Walter Lantz Productions

In the , Matter of WALTER L_\NTZ PRODUCTIONS , UNIVERSAL PICTURES CO., INC. ; and SCREEN CARTOON GUILD In the Matter of LOEw's INC., ASS'N. OF MOTION PICTURE PRODUCERS, INC., MOTION PICTURE PRODUCERS & DISTRIBUTORS OF AMERICA, INC., & PAT CASEY and SCREEN CARTOON GUILD In the Matter of RAYMOND KATZ STUDIO and SCREEN CARTOON GUILD In the Matter of LEON SCHLESINGER PRODUCTIONS CORP. and SCREEN CARTOON GUILD, INDEP. Cases Nos. H-1449 to R-14.52, inclusive, respectively.-Decided October 23, 1939 Screen Cartoon Industry-Investigation of Representatives: refusals of em- ployers to bargain with petitioning union: in one case no reason assigned by employer, in another because of claimed inappropriateness of unit, in two others because of alleged non-applicability of Act to respective businesses-Jurisdiction: "sustained; in-two eases-producer of animated motion picture cartoons exclusively sells cartoon negatives to distributors within State for contemplated national and foreign distribution of prints made therefrom; in one case producer ex- clusively sells negatives to second producer within State, who adds sound effects and exclusively resells such negatives to distributor in same State for contem- plated national and international distribution of prints made therefrom-Unit Appropriate for Collective Bargaining: all production employees in animated cartoon department of one employer, including directors, story men, model de- signers, layout men, character layout artists, background artists, animators, assistant animators, inbet Veeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees ; in cases of other three employers, same classifications save for omission of certain classifi cations not employed ; directors included although exercising certain supervisory functions and empowered to recommend hiring and discharging; department heads of one employer likewise included; cell washers included despite relative want of occupational skill; employees within unit under individual employment contracts not excluded by reason thereof; cameramen in cartoon department of one employer included despite claim of jurisdiction by rival union allegedly representing cameramen in all other departments; producer-directors excluded because of desire of employer and no objection by union-Representatives: petitioning union does not request certification on record ; testimony as to majority representation by officer of union, unsupported by documentary proof; eligibility to participate in choice : employees ' in unit eligible to vote in elec- tion;-although they may be presently working for another employer under assignment of services pursuant to individual employment contract-Elections Ordered: separate elections for employees of each employer. 16 N. L. R. B., No. 31. 247383-40-vol. 16--15 215 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. William R. Walsh and Mr. David Sokol, for the Board. Mr. Alfred Wright, by Mr. Gordon Hall, Jr., of Los Angeles, Calif., for Lantz and for Universal. Loeb and Loeb, by Mr. Milton H. Schwartz, of Los Angeles, Calif., for Loew's, for Association of Motion Picture Producers Inc., for Motion Picture Producers & Distributors of America, Inc., and for Pat Casey. Mr. Isaac Martin Sackin, of Los Angeles, Calif., for Katz and for Schlesinger. Mr. George E. Bodle, of Los Angeles, Calif., for the Guild. Mr. H. E. Lindersmith, of Los Angeles, Calif., for Frank Tipper and certain other employees of Lantz. Mr. Herbert Aller, of Los Angeles, Calif., for the Photographers' Local. Mr. Stanley E. Fox, of Los Angeles, Calif., for the Laboratory Technicians' Local. Faries cQ McDowell, by Mr. Leonard S. Janofsky, of Los Angeles, Calif., for The Society of Motion Picture Film Editors. Mr. Parker Bailey, of counsel to the Board. DECISION DIRECTION OF ELECTIONS AND ORDER STATEMENT OF THE CASE On February 1, 1938, Screen Cartoon Guild, herein called the -Guild, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition, and on June 8, 1939, an amended petition, alleging that a question affecting commerce had arisen con- cerning the representation of employees of Walter Lantz and George H. Hall, co-partners doing business under the name of Walter Lantz Productions,' Universal City, North Hollywood, California, herein called Lantz, and of employees of Universal Pictures Co., Inc., Uni- versal City, North Hollywood, California, herein called Universal, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 5, 1938, the Guild filed a similar petition with the Regional Director, and on November 10, 1938, April 7, May 11, and June 7, 1939, successive amended petitions, i The amended petition set forth the name of the employer as Walter Lantz Productions. The record shows that the employer is a co-partnership composed of Walter Lantz and George H. Hall. WALTER LANTZ PRODUCTIONS 217 concerning the representation of employees of Loew's Incorporated, herein called Loew's, of Association of Motion Picture Producers, Inc., of Motion Picture Producers & Distributors of America, Inc., and of Pat Casey, all located at Culver City, California.2 On April 5, 1938, the Guild filed a similar petition with the Regional Director, and on June 8, 1939, an amended petition, concerning the representation of employees of Raymond Katz Studio, Los Angeles, California, herein called Katz. On October 17, 1938, the Guild filed a similar petition with the Regional Director, and on June 8, 1939, an amended petition, concerning the representation of employees of Leon Schlesinger Productions,8 Hollywood, California, herein called Schlesinger. Lantz, Loew's, Katz, and Schlesinger are at times re- ferred to herein collectively as the Companies. On April 12, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 '(c) of the Act, and Article III, Sections 3 and and 10 (c) (2), of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered an investigation upon the-peti- tions and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that for the purposes of hearing and for all other purposes the cases be consolidated and that one record of the hearing be made. On May 22, 1939, the Regional Director issued a notice of hearing in the consolidated cases, copies of which were duly served upon Lantz, upon Loew's, upon Katz, upon Schlesinger, upon the Guild, and upon the following labor organizations : International Alliance of Theatrical Stage Employees and Moving Picture Machine Op- erators of the United States and Canada, Los Angeles Industrial Union Council, and Central Labor Council. Thereafter, the Regional Director issued amended notices of hearing on June 5, June 19, and July 5, copies of each of which were duly served upon the foregoing persons and organizations upon whom the original notice of hearing was served. Pursuant to such notice, a hearing was held on 'July 27, July 31, August 1, and August 2, 1939, at Los Angeles, Cali- fornia, before Henry W. Schmidt, the Trial Examiner duly desig- nated by the Board. The Board, Lantz, Loew's, Katz, Schlesinger. and the Guild appeared by their respective counsel. At the hearing Frank Tipper, acting through his counsel in his own behalf and in behalf of 67 other persons, employees of Lantz, filed 2 "Metro-Goldwyn-Mayer, Inc.," rather than Loew ' s, was named in the original petition as one of the employers , but the amended petitions all named Loew 's. By "Metro-Goldwyn- Mayer, Inc.," the petitioner in the original petition presumably intended Metro -Goldwyn- Mayer Corporation . The second and third amended petitions did not name Association of Motion Picture Producers, Inc., Motion Picture Producers &. Distributors of America, Inc., and Pat Casey as employers of employees involved in the proceedings ; in the fourth amended petition , however, these three employers again were named. 