American Broadcasting Co., Inc.

AMERICAN BROADCASTING COMPANY, INC. 815 shall, during the life of this Agreement as a condition of employ- ment, remain members of the Union in good standing... . It is understood and agreed that the provisions of this Section providing for a union shop shall take effect as of July 17, 1951, or any time thereafter during the life of this Agreement, but only if and when it may take effect in accordance and consistent with provisions of Federal or State Law... . No election under Section 9 (e) (1) of the Act has been held for the purpose of authorizing the Employer and the Intervenor to enter into a union-security agreement. The Petitioner filed its representation petition on August 2, 1951. The Intervenor contends that its contract with the Employer is a bar to this proceeding. The Petitioner argues that the presence of the unauthorized union-security provision prevents the contract from operating as a bar. The Employer takes no position on this issue. - Although the provision for union security is unauthorized and ex- ceeds the limited form of union security permitted by Section- 8 (a) (3) of the Act, the saving clause bars the union-security provision from taking effect until it might lawfully become operative 3 The union-security provision, therefore, though illegal, is effectively sus- pended.4 In these circumstances, and because the petition herein was -filed after the execution of the current agreement, we find that the -agreement is a bar to a present determination of representatives. We shall accordingly grant the Intervenor's motion to dismiss the peti- tion. Order Upon the basis of the entire record in this case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed. I Wyckoff Steel Company, 86 NLRB 1318. 4 H. Muehl8tein and Co., 93 NLRB 127&; cf. Worthington Pump and Machinery Corpora- tion, 93 NLRB 527. AMERICAN BROADCASTING COMPANY, INC.; COLUMBIA BROADCASTING SYSTEM, INC.; DUMONT TELEVISION NETWORK DIVISION, ALLEN B. DUMONT LABORATORIES, INC.; NATIONAL BROADCASTING COMPANY, INC.; GENERAL TELE-RADIO INC. and TELEVISION AuTHORSTY. AFFILI- ATED WITH THE ASSOCIATED ACTORS AND ARTISTES OF AMERICA, AFL, PETITIONER. Case No. 2-RC-2334. October 15, 1951 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Chester L. Migden, 96 NLRB No. 114. 816 DECISIONS OF NATIONAL ' LABOR-RELATIONS BOARD hearing officer. The hearing officer's rulings made at the hearing 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 Houston, Reynolds, and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employers. . 3. Questions affecting commerce exist concerning the representation of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent a unit composed of all talent employed on network television programs broadcast from New York, Chicago, and Los Angeles, over the Employers' network television facilities, including talent employed by the networks in making motion pictures destined for initial release on television. The Intervenor,' Screen Actors Guild, herein called SAG, asserts that the motion pic- ture talent should be in a separate unit. The Employers are neutral. The Employers and SAG agree that the television portion of the pro- posed unit is appropriate. The only issue between the parties, there- fore, is whether the motion picture talent should be included in the television unit, or should be established as a separate unit .2 The Petitioner represents talent, employed in the television industry, under a contract and addenda signed- in November 1950 and January 19513 The contract unit embraces all persons employed as talent on all live network television broadcasts originating in New York, Chi- cago, and Los Angeles. Included in the description of talent are all actors, disc jockeys, announcers, sports announcers, and other television performers of all kinds, except musicians. Live network television programs include all live or kinescoped broadcasts, film sequences in- tegrated into live broadcasts, and any other programs done "in the manner of" live programs, including some shows recorded by regular motion picture cameras, but produced on stage, before audiences, like other live television programs. The contract unit excludes, because of the disagreement between the Petitioner and the Intervenor, all talent 'Screen Extras Guild also intervened but only to oppose the inclusion in.the unit of motion picture extras. 2 The Petitioner has disclaimed any interest in the representation of extras engaged in making motion pictures , on the ground that the extras are employed by a casting agency, not by a network. All other parties also oppose their inclusion in the unit. Without deciding the employment status of the extras , we shall exclude them from the units found appropriate. 8 There is no contention that this contract is a bar to the present proceeding. AMERICAN BROADCASTING COMPANY, INC. 817 employed by any of the networks in making motion pictures designed for initial release on television. The Petitioner asserts that talent employed by the networks in making motion pictures for presentation on television, are part of a single, integrated unit of all television performers, and that their common skills and interests compel the addition of these employees to the contract unit. SAG urges that the interests and working con- ditions of the networks' motion picture employees are exactly like those of other motion picture employees who have traditionally been represented in separate units. Columbia Broadcasting System, Inc., herein called CBS, is the only network employer now engaged in making motion pictures for tele- vision. It is engaged in producing a series of short, half-hour motion pictures, to be released on television through the 1951-52 broadcasting season. Although technical facilities and personnel are being supplied by Hal Roach Studios in Culver City, California, where the films are being produced, the parties agree that CBS is the employer of all acting talent, except extras, engaged in making these television films. Production techniques used by CBS in making its films are prac- tically indistinguishable