Columbia Pictures Corp.

In the Matter of COLUMBIA PICTURES CORP. and SCREEN OFFICE & PRO- FESSIONAL EMPLOYEES' GUILD, LOCAL 109, AFFILIATED WITH U. O. P. W. A., C. 1. 0. Cases Nos. R--8378 to R-3380, inclusive.Decided January 27, 1942 Jurisdiction : motion picture distribution industry Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition until certified by the Board ; persons hired to replace employees in military service held to have sufficient interest to entitle them to vote, notwithstanding Company's contention that they are temporary employees, union's request that eligibility to vote be determined as of the date of the hearing since the parties used the pay roll which was then current in deciding upon specific inclusions and exclusions from the appropriate unit, held not a sufficient reason, in view of the Company's objection, for departing from the Board's usual practice ; election necessary. Unit Appropriate for Collective Bargaining : separate units comprising (1) all office, clerical, secretarial, and accounting employees employed at the home office of the Company, including certain specified departments, but excluding executive officers, certain specified departments, and certain 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 Com- pany and a labor organization other than the petitioner; (2) all shipping and receiving clerks of the Company employed at its warehouse located at 653 Elev- enth Avenue, New York City, excluding the supervisory employee; and (3) all clerical, office, secretarial, accounting, and bookkeeping employees employed at the Exchange of the Company at 630 Ninth Avenue, New York City, excluding supervisory employees, salesmen, and two specifically-named employees ; stipulation as to Schwartz d Frohlich, by Mr. Arthur H. Schwartz and Mr. Irving Morossj of New York City, for the Company. Boudin, Cohn e Glide stein, by Mr. Sidney Fox, for the Union. Mr. Marvin C. Wahl, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On September 26, 1941, Screen Office & Professional Employees' Guild, Local 109, affiliated with U. O. P. W. A., C. I. 0., herein called 38 N L. R. B., No. 122. 608 - COLUMBIA PICTURES CORP. 609 the Union, filed with the Regional Director for the Second Region (New York City) an amended petition alleging that a question affect- ing commerce had arisen concerning the representation of certain employees of Columbia Pictures Corp., New York City, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On September 27, 1941, the Union filed a similar amended petition with the Regional Director concerning the representation of certain other employees of the Company. On November 19, 1941, the Union filed another similar petition concerning the representation of another group of employees of the Company. 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 Rela- tions Board Rules and Regulations-Series 2, as amended, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and, acting pursuant to Section 10 (c) (2) of said Rules and Regula- tions, further ordered that the cases be consolidated. On December 2 and 5, 1941, respectively, the Regional Director is- sued a notice of hearing and an amended notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on December 9, 1941, at New York City, before Frederick R. Livingston, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented by counsel and participated in the hearing. Full oppor- tunity 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 evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Columbia Pictures Corp., a New York corporation, is engaged in the production and distribution of motion picture films and in licens- ing them for exhibition. The Company maintains a studio in Cali- fornia where the pictures are produced and from which it ships prints to exchanges in 25 States of the United States and the District of Columbia for distribution to exhibitors. The Company maintains a shipping center in Butte, Montana. We are here concerned with 438861-42-vol. 38-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company's exchange and home office in New York City and its ware- house at 653 Eleventh Avenue, New York City. The exchange dis- tributes prints to exhibitors in the States of New York and New Jer- sey. During the year 1941, the New York City Exchange had approx- imately 660 accounts in New York and approximately 100 in New Jersey. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Screen Office & Professional Employees' Guild,'Local 109, affiliated with U. O. P. W. A., is a labor organization affiliated with the Con- gress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION The parties stipulated that questions concerning representation have arisen by reason of the Company's refusal to bargain with the Union as the exclusive representative of its employees in any of the units claimed to be appropriate unless the Union is certified by the Board after an election. Three reports, prepared by the Regional Director and introduced in evidence, show that the Union represents a sub- stantial number of employees in each of the units found below to be appropriate.' We find that questions have arisen concerning the representation of employees of the Company. 