Directors Guild of America, Inc.

DIRECTORS GUILD OF AMERICA, INC. 707 Directors Guild of America, Inc. (Association of Motion Picture & Television Producers, Inc.) and Milton L. Trager and Association of Motion Picture and Television Producers, Inc., Party to the Contract. Case 31-CB-355 August 4, 1972 DECISION AND ORDER On September 14, 1971, Trial Examiner Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm only so much of that Decision as is consistent with this Decision and Order. We find no error, however, in his rulings on evidentiary or procedural matters. The Trial Examiner found it unnecessary to determine whether or not the Respondent Union was a labor organization. He further found that the position for which Trager, the alleged discriminatee, applied was supervisory and, therefore, the discrimi- nation did not fall within the scope of the Act. We do not agree. As will appear below we find the position of second assistant director to be nonsupervisory and since a substantial number of second assistant directors participate in and are represented by the Respondent Union it is clear that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. The Trial Examiner based his finding that second assistant directors were supervisors within the mean- ing of the Act on a number of factors which he found that, "taken together and in total context," were sufficient to confer supervisory status upon them. These factors consisted of the functions performed by second assistant directors with respect to the employing and laying off extras; negotiating adjust- ments of the pay received by extras; seeing that extras were in place when needed; handling requests for breaktime and time off by extras; making arrangements to get extras and other personnel and necessary equipment to the proper location; taking over the functions of first assistant directors in their absence; participating in management conferences; and the arranging and executing the background on the set. It is evident from the factors relied on by the Trial Examiner that the principal indicia of supervisory status are to be found in the relationship between the second assistant directors and extras. But the record will not support the conclusion that the seconds' and the extras stand in the proximate relationship of supervisors and employees. Thus, extras are general- ly hired through the casting departments or agencies and, unless a specific type or specific person is needed, they select the extras to be hired. And even in those instances where a specific type or person is required the seconds are merely following the requirements imposed by a script and are not exercising independent judgment in determining the qualifications of individuals to perform the work. In like vein, the retention of extras for the next day's work is largely determined by the demands of the script and the seconds seldom have the opportunity to select extras because, in their judgment, one extra is performing the work better than another. Although there are, of course, deviations from this modus operandi because of the wide variety of producing companies and methods of operation in the industry, it is apparent that, in general, the seconds have little opportunity to exercise discretion or judgment in the hiring or retention of extras. In finding seconds to be supervisors the Trial Examiner also relied on the adjustment of the pay of extras by the seconds. These adjustments in pay are made for the performance of work beyond the normal function of an extra. Thus, an extra might be entitled to additional pay for falling off a horse and he initially negotiates the matter of payment with the second. The record indicates, however, that many of the activities for which additional compensation is paid are provided for by the collective-bargaining contract or by general practice in the industry and that in making adjustments the seconds' authority is limited by the previous fixing of the amount of additional pay a second may grant. The record also discloses that the additional pay generally must be approved by the seconds' supervisor, the first assistant director, and that the first also mediates disputes between the seconds and the extras when they are unable to reach agreement. We cannot conclude, under these circumstances, that the sec- onds exercise the independent judgment contemplat- ed by the Act in making adjustments in pay. The seconds' duties with respect to having the extras in their proper place when needed, making arrangements for personnel and equipment to be at the proper location at the time specified, and the granting of breaktime and time off to extras appear to us to be nothing more than responsibility for notification to extras and other personnel as to the time and place where they are required to perform their services and the organization of transport and 1 The second assistant directors will frequently be referred to herein as seconds and the first assistant directors as firsts 198 NLRB No. 103 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other facilities to enable them to do so. There is little evidence in the record that the seconds exercise disciplinary powers over the extras and others to their superiors. We do not regard the performance of these tasks as falling within any of the indicia of supervisory status contained in the statute. In finding that seconds are supervisory employees the Trial Examiner also relied on the seconds' participation in the execution and arrangement of the background of the set. It is true, as the Trial Examiner found, that the seconds do, at times, direct the extras in their performances on the set. But, as he also found, the directions given by a second are subject to the approval of his supervisor, the first assistant director, and that changes in the seconds' directions may be made by either the first or, in some instances, by a cameraman. The direction of employ- ees which is thus so closely scrutinized and super- vised by a superior does not meet the "responsibly to direct" requirement of Section 2(11) of the Act. The Trial Examiner also relied, in part, upon the fact that a second sometimes replaces the first when the latter may be attending a conference with a director, eating lunch, or is absent for other reasons. Other than generalized statements such as being "in full charge of the crew" there is little evidence in the record to indicate precisely what duties are per- formed by a second during the periods that he may replace a first. Clearly the first is not always performing the duties of a supervisor and without some proof that the seconds regularly perform duties supervisory in nature we cannot rely on their replacement of firsts for brief periods of time as a factor in determining their supervisory status.2 We have thus considered the duties of the second assistant directors which led the Trial Examiner to find them to be supervisors and we conclude that the evidence does not justify his finding. It may well be that second assistant directors do, from time to time, perform functions which are supervisory, dependent on their experience and the responsibilities conferred upon them by a particular director as first assistant director. But basically the position is administrative or clerical in nature and the record is wanting in evidence to show that the supervisory duties are performed regularly or extensively by the second assistant directors. We therefore conclude that the second assistant directors are not supervisors and are entitled to the protection of the Act. Although he found that second assistant directors were supervisory and thus did not fall within the protection of the Act, the Trial Examiner assumed arguendo that second assistant directors were em- ployees for the purpose of considering the legality of the roster and interchange provisions of the contracts between the Association of Motion Picture and Television Producers and the Respondent Union and some independent motion picture producers and the Respondent Union . He concluded that the roster and interchange provisions as interpreted and applied by the parties were, in general, valid under the Act. He further found, however, that as applied to the Charging Party in this case he would have found a violation of the Act under the Board's "Miranda concept" had he found second assistant directors to be employees.3 The General Counsel has excepted to the Trial Examiner's finding that the roster and interchange provisions are valid under the Act. We find merit in these exceptions. The roster provisions provide, insofar as pertinent herein, that the employer shall give preference to persons on the Industry Experience Roster in hiring first and second assistant directors . They further provide that if no person on the roster is available the employer may employ others not on the roster and that such other persons may be added to the roster after working 90 days as an assistant director. There is also a training program, jointly administered by the Association and Respondent Union, which permits a relatively small number of trainees to become second assistant directors after completing a training program. The roster, by agreement of the parties, is administered by the Employer Association but the Respondent Union retains the right to protest the placement of an individual if it does not believe him to be eligible . Such a protest would ultimately be decided under the grievance procedure provided for in the contract. An industry experience roster has also been established for unit production managers with provisions governing placement on the roster similar to those prescribed for the roster of first and second assistant directors . Thus the employers signatory to the contracts are required to give preference in employment to individuals on the roster but are permitted to hire other persons if no one on' the roster is available. And if those persons hired because no one on the roster is available are employed for 90 days or more under the contract they are eligible for placement on the Unit Pro- duction Manager Roster. There are also provisions for interchange between assistant directors and unit production managers. Assistant directors , both first and second , may serve 2 The Trial Examiner also relied on attendance at management below, we find the roster and interchange provisions as interpreted and conferences as an indicia of the supervisory status of seconds We are applied to be invalid we do not pass upon the Trial Examiner 's conclusions unable to find evidence in the record to support this finding. with respect to the Miranda case. 3 Miranda Fuel Company, Inc, 140 NLRB 180 Because, as appears DIRECTORS GUILD OF AMERICA, INC. as unit production managers. Unit production managers, however, must serve in that capacity for a period of 4 years before becoming eligible for employment as either a first or second assistant director. The parties stipulated at the hearing that the contracts had been interpreted and applied by the Association, with the knowledge of the Respondent Union, to require that the experience necessary to obtain placement on the roster must be acquired with employers who are signatories to the contracts. Thus, a prospective employee of a signatory can be utilized as a second assistant director only if he has obtained his qualifying experience with other employers who themselves are contractually bound to employ individuals on the rosters. The operation of the roster provisions, and the illegality under our statute of the interpretation and application of them by the parties, is illustrated by the treatment accorded Milton Trager, the Charging Party in the instant case. On January 10, 1966, Trager submitted an application to the Employer Association, which administers the roster provisions, requesting that he be placed on the Industry Experience Roster for assistant director, first or second, and unit production manager. He also submitted with his application documents to support his position that he had the necessary experience to comply with the requirements of the roster provisions of the Respondent's contract with the Association. Trager was apparently placed on the roster by the Association as a unit production manager but without right of interchange as an assistant director. The Respondent Union also registered an objection to his placement on the roster at this time. Thereaft- er, Trager spent the next 22 months attempting, at interviews and meetings with officials of both the Association and the Respondent Union, to prove that he was entitled to interchange to assistant director. The Respondent Union remained adamant in its position that Trager did not have the 4 years' experience as a unit production manager necessary to make him eligible for interchange to assistant director' required by the roster provisions of the contracts. On November 16, 1967, Trager therefore requested arbitration as provided for in the contracts. On December 5, 1967, an arbitration hearing was held. In accordance with the contract, the hearing was conducted by Alfred Chamie, general counsel of the Employer Association. At the hearing Trager again submitted his evidence that he had obtained the requisite experience under the contract provi- sions. At the hearing Chamie suggested that there might be a way to get Trager on the roster if the 709 Respondent Union would withdraw its objection. The Respondent Union refused to do so, however, and again refused to accept Trager's record of past employment as qualifying, primarily because it was not with employers who were signatories of the Respondent Union's contracts. Chamie, in his decision, deferred to the Respondent Union's posi- tion and found that Trager could not be accorded the right of interchange to assistant director because he did not have 4 years' "appropriate" experience as a unit production manager. The Trial Examiner found, and the record fully supports his finding, that the documentation submit- ted by Trager proved that he had served in the capacity of unit production manager for a period substantially in excess of the 4 years' experience required for a unit production manager to acquire the right under the contract to interchange as an assistant director. He was, therefore, fully justified in his conclusion that, had not the Respondent Union insisted that work experience be with employers signatory to its contract, Trager's application could not have been validly rejected. It is clear from the above recital of the facts that the Respondent Union prevented Trager from obtaining employment as an assistant director because he had not engaged in union activities in the past by obtaining his work experience with employ- ers who were signatories to contract with the Respondent Union. We have recently considered roster provisions imposing such conditions in Inter- national Photographers of the Motion Picture Indus- tries, Local 659 of the IATSE,4 and found the roster provisions, as so interpreted and applied , to be an invasion of the undoubted right of employees under Section 7 of the Act to refrain from union activities. We find no significant difference between that case and the one now before us. We therefore find, for the reasons stated in that case , that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by the illegal application of the roster provisions of its contracts to Trager's application for placement on its rosters. THE REMEDY In order to effectuate the policies of the Act, it is found necessary that Respondent cease and desist from the unfair labor practices found and from any other invasions of the employees' Section 7 rights; take certain affirmative action, including making whole Milton L. Trager with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 4 197 NLRB No. 134. