Fleischer Studios, Inc.

In the Matter Of FLEISCHER STUDIOS, INC. and COMMERCIAL ARTISTS & DESIGNERS UNION-AMERICAN FEDERATION OF LABOR Case No. R-160.-Decided August 3, 1937 Film Industry-Investigation of Representatives : controversy concerning rep- resentation of employees : refusal by employer to recognize union as exclusive representative-Strike: caused by employer's refusal to recognize and bargain with union-Unit Appropriate for Collective Bargaining : production employees; functional coherence ; occupational differences ; eligibility for membership in only organization among employees-Election Ordered-Certification of Representatives. Mr. Lester M. Levin for the Board. Mr. Louis Nizer, of Phillips and Nizer, New York City, for the Company. Mr. Martin Popper, of New York City, for the Union. Mr. Richard J. Hickey and Mr. Henry W. Lehmann, of counsel to the Board. DECISION STATEMENT OF TIIE CASE On May 3, 1937, Commercial Artists and Designers Union, Local No. 20329, herein called the Union, filed with the Regional Director for the Second Region (New York, New York) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of the production employees engaged in the production of animated motion pictures in the studios of Fleischer Studios, Inc., herein called the Company, located at 1600 Broadway, New York, New York, and requesting the National Labor Relations Board, herein called the Board, to conduct an investigation pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 24, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3 of National Labor Relations Board Rules and Regulations-Series 1, as amended, authorized the Regional Director to conduct an investigation and to provide for an appropriate hearing. On June 3, 1937, the Regional Director issued a notice of a hearing to be held at New York, New York, on June 10, 1937, copy of which was duly served upon the 207 208 NATIONAL LABOR RELATIONS BOARD Company. The hearing was adjourned to June 16, 1937, in accord- ance with an oral notice of adjournment agreed to by counsel. Pursuant to the notice of hearing and notice of adjournment, a hearing was held at New York, New York, on June 16 and 17, 1937, before H. R. Korey, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evi- dence bearing on the issues was afforded all parties . The Board has reviewed the Trial Examiner's rulings upon the Company's motions and objections and finds that no errors were committed . Such rul- ings are hereby affirmed. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Fleischer Studios, Inc. is a New York corporation, having its principal office and place of business in New York, New York. The Company produces and sells animated motion picture cartoons, namely, the Betty Boop series, the Pop Eye series, Color Classics and Screen Songs. The Company has several registered trade marks for use in interstate commerce. Since its incorporation about seven years ago , the Company, each year, has entered into a written contract with Paramount Pictures Inc. whereby the latter has purchased the Company's animated mo- tion picture cartoons and has been the exclusive distributing agency for the Company. During 1936, the Company produced 36 animated motion picture cartoons for Paramount Pictures Inc., which dis- tributed them to motion picture theatres throughout the United States and foreign countries . Fifteen per cent of the animated mo- tion picture cartoons consisted of colored films, which were shipped without the State of New York to the Technicolor Company located in Hollywood, California, for further processing before being de- livered to Paramount Pictures Inc. The principal raw materials used by the Company are paper, pencils, paints, celluloid, and motion picture film. In 1936, the -sum of $15,000 was expended for such raw materials, of which about $4,000 was spent for celluloid purchased and shipped from the Jersey Products Company, located in Newark, New Jersey. The Company's annual sales, for 1936, were approximately $500,000. As of April 30, 1937, 142 employees were employed by the Com- pany in the artistic production of the animated films, consisting of the animation, background, in-between, timing, planning, coloring DECISIONS AND ORDERS 209 and opaquing, and inking departments. There were 53 employees of the Company in the story, camera, music, clerical, and maintenance departments.' II. THE UNION Commercial Artists and Designers Union, Local No. 20329, is a labor organization admitting to membership 2 all production em- ployees of the Company except supervisory, story, camera, music, clerical, and maintenance employees. There are approximately 400 members in the Union who are engaged in all phases of designing in the advertising, textile, fashion, and industrial fields. It is a local union affiliated with the American Federation of Labor and confined to the geographical limitations of New York, New York. The Union claims to represent a majority of the Company's pro- duction employees. III. THE APPROPRIATE UNIT In its petition the Union alleged that the production employees, that is, all of the Company's employees except supervisory, story, music, camera, clerical, and maintenance employees, constitute a unit appropriate for the purposes of collective bargaining. The Union contended that, if an election is ordered by the Board, it should be conducted on the basis of such unit. On the other hand, the Company contended that the animation department employees constitute a unit appropriate for the pur- poses of collective bargaining separate and distinct from the re- mainder of the production employees, and that if an election is ordered such department employees should be voted separately from the remainder of the production employees. In support of its conten- tion that the animation department employees constitute an appro- priate unit, the Company advanced the following reasons: (1) These employees are the most skilled employees in the studio and are, generally, under written contract due to competition in the in- dustry for their services; (2) "The animator is the artist, whereas the others are artisans." The animator is the creative artist who is able to visualize scenes, direct, act, write poetry, and do the work of the remaining production employees; (3) these employees, as a group, receive higher wages than any other group of the remaining production employees, and, in some cases, they receive screen credit; (4) a communication," dated June 15, 1937, addressed to the Board, and signed by 29 animators and assistant animators, requested that ' Board's Exhibit No 1-Pay roll of April 30, 1937. 