Paramount Pictures, Inc.

In the Matter Of PARAMOUNT PICTURES, INC. and SCREEN READERS GUILD OF NEW YORK In the Matter of TWENTIETH CENTURY Fox FILM CORP. and SCREEN READERS GUILD OF NEW YORK In the Matter of R. K. 0. RADIO PICTURES, INC. and SCREEN READERS GUILD OF NEW YORK In the Matter Of UNIVERSAL PICTURES CO., INC. and, SCREEN READERS - GUILD OF NEW YORK In the Matter Of COLUMBIA PICTURES CORP. and SCREEN READERS GUILD OF NEW YORK In the Matter of LOEW'S, INC. and SCREEN READERS GUILD OF NEW YORK Cases Nos. R-2550 to R-2557.-Decided July 15, 1941 Jurisdiction : motion picture industry. Investigation and Certification of Representatives : existence of questions: each of the Companies contested the appropriate unit and union's majority ; elections necessary. Units Appropriate for Collective Bargaining : salaried readers in the story- reading departments in the New York City offices of each of the Companies, excluding piece-work readers and supervisory employees. Definitions Piece-work readers who are not listed on the regular pay rolls of the various companies, and whose work is subject to the supervision and control of the story editors of such companies as a matter of ultimate result rather than in the manner and method of their performance, are not employees within the meaning of the Act. Mr. Arthur Israel, Jr., of New York City, for Paramount. Mr. Edwin P. Kilroe, by Mr. Harry J. McIntyre, of New York City, for Twentieth Century. Mr. Gordon E. Youngman and Mr. Robert H. Dann, of New York City, for Universal. Schwartz & Frohlich., by Mr. Max Rose, of New York City, for Columbia. Mr. Irving H. Greenfield, of New York City, for Loew's. Boudin, Cohn & Glickstein, by Mr. Sidney Fox, of New York City, for the Guild. Mr. Louis Cokin, of counsel to the Board. 33 N. L. R. B., No. 82. 447 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On November 22, 1940, Screen Readers Guild of New York, herein called the Guild, filed with the Regional Director for the Second Region (New York City) five separate petitions, each alleging that a question affecting commerce had arisen concerning the representa- tion of persons employed as screen readers of the Company named in such petition at its home office in New York City, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The Companies named in the petitions are : Para- mount Pictures, Inc., herein called Paramount; Twentieth Century Fox Film Corp., herein called Twentieth Century; R. K. O. Radio Pictures, Inc., herein called R. K. 0.; Universal Pictures Co., Inc., herein called Universal; and Columbia Pictures Corp., herein called Columbia. On December 23, 1940, the Guild filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of persons employed as screen readers at the home office in New York City of Loew's, Inc., herein called Loew's, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On March 13, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as' amended, ordered investigations in each of the cases and authorized the Regional Director to. conduct them and to provide for appropriate hearings upon due notice. On April 28, 1941, the Board, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the six cases be consolidated for all purposes. On April 29, 1941, the Regional Director issued a notice of hear- ing in the consolidated cases, copies of which were duly served upon the Guild and upon each of the Companies involved in these pro- ceedings. Pursuant to notice, a hearing involving each of the Com- panies was held on May 6, 7, 8, 12, and 13, 1941, at New York City, before Daniel Baker, the Trial Examiner duly designated by the Chief, Trial Examiner. Each of the Companies and the Guild were represented by counsel and participated in the hearing. During the course of the hearing Twentieth Century and R. K. O. offered in evidence as exhibits certain contracts covering their screen readers in Hollywood, California. The Trial Examiner rejected the offer. PARAMONT PICTURES, INC. 449 The Trial Examiner's rulings rejecting these exhibits is hereby over- ruled and the exhibits are hereby admitted into evidence as part of the record in these proceedings .,, During the course of the hearing the Trial Examiner made several rulings on motions and on objec- tions 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 , with the exception noted above, are hereby affirmed. The Guild and all of the Companies involved herein have filed briefs, which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES The Companies herein, among others, participated in a previous hearing conducted by one of the Board's Trial Examiners in 1941, following which the Board issued its Decision and Direction of Elec- tions.2 That Decision contained under the heading "Findings of Fact. I. The business of the Companies" detailed statements of the business operations of the Companies herein, among others. At the hearing herein, the Trial Examiner introduced in evidence, by agree- ment with the parties, the 