3 The employer is named in the amended petition as Leon Schlesinger Productions Corp. The employer is an individual proprietor whose correct trade name is as above stated. 218, DECISIONS OF NATIONAL LABOR RELATIONS BOARD a motion pursuant to permission theretofore granted by the Trial Examiner, requesting leave to intervene in the proceedings, for the purpose, among other things, of opposing certification of the Guild as collective bargaining representative of said employees. At the hearing International Photographers Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States And Canada, herein called the Photographers' Local, orally moved and thereafter filed its written motion for leave to intervene in the proceedings, which the Trial Examiner granted. International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada, Local 683, herein called the. Laboratory Technicians' Local, appeared at the hearing solely for the purpose of asserting its claim that the units alleged in the amended petitions did not include laboratory technicians. It was stipulated and agreed by the Guild and the Laboratory Technicians' Local that the Guild in these pro- ceedings claimed no jurisdiction over laboratory technicians. . At the hearing, on joint motion of the Guild and the Board, and without objection by any other party, the petitions, as amended, were dismissed as to the investigation of representatives of employees of Universal Pictures Co., Inc., Association of Motion Picture Producers, Inc., Motion Picture Producers & Distributors of America, Inc., and Pat Casey. Lantz, Loew's, Katz, Schlesinger, the Guild, the Photographers' Local, the Laboratory Technicians' Local, Frank Tipper and the 67 other employees of Lantz hereinbefore referred to, and the Board participated in the hearing. The Photographers' Local was repre- sented by its business representative, and the other parties by their respective counsel. All the parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing and again at the close of all proof Katz and Schlesinger moved to dismiss the amended petitions with respect to these two parties, for want of jurisdiction of the subject matter. The Trial Examiner denied these motions. Said parties moved that the hearing and the pro- ceedings in respect to them be severed from the consolidated pro- ceedings herein. The Trial Examiner denied this motion. At the conclusion of the hearing said parties moved to dismiss the amended petitions and the proceedings with respect to them, for want of suf- ficient proof, and, further, to dismiss the same with respect to all employees under individual contract with either Katz or Schlesinger, ,on the ground that such employees already had bargained with their respective employers directly. Said parties further moved to dis- miss the amended petitions and the proceedings regarding themselves, for the asserted reasons that the Guild had failed at the hearing to WALTER LANTZ PRODUCTIONS 219 establish its status as a labor organization , within the meaning of the Act, and failed to establish that any employees of either of said parties were members of the Guild. The Trial Examiner denied these motions of Katz and Schlesinger. For reasons hereinafter ap- pearing, this ruling of the Trial Examiner is hereby affirmed. At the close of the hearing Lantz and Loew's filed motions to dismiss the amended petitions and the ,proceedings with respect to themselves for want' of 'pr, oof-concerning certain matters therein stated. These motions were referred to the Board for appropriate action. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby af- firmed. All of the aforesaid motions to dismiss the amended petitions and the proceedings are hereby denied. Pursuant to application duly made by Lantz, Loew's, Katz, and Schlesinger, leave was granted by the Board to all parties to submit briefs herein. On August 21 a brief was submitted by Katz and Sclsinger. Subsequent to the hearing it was stipulated and agreed . by and between the Guild and The Society of Motion Picture Film Editors, an unaffiliated labor organization , that the Guild in these proceed- ings does not claim jurisdiction over, nor claim to be the bargaining representative for, the cartoon editors, assistant editors, and film librarians employed by the Companies ; that the Board may exclude said classifications of employees from the unit to be represented by the Guild; that the stipulation covering said matters shall be made a part of the record; and that said matters may be considered by the Board as evidence in these proceedings. The original stipulation was lodged with the Board on September 2, and the Board hereby directs the filing instanter of said stipulation as part of the record herein. Said Society shall be deemed to have appeared in these pro- ceedings solely for the purposes of said stipulation. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE COMPANIES A. Loeic's Loew's Incorporated is a Delaware corporation, engaged in the pro- duction, sale, and distribution of motion pictures , including animated motion picture cartoons . Its principal place of business is at Culver City, California. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 31, 1937, Loew's became the successor to Metro- Goldwyn-Mayer Corporation, a corporation hereinafter referred to as M. G. M., and in consequence the motion picture producing busi- ness and property theretofore operated by M. G. M: at Culver City has been operated by Loew's ever since that date. At the hearing Loew's and the Board stipulated and agreed in substance that for the purpose of determining the jurisdiction of the. Board herein over Loew's and its busines's, the Board might find as facts concerning the business of M. G. M. during the fiscal year of 1937 the facts which the Board found in that connection in Matter of Metro-Goldwyn-Mayer Studios, and Motion Picture Producers Assn., et al., and Screen Writers' Guild, Inc., Cases Nos. R-402 to R-420, inclusive ,4 with the reserva- tion, however, that such facts, if so found, would pertain only to the general business to which Loew's has succeeded, as aforesaid, and would have no specific relationship to the present conduct of Loew's 'so-called "animated cartoon department." Upon this stipulation and agreement, and upon the record, we find the following facts with 'respect, to the motion picture producing business of Al. G. M. in the fiscal year of 1937: M. G. M. during.the fiscal year of 1937 purchased its film from three distributing companies located in California. These three companies, J. E. Brulatour, Inc., Smith & Aller, Ltd., and G. King Charney, are the exclusive distributors, respectively, of Eastman Kodak film manufactured in Rochester, New York, Du- pont film manufactured in Parlin, New Jersey, and Agfa film manufactured in Binghamton, New York. Both J. E. Brulatour, Inc., and Smith & Aller, Ltd., carry inventories of film in their California, warehouses. Agfa film is shipped to a California warehouse of Agfa and there purchased by C. King Charney in amounts determined by the sales requirements of that company. The amount of film, measured in feet, bought by M. G. M. from these distributors, during the periods of time indicated, is as follows : Distributing company Type and amount of film measured in feet Period of time during which the purchases were made E Brulatour Inc J (155,700 ,000 positive ------ 000 negative 7 500 August 1, 1936, to August 1, . ______________ , . Smith & Aller Ltd ______________ , , 9,960,000 Canadian -___________ f19,415,623positive_____________ 1937. September 1936, to August 30, _______________ , 11,056,249 negative ______________ 1937. C. King Charney 28 400 infra -red September 1, 1936, to Septem- _________________ , ________________ her 1, 1937. 