Wilding Picture Productions, Inc.

National Labor Relations Board - Board Decisions

May 7, 1953

104 N.L.R.B. 831 (N.L.R.B. 1953)

WILDING PICTURE PRODUCTIONS, INC. 831
therefore , that the Local is defunct , and that the 1952 contract
does not bar this proceeding.
4. In accordance with the agreement of the parties, we find
that all production and maintenance employees at the Em-
ployer ' s East Prairie , Missouri , plant, excluding office clerical
and professional employees , guards , and supervisors as de-
fined in the Act , constitute a unit appropriate for purposes of
collective bargaining.
[Text of Direction of Election omitted from publication.]
WILDING- PICTURE PRODUCTIONS, INC. and LOCAL UNION
476, STUDIO MECHANICS OF THE INTERNATIONAL ALLI-
ANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING
PICTURE MACHINE OPERATORS OF THE UNITED STATES
AND CANADA, AFL, I.A. T.S.E., Petitioner . Case No.
13-RC-3180. May 7, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Jewel G. Maher,
hearing officer . The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three -member panel [Chairman Herzog and Members
Murdock and Peterson].
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The Petitioner and the Intervenor , United Scenic Artists
Local Union 350, affiliated with the Brotherhood of Painters,
Decorators , and Paperhangers of America, AFL, are labor
organizations claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer within
the meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the
Act.'
1 The Intervenor moves to dismiss the petition on the ground that this proceeding in-
volves a jurisdictional dispute between two AFL unions. As it does not appear that the
dispute could be resolved without resort to the administrative processes of the Act, we
shall deny this motion. Pacific Outdoor Advertising Co., 90 NLRB 106.
104 NLRB No. 104.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The appropriate unit:
The Petitioner seeks to add scenic designers , set painters
and paperhangers , and makeup artists to a unit of studio
mechanics consisting of studio electricians , carpenters, prop-
erty men, and soundmen, which it now represents. The Inter-
venor opposes the merger of these two groups of employees
and contends that only a unit of scenic designers and scenic
artists is appropriate. The Employer, on the other hand,
asserts that the unit should consist of scenic designers , scenic
artists, and set painters and paperhangers , and that makeup
artists should be excluded.
The Employer is engaged in the production and sale of
motion pictures to industrial concerns . It employs one full-time
scenic designer who designs motion-picture sets . His duties
entail laying out the set to scale, specifying the size and type
of construction , and selecting colors and furniture to be used
in erecting and dressing the set.
The Employer also employs a set painter and paperhanger.
He does the flat painting and ordinary paperhanging of the set
created by the scenic designer. When needed, the Employer
hires scenic artists . During the last year , the scenic artists
spent about 5 percent of their time sketching, drawing, and
painting on muslin, scenes , landscapes , buildings , and adapta-
tions from photographs. This work generally requires artistic
ability both as to proportion and color. The remaining 95 per-
cent of their time they perform the same work as the set
painter and paperhanger.
The makeup artists administer makeup, beards, mustaches,
wigs , and whiskers to the actors and actresses . Generally,
they perform their work in a separate makeup room located
above the stage, although makeup may sometimes be applied
during the filming of a picture.
It is clear that the scenic designer, scenic artists, and the
set painter and paperhanger work closely together and have a
sufficient community of interests to warrant including them
in the same unit for bargaining purposes. However, as makeup
artists are primarily concerned with matters other than
painting, designing , or decorating sets and usually perform
their duties in a different location, we shall, contrary to the
Petitioner's request, exclude them from this voting group.
We now turn to the question whether the scenic designer,
scenic artists, and the set painter and paperhanger may be
added to the studio mechanics unit now represented by the
Petitioner. The record discloses that both groups of employees
work in close cooperation and proximity to each other in
preparing the stage or set for filming. After the scenic de-
signer designs the set, his blueprints are turned over to the
carpenters who construct the set according to the blueprint
specifications. When the set is erected, the set painter paints
or papers it and the scenic artists sketch, draw, and paint the
required backdrops, landscapes, or buildings. The property
men secure the props and place them in position as required
by the scenic designer's plans. The set is then lighted for
photographing by the studio electricians . All construction,
WILDING PICTURE PRODUCTIONS, INC. 833
wiring, painting , and sketching are performed on the stage.
In view of the integrated nature of the work performed by
the scenic designer , scenic artists , the set painter and paper-
