrom Hal Roach Studios, Inc. 2 The Employers named in the petition in Case No. 21-RC-S54 include the nine Employers named in footnote 1, supra, and the following : Monogram ; Allied Artists ; Eagle-Lion Studios, Inc. ; Lester Cowan Productions . sometimes known as Artists Alliance ; W. R: Frank Productions ; Harry Popkin ; Regal Films Incorporated : Baerwitz Productions Nat Holt ; Argosy Films ; King Brothers ; Frank Seltzer ; Monroe Greenthal Agency Screen Guild Productions ; Foote Cone and Belding (Motion Picture Division) ; M It S Pictures, Inc. ; Inter-American Productions, Inc. ; Vanguard Films ; Walt Disney Produc- tions ; Rooney-Stiefel Productions ; United Artists Releasing Corp. ; Amusement Enter- prises ;' Equity Productions ; Glenn McCarthy Productions ; Sierra Productions ; Screen Plays Incorporated, also known as Stanley Kramer Productions ; Walt Lantz Productions, Inc. ; Abbott & Costello Productions : Hal Wallis Productions Skirball Manning Produc- tions ; National Screen Service ; Edward Small Productions ; Enterprise Productions ; Alcorn Productions ; Jerry Fairbanks , Inc. ; Comet Productions , Inc. ; Nero Films, Inc. Hakim Brothers ; Sol Wurtzel ; Borderline Pictures , Inc. ; Milbak Productions, Inc. ; and A and T Productions. The hearing officer granted it motion by the Petitioner in Case No. 21-RC-S54 to amend its petition by striking therefrom Manning Post Productions and Motion Picture Sales Corporation. The names of the Employers in Cases Nos. 21-RC-72S and 21-RC-S54 appear as amended at the hearing. 'Cases Nos. 21-RC-728 and 21-RC-854 were consolidated by order of the Regional Director for the Twenty-first Region on June 15, 1949. 87 NLRB No. 81. 657 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officer's rulings are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds : 1. The Employers in Case No. 21-RC-728,4 are engaged in com- merce within the meaning of the National Labor Relations Act. In Case No. 21-RC-854, the evidence is incomplete as to the exact interstate character of the purchases, sales, and services of certain individual Employers.5 However, the impact on interstate com- merce of the totality of all the Employers' operations is apparent. Without determining whether or not the Board would assert jurisdic- tion as to each Employer were it before the Board individually, we find for purposes of this proceeding and contrary to the contention of the Petitioner in Case No. 21-RC-728 that the Employers named in the petition in Case No. 21-RC-854 are engaged in commerce within the meaning of the National Labor Relations Act. 2. International Alliance of Theatrical Stage Employees and Mov- ing Picture Machine Operators of the United States and Canada, AFL, the Petitioner in Case No. 21-RC-728,. hereinafter referred to as I. A. T. S. E., and Screen Publicists Guild, the Petitioner in Case No. 21-RC-854, hereinafter called the Guild, are labor organizations within the meaning of the Act, claiming to represent certain em- ployees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employers in Case No. 21-RC-728 within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. For the reasons set forth in paragraph 4, below, no such question affecting commerce exists in Case No. 21-RC-854. At the hearing the Guild moved to dismiss I. A. T. S. E.'s petition in Case No. 21-RC-728 on the ground that a current contract in exist- ence between the Guild and the Employers bars an election at this time. The hearing officer referred this motion to the Board for ruling thereupon. - The alleged contract which the Guild asserts as a bar was not signed and is therefore at best an oral contract. Under the rule enunciated in the Eicor case,6 it is clear that an oral contract can- not serve to bar a present determination of representatives. The Guild, however, urges that the circumstances- in this case warrant a 4 See footnote 1, supra 5 See footnote 2, supra. u Eicor, Inc., 46 NLRB 1035. THE ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 659 departure from the strict application of the rule of the Eicor case. Thus it asserts that the parties had embodied all the terms of the con-. tract in writing; that these terms had been approved by its membership as well as by the Employers ; and that only the formality of signing the contract remained to be accomplished when the petition in Case No. 21-RC-728 was filed. Moreover, the Guild asserts that although the Employers refused to sign the contract in the face of the petition, the Employers nevertheless did put into effect certain provisions of the contract subsequent to the filing of the petition. Assuming, without determining, the existence of these facts, we do not believe that they warrant a departure from the Eicor case. We have reached the same conclusion on similar facts in other cases.7 Accordingly, we hereby deny the Guild's motion to dismiss the I. A. T. S. E. petition on the contract bar ground. 4. The employers engaged in producing. film in the Los Angeles, California, area are generally divided into two groups, the major film producers and the independent producers. At the time of the hear- ing in this matter, there were nine major film producers, hereinafter called the "Majors,"' all of whom are involved in this proceeding. The Majors comprise the entire membership of The Association of Motion Picture Producers, Inc., an employer group, hereinafter called the "Association." Of_ the independent producers, hereinafter re- ferred to as the "Independents," involved in this proceeding, some, like the Majors, are members of employer associations, such as the Independent Motion Picture Producers Association, hereinafter called the "Independent Association," I and the Society of Motion Picture Producers, hereinafter referred to as the "Society." 