4Matter of Metro -Goldwyn-Mayer Studios, and Motion Picture Producers Assn., et at.; and Screen Writers' Guild, Inc., 7 N. L. R. B., 662, 672 et seq. WALTER LANTZ PRODUCTIONS 221 Among the purchases of M. G. M. were other articles pur- chased from concerns located in California whose stock of such articles either entirely or to a substantial extent originated out- side of California.. Articles purchased in substantial quantities by M. G. M. from distributing companies, 75 per cent or more of whose stock of such articles originated in States other than California, were Douglas fir, white and sugar pine, and hard- wood from the Globe Lumber Company, hardware from the Union Hardware & Metal Company and from the California Hardware Company, and theatrical and drapery fabrics from Dazians, Inc. M. G. M. also bought photographic supplies from Eastman Kodak Stores, Inc. The Eastman Kodak - Company supplies which that distributing company sells come from Rochester, New York. During the fiscal year ending September 1, 1937, M. G. M. spent approximately $29,500,000 in the production of motion pictures. It produced 41 feature-length pictures and 43 short subjects. During -the fiscal year it made 11,230 prints of feature-length pictures, of which 10,223 were shipped out of the State of California. It also made 7,547 prints of short subjects, of which 6,872 were shipped out of California. As set forth above, Loew's on December 31, 1937, succeeded to the motion picture producing business of M. G. M. at Culver City, and has since conducted that business. There is no showing that the nature and character of this business, its extent, and its relationship to and effect upon interstate commerce, as found above, have under- gone any substantial change since that date. We presume, and we find, that the interstate character of this business as presently en- gaged in by Loew's is substantially the same as the interstate char- acter of the business existent prior to December 31, 1937. Loew's animated motion picture cartoons, both in "black-and- white" and "Technicolor," are produced in Loew's animated cartoon .department at Culver City. About 15 cartoon negatives are there produced each program year. During the 1937-38 program year approximately 300 prints of 11 negatives were made in black-and- white and were shipped and distributed from Culver City to points throughout the United States and foreign countries, for purposes of theatre exhibition. Loew's also produced in that program year, and proposes to continue producing, cartoon negatives for reproduc- tion in Technicolor. The Technicolor film negatives thus produced are developed and prints thereof are made on order of Loew's by the Technicolor Motion Picture Corporation, herein called the Techni- color Company, at its laboratories in Hollywood, California, and in London, England. On Loew's order, the Hollywood laboratory of the 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Technicolor Company made in the 1937-38 program year approxi- mately 325 Technicolor prints from two cartoon negatives made by Loew's, and these prints were distributed by the Technicolor Com- pany on Loew's order throughout the United States and in foreign countries. During the period from September 1938 until the time of the hearing the Technicolor Company on Loew's order also made approximately 325 prints of each cartoon negative delivered to it by Loew's, and distribution of these prints, likewise on Loew's order, was made during that -period by the Technicolor Comparly'as "follows 200 prints of each cartoon to points throughout the United States and Canada, 100 to points in foreign countries other than England, and 25 to points in the British Isles. Such distribution is regularly made by the Technicolor Company from its laboratories to the same exchanges which received Loew's black-and-white cartoons. During the period from September 1938 until the time of the hearing Loew's made four black-and-white and five Technicolor cartoon negatives which were developed and printed, and the prints of which were distributed, in the manner and by the agencies above described. At least 90 production workers are elriplgyed:-by::Lw?s 'in.;its animated cartoon department. B. Lantz Walter Lantz Productions is engaged in the production and sale of animated motion picture cartoons. Its principal place of business is at Universal City, California. The film negatives of all cartoons which Lantz produces are sold and delivered by it to Universal Pictures Co., Inc., a corporation. Delivery is completed, and title passes to the transferee, at Universal City, California. In turn, Universal makes prints from these negatives and through its motion picture distribution system regularly distributes the prints to points in every State of the United States, in Canada, and in foreign coun- tries, for theatre exhibition." Since Lantz's negatives have been and are made only for Univer sal, and since interstate and foreign distribution of the prints there- from has been and is contemplated and undertaken by Universal, Lantz's business necessarily has been and is carried on as an in- tegrated functional unit of a Nation-wide and international business enterprise operated by Universal for the distribution of motion 6 Lantz does not distribute,-lease, or dispose of the negatives of animated motion picture cartoons , or any prints thereof , in any manner whatsoever, except as above stated. It conducts no activities outside the county of Los Angeles , California . Universal approves the stories for use in cartoon production by Lantz, but exercises no control over the pro- duction itself . Universal has no proprietary interest in the business of Lantz, nor has Lantz any such interest in the business of Universal , and Lantz exercises no control over Universal's distribution of Lantz ' s product. WALTER LANTZ PRODUCTIONS 223 pictures. The regular marketing and distribution of the cartoons originating with Lantz in which Universal is so engaged constitute trade and commerce among the several States, and between the States and foreign countries; and Lantz's regular production con- stitutes an indispensable contribution to such commerce. The cessa- tion of Lantz's production because of a