Alliance of Television Film Producers, Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of Henry Hayes as herein found, the Respondent has discouraged member- ship in a labor organization and thereby by such discrimination and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, as heremabove found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act, and 8 (a)( I) thereof 6 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication ] Alliance of Television Film Producers, Inc.; Desilu Produc- tions; McCadden Corporation ; Lindsley Parsons Productions, Inc.; Ziv Television Programs, Inc,, Hal Roach Studios; Marterto Productions, Inc.; Flying A Productions, Inc.; Mark VII, Music; i and Revue Productions , Inc. and Musicians Guild of America, Inc., Petitioner. Cases Nos 21-RC-513, 21-RC--5511, 21-RC-5514, 21-RC-5515, 21-RC-5516, 201-RC-5517, 21-RC-5518, 91-RC--5519, 21-RC--5520, and 21-RC-5512 Janu- ary 8, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, hearings were held before William R Magruder, hearing officer 2 The hearing officer's rulmgs made at the hearing are free from prejudicial error and are hereby affirmed Upon the entire record in these cases, the Board finds 1 The Employers are engaged in commerce within the meaning of the Act 2. The labor organizations involved claim to represent certain employees of the Employer 3 3 The Intervenor contends that no questions concerning repre- sentation exist herein because the musicians sought by Petitioner are not a sufficiently identifiable group who enjoy stability in employ- ment For reasons given in Cavendish Record Maniafacturvng Com- pany,4 we find no merit in this contention Except as indicated below, we find questions affecting commerce exist concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act I The name of the Employer in this case appears as amended at the hearing 2 A consolidated hearing was held on all the cases except Revue Productions Inc, Case No 21-RC- 5513 The latter ease is consolidated with the others for decisional purposes S American Federation of Musicians of the United States and Canada, AFL-CIO , inter- vened in these cases on the basis of contractual interests Its request for oral arugment is denied as the record and briefs adequately present the issues and positions of the parties 4124 NLRB 1161 See also Inndependtnt Motion Picture Producers Assoc,atson, Inc, 123 NLRR 1942 126 NLRB No 1 ALLIANCE OF TELEVISION FILM PRODUCERS, INC. 55 4. In Case No. 21-RC-5513, the Petitioner seeks a unit of musicians employed by members of Alliance of Television Film Producers, Inc., herein called Alliance, who are engaged in the production of television films in Los Angeles County, California.-' By its other petitions here- in, the Petitioner expresses a willingness to represent in separate units the employees of certain Alliance members. The Intervenor, which represented separate units of musicians employed by various Alliance members between 1954 and early 1959,6 contends that an Alliancewide unit is inappropriate and seeks dismissal of the petition therefor; it does not request the holding of any election or elections in these cases. The Alliance, which has represented employees of its members other than musicians on a multiemployer basis, does not oppose the Peti- tioner's primary request for an Alliancewide unit. At a meeting held in February 1959, Alliance members expressed a desire for representa- tion of their musicians on such a basis. Only Ziv Television Programs, Inc., and Revue Productions, Inc., herein called Ziv and Revue, re- spectively, have expressly disclaimed desire for representation of their musicians as part of a multiemployer unit. Mark VII Music has a contract with the Intervenor executed on October 6, 1958, which con- stitutes a bar to any election among its employees as requested by the petitions filed on November 14, 1958.1 Under the circumstances detailed above, and upon the entire record, including the Petitioner's request for an Alliancewide unit, the action taken by Alliance members in February 1959 favoring an Alliance- wide unit, the absense of any objection by Alliance members, except 5 Members of the Alliance , as used herein, include companies affiliated with , or sub- sidiaries of, formally enrolled members, who pay dues, or for whom dues are paid by enrolled members, and who are entitled to the services , bargaining services included, of the Alliance as if they were formally enrolled members. As disclosed by the record, the Alliance members involved in these cases , accounting for changes which have taken place since filing of petitions , are as follows (the affiliated and subsidiary companies appear in parentheses ) : Desilu Productions, Inc. ; Revue Productions , Inc. ; Mark VII, Ltd. (Mark VII Music ) ; McCadden Productions , Inc. (Banda Productions , Inc., LHM Produc- tions, Maple Productions, Airborne Productions, and Lormac) ; Marterto Enterprises, Inc. ; Lindsley Parsons Productions , Inc. ; Ziv Television Programs, Inc. ; Hal Roach Studios; Flying A Productions , Inc. (Flying A Pictures, Inc., Champion Enterprises, Inc.) ; Jack Chertok Television, 'Inc. ; Robert Maxwell Associates, Inc. ; Overland Pro- duction, Inc. ; Wyatt Earp Enterprises, Inc. ; Brennan-Westgate Productions ; Superman, Incorporated ; Filmaster Productions , Inc. ; Four Star Films, Inc. ; Gallu Productions, Inc.; Gross-Krasne, Inc. (California Studios ) ; The Jack Wrather Organization (Inde- pendent Television Corporation , Lone Ranger, Inc., Sgt. Preston of the Yukon , and Lassie Programs , Inc.). B Inasmuch as the Intervenor's contracts covering such employees contained union- security clauses of virtually the same type as in Cavendish Record Manufacturing Com- pany, supra, this bargaining history is, as there, not entitled to weight in our unit determinations herein. T In so holding , we reject Petitioner's contention that Mark VII Music's contract is no bar because it is a premature extension of the contract which the Intervenor and Mark VII, Ltd., the parent company of Mark VII Music, executed in May 1956. The parties to the 1956 and 1958 contracts are not the same. But even assuming arguendo that both contracts were between identical parties, covering the same unit of employees, and that the 1958 contract was an extension of the 1956 contract , the Board's premature extension rule would not be applicable for the 1956 contract had run for more than 2 years when the 1958 contract was executed . Moreover, the 1956 contract , but not the 19498 contract, is one of those referred to in footnote 8 with an illegal union-security clause. See Deluxe Metal Furniture Company, 121 NLRB 995. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as indicated above, to the multiemployer unit sought by Petitioner, and the absence of any request by the Intervenor for elections in single-employer units, we find that the following employees of mem- bers of the Alliance, except for Ziv, Revue, and Mark VII Music, con- stitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 8 All musicians regu- larly employed in the production of television films, including con- ductors, arrangers, orchestrators, copyists, proofreaders, librarians, recording instrumentalists, sideline musicians, and rehearsal mu- sicians, but excluding composers and supervisors as defined in the Act.' As noted above, a separate petition for Revue's musicians has been filed by the Petitioner. Under all the circumstances, we find that a unit confined to Revue's musicians is appropriate and, in Case No. 21-RC-5512, we shall direct an election among the following em- ployees of Revue : All musicians regularly employed in the production 'of television films, including conductors, arrangers, orchestrators, copyists, proofreaders, librarians, recording instrumentalists, side- line musicians, and rehearsal musicians, but excluding composers and supervisors as defined in the Act. A separate petition has also been filed by the Petitioner for Ziv's musicians. However, Ziv has not employed musicians since about June 1955 and the record indicates that it has no present intention of hiring musicians. In view thereof, we shall dismiss the petition in Case No. 21-RC-5516. 5. ,The Petitioner, proposes a voting eligibility ,formula of 5 days' work since January 1, 1958, in any single-employer unit held ap- propriate or 10 days' work during the past year if a multiemployer unit is found appropriate. The Intervenor urges that eligibility in any election directed be based on a single day's work. We have considered all of the facts and circumstances of these cases, including the irregular 'nature of the musicians' employment in the television film industry and the peculiar characteristics of this Indus- - try, and.find that all musicians who have been employed in either of the appropriate units herein for 2 or more days during the year pre- ceding the date of this Decision, Order, and Direction of Elections ' have'a sufficient interest to entitle them to vote in such unit or units.10 '[The Board dismissed the petitions in Cases Nos. 21-RC-5511, 21- RC-5514, 21-RC-5515, 21-RC-5516, 21-RC-5517, 21-RC-5518, 21- See Western Association of Engineers, Architects, and Surveyors, 101 NLRB 64; Calumet Contractors Association, 121 NLRB 80. Chairman Leedom does not join in this 'finding. He believes that the facts warrant a finding that each Alliance member's musicians constitute an appropriate unit. Accordingly he concurs on unit findings only ,to the extent that it finds appropriate a unit of Revue's employees. While he joins in the dismissal of the petition involving Ziv's employees , he does so because the dis- missal is based on grounds other than unit 9 The internal composition of this unit requested by the Petitioner is not challenged by the parties. 1, ' 10 Cf. Cavendish Record Manufacturing Company, supra. LUMBER AND SAWMILL WORKERS LOCAL UNION 2409 57 RC-5519, and 21-RC-5520, and the petition in Case No. 21-RC-5513 with respect to Ziv Television Programs, Inc., Mark VII Music, and Revue Productions, Inc.] [Text of Direction of Elections omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision, Order, and Direction of Elections. Lumber and Sawmill Workers Local Union 2409; Angus L. Brisbin, its President ; Montana District Council , Lumber & Sawmill Workers Unions ; Robert C. Weller, Business Repre- sentative and Executive Secretary and Great Northern Rail- way Company. Case No. 19-CC-109. January 8, 1960 SUPPLEMENTAL DECISION AND ORDER On February 13, 1959, the Board issued its Decision and Order 1 herein, sustaining the Trial Examiner's dismissal of the complaint. On November 23, 1959, the United States Court of Appeals for the Ninth Circuit reversed the Decision and Order of the Board and re- manded the case to the Board for action consistent with the court's opinion.2 In its original Decision, the Board had adopted the Trial Exami- ner's finding that the Respondents' picketing of the spur track and premises of the Great Northern Railway Company at or near Roberts Street in Helena, Montana, was not primary but secondary action. However, the Board affirmed the dismissal of the complaint on the ground that the railroad was not an "employer" and its employees were not "employees" within the meaning of Section 8(b) (4) (A) of the Act. The court held to the contrary on this point and remanded the case to the Board. In conformance with the decision of the United States Court of Appeals for the Ninth Circuit,3 the Board now finds that by the picket- ing herein the Respondents induced and encouraged the employees of 1122 NLRB 1403. 2 Great Northern Railway Company v. N L.R.B., November 23, 1959 (C.A. 9), 45 LRRM 2206. 8In accepting the court' s remand in this case, Chairman Leedom and Members Bean and Fanning, with due respect for the opinion of that court , do not adopt its view that Section 8(b) (4) (A) prior to November 4, 1959, included railroads as "employers" within the meaning of that section of the Act. Since that date, however, the Labor- Management Reporting and Disclosure Act of 1959 has amended Section 8 (b) (4) (A) to proscribe sec- ondary boycotts directed at railroads and their employees. The issue is, therefore, pros- pectively without significance. For the reasons set forth in his dissenting opinion in Seafarers' International Union of North America, Atlantic & Gulf District, AFL-CIO (American Coal Shipping, Inc ), 124 NLRB 1079, Member Jenkins believes that the circuit court gave a correct interpretation to the Act as it read before the 1959 amendments. - 126 NLRB No. 12.