Esquire, Inc.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the preferential or exclusive hiring agreement or understand- ing between Grow and Gibbs, as representative of the Council and of Local 1261, is illegal within the meaning of the Act, the Trial Examiner will recommend that the Respondents cease and desist from giving effect to said illegal agreement, and from entering into, renewing, or enforcing any agreement with Grow or any other employer which accords preferential or exclusive hiring rights to members of the Respondent labor organizations. It has been found that the Respondents caused Grow discriminatorily to refuse to hire applicant Cooley between August 28 and December 4, 1953. It will be recommended that the Respondents make Cooley whole for any loss of pay suffered by reason of the discrimination against him , by payment to him of a sum of money equal to that which he would normally have earned from the date of the discrimina- tion to the date of his hire, less his net earnings during. said period. Back ,pay shall be computed in a manner consistent with the policy established by the Board in F. W. Woolworth Company, 90 NLRB 289. The unfair labor practices found to have been engaged in by the Respondents are of such character and scope that, in order to insure employees and prospective employees of full rights guaranteed by the Act, it will be recommended that the Respondents, and each of them, cease and desist from in any manner restraining, or coercing employees or applicants for employment in the exercise of rights under the Act. On the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Mohawk Valley and Vicinity District Council, United Brotherhood of Car- penters and Joiners of America, and Local No. 1261, United Brotherhood of Car- penters and Joiners of America, are labor organizations within the meaning of Sec- tion 2 (5) of the Act. 2. Grow Construction Co., Inc., is an employer within the meaning of Section 2 (2) of the Act. 3. By causing the said employer to discriminate in regard to the hire and tenure of employment of applicants for employment and of Glen W. Cooley in violation of Section 8 (a) (3) of the Act, the Respondent labor organizations above named and the Respondent Gibbs, their agent, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act, and by restrain- ing and coercing employees and applicants for employment in the exercise of rights guaranteed by the Act the said Respondents have also engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] ESQUIRE, INC., CORONET INSTRUCTIONAL FILMS DIvISION) and LOCAL 476, STUDIO MECHANICS OF THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES & MOVING PICTURE MACHINE OPERA- TORS OF THE UNITED STATES AND CANADA, AFL, I. A. T. S. E. Case No. 13-CA-1631. July .9,1954 Decision and Order On May 6, 1954, Trial Examiner Stephen S. Bean issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- 109 NLRB No. 76. ESQUIRE, INC. 531 mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed? The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Esquire, Inc., (Coronet Instructional Films Division), Glenview, Illinois, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local 476, Studio ,Me- chanics of the International Alliance of Theatrical Stage Employees Moving Picture Machine Operators of the United States and Can- ada, AFL, I. A. T. S. E., as the exclusive representative of all its motion picture studio production employees, including electricians, carpenters, property men, sound mixer, recordist, boomman, set de- signer, and animation employees, but excluding cameramen, assistant camerman, film editors, assistant film editors, the truckdriver, office clericals, commissary employees, sales personnel, producers, directors, and all other supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) In any manner interfering with the efforts of the above-named Union to bargain collectively with Respondent on behalf of the em- ployees in the aforesaid bargaining unit, as their exclusive bargaining representative. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the Union as the ex- clusive representative of its employees in the appropriate unit, and i The Respondent contends that the Board erred in its unit finding in the representation proceeding, and in its resolution of various inclusions and exclusions, and that the Trial Examiner erred in adopting those findings , and in refusing to permit the Respondent to adduce further evidence with respect to them. These issues were fully litigated and con- sidered by the Board in the representation proceeding at its initial stage, in the Board's consideration of the Regional Director's report on challenged ballots, and again when the Respondent requested reconsideration of the Board 's supplemental decision. It is clear, therefore, that these issues are not properly the subject of relitigation in the instant pro- ceeding Glares tat Manufacturing Company, Inc , 107 NLRB 775; Southwestern Electric Service Company, 94 NLRB 859. 334811-55-vol. 109-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the event that an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its places of business in Chicago, Illinois, and Glen- view, Illinois, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after having been signed by Respond- ent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of sixty ( 60) con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. MEMBER PETERSON 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, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E., as the exclusive representative of all elrlployees in the bargaining unit described herein with respect to rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All motion picture studio production employees including electricians, carpenters, property men, sound mixer, record- ist, boomman, set designer, and animation employees, but ex- cluding cameramen, assistant cameramen, film editors, assistant film editors, the truckdriver, office clericals, com- missary employees, sales personnel, producers, directors, and all other supervisors as defined in the Act. 2In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ESQUIRE, INC. 533 WE WILL NOT interfere in any manner with the efforts of the above-named Union to bargain collectively with us on behalf of the employees in the aforesaid unit. ESQUIRE, INC., (CORONET INSTRUCTIONAL FILMS DIVISION, Employer. Dated-------- -------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Charges having been filed and served , a complaint and notice of hearing thereon having been served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent , a hearing involy- ing allegations of unfair labor practices by the Respondent in violation of Section 8 (a) (1) and (5) of the National Labor Relations Act, herein called the Act, was held before me in Chicago , Illinois, on March 16, 1954 . The complaint, as amended at the hearing, alleges that Respondent, since December 16, 1953, has refused to bargain collectively with the charging party, otherwise called the Union or Local 476, as the exclusive representative of employees in an appropriate unit and thereby has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed by the Act. In substance Respondent admits that on or about December 16, 1953, the Union requested Respondent to bargain with it, that it has refused and still refuses to bargain with the Union but denies that said refusal to bargain was or is unlawful. At the hearing all parties were represented and participated in the hearing. The parties waived oral argument . Respondent and the Union have filed briefs. Upon the entire record in the case, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is now and all material times has been a corporation duly organized and existing by virtue of the laws of the State of Delaware . Respondent's principal offices are located in Chicago , Illinois, and its studio is located in Glenview, Illinois. Respondent, among other things, is engaged in the manufacture , production, and distribution of educational films. During the calendar year 1953, the value of raw materials purchased by Respondent for use by its Coronet Instructional Films Division approximated $300,000, of which approximately 15 percent was obtained directly from points outside the State of Illinois . The value of the finished product sold by the Coronet Instructional Films Division of Respondent , was approximately one million dollars, of which approximately 75 percent was shipped from Chicago, Illinois, by the Coronet Instructional Films Division of the Respondent to points outside the State of Illinois. The Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Em- ployees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES On May 29, 1953, after a hearing upon a representation petition filed under Section 9 (c) of the Act , the Board issued its decision and direction of election,' in 1 Esquire, Inc., ( Coronet Instructional Films Division ), 105 NLRB 205. