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,
Stagehands Referral Service, LLC and Stephen Foti
International Alliance of Theatrical & Stage
Employees & Motion Picture Technicians of the United States & Canada,
Local 84, AFL–CIO (Meadows Music Theatre) and
Stephen Foti.
Cases 34–CA–10971 and 34–CB–2774
April 29, 2009
SUPPLEMENTAL DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On January 7, 2009, Administrative Law Judge Steven Davis issued the attached supplemental decision.1 The Respondents filed exceptions, and the General Counsel filed an answering brief.
The National Labor Relations Board2 has considered the supplemental decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,3 and conclusions, and to adopt the recommended supplemental Order.
Although the Respondents’ exceptions refer to their posthearing
brief, the Respondents did not submit a supporting brief or refile their posthearing
brief as a supporting document. The
posthearing brief is not itself part of the record before the Board as defined
in Section 102.45(b) of the Board’s Rules and Regulations. See CPS
Chemical Co., 324 NLRB 1018, 1018 fn. 2 (1997). Therefore, our review of the Respondents’ arguments
is limited to the exceptions document and any citation of authorities and
supporting argument contained therein.
See Board’s Rules and Regulations Section 102.46(b)(1). These exceptions fail to demonstrate a basis
for overturning the judge’s findings. We therefore adopt the judge’s
decision. See
ORDER
The National Labor Relations Board adopts the recommended
supplemental Order of the administrative law judge and orders that the Respondents,
International Alliance of Theatrical & Stage Employees & Motion Picture
Technicians of the United States & Canada, Local 84, AFL–CIO, its officers,
agents, and representatives; and Stage Hands Referral Service, LLC, Hartford,
Connecticut, its officers, agents, successors, and assigns, jointly and
severally, shall make Stephen Foti whole by
paying to him the total backpay amount of $77,455, plus interest computed in
the manner prescribed in
Dated, Washington, D.C. April 29, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Patrick
Daly, Esq., for
the General Counsel.
Leon
Rosenblatt, Esq., of
SUPPLEMENTAL
DECISION
Steven Davis,
Administrative Law Judge. On August 31,
2006, the National Labor Relations Board issued a Decision and Order in 347
NLRB 1167 against Stagehands Referral Service (SRS) and International Alliance
of Theatrical & Stage Employees & Motion Picture Technicians of the
United States & Canada, Local 84, AFL–CIO (Union or with SRS, Respondents),
which directed the Respondents to jointly and severally make Stephen Foti
(Foti) whole for any “loss of wages and other benefits he may have suffered by
reason of their “discriminatory failure to refer him to employment after May
24, 2004.”1
A controversy
having arisen over the amount of backpay due to Foti, the Regional Director for
Region 34 issued an amended compliance specification and notice of hearing on
April 17, 2008. The Respondents’ answer
to the specification asserted certain affirmative defenses which will be
discussed below.
Before the hearing
opened, the Acting Regional Director consolidated this case for hearing with
Case 34–CB–2876.2 That case involved issues arising from a
complaint which asserted that Respondent Local 84 operated its hiring hall unlawfully
in violation of Section 8(b)(1)(A) and (2) of the Act.
On May 27–29, 2008,
a consolidated hearing was held before me in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondents, I make
the following findings and conclusions
i. analysis and discussion
A. The Underlying Case
In the underlying
case the Board found that Foti was unlawfully refused referrals by the Union on
May 24, 2004, following the Union’s denial of membership to him, and because of
his nonmembership in the
The Board found
that following the Union’s rejection of Foti’s application for membership on
May 24, 2004, he was told by Business Agent Charles Buckland that the
In November 2004,
upon learning that Foti had applied for unemployment insurance compensation,
Business Agent Charles Morris asked him why he filed the application since he
had not been calling in for work. Morris
told Foti to call Buckland. He did so
and was referred to work in late November and worked until early December. Foti did not call Buckland again until late
March 2005. 347 NLRB at 1168.
Foti obtained work
from Local 84 by calling the Union and advising that he was available for work,
and also by being called by that
B. The Backpay Computation Process
The objective in
determining the backpay amount is to approximate, as accurately as possible,
what earnings Foti would have had during the backpay period had he continued to
be referred. First, his earnings during
an appropriate period of time prior to the discrimination, called the base period,
must be determined.