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716; and post appropriate notices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Directors Guild of America, Inc., Los Angeles, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Applying its collective-bargaining contracts with the Association of Motion Picture and Televi- sion Producers, Inc., its member-employers, or nonmember-employer outside the Association, in any manner which discriminates against any employ- ee with respect to his initial employment and/or placement on the Industry Experience Roster on the basis of union representation. (b) In any like or related manner discriminating against employees because of experience gained in the industry while not represented by Respondent. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify all employers against whom it applies the Industry Experience Roster seniority provisions that it will cease applying such provisions in a manner that discriminates against any employee with respect to his initial employment and/or placement on the Industry Experience Roster on the basis of union representation. (b) Make whole Milton L. Trager for any loss of pay he may have suffered by reason of Respondent's interpretation and application of the seniority provi- sions of the Industry Experience Roster, such loss of earnings to be computed in the manner set forth in the section entitled "The Remedy." (c) Post at Respondent's business offices and meeting places copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Promptly, after receipt of copies of the said notice from the Regional Director, return to him signed copies for posting by all employer-members of the Association of Motion Picture and Television Producers, Inc., and all other employers against whom Respondent has applied the seniority provi- sions of the Industry Experience Roster, if they be willing, at their places of business, including all places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES ° POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board and abide by the following: WE WILL NOT apply our collective-bargaining agreements with the Association of Motion Picture and Television Producers , Inc., its em- ployer-members, or nonmember-employers out- side the Association in any manner which discriminates against any employee with respect to his initial employment and/or placement on the Industry Experience Roster on the basis of union representation. WE WILL NOT in any other manner restrain or coerce you in the exercise of the rights guaranteed in the National Labor Relations Act, which are as follows: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any and all of these things. WE WILL make whole Milton L. Trager, with interest, for any loss of pay he may have suffered by reason of the discrimination against him. DIRECTORS GUILD OF AMERICA, INC. (Labor Organization) Dated By (Representative) (Title) DIRECTORS GUILD OF AMERICA, INC. 711 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7352. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER , JR., Trial Examiner: This proceeding was heard before me in Los Angeles, California, on January 12, February 8-12, 19, and 22-26, 1971, upon a complaint issued November 12, 1970, and a timely answer of Directors Guild of America, Inc., herein called Respon- dent.' The complaint alleges a violation of Section 8(b)(1)(A) and (2) of the Act in that Respondent and named employers have interpreted and applied certain "Roster and Interchange Provisions" (set forth in the complaint) so as to "have established and given effect to an arrangement, understanding or practice which gives employment preference to individuals based on their having worked for employers signatory to contracts with Respondent." The complaint further specifically alleges violation of Section 8(b)(1)(A) and (2) of the Act by Respondent's allegedly causing the Association of Motion Picture and Television Producers, Inc., herein called Association, to refuse to grant Milton Trager "Interchange rights and to refuse to place him on the first assistant director's roster notwithstanding that under the Inter- change and Roster Provisions [described in the complaint l Trager's experience with employers not signatory to contracts with Respondent entitled him to Interchange rights and to be placed on the roster for first assistant director." Upon the entire record, including the oral argument of the General Counsel and the Charging Party and the brief filed by the Respondent, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF AFFECTED EMPLOYERS administering multiemployer collective-bargaining agree- ments on behalf of its employer-members with the collective-bargaining representatives of their employees including Respondent. The parties further stipulated that the employer-mem- bers of the Association signatory to contracts with Respondent annually, in the course and conduct of their business operations, collectively sell and ship from their studios in California goods valued in excess of $50,000 directly to points outside the State of California. The record also establishes that there are approximately 67 or 69 members of the Association at the present time. There are also numerous other employers signatory to contracts with the Respondent having substantially similar terms and conditions as the Association contract. The parties stipulated and I find that the Association and its employer-members are now and at all times material have been employers engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act .2 II. THE LABOR ORGANIZATION INVOLVED The Respondent denies that it is a labor organization within the meaning of the Act, asserting that all of its members are supervisors . Since I am resolving this matter on other grounds, I deem it unnecessary to determine whether or not the Respondent is a labor organization within the meaning of the Act.3 III. THE UNFAIR LABOR PRACTICES A. The Complaint The complaint as previously set forth alleges violation of Section 8(b)(1)(A) and (2) by the Respondent. The following paragraphs of the complaint are set forth verbatim: 6. At all times material herein Respondent and employer-members of the Association were parties to separate but identical collective-bargaining agreements effective from May 1, 1964, through April 30, 1968, covering a multiemployer bargaining unit, and herein called the Basic Agreement. 7. At all times material herein, Article VII of the Basic Agreement described in paragraph 6 above, contained the following provisions in Section B(1) herein called the Interchange Provisions, and in Section B(13) herein called the Roster Provision: The parties stipulated that the Association of Motion P:eture and Television Producers, Inc., is an employer association with its principal office in Hollywood, Califor- nia, which admits to membership firms engaged in motion picture and television film production and which exists in part for the purpose of negotiating, executing, and I The charge was filed on April 3, 1968. 2 This does not mean that the other employer signatories to contracts with the Respondent containing substantially similar provisions are parties to a multiemployer contract as set forth hereafter. There was no such contention herein and except for the Association members are considered as individual employers. 3 Such resolution would entail considering a number of job classifica- tions. One of these, namely second assistant director, is considered in detail post. I am finding the position to be supervisory under the Act and recommending dismissal of the complaint on that basis. In the event second assistant directors were to be found to be employees, then since they constitute a substantial part of Respondent's membership, a finding that Respondent was a labor organization would follow. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE VII Minimum Salaries and Working Conditions of Unit Production Managers and First and Second Assistant Directors s s s s s SECTION B : WORKING CONDITIONS 1. Interchange (a) Interchange of Classifications: Nothing herein shall prevent unit Production Managers or First or Second Assistant Directors from being interchanged, or from accepting employment in other capacities, at prevailing rates of such other classifications. A Second Assistant Director with less than eighteen months' experience in the motion picture industry as a Second Assistant Director shall not be elevated to a First Assistant Director during such first eighteen months, except in case of an emergency in which event the Guild shall be notified as soon as practicable (such eighteen months shall commence with the date of his first employment as a Second Assistant Director). Any Second Assistant Director may be elevated to Unit Production Manager, in which event the time any such Second Assistant Director has worked in the motion picture industry as a Second Assistant Director shall apply not only towards the eighteen months of experience referred to above, but as well towards the period he would otherwise have to work as a unit Production Manager before becoming eligible to work as a First Assistant Director. Any First Assistant Director who hereafter becomes a Unit Production Manager may perform services either as a Unit Production Manager or as an Assistant Director. Any Unit Production Manager who has been employed as such in the motion picture industry for at least four years, may perform services either as a Unit Production Manager or as an Assistant Director. [Emphasis supplied.] Unless it is agreed upon at the time of hiring, an employee hired as a First Assistant Director or Unit Production Manager need not later accept an assign- ment as a Second Assistant Director during the said employment and his refusal to do so shall. not constitute quitting. Employees initially assigned on a particular picture by an Employer in a capacity other than a Director, Unit Production Manager (who is interchangeable with an Assistant Director, as provided above) or Assistant Director shall not later be assigned on such picture by Employer as Director or Assistant Director except in the case of a bona fide emergency, in which event the Guild shall be notified as soon as possible. 13. Industry Experience Roster; Trainee Program and Trust Fund (a) Employer shall establish an Industry Experience Roster for Assistant Directors composed of those qualified and available persons who, as of May 1, 1964, a) have had experience as First or Second Assistant Directors in the production of Theatrical or Television Motion Pictures with Employers in Los Angeles County, California; or b) are Unit Production Manag- ers eligible for employment as Assistant Directors pursuant to Section B 1 of this Article VII. Additional persons shall be added to said roster as provided in subparagraph (b) of this paragraph 13 and as provided, with respect to Unit Production Managers who become eligible for employment as Assistant Directors, pur- suant to Section B 1 of this Article VII. In the employment of First or Second Assistant Directors, Employer shall give preference of employ- ment to qualified and available persons on said Industry Experience Roster; or who are hereafter added to the roster as provided in the preceding subparagraph; provided, however, that Employer may nevertheless employ Trainees pursuant to the provi- sions of subparagraph (b) of this paragraph 13. In the event there are no available qualified persons on said Experience Roster Employer may employ First or Second Assistant Directors from any source. Persons so employed may be added to the Roster by Employer after they have worked for Employer an aggregate of 90 work days after May 1, 1964, as an Assistant Director. 