The Association of Motion Picture Producers, Inc., et al

National Labor Relations Board - Board Decisions

Dec 15, 1949

87 N.L.R.B. 657 (N.L.R.B. 1949)

In the Matter of THE AssoclATION OF MOTION PICTURE PRODUCERS,,
INC., ET AL.,1 EMPLOYERS and INTERNATIONAL ALLIANCE OF TI-IEAT-
RICAL STAGE EMPLOYEES AND MOVING PICTURE OPERATORS OF THE
UNITED STATES AND CANADA, AFL, PETITIONER
In the Matter of COLUMBIA PICTURES CORPORATION, ET AL.,2 EMPLOYERS
and SCREEN PUBLICISTS GUILD, PETITIONER
Cases Nos. 21-RC-728 and 21-RC-8541.-Decided December 15, 19419
DECISION
DIRECTION OF ELECTION
AND
ORDER.
Upon separate petitions duly filed, a hearing in these consolidated
cases 3 was held in Los Angeles, California, on June 30, July 1, 8, 11,
and 13, 1949, before Eugene M. Purver, hearing officer. The hearing
I The following Employers are included in the petition in Case No . 21-RC-728: Columbia
Pictures Corporation ; Loew's Incorporated ; Paramount Pictures, Inc. ; Twentieth Century-
Fox Film Corporation ; Universal Pictures Company, Inc. ; Warner Bros. Pictures, Inc.
Samuel Goldwyn , doing business as Samuel Goldwyn Studios ; RKO Radio Pictures, Inc.
and Republic Productions , Inc. The hearing officer granted it motion by the Petitioner in
Case No . 21-RC-728 to amend its petition by striking therefrom Hal Roach Studios, Inc.
2 The Employers named in the petition in Case No. 21-RC-S54 include the nine Employers
named in footnote 1, supra, and the following : Monogram ; Allied Artists ; Eagle-Lion
Studios, Inc. ; Lester Cowan Productions . sometimes known as Artists Alliance ; W. R:
Frank Productions ; Harry Popkin ; Regal Films Incorporated : Baerwitz Productions
Nat Holt ; Argosy Films ; King Brothers ; Frank Seltzer ; Monroe Greenthal Agency
Screen Guild Productions ; Foote Cone and Belding (Motion Picture Division) ; M It S
Pictures, Inc. ; Inter-American Productions, Inc. ; Vanguard Films ; Walt Disney Produc-
tions ; Rooney-Stiefel Productions ; United Artists Releasing Corp. ; Amusement Enter-
prises ;' Equity Productions ; Glenn McCarthy Productions ; Sierra Productions ; Screen
Plays Incorporated, also known as Stanley Kramer Productions ; Walt Lantz Productions,
Inc. ; Abbott & Costello Productions : Hal Wallis Productions Skirball Manning Produc-
tions ; National Screen Service ; Edward Small Productions ; Enterprise Productions ;
Alcorn Productions ; Jerry Fairbanks , Inc. ; Comet Productions , Inc. ; Nero Films, Inc.
Hakim Brothers ; Sol Wurtzel ; Borderline Pictures , Inc. ; Milbak Productions, Inc. ; and
A and T Productions. The hearing officer granted it motion by the Petitioner in Case
No. 21-RC-S54 to amend its petition by striking therefrom Manning Post Productions
and Motion Picture Sales Corporation.
The names of the Employers in Cases Nos. 21-RC-72S and 21-RC-S54 appear as amended
at the hearing.
'Cases Nos. 21-RC-728 and 21-RC-854 were consolidated by order of the Regional
Director for the Twenty-first Region on June 15, 1949.
87 NLRB No. 81. 657
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer's rulings are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in this case, the Board finds :
1. The Employers in Case No. 21-RC-728,4 are engaged in com-
merce within the meaning of the National Labor Relations Act.
In Case No. 21-RC-854, the evidence is incomplete as to the exact
interstate character of the purchases, sales, and services of certain
individual Employers.5 However, the impact on interstate com-
merce of the totality of all the Employers' operations is apparent.