from those used by all other motion picture producers. The producer starts with a shooting script and shoots scenes without regard to plot or sequence. Generally, each scene is re- hearsed separately and is photographed many times. The director films the scene from different angles .and uses a variety of close-ups. When all scenes are recorded, the mass of film is cut and edited into the finished product. By way of contrast, most live television shows are produced before television cameras through which the audiences see the performance at the same instant it is rendered. Such shows are completely re- hearsed before performance, the plot dictates the scene sequence, and corrections cannot be made. SAG contends that these production differences set off CBS motion picture talent from all talent employed on live television broadcasts. However, its claim that different acting techniques and skills are re- quired for motion picture work than for television work is not en- tirely supported by the record. There is evidence showing that tele- vision producers rely, to an increasing degree, on the "start-stop and repeat" technique, using closed circuit kinescope rather than motion picture cameras. Finally, the witnesses best qualified to testify on these matters, the actors themselves, agreed that "acting is acting," no matter what the medium of exhibition. Despite the similarity between acting skills required for both motion pictures and television, the record shows that there is considerable difference between the pay and other working conditions for tele- 818 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD vision talent and those which exist for CBS motion picture employ- ees. In every detail, conditions for the latter coincide with those-of all other motion picture performers. Pay scales standard for west coast motion picture actors are followed by CBS. Pay depends- on the duration of employment, not, as in television, on the number of lines or the length of the broadcast. Rehearsal days are treated, as acting days, as in the rest of the motion picture industry; in tele- vision, rehearsal pay for a fixed number of hours is included in a flat program fee. Motion picture employment is for consecutive days, from first costuming to final shooting, with full pay even for inter- vening nonworking days. On the other hand, pay of television, per- formers varies according to conditions which do not 'even exist for motion picture talent, and which are not considered by CBS in its motion picture work. For example, a television actor receives less for a sustaining noncommercial program than for a sponsored broadcast; players on local programs are paid less than those on network pro- grams; and a player on an audition show gets still another rate of pay. In every other particular in which motion picture and television con- ditions differ, such as overtime pay arrangements, CBS follows Holly- wood standards, departing from standards prevalent both in tele- vision and radio. The Petitioner urges the Board to ignore these differences, asserting that CBS follows motion picture standards just to avoid strife between the Petitioner and the Intervenors. In our view, it may with equal justice be inferred that CBS, drawing as it does from the motion picture talent pool, has merely met the conditions which it found* applicable to its new venture. No matter what caused CBS to follow motion picture standards when it entered motion picture work in the Los Angeles area, the record shows and we find, that CBS motion picture actors have conditions of employment like those of all other motion picture actors : conditions completely different from those of the talent in the Petitioner's contract unit. ' The Board has recently held that. actors engaged in making motion pictures for initial presentation on television have the same interests as, and belong in the same unit with, other actors employed by their respective employers in making films for initial showing in motion picture theatres 4 Traditionally, also, talent employed in making motion pictures and talent working in radio shows have been repre- sented in separate units. We believe that, because working condi- tions for employees making motion pictures for presentation on tele- vision are identical with those for making any other kind of motion, picture, and because of the history of bargaining for motion picture actors in separate units, motion picture and television talent should be, established in separate units. 4Television Film Producers Association, et al., 93 NLRB 929. AMERICAN BROADCASTING COMPANY, INC. 819) Accordingly, we find that the following units, excluding from each unit all supervisory employees as defined in. the Act, are appropriate. for the purposes of collective bargaining within the meaning of Section. 9 (b) of the Act : Unit I All persons employed as talent on all live network television pro-- grams originating in New York, Chicago, and Los Angeles, and broadcast over the network facilities of the Employers, including- actors, masters of ceremony, quizmasters, disc jockeys, singers, dancers, announcers, sportcasters-play-by-play, assistant play-by-play, and-, colormen-specialty acts, walk-ons, television extras, and all other television performers, but excluding services rendered by such per- formers in the capacity of musician, and talent employed by Columbia Broadcasting System, Inc., in its west coast motion picture pro- ductions. Unit II All actors employed by Columbia Broadcasting System, Inc.,5 on the west coast, who are engaged in the production of motion pictures- designed for initial exhibition on television, including singers and stunt men, but excluding extras and talent employed in the production of live television programs. 