'detailed statements alluded to above. The findings of fact contained in the Decision in the previous case relevant to the character and extent of the businesses of the Com- panies herein, are hereby incorporated in and made a part of this Decision and Direction of Elections. H. THE ORGANIZATION INVOLVED Screen Readers Guild of New York is an unaffiliated labor or- ganization admitting to membership screen readers in the service of each of the Companies at its home office in New York City. III. THE QUESTIONS CONCERNING REPRESENTATION All parties agreed that in each case a question concerning repre- sentation exists. Each Company stated that it contested both the unit proposed by the Guild and the Guild's majority. There were introduced in evidence statements by the Regional Director that the Guild had submitted to her membership application and authorization cards in support of its claims to represent screen readers in the service of each of the Companies at its home office in These exhibits are Rejected Exhibits Nos 1 and 2. 2 Matter of Twentieth Century Fox Pilm Corporation, et at. and Screen Publicists Guild, 32 N. L R B 717. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York City. These statements indicate that the Guild repre- sents a substantial number of screen readers in the service of each Company.3 We find that questions have arisen concerning the representation of employees of each of the Companies. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of each of the Companies referred to in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS The Guild contends that the salaried and piece-work readers in the service of each of the Companies at its home office in New York City, excluding supervisors, constitute six separate appropriate units. Each' of the Companies contends that the piece-work readers are not employees within the meaning of the Act, and -that in any event the piece-work readers and the salaried readers should not be included in the same unit. The Companies do not contest the appropriateness of separate units for the salaried readers. 8 The statements of the Regional Director with respect to the representation claim of the Guild show the following: Paramount-Of the 11 membership application and authorization cards submitted by the Guild , which were variously dated between January and December 1940, 9 bore the signa- tures of persons in the service of Paramount as of January 2, 1941. There were approxi- mately 14 persons in the alleged appropriate unit at Paramount as of January 2, 1941. Twentieth Century-Of the 12 membership application and authorization cards submitted by the Guild, which were variously dated between January and December 1940 , 8 bore the names of persons who were in the service of Twentieth Century as of January 2, 1941. There were approximately 13 persons in the alleged appropriate unit at Twentieth Century as of January 2, 1941 R K 0 -Of the 5 membership application and authorization cards submitted by the Guild , 2 were dated between April and June 1940 and 3 between October and December 1940 . Three bore the signatures of persons whose names appeared on R K O's pay roll of December 3, 1940. There were approximately 8 persons in the alleged appropriate unit at R. K. 0. as of December 3, 1940. ' Universal-The 2 membership application and authorization cards submitted by the Guild , 1 signed between January and March 1940 and 1 between April and June 1940, bore the names of persons which appear on Universal's pay roll of January 2, 1941 There were 5 persons in the alleged appropriate unit at Universal as of January 2, 1941. Columbia-Of the 4 membership application and authorization cards submitted by the Guild , which were variously dated between January and September 1940, 1 bears the signa- ture of a person in the service of Columbia as of January 2, 1941. There were .3 persons in the alleged appropriate unit at Columbia as of January 2, 1941 _ Loew's-Of the 16 membership application and authorization cards submitted by the Guild, all of which were variously dated between January and December 1940 , 13 bore the names of persons in the service of Loew''s as of January 2, 1941 There were 19 persons in the alleged appropriate unit at Loew 's as of January 2, 1941. PARAMOATMP PICTLTRESI, rec. 451 Piece-work readers are engaged in reading scripts of novels, plays. and other forms of literature for the purpose of writing synopses. The piece-work readers do not work on the premises of the Com- panies, and either call upon or in turn are called by the story or assistant story editors of the various Companies, who assign them specific jobs. At the time of his first assignment the story editor gives the piece-work reader verbal instructions as to the format of the synopsis. The piece-work reader then returns to his home or wherever he may choose to work and prepares his synopsis. The Company furnishes the piece-work reader with paper and typewriter supplies, but the piece-work