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it ordered an election by secret ballot in an appropriate unit of Respondent's employees (elsewhere in this report called the unit in question), comprising all motion picture studio production employees including electricians , carpenters, prop- erty men , sound mixer, recordist , boomman, set designer, and animation employees, but excluding cameramen , assistant cameramen , film editors, assistant film editors, the truckdriver, office clericals, commissary employees, sales personnel, producers, and all other supervisors as defined in the Act, to determine whether said employees desired to be represented for collective-bargaining purposes by the Union. The elec- tion was held on June 25, 1953, and the tally of ballots showed that of approximately 14 eligible voters, 13 voted, of whom 4 cast their ballots for the Petitioner, 4 for no union, and 5 were challenged. On July 10, 1953, after an investigation , the Regional Director issued his report on challenged ballots wherein he recommended that the challenges to the votes of Ann Whitley, Nancy Dana, and Fred Norman be sustained, that the challenges to the votes of Paul Seitzinger and Bernard Montgomery be overruled, and that the Board direct the opening and counting of the ballots of Seitzinger and Montgomery. On July 20, 1953, Respondent filed exceptions to the Regional Director's report. The Board, in its supplemental decision and direction' of October 2, 1953, di- rected the Regional Director to open and count Seitzinger's and Montgomery's bal- lots and thereafter to prepare and cause to be served upon the parties a supplemental tally of ballots. On October 8, 1953, Respondent filed exceptions to the aforesaid supplemental decision and direction and requested reconsideration of its exceptions to the Regional Director's report on challenged ballots filed July 20, 1953. On October 28, 1953, treating Respondent's exceptions as a request for recon- sideration and having reconsidered the matter, the Board denied the request because it presented no issues not previously considered by the Board. The revised tally of ballots issued November 4, 1953, showed that 6 ballots were cast for and 4 against the.Petitioner. On November 24 the Regional Director, on behalf of the Board, certified the Union as the bargaining representative for the unit in question. On December 16, 1953, the Union requested bargaining and on December 22, 1953, Respondent refused to bargain giving as its reasons therefor (so far as they are relevant to this case ), that: The decision of the Board with respect to the composition of the unit in ques- tion and the persons eligible to vote herein ; the decision of the Board excluding Whitley and Dana from any unit and including Seitzinger and Montgomery in the unit in question; the Report of the Regional Director upon the Challenged Ballots of Whitley, Dana, Seitzinger and Montgomery ; the supplemental decision the Board rendered sustaining the Regional Director with respect to the chal- lenged ballots of Whitley, Dana, Seitzinger and Montgomery; and the certifica- tion of Local 476 as the exclusive bargaining agent for the unit in question, are all arbitrary and capricious, constitute an abuse of the Board's discretion and are not supported in law or in fact by substantial evidence on the record considered as a whole: Local 476 has not been designated or selected by a majority of eligible em- ployees in any appropriate unit as their exclusive bargaining representative; the unit in question sought by Local 476 was and is inappropriate ; if a unit of studio employees under the Board designation of "studio motion picture production and maintenance employees " is appropriate, employees Whitley and Dana were at all times relevant therein, properly includable in such a unit and eligible to vote with the other employees thereof; and , if a unit of studio employees under the Board designation of "studio motion picture production and main- tenance employees" is appropriate, such unit should apply to all such employees, including plant clericals. These reasons were not new, but merely reiterations of contentions already fully considered and rejected by the Board as is evidenced by the following quotations from the Board's findings in Cases 105 NLRB 205 and 106 NLRB No. 208 (see foot- note 2): 4. The Petitioners seek three separate units of employees at the Employer's motion picture studio. Local 476 desires to represent the studio production em- ployees, Local 666 seeks the cameramen and assistant cameramen, and Local 780 would represent the film editors and assistant editors. The Employer contends that the separate units desired by the Petitioners are inappropriate, and that only a single unit for all these employees, including also its laboratory 2 106 NLRB No . 208 (not reported in printed volumes of Board Decisions and Orders). ESQUIRE, INC. 535 employees employed at a separate location, is appropriate. The parties also disagree as to the inclusion or exclusion of several individuals. The Employer is engaged in the production and sale of educational motion pictures and television commercials. It maintains and operates a motion pic- ture studio which is housed in a three-story building in Glenview, Illinois, a suburb some 17 miles distant from downtown Chicago. In this studio it makes all the necessary technical preparations for producing motion pittures, such as designing and building the sets, photographs the various scenes, except such as are required to be photographed "on location," and edits the completed films. On the first floor of this building there is a large room with a suitable stage for acting or narrating, used for the filming and sound recording of pictures. To carry on its motion picture business, the Employer makes use of the trade groups generally employed in the motion picture industry. It employs a set designer who designs and-with the help of other employees-constructs, ar- ranges, paints, and sets up the various scenes required by the script of a par- ticular picture. It employs carpenters, electricians, painters, property men, and the various other categories that are commonly known as stagehands. It employs cameramen, assistant cameramen, film editors, and assistant film editors. The Employer also maintains and operates a laboratory in downtown Chicago. All films produced at the studio are processed in this laboratory.' Although the processing of the films is obviously an essential part of their completion for marketing, this function is quite apparently not so integrated with the Employer's studio operations as to make it a completely indispensable part of the Employ- er's production processes. This is demonstrated by the fact, shown by the record, that some of the Employer's competitors do not maintain their own laboratories but send their films for processing to laboratories not connected with their own operations.' The Employer contends that the separate units requested by the Petitioners are inappropriate because of (1) its centralized control and supervision over all its employees; (2) the functional integration and interdependence of its various de- partments; and (3) the interdepartmental transfers of its employees. With respect to the first two reasons advanced, these factors although unques- tionably present, do not appear to manifest themselves in a substantially greater degree than in many cases where units less than plantwide have been found to be appropriate. We do not believe that the centralized control of the Employer's business and the integration of its various departments are such as to preclude the establishment of separate units that otherwise would be appropriate.' As to the interdepartmental transfers, we are not persuaded that they are such as to preclude the appropriateness of the units sought Several employees within the groups here involved were originally employed in jobs other than those they now hold. 1 hese instances appear either to have consisted of the temporary expedient of placing a new employee in a less desirable job because of the absence of openings in better positions, or to have involved a short period of training and adjustment before the employee was placed in the job to which he appeared most suited. Thus each of the 2 cameramen, hired 6 or 7 years ago, was originally placed in the studio stockroom for a brief time and then transferred to general work on the studio floor for several months before taking over the camera work.' Likewise two employees now in the editorial depart- ment at the studio formerly worked at the Employer's downtown Chicago lo- cation performing the comparatively routine functions of cutting, matching, and sequencing film.' The cameramen and editors appear, however, to be per- manently assigned to the positions they now occupy. 