1. The selection of the backpay formula
The base period
used in the specification was the 1-year period, June 1, 2003 to May 31, 2004,
prior to the Respondents’ refusal to refer Foti. The backpay period was defined as the period
beginning June 1, 2004. The Respondents
admit that the base period and the start of the backpay period were appropriately
set forth in the specification.5
As set forth below,
Compliance Officer Dina Emirzian used Compliance Manual Formula One, Section
10540.2, to compute the backpay. That
formula is a projection that Foti’s average hours and earnings during the base
period would be the same during the backpay period.6
Foti’s base period
earnings were divided into two categories: “Local 84 work” and “non-Local 84
work.” Both types of earnings were
utilized in computing the backpay amount for the base period and for the
backpay period.
a. Local 84 work
As set forth in the
specification, Foti’s income in the base period was comprised of all referrals
he received from the
Also included by
the compliance officer in the category of Local 84 referrals were those jobs to
which Foti was sent by the
Buckland explained
the procedure. He stated that he occasionally
is asked by a business agent of a different Stagehands Union for help in
filling a job call in that other union’s jurisdictional area. In such cases, Buckland supplies the names of
people he believes are available, and at the other agent’s request, Buckland
calls the stagehand and says that there is work in
Buckland testified
that in making such calls to Foti to jobs in other jurisdictions, he was told
by the business agent for the other union that they were 1-day jobs. Occasionally the business agent calls
Buckland and reports that the job will be continuing for more days and asks “do
you mind if the guys [those originally referred] do that work?” Buckland agrees, and tells the agent to ask
the workers if they want to continue working there. Buckland stated that in
such circumstances where the stagehands continued to work, he does not consider
that to be part of the initial referral.
The major source of disagreement between the parties is that the Respondents
believe that those latter jobs, in which Foti was referred by the Union’s
business agent based upon calls he received from other unions to jobs in those other unions’ jurisdictions and
to employers not having contracts with the Union, are not properly considered
“Local 84 jobs or Local 84 referrals” and should not be included in the base
period or the backpay period. The result
of including those jobs in the base period is obvious—Foti’s work in those jobs
caused a marked increase in his earnings which, when included in the base period,
raised his pre-discrimination income level.
Buckland explained
that when a business agent from a different local asks him to supply workers,
he was not obligated to refer anyone.
When he called the stagehand, the worker could accept or refuse the
assignment and was under no obligation to take the job, and if he did report to
the site, he had no obligation to continue to work there if the job continued
after the first day. Buckland stated
that, in contrast, if he referred the stagehand to a job in Local 84’s
jurisdiction the employee would have an obligation to accept it.
The Respondents
correctly argue that when Foti worked in such jobs, dues were paid by Foti or
by the employers involved to the other unions and not to Local 84. The Respondents assert that only referrals to
those organizations having contracts with Local 84 should be considered in
computing Foti’s gross backpay. However,
the remedy ordered by the Board was its standard remedy. The Respondents were ordered to make Foti
whole for any loss of wages and other benefits he may have suffered by reason
of the Respondents’ failure to refer him to employment after May 24, 2004. “A backpay remedy covering all lost employment opportunities is
appropriate for the violations found.”
(Emphasis in original.) IATSE (AVW Audio Visual, Inc.), 352 NLRB
29, 32 (2008), citing the underlying case here, 347 NLRB 1167, and numerous
other cases applying the same remedy.
Indeed, SRS, a
corporation established by Local 84, referred stagehands to the Casino because
the Casino would not sign an agreement with the Union and would not accept referrals
from the Union. Such referrals were
considered “Local 84 work” and the Board found that there was an exclusive
hiring hall arrangement between Local 84 and SRS. 347 NLRB at 1167, fn. 2. Accordingly, even though there was no
contractual arrangement between Local 84 and the Casino employer, as was the
case with the non-Local 84 jobs Foti was sent to, the work Foti performed there
was considered Local 84 work even by Local 84.7
The Respondents
take issue with Compliance Officer Emirzian’s method of determining whether a
referral was properly attributed to Local 84.
Emirzian testified hypothetically that if Local 84’s agent told Foti that
the
It is true, as
argued by the Respondents, that Emirzian stated that “there has to be some
agreement between the union and whomever they’re getting work out to, I would
assume. The basis is the referral out.” She also noted that “it doesn’t matter to the
region whether he was referred out to work either through an exclusive
arrangement or through a non-exclusive arrangement.” However, this does not mean, as the Respondents
argue, that a formal arrangement must exist before a referral takes place. Such an agreement clearly took place in
another union’s business agent’s request that Buckland send a worker to a venue
within that other union’s jurisdiction.
Emirzian plainly did not imply, as suggested by the Union, that in order
to be considered Local 84 work there must be a contractual agreement between
the
The General Counsel
argues that inasmuch as Local 84 made the initial calls to Foti referring such
jobs to him such jobs must be considered as Local 84 referrals even though
those calls were initiated by business agents from other unions seeking additional
help to fill their calls.