9 The remaining Independents, such as Eagle-Lion Studios, Inc., are not affiliated with any employer group and are hereinafter referred to as the "Unaffili- ated Employers." The parties herein are in substantial agreement that the unit or units, if any, established by the Board should include only publicists, that is, those persons who create or disseminate advertising or pub- licity for promotion of picture stars, motion pictures, or studios. The only important unit issue raised in this case relates to the scope of the unit. I. A. T. S. E. seeks a unit limited to the publicists employed a See, for example , Newman Crosby Steel Corporation, 73 NLRB 513. 8 The following Employers named in the petition in Case No. 21-RC-854 are members of the Independent Association : Baerwitz Productions ; Monogram Productions, Inc. ; Allied Artists ; King Brothers, Inc. ; Screen Guild Productions , Inc. ; Equity Pictures, Inc. and Lippert Productions, Inc. 9 The following Employers named in the petition in Case No . 2-RC-854 are members of the Society : Screen Plays , Incorporated , also known as Stanley Kramer Productions ; Regal Films, Incorporated ; Lester Cowan Productions , sometimes known as Artists Alli- ance ; Vanguard Films ; Walt Disney Productions ; Edward Small Productions ; Comet Pro- ductions , Inc.; and Nero Films, Inc. 877359-50-vol. 87-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Majors, all of whom, as we have seen, are members of the Asso- ciation. The Guild, on the other hand, contends that the appropriate unit should include not only the publicists employed by the.Majors but also those publicists employed by the Independents named in the Guild petition. Of the Independents, however, the members of the Independent Association and Eagle-Lion Studios, Inc. contend that the Independents and the Majors should not be merged in a single unit for purposes of collective bargaining covering publicists. Two of the Independents, namely, J. Walter Thompson Co. and Foot, Cone, cR Belding, Inc., do not desire to be included in any multiple-employer unit. The Association as the representative of the Majors takes a neutral position in this matter. The history of collective bargaining in the film industry is as follows : Majors: The record shows that from 1939 to 1947, successive collec- tive bargaining agreements covering publicists were executed by the Majors and the predecessor of the Guild as the representative of the publicists. In February 1949, when I. A. T. S. E. filed its petition in Case No. 21-RC-728, negotiations were being conducted for a contract to replace the 1947 contract. The foregoing negotiations, including those in 1949, were conducted by a Labor Committee of the Association on behalf of the Majors. The fruits of these negotiations were adopted by the Majors and embodied in individual contracts executed between each of the Majors and the collective bargaining representative of the publicists. Independents: The first collective bargaining agreements covering publicists employed by members of the Independent Association were executed in 1945. It appears that these contracts were negotiated apart from any contract negotiations involving publicists employed by the Majors. As regards members of the Society, the record indi- cates that any collective bargaining contracts covering their publicists were fashioned after the contracts executed by the Majors and in some instances bodily incorporated portions of the contracts of the Majors, but, as in the case of the Independent Association, the Society did not participate in contract negotiations involving publicists employed by the Majors. The evidence in the record relating to the Unaffiliated Employers is sparse. However, it is clear that although some of the Unaffiliated Employers had contracts covering publicists, none of the Unaffiliated Employers participated in negotiations pertaining to the Majors. In the Associated Shoe case,10 we stated that "the essential element, in our opinion, for establishing a multiple-employer unit is participa- 10 Associated Shoe Industries of Southeastern Massachusetts , Inc., 81 NLRB 224. THE ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 661 tion' by a group of employers, whether members or nonmembers of an association, either personally or through an authorized repre- .sentative, in joint bargaining negotiations." From the, foregoing bargaining history there emerges a well established and separate pat- tern of multiple-employer bargaining only with respect to the pub- licists employed by the Majors. There is no evidence that the Majors and the Independents have joined together to bargain collectively for publicists. While it is true that in 1948 publicists of the Majors as well as of many of the Independents participated in a consent union-shop authorization election,11 this referendum in itself does not establish the existence of joint action by the Majors and Independents for no collective bargaining on a broad basis resulted therefrom.12 Moreover, as noted above, the Independent Association and Eagle- Lion Studios, Inc., took a position in opposition to the inclusion of their publicists in a multiple-employer unit of publicists employed by the Majors.13 Accordingly, we find that a unit of publicists employed by the Majors, as requested by I. A. T. S. E., is appropriate for pur- poses of collective bargaining, whereas the broader unit of publicists of both the Majors and the Independents as requested by the Guild is inappropriate.14 Our decision