strike or other form of industrial strife or unrest would necessarily result in the cessation of,,.thei,rnovenlent ofthe.cartoons in the interstate and foreign com- merce which both Lantz and Universal contemplate. Lantz used in the course of its production during the past year approximately $3,100 worth of materials and supplies, all of which it obtained from sources located within the State of California. During the last program year 24 one-reel cartoons were produced for Universal, and the film negatives thereof delivered to Universal, by Lantz. About 71 persons are regularly employed by Lantz, and certain other persons are employed on a "per picture" basis. C. SchZesinger and Katz Leon Schlesinger is an individual proprietor engaged in the pro- duction and sale of animated motion picture cartoons and using the trade name,. Leon Schlesinger Productions, in such business. All his production operations are carried on at a studio in Los Angeles, California, where he regularly employs approximately 128 persons. Raymond Katz is an individual proprietor engaged in the produc- tion and sale of animated motion picture cartoons and using the trade name, Raymond Katz Studio, in such business. All his production operations are carried on separately from those of Schlesinger, but in a building on the same lot with the one occupied by Schlesinger.° Katz regularly employs approximately 34 persons. For some 9 years Schlesinger and Warner Bros. Pictures, Inc., herein called Warner, have had a contract providing for the sale of cartoon-,negatives, by, Schlesinger to Warner. The contract is still in force. During the 1937-38 program year Warner purchased 38 car- toon negatives from Schlesinger pursuant to this contract. In making up the quota of cartoon negatives regularly supplied under the con- tract Schlesinger includes the entire output of Katz, which Schle- singer regularly purchases from Katz. In the 1937-38 program year 10 cartoon negatives were purchased by Schlesinger from Katz. All the cartoon negatives produced by Schlesinger and Katz are thus sold by Schlesinger to Warner and are delivered at its place of busi- ness in California. Prints from these negatives are made or caused $ Schlesinger regularly finances the pay roll of Katz in advance of actual production, but has nothing to do with the direction of Katz's employees , has no interest in its busi- ness, and does not supervise its stories or give any instructions as to its production. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be made by Warner and distributed or caused to be distributed by it throughout the United States and to foreign countries . During the 1937-38 program year approximately 93 per cent of the prints so made from the Schlesinger-Katz negatives were shipped and distrib- uted for theatre exhibition to points in the United States outside of California and to points in foreign countries , and approximately 7 per cent to points within California. Schlesinger, like Loew's, makes some cartoon negatives for repro- duction in Technicolor and some for reproduction in black-and-white. The Technicolor negatives are regularly sent by Schlesinger to the Technicolor Company laboratories in Hollywood for developing, and the black-and-white negatives direct to Warner's laboratories in Hol- lywood for the same purpose . Katz makes only black-and-white cartoons, the negatives of which it likewise sends to Warner for devel- oping. Schlesinger adds sound effects to Katz's cartoons . Cutting and editing are done by Schlesinger and by Katz under Warner's direction, but Warner exercises no general supervision over the production. Schlesinger 's cartoons are issued under the trade name, Merrie Melodies, and Katz's cartoons are issued tinder the trade name , Looney Tunes. Both trade names are registered in the United States Patent Office. Schlesinger also occasionally makes cartoons in his own studio under the latter trade name. Schlesinger 's letterhead gives no inde- pendent address for Schlesinger, but gives only the address of Warner, viz, "Warner Bros . Studios, 1351 N. Van Ness Ave., Hollywood, Cal." At the hearing Leon Schlesinger testified , and we find , that his place of business is at that address. Schlesinger's letterhead also displays prominently the two registered trade names; Merrie Melodies and Looney Times, and the legend, "Distributed by Warner Bros." Schle- singer's contract with Warner precludes the use of these two registered trade names in any business except that done with Warner. Apart from the afore-mentioned business of Schlesinger with Warner, Schle- singer produced some occasional "animations" for inclusion in feature pictures for other companies . However , this constituted only a very small percentage of Schlesinger 's business. Warner has no proprietary interest in Schlesinger's or Katz's busi- ness or studio, nor has Schlesinger or Katz any such interest in the business or studio of Warner . After selling and delivering the car- toon negatives to Warner in California , Schlesinger takes no part in Warner's distribution of the prints made from them. It is apparent that the animated cartoon business of Schlesinger and Katz is carried on, like that of Lantz in relation to Universal, as an integrated functional unit of a national and international motion picture marketing and distributing enterprise , in this instance that of Warner. What we found above in connection with the business WALTER LANTZ PRODUCTIONS 225 of Lantz, both as to its contribution to interstate and foreign com- merce and as to the effect on such commerce of stoppages of Lantz's production caused by industrial strife, applies equally to the busi- nesses of Schlesinger and of Katz, and we so find. We do not regard it as material that Katz does not sell its entire output to Warner directly, but only through Schlesinger. Katz, as well as Schlesinger, contemplates interstate and international distribution of his cartoons by Warner. Schlesinger and Katz each purchases within the State of California all the supplies and materials which they use in the course of pro- duction. Only a small percentage of Schlesinger's and Katz's cost of production, however, is for raw materials. II. THE ORGANIZATIONS INVOLVED Screen Cartoon Guild is a labor organization unaffiliated with any national or other labor organization. It admits to membership "any person employed in a motion picture studio in the animation depart- ment thereof, with the exception of supervisory, clerical and main- tenance employees." Among those eligible to membership are direc- tors, story men, model designers and layout men, character layout artists, background artists, animators and assistant animators, inbe- tweeners, checkers and tracers, opaquers, cameramen, and cell washers. Employees of each of the Companies who are members of the Guild constitute separate sections of its organization, each of which desig- nates a representative to the executive board of the Guild. The sec- tions do not have their own officers. Meetings of the entire Inember- ship are held from time to time, although the sections usually meet separately. International Photographers Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors of the United States and Canada is a labor organization char- tered by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States,and Can- ada, a labor organization affiliated with the American Federation of Labor. The Photographers' Local admits to membership all first cameramen, second cameramen, assistant cameramen, still camera- men, industrial cameramen, and any other employees doing photo- graphic work in motion picture studios. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 683, is a labor organization also chartered by International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors of the United States and Canada. The Laboratory Technicians' Local admits to membership laboratory technicians. 226 DECISIONS OF -NATIONAL -LABOR RELATIONS BOARD The Society of Motion Picture Film Editors is a labor organization unaffiliated with any national or other labor organization. It admits to its membership cartoon editors, assistant cartoon editors, and film librarians.' III. THE QUESTIONS CONCERNING REPRESENTATION In January 1938 the Guild - informed Lantz by -letter-that the majority of Lantz's employees had designated the Guild their repre- sentative for purposes of collective bargaining with that employer in regard to wages, hours of service, and other working conditions, and requested that a meeting for such purposes be held by Lantz with a committee of the Guild. Lantz made no reply to this request. On March 15, 1939, the Guild in a letter to Loew's stated that a majority of Loew's employees engaged in animated cartoon produc- tion had designated the Guild as their sole collective bargaining representative, offered proof of that fact, and requested that a meeting be ; held. for the purposes of, according the Guild recognition as .such representative and of engaging in collective bargaining. On May 15 the parties met, but Loew's questioned the appropriateness of the unit which the Guild claimed to represent and stated that until this question was resolved by the Board Loew's would not recognize or deal with the Guild as the bargaining representative of its employees. On May 16 the Guild again requested Loew's by letter addressed to its counsel to grant the Guild recognition as the exclusive collective bargaining representative of employees engaged in the production of animated cartoons. Loew's has not granted recognition to the Guild nor taken any steps to bargain with it. On December 13, 1937, the Guild requested Schlesinger and Katz to recognize it. as the exclusive collective bargaining representative of their respective employees and to negotiate a collective agreement with it as such representative. Thereafter these employers each expressed the opinion that they were not subject to the Act and refused to grant recognition or engage in collective bargaining with the Guild. We find that questions have arisen concerning the representation of employees of Lantz, of Loew's, of Katz, and of Schlesinger. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that each of the questions concerning representation which has arisen, occurring in connection with the respective operations of 7 We infer this fact from the stipulation, heretofore referred to, between this organiza- tion and the Guild, with respect to the exclusion of these classes of employees from the alleged bargaining unit. WALTER LANTZ PRODUCTIONS 227 each of the Companies described in Section I above, has a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and between the States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS The petitions, as finally amended, allege' that a unit appropriate for the purpose of collective bargaining with each of the Companies consists of "all production employees in the cartoon department [of such employer] including the following classifications:: directors; story men; model designers ; layout men ; character layout artists ; background artists; animators; assistant animators; inbetweeners; checkers; tracers; s opaquers; 9 cameramen; and cell washers, and excluding all clerical and supervisory employees." At the hearing it was stipulated and agreed by the Board, the Guild, and Loew's, that the production workers employed by. Loew's in its animated cartoon department comprise the following classifi- cations : directors, story men, model designers, layout men, character layout artists, background artists, animators, assistant animators, inbetweeners, checkers, tracers,' opaquers,9 cameramen, and cell wash- ers. A similar stipulation and agreement made by the Board, the Guild, and Lantz at the hearing provided that the production employ- ees of Lantz include the same classifications, excepting model design- ers and character layout artists. Likewise, the Board, the Guild ,1 Schlesinger, and Katz stipulated and agreed that production employ- ees at the Schlesinger and Katz studios, respectively, include the same classifications as at Loew's, excepting that Katz has no model designers, and neither employer has character layout artists. The work usually done by employees in that classification is performed at the Schlesinger studio by directors. Production of animated motion picture cartoons involves the inven' tion of a story, usually humorous in subject and adaptable to animated cartoon exhibition, the creation and drawing of an extended sequence of cartoon pictures or drawings portraying the story in "animation effects,"'and the photographing of these pictures or drawings upon a reel of motion picture film. The "idea" for a story may originate with anyone. The director and the story man develop the idea into a story suitable for screen projection within the allotted time for exhibition. The layout man works with the director and the story man from the outset. He plans the scenic background or "layout" of the story upon which the "animation" will eventually be super- 8 Also known as inkers. 9 Also known as painters. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posed. Character layout artists make sketches of the characters. When the story and the layout are completed, the director arranges for the animators and background artists to assume their work. With respect to the animators, the director will assign a particular char- acter in the story to one of them, who then will make the first guiding drawings of the part played by that character. For example, the animator may draw a character with a hand in a given position and then repeat the drawing with the hand in another position to which it is to be portrayed as moving. When the animator has finished his work, the assistant animator and the inbetweener will take over the completion of the series of drawings thus begun. In the mentioned illustration the assistant animator will proceed to make additional drawings showing graduated changed positions of the hand between the two "extreme positions," and the inbetweener will finish the series of drawings necessary to create the illusion of motion when the entire series of pictures eventually is shown in rapid, succession. Meanwhile, the background artists will have drawn the background scenes in which the characters are to move. After the character and background drawings are completed, the checkers examine the draw- ings for possible flaws in arrangement. When this is done, the drawings of characters are sent to the tracers and