8. At all times material herein, Respondent and various independent motion picture industry employers in Los Angeles County, California, have been parties to separate but identical collective-bargaining agreements, herein called the Independent Supplement, covering single employer units, which agreements incorporate by reference the basic agreement described in paragraph 6 above except as specifically supplemented and modi- fied. 9. At all times material herein, the Independent Supplement described in paragraph 8 above, has modified the Roster and Interchange Provisions of the Basic Agreement as follows: ARTICLE VII SECTION B: WORKING CONDITIONS 1. Interchange The third paragraph of subparagraph (a) of Section B(l) of Article VII of said Directors Basic Agreement of 1964 shall be, and the same hereby is, deleted in its entirety, and there shall be substituted in lieu thereof the following: Employees initially assigned on a particular picture by an employer in a capacity other than a Director or Assistant Director shall not later be assigned on such picture by Employer as a Director or Assistant Director except in the case DIRECTORS GUILD OF AMERICA, INC. 713 of a bona fide emergency, in which event the Guild shall be notified as soon as possible. 13. Industry Experience Roster; Trainee Program and Trust Fund qualified persons on said Industry Experience Roster, Employer may employ Unit Production Managers from any source. Persons so employed may be added to the Unit Production Manager Roster by the Employer after they have worked for Employer an aggregate of 90 work days after November 28, 1966 as a Unit Production Manager. Paragraph 13 of Section B of Article VII of said Directors Basic Agreement of 1964 shall be, and the same hereby is, amended by adding to subparagraph (a) of said Paragraph 13 a new subparagraph as follows: (a) Employer shall establish an Industry Experi- ence Roster for Unit Production Managers composed of those qualified and available per- sons who, as of May 1, 1964, a) have had experience as Unit Production Managers in the production of Theatrical or television Motion Pictures in Los Angeles County, California, or b) are Assistant Directors eligible for employment as Unit Production Managers hereunder. In the employment of Unit Production Managers, Employer shall give preference of employment to qualified and available persons on said Industry Experience Roster. In the event there are no available qualified persons on said Industry Experience Roster, Employer may employ Unit Production Managers from any source. Persons so employed may be added to the Roster by Employer after they have worked for Employer an aggregate of 90 work days after May 1, 1964, as a Unit Production Manager. 10. On or about November 28, 1966, Respondent and the Association amended the Basic Agreement as follows: 1. Article VII, Section B of such Basic Agreement is hereby amended to add the following subparagraph which shall read in its entirety as follows: 13A. Unit Production Manager-Industry Experience Roster; Trainee Program (a) Employer,' shall establish an Industry Experience Roster for Unit Production Managers composed of those qualified and available persons who (i) as of November, 28, 1966, have had experience as Unit Production Managers in the production of Theatrical or Television Motion Pictures with Employers in Los Angeles County, California, or (ii) are Assistant ,Directors eligible for employment as Unit Production Managers pursuant to Section B 1 of this Article VII. Additional persons shall be added to said roster as provided in this paragraph 13A. (b) In the employment of Unit Production Manager, Employer shall give preference of employment to qualified and available persons on said Unit Pro- duction Manager Industry Experience Roster or those who are hereafter added to said roster as provided in this paragraph 13A. In the event there are no available s s s s s 2. Article VII, Section B 1. (a) of the Basic Agreement is amended to provide that a Unit Pro- duction Manager who on November 28, 1966 is not on the Assistant Director's Industry Experience Roster must be employed as a Unit Production Manager in the motion picture industry in Los Angeles County, California, for at least four years on and after September 15, 1964, before he may be added to the Assistant Director's Experience Roster or be inter- changed as an Assistant Director. The Respondent in its answer admits the allegations of paragraph 6, set forth above, that the basic agreement contains the provisions set forth in paragraph 7, admits the allegations of paragraph 8, admits the provisions set forth in paragraph 9 of the complaint are contained in the Independent Supplement, and admits that the provisions set forth in paragraph 10 of the complaint are contained in the Basic Agreement as amended. The parties stipulated at the hearing that: At all times material herein Respondent has had knowledge that the Association of Motion Picture and Television Producers, Inc., has interpreted and applied the roster and interchange provisions described in paragraph 7 through 10 of the Complaint herein so as to place on said roster and grant interchange rights to only those persons who had worked for employers who have collective bargaining agreements with Respondent and in accordance with this interpretation the only workdays counted for the purpose of qualifying for the placement on the said roster are those worked for employers who are party to such collective bargaining agreements. B. The Issues The principal issues are: 1. Whether Respondent is a labor organization which, as set forth supra, I find unnecessary to determine. 2. Whether or not the position of second assistant director is a supervisory position. If it is such, there would appear to be no predicate for the instant complaint, while if it is not, there may or may not be a valid basis for the complaint. 3. Whether or not the roster system and interchange provisions set forth in the contracts between the Respon- dent and the Association and/or individual employers are valid as interpreted and applied. (a) One question is whether or not roster and/or interchange provisions such as herein contained and applied and interpreted may be valid. (b) A second question is whether the interchange provisions herein involved with respect to unit pro- 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duction managers are justifiable and valid under all of the circumstances. (c) A third question may be whether the interchange provisions relating to unit production managers and assistant directors were properly applied to Milton Trager and if not, what the effect thereof would be. 4. Paragraph 3 (c) above also may raise a question of whether or not the Respondent's conduct with respect to Milton Trager was in violation of the Miranda doctrine as enunciated by the Board. C. Initial Discussion Since about 1944, Milton Trager has worked in the motion picture industry in various positions commencing with accounting and cost control accounting, and subse- quently as a unit production manager and in other capacities . According to Trager, about 1950 he first performed the functions of a unit production manager. Prior to the latter part of 1966, Trager had not worked as either a first or second assistant director. On January 10, 1966, Trager sent a letter, attention of Mr. Batchelder, to the Association of Motion Picture and TV Producers, Inc., which was received January 13, 1966. The letter was accompanied by a registration form for the industry experience roster and certain other documents relating to Trager's experience. The letter referred to Trager's experience as a unit production manager, stated he had applied for membership in the Respondent as early as March 14, 1965, and had been proposed for membership by an employer, Talent Associates, but had not received his card. Trager then stated that according to his interpretation of the contract, "I am entitled to be on the industry roster as a unit production manager as well as a first assistant director." The attached application form was headed, "Registration for assistant directors experience roster." Under the heading, "I have worked as a First Assistant Director or a Unit Production Manager in the motion picture industry on or before May 1, 1964, as follows:" were listed under "Name of Company Screen Televideo From 2/55 To 5/55" and "National Broadcast- ing Co. From 2/1/59 To 5/1/64" and under "Position (Specify whether 1st Asst. 2nd Asst. or Unit Prod. Mgr.)" Trager listed, "Unit Production Mgr." The application was filed with the Association because the Association maintained the official roster. Ben Bat- chelder, who was administrative assistant to Charles Boren, executive vice president of the Association, was in charge of the roster during the period involved. Batchelder made the determination as to the qualifications of the particular individual usually based on information supplied by employers as to work performed. The necessary qualifying experience had to have been acquired in employment for a signatory to a contract with Respondent. If the Respondent did not believe an individual was entitled either to be placed on the roster in any category or to have the interchange which he requested, then it could protest such placement or interchange. After Batchelder made a determination, an appeal could be taken therefrom to and a hearing held before Alfred Chamie, general counsel of the Association, who functioned as the final arbiter. From 1964 to about November 28, 1966, there was no separate roster specifically provided for umt production managers (who were not interchangeable as assistant directors), but there was a roster of first assistant and second assistant directors. On that roster there was indicated through the number L-4 those unit production managers who could be employed as unit production managers but did not have the right of interchange as assistant directors.4 Batchelder, after examining the documents and consider- ing the matter, determined that Trager should be placed in the category of L-4 on the then-roster of first and second assistant directors which meant that Trager could be employed only as a unit production manager. There is some conflict in testimony as to what Trager was told at the time. Trager testified that about mid-February 1966 he was told by Batchelder that he had been placed on the first assistant directors' roster as of February 7, 1966. However, Batchelder denied making such a statement and testified that he had placed Trager on the roster as L-4, indicating employment only as a unit production manager. I do not consider that resolution of this would be dispositive of the issues herein. As set forth, Batchelder testified that sometime prior to receipt of a letter from Respondent, dated February 25, 1966, that Trager had been placed on the roster in the L-4 category. Apparently this was predicated on his having worked as a unit production manager for Screen Televideo which was a signatory. On February 25, 1966, the Respondent sent a letter to the Association (attention of Batchelder), which was received March 2, 1966, stating that Respondent was informed that Trager was seeking to be placed upon the assistant directors' industry experience roster and was informed and believed that Trager lacked the requisite experience to be placed on the roster and Respondent desired to challenge the application. The letter asked that Trager be so notified and that arrangements be made for him to supply the necessary proof and if a hearing were to be held, that he be notified. According to Trager, the next conversation of signifi- cance he had was with Abrams, a representative of Respondent, who looked up his experience in the Guild files and said_ that his card was marked L-4, which indicated less than 4 years' experience. Trager said he told Abrams this didn't agree with what Batchelder had told him. Trager said he then saw Batchelder again and reminded him that he had told him that he was oii the first assistant directors' roster as of February 7, but, that Abrams had shown him a card marked L-4. Batchelder, according to Trager, checked and took out a card which he\. told Trager did say L-4 and was dated February 8. According to Trager, he asked Batchelder what that meant and Batchelder told him L-3 meant more than 4 years' experience and L-4 meant less than 4 years' experience. As discussed more fully hereafter, the contracts as interpreted 4 This refers to automatic rights of interchange In the event of individuals on particular productions or under special circumstances The exhaustion of the available roster , employment of second assistant directors latter is considered in some detail in the record but will be discussed herein could be from any source Also at times, special consideration or sometimes only insofar as necessary "waivers" would be sought and given by the Respondent for employment of DIRECTORS GUILD OF AMERICA, INC. by the parties required 4 years' experience as a unit production manager with signatories thereto for entitle- ment for interchange as an assistant director, either first or second.5 Trager said he asked Batchelder what happened in the meantime and Batchelder took a letter out and showed him the objection from the Respondent. According to Trager, Batchelder told him as long as the Respondent objected, they could not put him on the roster (as assistant director). Batchelder testified that the determination of who went on the roster was up to the Association. Batchelder also testified that the Respondent would only participate in the roster to the extent that "they could protest in the event that if I were to place someone on the roster who was not qualified and eligible to be on the roster." He then added that he had placed about 30 or 35 persons in the L-4 classification during the time he was in