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 the Company described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and ' The Regional Director's reports show : (1) With respect to the employees employed at the home office, the Union submitted 111 membership cards, all of which bore signatures which appeared to be genuine . Forty-seven of the cards were dated in September 1941, 28 in October 1941, and 36 were undated. All signatures on the cards corresponded to the names of persons appearing on the Company's November 1, 1941, pay roll, which contained 279 names in all. (2) With respect to the employees employed at the Company 's warehouse, 653 Eleventh Avenue, New York City, the Union submitted six membership cards, all of which bore signatures which appeared to be genuine . Four of the cards were dated in October 1941 and two were undated. All signatures on the cards corresponded to the names of persons appearing on the Company's November 1, 1941, pay roll. The petition alleges that there are 8 employees in all within the claimed unit. (3) with respect to the employees employed at the New York City Exchange, the Union submitted 14 membership cards, all of which bore signatures which appeared to be genuine and were dated in October 1941. All signatures corresponded to the names of persons appearing on the Company's November 15, 1941, pay roll , which contained 21 names in all. COLUMBIA PICTURES CORP. 611 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The parties stipulated that all office, clerical, secretarial, and ac- counting employees employed at the home office of the Company located at 729 Seventh Avenue, New York City, including the print, title, foreign, service, sales promotion, production, film 'cutting, file, accounting, advertising sales, accessories service, tabulating, reception- ists, industrial film, foreign features, scenario, purchasing, publicity, advertising and publicity, exploitation, sales accounting, sales, con- tract, exchange operations, general office, and legal departments, and stock room and telephone room, but excluding executive officers of the Company, the print, shipping, personnel, art, and press book de- partments, projectionists, "employees who are represented by labor organizations other than the petitioning union," 'and employees listed in Appendix A, constitute an appropriate unit. As to the exclusion of employees who are represented by 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 Company and 'd;labor organization 'other than the Union:` Subject '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 office of the Company located at 729 Seventh Avenue, New York City, including the print, title, foreign, service, sales promotion, production, film cutting, file, accounting, advertising sales, accessories service, tabulating, receptionists, industrial film, foreign features, scenario, purchasing, publicity, advertising and pub- licity, exploitation, sales accounting, sales, contract, exchange opera- tions, general office, and legal departments, and stock room and tele- phone room, but excluding executive officers of the Company, the print, shipping, personnel, art, and press book departments, projectionists, employees who are represented by labor organizations other than the Union, and employees listed in Appendix A, constitute a unit appro- priate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. The parties further stipulated, and we find, that each of the fol- lowing groups constitutes a unit appropriate for the purposes of 2 See Matter of Warner Bros . Pictures, Inc, Vitagraph, 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. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining: (1) all shipping and receiving clerks of the Company employed at the warehouse located at 653 Eleventh Avenue, New York City, excluding the supervisory employee; and (2) all clerical, office, secretarial, accounting, and bookkeeping employees employed at the Exchange of the Company at 630 Ninth Avenue, New York City, excluding the district manager, branch manager, assistant branch manager, office manager, salesmen, and Bernice Cohen and Myrna Levy.3 We find that each of said units will insure to employees of the Company 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 questions which have arisen concerning the rep- resentation of employees of the Company can best be resolved by elections by secret ballot. The Company contends, and this conten- tion is opposed by the Union, that persons who have been hired to replace employees who are in the active military service or training of the United States should not be permitted to vote on the grounds that they are temporary employees and that their employment may be terminated at any time at the will of the Company .4 It is our opinion, and we find, that persons who have been hired to replace employees who are engaged in the active military service or training of the United States have a sufficient interest, in the selection of a bargaining representative to entitle them to a voice in the election. The Union requests that eligibility to vote be determined as of the date of the hearing inasmuch as the parties used the pay roll which was then current in deciding upon specific inclusions and exclusions from the appropriate unit. The Company requests that the pay roll immediately preceding the date of the Direction of 3 The record does not show the nature of the positions held by Bernice Cohen and Myrna Levy. 4It appears that when employees are hired as replacements, they are required by the Company to sign a document which provides, in pact, as follows I fully understand that I have been hired as a temporary employee as aforesaid and that as such, in the event I should be called for military training, I shall not be entitled to the same considerations as are afforded to a permanent employee under the Selective Service Act, and if I should be called for such training, my employment will be completely terminated without right to restoiation after the completion of the training period I also understand that the Company may dispense with my services to provide a position for any permanent employee Nxho may be rehired after discharge from military service. In addition, it appears, that the Company has replaced certain persons who have joined the armed forces by employees from within the Company, and that the vacancies created by such a shift were then filled by outsiders who were also required to sign the document referred to. The Company, however, takes the position that persons hired to fill such vacancies should be permitted to vote. COLUMBIA PICTURES CORP. 613 Election herein be used to