opaquers, who trace the character drawings on celluloid and fill in the blackened or colored portions of the drawings as indicated by the model designer. `The celluloids, commonly termed "cells," together with the back- ground drawings, are then sent to the camera department, where the cells are superposed upon the background drawings and thus photographed upon the motion picture film. When the series of drawings has, been photographed, the celluloids are cleaned by the cell washers for future use. It is apparent that marked functional interdependence exists in the work of all these employees. All are skilled workmen, and the record shows some interchangeability in the positions they occupy. Thus the animators at times work as directors, and contrariwise. At Schlesinger, as noted, the directors regularly perform the work of character layout artists. There is a showing also that workers in the less skilled positions advance to those requiring greater skill. While the workers of lesser skill, such as inbetweeners, tracers, opaquers, and cell washers, are paid by the Companies on an hourly basis rather than on the weekly basis upon which the employees in the other mentioned classifications are paid, we do not believe this differentia- tion sufficient to outweigh the consideration to be given to the mutual- ity of interest necessarily existent among all -employees where such functional coherence and interchangeability of work and position obtain. WALTER LANTZ PRODUCTIONS 229 There is no dispute among the Companies and the labor organiza- tions involved as to the appropriateness in general of the respective alleged units for purposes of collective bargaining. The units are substantially the same as that found to be appropriate by the Board in another representation case recently decided, involving the ani- mated motion picture cartoon industry."' We find these units to be, in general, appropriate for the purposes of collective bargaining. In view of the stipulations and agreements, heretofore mentioned, be- tween the Laboratory Technicians' Local and the Guild, and between The Society of Motion Picture Film Editors and the Guild, we shall exclude laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians from the units. There are some conflicts, however, as to whether certain classifications of employees should be included within or excluded from the alleged units. We shall discuss these conflicts separately. Directors; Department heads at Schlesinger The Companies contend that directors are improperly included within the alleged units. The basis of this contention is not clear but presumably concerns certain supervisory powers which these em- ployees exercise. The directors at all the Companies have the right to recommend hiring and discharge, but are without authority to employ or discharge. Final decisions with respect to hire and tenure of employment rest with the respective - proprietors themselves at Lantz andd'dt Katz, with one Quimby, the "head of the studio," at Loew's, and with Schlesinger himself or his "assistant to the pro- ducer," one Binder, at Schlesinger. Further, the work of the di rectors involves to a certain extent planning and supervision of the work of other employees. What we have said heretofore concerning the interdependence of work and interchangeability of position in motion picture cartoon production and the substantial productive functions therein per- formed by the directors demonstrates that despite their supervisory. duties directors have interests as employees which relate them most closely to the other production workers. As stated above, the di- rectors are eligible to membership in the Guild, and that organization is the only one which claims jurisdiction over them in these proceed- ings. The Guild desires the inclusion of directors in the units. Under these circumstances we are of the opinion that directors properly come within the alleged units." 10 Matter of Walt Disney Productions, Ltd., and Federation of Screen Cartoonists ; Matter of Walt Disney Productions, Ltd., and The Society of Motion Picture Film Editors, 13 N. L. R. B. 885. 31 See Matter of Southern Chemical Cotton Company and Textile Workers Organizing Comhnittee , 3 N. L. R. B. 869, 874; Cf. Matter of Fleischer Studios, Inc . and Commercial 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schlesinger apparently claims that the heads of his various depart- ments, viz., story, animation, inbetween, background, inking and painting, and camera departments, should be excluded from the unit alleged to be appropriate for his employees. These departmental heads have the right to recommend the hiring and discharge of em- ployees in their respective departments. What production work, if any, they engage in or what the character of their supervisory, func- tions is, does not clearly appear and can only be inferred 'from their respective designations, such as "head animator." They are eligible to membership in the Guild, and the Guild requests that all produc- tion employees in the respective classifications be included in the unit. For reasons set forth above in connection with our decision to in- clude directors in the appropriate units, we think the departmental heads of Schlesinger should be included in the Schlesinger unit.12 None of the other Companies claims that the heads, if any, of his or its respective departments in animated motion picture cartoon production should be excluded from the units. Producer-directors at Loew's Loew's contends that two producer-directors, Harmon and Ising, whom it employs, should not be included within the unit alleged to be appropriate for its employees. These two employees enjoy the title of "producer-director" and customarily obtain "screen credit," is e., the inclusion of their names with the company title on the finished cartoon film. The record does not show that they possess any proprietary interest in Loew's business or exercise official authority. We are not satisfied from the record that their functions are suf- ficiently differentiated, if at all, from those of the other directors to warrant our excluding them from the unit on that ground. However, they are not eligible to membership in the Guild, and the Guild assumed the position at the hearing that they were not within the appropriate unit. In view of this consensus as between the inter- ested employer and the Guild, we shall exclude them. At the studios of Lantz, of Schlesinger, and of Katz the only producers are the proprietors themselves. Artists d Designers Union-American Federation of Labor, 3 N. L. R. B. 207. In that case the Board decided that certain production employees engaged in supervisory capacities should be excluded from a unit there found to be appropriate, composed of production workers employed in an animated motion picture cartoon business. It did not appear in that case that these supervisory employees were eligible to membership in the petition- ing union, nor that it desired their inclusion in the unit, nor that their productive work, was as closely related to the work of other production employees as is true in the present case. "See Matter of Lidz Brothers, Incorporated and United Wholesale Employees, (Local No. 65), 5 N. L. It. B. 757, 760. WALTER LANTZ PRODUCTIONS