Alexander Film Co.

In the Matter of ALEXANDER FILM CO. AND ALEXANDER PREVIEW COM- PANY and INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA Case No. R-2884.-Decided October 11, 1941 Jurisdiction : motion picture industry. Investigation and Certification of Representatives : existence of question : refusal to accord union recognition ; election necessary. Unit Appropriate for Collective Bargaining : multiple employer unit : production and maintenance employees with specified inclusions and exclusions of two Companies found to constitute a single employer within the meaning of Section 2 (2) of the Act. Mr. David P. Strickler and Mr. Thomas M. Burgess, of Colorado Springs, Colo., for the Companies. Mr. George W. Brayftld, of Denver, Colo., and Mr. Louis Ziman, of Colorado Springs, Colo., for the Union. Mr. Milton E. Harris, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 20, 1941, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada, herein called the Union, filed with the Regional Director for the Twenty-second Region (Denver, Colorado) a petition, and on June 30, 1941, an amended petition, alleging that a question affecting commerce had arisen concerning the representation of employees of Alexander Film Co., herein called the Film Company, and Alexander Preview Company, herein called the Preview Company, Colorado Springs, Colorado, 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 July 29, 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 36 N. L. R. B., No. 7. 57 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On August 4, 1941 , the Regional Director issued a notice of hearing, which was duly served upon the Film Company and the Preview Company, herein collectively called the Companies , and upon the Union. Pursuant to notice , a hearing was held on August 14 and 15, 1941 , at Colorado Springs, Colorado , before Paul S. Kuelthau, the Trial Examiner duly designated by the Chief Trial Examiner. The Companies were represented by counsel and the Union by representa- tives, and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties . During the course of the hearing, the Trial Examiner made various rulings on motions and on objections to the admission of evidence . The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Companies filed a brief on September 2, 1941, and the Union filed a brief on September 8, 1941, pursuant to leave, which briefs 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 Alexander Film Co. is a Delaware corporation , with its principal office and place of business in Colorado Springs, Colorado, where it is engaged in the production and distribution of motion-picture ad- vertising films. It manufactures films advertising various nationally advertised and distributed products, and arranges for the presenta- tion of these films in theaters throughout the United States. It re- ceives approximately $2,500,000 gross income annually for the pro= duction and distribution of such films , about 98 per cent of which are shipped to destinations outside the State of Colorado. Alexander Preview Company is a Colorado corporation , with its principal office and place of business at Colorado Springs, Colorado, where it is engaged in the production and distribution of motion-pic- ture films advertising coming motion -picture feature attractions , other- wise known in the trade as Pre View pictures . It receives ap- proximately $100,000 gross income annually for such films, 98 per cent of which are shipped to destinations outside the State of Colorado. The Companies admit that they are engaged in commerce within the meaning-of Section 2 (6) and (7) of the Act. - ALEXANDER FILM CO. 59 II. THE ORGANIZATION INVOLVED International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION On May 20, 1941, the Union, having been advised by the employees herein involved that they all worked for the Film Company, informed the Film Company that the Union represented a majority of the em- ployees, and requested a bargaining conference. On the same day the Film Company rejected the request. At the hearing the president of the Preview Company testified that he knew of the Union's request, and that, if the Union were to have specifically included the Preview Company in its request, he would not have conceded the appropriate- ness of the unit but would have referred the Union to the Preview Company's attorneys. The record shows that the Union represents a substantial number of employees in the unit hereinafter found to be appropriate. We find that a question has arisen concerning the representation of employees of the Companies. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operation of the Companies described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union claims that the unit appropriate for the purposes of collective bargaining should consist of all the production and mainte- 1 A statement of the Regional Director was introduced in evidence at the hearing, setting forth that the Union had submitted to him 78 signed cards authorizing it to represent the "undersigned employee of the Alexander Film Company," 77 of which were dated between April 2, 1941, and May 12, 1941 , and one of which was undated ; the signatures all appeared to be genuine; 72 of the signatures appeared on the Film Company's pay roll of June 3, 1941; and 6 of the signatures appeared on the Preview ,Company's pay roll of June 6, 1941 . In addition, a representative of-the Union testified that about 30 new members had signed cards since the submission to the Regional Director. There are about 155 employees in the unit ( 11 of whom are on the Preview Company's pay roll ), and about 100 more non-supervisory clerical and administrative employees on the pay roll (7 of.whom are on the Preview Company's pay roll). 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nance employees of the Companies at their Colorado Springs plant, exclusive of office, clerical, supervisory, and executive employees, out- side salesmen, and actors 2 The Film Company and the Preview Com- pany, who were represented throughout this proceeding by a single firm of attorneys and filed a joint brief, oppose the Union's claim only to the extent of asserting (1) that the employees of each of the two Companies should constitute a separate unit, and (2) that any unit should include all the employees at the Colorado Springs plant (ex- cluding only outside salesmen, and, inferentially, supervisory employ- ees and actors). As to the Companies' claims of separate units for each Company, it appears that for many years the Film Company has been engaged in producing and selling advertising motion-picture films, with its plant and office in three separate buildings located close together within a single enclosure at Colorado Springs. The Preview Company was organized on February 4, 1939, and took over some of the Film Coln- . pany's employees to carry on a similar business in the same buildings, except that the Preview Company's films advertise "coming attrac- tions" as shown in motion picture theaters. J. Don Alexander, Jr., whose