,NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the United States, its
Territories and Canada, Local 720, AFL–CIO, CLC (Production Support Services,
Inc.) and Michael Young. Case 28–CB–6555
August 22, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On December 26, 2007, Administrative Law Judge John J.
McCarrick issued the attached decision.[1] Charging Party Michael Young, appearing pro
se, filed exceptions and a supporting brief and the
The National Labor Relations Board[2] has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions[3] and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law judge is adopted and the complaint is dismissed.
Dated,
_____________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(Seal) National Labor Relations Board
Joel
Schochet, Esq., for the General Counsel.
Michael
Urban, Esq., (Laquer, Urban, Clifford & Hodge, LLP), of
Michael
Serwe, for the
Charging Party, Pro Se.
Michael Young, for the Charging Party, Pro Se.
DECISION
Statement of the Case
John J. McCarrick, Administrative Law Judge. This case was tried in
Upon the entire record herein, including the
briefs from the General Counsel, Respondents, and the Charging Parties, I make
the following
Findings of Fact
i.
jurisdiction
AVW, is a
Production Support Services, Inc. (
Based upon the above, AVW and
ii.
labor organization
Respondent admitted in its answer and I find
that Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
iii.
the alleged unfair labor practices
A. Hiring Hall Fees Charged to Nonmember
Referents
1. The facts
It is undisputed that pursuant to a succession
of collective-bargaining agreements Respondent has operated an exclusive, nondiscriminatory
hiring hall and referral system in the Las Vegas, Nevada area that is the
exclusive source of referral of employees to who perform stagehand, hair,
makeup, and wardrobe work to signatory employers including employers AVW and
From about April 2005 to the present,
Respondent has had 4900 persons registered for referral. Of the 4900 employees registered, 1700 are
members of Respondent. The record did
not disclose how many of the 4900 persons registered for referral worked and
paid referral fees in 2005 and 2006, however, in 2006 there were 60,000 referrals
made from the hiring hall.
Respondent operates the hiring hall from its
wholly owned building at
Ritzer’s duties include overseeing all of Respondent’s
officers and employees, contract negotiations, organizing campaigns, reviewing
grievances, chairing various committees, including the executive board,
chairing membership meetings, and attending political fundraisers and functions
Assistant to the president, Elias, works on
various projects including organizing, assisting with the office staff,
building maintenance, and maintaining hiring hall records.
The business representative engages in contract
negotiations, organizing campaigns, administration of the referral system, and
grievance processing.
The business agents’ duties include organizing
campaigns, collective-bargaining agreement administration, and handling grievances
The dispatch supervisor and seven dispatch
employees handle all referrals from the hiring hall and all discrepancies in
paychecks for referred employees.
The secretary-treasurer, Prestrige, handles all
new membership applications, health and welfare issues, contract negotiations,
political activities, and Respondent’s fiscal issues. She files reports with
the International Union, prepares minutes of Respondent’s executive board and
membership meetings, supervises the office staff, process and distribute
payroll checks of employees referred from the hiring hall, processes membership
cards and cards of traveling union members, and correspondence. Prestridge spends 15 percent of her time on
political activities, including campaigning for political candidates.
For about 2 years, while Respondent was under
trusteeship it charged both union member and nonunion referents 3 percent of
their gross wages as a referral fee. Since about January 1, 2005, when the
trusteeship ended, Respondent has charged both union member and nonmembers 3.5
percent of their gross wages as a referral fee.
Ritzer admitted that when the referral fee was raised to 3.5 percent in
2005 no calculation was performed to determine the cost of operating the hiring
hall. In addition to the referral fees,
union members pay a $500 initiation fee and quarterly fees of $50 to the International
Union.
Glenn Goodenough (Goodenough), Respondent’s
accountant, prepared accounting reports for Respondent for 2005 and 2006.2 These
reports were based on Respondent’s 2005 and 2006 LM-2 forms3 prepared by Goodenough and submitted to the
United States Department of Labor together with Goodenough’s interviews with
Respondent’s officers to ascertain those expenses that were chargeable as
expenses of the hiring hall.
Goodenough’s report for 2005 reflects that Respondent had income from
hiring hall referral fees of $1,944,367 and income unrelated to the hiring hall
of $423,679. Expenses chargeable to the
operation of the hiring hall were $1,798,250.