5. The Petitioner requested that all talent engaged on two or more network television shows during the industry's peak period, from- December 10, 1950, through February 10, 1951, be eligible to vote in the elections. Although SAG did not object to this proposal, if limited- to the television unit, we see no reason why eligibility to vote should be limited to employees employed only during the industry's peak period. Accordingly, we shall direct that all employees in Unit II, as described above in paragraph numbered 4, employed on at least two of the. Employers' network television programs during the period commenc- ing December 10, 1950, through the date of this Decision and Direction of Elections, shall be eligible to vote in the elections. In determining eligibility to vote in Unit II described above in paragraph numbered 4, we shall follow the formula established for single-employer motion picture units in the Television Film Producers Association case.6 Accordingly, all talent employed by CBS in its, west coast production of motion pictures designed for initial exhibi- tion on television, who have had two or more days of such employment during the 9-month period immediately preceding the date of this Decision and Direction of Elections, shall be eligible to vote in the elections. "As none of the other Employers has produced any motion pictures , we shall limit our- unit determination to talent employed by CBS. 93 NLRB 929. 820 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD [Text of Direction of Elections omitted from publication in this volume.] MEMBER MURDOCK,` dissenting in part : I agree with the majority's decision as to Unit II which is limited in scope to employees of Columbia Broadcasting System, a party to this proceeding. I disagree, however, with the finding that Unit I constitutes an appropriate unit. Unit II includes all actors employed by Columbia Broadcasting System, Inc., on the west coast who are engaged in the production of motion pictures designed for initial exhibition on television. Al-, though these television films are produced in studios owned by Hal Roach Studios, which also supplies the necessary technical personnel and facilities, the parties agree and the Board finds that the talent employed in making these films are the employees of Columbia. I agree with this finding because the record shows that Columbia has sole authority to hire and discharge these employees and otherwise to determine their rates of pay, hours, and general working conditions. The record, however, contains no such showing with respect to the persons included in Unit I. Unit I includes all persons employed as talent on all live network television programs broadcast over the television facilities operated by the five television broadcasting companies involved in this proceed- ing. Thus, it embraces the entire pool of free-lance talent, the mem- bers of which are from time to time employed on network television shows by the broadcasting networks, advertising agencies, sponsors, and independent producers. The record shows conclusively that ap- proximately 80 percent of the total personnel included in Unit I is employed directly by employers not specified in the unit description. 7 As to those employees, the television networks are not employers. In fact their only relationship with this talent is that it performs in studios, and by means of technical facilities leased by the networks to the unnamed employers who produce the programs. It is fundamental that a condition precedent to an appropriate unit determination by the Board is the establishment of the existence of an employer-employee relationship between the individuals sought to be constituted as the bargaining unit and the party named as the em- ployer in the unit description. The Board has consistently declined to find that individual workers who are employed in a plant and use equipment leased by their immediate employer from another employer are employees of the lessor in the absence of evidence that the lessor exercises, or has the right to exercise, a substantial degree of control ' None of these employers are parties to this proceeding. F. H. McGRAW AND COMPANY 821 over the employees of the lessee. s Those decisions are predicated on the premise that absent the power to control there is no area for collective bargaining between the lessor and employees of the lessee. Unit II meets the employer-employee test inasmuch as Columbia, the named Employer, has the sole right of control over the employees included therein. As to Unit I, however, the named Employers do not, so far as the record shows, exercise or have the right to exercise any control over the majority of the employees who constitute that unit. That right is possessed by other unnamed employers. Because the record fails to contain any evidence which may reasonably be construed as establishing the existence of an employer-employee rela- tionship between the Employers and a majority of the persons included in Unit I, that unit, in my opinion, is fundamentally defective despite the agreement of the parties. I know of no warrant in the Act, nor does the majority point one out, which authorizes this Board to hold an election and then issue a certificate conferring a right upon a union and imposing an obligation upon named employers to bargain about the conditions of employment of workers who are not their employees but who are employees of other employers. I would therefore dismiss the petition as to Unit I on the ground that the unit sought is inappro- priate. s See Lee F. Stine d/b/a Fairchild Cafeteria, 87 NLRB 667; Montgomery Steel Products Corp ., 94 NLRB 225; J. M. High Company, 78 NLRB 876; Taylor's Oak Ridge Corporation, 74 NLRB 930 ; Consolidation Coal Company, 63 NLRB 169 , 173; Mahoning Mining Com- pany, 61 NLRB 792 ; Consolidated Vultee Aircraft Corporation, 57 NLRB 1680 ; Firesafe Builders Products Corporation, 57 NLRB 1803. F. H. MCGRAW AND COMPANY and LoDGE #1157, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER . Case No. 9-RC-1280. October 15, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Seymour Goldstein, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is a New Jersey corporation engaged in the business of general construction throughout the United States and maintaining offices in several States. Annual purchases by the Employer exceed 1 million dollars of which more than 50 percent 96 NLRB No. 117. 974176-52-vol. 96--53