reader has to furnish his own typewriter. There is a tacit understanding that all normal length jobs are to be returned to the Companies within 24 hours. The story editor may criticize or suggest specific changes in the synopsis, and the piece-work reader then embodies such changes in his synopsis. The piece-work readers submit a bill with each synopsis and some of the Companies pay them as the work is submitted, and others at the end of each week. The record indicates that the prices for synopses are generally fixed, but that they are flexible and subject to change upon agreement be- tween the piece-work readers and their story editors. The testimony indicates that the piece-work readers generally feel themselves subject to call by the Company for which they do a majority of their work, but no definite agreement to that effect was shown in any case, although there is evidence in the record that in several instances story editors of one or another of the respective Companies have requested piece- work readers not to perform work for other Companies. Frequently, piece-work readers work for more than one of the Companies involved in this case, or work for companies which are not engaged in the motion picture industry. The Companies do not list piece-work readers on their regular pay rolls, and the supervision and control over their work exercised by the story editors are concerned less with the manner and method of their performance than with the ultimate results. The salaried readers do the same type of work as the piece-work readers but work on the premises of the Companies and are generally assigned "more important" work. The salaried readers receive vaca- tions and holidays with pay, optional group insurance, and annual bonuses. It appears that piece-work readers are not entitled to any of these benefits. No Social Security tax has been deducted from the monies paid to the piece-work readers and the Companies do not pay any unemployment compensation insurance in behalf of the piece- work readers. - Upon the foregoing facts, and upon the basis of the entire record, we find that piece-work readers are not "employees" within the mean- 450122-42-vol 33--30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of the Act,4 and we shall not include them in the appropriate units. From the foregoing facts and upon the basis of the entire record, we find that salaried readers employed in the story-reading depart- ments in the New York City office of each of the Companies, excluding piece-work readers and supervisory employees, constitute, in the case of each Company, a unit appropriate for the purposes of collective bargaining, and that said units will insure to employees of each Com- pany the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the questions concerning representation which have arisen can best be resolved by separate elections by secret ballot. The Companies stated that in the event the Board directs elections, salaried readers who are in their employ at the time of the election should be eligible to vote. In accordance with our usual practice, we shall direct that persons eligible to vote in the respective elections shall be the employees in the appropriate unit at each Company, respectively, whose names appear on the Company's pay roll for the period immedi- ately preceding the date of this Direction of Elections, subject to such limitations and additions as are set forth in the Direction hereinafter. 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 each of the Companies, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All salaried readers employed in the story-reading departments in the New York City offices of each of the Companies, excluding piece- work readers and supervisory employees, constitute, in the case of each Company, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 4 See Matter of Twentieth Century Fox Film Corp . and Screen Publicists Guild, 32 N. L. R B 717; Matter of Federal Ice cC Cold Storage Company and Produce Drivers and Einplo gees Union, Local No 630, 18 N. L R. B. 161 ; Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of America, Locals 259 and 374, 18 N. L. R. B 837 , Matter of Houston Chronicle Publishing Company and Houston News- boys Union, Local 456, 28 N L. R B. 1043 . 