2 Board's Exhibit No. 3-Constitution and By-Laws of Union 8 Company's Exhibit No. 1. 210 NATIONAL LABOR RELATIONS BOARD they be considered a separate unit appropriate for the purposes of collective bargaining. However, other considerations urge us to the view, as contended by the Union, that all of the production employees, including the animation department employees, except supervisory, story, music, camera, clerical, and maintenance employees, constitute one single unit appropriate for the purposes of collective bargaining. The evidence showed that all production employees of the Com- pany are usually required, at the time they apply for positions, to submit proof of their artistic ability and are hired because of such ability. The production employees invariably commence work in the opaquing or coloring department and advance through the various departments to the animation department. A witness for the Union testified that 24 or 25 of the present animators have advanced from the opaquing department to the animation department, in which there are 35 animators and assistant animators. The Com- pany admitted that 15 to 20 animators were given such advance- ment. The testimony further indicated that, since 1936, eight of the in-between department employees were promoted to the animation department. The artistic ability of the production employees is a necessary part of their successful performance. As a result of the specialized and distinctive training and experience obtained by such employees, many of them are capable and fitted to advance within a reasonable period of time to the animation department. In the artistic production of an animated motion picture cartoon, the functions of animation, background; in-between, planning, opa- quing and coloring, and inking departments are combined in a highly integrated fashion. Each department in turn contributes its share of work to the finished film. Every individual department cooper- ates fully with every other one in the artistic development of the completed product. They depend upon the ability of each other and work closely together. Although the animators and assistant animators, as a group, re- ceive higher wages than any other group of production employees, the Company admitted that the employees in the timing department received as high if not higher wages than the assistant animators, and that the employees in the background department received higher wages than several assistant animators. All production employees are employed on a weekly salary basis rather than on an hourly salary basis. The animation department employees are eligible for membership in the Union. The aforesaid communication dated June 15, 1937, signed by 29 of the animators and assistant animators, was prepared by the Company's counsel, and the signatures of the employees were ob- DECISIONS AND ORDERS 211 tamed by Buckwald, the Company's assistant treasurer, the day before the hearing in this case, when he called them in as a group and suggested that they sign the letter. Under these circumstances, we cannot give the letter any weight. The record shows that there are 13 production employees engaged in supervisory capacities; one head supervisor, six group supervisors in the animation department, and one supervisor in the background, in-between, timing, planning, coloring and opaquing, and inking departments, respectively. Their duties involve in part the assign- ment of work to the different employees in their respective depart- ments, the safe-keeping of production records, and the checking on the work performed in their respective departments. The manage- rial responsibility for the animated motion picture cartoon, upon which the group or department is working under their general direc- tion, rests on them. We find that the 13 production employees who also have supervisory duties should not be included in the unit. The interdependence and functional coherence of the various de. partments engaged in the artistic production of films, the eligibility of all production employees in the studio, with certain reservations herein stated, to membership in the Union, the opportunity for ad- vancement given to trained and experienced employees, all compel us to take the view that the production employees, including animators and assistant animators, but excluding employees with supervisory duties, and story, music, camera, clerical, and maintenance employees, constitute a unit appropriate for the purposes of collective bargain- ing. In order to insure the Company's production employees the full benefit of their right to self-organization and collective bargain- ing, and otherwise to effectuate the policies of the Act, we find that all of the Company's production employees, including animators, and assistant animators, but excluding employees with supervisory duties, story, music, camera, clerical, and maintenance employees, constitute a unit appropriate for the purposes of collective bargaining. IV. QUESTION CONCERNING REPRESENTATION About March 1937, the Union began a campaign for membership in its organization among the employees of the Company. Dur- ing the following month and the early part of May 1937, the Union unsuccessfully attempted to gain recognition by the Company as the exclusive representative of its production employees for the purposes of collective bargaining. The Company's refusal to recognize the Union as such exclusive representative resulted in a strike being called on May 7, 1937, and in the filing of the petition in this case. We find that a question has arisen concerning the representation of the production employees employed by the Company. 