8 The processing consists of developing the black and white film, removing the "no good" takes, cutting, splicing, printing, and storing of films. However, all the Employer's motion pictures are originally taken in color The original color film, before black and white copies are made, is sent to the Eastman Kodak Company for development. 4 One of the other principal producers of educational motion pictures, The Encyclopedia Britannica Films, also located in Chicago, has no laboratory of its own, but sends its films to outside laboratories for processing. 5 See The Visking Corporation, 101 NLRB 39 ; Knox Glass Bottle Co, 100 NLRB 4; Burke Millwork Co., Inc., 100 NLRB 522 6 One of them also worked in the animation department for several months before going on the floor as a cameraman ' One of these employees, who was transferred to the editing department about 10 months ago, is still doing cutting and splicing, but is assisting in editing and learning to use discretion as to cutting film that is essential to the editing process. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is some occasional interchange of work, due to the fact that the Em- ployer's entire complement is not large and employees may assist each other in various tasks when needed. It is clear, however, that this occurs most fre- quently among the studio production employees here sought as a separate unit, and that the cameramen devote themselves primarily to camerawork and the editors to their particular function. Further, although it was asserted that there had been interchange between studio and laboratory employees, the record discloses that since 1947 when the laboratory was moved from the studio to its downtown location, employee interchange between the two operations has been almost nonexistent.' Upon the entire record in this case, and particularly because in the motion picture industry groups of employees such as are involved herein have tradi- tionally been represented in separate units, we find that the units requested by the Petitioners are appropriate There remains for consideration the disagreement of the parties as to the in- clusion of the following individual employees: The Petitioners would include in the studio production unit, but the Employer would exclude as supervisors, Bernard Montgomery and Paul Seitzinger. The Employer would include, but the Petitioners would exclude, . Ann Whitley, [and] Nancy Dana... . The Employer's supervisory hierarchy is headed by John M. Abraham, a vice president of the Employer, who is the general manager of the entire film division, including the studio and laboratory. Under Abraham is the pro- ducer, Richard Creyke, who is in charge of the entire studio. Under Creyke there are two directors who divide between them the supervision of the cam- eramen and studio production employees during the taking of motion pictures and sound recording. The film editors work under Aubrey Moore, the su- pervising editor. Peter Butzen supervises the animation department io Montgomery is primarily a set designer. He reads the script and designs sets according to the instruction in the script. He also works with the property man, carpenter, electrician, and the painter, in the actual building of sets. Con- trary to the Employer's contention, we find that he has no power to hire, dis- charge, or discipline any of the employees with whom he works, or effectively to recommend such action. He has never exercised such power. Nor does he responsibly direct the work of any of the other employees. Upon the entire record in this case, we find that Montgomery is not a supervisor within the meaning of the Act, and shall include him in the unit of studio production employees. Seitzinger is classified as a sound mixer. He is a highly skilled employee who performs his work in company with a recordist and a boom man. During the taking of pictures he is stationed at the sound mixer in the studio and the recordist is stationed in the sound truck housed in a garage adjoining the studio. The boom man operates the microphone boom on the set being filmed. Al- though these 3 employees must work in close coordination, and Seitzinger is the most skilled of the 3, it does not appear that Seitzinger in fact responsibly directs the work of the other 2. The Employer asserts that Seitzinger has authority effectively to recommend the hiring or discharge of the 2 employees with whom he works, but the record does not appear to support this assertion. Although Seitzinger was informed when Brennan, the recordist, was hired, Seitzinger was unacquainted with Brennan. The record does not establish that 8 The Employer also contended at the hearing that its motion picture enterprise should not be bound by the traditional labor-relations practices of the motion picture industry on the ground that it is comparatively small business producing principally educational films, and does not use the technique and the equipment of the large producers of motion pictures in the entertainment field We are not persuaded from the record made in this case that there is merit to this contention On the contrary, it appears, as shown by the modern equipment and techniques used by the Employer and the variety and extent of its motion picture business, which amounted to approximately $1,000,000 in the last year, that it is essentially part of the motion picture industry. sTrans/ilm, Incorporated, 100 NLRB 78; Columbia Broadcasting System, Inc., 97 NLRB 566 The Employer asserts that the units here sought are inappropriate because they are based solely on the extent of organization As the appropriateness of the units here sought is supported by other factors, such as the distinctive nature of skills and work performed, and absence of employee interchange, together with the history of bargaining in the industry, we find no merit in the Employer's contention 10 The Petitioner generally agrees with the Employer's characterization of the above as supervisors. ESQUIRE, INC. 537 Seitzinger was asked to pass on Brennan's qualifications, and he made no recom- mendation. Upon the entire record we find that Seitzinger is not a supervisor within the meaning of the Act. We shall include him in the unit of studio production employees. Ann Whitley and Nancy Dana are primarily office clerical employees. They are located in the "front" office, where Dana is responsible for operating the switchboard and acting as receptionist. Whitley also sometimes performs this function. Both of them also keep records of the picture production prog- ress, keep timesheets for the other employees, take care of the producer's files, and type out scripts and letters. Upon the entire record we shall exclude Whit- ley and Dana as office clerical employees. * * * * * * We find that the following groups of employees employed at the Employer's Glenview, Illinois, studio constitute separate units appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: Group (a): All motion picture studio production employees including elec- tricians, carpenters, property men, sound mixer, recordist, boom man, set de- signer, and animation employees, but excluding cameramen, assistant cam- eramen, film editors, assistant film editors, the truckdriver, office clericals, commissary employees, sales personnel, producers, directors, and all other su- pervisors as defined in the Act. Group (b): All cameramen and assistant cameramen, excluding all other employees and all supervisors as defined in the Act. Group (c): All film editors and assistant film editors, excluding all other employees and all supervisors as defined in the Act. The Board then directed elections among the employees in the three groups to determine whether or not they desired to be represented, for purposes of collective bargaining, as follows: In Group (a) by Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E.; In Group (b) by Lodge 666, International Photographers of the Motion Pic- ture Industries of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E.; In Group (c) by Local 780, Motion Picture Laboratory Technicians of the International Alliance of Theatrical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, AFL, I. A. T. S. E. I quote further from the Board's supplemental decision and direction of elections of October 2, 1953: On July 10, 1953, the Regional Director issued his Report on Challenged Bal- lots, in which he found that the eligibility of all five challenges had been expressly determined by the Board in its Decision and Direction of Elections, and that their duties had not changed since the hearing which preceded that Decision. He recommended, therefore that the challenges to the votes of Seitzinger and Montgomery be overruled and that the