R. K . O. Radio Pictures, Inc.

In the Matter of R. K . O. RADIO PICTURES, INC. and AMERICAN FEDERATION OF LABOR Case No. R-3742.-Decided May 27, 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 Company's St. Louis film exchange, excluding the office manager, branch manager, outside salesmen, porters, back room employees ; no dispute as to ; bookers and confidential secretaries excluded over objection of union. Mr. Irving Moross, 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 THE CASE Upon petition duly filed by American Federation of Labor, herein called the Union, alleging that a question affecting coommeree had arisen concerning the representation of employees of R. K. O. Radio Pictures, Inc., St. Louis, Missouri, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice,' before Jack G. Evans, Trial Examiner. Said hear- ing was held at St. Louis, Missouri, on April 17, 1942. The Com- pany 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 Examiner 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 13, 1942, the Company filed a brief which the Board has considered. '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. 77. 365 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIIE COMPANY R. K. 0. Radio Pictures, Inc., is a Delaware corporation with its principal office at New York City. 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 290 prints of feature pictures and about 115 reels 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 over $150,000 in fees, about 30 percent of which was received from exhibitors outside Missouri. II. 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 knowl- edge 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 ex- change of the Company, including bookers and confidential secre- taries, but excluding the branch manager, office manager, outside sales- men, porters, and back room employees,3 constitute an appropriate unit. The only controversy with respect to the unit concerns bookers 2 The Trial Examiner reported that the Union presented nine authorization cards bear- ing apparently genuine signatures of persons whose names appear on the Company's pay roll as of April 17, 1942 . There are 11 employees on that pay roll. s The back room employees are presently covered by a contract between the Cnm.parly and another labor organization affiliated with the American Federation of Labot. R. K. 0. RADIO PICTURES, INC. 367 and, confidential secretaries. The Union urges that such employees be included in the unit, and the Company that they may 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 employees. Under the circumstances, we shall exclude the bookers from the unit. The branch manager and office manager each have a confidential secretary. The Company contends that such employees should be excluded from the unit because of the confidential nature of their duties. These employees among other duties, take dictation and file correspondence 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, out- side salesmen, porters, back room employees, bookers, and confidential secretaries, constitute a unit appropriate for the purposes of col- lective bargaining, within the meaning of Section 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 employees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion 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 R. K. O. Radio Pictures, 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 Regional Director for the Fourteenth Region, acting in this 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roil 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 col- lective bargaining.