212 NATIONAL LABOR RELATIONS BOARD V. THE EFFECT OF THE QUESTION OF REPRESENTATION ON COMMERCE The Company waived any objection to the Board's jurisdiction. We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and has led and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce . We further find that this question can only be resolved by means of an election by secret ballot. VI. CONDUCT OF ELECTION The pay roll date to be used for the purpose of election shall be April 30, 1937. As of that date, the Company employed 195 em- ployees, of whom 142 employees were engaged in the artistic produc- tion of films. We find that Miss M. Schwartz , who is listed on said pay roll as an employee of the timing department , is a clerical em- ployee not entitled to vote herein . The 15 striking employees, whose discharges by the Company are alleged to be due to their union activity and whose case is now before us , shall be entitled to vote, but their ballots shall be kept segregated. Whether their votes shall be counted , will depend upon our ultimate decision in the complaint case based on their charge. However, if the 15 votes are not neces- sary for the determination of the election , they shall be destroyed. If they will determine the election herein, then they will or will not be counted depending upon our final decision in said case. CONCLUSIONS OF LAW Upon the basis of the above findings of fact, the Board makes the following conclusions of law: 1. All production employees of Fleischer Studios, Inc., including animators and assistant animators, but excluding employees with supervisory duties, story , music, camera, clerical, and maintenance em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 2. A question affecting commerce has arisen concerning the repre- sentation of the employees in the aforesaid unit, within the meaning of Section 9 (c) and Section 2, subdivisions ( 6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- I DECISIONS AIN'D ORDERS 213 tions Act, 49 Stat. 449, and pursuant to Article III, Section 8 of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Fleischer Studios, Inc., an election by secret ballot shall be conducted within 15 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Section 9 of said Rules and Regulations, among all of the production employees of Fleischer Studios, Inc. on its pay roll of April 30, 1937, including animators and assistant anima- tors, but excluding employees with supervisory duties, and story, music, camera, clerical, and maintenance employees, to determine whether they desire to be represented by Commercial Artists and Designers Union, Local No. 20329 for the purposes of collective bargaining. [ SAME TITLE] , CERTIFICATION OF REPRESENTATIVES September 10, 1937 On May 3, 1937, Commercial Artists and Designers Union, Local No. 20329, herein called the Union, filed with the Regional Director for the Second Region (New York, New York) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of the production employees engaged in the production of ani- mated motion pictures in the studios of Fleischer Studios, Inc., herein called the Company, located at 1600 Broadway, New York, and re- questing an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 24, 1937, the National Labor Re- lations Board, herein called the Board, acting pursuant to Article III, Section 3 of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered the Regional Director to con- duct an investigation and to provide for an appropriate hearing. On June 3, 1937, the Regional Director issued a notice of hearing to be held at New York, New York, on June 10, 1937. The hearing was adjourned to June 16, 1937, in accordance with an oral notice of adjournment agreed to by counsel. Pursuant to the notice of hearing and notice of adjournment, a hearing was held at New York, New York, on June 16 and continued on June 17, 1937, before H. R. Korey, the Trial Examiner duly 49446-38-vol 11i-15 214 NATIONAL LABOR RELATIONS BOARD designated by the Board. The Board, the Company, and the Union were represented by counsel and participated in the hearing. On August 3, 1937, the Board issued a decision in which it found that a question affecting commerce had arisen concerning the rep- resentation of the production employees of Fleischer Studios, Inc., and that all such production employees, including animators and assistant animators, but excluding employees with supervisory duties, story, music, camera, clerical, and maintenance employees, constitute a unit appropriate for the purposes of collective bargaining in re- spect to rates of pay, wages, hours of employment, and other con- ditions of employment, and that the question concerning representa- tion could only be resolved by means of an election by secret ballot. In its decision the Board directed that an election be held among such employees to determine whether they desired to be represented by Commercial Artists and Designers Union, Local No. 20329, for the purposes of collective bargaining. The decision also states : The 15 striking employees, whose discharges by the Com- pany are alleged to be due to their union activity and whose case is now before us, shall be entitled to vote, but their ballots shall be kept segregated. Whether their votes shall be counted, will depend upon our ultimate decision in the complaint case based on their charge. However, if the 15 votes are not neces- sary for the determination of the election, they shall be de- stroyed. If they will determine the election herein, then they will or will not be counted depending upon