United Productions of America

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an integral part of its farm equipment operations. As the Board has previously found that 5-year contracts cover a substantial part of the farm equipment -industry and are reasonable for their term, we find that the instant contract is reasonable and a bar to a present determination of representatives. We shall, therefore, dismiss the petition.3 [The Board dismissed the petition.] CHAIRMAN FARMER, concurring : I agree to dismiss this petition on the ground of contract bar. For the reason stated in my dissenting opinion in Republic Aviation Corp., 109 NLRB 569, I reject the "substantial part of the industry" test as the permanent rule for determining whether or not a particular contract is a bar to an election. Nevertheless, while I stated in that opinion that I would adopt a flat 2-year rule, I now feel that the question of what should be the proper standard for determining the maximum period for which a contract should be recognized as a bar to an election is one which deserves further study and consideration before a final decision is made. I also believe that the problem is of sufficient national importance that the Board should entertain pro- posals from both labor and management before instituting a permanent rule. In the meantime, and in order to expedite the handling of opinion cases, I have decided to recognize as a bar to an election any contract in an industry in which the Board has alreay determined that con- tracts longer than 2 years in duration constitute a bar to an election. The farm equipment industry is one in which the Board has previously determined that contracts of 5 years' duration bar petitions for elec- tions during their term. Accordingly, I concur in the dismissal of the petition in this case. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 8 Since the current contract between the Employer and the Intervenor has been in effect for more than 2 years, Member Rodgers would find that the contract is no bar to the instant petition Accordingly , he would not dismiss the petition. See his dissent in Republic Aviation Corp., 109 NLRB 569. UNITED PRODUCTIONS OF AMERICA and SCREEN CARTOONISTS GUILD (IND.), PETITIONER and INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA. Case No. 21-RC-3647. January 31, 1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman H. Greer, hearing 111 NLRB No. 62. UNITED PRODUCTIONS OF AMERICA 391 officer. 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 employees of the Employer. 3. No 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, for the following reasons: The Employer is engaged in the business of producing cartoon films. The Petitioner contends that the only appropriate unit is the one that it seeks, i. e., a unit limited to cartoonists employed by the Employer. The Employer, the Association, and the Intervenor con- tend that only a multiemployer, associationwide, unit is appropriate. The Association was formed in 1943, and exists solely for collective- bargaining purposes. It limits its memberships to cartoon producers who have nationwide facilities for distributing their films ; it elects officers and charges its members dues. The Association is not incorpo- rated, has no formal bylaws, and members are not required to make any formal written commitments upon joining. In 1944, 1945, 1946, 1947, and 1948, the Association, which did not then include the Em- ployer, negotiated on behalf of its employer-members a series of con- tracts with the Petitioner covering cartoonists. The Employer joined the Association in 1950.2 Before joining the Association, the Em- ployer independently negotiated and signed several bargaining con- tracts with the Petitioner covering its cartoonists. After joining the Association, the Employer actively participated in the Association's 1950 negotiations with the Petitioner and signed the resulting contract. In October 1951, the Intervenor filed a number of representation petitions seeking separate elections for the cartoonists of certain of the producer-members of the Association. These petitions were with- drawn and a consent election on an associationwide unit basis was held, with both the Petitioner and the Intervenor appearing on the ballot. The Intervenor won the election and was certified for the broad unit. Thereafter, in 1952 and 1954, the Intervenor and the Asso- ciation twice negotiated contracts covering cartoonists. The Em- 1 Animated Film Producers Association, hereinafter called the Association, was per- mitted to intervene over the objection of the Petitioner The Association clearly has an interest in the instant proceedings, and accordingly, the Petitioner's objection is over- ruled See The Heating, Piping & Air Conditioning Contractors, Cincinnati Association, 110 NLRB 261, footnote 4. 2 The Association in 1950, as now, in addition to the Employer, was comprised of the following producers: Walt Disney Productions, Loew's Inc. (MGM), Warner Bros. Car- toons, Inc., and Walter Lantz Productions. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer actively participated in these negotiations and signed both contracts.' It has been the practice, both before and since the Employer joined the Association, for each employer-member individually to sign bar- gaining contracts negotiated by the Association. No member has ever refused to so sign. Early in the history of the Association, there were numerous differences in the individual employer-members' con- tracts. In the last few years however, the contracts as signed by the individual members have been, with a few relatively minor deviations, uniform.4 After their execution, further minor changes in the indi- vidual contracts have frequently been arranged by the employer- members and both the Petitioner and the Intervenor by means of "handshake agreements" or oral commitments. Considerable testimony was adduced concerning the functioning of a so-called Labor-Management Committee at the Employer's studio. The committee was formed in 1944 and has continued to operate to date. Each year the employees elect 3 representatives to serve on the committee along with 3 members appointed by management. Meet- ings are called at the request of either an employee or management member. Since the Employer joined the Association, the committee has discussed the following subjects: Hiring and discharge, wages, seniority, training programs, parking conditions, timecards, and new types of ink. The Petitioner contends that the activities of the Employer and the Labor-Management Committee since October 1950 demonstrate that the Employer continued to bargain for itself even after it had joined the Association. The Employer, the Association, and the Intervenor contend that the Labor-Management Committee is merely a device instituted by the Employer to facilitate employee participation in the operation of the studio and to provide an effective medium of commu- nication between the management and employee levels. In this connec- tion, the Employer's president, Stephen Bosustow, testified that in August 1954 he "reminded" the Labor-Management Committee that their meetings were not a place for the negotiation of management 3 The Intervenor asserted the 1954 contract as a bar to these proceedings. On April 16, 1954, the Association forwarded a document containing its last "package offer" to the Intervenor The Intervenor then submitted this proposal to its membership for approval or rejection The Petitioner filed its representation petition on June 28 , 1954. On June 30, 1954 , the Intervenor announced that it was prepared to accept the "package offer" with two changes The changes were subsequently accepted by the Association and the contract between the Employer and the Intervenor was finally signed about July 28, 1954. In these circumstances, we find no merit in the Intervenor's contention . Cf. Fort Pitt Packaging Co , Inc , 108 NLRB 1433 4In the 1954 contracts the most significant deviations are (1 ) the Loew's Inc. contract provides for a different type of pension plan from the others, and (2 ) the Disney contract contains some job classifications not found in the other contracts . The latter has always been the case and is explained by the fact that Disney is by far the largest producer- member of the Association and, accordingly , utilizes some job classifications that the other members do not need. ALLIS-CHALMERS MANUFACTURING COMPANY 393 policy, but that the committee was merely a sounding board for an- nouncements of company policy. President Bosustow also testified that when he joined the Association he "felt he was retaining someone to help" negotiate for him and that the Employer desired to continue its bargaining on a multiemployer basis. It is well settled that an employer's inclusion in a multiemployer unit is based upon the employer's intent to be so bound, and that such intent is generally evidenced by past participation in group bargain- ing.' In the instant case, the Employer's relationship with the Labor- Management Committee after it joined the Association appears at times to have been somewhat inconsistent with the concept of multiem- ployer bargaining. However, from all the circumstances, especially the Employer's active participation in the negotiations on a multi- employer basis since joining the Association, his subscription to all the contracts therein negotiated, and his unequivocally announced in- tention at the hearing to continue bargaining on such a basis, we find that the Employer has shown an intent to be bound by group rather than individual action in his collective bargaining. Accordingly, as the unit sought by the Petitioner is limited to the Employer's cartoon- ists it is inappropriate.' We shall therefore dismiss the petition. [The Board dismissed the petition.] See, for example, Martinolich Shipbuilding Co., 108 NLRB 179. e Sanitary Mattress Company, Rest Line of California, Inc., 109 NLRB 1010 In find- ing the Petitioner's unit request inappropriate, we also attach some weight to the fact that the Petitioner itself acknowledged the Employer's membership in the Associa- tion by participating in the 1950 Associationwide bargaining negotiations , and by its participation in the 1951 Associationwide election. ALLIS-CHALMERS MANUFACTURING COMPANY ( LA PORTE WORKS) and GENERAL TEAMSTERS , CHAUFFEURS AND HELPERS UNION, LOCAL No. 298. Case No. 13-RC-3832. January 31,1955 Decision and Certification of Representatives Pursuant to a "Stipulation for Certification Upon Consent Elec- tion," executed on March 22, 1954, and approved by the Regional Di- rector on April 5, 1954, an election by secret ballot was held on April 14, 1954, under the direction and supervision of the Regional Director for the Thirteenth Region among the employees in the stipulated unit. Upon the conclusion of the election, a tally of ballots was fur- nished the parties. The tally shows that of approximately 2,153 eligible voters, 290 ballots were cast for the Petitioner, 229 for Dis- trict 72, International Association of Machinists, AFL, and 1,358 ballots were cast for Local 119, United Farm Equipment and Metal Workers, UE. 111 NLRB No. 67.