challenges to the votes of Whitley and Dana . . . be sustained. On July 20, 1953, the Employer filed exceptions to these recommendations. The issue of the alleged supervisory status of Seitzinger and Montgomery and the issue of the alleged community of interests of Whitley, [and] Dana with the other employees in the unit were thoroughly investigated at the hearing and thoroughly briefed to and considered by the Board in its Decision and Direction of Elections of May 29, 1953. The Employer did not question the Board's eligibility determinations before the election, and the exceptions set forth no newly discovered evidence, change of circumstances, or other considerations which would lead the Board to alter its previous decision on these matters. Accordingly, we shall overrule the challenges to the ballots of Seitzinger and Montgomery and sustain the challenges to the ballots of Whitley, [and] Dana . . . As the ballots of Seitzinger and Montgomery can affect the results of the election, we shall direct that these ballots be opened and counted. At the hearing in the instant case Respondent sought to introduce more evidence. It pointed out that the petition originally filed by the Union described the unit involved as including "all studio mechanics" and excluding "all other employees and 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors, as defined in the Act" and that on the last day of the hearing the Union moved to amend the unit description stated in the petition to include "all motion picture production employees who work at the employer's studio at Glenview, Illinois, including electricians, carpenters, property men, mixer, recordist, boomman, set designer, and animator, and to exclude cameramen, assistant cameramen, film editors, assistant film editors, office and clerical employees, commissary employees, outside truckdrivers, sales personnel, producers, directors, and all supervisors as defined in the Act." From this, and the position it took that the appropriate unit was a single unit of all production and maintenance employees and production clericals, Respondent contended that the testimony it produced at the representation hearing was presented from, or slanted toward, the point of view of the relationship between all studio employees, particularly production clericals (Whitley and Dana) and all of the employees in the entire organization, and that it was not directed to the specific relationship between the clericals and the production employees in the studio. It is because, argued Respondent in substance, it was being attempted in the unit hearing to determine the issue as to whether all employees in the organization were to belong to one unit or separate craft units and because in the instant case the issue is whether these two production clericals who worked at the studio should be included in a unit consisting of studio production employees, that it should be allowed to present further evidence concerning the relationship between the two clerical workers and studio production employees. Respondent stated its position was that it might offer evidence even though not newly discovered on an issue which it says is new and concerning which there was no occasion to present testimony at the representa- tion proceeding. After hearing Respondent's argument and representations in the premises, I de- clined to allow Respondent to present -evidence, whereupon Respondent made the offers of proof set forth in "Appendix B" attached hereto, and marked certain exhibits for identification. I reserved final ruling upon the offers of proof and the reception of the exhibits until I had had an opportunity to study the testimony, exhibits, briefs, motions, and other pertinent material in the representation proceeding. This I have done and I now reject the offers of proof and exhibits. It is fundamental that issues litigated in a representation proceeding may not of right be relitigated in a complaint case wherein it is alleged an employer has refused to bargain with a union which the Board has duly certified? The basic question for determination here is whether the matter of the includ- ability or nonincludability of Whitley and Dana in the unit found by the Board to be appropriate was litigated or could properly have been litigated, in the repre- sentation proceeding. The issue as to whether there should be 1 or 3 units was present in the representation ab initlo. In 106 NLRB No. 208 (see footnote 2), the Board stated that the issue of the alleged community of interests of Whitley and Dana had been thoroughly investigated, briefed, and considered in 105 NLRB 205. The issue was particularly emphasized by the allowance of the Union's motion, without objection, to amend the petition by, inter alia, excluding office and clerical employees therefrom. It is true that this motion was not made until the opening of the last day of the hearing. Neither on that day, however, nor in its brief to the Board filed March 7, 1953, nor in its exceptions to report of Regional Director on challenged ballots filed July 17, 1953, nor in its exceptions to the supplemental decision and direction of elections and its request for reconsideration thereof as well as of the Regional Director's report on challenged ballots, nor at any other time until the coming on for hearing of the instant case, did Respondent request an opportunity to present the additional evidence, or evidence of a similar character as that, which it now seeks to introduce. In its brief filed over a year ago on March 7, 1953, Respondent referred to testimony relating to Whitley's and Dana's duties at the studio and contended contrary to the request of exclusion in the Union's amended petition, that they should properly be included in the production and maintenance unit. In its exceptions to the Regional Director's report, Respondent again contended that Whitley and Dana should be included in the same unit with studio production employees because the clerical work they perform is tied up with phases of production, they assist in phases of production, mingle with production employees and work in close proximity to, and under the same supervision as, production employees. As appears above, the Board in its decision and direction 3 See Pittsburgh Plate Glass Co v N. L R B, 313 U. S. 146, 157-163; Allis Chalmers Mfg Co v. N. L It. B., 162 F. 2d 435, 440, 441 (C. A. 7) ; Wilson Athletic Goods Mfg. Co., Inc v. N. L. It. B, 164 F. 2d 637, 639, 640 (C. A 7) ; N L. It. B v. West Kentucky Coal Co., 152 F 2d 198, 200, 201 (C. A 6). ESQUIRE, INC. 539 of elections expressly considered the disagreement of the parties as to the inclusion of Whitley and Dana in the studio production unit and after making a finding concerning their duties and upon the entire record found that they should be excluded as office clerical employees. Respondent would now like to offer more evidence . There is scarcely any lawyer to whom there does not occur an apt reponse d'escalier after a trial is over. But litigation cannot go on forever . Plainly the issue as to whether Whitley and Dana belonged in a studio production unit was raised at the unit hearing . A reading of the record therein shows that it contains considerable evidence directly concerning their duties and relationship with other employees both in the studio and in the laboratory. For convenience, I have set its substance forth in attached Appendixes "C and D," without , of course, attempting to evaluate it. The question was pre- sented to the Board. The Board determined it. Respondent's contention that the question of the relationship between these two clerical workers and other studio employees was a new issue which was neither litigated nor susceptible of being litigated in the representation proceeding is without merit . The facts contained in the offer, if proved, are not newly discovered. As stated in its brief to me, Respond- ent's attempt was to introduce "additional evidence" in an endeavor to clarify the status of certain employees . Under these circumstances I feel myself bound by the findings already made by the Board. I do not consider that the merit of any claims that were, or could have been, advanced in the representation case is before me for determination but rather that I serve only as a medium through whom the question of such merit may reach the Board for its determination . The Board of course may alter its decision in the earlier case. But for me to accede to Respond- ent's request and hear more evidence on a matter the Board has already decided would be equivalent to making a Board finding subject to review by a Trial Ex- aminer. This would lead to the incongruous result of permitting a Trial Ex- aminer, whose findings, under the express provisions of Section 4 (a) of the Act, are reviewable by the Board , to himself recanvass Board determinations.' As