our final decision in said case. On August 10, 1937, counsel for the Company requested the Board to postpone the election pending an appeal by the Company to the courts, and advised the Board that it would not participate or co- operate in the holding of an election pending such appeal.. On Au- gust 12, 1937, the Board notified counsel for the Company that, after careful consideration of such request, it had nevertheless directed the Regional Director for the Second Region to proceed with the election in accordance with its decision. Pursuant to the Board's decision, an election by secret ballot was conducted on August 16, 1937, by the Regional Director for the Second Region among the employees of the Company constituting the bargaining unit found appropriate by the Board. On August 18, 1937, the Regional Director issued and duly served upon the parties to the proceeding her Intermediate Report on the ballot. No exceptions to the Intermediate Report have been filed by any of the parties. DECISIONS AND ORDERS 215 As to the results of the secret ballot the Regional Director reported : Total number eligible_______________________________________ 129 Total number cast________ __________________________________ 74 Total number counted____ __________________________________ 60 Total number of ballots cast for Union______________________ 60 Total number of ballots cast against such Union______________ 0 Total number of blank ballots______________________________ 0 Total number of void ballots________________________________ 0 Total number of challenged ballots_____ _____________________ 0 Ballots cast by dismissed workers, which in accordance with the Board's decision, are not to be counted________________ 14 Inasmuch as the Union has received 60 votes in the election of those which were counted and none of the counted votes were cast against it, the 14 ballots of the discharged employees, regardless of a subsequent determination as to the eligibility of such employees, cannot determine the election, and these ballots must, therefore, be destroyed in accordance with the Decision issued on August 3, 1937. If the 14 votes are riot counted, the Union will have received 60 out of 115 eligible votes, or a majority from among the employees eligible to vote. If the 14 votes are counted, the Union will have received 60 of the 74 votes cast from among the 129 eligible em- ployees, or a majority of the votes in an election participated in by a majority of the eligible employees. Commercial Artists and Designers Union, Local No. 20329, having been selected by a majority of the production employees of Fleischer Studios, Inc., including animators and assistant animators, but ex- cluding employees with supervisory duties, and story, music, camera, clerical and maintenance employees, as their representative for the purposes of collective bargaining, is, by virtue of Section 9 (a) of the Act, the exclusive representative for the purposes of collective bar- gaining of all of such employees, and we will so certify it. Now, THEREFORE , by virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8 of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Commercial Artists and Designers Union, Local No. 20329, has been selected by a majority of the pro- duction employees of Fleischer Studios, Inc., including animators and assistant animators, but excluding employees with supervisory duties, and story, music, camera, clerical and maintenance employees, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the National Labor Relations Act, 216 NATIONAL LABOR RELATIONS BOARD Commercial Artists and Designers Union, Local No. 20329, is the exclusive representative of all of such employees of Fleischer Studios, Inc., for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , and other conditions of employ- ment. [SAME TITLE ] CERTIFICATION OF REPRESENTATIVES October 8, 1937 On May 3, 1937, Commercial Artists and Designers Union, Local No. 20329, herein called the Union , filed with the Regional Director for the Second Region (New York, New York ) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of the production employees engaged in the production of animated motion pictures in the studios of Fleischer Studios, Inc., herein called the Company, located at 1600 Broadway, New York, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor 'Relations Act, 49 Stat. 449, herein called the Act. On May 24, 1937 , the National Labor Relations Board, herein called the Board, acting pursuant to Article III, Section 3 of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the Regional Di- rector to conduct an investigation and to provide for an appro- priate hearing. On June 3, 1937 , the Regional Director issued a notice of hearing to be held at New York, New York, on June 10, 1937. The hearing was adjourned to June 16, 1937, in accordance with an oral notice of adjournment agreed to by counsel. Pursuant to the notice of hearing and notice of adjournment, a hearing was held at New York, New York, on June 16 and continued on June 17, 1937, before H. R. Korey, the Trial Examiner duly desig- nated by the Board. The Board , the Company, and the Union were represented by counsel and participated in the hearing. On August 3, 1937, the Board issued a Decision in which it found that a question affecting commerce had arisen concerning the repre- sentation of the production employees of Fleischer ' Studios, Inc., and that all such production employees, including animators and assistant animators, but excluding employees with supervisory duties, story, music, camera, clerical , and maintenance employees , consti- tute a unit appropriate for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , and other con- ditions of employment, and that the question concerning representa- DECISIONS AND ORDERS 217 tion could only be resolved by. means of an election by secret ballot. In its decision the Board directed that an election be held