Nonchargeable expenses excluded from the operation of the hiring hall
amounted to $429,706. Goodenough’s
report for 2006 shows Respondent had income from referral fees of $2,345,764
and income unrelated to referral fees of $617,305. Expenses chargeable to the hiring hall were
$2,212,401. Nonchargeable expenses
excluded from the operation of the hiring hall were $503,036.
2. The Analysis
In the second consolidated complaint
(complaint) paragraphs 5(c) through (e), (h) through (j) and (m) through (q) it
is alleged that Respondent has restrained and coerced employees in the exercise
of the rights guaranteed under Section 7 of the Act in violation of Section
8(b)(1)(A) of the Act by assessing referral fees to nonmembers that are
disproportionate to their pro rata share of the costs of maintaining and
operating Respondent’s hiring hall and referral system.
Counsel for the General Counsel (
Respondent contends that the 3.5-percent referral
fee for nonmember referents represents their fair share of the costs of the
operation of the hiring hall and referral system and absent evidence of
discriminatory operation of the hiring hall and referral system there is no
violation of the Act in charging the 3.5-percent fee to nonmembers.
A union may charge nonunion members a fee to
use an exclusive hiring hall unless the fee is excessive or based on an improper
allocation of hiring hall expenses. J. J. Hagerty, Inc., 153 NLRB 1375
(1965). In Hagerty, where the Board had found blanket discrimination in the
operation of the hiring hall, allowable expenses associated with the operation
of the hiring hall included office expenses, rent, salaries, utilities, publications,
and payroll taxes. Expenses excluded
from the operation of the hiring hall were union meetings, dinners,
conventions, contributions, and International union assessments. The Board accepted the administrative law
judge’s formula for calculating
the costs of operating the hiring hall and allocating the pro rata share of
each person eligible to use the hiring hall.
In determining which expenses were excluded from the operation of the
hiring hall the judge disallowed items properly chargeable to the union as an
institution rather than as a bargaining agent.
To arrive at referents’ pro rata share of costs, the judge divided the
allowable expenses of operating the hiring hall by the total number of
employees eligible to use it in arriving at a pro rata share. This amount was subtracted from the fees
actually paid by the referents in calculating the amount of refund due. The
trial examiner ordered, and the Board adopted his finding, that $3.50 be
refunded to each registrant based on his finding that the fees charged were
excessive and did not represent the actual
costs to referents of operating the hiring hall.
However in Stage
Employees IATSE Local 640 (Associated Independent Theater Co.), 185 NLRB
552, 558 (1970), a case involving no discrimination in the operation of the
hiring hall, the Board rejected the
administrative law judge’s conclusion that the hiring hall fees were in excess
of the value of the hiring hall services provided. In Stage
Employees IATSE Local 640, all
referents paid referral fees of 2 percent of gross wages from jobs obtained
through referrals. In 1967, the union
collected $35,000 in referral fees paid by members and nonmembers and spent
$29,000 in operating the hiring hall. In
1968, the union collected $29,000 in referral fees from both members and nonmembers
and spent $26,000 in operating the hiring hall. In evaluating the referral fees
collected against the costs of operating the hiring hall the Board said:
After careful
consideration of the issue, we are disposed to dismiss the allegation relating
to assessment of referral fees. In our view, the breakdown of income and
expenses in the record does not demonstrate that the assessments were not, in
terms of the test laid down by the Second Circuit, “reasonably related to the
services provided by the union,” or that the assessments were “in excess of the
value of the hiring hall services.” In 1967, using the Union accountant's
concededly less-than-rigorous figures, the Union spent at least $29,500 for hiring
hall and related collective bargaining (and $12,000 for “institutional
expenses”). In that year, the
A fee paid by nonmember referents equal to that
paid by union members was not found excessive where there was no showing made
by the General Counsel of the cost of operating the union’s hiring hall or the
pro rata share of each registrant. Operating Engineers Local 825 (Homan), 137
NLRB 1043, 1044 (1962). In Morrison-Knudsen Co., 291 NLRB 250
(1988), cited with approval by the Board in Communications
Workers Local 22 (Pittsburgh Press), 304 NLRB 868 (1991), the Board found
that the General Counsel had made a prima facie showing the referral fees were
discriminatory by proving that nonmembers’ fees were higher than union members
dues.
Counsel for General
Counsel contends that the rule of Hagerty, supra, has been superceded by Communications
Workers v. Beck, 487 U.S. 735 (1988) and its progeny, including California
Knife & Saw Works, 320 NLRB 224 (1995).