The General
Counsel’s argument is sound and reasonable. Regardless of where the call for the job
originated, it was received by Foti from Local 84’s agent. The call was for a specific referral to an
identified, available job if he chose to accept it. He would not have received the job referral
but for the call from the
Accordingly, I
find, in agreement with the specification, that Foti’s earnings from referrals
made by Local 84’s business agent in which he first asked Foti whether he was
available for a specific job and then, when he agreed, directed him to that
location where Foti worked, constitute Local 84 work and were properly
includible in Foti’s base period and backpay period even where those jobs
worked were outside the Union’s jurisdiction and were performed for employers
with which the Union did not have a contract.
b. Non-Local 84 work
Also included in
Foti’s earnings during the base period and the backpay period were those jobs
he obtained on his own by “networking”—calling people in the industry and
asking about upcoming jobs and by checking the internet and media sources for
shows coming into the
2. The Respondents’ objections to formula one
The Respondents
argue, as set forth in the Compliance Manual, that Formula One is applicable
only when conditions that existed prior to the unlawful action would have
continued unchanged during the backpay period.
The Respondents
urge that Formula Two, Compliance Manual Section 10540.3, should have been
used. That formula is calculated on the
basis of the earnings of another employee or employees whose work, earnings and
conditions of employment were comparable to those of the discriminatee both
before and after the unlawful action.
Formula Two is applicable, according to the manual, when there have been
significant changes in conditions during the backpay period and when it can be
concluded that the discriminatee’s earnings would have changed in the same
manner as did those of the comparable group.
The Respondents
assert that conditions changed drastically because in April 2006, SRS stopped
referring stagehands to the Casino. SRS
is a corporation established by Local 84 which was created for the sole purpose
of supplying stagehands to the Casino because the Casino, although willing to
employ union members, was unwilling to sign contracts with unions. Thus, although the Casino would not accept
referrals of employees from the
Thus, according to
the Respondents, the specification is flawed since it is based on the
assumption that Foti would have been referred to the same extent as in the base
period. They argue that this assumption
is not valid since referrals to Foti from the Casino through SRS were no longer
available following April 2006, since SRS no longer made referrals to the Casino
after that date.
The General Counsel
argues, however, that even with the loss of the Casino account, Local 84 could
have continued to have referred him to other venues. Compliance Officer Emirzian stated that she
did not take into account in computing the gross backpay that SRS no longer
referred workers to the Casino, and she did not change the gross backpay amount
in that regard. Emirzian stated that she
did not know what proportion of the base period sum of $29,757 was made up of
SRS referrals to Foti.
I do not agree with
the Respondent. First, no records were
received in evidence which show that the number of referrals made to Foti would
have been less because of the loss of the Casino account. Second, the records establish that, in fact,
beginning in the fourth quarter of 2006, at a time when SRS no longer made
referrals to the Casino, Local 84 referred Foti to a substantially greater
degree than it did from the beginning of the backpay period. Thus, for the fourth quarter of 2006, and for
the following five quarters, ending with the first quarter of 2008,
respectively, Foti earned the following amounts from referrals from Local 84:
$5291, $1509, $3395, $3512, $4917, and $2169.8
In contrast, the
referrals to Foti by the Respondents including SRS in the eight quarters
covering the period June 2004, through March 2006 (the second quarter of 2004
through the first quarter of 2006), when SRS was making referrals to the stagehands,
were minimal: 0, 0, $224, 0, $411, $535, $1010, and $81.9
Accordingly this shows that regardless of whether SRS no longer made
referrals to the Casino beginning in April 2006, the Respondents were not
referring Foti at a level to that made during the base period even when they
were making referrals to the Casino. His
quarterly earnings in that period of time were less than his quarterly earnings
during the base period, $7439.10
Both the Board and
the courts have applied a broad standard of reasonableness in assessing methods
for calculating gross backpay. Any formula that approximates the amount the discriminatees
would have earned absent the discrimination is acceptable if not unreasonable
or arbitrary under the circumstances.
The Board is required only to adopt a formula that will reasonably
approximate the amount due; it need not find the exact amount. Painting
Co., 351 NLRB 42, 43 (2007).
The Board attempts
to reconstruct as nearly as possible the economic life of the discriminatee and
place him in the same financial condition he would have enjoyed in the absence
of the unlawful discrimination. The
objective . . . is to reconstruct as accurately as possible what employment and
earnings the discriminatee would have had during the backpay period, had there
not been an unlawful action. Contractor Services, 351 NLRB 33, 35
(2007).