indicated above, Respondent on December 22, 1953, refused the request of the Union to bargain collectively with the Union . For the reasons expressed above I feel constrained to reject the Respondent's defenses to the effect that the Union was never the duly designated collective-bargaining representative of its employees in an appropriate unit and that the Board's certification in the representation proceed- ing was invalid and of no force or effect. Accordingly, I find that, on December 22, 1953, and at all times thereafter, the Respondent has refused and is refusing to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit , which I find comprises all motion picture production employees including electricians , carpen- ters, property men, sound mixer, recordist , boomman, set designer, and animation employees, but excluding cameramen, assistant cameramen , film editors, assistant film editors , the truckdriver, office clericals, commissary employees , sales personnel, producers, directors, and all other supervisors as defined in the Act, in violation 4 In its argument in support of its contention that it should be allowed to offer evidence as to the relationships among the employees at the studio , Respondent referred particu- larly to production clericals and its offers of proof relate mainly to them However, the offers also reveal that testimony would be presented to the effect that Seitzinger signed letters as "Recording Supervisor " and "Sound Supervisor," and that the stage manager, who resigned in June or July 1952 , exercised supervisory authority . (Counsel pointed out that this man was succeeded by Montgomery .) Much evidence relative to the duties of these two individuals , including their own testimony, was taken in the representation proceeding. Their status was there at issue, litigated and determined . It scarcely seems necessary for me to go to such length in dealing with whatever contention Respondent now may have respecting these men as I have gone in treating the argument respecting Whitley and Dana upon whose standing Respondent in this case has placed its first emphasis. Suf- fice it to say, for the sake of brevity, that for the same reasons as those applying to Re- spondent's contentions regarding the office clericals , I decline to receive any further testi- mony concerning the already decided status of Seitzinger and Montgomery . Because of the fact that , as I read them , the proposed offers of proof contain nothing material to the status of Hazel Manzelman and Fred Norman , I have refrained from mentioning them in the general discussion of the case . However, Respondent in its brief to me has reargued the contentions respecting them which it has previously briefed to the Board in the repre- sentation case and urges that the Board 's decision excluding them from the unit is arbi- trary and capricious Even though the offers should be considered as including proposed evidence relative to these two employees , I reiterate my belief that the merit of these previously decided contentions is not before me for redetermination 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8 (a) (5) of the Act, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations'of the Respondent 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 labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in and is engaging in the unfair labor practice of refusing to bargain collectively with the chosen representative of its employees. It will be recommended that it cease and desist therefrom and from like and related conduct. It will further be recommended that Respondent bargain collectively, upon request, with the Union as the exclusive representative of its employees in the aforesaid appropriate unit. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All motion picture studio production employees including electricians, carpen- ters, property men, sound mixer, recordist, boomman, set designer, and animation employees, but excluding cameramen, assistant cameramen, film editors, assistant film editors, the truckdriver, office clericals, commissary employees, sales personnel, producers, directors, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E., was, on November 24, 1953, and at all times since has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By its refusal to bargain with the Union as such representative on and after December 22, 1953, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid unfair labor practice, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E., as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understand- ing in a signed agreement. The bargaining unit is: All motion picture studio production employees including electricians, carpenters, property men, sound mixer, recordist, boomman, set designer ESQUIRE, INC. 541 and animation employees, but excluding cameramen, assistant cameramen, film editors, assistant film editors, the truckdriver, office clericals, commis- sary employees, sales personnel, producers, directors, and all other super- visors as defined in the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 476, Studio Mechanics of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL, I. A. T. S. E., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended. ESQUIRE, INC., (CORONET INSTRUCTIONAL FILMS DIVISION), Employer. Dated---------------- By--------------------------------------------- (Representative) (Title) This notice must be posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B Offers of Proof Myron C. Davis would testify, if permitted, that he has been employed by Esquire, Inc., as its general counsel since February 1946; that his office is on the 22nd floor in the general offices of Esquire, Inc., at 65 East South Water Street, Chicago, Illi- nois; that Esquire, Inc., is in the business of publishing magazines , calendars, and advertising novelties, and also in the production, sale, and distribution of education films; that the corporation has been engaged in that business during the years 1953, 1952, and many years prior thereto; that the educational films are and have been for many years produced by Coronet Instructional Films Division of Esquire, Inc., and that the Coronet Instructional Films Division is not a separate business entity or corporation, but merely a division of Esquire, Inc.; that the production of Coronet instructional films is and has been carried on in the basement and on the 1st and 22nd floors of the building leased by Esquire, Inc., at 65 East South Water Street, Chicago, and also carried on at a studio in Glenview, Illinois, a suburb of Chicago; that the combined production of Coronet Instructional Films Division films is and has been under the direction and charge of a general manager, John M. Abraham, who is a vice president of Esquire, Inc., and one of its board of directors; that Abraham has his office on the 22nd floor of the building at 65 East South Water Street, in Chicago; that the general offices of Esquire, Inc., are and have been for years located on the 19th, 20th, 22nd, and 24th floors of the building at 65 East South Water Street; that the general office employees employed in those general offices of Esquire, Inc., handle and work upon office transactions relating to the. Coronet Instructional Films Division, as well as the other division, branches, and phases of Esquire's business, and that this was true in the year 1953, and for many years prior thereto; that among the departments in the general offices are to be, found the following: The accounting and payroll department, the personnel office, the office of the secretary of the corporation, the office of the treasurer and the con- troller's office, located on the 19th floor; the purchasing officer, the room where the switchboard is located, and the power facilities for the switchboard, located on the 20th floor; the office of the vice president and general manager and his secretarial staff, the sales and publicity department, the legal department, general counsel's office, and the library, located on the 22nd floor; and the office manager, the teletype room, the fileroom and the mailroom, located on the 24th floor; that he is familiar with the rooms and areas of the building at 65 East South Water Street where the general offices are located, and he was familiar with them during the year 1953 and prior thereto; that on February 11, 1954, he was present when photographs were taken of the rooms and areas where various departments of the general offices are located, that these pictures were taken by James DeWitt, who, is employed by Esquire, Inc., as a still photographer for the publicity and sales department; that a photograph marked for identification as Respondent's Exhibit No. I is a view of the portion of the area where the accounting department is located; that a photograph marked