In Beck, the Court dealt with the 8(a)(3) proviso permitting
union-security clauses requiring union membership. The Court held that “financial core”
membership in a union requires payment of fees necessary for collective
bargaining and representation obligations and a union may not require payment
from unwilling members of sums for a union’s political and fraternal activities.
In
In Teamsters
Local 443 (Connecticut Limousine Service), 324 NLRB 633 (1997), the Board
found that providing an employee with the union’s LM-2 financial reports
satisfied the Beck requirement for
providing information to challenge the union’s calculation of reduced fees.
While CGC argues that the Beck line of cases applies to hiring hall fees, no case has been
cited by any party reflecting the application of Beck to the hiring hall.
Indeed, Beck is limited to
cases dealing with the interpretation of the union-security proviso to Section
8(a)(3) and the union’s duty of fair representation. Moreover, in cases4 dealing with
hiring hall fees subsequent to Beck,
the Board has continued to adhere to the Homan
and J. J. Hagerty, supra, line of
cases in assessing the union’s obligations under Section 8(b)(1)(A) of the
Act.
In this case, according to the accountant’s
2005 and 2006 reports summarizing5 Respondent’s audited income and expenses, Respondent
collected fees from both nion member and nonmember referents of $1,944,367 in
2005 and $2,345,764 in 2006. Chargeable
expenses for 2005 were reported to include payroll and benefits, accounting,
automobile, bank fees, building maintenance, computer maintenance, contracted
services, delegate expense, delivery expenses, dues and subscriptions,
education, entertainment, insurance, legal fees, miscellaneous, office
expenses, copier expenses, organizing expenses, payroll taxes, postage,
property taxes, sales tax, telephone, trustee expenses, utilities,
depreciation, per capita taxes of $1200, and contributions of $1,798,250. Goodenough’s report explained that $6696 was
excluded from payroll for lobbying activity and time devoted to the
Respondent’s newsletter sent to members only.
Advertising expenses of $26,323 were eliminated as not related to the
hiring hall. Half of the delegate
expense of $9731 was eliminated as only half the union convention was unrelated
to the hiring hall. Office expenses of
$10,350 were eliminated as a cost of providing rental space for union member meetings. Postage expenses of $4768 were excluded as
cost of mailing the members newsletter.
Virtually all of the union members’ per capita taxes were excluded. Total chargeable expenses for 2005 amounted
to $1,798,250. Under the Hagerty formula, I would additionally
disallow legal fees, contributions, entertainment, and delegate expenses6 in the sum of $114,797 as no showing was
made that these expenses are directly related to costs of operating the hiring
hall as opposed the costs of the
Chargeable expenses for 2006 were reported as
payroll and benefits, accounting, advertising, automobile, bank fees, building
maintenance, computer maintenance, contracted services, delegate expense, dues
and subscriptions, education, entertainment, insurance, legal fees, miscellaneous,
referent drug test fees, office expenses, copier expenses, organizing expenses,
payroll taxes, postage, property taxes, sales tax, settlement payments to NLRB,
telephone, trustee expenses, utilities, depreciation, per capita taxes, PAC
disbursements, and contributions. Total
chargeable expenses for 2006 amounted to $2,212,401. Under the Hagerty
formula, I would additionally disallow delegate expenses, entertainment, legal
fees, settlement payments to NLRB, PAC disbursements, and contributions in the
sum of $231,682 as no showing was made that these expenses are directly related
to costs of operating the hiring hall as opposed the costs of the
In assessing how much nonunion member referents
may have been overcharged, I am guided only by the estimate that of 4900
referents on the referral list in 2005 and 2006, 3200 or 65 percent were nonunion
members.7 Thus, for 2005, 65 percent of the $260,914 paid
in excess referral fees is $169,594 or 8.7 percent of all referral fees charged
and for 2006, 65 percent of $365,045 paid in excess referral fees is $237,272
or 10 percent of all referral fees charged.
Each nonunion referent would be entitled to a refund of $52 each for
excess dues paid in 2005 and $74.14 each for excess dues paid in 2006.
In Stage
Employees IATSE Local 640 (Associated Independent Theater Co.), 185 NLRB
552, 558 (1970), the Board found no violation of the Act in the assessment of
hiring hall fees where, like here, was no evidence of discriminatory operation
of the hiring hall, and where 20 percent of the fees in excess of chargeable expenses
were attributable to nonunion member referents.