father personally controls more than 50 per cent of the Film Company's voting stock, owns 98 per cent of the Preview Company's voting stock, and works half-time for each of the Companies.. In ad- dition, some of-the Preview Company's other employees are part-time employees who also work part-tune for the Film Company. The Pre- view Company secured from the Film Company a 5-year lease, dated February 1, 1939, covering certain sections in the Film Company's buildings (including telephone, telegraph, light, heat, water, janitor, watchman, and fire-protection services), together with certain enu- merated equipment of the Film Company, such as desks, cabinets of various sorts, stools, cameras and accessories, title boards and necessary equipment, reel action boards, chairs, typewriters, and laboratory equipment; and the rent thereunder was to be $200 per month or 12 per cent of the Preview Company's gross income for the preceding month, whichever is the greater. In addition to. the privileges granted in the lease, the Preview Company frequently utilizes other Film Company equipment and also the services of various Film Company employees for limited periods of time; and for such services and equipment the Preview Company is charged an amount, determined by the Film Company, which will reimburse it not merely for its out-of-pocket expense but 2 The Union argued that this unit included 5 of the Film Company's 12 departments (maintenance, service, camera, art, and laboratory) and 4 of the Preview Company's 7 departments (service, art, laboratory, and recording), but excluded clerical employees in those departments. If they had no physical contact with the films. ALEXANDER FILM CO. 61 also for a share of the general overhead and profit which the Film Company thinks proper. At its current business level the Preview Company could not operate outside the Film Company's plant. The Preview Company customarily buys all its materials except films from the Film Company. The Film Company does not perform for any other customer services similar to those performed for the Pre- view Company. The Union maintains that the employees. are all paid by checks signed by the Film Company, are intermingled at work, and are wholly unaware of any distinction between the two Companies. That the Companies are also unaware of any real dif- ference, as distinguished from a mere bookkeeping difference, is shown by Alexander, Jr.'s, uncertainty on the witness stand as to which services and equipment the Film Company was obligated to furnish under the lease and which it was entitled to make a separate charge for, and how that charge was to be determined. We find that the Film Company and the Preview Company con- stitute a single employer, within the meaning of Section 2 (2) of the Act. The Companies contend that a production and maintenance unit is not appropriate, since it excludes office and clerical employees. We are not persuaded by this contention and find that a unit of production and maintenance employees exclusive of office and clerical employees is here appropriate.3 At the hearing, the Union stated that printers, watchmen, and janitors were ineligible for membership, and urged that they should not be included in the unit.4 The Companies advanced no argument against the exclusion of these employees other than the argument directed to the inappropriateness of a production and maintenance unit. We find that' printers, janitors, and watchmen should be excluded from the unit. The parties were unable to reach agreement as to whether certain employees in the production and maintenance departments of the Companies were engaged in clerical work rather than in production and maintenance work involving some physical contact with or handling of the films. However, the duties of these individuals were not sufficiently developed in the record to permit decision as to their inclusion in or exclusion from the unit. That issue we shall reserve for disposition upon appropriate challenge at the election, if the occasion arises. 8 See Matter of Castle & Cooke Terminals, Ltd. and International Longshoremen's & Warehousemen's Union, Local 1-37, Unit #2, etc ., 28 N. L. R. B., No. 75; Matter of Burton-Dixie Corporation and Mattress, Spring & Bedding Workers Local 185, etc., 21 N. L. R. B . 289; Matter of Solvay Process Company, Baton Rouge, Louisiana and Oil Workers' International Union, Local No. 424, etc., 21 N. L. R. B. 882. 4 The Union also indicated that there might be other unspecified classifications of production and maintenance employees not eligible for membership. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all the production and maintenance employees of the Companies at their plant at Colorado Springs, Colorado, exclusive of office, clerical, supervisory, and executive employees, printers, jan- itors, watchmen, outside salesmen, and actors, constitute a unit ap- propriate for the purposes of collective bargaining, and that said unit will insure to employees of the Companies the full benefit of their right to self-organization and to collective bargaining, and will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Companies can best be resolved by means of an election by secret ballot. The parties expressed no opin- ion concerning an eligibility date. In accordance with our usual practice, we shall direct that the employees eligible to vote shall be those who were employed during the pay-roll period immediately preceding the date of this Direction of Election, subject to such limi- tations and additions as are set forth in the Direction. 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. A question affecting commerce has arisen concerning the repre- sentation of employees of Alexander Film Co. and Alexander Preview Company, Colorado Springs, Colorado, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the Companies' production and maintenance employees, ex- cluding office, clerical, supervisory, and executive employees, printers, janitors, watchmen, outside salesmen, and actors, 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 ELECTION 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, 49 Stat. 449, 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 investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Alexander Film Co.- and Alexander Preview Company, Colorado Springs, Colorado, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date ALEXANDER FILM CO. 63 of this Direction of Election, under the direction and supervision of the Regional Director for the Twenty-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 the Companies' production and maintenance employees at their plant in Colorado Springs, Colorado, who were employed during the pay- roll period immediately preceding the date of this Direction, and em- ployees 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 office, clerical; supervisory, and executive employees, printers, janitors, watchmen, outside salesmen, and actors, and those persons who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, for the purposes of collective bargaining.