determine eligibility. We do not believe that the argument advanced by the Union is sufficient reason, in view of the Company's position, to depart from our usual practice and, accordingly, we shall direct that the employees of the Company eligible to vote in the elections shall be those in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections, 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. Questions affecting commerce have arisen concerning the rep- resentation of employees of Columbia Pictures Corporation, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All office, clerical, secretarial, and accounting employees em- ployed at the home office of the Company located at 729 Seventh Avenue, New York City, including the print, title, foreign, service, sales promotion, production, film cutting, file, accounting, advertis- ing sales, accessories service, tabulating, receptionists, industrial film, foreign features, scenario, purchasing, publicity, advertising and publicity, exploitation, sales accounting, sales, contract, exchange operations, general office, and legal departments, and stock room and telephone room, but excluding executive officers of the Company, the print, shipping, personnel, art, and press book departments, projec- tionists, employees who are represented by labor organizations other than the Union, and employees listed in Appendix "A", constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 3. All shipping and receiving clerks of the Company employed at the warehouse located at 653 Eleventh Avenue, New York City, excluding the supervisory employees, 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 clerical, office, secretarial, accounting, and bookkeeping em- ployees employed at the Exchange of the Company at 630 Ninth Avenue, New York City, excluding the district manager, branch manager, assistant branch manager, office manager, salesmen, and Bernice Cohen and Myrna Levy, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act, 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Columbia Pictures Corp., New York City, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, 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 sub- ject to Article III, Section 9, of said Rules and Regulations, among those employees of the Company who fall within each of the three groups hereinafter set forth who were employed by the Company dur- ing the pay-roll period immediately preceding the date of this Direc- tion, 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 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, affiliated with U. O. P. W. A., C. I. 0., for the purposes of collective bargaining : (a) All office, clerical, secretarial, and accounting employees em- ployed at the home office of the Company located at 729 Seventh Ave- nue, New York City, including the print, title, foreign, service, sales promotion, production, film cutting, file, accounting, advertising sales, accessories service, tabulating, receptionists, industrial film, foreign features, scenario, -purchasing, publicity, advertising and publicity, exploitation, sales accounting, sales, contract, exchange operations, general office, and legal departments, and stock room and telephone room, but excluding executive officers of the Company, the print, shipping, personnel, art, and press book departments, projectionists, employees who are represented by labor organizations other than the Union, and employees listed in Appendix A; (b) All shipping and' receiving clerks of the Company employed at the warehouse located at 653 Eleventh Avenue, New York City, ex- cluding the supervisory employee; (c) All clerical, office, secretarial, accounting, and bookkeeping em- ployees employed at the Exchange of the Company at 630 Ninth Avenue, New York City, excluding the district manager, branch man- ager, assistant branch manager, office manager, salesmen, and Bernice Cohen and Myrna Levy. COLUMBIA PICTURES CORP . - 615 Appendix A Accessory Service Department: Ben Morris. Accessory Sales Department: Harold Sachs and Al Seligman. Accounting Department: C. W. Sharpe, Bernard Birnbaum, Richard B. Philpott, Maurice Brunet, C. O. Slenker, and Charlotte Mandel. Advertising cl?. Publicity Depart- ment: David A. Lipton. David A. O'Malley. Miriam Hirschhorn. Frank P. Rosenberg. Hortense Schorr. Sylvia Kossack. Morris J. Meyer. Contract Department: Seth Raisler. Exchange Operations Depart- ment: H. C. Kaufman, B. E. Zeeman, Vincent M. Borrelli, and Norma Sulak. Foreign Department: Jacob Segal, Herman Golden, Arnold M. Picker, Rose Friedman, Mary Koban, and Joseph Levy. General Files Department: Betty Stearns. Film Cutting Department: Rose Slaten. Lillian Bernstein. Amy Moss. Personnel Department: John Kane, Nat J. Goldblatt, Fan L. Melman, and Sophie Swerlin. Production Department: Max Cohn and Harry Foster. Telephone Room: Rose Hand. Service Department: Stanford White. Night Custodian: Abraham Hamel. Registered Nurse: Solveig Hessen. Matron: Kathleen Gilligan. Handy man: Andrew Pickhaver. General Executive Department: Leo Jaffe, N. B. Spingold, F. L. Weber, H. J. Takiff, Hal Hode, Ann Copp, Marie Levenson, Margaret Driscoll, Dorothy Feeney, Beatrice Lee, Virginia McCullough, Ruth Greenfield, Mary Mendelson, Freda Prager, and Charles Schneer. Legal Department: Betty Black, Selma Klein, Eva Shapiro, and Samuel Reice. 616 DECISIONS or NATIONAL Print Department: W. G. Brennan and Al Schwartz. Sales Department: A. Montague, Rube Jackter, M. J. Weisfeldt, Louis Weinberg, Louis Astor, Shevie Chason, Irene Danels, Ruth Rosenberg, Margaret Kapfer, and Irving Sherman. Purchasing Department: Max Seligman and H. L. Smith. LABOR MLATIONSI BOARD Sales Accounting Department: George M. Josephs, Joseph Freiberg, and Dani Weissman. Sales Promotion Department: Maurice Grad and Lou Melamed. Scenario Department: Eve Ettinger and Reuel O'Harra. Tabulating Department: Vincent McGrath. Title Department: Hannah Kass.