Transfilm, Inc.

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vote for Local 66, International Brotherhood of Electrical Workers, AFL, they will be taken to have indicated their desire to be included in the unit now represented by Local 66, International Brotherhood of Electrical Workers, AFL, and the Regional Director conducting the election directed herein is instructed to issue a certification of results of election to such effect. In the event a majority vote for Local 968, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, AFL, they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director is instructed to issue a certification of representa- tives to Local 968, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, AFL, for such unit.' [Text of Direction of Election omitted from publication in this volume.] 6 The Intervenor and the Employer contend the Petitioner should not be allowed to appear on the ballot in the election directed among the residual group. We find no merit to this contention. The Board has in certain circumstances allowed such residual groups to constitute separate appropriate units. We do not believe the purposes of the Act would be effectuated in this situation by denying the employees the right to choose between the two representatives. Cf. Jordan Marsh Company, 85 NLRB 1503. TRANSFILM, INCORPORATED and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS & TECHNICIANS, CIO, PETrrIoNER. Case No. £-RC- 351 7. July 8, 1950 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Lloyd S. Greenidge, hearing officer 2 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 1 Herein called NABET. 2 International Photographers , Local No. 644 , herein called Local 644, Motion Picture Studio Mechanics Local No. 52, herein called Local 52, and Make-Up Artists and Hair Stylists Union, Local No. 798, herein called Local 798-all affiliated with International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, AFL, herein called IATSE-were permitted to intervene on the basis of their showing of interest. The hearing officer referred to the Board the Intervenors' motion to strike the testi- mony of John J. Wingerter, a witness called on behalf of NABET, who became 111 during the course of the hearing and could not return for cross-examination . We find merit in this contention and hereby grant the Intervenors' motion. 100 NLRB No. If. TRANSFILM, INCORPORATED 79 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act .3 4. NABET seeks a unit of all motion picture production employees. who work on location or set at the Employer's studios in New York City, including cameramen, assistant cameramen, electricians, assist- ant electricians, property men, assistant property men, sound men. assistant sound men, grips, assistant grips, carpenters, assistant carpen- ters, scenic designers, scenic artists, painters, apprentices, and studio chief; but excluding makeup artists, hair stylists, wardrobe employees, actors, directors, assistant directors, unit managers, animators, film editors, clerical employees, and all supervisors as defined in the Act' It would also exclude from the unit all employees at the Fox Studios in New York City when they are rented by the Employer. NABET asserts that the basis for the proposed unit is the integration of func- tions and the high degree of interchangeability in the operations of the Employer. The IATSE Unions and the Employer contend that the over-all unit sought by NABET is inappropriate and at variance with the established bargaining history in they motion picture industry as it contains a heterogeneous mixture of professionals, craftsmen, artists, manual laborers , technical, and clerical employees with divergent skills, abilities, and background.5 Alternatively, if the Board decides against dismissing the petition, the IATSE Unions take the position that separate elections should be conducted for two professional units-the cameramen 6 and sound men-and for a craft unit of elec- tricians.' They regard the property men as clerical employees who should be excluded from any residual unit established by the Board. i The Intervenors and the Employer contend that there is no question concerning repre- sentation because the employees in the unit proposed by NABET are engaged by the Employer, a New York City company, on a casual and sporadic basis from a wide and unlimited variety of sources and are therefore not permanent employees within the mean- ing of the Act. As many of the employees involved herein have sufficient continuity of employment to warrant holding an election , we find no merit in this contention (See paragraph numbered 5, infra. ) Accordingly , we find that the Intervenors were not preju- diced by the bearing officer 's rejection of their offer to prove that similar categories of employees in Hollywood are all distributed among certain unions and , in contrast to the practice in New York City, derive their livelihood from the motion picture industry alone. 4 There is no collective bargaining history for any of the employees in the proposed unit. However, the Employer has contracts for some of the categories not sought by NABET : (1) The Screen Cartoonists Local 1461 , Brotherhood of Painters , Decorators, and Paper Hangers of America, AFL, represents all animators, painters , and other employees in its animation department, (2) Motion Picture Film Editors , Local 771 , IATSE, represents all film editors, and (3 ) a projectionist's union represents the projectionists. Local 799, which made a showing for the makeup artists and hairdressers , withdrew its claim for these employees. However, if the Board decides in favor of such a unit, the intervening Unions desire to have the name of their parent organization , IATSE, on the ballot. During the course oft the hearing, it was also suggested by the IATSE Unions that cameramen are craft emliloyees 7 Local 644 desires to represent the cameramen ; Local 52, the units of sound men and electricians. - 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, if these employees or the grips, whom they consider to be manual laborers, are placed in a residual unit, Local 52 desires to be on the ballot for such a unite Regardless of the type of unit or units found appropriate by the Board, the IATSE Unions and the Employer would include therein all employees at the Fox Studios who work on films produced for the Employer. The Employer's Operations The Employer maintains its offices and studio in New York City and is engaged in the production of motion picture films principally for television commercials and also for use in industry and education. While a large part of this work is carried on at the Employer's studio, certain pictures are made on location. The