charge'of the roster. Batchelder said he was not aware of any protest by persons classified in L-4 regarding the 4-year interchange rule other than Trager. Following the meetings with Abrams and Batchelder in the spring of 1966, Trager talked with the Respondent officials and indicated his desire to work this out with the Respondent. Thereafter, he appeared before a number of kinds of meetings of the Respondent, either screening committee or council meetings, and submitted evidence of his prior work record without satisfactory results. In one such screening meeting, the chairman, Beaudine, according to Trager, said, "I grant the fact that you have the four years experience." But then said, "This meeting does not constitute a quorum and I cannot report it back to the Council." Beaudine could not recall making any such statement with respect to the 4 years' experience. In any event, Trager, after obtaining no satisfaction through the Respondent with respect to its acceptance of his work experience as sufficient for interchange to assistant director, determined to seek redress through the Associa- tion grievance mechanism. Accordingly, on November 16, 1967, Trager wrote a letter to the Association addressed to Mr. Chamie in which he stated that on October 20, 1967, "I came in to see you regarding a hearing concerning my right to interchange in the Directors Guild of America-UPM/ Ad Division- which we had also discussed previously." Trager then stated that at that time Chamie told him that he could arrange for a hearing by writing a letter of request, having the Respondent,'write a letter of request, or just having Mr. Haughton;'the general counsel of the Respondent, call him. Trager said that he went to the Guild and while there, Haughton called Chamie regarding the hearing, but he had heard nothing since and was therefore writing "at this time to request a grievance arbitration hearing under Art. IV, Sec. B of the Basic Contract...." Trager then set forth certain facts, including his application to be on the roster and some of the matters referred to above, together with a statement that on March 30, 1966, he was notified by the Respondent that he "was accepted into membership on 3/7/66, retroactive to 10/4/65, as a UPM only subject to their receipt of my properly executed application." Trager 5 It was anticipated that any interchange would be as a first assistant since the pay of a unit production manager or a first assistant director is 715 added he "filed an application on 4/1/66 as a UPM/AD member. The Guild accepted and never challenged this application." Trager then stated, "Since that time to the present, I have attempted to straighten out the matter of interchange within the Guild. The Guild has never officially denied or rejected my right to interchange to this day, nor have they changed my status as a UPM only." According to Trager, the Guild "tabled the matter for further investigation, held hearings which did not consist of a quorum and therefore could not act , have given me waivers in lieu of interchange, etc. At the last Council meeting on 11/6/67, after a report by the Screening Committee was read, it was voted that `It was recommend- ed he submit all evidence to the MPPA and request a hearing for determination as to his being eligible for placement on the Industry Experience Roster as a UPM, 1st & 2nd AD.' " Trager said he was accordingly requesting a hearing and believed he had the experience to qualify in the motion picture industry as a qualified UPM "to warrant my retention on the Roster as an AD as of 2/7/66." In the minutes of Respondent's Internal Affairs Commit- tee meeting of October 18, 1967, the committee minutes discussed Trager's appearance and request for reclassifica- tion to be placed on the available list as first assistant and/or second assistant director. The minutes refer to a conference with Respondent's General Counsel, William Haughton, and its National Executive Secretary, Joseph Youngerman, and then state, "it was felt clarification of statements should be obtained from NBC regarding Mr. Trager's employment." The minutes then read: We were informed by Mr. Oscar Turner of NBC that Milt was employed by NBC T.V. from May 26, 1955 through 1965 with the title of Senior Film Unit Manager. His salary was $15,400.00 per year. This amount does not equal that of a Film Unit Production Manager. The Senior Film Unit Managers were assigned by NBC T.V. to observe and supervise the cost accounting on filmed shows financed by NBC T.V. At no time would they have been permitted to function as a Film Unit Production Manager on a filmed show since NBC T.V. was not a signatory company. Mr. Trager was in the employ of NBC T.V., a non- signator at the time of his functions with California National Productions, on the `LAWLESS YEARS'. Therefore, the letter from Maxwell Henry is also disqualified. It was recommended by Mr. Bill Haughton, Don Parker and Joseph Youngerman that Mr. Milt Trager ask for a hearing at the Motion Pictures Producers Association. At the hearing Mr. Trager will present his case and Directors Guild will state their position regarding Mr. Trager's request. Thereafter appears a memo dated November 3, 1967, as follows: From: Don L. Parker substantially higher than that of a second assistant, but in Trager 's case, he sought work as a second assistant, as well as a first assistant 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To: Assistant Director-Unit Production Manager Council Meeting from Internal Affairs Committee Meeting of Oct 18, 1967 MEMO Milt Trager Request for reclassification without any restrictions as to category, allowing him to work as a Unit Production Manager, First Assistant Director or Second Assistant Director. Present classification, Unit Production Man- ager, with four year restriction. Basis of request were letters of employment, previously submitted to Screening Committee. No action was taken at that time, due to a no quorum of the Screening Committee. The Internal Affairs Committee, after reviewing all letters of employment, recommended the Assistant Executive Secretary confer with Mr. Joseph Younger- man and Mr. Bill Haughton for clarification of the eligibility of information listed in the letter of employ- ment. Since determination of eligibility for placement on the Industry Experience Roster is done by the M.P.P.A., it was recommended to Mr. Trager, that he submit all evidence to the M.P.P.A. and request a hearing for a determination as to his being eligible for placement on the Industry Experience Roster as Unit Production Manager, First Assistant and Second Assistant Direc- tor. At the time of the hearing with the M.P.P.A., Directors Guild of America will maintain Mr. Trager's employ- ment was with a non-signator, N.B.C. T. V., therefore, all employment data submitted from May 26, 1955-February 1965 could not be considered making him eligible for placement on the Industry Experience Roster. [Emphasis supplied.] During the course of the council meetings and also in conjunction with the hearing which was held on December 5, 1967, before Mr. Alfred Chamie, general counsel of the Association and arbiter in the particular matter, Mr. Trager submitted numerous letters from various employers setting forth his experience under different titles and also reflecting those instances where it was stated he performed the work of unit production manager. Normal practice of the Association was to accept as evidence statements and letters from employers. Without detailing all of the documents and correspond- ence submitted, attention is directed to one particular item of work experience. Trager from 1955-1965 was in the employ of NBC except possibly for a few weeks on the payroll of California National Productions. However, during this time for a period of years, Trager actually performed work on matters for California National Productions, evidently at MGM studios where many TV programs were being filmed. This time appears to exceed 4 years on work that would qualify as that of a unit production manager. During the time, California National Productions was a signatory to contracts with Respondent covering directors and assistant directors although none covering unit production managers. At that time, there also existed a separate unit production manager's guild which will be discussed subsequently. NBC, during this time, was not a signatory to a theatrical agreement with the Respondent covering the positions in question. Batchelder was asked whether, if a person did work for a signatory but was paid by a parent company of the company for whom he did the work, he would get credit for it or not. Batchelder answered: "Well, always in the past one of the tests has been-was the man on the payroll of a company that was signatory. That has been one of the tests." [Emphasis supplied.] Batchelder then said the question was hypotheti- cal and when asked about Trager working for CNP while on the payroll of NBC responded first he didn't disallow Trager's experience with CNP and then said, "A. I don't even know who is CNB. (sic)" As set forth, Respondent did object to giving Trager credit for time worked for California National Productions while employed by NBC. The record indicates that CNP was working on various projects for NBC on a fee basis. There is also some indication, although not evidence on which a finding can be based, that CNP may have been a subsidiary of NBC. On December 5, a hearing was held before Chamie, at which were also present Haughton and Parker representing Respondent, Batchelder, Trager, and Newton Kalman, an attorney for Trager. There was some discussion as to the matter of applica- tion of the contract to signatories. Kalman raised a question as to the basis of the contention that the contract was applicable only to signatories when the literal language did not appear to so limit it to signatories. Although the contract does not specifically refer to signatories, testimo- ny of Saul Weislow, associate general counsel for the Association, John Pommer, vice president of Bing Crosby Productions, and Alfred Chamie, general counsel of the Association, was that such was the intent of the parties to the contract and that it was so applied. Weislow so stated and added: Well, I think I have told you, haven't I, that we fashioned this after the IA6 Roster policy: employment in Los Angeles to work in Los Angeles County area. Or employed in Los Angeles to work outside the area by a signatory Employer. Weislow then testified that during contract negotiations this was so stated by Charles Boren, `executive vice president of the Association, and that Respondent Secre- tary Youngerman said it was reasonable and he would accept it. Weislow also testified that the use of, a capital "E" in spelling "Employer" in either the introduction or recognition clause indicated a Signatory Employer. I find on the basis of the foregoing that such interpretation \yas given to the "Basic" and independent supplemental, agreements by the parties. There was also discussion at the hearing before Chamie with respect to the application of the work experience of Trager and as to the work performed for California National Productions, a signatory. Kalman referring to notes said: ,Mr. Trager narrated-or was requested to supply his 6 IA refers to IATSE roster provisions in contracts between IATSE and the Association and others . See further discussions post DIRECTORS GUILD OF AMERICA, INC. credits as unit production manager. One of the credits which he supplied was his activity at NBC. I think this activity at NBC was the pivotal credit. If his activity at NBC was that of a unit production manager, then I believe that the substance of the meeting was that he would have had sufficient credit as a unit production manager to qualify as an assistant director. I believe at the time that he was at NBC he was not categorized as a unit production manager, but as an assistant to the producer. I believe that he reported at the meeting that occurred on December 5, 1967 that an assistant to the producer performed all of the duties of a unit production manager, and that in fact there was no unit production manager at the time of the activities which he was performing for NBC. Kalman subsequently testified: Well, it is very difficult for me to reconstruct what I was thinking about at the time, but one of the objections to the NBC experience was that Mr. Trager was not classified as a unit production manager at NBC, and somehow my recollection is that this was tied into the fact that because NBC had not signed some kind of a contract that Mr. Trager's experience at NBC would not be recognized. [Emphasis supplied.] Chamie testified that the Guild was protesting Trager's right to interchange as an assistant director. He was asked what was the Guild's stated position. Chamie answered: A. Well, as best I can recall at this time, they objected to counting any time working in the various companies which were not subject to the collective bargaining agreement. [Emphasis supplied.] Q. What do you mean by "not subject to the collective bargaining agreement"? A. They were not parties to the collective bargain- ing agreement, nor did they have provisions which were similar to the provisions of our collective bargaining agreement. Q. Now, do I understand correctly that specifically they were objecting to counting his experience at NBC? A. I believe that was one. Q. And the stated reason for this objection was that NBC was not a signatory to the contract with D GA.; is that right? A. Well, they were not subject to a collective bargaining agreement having these provisions. [Emphasis supplied.] Chamie added by provisions he meant roster provisions. Chamie, also testified that the hearing on December 5, 1967;' was held as the result of a protest by Respondent which objected to Trager's application for interchange on the basis it was not warranted. Trager testified: On all the shows prior to NBC Mr. Chamie disallowed my experience, because I didn't have the actual title of production manager, or unit production manager, and so forth. [Emphasis supplied.] He would not accept assistant production manager, and so forth, and he said the letters stating the functions were not enough; that I had to have a title. 