for identification as Respondent's Exhibit No. 2 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is a view of another portion of the accounting department, that a photograph marked for identification as Respondent's Exhibit No. 3, is the treasurer's office, that a photo- graph marked for identification as Respondent's Exhibit No. 4 is the office of the secretary, that a photograph marked for identification as Respondent's Exhibit No. 5 is the personnel office, that a photograph marked for identification as Respondent's Exhibit No. 6 is a view of the purchasing department; that a photograph marked for identification as Respondent's Exhibit No. 7 is another view, of the purchasing department office looking at the door behind which is a room wherein is located the switchboard for all of the general office and other activities in the building; that a photograph marked for identification as Respondent's Exhibit No. 8 shows the switchboard room showing the plug-in type switch, that a photograph marked for identification as Respondent's Exhibit No. 9 is the room adjoining the switch- board room containing the electrical apparatus and devices necessary for the opera- tion of the switchboard; that a photograph marked for identification as Respondent's Exhibit No. 10 is a view of the sales and secretarial staff room showing the door to the entrance to Abraham's office; that a photograph marked for identification as Respondent's Exhibit No. 11 is a view of the library; that a photograph marked for identification as Respondent's Exhibit No. 12 is the general counsel's office, with the general counsel sitting at the desk; that a photograph marked for identification as Respondent's Exhibit No. 13 is the fileroom, that a photograph marked as Respondent's Exhibit No. 14 for identification is another view of the fileroom, that a photograph marked for identification as Respondent's Exhibit No 15 is the tele- type,,room, the place where the secretarial force to the general manager is located, whose office is to the left of the picture, but not shown in the picture, that a photo- graph that is marked for identification as Respondent's Exhibit No. 16, is the mailroom; that all photographs marked for identification are true and accurate representations of what each of them purports to show at the time DeWitt took them, that there is no substantial difference in the general appearance of the areas or rooms shown in any of the photographs marked for identification from the general appearance of those areas or rooms as they existed in the years 1953 and prior thereto, that in January 1953, there were about 75 persons employed in the general offices and that there was no appreciable difference in the number of employees in the general offices in the year 1952; that the employees in all of the production depart- ments, in both Chicago and Glenview, take their vacations at the same period dur- ing the year during a closedown for 2 weeks, and that the employees in the general offices take staggered vacations during the summer months from about May 1 to September 1. Richard Creyke would testify, if permitted, that the production of films is carried on, in part, at the Glenview, Illinois, studio, and in part in the basement and 1st and 22nd floors leased by Esquire, Inc., at 65 East South Water Street, Chicago, Illinois, and that the sole work done at the studio is the production of films; that the general offices are located on various floors at 65 East South Water Street, Chicago; that as of the time he testified in Case No. 13-RC-3086 in January 1953, and prior thereto, he was in charge of the studio; that the general sales and pro- motion, publicity, accounting, payroll, purchasing, and general secretarial and clerical work for Coronet Instructional Films was not done at the studio, but rather at its general offices in Chicago, and that the work of the studio was confined to the production of films; that his superior is Abraham, whose offices are where his secretarial and clerical force is also located; that at the time he testified on Jan- uary 29, 1953, the chart marked for identification as Respondent's Exhibit No. 17 is a true and correct representation of the departmental and supervisory status at the studio; that his office is located in the studio; that he is familiar with the lay- out of the studio, and that he has been the producer since June 1947; that the studio building is about 35- or 40-feet high, and about 60-feet wide, and about 100-feet long; that certain areas of the interior extend in height from the 1st floor to the roof, while other areas are divided into 1st, 2nd, and 3rd-floor levels; that the diagram marked for identification as Respondent's Exhibit No. 18 is a substantially true and accurate diagram of the 1st-floor level of the entire studio building as it was when he last testified and as it appears at present, that the dia- gram marked for identification as Respondent's Exhibit No. 19 is a substantially true and accurate diagram of the 2nd and 3rd-floor level areas of the studio as it existed when he last testified and as it exists at present; that the area desig- nated as "studio office" in the document marked for identification as Respondent's .Exhibit No. 18, is the same office referred to in prior testimony as the "front" office; that at the time he last testified there were 2 girls working at the studio, Ann Whitley and Nancy Dana, whose work was largely clerical, but who occa- sionally assisted other employees in various kinds of nonclerical production work; that Whitley's and Dana's clerical work was directly related to the production ESQUIRE, INC. 543 activities, that with respect to the document marked for identification as Re- spondent's Exhibit No. 18, the room in which these girls performed their clerical duties is designated as the "studio office"; that the document marked for identi- fication as Respondent's Exhibit No. 20 is a photograph of the studio office, and that it is a true and accurate representation of what it purports to show and that there is no substantial difference in the general appearance of the studio office as shown in such photograph from its general appearance at the time when he last testified; that the doorway shown in the document marked for identification as Respondent's Exhibit No. 20 leads to the witness' office; that the photograph marked for identification as Respondent's Exhibit No. 21 is another view of the studio office taken from the doorway to the producer's office, and looking through to the reception room ; and that such photograph is a true and accurate representation of what it purports to show, and that there is no substantial dif- ference in the general appearance of the studio office depicted therein in Re- spondent's Exhibit No. 21 from its general appearance at the time he last testi- fied; that the switchboard shown in Respondent's Exhibit No. 21, for identifi- cation, has been there for many years, is the only one that the studio ever had, that the room which is visible beyond the office, and seen through the doorway, is the main entranceway reception room of the studio, and the object next to the wooden bench in the reception room is a hot water boiler or heater , and that behind the bench, a portion of which is visible in the reception room, there is a space heater located in the reception room which is not visible in the picture used for heating the commissary ; that through the doorway to the left as shown in Respondent's Exhibit No. 21 , for identification, is visible stage No . 