Employer has a small permanent staff which includes a director, unit managers, art director and scenic designer, and studio chief. Although the staff generally hires employees to work on a single film by the day or week depending upon the duration of the job,' many employees whose work is satisfactory are recalled fairly regularly to produce other films. Most jobs require maximum crews consisting usually of a cameraman, assistant cameraman, electricians, three assistant electricians, a grip, two carpenters, a property man, and if sound is used, a boom man, a mixer-recorder, and apprentices 70 The film production process generally involves a number of tasks. The scenic designer and artist conceives the pictorial design for the picture and makes the scale drawings for the scenery to be used. On the basis of these sketches and drawings, the carpenters 11 and painters 12 construct and paint whatever scenery and sets are needed. As part of the preparation, the electricians are sometimes called in to "roughly" light the scenery in the acting area. The property men execute the script and pictorial conception for which they procure the necessary furnishings. They are also responsible for "dressing" or arranging the set with the assistance of the grips who move the heavy props and assemble scenery. Cameramen are engaged on shooting days at which time the crew works together in a single area under the director. The cameramen 8 The IATSE Unions further contend that all other unions-although not parties to this proceeding-who represent motion picture employees in the New York City area should be placed on the ballot for any other craft units found appropriate by the Board. This contention is entirely without merit in view of the Board's rule that unions which make no showing of interest are not entitled to appear on the ballot for any type of unit. 9 Most television commercials require 4 or 5 days preparation and 1 or 2 days for the actual shooting . The location jobs may take some weeks to complete 1° A small percentage of jobs involve the use of minimum crews composed of a cameraman, assistant cameraman , chief electrician and, if sound is involved , a sound man. 41 When the carpenters have finished their regular work , they are frequently called upon to act in the capacity of grips or electricians. "Most of the Employer 's painting is done by carpenters as few painters are employed by- the Employer. , TRANSFILM, INCORPORATED 81 make the decisions covering the lighting on the set, determine the exposure at which a film is to be shot, and then shoot the scene. They are familiar with all types of cameras, have a high degree of "artistic value," and know how to achieve the desired effects or moods. The assistant cameramen help the cameramen by performing many me- chanical tasks including assembling the camera with the necessary accessories, loading the magazine, and threading the film. In addition, they set the lens for the exposure designated by the cameramen and "follow the focus," i. e., revolve the lens for certain types of moving shots to keep the picture in focus. The electricians aided by their assistants assemble the lights on the set, connect them to a source of current, turn them on, and focus and adjust them. On occasion they also look through the view finder of the camera to see whether a light stand has been moved sufficiently out of the frame or whether a glare has to be eliminated. The sound men, most of whom are also known as recordists or mixers, operate the recording equipment. They set up the equipment, load it with magnetic tape, take voice levels from the studio through the microphone, mix the sound to obtain the proper volume and tonal quality, and check to exclude certain extraneous noises. The boom men set the microphone in place and keep it in proper relationship to the actor when there is movement during the shot. The apprentices are general all-around helpers, who drive trucks, run errands, and in the course of the day assist such employees as property men, carpenters, grips, electricians, or cameramen. How- ever, certain apprentices may spend more time with particular cate- gories than with others.13 At the conclusion of the shooting, the scenery is dismantled by the grips, rented props are returned, and the studio is cleared for the next job. The Appropriate Unit From the above it appears that the Employer's employees have occasion to perform tasks outside their job of the day. The record further discloses that many employees who work for the Employer often shift from one category to another. Accordingly, some em- ployees have occupied within the space of about a year or less from two to four different positions including those of grip, carpenter, elec- trician, assistant electrician, and property man. The cameramen are the only employees who confine themselves exclusively to one type of work. On the basis of these facts, we find, with the exceptions noted below, that the employees sought by NABET have a sufficient community of interest to warrant their inclusion in a single over-all unit. The 13 Although the apprentices are given no special prescribed courses of training in specific fields, they may gradually acquire sufficient knowledge to ultimately qualify as assistants and full-fledged employees 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intervenors' motion to dismiss the petition on opposing grounds is hereby denied. Sound men and electricians . As noted above, these employees as well as other employees in the unit perform tasks outside their spe, cialty of the day, often move from one job to another , and in general work as an integrated group. Moreover, neither the Employer nor other motion picture companies in the New York City area have bargained for separate units of sound men and electricians, and Local 52's request for such units is at variance with its practice of custom- arily bargaining for units of sound men , property men, electricians, and grips. We find therefore that the sound men and electricians are not entitled to individual units 14 and we shall include them in the over-all unit. Cameramen. Local 644 has many years bargained for cameramen with motion picture companies in the New York City area. As the cameramen are highly skilled technical employees , who do not inter- change with other employees, and have historically been recognized in the motion picture industry as an independent bargaining group, we find, in accordance with the request of Local 644 , that the camera- men and assistant cameramen may constitute a separate unit of tech- nical employees.15 Employees of Fox Studios. As indicated above, the parties dis- agree as to whether the individuals who work at the Fox Studios on films for the