Loew's Inc.

In the Matter of LOEW'S INC. AND MARCUS LOEW BOOKING AGENCY and SCREEN OFFICE & PROFESSIONAL EMPLOYEES GUILD, LOCAL 109 OF THE U. 0. P. W. A., C. I: O. Case No. R-3405.-Decided January 07, 194 Jurisdiction : motion picture distribution industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition until certified by the Board ; request of both parties that eligibility be determined as of the date of the hearing, for the reason that the unit was agreed upon on the basis of the inclusion and exclu- sion of specified persons, granted; election necessary. Unit Appropriate for Collective Bargaining : all office, clerical, secretarial, and accounting employees at the home offices of the Companies, excluding execu- tives, officers of the Companies, district managers, radio salesmen, travelling auditors, lawyers, engineers, radio announcers and commentators, and cer- tain specifically-named employees ; stipulation for exclusion of "persons eligible to membership in . . . labor organizations other than the petitioning union" held proper, subject to the Board's interpretation that this refers to persons who are represented in a separate unit under an exclusive recognition contract between the Companies and a labor union other than the petitioner. Mr. Irving H. Greenfield, of New York City, for the Companies. Boudin, Cohn do Glickstein, by Mr. Sidney Fox, of New York City, and Mr. David Golden, of New York City, for the Union. Mr. Marvin C. Wahl, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 28, 1941, Screen Office & Professional Employees Guild, Local 109 of the U. O. P. W. A., C. I. 0., herein called the Union, filed with the Regional Director for the Second Region (New York City) an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of Loew's Inc. and Marcus Loew Booking Agency,, New York City, 'Marcus Loew Booking Agency was erroneously designated in the formal papers as "Marcus Loew Booking Agency, Inc." 38 N. L. R. B., No. 121. 602 LOEW'S INC. 603 herein collectively called the Companies, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat 449, herein called the Act. On December 4, 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 an investigation and authorized the Regional Director to conduct it and provide for an appropriate hearing upon due notice. On December 11, 19411 the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Companies and the Union. Pursuant to notice, a hearing was held on December 18, 1941, at New York City, before Frederick R. Livingston, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Com- panies and the Union were represented by counsel 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 with respect to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner' and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES Loew's Inc., a Delaware corporation, is engaged in the distribution of motion pictures in every State of the United States, operating through the medium of 32 branch offices. From October 1, 1939, to October 1, 1940, Loew's released 50 feature motion pictures, 70 short subjects, and 104 news reels; the majority of these were produced in California. The negatives of the motion pictures are sent to labora- tories either on the Pacific coast or at Fort Lee, New Jersey. The positive prints are shipped to various exchanges for distribution to exhibitors who, after using them, return them to the exchanges. Dur- ing the same period, Loew's New York and New Jersey exchanges, which are located in New York City, received from the laboratories 1,271 prints of feature pictures, 927 prints of short subjects, and 11,652 prints of news reels. The New York and New Jersey exchanges service 700 theatres in New York and 272 in New Jersey. Marcus Loew Booking Agency is a New York corporation and a subsidiary of Loew's Inc. It is engaged in managing theatres and operating radio station WHN, which is licensed by the Federal Com- 604 DECISrONS OF NATIONAL LABOR RELATIONS BOARD munications Commission. In the course of its business, the Marcus Loew Booking Agency enters into licensing agreements with Loew's exchanges and other producers and distributors for the exhibition of motion pictures. Both of the companies admit that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Screen Office & Professional Employees Guild, Local 109 of the U. O. P. W. A., is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION The parties stipulate that a question concerning representation has arisen by reason of the Companies' refusal to bargain with the Union until and unless the Union is certified by the Board. A state- ment by the Regional Director which was introduced at the hearing indicates that the Union represents a substantial number of employees in the unit found below 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 operations 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 parties stipulate that all office, clerical, secretarial, and account- ing employees employed at the home offices of Loew's Inc. and Marcus Loew Booking Agency, located at 1540 Broadway and 160 West 46th Street, New York City, excluding executives, officers of the Companies, district managers, WHN radio salesmen, travelling auditors, lawyers, engineers, radio announcers and commentators, "persons eligible to membership in other labor organizations other than the petitioning 2 The statement shows that the Union submitted 227 membership cards , 210 of which appeared to bear genuine signatures and corresponded to names of persons appearing on the Companies' pay roll , the date of which was not specified