Without determining whether or not the Board would assert jurisdic-
tion as to each Employer were it before the Board individually, we
find for purposes of this proceeding and contrary to the contention
of the Petitioner in Case No. 21-RC-728 that the Employers named
in the petition in Case No. 21-RC-854 are engaged in commerce within
the meaning of the National Labor Relations Act.
2. International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and Canada, AFL,
the Petitioner in Case No. 21-RC-728,. hereinafter referred to as
I. A. T. S. E., and Screen Publicists Guild, the Petitioner in Case
No. 21-RC-854, hereinafter called the Guild, are labor organizations
within the meaning of the Act, claiming to represent certain em-
ployees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employers in Case No. 21-RC-728
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7)
of the Act. For the reasons set forth in paragraph 4, below, no such
question affecting commerce exists in Case No. 21-RC-854.
At the hearing the Guild moved to dismiss I. A. T. S. E.'s petition
in Case No. 21-RC-728 on the ground that a current contract in exist-
ence between the Guild and the Employers bars an election at this
time. The hearing officer referred this motion to the Board for ruling
thereupon. - The alleged contract which the Guild asserts as a bar
was not signed and is therefore at best an oral contract. Under the
rule enunciated in the Eicor case,6 it is clear that an oral contract can-
not serve to bar a present determination of representatives. The
Guild, however, urges that the circumstances- in this case warrant a
4 See footnote 1, supra
5 See footnote 2, supra.
u Eicor, Inc., 46 NLRB 1035.
THE ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 659
departure from the strict application of the rule of the Eicor case.
Thus it asserts that the parties had embodied all the terms of the con-.
tract in writing; that these terms had been approved by its membership
as well as by the Employers ; and that only the formality of signing
the contract remained to be accomplished when the petition in Case
No. 21-RC-728 was filed. Moreover, the Guild asserts that although
the Employers refused to sign the contract in the face of the petition,
the Employers nevertheless did put into effect certain provisions
of the contract subsequent to the filing of the petition. Assuming,
without determining, the existence of these facts, we do not believe
that they warrant a departure from the Eicor case. We have reached
the same conclusion on similar facts in other cases.7 Accordingly, we
hereby deny the Guild's motion to dismiss the I. A. T. S. E. petition
on the contract bar ground.
4. The employers engaged in producing. film in the Los Angeles,
California, area are generally divided into two groups, the major film
producers and the independent producers. At the time of the hear-
ing in this matter, there were nine major film producers, hereinafter
called the "Majors,"' all of whom are involved in this proceeding.
The Majors comprise the entire membership of The Association of
Motion Picture Producers, Inc., an employer group, hereinafter called
the "Association." Of_ the independent producers, hereinafter re-
ferred to as the "Independents," involved in this proceeding, some,
like the Majors, are members of employer associations, such as the
Independent Motion Picture Producers Association, hereinafter called
the "Independent Association," I and the Society of Motion Picture
Producers, hereinafter referred to as the "Society." 9 The remaining
Independents, such as Eagle-Lion Studios, Inc., are not affiliated with
any employer group and are hereinafter referred to as the "Unaffili-
ated Employers."
The parties herein are in substantial agreement that the unit or
units, if any, established by the Board should include only publicists,
that is, those persons who create or disseminate advertising or pub-
licity for promotion of picture stars, motion pictures, or studios. The
only important unit issue raised in this case relates to the scope of
the unit. I. A. T. S. E. seeks a unit limited to the publicists employed
a See, for example , Newman Crosby Steel Corporation , 73 NLRB 513.
8 The following Employers named in the petition in Case No. 21-RC-854 are members
of the Independent Association : Baerwitz Productions ; Monogram Productions, Inc. ;
Allied Artists ; King Brothers, Inc. ; Screen Guild Productions , Inc. ; Equity Pictures, Inc.
and Lippert Productions, Inc.
9 The following Employers named in the petition in Case No . 2-RC-854 are members of
the Society : Screen Plays , Incorporated , also known as Stanley Kramer Productions ;
Regal Films , Incorporated ; Lester Cowan Productions , sometimes known as Artists Alli-
ance ; Vanguard Films ; Walt Disney Productions ; Edward Small Productions ; Comet Pro-
ductions , Inc.; and Nero Films, Inc.
