Edward Small Productions, Inc.

EDWARD SMALL PRODUCTIONS, INC. 283. other matters agreed upon by the Respondent and the Union during the course of collective bargaining and preceding the date when the Respondent broke off negotia- tions with the Union. Having found that the Respondent's whole course of conduct from the date of the certification of the Union is the antithesis of good-faith bargaining, it will further be recommended that on request and with respect to matters not already agreed upon and incorporated in a contract pursuant to the recommendation above, the Respondent bargain with the Union as the representative of its employees in an appropriate unit and if an understanding is reached, embody such understanding in a written and duly executed agreement. It is further recommended that the Respondent forthwith furnish to the Union a copy of its health and welfare plan. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All millworkers, mixermen, merchandisers, truckdrivers, and warehousemen employed at the Respondent's Twin Falls, Idaho, plant, excluding all office clerical employees, professional employees, managers and assistant manager, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union was on August 28, 1958, and at all times since has been, the exclu- sive representative of all employees in the aforesaid appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9(a) of the Act. 4. On March 26, 1959, the Union and the Respondent reached an agreement on wages and other matters covering the employees in the above-described appropriate unit. 5. Since March 26, 1959, the Respondent has refused repeated requests by the Union to execute a contract incorporating matters agreed on as of March 26, 1959. 6. By its refusal to execute the said agreement, and by an entire course of con- duct that is the antithesis of good-faith bargaining, the Respondent has refused to bargain collectively with the Union as exclusive representative of employees in the above-described appropriate unit, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the said refusal to bargain the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 8. 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.] Edward Small Productions , Inc.; I Vogue Pictures, Inc.; Peer- less Productions, Inc.; Premium Pictures, Inc. and Musicians Guild of America, Petitioner. Case No. t1-RC-5778. April 19, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Max Steinfeld, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The name of the Employer appears as amended at the hearing. 127 NLRB No. 36. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Jenkins and Fanning]. Upon the entire record in this case, the Board finds : 1. Edward Small Productions, Inc.,2 owns all the 'stock of Vogue Pictures, Inc.,' Peerless 'Productions, Inc.,' and Premium Pictures, Inc.5 All four corporations are located at the same address, share common offices, and are engaged in the same business. The president, vice president, and general counsel of all four companies are the same. Edward Small furnishes the services of its executives, studio manager, bookkeepers, and some of its secretaries to all the companies, rents studio space and other facilities for all the companies most of the time; and provides money for picture production. The officers and directors of each respective company determine policy as to which pictures are to be produced; however, in most instances the officers and directors are the same. In view of the foregoing, we find that the four corporations constitute a single Employer." As Edward Small and Peerless both received in excess of $50,000 annually from the sale of their product outside the State of California, we assert jurisdiction under our direct outflow standard.' 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Intervenor, American Federation of Musicians of the United States and Canada, AFL-CIO, moved to dismiss the petition on the ground that none of the four corporations has employed musicians and that only one of the companies plans future picture production.8 The record shows that Premium, Vogue, and Peerless were parties to the Basic Agreement with the Intervenor and that these companies scored their pictures through use of the "package deal" arrangement whereby a composer-conductor is engaged to compose and conduct the music as well as hire and pay the musicians. The musicians utilized by the composer-conductor work under the provisions of the Basic Agreement between the Employer and the Intervenor, which provides 2 Hereinafter referred to as Edward Small. Hereinafter referred to as Vogue Hereinafter referred to as Peerless 5 Hereinafter referred to as Premium. 6 See Chicago North Side Newspapers, 124 NLRB 2.54 7 Siemens Mailing Service, 122 NLRB 81. 8 The Employer and Intervenor also moved to dismiss the petition on the ground that the Petitioner made no claim for representation on the Employer to recognize the Peti- tioner for purposes of collective bargaining At the shearing, however, the Employer declined to recognize the Petitioner. Accordingly, we find that a question concerning representation exists within the meaning of Section 9(c) (1) of the Act, and deny the motion. See Advance Pattern Company, 80 NLRB 29. EDWARD SMALL PRODUCTIONS, INC. 285 that a personal service contract be executed for each recording session which the Employer signs as the employer of the musicians. In view of our determination of voting eligibility of musicians in the motion picture industry, infra, our finding that the four corporations herein constitute a single employer, and the fact that the Board has held that, film producers who hire musicians under such an arrangement are employers and musicians employees within the meaning of the Act, the motion is hereby denied .9 Accordingly, we find that a question affecting commerce exists con- cerning the representation of certain employees of the Employer, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The appropriate unit : The parties agree as to the classifications of employees in the pro- posed unit. The Intervenor and the Employer contend that the peti- tion should be dismissed as to three of the four corporations because they have no plans as to future picture production, and as to Edward Small and Peerless, on the ground that no pictures have been produced in recent years. In view of the facts discussed in paragraph 1, above; we find that the four corporations constitute a single Employer for unit purposes, and therefore reject the contention. As the record does not indicate whether or not conductors and leaders possess supervisory authority within the meaning of the Act, and as this issue is raised by the incorporation of the record and briefs of an earlier case before this Board,10 we shall permit the conductors and leaders to vote subject to challenge. Accordingly, we find the following unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All musicians employed by the Employer or its successors in Los Angeles County, California, including arrangers, orchestrators, copy- ists, proofreaders, librarians, recording and sideline musicians, but excluding composers and supervisors as defined in the Act. 5. In accordance with our voting eligibility formula for musicians in the motion picture industry, we find that all musicians who have been employed in the unit herein for 2 or more days during the year preceding this decision are entitled to vote in such unit." [Text of Direction of Election omitted from publication.] O Independent Motroon Picture Producers Association, Inc., 123 NLRB 1942 10 Id 21 Id