Fifty-seven of the cards were dated in September, 66 in October , 6 in November 1941, and 81 were undated It appears from the petition filed by the Union that there are approximately 500 employees in the appropriate unit. LOEW'S INC. 605 union," and employees listed in Appendix A. As to the agreed ex- clusion of "persons eligible to membership in other labor organizations other than the petitioning union," we shall interpret such stipulation to mean that the parties wish to exclude persons who are represented' in a separate unit under an exclusive recognition contract between the Companies and a labor organization other than the Union. Sub- ject to our interpretation, we believe that the exclusion is a proper one.' We find that all office, clerical, secretarial, and accounting employees employed at the home offices of Loew's Inc. and Marcus Loew Booking Agency, located at 1540 Broadway' and 160 West 46th Street, New York City, excluding executives, officers of the Companies, district managers, WHN radio salesmen, travelling auditors, lawyers, engi- neers, radio announcers and commentators, employees eligible to mem- bership in labor organizations other than the Union,4 and employees listed in Appendix A, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Companies the full benefit of their right to self-organization and to collective bargaining and otherwise will 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 an election by secret ballot. Both parties requested at the hearing that the question of eligibility to vote be determined as of the date of the hearing for the reason that the unit was agreed upon on the basis of the inclusion and exclusion of specified persons. Under the circum- stances, we shall direct that those eligible to vote in the election shall be the employees within the appropriate unit who were employed by the Companies on December 4, 1941, subject to the limitations and additions 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 Loew's Inc. and Marcus Loew Booking Agency, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 3 Cf. Matter of Warner Bros . Pictures, Inc, Vttagraph, Inc., and Warner Bros. Circuit Management Corporation, and their subsidiary corporations and Warner Bros. Associated Office Employees of Greater New York, 35 N L . R B., No 165. 1 The exclusion is subject to our interpretation hereinabove set forth. 606 DEICTSI'ONIS OF NATIONAL LABOR RELATIONS BOARD 2. All office, clerical, secretarial, and accounting employees em- ployed at the home offices of Loew's Inc. and Marcus Loew Booking Agency, located at 1540 Broadway and 160 West 46th Street, New York City, excluding executives, officers of the Companies, district managers, WHN radio salesmen, travelling auditors, lawyers, engi- neers, radio announcers and commentators, employees eligible to mem- bership in labor organizations other than the Union, and employees listed in Appendix A, constitute a unit appropriate for the pur- poses 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, 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 Loew's Inc. and Marcus Loew Booking Agency, New York City, an election by secret ballot shall be conducted as soon as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Di- rector 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 office, clerical, secretarial, and -accounting employees employed at the home offices of Loew's Inc. and Marcus Loew Booking Agency, located at 1540 Broadway and 160 West 46th Street, New York City, who were employed by the Companies on December 4, 1941, including employees who did not work on that date 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 executives, officers of the Companies, district man- agers, WHN radio salesmen, travelling auditors, lawyers, engineers, radio announcers and commentators, employees eligible to member- ship in labor organizations other than the Union, employees listed in ,Appendix A, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Screen Office & Professional Employees Guild, Local 109 of the U. O. P. W. A., affiliated with the Congress of Industrial Organiza- tions, for the purposes of collective bargaining. LOEW'S INC. 607 Construction Department: Harry Moskowitz. William Hecht. Eli Porter: T. Jung. Gerald Norwood 7th Floor Reception Desk: D. Kennedy. Telephone Operators: Flossie Flynn. Appendix A Sales Distriution (Research) J. A. Gove. Real Estate Department: Harry Bernstein. Milton Joseph. Sylvia Zukerbrodt. Sales Department: Joel Bezahler. H. Postman. Charles F. Deesen. Wm. Madden. T. O'Shea. E. Saunders. T. Cummings. W. Brenner. E. Aaron. Margaret L. Blahm. Richey. I. L. Hirsch. International Department: Lil Reiss. M. A. Spring. W. Zimmerman. Helen Jones. Fred Martinez. J. Rosthal. Charles Goldsmith. H. Kleindeinst. H. Krecke. W. Melniker. Morris Frantz. Rosa Lewis. Jeanette Harris. International Department-Con. David Blum. Stanley Byre. Cashiers Department: Sophie Israel. Social Security Department: Frank McRoy. Booking (Out of Town) Depart- ment: J. Levy. H. Goldgraben. Ben Joel. MGM Statistical Department: Rose Klein. News Department: A. Lacks. Booking (In Town): ' M. Morgenstern. F. Mitchell. M. L. Johnston. E. Picker. Executive Offices-7th M. Schenck. D. Schiffman. L. Jeffrey. J. Murphy. S. Sewards. M. Rosen. Floor: M. Leviton Stalow. R. Aaron. Legal Department-7th Floor: G. Lebelson. M. Siegfried. H. Steinberg. M. Hammerstein. Accounting and Auditing-7th Floor: H. J. Cleary. C. Quick, MGM Auditing. G. Berry, MGM Auditing. Englehardt, MGM Auditing. I. Schlossberg, Loew's Audit- ing. L. Pollack, Accts Payable.