877359-50-vol. 87-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Majors, all of whom, as we have seen, are members of the Asso-
ciation. The Guild, on the other hand, contends that the appropriate
unit should include not only the publicists employed by the.Majors
but also those publicists employed by the Independents named in the
Guild petition. Of the Independents, however, the members of the
Independent Association and Eagle-Lion Studios, Inc. contend that
the Independents and the Majors should not be merged in a single
unit for purposes of collective bargaining covering publicists. Two
of the Independents, namely, J. Walter Thompson Co. and Foot, Cone,
cR Belding, Inc., do not desire to be included in any multiple-employer
unit. The Association as the representative of the Majors takes a
neutral position in this matter.
The history of collective bargaining in the film industry is as
follows :
Majors: The record shows that from 1939 to 1947, successive collec-
tive bargaining agreements covering publicists were executed by the
Majors and the predecessor of the Guild as the representative of the
publicists. In February 1949, when I. A. T. S. E. filed its petition in
Case No. 21-RC-728, negotiations were being conducted for a contract
to replace the 1947 contract. The foregoing negotiations, including
those in 1949, were conducted by a Labor Committee of the Association
on behalf of the Majors. The fruits of these negotiations were adopted
by the Majors and embodied in individual contracts executed between
each of the Majors and the collective bargaining representative of the
publicists.
Independents: The first collective bargaining agreements covering
publicists employed by members of the Independent Association were
executed in 1945. It appears that these contracts were negotiated
apart from any contract negotiations involving publicists employed
by the Majors. As regards members of the Society, the record indi-
cates that any collective bargaining contracts covering their publicists
were fashioned after the contracts executed by the Majors and in some
instances bodily incorporated portions of the contracts of the Majors,
but, as in the case of the Independent Association, the Society did not
participate in contract negotiations involving publicists employed by
the Majors. The evidence in the record relating to the Unaffiliated
Employers is sparse. However, it is clear that although some of the
Unaffiliated Employers had contracts covering publicists, none of the
Unaffiliated Employers participated in negotiations pertaining to the
Majors.
In the Associated Shoe case,10 we stated that "the essential element,
in our opinion, for establishing a multiple-employer unit is participa-
10 Associated Shoe Industries of Southeastern Massachusetts , Inc., 81 NLRB 224.
THE ASSOCIATION OF MOTION PICTURE PRODUCERS, INC. 661
tion' by a group of employers, whether members or nonmembers of
an association, either personally or through an authorized repre-
.sentative, in joint bargaining negotiations." From the, foregoing
bargaining history there emerges a well established and separate pat-
tern of multiple-employer bargaining only with respect to the pub-
licists employed by the Majors. There is no evidence that the Majors
and the Independents have joined together to bargain collectively
for publicists. While it is true that in 1948 publicists of the Majors
as well as of many of the Independents participated in a consent
union-shop authorization election,11 this referendum in itself does not
establish the existence of joint action by the Majors and Independents
for no collective bargaining on a broad basis resulted therefrom.12
Moreover, as noted above, the Independent Association and Eagle-
Lion Studios, Inc., took a position in opposition to the inclusion of
their publicists in a multiple-employer unit of publicists employed by
the Majors.13 Accordingly, we find that a unit of publicists employed
by the Majors, as requested by I. A. T. S. E., is appropriate for pur-
poses of collective bargaining, whereas the broader unit of publicists
of both the Majors and the Independents as requested by the Guild
is inappropriate.14
Our decision herein is in accord with recent decisions of this Board
involving various other employee groups in the motion picture indus-
try. In one case 15 wherein units smaller than the Association unit
were sought, the Board dismissed two petitions observing that
the major film producers in this country ... have been members
of the Association of Motion Picture Producers, Inc., which has
handled practically all the labor relations matters of its members.
Representatives of the Association and its members ' have met
regularly with various unions . . . representing employees in
the motion picture industry. Contracts resulting from such
collective bargaining meetings have been executed, up to the
present time, by the unions concerned and each of the Association
members. The Board has previously recognized the multiple-
employer collective bargaining pattern in the motion picture
industry.