among such employees to determine whether they desired to be represented by Commercial Artists and Designers Union, Local No. 20329, for the purposes of collective bargaining. The Decision also states : The 15 striking employees, whose discharges by the Company are alleged to be due to their union activity and whose case is now before us, shall be entitled to vote, but their ballots shall be kept segregated. Whether their votes shall be counted, will depend upon our ultimate decision in the complaint case based on their charge. However, if the 15 votes are not necessary for the determination of the election, they shall be destroyed. If they will determine the election herein, then they will or will not be counted depending upon our final decision in said case. On August 10, 1937, counsel for the Company requested the Board to postpone the election pending an appeal by the Company, to the courts, and advised the Board that it would not participate or cooper- ate in the holding of an election pending such appeal. On August 12, 1937, the Board notified counsel for the Company that, after careful consideration of such request, it had nevertheless directed the Re- gional Director for the Second Region to proceed with the election in accordance with its decision. Pursuant to 'the Board's decision, an election by secret ballot was conducted on August 16, 1937, by the Regional Director for the Second Region among the employees of the Company constituting the bargaining unit found appropriate by the Board. On September 7, 1937, the Regional Director duly served upon the parties to the proceeding her Intermediate Report on the ballot. On September 10, 1937, the Board issued a Certification of Representatives in which it certified Commercial Artists and Designers Union, Local No. 20329, as the exclusive representative of the production employees of the Company, including animators and assistant animators, but excluding employees with supervisory duties, and story, music, cam- era,' clerical, and maintenance employees, for the purposes of col- lective bargaining. On September 11, 1937, counsel for the Company filed objections, to the Intermediate Report with the Regional Director, pursuant to Article III, Section 9 of National Labor Relations Board Rules and Regulations-Series 1, as amended. Sub- sequently, on September 23, 1937, the Board notified counsel for the Company that inasmuch as five days had not elapsed from the date when the Intermediate Report was served to the date of the Certifi- cation, as required pursuant to Article III, Section 9 of such Rules and Regulations, the Company was granted five days from the date 218 NATIONAL LABOR RELATIONS BOARD of such notification within which to file any additional objections. No other objections were filed. The Board has given careful con- sideration to the objections of the Company and finds that no substantial and material issues with respect to the conduct of the ballot or the Intermediate Report are raised thereby. This Certifi- cation of Representatives supersedes the Certification, dated Sep- tember 10, 1931, which is hereby revoked. As to the results of the secret ballot the Regional Director reported : Total number eligible___________________________________________ 129 Total number cast--------------------------------------------- 74 Total number counted __________________________________________ 60 Total number of ballots cast for Union ------------------------ 60 Total number of ballots cast against such Union __________________ 0 Total number of blank ballots__________________________________ 0 Total number of void ballots____ _______________________________ 0 Total number of challenged ballots______________________ ________ 0 Ballots cast by dismissed workers, which in accordance with the Board's decision , are not to be counted ________________________ 14 Inasmuch as the Union has received 60 votes in the election of those which were counted and none of the counted votes were cast against it, the 14 ballots of the discharged employees, regardless of a subsequent determination as to the eligibility of such employees, cannot determine the election, and these ballots must, therefore, be destroyed in accordance with the decision issued on August 3, 1937. If the 14 votes are not counted, the Union will have received 60 out of 115 eligible votes, or'a majority from among the employees elig- ible to vote. If the 14 votes are counted, the Union will' have received 60 of the 74 votes cast from among the 129 eligible employees, or a majority of the votes in an election participated in by a majority of the eligible employees. Commercial Artists and Designers Union, Local No. 20329, having been selected by a majority of the production employees of Fleischer Studios, Inc., including animators and assistant animators, but excluding employees with supervisory duties, and story, music, camera, clerical and maintenance employees, as their representative for the purposes of collective bargaining, is, by virtue of Section 9 (a) of the Act, the exclusive representative for the purposes of col- lective bargaining of all such employees, and we will so certify it. Now, THEREFORE, by virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8 of National Labor Relations Board Rules and Regulations-Series 1, as amended, DECISIONS AND ORDERS 219 IT Is HEREBY cERTIFIm that Commercial Artists and Designers Union, Local No. 20329, has been selected by a majority of the production employees of Fleischer Studios, Inc., including animators and assistant animators, but excluding employees with supervisory duties, and story, music, camera, clerical and maintenance employees, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the National Labor Relations Act, Commercial Artists and Designers Union, Local No. 20329, is the exclusive representative of all of such employees of Fleischer Studios, Inc., for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.