1 where shoot- ing is taking place, and that the location of the doorway from this office to the studio floor is only comparatively a few feet, that he supervises the 2 production clericals who work in the studio office in common with all other production employees at the studio, that he does not supervise any office personnel in Chicago; that the 2 studio office clericals, in the course of clerical duties, have frequent contact with the set department at the studio, might even type letters for the stage manager or the property man, or obtain the floor work schedule from the stage manager, make phone calls for the purpose of tracing properties , maintain a list of supply sources for the property man, have contact with the sound supervisor, have contact with personnel in the sound department in getting the logs of re- corded sound, have contact with the animation department at the studio, enter the information respecting logs of scenes on folders, make up a separate report of animation work, maintain the records of all animation scenes needed for pic- tures in production, supply the information to the producer in the animation department, on very rare occasions type some letters for the animation depart- ment, have contact with the editorial department , keep the film control folders, record all film shot work print that comes from the laboratory, trace the scenes for the editors which may involve work in going back and forth to the camera- men and to other departments, type negative match notes, type master script to be used on the floor and letters when required for the editorial department, may have to be in the editing department an hour or two at a time in assembling film records, have to type narrative script, obtain weekly schedules from the editorial supervisor, and work with him in connection therewith, have contact with the shooting crew, supply the directors with missing scene lists, send the directors notice whether scenes are to be reshot, see that the script clerks make up the payroll requisitions for actors , trace missing scenes in various departments in the studio , occasionally type letters for the directors or script or cameramen if needed, get releases from the actors , go to and be in other parts of the studio where the different production departments are in operation , go to the set de- partment to contact the stage manager and to the editing department, to contact the editing supervisor in connection with the weekly production schedule, dis- tribute production schedules all over the studio , deliver memorandums to the production employees all over the studio, and track the time slips all over the studio; that the regular workday at the studio begins at 9 a. m. and ends at 5:15 p. m., for all studio employees including the two girls in the studio office, that the workweek at the studio of 5 days, Monday through Friday, applies to the girls in question; that the regular lunch period at the studio, from 12:30 to 1:15 p. m., is observed by the 2 girls in the studio office as well as by the remaining studio employees, all of the studio employees eat their lunch in the studio com- missary and the production and clericals eat their lunch with the other girls, and all of them mingle about in eating their lunch , with the exception that on alter- nate days each of the 2 studio office clericals will take her turn sitting at the switchboard , while the other is having her lunch with the other production em- ployees; that the girl whose turn it is to sit at the switchboard usually eats her 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunch at the switchboard, and it is not uncommon for other girls engaged in pro- duction work, or the men engaged in production work, to join the girl sitting at the switchboard while she is eating her lunch there; that when a final picture is screened, the office clericals at the' studio join with all the other production workers in viewing it; that it has been the policy at the studio for a number of years to close the studio down for 2 weeks at a time selected by the Company, and during that period all studio employees , including the 2 girls who are production clericals, take their vacations, and that the studio office is not kept during those 2 weeks; that the studio does not have separate restroom facilities for the 2 studio office girls but the same restroom is used alike by the 2 office girls and all other women who do nonclerical production work at the studio ; that the 2 girls in the studio office, as well as the other production employees, are paid by check every 2 weeks, and the 2 girls are paid on the same day as all other employees at the studio; and that carbon copies of 3 letters , the originals of which were ostensibly signed by Seitzinger (and bearing on his supervisory status), were not found at the time of the original hearing, and were not introduced at the time that similar letters were introduced in the original representation case. James Walworth would testify, if permitted, that Frank Swig, to whom he was the assistant, was the stage manager at the studio in Glenview; that he started to work there in September 1949, and left the employ of the Company in September 1952; that during the time he was employed the following was the departmental and organ- izational setup at the studio : In charge of the entire studio was his producer, under him there was the shooting crew section, and there were 2 shooting crews, with the director, the cameramen or assistants, and the script clerk, there was also a set de- partment of which Swig was head up to December 1949, and of which the witness was head from September 1949 until September 1952; that there was a sound department of which Stanfield was the head until Stanfield left approximately in January 1952 and of which sound department Seitzinger was head after that time; that there was also at the studio an art and animation department, of which Mr. Peter Butzen was the head, and that there was an editorial department of which George Wilburn was head for a portion of the time, and that he was succeeded by Richard Kirschner who was in turn succeeded by Aubrey C. Moore; that when he started to work in the set depart- ment as assistant to the stage manager, he was under the direction and supervision of the stage manager and he succeeded the stage manager in that job when the incum- bent left the employ of the Company in December 1949; that while he was stage manager he had power and authority in the use of his independent judgment effec- tively to recommend the hiring, transfer , suspension, promotion, discharge, and dis- cipline of employees subject to his supervision, that his powers in that respect are evidenced by the following illustrations which occurred while he worked for the Company; that when the stage manager left the Company he became the stage manager and the only employee in the set department subject to his authority, who devoted full time to the set department, was George Trojan , but that other employees from time to time assisted him in building sets whenever it was required ; that Swig, while he was stage manager, had also been set designer, when the witness took charge of the set department he attempted at first to get along with the assistant , George Trojan, and these other employees whom he could get to assist him, and after a few months he came to the conclusion that he needed another man in the set department to take care of the front side of the sets, so that he could devote his time largely to the back side; that he recommended to the producer that an additional employee be hired, and the producer and the general manager acquiesced ; that the Company thereupon advertized and there were many replies received from applicants for the job; that he interviewed these applicants separately and together with the producer, that one Camille Stoker was one of the applicants , that he liked Stoker's drawings and recommended that Stoker be hired, and that upon his recommendations Stoker was hired in the set department under his supervision ; that Stoker did not work out well, he discussed Stoker's work with the producer on numerous occasions and after about 4 months, when he was about ready to recommend his discharge, Stoker found a new job; that he and Producer Creyke again interviewed applicants for a set designer's job, he interviewed 2 of them alone , and 1 was Robert Zoeller, with whom Creyke was much more impressed than himself, was hired about June 1950, and worked for the Company until August or September 1950 when he resigned; that Creyke and he went over replies they had gotten to the original advertizement and that they called some of the applicants in to examine them with respect to finding a replacement for Zoeller, that he again interviewed them, and one was Lester Lawrence who impressed Creyke and who he hired in September 1950, and, like Stoker, this employee did not work out well; that he discussed the capabilities of this employee on many occasions , and the advisability of discharging him; that 1 day while he and Creyke were discussing the matter, Lawrence walked into the office and said that he ESQUIRE, INC. 545 was quitting, and when Lawrence had left the room Creyke and he remarked to each other simultaneously, "That solves that very nicely," that Lawrence left the employ of the Company about January 1951 ; that he again interviewed other applicants for a set designer, he personally interviewed Barney Montgomery , recommended Barney Montgomery, and on the basis of that recommendation Montgomery was hired and remains in the employ of the Company; that in addition to the 2 men that he regularly had subject to his supervision , he, because of the workload , found that he could use an extra man to work on sets, and he found a man , Albert Whaletz, who impressed him, whom he recommended , and who was hired upon his recommenda- tion; that in June or July 1952 he advised the producer that he was intending to re- sign, discussed with him the question of a successor for the stage manager 's job, and he thought that Montgomery might be qualified to handle the job as well as the work of set designer and