717 THE Wimaiss: He said the function of a unit production manager was not enough; I had to have the actual title. * * * * THE WrrriEss: He did however grant me three months on screen televideo, [sic] where I did have the title of production manager. Oh, and the three months was accepted by the Guild representative also. A. Mr. Chamie then asked me about my NBC experience, and he said that-I believe in this case it was Mr. Naughton that objected to my experience at NBC- CNP, because I did not work for a signatory to the Guild contract. Q. Is that your best recollection-that it was Mr. Naughton? [Emphasis supplied.] A. Yes. Q. All right. A. My attorney, Mr. Kalman, said that he couldn't find that anywhere in the contract-where it required signatory experience. I believe that it was Mr. Chamie that agreed with Mr. Haughton, and said that this was very-it was their interpretation, and his interpretation of the contract. I then brought up the fact again that my experience was with California National Productions, and they were a signatory to the Guild contract. And as a matter of fact, NBC was a signatory to the Guild contract. But they objected to the fact that there were-that they were not signatory-that NBC was not a signatory to the theatrical portion of the contract. [Emphasis supplied.] Q. Who was it that objected to that? Do you recall? A. I believe it was Mr. Haughton. Q. Is that your best recollection? A. My best recollection is that Mr. Chamie backed him up. Trager then testified he brought up that CNP paid NBC ;$25,000 for his services in one production and then (testified: But Mr. Chamie's decision was, again, over my lawyer's objection about the contract that as long as I was on the payroll of a nonsignatory to the theatrical contract my experience could not be allowed, even though I had the title. [Emphasis supplied.] Trager then said that in addition to Screen Televideo he ,was allowed six months' experience credit for work with 'Talent Associates or a total of rune months' credit. Trager further testified: I believe-to the best of my recollection, Mr. Chamie said that possibly there might be a way to get on the roster if the Guild would withdraw its objection. And the Guild would not withdraw its objection. [Empha- sis supplied.] 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD * s s Now, when you said, "And the Guild would not withdraw its -objection," did someone for the Guild speak up at that time or not? THE WITNESS: I believe Mr. Haughton said that it would not withdraw its objection. Following the hearing, Mr. Chamie issued a document in which he stated: In 1966 Mr. Batchelder placed Mr. Traeger [sic] on the Roster as a Unit Production Manager who was not interchangeable as an Assistant Director because he did not have the appropriate four years' experience as a Unit Production Manager. Mr. Trager claims he should be classified as being interchangeable as an Assistant Director because he allegedly worked more than four years as a Unit Production Manager. The claim is based upon the attached resume of his experience. The Guild contended he did not work four years as a Unit Production Manager and that Mr. Trager's work with NBC was not experience subject to the collective bargaining agreement. [Emphasis supplied.] Mr. Batchelder appropriately classified Mr. Milton Trager on the Roster as a Unit Production Manager without interchange as Assistant Director because he had not had four years of appropriate Unit Production Manager experience. [Emphasis supplied.] Dated this 6th day of December, 1967. /s/ ALFRED P. CHAMIE ALFRED P. CI-IAMIE Vice President & Secretary, AMPTP The foregoing indicates there were two elements in- volved. One related to "signatory" and the other to the kind of work performed. From Chamie's testimony and the position taken by Respondent, it appears the requirement of "signatory" was a primary one insofar as both Respondent's objection and Chamie's resolution were concerned. The actual work performed was evidently brought up and discussed. Respondent indicated that it did not consider Trager's work had been the equivalent of that performed by a unit production manager, but this does not appear to have been fully considered or analyzed in detail. However, substantial documentation 7 mostly in the form One method utilized as proof to establish roster entitlement. 8 Letters, other exhibits, and Trager's testimony reflect that this included work for CNP on matters pursuant to agreement with NBC among which were the "Jim Backus" show-38 shows or 1 year; the "Lawless Years"-59 shows or 2 years, "Kentucky Jones"-13 in series or 6 months; "pilots" of about 15 months and "specials" of about 9 months for a total of 5-1/2 years Numerous letters confirm that Trager performed the work of unit production manager on the above-named productions and also certain "pilots" and "specials " Although his title may not have been such-in some cases it was "Associate Producer" and at times "Film Unit Manager", the "Jim Backus" show, "Lawless Years" and "Kentucky Jones" appear to represent 3-1/2 years performance by Trager as a unit production manager, without considering the claimed 2 years on "pilots" and " specials " I also note Trager was credited with 9 months as a unit production manager for work as such for Screen Televideo (3 months) and Talent Associates (6 months). His total established experience as such clearly appears to substantially exceed 4 years and more than 6 years is indicated. of letters from employer officials submitted by Trager to the Respondent and the Association, indicates that his work was so considered to be unit production manager work.8 As such, it does not appear that had Trager's work been for a "signatory" (as interpreted by the Association and Respondent) it could have been validly rejected.9 Attorney Kalman testified that at some time either before or after this meeting in Chamie's office: A. I can only recall, one that Mr. Chamie did come out to talk to us in the hallway, and two, that somehow Mr. Chamie indicated that if somehow Mr. Cham- ze-Mr. Trager could make his peace-and again, I can't remember with whom, but I surmise with Mr. Haugh- ton-that Mr. Chamie would interpose no objections to Mr. Trager's being categorized as an assistant director. [Emphasis supplied.] Q. Could this hallway conversation have been after the hearing? A. My recollection is that it was before the hearing. It might have been after; it's hard for me to recall those things. Trager, supra, referred to such a position by Chamie during the hearing.10 This raises a question concerning the position taken by the Respondent with respect to Trager, particularly as to Trager's work with California National Productions not being considered to be with a signatory because Trager was on the payroll of NBC. I will consider this again as to both the claimed violation of Section 8(b)(2) and as to possible application of the Miranda doctrine under Section 8(b)(1)(A). D. The Matter of Supervisory Status of Second Assistant Directors The status of first assistant directors will be considered before that of second assistant directors. Although the parties would not stipulate with respect thereto, no question was raised as to their supervisory status. In addition, there is uncontradicted testimony from Arthur Schaefer, industrial relations manager of Warner Bros., a witness for the General Counsel. Schaefer testified that the first assistant director "supervises the activities of the crew, for example, if they are working on one set and they have a move to make to another set or another stage he directs the various crew chiefs to make their moves and get over to the other location." Respondent witness Hilton Green, pro- duction manager of feature pictures at Universal City 9 Were it clear that the principal or the sole predicate for denial of Trager's claim by Chamie had been rejection of the exhibits submitted by Trager, that would pose a different problem. to Trager was able from time to time to work as a second assistant director either by "waiver" or unavailability of second assistants on the roster. On January 28, 1969, Respondent sent Trager a letter advising that it had been notified by the Association that Trager had been placed on the roster as a second assistant director. The letter added that Guild records indicated Trager had acquired the necessary 90 days' employment as a second assistant director on December 24, 1968. It further advised that his status was then as unit production manager and second assistant director and he must be employed as a second assistant director for 24 months before he could work as a first assistant director It appeared that during the course of the hearing, Trager was completing the necessary time as a second assistant director to qualify for and be placed on the first assistant directors' roster. DIRECTORS GUILD OF AMERICA, INC. 719 Studios, Inc., testified: "The director is the key man making a picture. The first assistant is his righthand. The first assistant runs the set. We like to feel that our first assistants are in full charge of the crew. When he leaves, the second assistant steps in and takes over those duties." From the foregoing it is clear, and I find, that first assistant directors are supervisors within the meaning of the Act. Schaefer testified as to duties of a unit production manager as follows: A. In the first place, it is not necessary to assign a unit production manager to a picture if the company chooses not to. In that event, then, the first assistant director will perform those duties. The unit production manager is usually the first person employed of that staff. He will break the script down, or for budgeting purposes, and if the go-ahead is made to produce the picture, then he will break it down even further for production purposes. He will do a lot of those activities that I mentioned earlier, as far as scouting locations, finding housing facilities, eating facilities, arranging for those facilities that are not available. He will arrange for sanitary facilities. He will make flight rentals, if they have to be made. He will rent a particular piece of property to photograph a scene. That sometimes is done in the preproduction area. He will work with the director in the laying out of the sets, the scenes, what the requirements will be. It is basically the preplanning for the logistical efforts needed on the production. Q. Now, what does he do in the production stage? A. The unit manager is usually not attached with the shooting company as much as the first-if there is a first. He will in a lot of cases be working on the requirements needed for the future, and usually is available for any decision that is made. He will report to the production office if it is a company-owned picture, because the activities of that picture are responsible to our production office. Don Parker, assistant executive secretary of the Guild and a one time unit production manager, in response to a question of whether he had heard previous witnesses' descriptions of unit production managers' functions and whether there were any variations in his understanding thereof, testified he had heard them and: A. Primarily I would stress much more than they that unit production managers' functions are related to business managers in preproduction, primarily to the logistics and preparation of that show, rather than to any on-set activities during production. During the production, which is the actual shooting of the picture, their functions are not primarily on-set, but more for off-set production, to continue the further production on that picture. Responsibilities of the production of the picture are left to the assistant directors. The foregoing indicates unit production managers are part of management. The extent to which they may supervise persons is not spelled out in the above, but testimony does reflect that a unit production manager necessarily does direct others in performing various aspects of his work. The status of second assistant directors was vigorously contested with several witnesses testifying on behalf of the General Counsel and several on behalf of the Respondent with respect to their duties.)) The testimony of these witnesses (except for certain testimony of Milton Trager which I do not rely on for reasons set forth below),12 in some instances differs in degree and emphasis rather than by way of contradiction. It also reflects differences in function depending on the attitude of the first assistant and also on the personality and experience of the second assistant. In addition, there are differences dependent on the size of the employer and the extent and scope of the particular film or feature. The Respondent's position is that second assistants generally perform certain duties that make them supervi- sors within the meaning of the Act. The General Counsel's position is that the duties they generally perform are not such as to make them supervisors. The General Counsel also raises a number of contentions with respect to duties that the Respondent claims are supervisory. The General Counsel describes certain functions in different terms and 11 These included for the General Counsel: Arthur Schaefer , industrial relations manager of Warner Brothers ; Howard Fabrick , director of industrial relations and personnel ; for Columbia Picture Studios: Coley Knight, executive assistant and administrator of the collective bargaining agreement and also head of personnel employment and office service of Twentieth Century Fox; Maurice Corwin, director of operations and facilities for NBC television on the west coast (employed by the National Broadcasting Company of the West Coast); and Milton Trager. And for Respondent, Stan Hough, vice president of Twentieth Century Fox and at various times a second assistant and a first assistant director and also a unit production manager; Hilton Green, production manager, Feature Pro- ductions Universal City, with experience in like positions ; and Fred Ahern, associate producer on a Warner Brothers picture with long experience as a production manager. 