herein is in accord with recent decisions of this Board involving various other employee groups in the motion picture indus- try. In one case 15 wherein units smaller than the Association unit were sought, the Board dismissed two petitions observing that the major film producers in this country ... have been members of the Association of Motion Picture Producers, Inc., which has handled practically all the labor relations matters of its members. Representatives of the Association and its members ' have met regularly with various unions . . . representing employees in the motion picture industry. Contracts resulting from such collective bargaining meetings have been executed, up to the present time, by the unions concerned and each of the Association members. The Board has previously recognized the multiple- employer collective bargaining pattern in the motion picture industry. In another case 16 .where a unit broader than the Association unit was sought, the Board found the broader unit inappropriate stating: 11 Case No. 21-UA-1216. 12 Association of Motion Picture Producers, Inc., et al., 85 NLRB 902. 13 See Associated Shoe Industries of Southeastern Massachusetts, Inc., supra. 34 In view of this finding , thq motion made by the Guild to dismiss I. A. T. S. E.'s peti- tion on the ground that the unit sought therein was inappropriate is hereby denied. 11 Columbia Pictures Corporation, et al., 84 NLRB 647. 26 Association of Motion Picture Producers, Inc., et al., supra. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So far as the record in this case discloses, the pattern of bargaining for other trades and crafts employed by the Employers in this case, with the few exceptions noted above . . . has been on an associa- tion-wide basis only, and there has been no multi-association bargaining. We have found that the broad unit sought by the Guild is inappro- priate. It does not appear in the record that the Guild proposes the .creation of a single unit of all the Independents, or of separate units restricted to the members named in its petition of the Independent Association and of the Society, respectively. It would, however, be impossible for us to make a determination with respect to a unit of all the Independents because of the paucity of evidence in the record as to the bargaining history of the Independents and because of the failure of some of the Independents to take a position with respect to such a unit. Moreover, in view of the evidence in the record indicating joint bargaining through the Independent Association and through the Society by all of their respective members, separate units limited to the few members of each named in the Guild's petition would appear inappropriate.'7 We shall therefore dismiss the petition of the Guild filed in Case No. 21-RC-854. Upon the basis of the entire record in this case, we shall direct that an election be held among the following employees who we have found constitute an appropriate collective bargaining unit : All pub- licists, that is, those persons who create or disseminate advertising or publicity for promotion of motion picture stars, motion pictures, or studios, employed in the State of California by the following Em- ployers who are members of the Association of Motion Picture Pro- ducers, Inc., namely, Columbia Pictures Corporation, Loew's Incorporated, Paramount Pictures, Inc., RICO Radio Pictures,. Inc., Republic Productions, Inc., Samuel Goldwyn, doing business as Samuel'Goldwyn Studios, Twentieth Century-Fox Film Corporation, 'Universal Pictures Company, Inc., and Warner Bros. Pictures, Inc., but excluding all other employees, professional employees, guards, and supervisors as defined in the Act. 5. The Guild urges that eligibility of a publicist to. vote in any election which the Board may direct in this proceeding should depend upon whether the publicist was employed fora minimum of 10 work- ing days during the 6-month period immediately preceding the date of the filing of the Guild petition on May 31, 1949. The Guild's position stems from the fact than publicists who work for the Inde- pendents are employed sporadically and then only for short periods of time thereby making it impossible for the Board's usual eligibility 17 Ibid. THE ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 663 rule, i. e., based on a fixed pay-roll period, to reflect the true employ- ment picture. However, as the election which we are directing covers only publicists employed by the Majors where employment conditions are relatively stable, we perceive no reason for deviating from our usual eligibility rule. DIRECTION OF ELECTION is As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employers, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-first Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they de- sire to be represented, for purposes of collective bargaining, by In- ternational Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL, or by Screen Publicists Guild,19 or by neither. ORDER Upon the basis of the entire record in Case No . 21-RC-854 the National Labor Relations Board hereby orders that the petition filed therein be, and it hereby is, dismissed. 16 Any participant in the election directed herein may , upon its prompt request to, and approval thereof by , the Regional Director, have its name removed from the ballot. 19 The compliance status of the Guild has lapsed since the commencement of the hearing in this matter. In the event it fails to renew its compliance with Section 9 (f), (g), and (h) of the Act within 2 weeks from the date of this Direction , the Regional Director shall remove the Guild from the ballot.