hanger, and the studio mechanics, we find that a single overall
unit sought by the Petitioner may be appropriate.'
On the other hand, there is practically no transfer of em-
ployees between the two groups, their work involves different
skills, and they have different immediate supervision. More-
over, there is an 11-year history of collective bargaining
between the Employer and the Intervenor covering scenic
designers and scenic artists .' Under these circumstances, we
believe that the scenic designer, scenic artists, and the set
painter and paperhanger are entitled to separate representa-
tion, if they so desire.
Accordingly, we shall direct a self-determination election
for the scenic designer, scenic artists, and the set painter
and paperhanger.4 If in such election a majority of these em-
ployees vote for the Intervenor, they will be taken to have
indicated their desire to constitute a separate appropriate
unit and the Regional Director is hereby authorized to issue
a certification of representatives to the Intervenor for the unit
hereinafter described, which the Board, under such circum-
stances, finds to be appropriate for purposes of collective
bargaining. If, on the other hand, a majority vote for the
Petitioner, they will have indicated their desire to become a
part of the existing unit represented by the Petitioner, and the
Petitioner may bargain for them as part of such unit. In such
event, the Regional Director is authorized to issue a certifi-
cation of results of election to that effect.
The following employees may constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
The scenic designer, scenic artists, and the set painter and
paperhanger at the Employer's Chicago, Illinois, studio, ex-
cluding all other employees, makeup artists, and supervisors
as defined in the Act.
5. The Intervenor requests that employees who are employed
by the Employer 2 or more days during the past 9-month
period shall be eligible to vote. The Petitioner and the Em-
2Transfilm, Incorporated, 100 NLRB 78; KTTV, Inc., 97 NLRB 1477. The Intervenor
moves to dismiss the petition on the ground that the Petitioner 's request for merger of the
two groups of employees in question is based on extent of organization prohibited by Section
9 (c) (5) of the Act. As our findings above are based on other considerations than extent of
organization, we find no merit in the Intervenor's contention and shall therefore deny its
motion.
sit appears that during this period there was no classification of set painter and paper-
hanger.
4The Intervenor contends that Section 9 (c) (3) of the Act prohibits an election in this
voting group because a consent election among studio mechanics , which was won by the
Petitioner , was held on November 14, 1952 . As the election herein directed is not in the
unit or subdivision in which the consent election was conducted , this contention is without
merit. Cf. Robertson Brothers Department Store, Inc., 95 NLRB 271, 273. The Intervenor's
motion to dismiss based on this contention is hereby denied.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer request the customary eligibility period. As the record
does not disclose any compelling reason for departing from the
Board's practice of utilizing the eligibility period prescribed
below, the Intervenor's request is hereby denied.
[Text of Direction of Election omitted from publication.]
SOUTHERN PINE ELECTRIC COOPERATIVE and LOCAL
UNION NO. 676, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL. Case No. 15 -CA-440. May
8, 1953
DECISION AND ORDER
On December 30, 1952, Trial Examiner W. Gerard Ryan
issued his Intermediate Report in this proceeding, finding that
the Respondent had engaged in and was engaging in certain un-
fair labor practices in violation of Section 8 (a) (1), (3), and
(5) of the Act, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in
certain independent violations of Section 8 (a) (1) of the Act
and recommended the dismissal of that portion of the complaint.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer, with the following modifications:
1. We agree with the Trial Examiner that the seven com-
plainants did not quit their employment, as contended by the
Respondent, but were discharged because of their concerted
activity.
As fully described in the Intermediate Report, the seven em-
ployees, after being denied a wage increase on January 17,
1952, told the Respondent that they would submit a notice of
resignation on the first of the following month, unless their
grievance were satisfied. Like the Trial Examiner, we find that
such action did not amount to a voluntary termination of em-
ployment by the employees, but rather was merely a threat to
quit in the future, designed to induce the Respondent to act
favorably regarding their wage demand. As such, it constituted
concerted activity for their mutual aid and protection, within
the meaning of Section 7 of the Act.'
1 Nemec Combustion Engineers, 100 NLRB 1118; see also N. L. R. B. v. Kennametal, Inc.,
182 F. 2d 817, enfg. 80 NLRB 1481. Cf. Cresent Wharf and Warehouse et al., 104 NLRB 860.
where the employees ' conduct was construed on the facts to be a present resignation and
hence not protected concerted activity.
104 NLRB No. 107.