Vitagraph, Inc.

In the Matter Of VITAGRAYH, INC. and ,AMERICAN, FEDERATION, OF' LABOR Case No. R-3748.-Decided May 86,_1942 Jurisdiction : motion picture distributing industry. Investigation and Certification of Representatives : existence of question: failure to prove majority; election necessary. Unit Appropriate for Collective Bargaining : all, office employees at the Com- pany`s St. Louis film exchange, excluding the office manager, branch manager, district manager, outside salesmen, the janitor, back-room employees, bookers, and confidential secretaries. Mr. Harold Berkowitz, of New York City, for the Company. Mr. E. P. Theiss, of St. Louis, Mo., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TILE CASE Upon' petition duly filed by American Federation of Labor, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Vitagraph, Inc., St. Louis, Missouri; herein called the Company, the National Labor Relations Board provided for an appropriate hearing; upon due notice 1 before Jack G. Evans, Trial Examiner. Said hearing was held at St. Louis, Missouri, on April 16, 1942. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing counsel for the Company moved to dismiss the petition. The Trial Ex- aminer reserved his ruling. The motion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On May 12, 1942, the-Company filed a brief which the Board has considered. i At 'the same time the Board consolidated this proceeding with seven other cases. On April 7, 1942, the Board issued an order severing this case from the others. 41 N. L. R. B., No. 65. 310 VITA'GRAPH, INC. 311 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Vitagraph, Inc. is a New York corporation with its principal office at New York City. It is a wholly owned subsidiary of Warner Bros. Pictures, Inc. We are here concerned with the St. Louis film exchange of the ' Company where it is engaged in the distribution of motion pictures. During its fiscal year ending August 31, 1941, the St. Louis exchange of'the Company handled approximately 300 prints of feature pictures and about 312 prints of short subjects.' All the prints distributed at the St. Louis film exchange'are shipped to it from outside Missouri. During the same period, the St. Louis film exchange received approximately $780,000 in fees, about 22 per- cent of which was received from exhibitors outside Missouri. i H. THE ORGANIZATION INVOLVED American Federation of Labor is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION During December 1941 the Union presented a proposed contract to the Company. The Company replied stating that it had no knowledge of the Union's claim to a majority. A statement of the Trial Examiner, read into evidence during the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found to be appropriate .2 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and, Section 2 (6) and (7) of the National Labor Relations Act. IV. THE APPROPRIATE UNIT The Union urges that all office employees at the St. Louis film exchange of the Company, including bookers and confidential secre- taries, but excluding i the branch manager, office manager, district manager, outside salesmen, janitor, and back-room employees,8 con- stitute an appropriate unit. The only controversy with respect to the unit concerns bookers and confidential secretaries. The Union z The Trial Examiner reported that the Union presented 14 authorization cards bearing apparently genuine signatures of persons whose names appear on the Company's pay roll of April 16, 1942. There are 23 employees on that pay roll. The back-room employees are presently covered by a contract between the Company and another labor organization affiliated with the American Federation of Labor. 312 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD urges that such employees be'included in the unit, and the Company that they be excluded. The Company contends that the duties of the bookers are similar to those of the salesmen, who are excluded from,the unit by agree- ment of the parties. Bookers contact motion picture exhibitors-by mail, telephone, or in the Company's offices and attempt to, sell motion pictures to them. They participate in "drive money" and "bonus money" campaigns conducted by the Company and receive the same percentage of the allotted money as the salesmen. The salary of the bookers is about 40 percent higher than that of the other office em- ployees. Under the circumstances, we shall exclude the bookers from the unit. The branch manager and district manager each have a confidential secretary. The Company contends that such employees be excluded from the unit because of the confidential nature of their duties. These employees, among other duties take dictation and file cor- respondence dealing with personnel problems. We shall exclude the confidential secretaries from the unit. We find that all office employees at the St. Louis film exchange of the Company, excluding the office manager, branch manager, dis- trict manager, outside salesmen, the janitor, back-room employees, bookers, and confidential secretaries, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Sec- tion 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. 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 Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes, of collective bargaining with Vitagraph, Inc., St. Louis, Missouri, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the VITAGRAPH, INC. 313 Regional Director for the Fourteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the em- ployees in the unit found appropriate in Section IV above, who were employed during the pay-roll period immediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by American Federation of Labor for the purposes of collective bargaining.