Employer are employees of the Employer . When the Employer uses the Fox Studios for producing films, the Employer has its own director and cameramen . The other crew members are usually selected by the Employer from a list furnished by the Fox Studios but the Employer also selects employees from outside that list. The Employer's director is in charge of the crew and has the authority to discharge any member thereof and to engage a replace- ment. The employees are paid by the Fox Studios . While the Fox Studios handles the social security and wi 6hholding taxes as well as New York State Workmen's Compensation payments , the Employer reimburses Fox Studios for its outlay . As it appears that the Em- ployer's director has the power to hire and discharge the employees who work at the Fox Studios producing films for the Employer, we find that they are employees of the Employer 18 and we shall place them in the voting groups described below. Robert Hart and Samuel Roberts. NABET desires the inclusion of Robert Hart and Samuel Roberts who are members of the Em- 14 There is no evidence to support the contention that the sound men are professional employees. II In view of this determination, we find it unnecessary to pass upon the contention that the cameramen are professional or craft employees. 11 American Broadcasting Company, Inc., et at., 96 NLRB 815. TRANSFILM, INCORPORATED 83 player's permanent staff. The Employer and the IATSE Unions would exclude them as supervisors under the Act 17 As studio chief Hart `is responsible for. the care and maintenance of the studio. He also interviews applicants for jobs as carpenters, electricians, grips, and apprentices, and his recommendations as to hiring, recall of employees, and assignments are generally followed by Petroff. In the absence of Petroff, which is about half the time, Hart directs these employees -and sees to it that their work schedule is carried out. When Petroff is present, Hart and he sometimes each direct the work of half of these employees. In his capacity as chief property man, Roberts hires and fires assistant property men. For about 3 months a year Roberts also takes over virtually all of Unit Manager Frankel's duties which include working with the director and hiring certain employees including cameramen and sound men. In view of the fore- going, we find that Hart and Roberts are supervisors under the Act and we shall therefore exclude them from the unit. Accordingly, we find that the following voting groups may con- stitute a single appropriate unit or two separate appropriate units : 1. All motion picture production employees who work on location or set at the Employer's studio in New York City and: at the Fox Studios on films for the Employer, including electricians, assistant electricians, property men, assistant property men, sound men, assist- ant sound men, grips, assistant grips, carpenters, assistant carpenters, scenic artists, painters, and apprentices; but excluding cameramen, assistant cameramen, makeup artists, hair stylists, wardrobe em- ployees, scenic designer,"' actors, directors, assistant directors, unit managers,19 animators, film editors, clerical employees, studio chief, and all supervisors as defined in the Act. 2.' All cameramen and assistant cameramen including those who work on location or set at the Employer's studio in New York City and at the Fox Studios on films for the Employer. If a majority of the employees in both voting groups select NABET, they will be taken to have indicated their preference for a single bar- gaining unit and the Regional Director conducting the elections directed herein is instructed to issue a certificate of representatives to NABET for such unit which the Board in that event finds to be ap- propriate for purposes of collective bargaining. In the event a majority of the employees do not select NABET in both of the voting groups, but do select NABET, IATSE, or Local 644 in either voting 1'',The parties agree and we find that the othev' members of the staff should be excluded from the unit as supervisors : Director Rothenberg, Unit Managers Frankel and Seltzer, and Art ,Director and Scenic Designer Petroff IsPetroff, whom we have found above is a supervisor, is the only individual in this category 19 See discussion , supra, regarding Samuel Roberts. 227260-53-vol 100--7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group, the employees will be taken to have indicated their preference for separate bargaining units, and the Regional Director is instructed to issue a certification of representatives to NABET, IATSE, or Local 644, as the case may be, for the separate unit or units in question which the Board finds in such circumstances to be appropriate for purposes of collective bargaining. 5. NABET would base voting eligibility on a minimum of 6 days' employment during the 1-year period, or alternately, the 6-month period preceding the election. The Employer would require 1 day's employment in a period of not less than 3 months or more than 6 months before. the election, and the Intervenors would limit the period to the 3 months preceding the Direction of Elections. We believe that a single day's employment is too casual to establish the bargaining interest of a prospective voter. Therefore, we shall follow the formula established for single employer motion picture units in the Television Film Producers Association case.20 Accordingly, all employees who have had two or more days of employment with the Employer during the 9-month period immediately preceding the date of this Decision and Direction of Elections, shall be eligible to vote in the election.' [Text of Direction of Elections omitted from publication in this volume.] CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Elections. 20 93 NLRB 929. See also American Broadcasting Company, Inc., et at., supra, and Audio Products, Inc., et al., 2-RC-2795, not reported in the printed volumes of the Board's decisions. 'n NABET requests the Board to reexamine the showing of the Intervenors in the light of whatever eligibility formula is adopted by the Board . We have repeatedly held that show- ing of interest is an administrative matter . Moreover, we are satisfied that the Inter- venors' showing is adequate. J. J. NEWBERRY COMPANY and LOCAL No. 328, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., PETITIONER. Case No. 18-RC-1450. July 91190 Decision and Certification of Representatives Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on April 4, 1952, under the direction and supervision of the Regional Director for the Eighteenth Region, among the employees in the stipulated unit. Thereafter, a tally of ballots was furnished the parties. The tally showed that of 100 NLRB No. 21.