12 I have carefully considered Trager's testimony as to the duties of second assistant directors . In part it illustrates that the second assistant's function may depend on the director or the first , as well as the experience of the second. It also reflects that the duties of a second assistant director may depend on the feature being filmed, the need for extras both as to number and days as well as scenes, and the number of second assistants involved. The latter may result in varying duties among seconds and account in given pictures for Trager not having certain duties therein . Trager testified he worked on three pictures where there were a large number of extras-"Hello Dolly" with 12 or 14 second assistants; "Justine" where the director selected all the extras and where another second assistant director took care of the "adjustments"; and "Hang 'Em High" on which he worked a few days and ,'there were two other second assistants-on this Trager said he mainly called actors and handled cards, and on a large street scene followed through on, what the director wanted and the cues given for the start of background 'action. Trager's actual experience as a second assistant director in films where aI substantial number of extras were involved was accordingly limited. His( duties were also limited on these occasions by the presence of other seconds assistants, some of whom had precedence over him, and in one case by the! large number of seconds, and in another by the director's hiring of extras.1 Although I do not question Trager's intention or effort to answer) truthfully, complete objectivity may at times be lacking when one is! personally involved. In the light of the foregoing and the fact that the! various previously named witnesses for the General Counsel and Respon-I dent all have had such extensive experience in the industry as to be familiar with the duties of second assistant directors, I shall rely on and accept their, testimony (rather than Trager's) as to such duties where such testimony is generally consistent or substantially in accord, as reflected in certain' conclusions which I am setting forth hereafter. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aspects from those set forth by Respondent. The General Counsel also asserts that if any number of second assistants are not supervisors then assistant directors cannot be viewed as a class as supervisors. She takes this position particularly with respect to testimony of Milton Trager as to his duties.13 First, with regard to this contention, even if I did rely on Trager's testimony were Trager the only "second assistant" who did not have supervisory duties, it would be questionable whether he was performing the work of a second assistant. However, what is necessary to resolve in my opinion is whether or not the duties of second assistants in general entail supervisory functions such as to make them supervisors under the Act. Although the issue may be arguable, it appears that in general, second assistant directors perform certain func- tions and have certain responsibilities that make them supervisors within the meaning of the Act. The duties of second assistant directors are considered hereafter first in the overall and then the specific. Arthur Schaefer, industrial relations manager for Warner Brothers, testified with respect to the second assistant director: Basically, he assists the first assistant director. He-in working with the first assistant director-plans the next day's requirements, based upon information that they have, and is responsible for seeing that many of the elements needed for the next day are ready to go when the director wants to start shooting. Q. What do you mean by "elements"? A. Well, I say he does this in conjunction many times with the first. They establish the number of people needed in various categories as a crew for the next day; the time that they want those people to report for work; also, any special equipment or props, or something like that, that have to be ready for that day. And he usually is the first one in the next morning to see that all of those personnel are there ready to go. Q. What does he do in the nature of seeing to it that all personnel are there and ready to go? Schaefer responded that, if an actor had a 6 o'clock call for makeup, the assistant was to be there making sure the actor was there and, if the actor overslept or was otherwise delayed, he would alert the production office to the effect there would be a delay and then he would try to find out what the reason for the delay was and expedite the matter. Schaefer said the decision as to the number of persons needed each day would be made by the first or the unit production manager, but the crew chief might discuss it first with either the first or second assistant director. According to Schaefer, the second assistant also writes up requisitions for necessary persons and equipment and the like, as a result of his discussions with the first or the unit production manager. The second assistant also maintains a daily production report, which, according to different witnesses, could take anywhere from a half hour or 45 minutes to several hours, depending on the particular first assistant or the method followed at a given studio. The production report is a diary of the day's operations which in some instances was a comparatively short report and in others treated as the "bible" of the operation . In some instances it is written during the workday and in others after the normal workday. According to Schaefer and other witnesses, the second assistant has greater responsibility on a distant location than at the studio. The second assistant also performs functions with respect to seeing that persons are transported to location both as to who is to be sent and in what order and also upon return from location to the studio or starting point. The second also has to see that hot lunches are provided on location. In addition, the second assistant has certain duties with respect to the hiring of extras and the releasing or termination of extras, certain functions with respect to the background action, including that of the extras and location of certain equipment or props, and certain functions with regard to adjustments in the payment of extras, for special services which may occur . He also replaces the first in his absence . The second participates in the management meetings which decide the particular operations in the planning stages. A second also may instruct and train trainees. In certain situations involving second units, he may either replace the first in the original unit, or he may take over as first assistant of the second unit . On location a second has added duties with respect to both the employment of extras and additional matters incident to being on location. Some of the foregoing duties will be analyzed in more detail where there is contention as to whether the duties involve matters which would make the second assistant director a supervisor within the meaning of the Act. The General Counsel takes the position that the basic function of the second assistant is a routine clerical one, requiring no exercise of independent judgment. The Respondent listed many items which it argues establish supervisory status. Some of these relate to the matter of dealing with extras, including their selection, both at the studio and on distant locations, the handling of adjust- ments, the question of discipline and the direction of extras on the set. Hereafter will be considered those matters which I believe are dispositive of the issues . First, the second assistant does participate in the management meetings relating to the action and program to be followed. This is one item which the Board has considered indicative of supervisory status. Second, as indicated above, the second assistant is to see that the arrangements are made to have the actors, the equipment, the extras, and others on the set at or about a specified time. The General Counsel contends this is a matter of requesting and seeking cooperation rather than the imposition of direction as a matter of right and since it is evident that the second cannot direct the actors, he therefore does not have authority over the extras. In my opinion this is a nonsequitur. It is evident from testimony of various witnesses that the second assistant director is expected to get the extras on the set from whatever else they may be doing, whether it is from playing 13 I have indicated supra why I am not relying on Trager's testimony with respect to the duties of second assistant directors DIRECTORS GUILD OF AMERICA, INC. cards or the telephone, etc., and it also appears that if the extra does not respond, as required, that he will not continue working on that particular picture. The question of the second assistant's authority will be considered in more detail in discussing the subject of discipline. When on location the director and first assistant leave for the location in the first car. The second is left behind and he is in charge of assembling and dispatching the actors, extras, crew, and necessary equipment for the location. If a key person does not arrive on time, the second has to use judgment as to whether to hold the entire company or dispatch them to location and in what manner or order. The second also may have to deal with the question of replacement including that of a key individu- al.'' With respect to disciplinary action, it appears from the record that the second can remove an extra if he were drunk and that if an extra did not respond to a proper request that either the second could remove him from the set at the time or recommend such to the first and that the individual not be recalled at all. From the record there do not appear to be many situations where disciplinary action has to be initiated by the second, but the testimony indicates that a second's recommendation as to extras would be given substantial weight by the first assistant director and that the same would also be true with respect to the second's recommendations if a member of one of the crews working on the set were involved. While the testimony does not reflect a definitive picture, it does reflect that the second's recommendations would probably be followed and that in certain instances that he could replace or let people go.15 This will become more evident in connection with the hiring and layoff of extras discussed hereaf ter. Second assistants may grant breaktime and, according to Fred Ahern, also time off to stand-ins and extras for personal matters when not needed. In other words, they may make a judgment as to whether or not an individual can be excused for a time period. The second is responsible for seeing that these persons are available when needed. The testimony reflects a diversity of opinion as to the extent of the second's authority and function in the direction of extras involved in background action on the set. It does appear that the second is expected to see that the background action comes off smoothly, that the persons are walking or otherwise proceeding in a proper sequence, that conflicts are avoided, that continuity is maintained in scenes so that the same persons (who have been "established") 16 would appear in the same locations and that he may at times improvise certain additional items to make the scene more realistic or the action more appropriate to the situation.17 The latter varies according to the experience of the second and the relationship of the 14 See uncontroverted testimony of General Counsel witnesses Arthur Schaefer and Hilton Green to such effect. 15 In support of the above conclusions, see testimony of General Counsel witnesses Arthur Schaefer, Howard Fabrick, and Coley Knight and Respondent witnesses Hilton Green and Fred Ahern. 16 "Established" referring to persons shown in prior scenes in such manner as to be a definitive part thereof. 