As in Stage Employees IATSE Local 640, over a
longer period of time the allowable expenses and referral fees of Respondent’s
hiring hall may be equalized and given the fact that only $126 is owed to
each nonunion member referent, I find that Respondent’s assessment system does
not violate Section 8(b)(1)(A) of the Act.
B. The Request for Information Regarding
Referral Fees
1. The facts
Union member Steven Lucas sent Respondent a
letter8 dated June 7, 2005, requesting that Respondent
provide the basis for charging 3.5 percent referral fee to registrants. After requesting withdrawal from Respondent,
Lucas sent the Respondent a second letter9
dated September 26, 2005, requesting Respondent substantiate how the 3.5
percent referral fee is related to the cost of operating the hiring hall. By letter10
dated December 1, 2005, Ritzer advised Lucas that all costs of Respondent were
related to operation of the hiring hall.
On December 15, 2005,11 Lucas
requested Respondent provide financial statements supporting the 3.5-percent
fee charged to nonmembers. Finally on
May 31, 2006, Respondent furnished Lucas with the
2. The analysis
It appears that CGC contends that Respondent
violated its duty of fair representation to Lucas under Section 8(b)(1)(A) of
the Act because it did not provide a cost breakdown of costs directly related
to operation of the hiring hall. It is
undisputed that Respondent was under a trusteeship until January 2005 and it
would have been difficult for Respondent’s new officers to provide financial
information in 2005. CGC concedes that
not until 2006, with the completion of the 2005 LM-2 forms, could Respondent
provide the financial information Lucas requested. CGC argues that Respondent’s LM-2 forms
provided to Lucas on May 31, 2006, were insufficient for him to make an intelligent
objection to the amount of referral fees paid by nonmember users of the hiring
hall since there was no breakdown of expenses for operation of the hiring hall
and expenses related to the operation of Respondent as an institution.
Under Section 8(b)(1)(A) of the Act a union, as
operator of an exclusive hiring hall, owes users of the exclusive hiring hall a
duty of fair representation by not operating the hiring hall in a manner that
is arbitrary or unfair. Radio Electronics Officers
C. Work Rules Violations
1. The facts
Michael Serwe has been a member of Respondent
since 2004 and has utilized Respondent’s referral system. In December 2006, Respondent dispatched Serwe
to a job pursuant to request of AVW-Telav.
Serwe worked for about 10 days for AVW.
On the last day of work about 20–30 minutes after he finished his work
but while he remained at AVW’s worksite waiting to speak with a union steward,
Serwe had a conversation with an AVW employee named Victor. Serwe told Victor that he looked forward to
working with him again. Victor replied, “The next time you work for me are you
going to take a phone call while you’re on my job?” Serwe said, “I’m not your nigger. I’m paid labor and the only reason I take a
call, and I very seldom do on a job, is if it’s somebody calling me to see if
I’m available for work. However, I always
do my amount of work on a job. You can
ask anybody that I work with and they will tell you that.”
After making this statement, Serwe saw Michael
Jeffrey, an African-American AVW supervisor behind him. Serwe told Jeffrey, “You know I’m not
prejudiced.” Jeffrey replied he heard
what he heard.
In late December 2006, Serwe called Respondent
to see if there was work for him. He was
told that he was suspended. On January
5, 2007, Respondent sent Serwe a letter advising that:13
In accordance with Article VIII of Work Rules
and Procedures for Referents,14 which
we have included for your reference, you are in violation of Article VIII,
Section 1B(iv): Verbal assault against or threatening harm to any referent,
Union employee, Job Steward, Union official, or Employer representative while
at work, or in connection with work.
This includes threatening or abusive language to the employees at the
Union office.
The letter added that Serwe was being fined
$1000 and would be suspended from the dispatch list until he paid the
fine. Serwe was further advised that the
fine and suspension would be held in abeyance if he appealed the fine.
Serwe appealed the fine and suspension. On February 21, 2007, Respondent denied the
appeal15 and advised that if Serwe failed to pay
the fine within 35 days he would be removed from the referral system until the
fine was paid. On April 5, 2007, Serwe
learned that he had been suspended from the referral system effective April 2,
2007. Serwe remained suspended until
July 16, 2007, when he entered into an agreement to make installment payments
on the fine.