Cell Washers 231 The Companies ask that cell washers be excluded from the respec- tive alleged units. Cell washers are relatively unskilled workers. As heretofore set forth, these employees are eligible to membership in the Guild, and the Guild desires their inclusion in the units. We see no persuasive reason for excluding the cell washers from a pro- ductionn.,uinit. such,:<as that -herepnoposed. The fact that they possess,-,-. less skill than other workers does not warrant their exclusion from a unit composed of production employees. Cameramen at Loew's The Photographers' Local claims jurisdiction over all employees of Loew's engaged in photographic work in its cartoon department and in other departments. It does not claim to represent cameramen employed by Lantz, Schlesinger, or Katz. Its intervention in these proceedings is solely for the purpose of opposing the inclusion, within the alleged unit of Loew's employees, of the cameramen em- ployed in Loew's cartoon department. The record shows that the Photographers' Local has never bargained collectively on behalf of these cameramen, and that they are not members of that union. The Guild claims that the cameramen presently employed by Loew's in the cartoon department are members of the Guild and as such have designated it their bargaining representative. It is shown that Loew's cartoon department occupies a separate building across the street from the principal studio lot, and that the cartoon cameramen work in that building. We are of the opinion that cameramen em- ployed by Loew's in its cartoon department are properly included within the alleged appropriate unit. Loew's animated cartoon pro- duction business constitutes a sufficiently distinct enterprise to war- rant the determination, on that basis, of the propriety of including cartoon cameramen within the unit. Since there is no claim that the cameramen employed by other Companies are improperly within the respective alleged units, we shall include them. Schlesinger employees vender individual contracts Schlesinger contends that certain of his employees, 47 in number, should be excluded from the unit of his employees alleged to be ap- propriate, for the reason that each of said 47 employees has made' an individual contract of employment with Schlesinger covering wages and other working conditions. Some of these contracts were executed prior to the passage of the Act. Although the dates of execution and provisions for salary differ in the various contracts. 24T383-40--vol. 16--16 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all contracts embody substantially the same- general provisions. Each provides for an initial 6-month term of exclusive employment, with options in the employer to renew the contract at the termina- tion of successive 6-month periods thereafter. Compensation is stated. Provision is made for the assignment to the employer,of the property interest in all creative work of the employee accom- plished during the period of employment, for the loan or transfer of the employee's services to another employer, and for other mat- ters. Schlesinger's contention rests on the assumption that there is no need for including the 47 employees within a unit established for the purposes of.collective bargaining, since they already have bar- gained with their employer. We see no merit in this contention. These employees are entitled to collective representation. There are many matters concerning working conditions not covered by the individual contracts, which .they together with the other-employees` in the alleged unit may desire to make a,common subject of collective bargaining with the employer. These employees may desire to pre- sent collective requests for changes or modifications in the terms of their individual contracts through the collective bargaining repre- sentative of all employees in the alleged unit, and use the collective strength of all employees to accomplish that end. These 47 em- ployees, and other employees under individual contract with any of the Companies are not by virtue of such a contract to be excluded from the alleged units.13 We find that all production employees of Walter Lantz Produc- tions, including the following classifications : directors, story men, layout men, background artists, animators, assistant animators, in- betweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees, laboratory technicians, cartoon editors, assistant cartoon editors, and film li brarians, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of said em- ployer the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. We find that all production employees in the animated cartoon department of. Loew's Incorporated, including the following classifications : directors, story men, model designers, layout men, character layout artists, background artists, animators, assistant animators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees; producer-directors, laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians, constitute a unit appropriate for 13 Cf. Matter of Metro-Goldwyn-Mayer Studios, and Motion Picture Producers Assn., et al. and Screen Writers' Guild, Inc., 7 N . L. R. B. 662, 697 ; Matter of The Gates Rubber Company and Denver Printing Pressmen and Assistants Union No. 40, and Denver Typo- graphical Union, No. 49, 8 N. L. R. B. 303, 306. WALTER LANTZ PRODUCTIONS 233 the purposes of collective bargaining, and that said unit will insure to employees of said employer the full benefit of their right-to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. We find that all production employees of Raymond Katz Studio, including the following classifications : directors, story men, layout men, background artists, animators, assistant animators, inhetween- ers, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees, laboratory tech- nicians, cartoon editors, assistant cartoon editors, and film librarians, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to employees of said employer the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. We find that all production employees of Leon Schlesinger Pro- ductions, including' the following classifications: directors, story men,,. model';' designers, layout 'men; background artists, animators, assistant animators, inbetweeners, checkers, tracers, opaquers, cam- eramen, and cell washers, and excluding all clerical and supervisory employees,14 laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of said employer the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the'policies'of the- Act. VI. THE DETERMINATION OF REPRESENTATIVES The Guild does not request a certification of representatives upon the record. The secretary of the Guild testified that at the time.of the filing of the original petition regarding employees of Lantz the Guild had approximately 60 members at Lantz's studio; that at the time of the filing of the first amended petition with respect to Loew's and at the time of the hearing the Guild had approximately 90 members at Loew's animated cartoon department; and that at the time of the hearing the Guild had approximately 80 members at Schlesinger's studio and approximately 30 members at Katz's studio. The number of members thus claimed would in each instance con- stitute a majority of the employees within the respective units found to be appropriate. There is evidence of a recent defection from the Guild among some of its members at Lantz's studio. Under the circumstances we believe that the questions concerning representation which have arisen can best be resolved by elections by secret ballot. We accordingly shall direct that such elections be held, 14 Department heads are, however, to be included. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Those employees of the respective Companies who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, including employees who did not work during such pay-roll period because they were ill or on vacation, or who were then or have since been temporarily laid off, but excluding those persons who have since quit or been discharged for cause, shall be eligible to vote. With- respect to employees u under individual,,, contracts with an employer, which provide for an assignment of the services of the employee, we have recently determined the eligibility of such employees to vote in elections, as follows : any ... [employee] who, pursuant to such an assignment, is rendering service on the date which determines the eligibility of voters, to a company other than that with which he has his contract, shall be permitted to vote with ... [other persons] employed by the Company with which he has contracted. Such .. [employee] shall not, however, participate in the election among . . . [persons] employed by the company to which he has been assigned at such time.'- We adhere to this rule. The eligibility of those employees of Schlesinger who have signed individual contracts, and of employees of the other Companies under contracts making similar provision,, shall be governed by this rule. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Questions affecting commerce have arisen concerning the repre.. sentation of employees of Walter Lantz Productions, of Loew's Incorporated, of Raymond Katz Studio, and of Leon Schlesinger Productions, respectively, within the meaning of Section 9 ;(c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees of Walter Lantz Productions, includ- ing the following classifications : directors, story men, layout men,, background artists, animators, assistant animators, inbetweeners,. checkers, tracers, opaquers, cameramen, and cell washers, and exclud- ing all clerical and supervisory employees, laboratory technicians,. cartoon editors, assistant cartoon editors, and film librarians, consti- tute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations. Act, 15 Matter of Metro -Goldwyn-Mayer Studios, and Motion Picture Producers Assn., et at- and Screen Writers' Guild, Inc., 7 N. L. R. B. 662, 699. - WALTER LANTZ PRODUCTIONS 235 3. All production employees in the animated cartoon department of Loew's Incorporated, including the following classifications : direc- tors, story men, model designers, layout men, character layout artists, background artists, animators, assistant animators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and ex- cluding all clerical and supervisory employees, producer-directors, laboratory technicians, cartoon editors, assistant cartoon editors, and film ibrarians, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 4. All production employees of Raymond Katz Studio, including the following classifications : directors, story men, layout men, back- ground artists, animators, assistant animators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees, laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians, constitute a unit appropriate for the purposes of collective bargaining, within the ^meaning^of--Section 9 (b) of-the,-National Labor:. Relations- Act. 5. All production employees of Leon Schlesinger Productions, including the following classifications : directors, story men, model designers, layout men, background artists, animators, assistant ani- mators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees,,, laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians, constitute a unit appropriate for the purposes of collective bargaining, within the meaning. of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTIONS By,, virtue of. and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigations authorized by the Board to ascertain representatives for the purposes of collective bargaining, a separate election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board and subject to 11 See footnote 14. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article III, Section 9, of said Rules and Regulations, among em- ployees in each of the following described groups who were employed by the respectively named Company during the pay-roll period of such Company next preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, or who were then or have since been temporarily laid off, but excluding those persons who have since quit or been discharged for cause, to determine whether or not such employees desire to be represented by Screen Cartoon Guild for the purposes of collective bargaining : (1) All production employees of Walter Lantz Productions, Uni- versal City, North Hollywood, California, including the following classifications : directors, story men, layout men, background artists, animators, assistant animators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers,; and excluding all clerical and supervisory employees, ^ laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians. (2) All production employees in the animated cartoon department of Loew's Incorporated, Culver City, California, including the fol- lowing classifications : directors, story men, model designers, layout men, character layout artists, background artists, animators, assistant animators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees, producer-directors, laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians. (3) All production employees of Raymond "Katz Studio, Los Angeles, California, including the following classifications : directors, story men, layout men, background artists, animators, assistant ani- mators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and supervisory employees, laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians. (4) All production employees of Leon Schlesinger Productions, Hollywood, California, including the following classifications : direc- tors, story men, model designers, layout men, background artists, ani- mators, assistant animators, inbetweeners, checkers, tracers, opaquers, cameramen, and cell washers, and excluding all clerical and super- visory employees '17 laboratory technicians, cartoon editors, assistant cartoon editors, and film librarians. 17 See footnote 14. WALTER LANTZ PRODUCTIONS 237 ORDER By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby ORDERED that the petitions and amended petitions for investigation and certification of representatives of employees of Universal Pic- tures Co., Inc., Universal City, North Hollywood, California, and of employees of Association of Motion Picture Producers, Inc., of Mo- tion Picture Producers & Distributors of America, Inc., and of Pat Casey, all of Culver City, California, filed by Screen Cartoon Guild, be, and they hereby are, dismissed without prejudice.