17 See in support of the above conclusions testimony of General Counsel witnesses Arthur Schaefer and Howard Fabrick and Respondent witnesses 721 second and the first, with some seconds assuming more responsibility and exercising greater initiative.18 Changes or variations made by the second are subject to either approval or change by the first. The extent or degree to which a first may alter the second' s actions is one of the variables. However, there is no question that the second does perform certain functions in this respect and does have certain responsibilities as set forth. One of Respon- dent's witnesses Fred Ahern, associate producer of Warner Brothers, and normally a production manager, testified that any changes that are made are usually made by the cameraman rather than the first. The General Counsel contends that the judgment required in staging backgrounds appears to be more in the realm of creative composition than the type of independent judgment and direction of employees contemplated by the Act. This is an interesting contention, but I question whether it is applicable where the direction of employees is also involved. If direction related only to inanimate settings and props, such might be the case. The General Counsel's argument in essence views extras as props. While in a sense this may be so they are much more since they are persons subject to action, reaction, direction, etc. In addition, with respect to the issue of supervisory authority, there is the testimony of General Counsel witness Coley Knight stating that if a grip or crew member were told by a second assistant to do something that he would ordinarily follow through and do it because he would assume that such authority had been delegated by the first assistant or the unit production manager. The second assistant is salaried rather than hourly. His pay scale now is $320 per week for work in studio and $420 for location. Scale for a first assistant is now $550 in studio and $750 on location. Also indicative of supervisory position is that the number of extras on productions may change from 30 to 40 to 300 or 400 or more. In the studio, extras are obtained usually through a casting office. In some cases, so many bodies are needed and nothing more has to be said. In others, a general description is made and is forwarded to the casting office and the types supplied. In still other cases, requests may be made by the director, first or second, for particular persons whom they know can perform certain functions if they are available, such as driving a car, riding a horse or who possess certain characteristics or are types commonly used, such as a bartender.19 While on location, a second would have more responsibility to ferret out the types and select the persons who might be desired subject to the approval of the first or the director. It is evident from the record that on location a second has more discretion and authority in the selection of extras.20 Testimony of General Counsel witness Howard Fabrick was that "generally speaking" when extra calls are reduced Stan Hough and Hilton Green. 1s See in particular the testimony of Respondent witnesses Stan Hough, Hilton Green, and Fred Ahern. 19 See testimony of General Counsel witnesses Arthur Schaefer and Coley Knight and Respondent witnesses Fred Ahern and Hilton Green and others. 20 In support of these conclusions see testimony of General Counsel witnesses Arthur Schaefer and Coley Knight and Respondent witnesses Hilton Green and Fred Ahern. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the second assistant would determine who went and who stayed and Coley Knight testified that at Twentieth Century the second assistant "signed off the extra people." However, it is evident from record testimony that some of the layoffs are automatic with regard to those who would be retained, such as those who have "established" themselves in a scene and also certain types. At times it is evident who is to be let go. Also, at times, layoffs may be automatic by selecting one half of a group to the left or right. In other instances the second may retain those whom he believes would be more appropriate for particular work. Obviously the requirements and practice vary according to the situations. One matter, as to which there was considerable testimo- ny, related to the function of the second with respect to the payment of extras. There is no question that when payment of the extra is a set amount the function is automatic. Issue arises when extras claim added payment for performing something additional, such as walking past a "star," or falling off a horse or some action that would not be required in performing the normal function for which the extra was hired. In such cases, the second negotiates with the extra. The second's authority is necessarily limited as to amount. In some cases a set limitation per extra is specified by the first, in other cases, there may be an overall total that can be expended. The amounts agreed upon by the second and extra or extras would normally have to be approved by the first. It appears that generally the second's negotiations are approved by the first, although there are some exceptions. There also may be grievances where the extra isn't satisfied with the offer made by the second.21 The General Counsel describes the second's functions as in essence being that of a horse trader, with the first exercising the independent judgment. While the second may be trading or negotiating, it also appears that in most instances, he is effecting the final figure that will be paid to the extra and, accordingly, is exercising independent judgment on behalf of the employer. After a training period of 18 months before May 1, 1968, or 2 years now, a second assistant director can move up to function as a first assistant director. In addition, there is now a training program of 400 days of actual on-the-job training in which new persons train to become second assistant directors. These trainees are under the direction of a second assistant director. However, the number of trainees and the number of second assistants whom they may work for is evidently relatively small. I do not consider this item involves a sufficient number of second assistant directors to be considered a decisive factor herein. The significant item is that there are trainees for the position of second assistant director, learning that work, that when they become second assistants, they assume certain responsibilities, and, finally, that the position of second assistant in turn leads to that of first assistant 22 In addition, the second assistant director replaces the first 21 In support of the above conclusions see testimony of General Counsel witnesses Arthur Schaefer, Howard Fabrick, and Coley Knight and Respondent witnesses Hilton Green, Fred Ahern, and Stan Hough. 22 It is, of course, also true an individual may, under certain circumstances, also become a second assistant by working as one for 90 days when there are no available second assistants. during times when the first leaves his set. This may be for a conference with the director, may be for a luncheon date, or for other reasons. While there are situations where the first does not leave the set, it appears that in general there are times when for a half hour or an hour a day he does. According to Trager, all that occurs then is that the second rolls the cameras. However, there is no question that the second in such case is in charge of the set and he would have more responsibility than merely rolling the camera.23 Also, in the case where there is a second unit on location, the second may either move up to be the first or may become the first over the second unit 24 In either situation he then has all the duties, responsibilities, and authority of the first. Section 2(11) of the Act provides as follows: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. As set forth, this section is in the disjunctive so that any one of the elements set forth is sufficient to cause a finding or conclusion of supervisory status. The foregoing duties and responsibilities of the second assistants with respect to employment and layoff of extras, negotiation of adjustments, handling and granting of breaktime and time off, seeing that extras and others are in place at the proper times and places, taking over for the first assistant director in his absence, arrangement and execution of the background on the set, participation in management conferences, and arrangements for getting persons and equipment onto location, together and in total context, in my opinion, lead to the conclusion that second assistant directors are performing supervisory functions and are supervisors within the meaning of the Act. There are numerous cases which so indicate including N.L.R.B. v. Big Ben Department Stores, 396 F.2d 78 (C.A. 2, 1968), enfg. 160 NLRB 1925 (authority to transfer employees from one department to another on own initiative sufficient to make a supervisor); Pacific Intermountain Express, 412 F.2d 1 (C.A. 10, 1968), enforcement denied of 173 NLRB 470 (line dispatchers who participate in management meetings, assign drivers and schedule departures, approve pay claims, grant drivers time off and send home drunk or unfit drivers); Furr's Inc. v. N.L.R.B., 381 F.2d 562 at 565-566 (C.A. 10, 1967), enfg. 157 NLRB 387 at 392; Eastern Greyhound Lines v. N.L.R.B., 337 F.2d 84,88 (C.A. 6, 1964), enforcement denied of 138 NLRB 8; N.L.R.B. v. Kolpin Bros., 379 F.2d 488 at 490 (C.A. 7, 1967), enfg. 149 NLRB 1378; Trailmobile Division, 'ullman v. N.L.R.B., 379 F.2d 420 at 422, (C.A. 5, 1967), enforcement denied on other 'grounds 156 NLRB 483; N.L.R.B. v. Gary Aircraft, 368 23 In support of these conclusions see testimony of General Counsel witnesses Coley Knight and Arthur Schaefer and Respondent witnesses Hilton Green and Stan Hough. 24 See testimony of General Counsel witness Arthur Schaefer and Respondent witnesses Stan Hough and Fred Ahern. DIRECTORS GUILD OF AMERICA, INC. 723 F.2d 2^3, 224 (C.A. 5, 1966), enfd. 151 NLRB 7. See also Block Southland Sportswear, 170 NLRB 936 at 942. And see Vega v. N.L.R.B., 341 F.2d 576, 577 (C.A. 1, 1965), affirming 145 NLRB 452. I accordingly find that second assistant directors are supervisors within the meaning of the Act. Since I find second assistant directors are supervisors within the meaning of the Act, there can be no case on behalf of Milton Trager, inasmuch as the Act does not protect supervisors. I accordingly find that Respondent has not violated either Section 8(b)(1)(A) or 8(b)(2) as alleged by its conduct with respect to Milton Trager.25 In addition, if first assistant directors, unit production managers, and second assistant directors are all supervi- sors, then the matter of the roster and the interchange provisions could not be the subject of a case under the Act herein and any further consideration thereof would be unnecessary. I have found that first and second assistant directors are supervisors within the meaning of the Act and unit production managers are managerial employees who may be supervisors. While the record indicates that unit production managers possess supervisory authority, I do not consider it necessary to resolve such as I am finding the roster and interchange provisions valid in any event. E. Validity of Roster and Interchange As set forth assuming that the positions of first assistant director, unit production manager, and second assistant director were all supervisory there would be no necessity for considering the validity or legality of the roster provisions. However, (without resolving the status of unit production managers) and assuming that the second assistant directors are not supervisors I will consider the issue as to the legality of the roster and interchange provisions. First, as to the roster provisions, the Respondent's position supported by testimony of John Pommer, vice president, Production, Bing Crosby Productions, and Saul Weislow, associate general counsel and assistant secretary of the Association, is that these provisions were designed to provide an orderly way for employing qualified persons in the categories involved herein in the motion picture and television industry. Also according to Weislow and Pommer, these provisions were designed to assure that reasonably uniform requisites and qualifications are required of persons employed by employers signatory to contracts with Respondent and to protect the training program established under the contracts. Although the basic agreement and independent supplements are not identical, the provisions appeared to be substantially similar and the training program, roster provisions and interchange provisions except as indicated supra26 are essentially the same. The roster provisions are similar to those which I have considered in another case namely: International Photogra- phers of the Motion Picture Industries, Local 659 of the IATSE, Cases 31-CB-189, 31-CB-198, TXD (SF)-73-71, issued June 18, 1971. Therein the General Counsel contended the roster provisions were illegal on the basis of certain cases involving mergers or (consolidations) and resultant seniority contentions. Specifically referred to there and here were: N.L.R.B. v. Whiting Milk Corp., 145 NLRB 1035, enforcement denied 342 F.2d 8, (C.A. 1, 1965) and also Woodlawn Farm Dairy, 162 NLRB 48 at 49, 50, and Teamsters Freight Local No. 480, etc.; Hilton D. Wall, 167 NLRB 920, enfg. 409 F.2d (C.A. 6). Therein discrimination against employees not represent- ed by a union in establishing a new or merged seniority list was held to be illegal. Whatever may be the effect of these cases, there is no doubt that seniority does not have to be limited to the relative length of employment of respective employees nor based on any precise standard. See Ford Motor Company v. Hoffman, 345 U.S. 330 and Humphrey v. Moore, 375 U.S. 335 at 349. More pertinent is -the fact that the roster and the interchange provisions herein essentially involve a method of hiring and transferring persons.. Accordingly, it would appear that cases relating to the validity of hiring systems or arrangements would be more applicable. The Board has held valid hiring arrangements predicated on work time for specified employers where limited to a particular area. These appear to recognize the employment problem created by a situation where employees are not customarily and ordinarily, employed continuously by one employer but rather work on a particular job or project and may work at different times for various employers. In such case, some orderly system which provides for both some protection to those working and usually living in the area and some basis or standard of experience appears to be justified. Numerous cases have found "area limitations to be valid. See Bricklayers, Masons and Plasterers International Union of America, et at, 134 NLRB 751, International Marine Terminals, Inc., et at, 137 NLRB 588, Local Union No. 337, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, 147 NLRB 929 and 930, Interna- tional Union of Operating Engineers, Local No. 98, AFL- CIO, 155 NLRB 850 at 852. Also see particularly JM Company, Inc., 173 NLRB 227 (involving both area and limitation of experience to contract signatories ) where the Board affirmed Trial Examiner Foley who stated: I find from this evidence that Parker and Pate were discriminated against on January 22, 1968, by being denied recall on that date by Respondent Union, and by being replaced on that date by two men referred by Respondent Union and hired by Respondent Compa- ny. There now remains for disposition the vital question of whether the evidence shows they were discriminated against because of non-membership in the Union and not because they lacked area residence and work experience with contractors signatory or parties to the Contract. If the discrimination was for the latter reason, there, is no violation. (Citing Local 357 Teamsters v. N.L.R.B., 365 U.S. 667.) [Emphasis supplied.] 