Respondent’s work rules and procedures for referents
provides in pertinent part at article
Failure to pay the fine in the allowed period
of time as per Article VIII, Section 3, will result in automatic suspension
from the Local 720 referral system until such fine is paid in full. In case of appeal, no penalty shall be
imposed until the appeal procedure has been completed.
2. The analysis
CGC contends that Respondent violated Section
8(b)(1)(A) and (2) of the Act by refusing to refer Serwe because he failed to
pay a union fine and for maintaining a rule in its 2006 work rules providing
that failure to pay a fine will result in Respondent’s refusal to refer.16
Respondent argues that Serwe was properly suspended
for work rules violations, citing Boilermakers
Local 40 (Envirotech Corp.), 266 NLRB 432 (1983).
Radio Electronics Officers Union,
supra, held that when a union
prevents an employee from being hired it compels an inference that its action
is to encourage union membership and may be overcome only by showing that it is
acting pursuant to a valid union security clause or by showing its action is
necessary to performing its representative function. Stagehands
Referral Service, 347 NLRB 1167, 1169 (2006).
The Board has held that the inference is overcome
where a union refused to refer an individual who was not qualified to perform
the job; Plasterers Local 299 (Wyoming Contractors
Assn.), 257 NLRB 1386 (1981), where a union suspended an applicant for
violating work referral rules; Boilermakers
Local 40, supra; where the union refused to refer an applicant for his long
history of misconduct and where the majority of employers using the hiring hall
for referents requested the employee not be referred; Stage Employees IATSE Local 150 (Mann Theaters), 268 NLRB 1292
(1984), where the union refused to refer an employee who had caused a wildcat
strike; Longshoremen Local 341 (West Gulf
Maritime Assn.), 254 NLRB 334 (1981); and where the union refused to refer
an employee with a 15-year history of misconduct toward fellow employees,
employers using the hiring hall and employers’ clients; Stage Employees IATSE Local 720 (AVW Audio Visual), 332 NLRB 1
(2000), revd. 333 F.3d 927 (9th Cir. (2003).
In each of the above cases the Board found that the union’s action taken
was necessary to performing its representative function.
The Board has found the union did not overcome
the inference where it removed an employee for non payment of a fine and non
payment of dues without proper notice; Radio
Electronics Officers Union, supra; and where an employee was removed from
the referral list without adequate showing that he had performance problems; Stagehands Referral Service, supra.
In this case, Serwe was removed from Respondent’s referral system after failing to pay a fine pursuant to work rule article VIII, section 1B(iv) for use of a racial epithet on a jobsite. There is no dispute that Respondent has prevented Serwe from being hired. Likewise it is undisputed that the action taken against Serwe was not pursuant to a valid union-security clause. Thus Respondent can overcome the inference that its action was to encourage or discourage union membership by showing that it took the action because it was necessary to performing its representative function.
Unlike the employees in Stage Employees IATSE Local 150
(Mann Theaters), 268 NLRB 1292
(1984), Stage Employees IATSE Local 720
(AVW Audio Visual), 332 NLRB 1 (2000), here, Serwe had no long history of
misconduct or poor performance. Serwe’s
misconduct was limited to one employer.
Since there is no evidence that other employers have refused to accept
Serwe as a referent, his isolated conduct would not preclude his referral to
other employers. Likewise, there is no
evidence that Serwe is not unqualified to perform jobs to which he may be
referred and he did not attempt to undermine the referral system like the referents
in Plasterers Local 299 (Wyoming
Contractors Assn.), 257 NLRB 1386 (1981), or Boilermakers Local 40, supra.
Finally, Serwe’s conduct was not so eggregious
as to affect the entire bargaining unit like the employee in Longshoremen Local 341 (
The mandatory language of Respondent’s work rule article
VIII, section 1B(iv) is subject to the same test set forth above. The rule prevents an employee from being
hired and raises the inference that the rule encourages or discourages union membership
that can be overcome only by showing that the rule is necessary to the
In Radio
Electronics Officers Union, 306 NLRB 43 fn. 2 (1992), the union was found
to have violated the Act for suspending an employee from its referral system
for nonpayment of dues where the employee was not given adequate notice of his
delinquency before removal. Likewise,
the Board found that the rule requiring removal from the referral list for nonpayment
of dues was unlawful as it required removal prior to notice to the delinquent
referent.