In another case 16 .where a unit broader than the Association unit was
sought, the Board found the broader unit inappropriate stating:
11 Case No. 21-UA-1216.
12 Association of Motion Picture Producers , Inc., et al ., 85 NLRB 902.
13 See Associated Shoe Industries of Southeastern Massachusetts , Inc., supra.
34 In view of this finding , thq motion made by the Guild to dismiss I. A. T. S. E.'s peti-
tion on the ground that the unit sought therein was inappropriate is hereby denied.
11 Columbia Pictures Corporation , et al., 84 NLRB 647.
26 Association of Motion Picture Producers, Inc., et al ., supra.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So far as the record in this case discloses, the pattern of bargaining
for other trades and crafts employed by the Employers in this case,
with the few exceptions noted above . . . has been on an associa-
tion-wide basis only, and there has been no multi-association
bargaining.
We have found that the broad unit sought by the Guild is inappro-
priate. It does not appear in the record that the Guild proposes the
.creation of a single unit of all the Independents, or of separate units
restricted to the members named in its petition of the Independent
Association and of the Society, respectively. It would, however, be
impossible for us to make a determination with respect to a unit of
all the Independents because of the paucity of evidence in the record
as to the bargaining history of the Independents and because of the
failure of some of the Independents to take a position with respect to
such a unit. Moreover, in view of the evidence in the record indicating
joint bargaining through the Independent Association and through
the Society by all of their respective members, separate units limited
to the few members of each named in the Guild's petition would appear
inappropriate.'7 We shall therefore dismiss the petition of the Guild
filed in Case No. 21-RC-854.
Upon the basis of the entire record in this case, we shall direct that
an election be held among the following employees who we have
found constitute an appropriate collective bargaining unit : All pub-
licists, that is, those persons who create or disseminate advertising
or publicity for promotion of motion picture stars, motion pictures,
or studios, employed in the State of California by the following Em-
ployers who are members of the Association of Motion Picture Pro-
ducers, Inc., namely, Columbia Pictures Corporation, Loew's
Incorporated, Paramount Pictures, Inc., RICO Radio Pictures,. Inc.,
Republic Productions, Inc., Samuel Goldwyn, doing business as
Samuel'Goldwyn Studios, Twentieth Century-Fox Film Corporation,
'Universal Pictures Company, Inc., and Warner Bros. Pictures, Inc.,
but excluding all other employees, professional employees, guards,
and supervisors as defined in the Act.
5. The Guild urges that eligibility of a publicist to. vote in any
election which the Board may direct in this proceeding should depend
upon whether the publicist was employed fora minimum of 10 work-
ing days during the 6-month period immediately preceding the date
of the filing of the Guild petition on May 31, 1949. The Guild's
position stems from the fact than publicists who work for the Inde-
pendents are employed sporadically and then only for short periods
of time thereby making it impossible for the Board's usual eligibility
17 Ibid.
THE ASSOCIATION OF MOTION PICTURE PRODUCERS , INC. 663
rule, i. e., based on a fixed pay-roll period, to reflect the true employ-
ment picture . However, as the election which we are directing covers
only publicists employed by the Majors where employment conditions
are relatively stable, we perceive no reason for deviating from our
usual eligibility rule.
DIRECTION OF ELECTION is
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employers, an election
by secret ballot shall be conducted as early as possible, but not
later than 30 days from the date of this Direction, under the direction
and supervision of the Regional Director for the Twenty-first Region,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations, among employees in the unit found
appropriate in paragraph numbered 4, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior
to the date of the election, and also excluding employees on strike
who are not entitled to reinstatement, to determine whether they de-
sire to be represented, for purposes of collective bargaining, by In-
ternational Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada, AFL,
or by Screen Publicists Guild,19 or by neither.
ORDER
Upon the basis of the entire record in Case No . 21-RC-854 the
National Labor Relations Board hereby orders that the petition filed
therein be , and it hereby is, dismissed.
16 Any participant in the election directed herein may , upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.
19 The compliance status of the Guild has lapsed since the commencement of the hearing
in this matter. In the event it fails to renew its compliance with Section 9 (f), (g), and
(h) of the Act within 2 weeks from the date of this Direction , the Regional Director shall
remove the Guild from the ballot.