25 See Great Lakes Towing Co., 168 NLRB 695 at 702 26 As set forth in the complaint the independent supplement (in 1964) provisions differing from the 1964 independent supplement. provided for a unit production manager's roster. In November 1966, the basic agreement was amended to provide for such a roster but with 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The legality of the exclusive hiring hall operated by Respondent Union is not in issue. However, illegality does not attach per se to an exclusive hiring hall system operated by a union under a collective-bargaining contract providing that in connection with referrals by the union a preference shall be given to area residents of 2 years or more in accordance with the extent of their work experience as employees of employers signatory or parties to the collective-bargaining contract, and providing that no discrimination against persons seeking employ- ment because of membership or non-membership in the union shall be shown by the union either in the maintenance of a referrals for employment, and that the selection of applicants for referral by the union shall not in any way be based on or affected by union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect of union membership, policies or requirements. The evidence shows that the exclusive hiring hall operated by Respondent Union is operated under such a collective-bargaining contract. Therefore there is no presumption that the denial by the Respondent Company and Respondent Union, in the operation of e exclusive hiring hall system, of reemployment to non-members lacking permanent resi- dence in the area specified in the Contract, and lacking work experience as employees of contractors signatory or parties to the Contract, is on its face discriminatory conduct violative of the Act. The burden is on the General Counsel to prove that the conduct in issue constitutes illegal discrimination. [Citing cases] [Emphasis sup- plied.] I find from the evidence that Respondent Union had a referral list or register containing names of competent operating engineers with 2 years' permanent residence who were either living in the specified area or had left it temporarily with the intention to return, kept current by the re-registration of these engineers on the list or register on the first Monday in each quarter of each calendar year. I find that these engineers received a seniority or priority number based on the extent of work experience as employees of contractors signatory or parties to the Contract, and were listed on the register or list in the order of these numbers from lower to higher. I find no evidence in the record that the names were placed on the list or register, or in any order of preference on the list or register, by reason of member- ship in the Union or in connection with membership in the Union. It may well be that all those registered on the referral list and having seniority numbers were union members since the Contract and prior collective-bargain- ing contracts had union security clauses requiring membership in the Union after 7 days of employment, or after 30 days prior to the amendment that changed the period for the construction industry to 7 days after employment from 30 days after employment. In any event, if it was the case, it cannot be assumed that the list or register was discriminatory in favor of those having membership in the Union, and against those not having membership in the Union. [Citing cases.] [Emphasis supplied.] And see- also International Union of Operating Engineers, Local 302, AFL-CIO, 186 NLRB 21. The foregoing in my opinion established the validity of a hiring, arrangement or roster system such as here con- taii4ed, unless there is other evidence relative thereto which would reflect an illegal preference because of union membership. Finally there is also the decision of the United States Supreme Court cited in some of the cases above, Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 365 U.S. 667. Therein the Court held that the NLRB could not find hiring hall provisions to be illegal per se or infer discrimination merely because the hiring hall was operated by a union. The Court said that it would not assume that the union conducted its operations in violation of law. Similarly, it may not be assumed herein that the operation of the roster system is illegalper se. Accordingly, I conclude the roster system is a valid one unless the interchange provisions were to make it improp- er. These interchange provisions particularly with respect to the interchange of unit production managers are attacked by the General Counsel who asserts that the 4- year requirement for interchange by the unit production manager to be an assistant director is an unreasonable and arbitrary requirement. These requirements were worked out in connection with a merger between the former Unit Production Managers' Guild and the Respondent. They were designed to effect a working arrangement that would meet the requirements of the Respondent particularly with respect to conforming to its training program for first assistant directors. This in essence requires an approximate 4-year period between the time a trainee starts and completes his initial training period and then completes his period as a second assistant director before becoming a first assistant director. The total equates the 4-year requirement of work as a unit production manager. The General Counsel attacks this on the basis that second assistant directors may become such in a 90-day period in the event of unavailability of second assistant directors when the employer may hire without regard to a training period or the roster. Respondent's brief asserts that "the four-year restriction was imposed for the purpose of protecting the training program for the reason that the employers insisted on hiring new Unit Production Manag- ers from any source." If there had been no requisite as to the interchange of unit production managers in 1964, and (until a training program therefore was recently set up) since anyone could be hired as a unit production manager and, when a roster was subsequently established be placed thereon after 90 days, there would have been a gap in the requisites (under the training program) to become a first assistant director. Accordingly, were there complete interchangeability, an individual could have been placed on the roster as a unit production manager in a very short time and then been able to transfer as a first assistant director.27 Respondent contends that the 4-year require- mentwas therefore a reasonable one. I am of the opinion 27 Another point to note is that most first assistant directors and unit capacities or had been unit production managers for many years and met production managers at the time of this merger either were eligible in both the 4-year requirement. DIRECTORS GUILD OF AMERICA, INC. that this position is a valid one and that the interchange provision accordingly is not illegal. In this respect, Trager's case is somewhat unusual in that he was seeking to become either a first or second assistant director. Pommer testified that this was something that wasn't discussed in negotiations relating to the 1964 Basic Agreement as it was not anticipated that unit production managers would want to work as a second assistant director since the pay was much less. However, Trager sought interchange as either a first or second assistant director in a number of instances as set forth in the record. Another question is the application of the roster and interchange system to Trager A have set forth supra that Trager evidently had the requisite experience in work as a unit production manager for interchange were the contract given a literal interpretation. Was it unreasonable or illegal to interpret it as the Respondent and the Association have done so as to apply only to signatories? In my opinion, the parties could adopt a reasonable interpretation or even an oral amendment so long as such was not directed against a particular individual or group, or done for illegal or discriminatory reasons, which have not been shown herein. I accordingly conclude that the interpretation or applica- tion to signatories is valid. A second question is with respect to the interpretation of the contract in such way as to limit a "signatory" to an employer on whose payroll the person appears. Trager was on the payroll of NBC but performing work for CNP. The General Counsel contends that this was an arbitrary limitation and further that it was improper in view of the fact that the contract had been so interpreted that if an employer became a signatory, any person employed by such employer, who had the necessary background, would be treated as if the employer had been a signatory at all times. Such an interpretation, although apparently incon- sistent, may be viewed as a practical and necessary adjustment if other employers were to enter into contracts with Respondent such as the Basic or Independent Supplements. However, with respect to Trager, the Respondent took the position that his work for CNP could not be credited because NBC was not a signatory even though CNP was. As set forth supra there is evidence that the Association indicated a willingness to go along with Trager's applica- ,'tion if Respondent would withdraw its objections. It accordingly appears that this interpretation was not only highly technical and apparently arbitrary but such as to raise a question as to the motivation of the Respondent and to the validity of such an interpretation or application of the contract. On' this basis, a finding might be made, were Trager an employee, that the Respondent thereby violated Section 8(b)(2) of the Act. F. Application of the Miranda Concept The foregoing could also be considered under the Miranda doctrine.28 If a second assistant director were an employee, then it would appear that Respondent 's positions taken in Trager's case, wherein it distinguished between the 28 140 NLRB 181. 29 1 have previously found that the record indicates that Trager actually 725 employer for whom the work was performed and the employer who paid the employee so as to disqualify Trager, was so fine, technical, and unwarranted as to amount to an arbitrary, invidious, and irrelevant consider- ation and action when advanced against the interests of a member, Trager. Such conclusion becomes even more evident in the light of the testimony of Saul Weislow and Alfred Chamie that a major premise for the signatory requirement was that this would give assurance that the work was being performed and experience gained under like or similar circumstances. I recognize that NBC was in the television industry, that CNP was performing certain work therein, and also that CNP had a contract covering assistant directors but not unit production managers. Nevertheless, the distinction between "work" and `payroll" as it was applied herein seems to be a clearly arbitrary one. Accordingly, assuming Trager were an employee, it appears if he had been on the payroll of CNP, he would then have met all the asserted "requirements" of interchange,29 no valid objection could have been made, and he would have been eligible for the assistant director's roster. However, if Trager, as a unit production manager, were a supervisor, then assuming second assistant directors were employees, there might be an issue as to the application of Miranda to Trager as a supervisor member. Does the union have a duty under ie Miranda doctrine to a member supervisor if he were seeking interchange to a position as an employee? By analogy, it appears from the Board's decision in Steelworkers Local 1070 (Columbia Steel and Shafting Co.), 171 NLRB 945, involving claimed discrimi- nation in seniority application to a foreman upon his returning to the bargaining unit that the Act may apply. If so, and if second assistant directors were employees (which I have found they are not), then I would consider the Miranda doctrine applicable. Since I have found second assistant directors to be supervisors (and unit production managers do not appear to be employees), I find the Miranda doctrine to be inapplicable to Trager herein. Conclusions of Law Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following conclusions of law: 1. The Association is an employer within the meaning of the Act. 2. Second assistant directors are supervisors within the meaning of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) and (2) of the Act as alleged. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclu- sions, it is hereby recommended that the complaint in the above matter be dismissed in its entirety. functioned as a unit production manager for the requisite period.