accordingly recommended him for the job; that he on many oc- casions discussed with the producer the work performance of George Trojan, the property man, subject to his supervision , that Trojan was a loyal employee and knew the city and where he could find props, and that he would even bring items from his own home to be used on the set ; that Trojan however was not the kind of man who could read a script, did not have sufficient background to determine all of the props that might be needed , and would need supervision as to the specific kind of item that he should obtain , and he would give that information and direction to him on those occasions, that however, he on occasion recommended that Trojan's salary be increased ; that while he was stage manager he had authority in his own judgment responsibly to direct the employees in the set department under his supervision, to assign work to such employees, and to assign tasks to them ; that his responsibility was to see that the sets built on the stage were put up in time for shooting scenes on those sets ; and that by way of illustration he prepared the floor schedules for the making of pictures , he might have to make the decision as to whether certain sets could be produced for earlier shooting and would direct such employees as Trojan to get the necessary props, might on occasion direct the designer , or whoever was subject to his jurisdiction in that capacity , to get and prepare other items so that the entire set might be prepared and ready for shooting at an earlier date than was scheduled. Appendix C Anne Whitley at the studio talks to Helen Miller who selects film at the labora- tory; finds out for cameramen whether scenes have been approved ; makes a great many reports for the producer, the director, the cameraman, and others; does some typing in the office, sometimes works on the switchboard , often prepares meals used in a picture ; at times gives advice regarding placement of properties , sometimes helps maintain the camera log and does script work; acts as a focal point for com- munications between the studio and the laboratory ; follows up in locating actors, has assisted cameramen in checking the camera and moving articles to be photo- graphed at close range; frequently takes bit parts; did office, clerical , and research work until transferred to the studio approximately 3 years ago ; as one who keeps reports she is required to pitch in and get sets ready when necessary ; is paid on a weekly basis, works the same hours and enjoys the same benefits as other employees; acts as a receptionist when at the switchboard ; does some typing and some type of clerical work for the producer ; has a desk in the same area with the switchboard; she does not help the cameraman with insert work ; sometimes engages in cheat acting; works in the front office; she does no sound work ; the set designer has never seen her do any work on properties , nor set construction nor painting on sets; she relieves Dana at the switchboard ; occasionally hands a script to the set designer; writes letters at the request of the prop man; she is carried on the daily time report as performing general office work ; writes in the daily time sheets at the studio; either she or Dana or both sometimes make out work schedules which are usually received in the sound department from one of the office girls; 65 percent of her work is with production control , the rest is typing for different people, scripts, nar- rations, and keeping files ; keeps the information based on the logs made out by the crews, reports from the laboratory and logs from work print inspection report, from the sound department and the control folder; makes copies of information, trans- poses information from reports to logs; quite often assists at the switchboard when Dana is elsewhere engaged; often receives calls from laboratory personnel ; used to work in the research and script department ; has helped in making up and costuming actors, operates a ditto machine typing scripts and schedules ; does the heavy typ- ing at the studio; types originals and copies of letters for signature, records infor- mation from the animation department on the production control ; takes letters in longhand and transcribes them; retypes letters placed on her desk; puts letters in final shape and types them; takes dictation of a sort ; takes care of the producer's 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD typing, often typing letters for him; keeps the producer's files consisting of all the information going into each picture and copies of letters she types for him; gets material from the files for the producer, takes dictation from everyone there, from both of the directors and types letters for the stage manager, the assistant stage manager, the prop man; works in the front office with the producer and Dana; 65 percent of her time is spent in keeping records and the balance in operating the switchboard, typing script and helping out on the set; helps Dana put account num- bers on timesheets; acts as a receptionist; has quite a bit of correspondence; and it is intended to give more, and as much purchasing work as possible to her and Dana. Appendix D Nancy Dana has worked for a number of years at the studio; she is located on the telephone switchboard quite a bit; she has been a script clerk keeping the cam- eraman's log up until the last 3 or 4 months-the log being a record of each scene and each take of each scene as it is shot; at present she continues to fill in as a script clerk; follows up for the men on the floor; assists in locating properties; runs the ditto machine; does typing; makes out reports for herself and for others who do not run a typewriter; assists with suggestions on sets; telephones to secure mem- bers for casts; formerly interviewed prospects for casts; finds out for cameramen whether scenes have been approved; might help move inserts around; as one who keeps reports she is required to pitch in and get sets ready when necessary; is paid on a weekly basis, works the same hours and enjoys the same benefits as other em- ployees; acts as a receptionist when at the switchboard near which she is located quite a bit of the time; is more responsible than others for watching this switch- board, has a working space in the area which she uses in getting out reports; she does not help the cameramen with inset work; sometimes engages in cheat acting; her main duty is on the switchboard where she sits at a desk but formerly had been a script girl; she comes to the studio and talks but most of the time is at the switch- board in the office; has no definite job connected with the studio; probably informs the sound recordist when the amplifier for the public address system in the front office is not working; does no sound work, property work, set design work; car- pentry work nor animation work; when she was a script girl she sounded clappers at the beginning of a take, and put something in the record; the set designer does not recall ever having seen her painting or doing any other work on, nor pushing a dolly on, a set; she now spends most of her time at the switchboard; when a script girl she located actors in their homes or agencies, kept some kind of a log, touched up actors with powder and took nonspeaking parts; writes letters at the re- quest of the prop man; she is carried on the daily time report as performing general office work; either she or Whitley or both, sometimes make out work schedules which are usually received by the mixer in the sound department from one of the office girls; she works with whomever is in the front office typing out the time reports, sometimes goes out on the floor as an actor and helps with making lunch, has been seen painting scenery, painting sets, and putting them together a couple of times and pushing dollies; formerly did all things pertaining to the work of a script girl; has done some slicing in the script department; telephones to locate properties and does some casting, helps in costuming actors; types out some letters of and for the producer; usually places telephone calls for the producer; works in the front office with the producer and Whitley; makes out time sheets; has helped out in the editorial department; spends 75 or 80 percent of her time in the front office; acts as a receptionist; has been seen operating the mixer on a sync take before she came to the front office; and it is intended to give more and as much purchasing work as possible to her. BAIRD-WARD PRINTING CO., INC. and NASHVILLE PRINTING PRESSMEN & ASSISTANTS' UNION No. 37, INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA, AFL. Case No. 10-CA- 1773. July N9,1954 Decision and Order On April 2, 1954, Trial Examiner Loren H. Laughlin issued his Intermediate Report in the above-entitled proceeding, finding that 109 NLRB No. 96.