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 ;,Matter of Seattle Post-Intelligencer Department of Hearst Publications, Inc and Seattle Newspaper Guild, Local No. 82, 9 N L R . B 1262; Matter of KMOX Broadcasting Station and St Louis Local, American Federation of Radio Artists, ap/iliated with A . F. of L , 10 N. L R B 479 PAIRAMONT PIC'rURE'St, INC. 453 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigations authorized by the Board to ascertain representatives for the purposes of collective bargaining with Paramount Pictures, Inc., Twentieth Century Fox Film Corp., R. K. O. Radio Pictures, Inc., Universal Pictures Co., Inc., Columbia Pictures Corp., and Loew's, Inc., separate elections 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 Second Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all salaried readers employed in the story-reading departments in the New York City offices of the Companies during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid. off, but excluding piece-work readers, supervisory employees, and employees who have since quit or been discharged for cause, to determine whether or not said employees desire to be represented by Screen Readers Guild of New York for the purposes of collective bargaining. MR. EDWIN S. SMITH , dissenting : I cannot agree with that part of the Decision which excludes from the appropriate unit piece-work readers. I particularly regard the failure to find that the piece-work readers in this case are employees within the meaning of the Act as an unwar- ranted restriction of the right of self-organization and representation which the Act was intended to afford. The narrow interpretation placed by the majority upon the employment relationship in this instance is contrary to the broad and liberal policy of statutory construction heretofore followed by this Board.' 5 Matter of Metro-Goldwyn-Mayer Studios and Motion Picture Producers Assn., et at. and Screen Writers' Guild, Inc , 7 N. L. R. B . 662 ; Matter of Seattle Post-Intelligencer Depart- ment of Hearst Publications, Inc. and Seattle Newspaper Guild, Local No. 82 , 9 N. L. R. B 1262; Matter of KMOX Broadcasting Station and St. Louis Local, American Federation of Radio Artists, Affiliated with A. F. of L, 10 N L. R B 479 ; Matter of The Connor Lumber & Land Company and International Woodworkers of America, Local No. 125 ( C. 1. 0.), 11 N. L. R. B. 776 ; Matter of Interstate Granite Corporation and Granite Cutters' Inter- national Association of America, Charlotte Branch, 11 N. L R B . 1046; Matter of Wash- ington Branch of the Sun Life Insurance Company of America and Industrial and Ordinary Insurance Agents Union, No. 21354 , Industrial and Ordinary Insurance Agents Council, 15 N. L. R. B. 817; Matter of The Park Floral Company and United Greenhouse and Floi al 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a recent Decisions the Board found that free-lance artists em- ployed by the Companies involved herein, among others, were not employees within the meaning of the Act. I dissented from the Board's Decision in that case. The facts concerning the employment relationship of the piece-work readers in this case are substantially the same as the facts with respect to the free-lance artists in the previous case. For the reasons set forth in my dissenting opinion in the pre- vious casej and under all the circumstances in this case, I would find that the piece-work readers are employees as defined in the Act, that their work is closely related to and integrated with the work of the other employees in the story-reading departments, and that their wages, hours, and working conditions are sufficiently similar to entitle them to be included in the appropriate units. Accordingly, I would include in the appropriate units piece-work readers. Workers Union No. 510 of the United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations , 19 N. L R. B. 403; Matter of Edward F. Reichelt, Robert J Hill and Russel J. Jensen, doing business as a copartnership under the name and style of Paul A. Reichelt Company and Chicago Fur Workers Union, Local No. 45, 21 N. L R B . 262, Matter of Cape Cod Trawling Corpo- ration, at al. and American Communications Association, affiliated with the C. I. 0, 23 N. L. R. B. 208, Matter of Hearst Publications, Incorporated, a Corporation ( Los Angeles Examiner Department ) and Newspaper Circulators, Wholesale Distributors, and Miscel- laneous Employees Union No. 21666, Ameiteas. Federation of Labor, 25 N L R B 621; Matter of John Hancock Mutual Life Insurance Company and American Federation of Industrial and Ordinary Insurance Agents Union No. 2157 , East St. Louts and Vicinity, Illinois, at al, 26 N L R B, No. 105 ; and Matter of Stockholders Publishing Company, Inc, et at. and Los Angeles Newsboys Local Industrial Union No. 75, C. I 0, 28 N L. R B 1006 The cases in Rhich the Board has held that no employment relationship exists are clearly to be distinguished by an absence of supervision and control, which is present here, over the persons whom it is contended hold the status of employees . See, for example, Matter of Federal Ice & Cold Storage Company and Produce Drivers and Employees Union, Local No. 630, 18 N L. R B. 161; Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of America, Locals 259 and 374 , 18 N. L. R . B. 837; and Matter of Houston Chronicle Publishing Company and Houston Newsboys Union, Local 456, 28 N. L R B. 1043. B Matter of Twentieth Century Fox Films Corporation and Screen Publicists Guild, 32 N. L R. B. 717. i See my dissenting opinion in Matter of Twentieth Century Fox Films Cot poratton and Screen Publicists Guild, 32 N L R B 717.