Here after Serwe’s appeal was denied he was
given notice that he had 35 days to pay the fine or face suspension from the
referral system. In this case, adequate
notice is provided in Respondent’s work rules before an employee may be suspended
for nonpayment of a fine. I find there
is nothing in the work rule itself that violates the Act but that in cases
where an individual is suspended for nonpayment of a fine, the Respondent’s
rationale for imposing the fine must be examined under the Radio Electronics Officers Union test. I find that Respondent’s work rules and
procedures for referents, article
Conclusions of Law
1. AVW and PSS have been employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The
Respondent
3. The Respondent violated Section 8(b)(1)(A) and (2) of the Act since April 2, 2007, by refusing to allow Michael Serwe to register for referral from its exclusive hiring hall because of his failure to pay a fine levied against him by the Union.
4. Respondent did not otherwise violate Section 8(b)(1)(A) or (2) of the Act and the remaining portions of the complaint are dismissed.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully refused to allow Serwe to register for referral, I shall recommend it be ordered to list Serwe on its referral register and, on request from him, list him on any appropriate referral register that he requests to be listed on. I further recommend that Respondent be ordered to make Serwe whole for any loss of wages and benefits he may have suffered as a result of the Respondent’s refusing to allow him to register on its referral list on and after April 2, 2007.
On these findings of fact and
conclusions of law and on the entire record, I issue the following recommended17
ORDER
The Respondent, International
Alliance of Theatrical & Stage Employees & Moving Picture Technicians,
Artists, and Allied Crafts of the
1. Cease and desist from
(a) Refusing to refer Michael Serwe for employment for arbitrary, invidious, or capricious reasons.
(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
(2) Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Michael Serwe whole, with interest, for any loss of wages and other benefits he may have suffered by reason of the Respondent Union's discriminatory failure to refer him to employment after April 2, 2007.
(b) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its union hall or facility, copies of the attached notice marked “Appendix”18 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by an authorized representative of the Respondent Union, shall be posted by the Respondent Union and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted.
(d) Reasonable steps shall be taken by the Respondent Union to ensure that the notices are not altered, defaced, or covered by any other material.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent Union has taken to comply.
It is further ordered that the second consolidated complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To Members
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board
has found that we violated Federal labor law and has ordered us to post and
obey this Notice.
FEDERAL LAW
GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not refuse to refer Michael Serwe for employment for arbitrary, invidious or capricious reasons.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will make Michael Serwe whole, with interest, for any loss of wages and other benefits he may have suffered by reason of our discriminatory failure to refer him to employment after April 2, 2007.
International Alliance
of Theatrical & Stage Employees, Moving Picture Technicians, Artists,
and Allied Crafts of The United States, its Territories and Canada, Local 720, AFL–CIO, clc
[1] By Board Orders dated May 21 and June 24, 2008, respectively, Cases 28–CB–6336 (Steven Lucas) and 28–CB–6582 (Michael Serwe) were severed from this proceeding and remanded to the Regional Director for Region 28 of the National Labor Relations Board for further appropriate action in light of the parties’ non-Board settlement agreements. Thus, this decision concerns only Case 28–CB–6555.
[2] Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
[3] The Charging Party argues that a union operating
a hiring hall and referral system cannot under any circumstance suspend a
referent for failing to pay a union fine and, therefore, the Union violated
Sec. 8(b)(1)(A) and (2) of the Act by maintaining rules providing that failure
to pay a Union fine will result in an employee’s suspension from the referral
system until the fine is paid. We do not
pass on the Charging Party’s argument because it exceeds the scope of the General Counsel’s theory of the case as
alleged in the complaint and proffered at the hearing.
1 See GC Exh. 1(v), Respondent’s answer admitting that it is a party to collective-bargaining agreements requiring that Respondent be the exclusive source for referrals for employment with the employers.
4 Morrison-Knudsen Co., 291 NLRB 250 (1988), cited with approval by the
Board in Communications Workers Local 22
(
6 Ritzer testified that he
had fruitful discussions with other union representatives at the
7 There is no evidence as to how many member or nonmember referents were dispatched or of how much in fees were paid by member and nonmember referents respectively.
16 This is the only remaining portion of Charging Party Michael Young’s charge that has been alleged as a violation of the Act in the instant complaint.
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections shall be waived for all purposes.
18 If this Order is enforced by a judgment of a