Based on the above
cases, the purpose of this proceeding is to make whole the individual discriminated
against—Foti. That is best done by
approximating what he earned in the
base period and projecting that amount into the backpay period. Because of the individual nature of
stagehands’ work, Foti’s history and experience with respect to the jobs that
he actually had in the base period are the most appropriate and reliable
sources of information as to what he
would have earned in the backpay period.
I accordingly find that the use of Formula One reasonably approximated
what Foti would have earned in the backpay period.
3. The formula proposed by the Respondents
The Respondents’
suggestion that Formula Two be used—an examination of the work records of
comparable employees is rejected. Given
the nature of the stagehands’ work, the formula selected must be personalized
and individualized to the employee who is to be made whole. There are too many variables in a stagehand’s
work experience to determine that a discriminatee’s backpay should be decided
upon the earnings of comparable employees during the periods in question.
In support of the
use of Formula Two, at the hearing, the Respondents produced a document which
identified four “comparable or representative” employees: William Graves,
Connor Philbin, John Shea, and John Tsimbidaros.11 Their dates of hire were December
8, 2001, December 8, 2001, February 9, 2002, and November 8, 2001,
respectively. Foti’s date of hire was
May 10, 2002. Their seniority based on
their date of hire is 161, 163, 169, and 158, respectively. Foti’s seniority is 173.
The document listed
the earnings of the five employees from 2002 through 2006 at six venues only,
those with which Local 84 has some relationship, either a collective-bargaining
agreement, an “agreement” as with Warner, and SRS. As I have found, above, limiting the
computation to those few venues is inappropriate. Accordingly, the fact that Foti received
fewer referrals than the other employees to those venues in the base period has
little relevance.
Moreover, the
seniority standings of those employees are irrelevant since, according to
Buckland’s testimony, during this period of time he referred people in order of
seniority if he “had the luxury of time,” adding that if he needed someone
immediately he would call a worker who he knew was located near the venue or
who he believed would respond quickly.
Further, a showing that Foti received fewer referrals in the base period
does not aid Local 84 since Buckland admitted that during that period of time
he unlawfully referred union members before the nonmembers such as Foti, and
when additional referrals were made thereafter he went to the top of the member
list and began referring again from that point.
In addition, it
does not appear that employees were referred by SRS to the Casino in order of
seniority. Thus, in the period prior to
October 15, 2005 and thereafter, Foti was referred to that venue 14 times,
whereas 43 employees with lower seniority than him were referred to the Casino
more often.12 Accordingly, the Respondents’ claims that the
employees selected were comparable to Foti because their dates of hire were similar
to Foti does not support their argument since referrals apparently were not
made in order of seniority.
The Board has held
that use of the comparable or representative employee formula is “premised on a
showing that the work, earnings, and other conditions of employment of the
allegedly representative employees were, in fact, comparable to those of the discriminatee
both before and after the unlawful action.
Consistent with these principles, ‘the representative employee formula
may not be employed unless it is representative’ of the discriminatee.” Contractor
Services, above, citing NLRB v. Ironworkers
Local 378, 532 F.2d 1241, 1243–1244 (9th Cir. 1976).
In Contractor Services, the Board
rejected the Regional Office’s use of a specification based on the comparable employee
formula because the employer’s work force, including the discriminatee Landers,
worked intermittently whereas the allegedly comparable employees “were those
who worked most consistently for the Respondents during the backpay period” and
thus were not “representative” of the discriminatee. The Board noted that the allegedly comparable
employees placed no limits on the referrals they would accept and several
accepted referrals to distant states.
Landers, in contrast, would not travel beyond the union’s limited
geographic jurisdiction in one state, would not travel to distant jobs, and did not look for or accept employment outside
the union’s geographic jurisdiction.
Here, we have the
opposite situation. The allegedly comparable
employees selected by the Respondents worked less often while Foti was
recognized by Buckland as someone who would travel to distant sites at short
notice and never refused a referral.
Accordingly, the “comparable” employees identified by the Respondents
were not representative of Foti.
Therefore, I reject the Respondents’ assertion that a comparable
employee formula is more appropriate.
In Laborers Local 38 (Hancock-Northwest),
268 NLRB 167, 170 (1983), the Board specifically approved the use of Formula
One and not Formula Two reasoning that under Formula Two the representative
employees worked fewer hours during the backpay period. This is particularly appropriate here where
Foti was very successful in obtaining work during the backpay period, while
other, allegedly comparable employees may not have been as industrious.
Compliance Officer
Emirzian testified that the Respondents did not provide any documents regarding
the referrals it made at any time during the backpay period. She stated that the Regional Office
considered using Formula Two using comparable employees, but she did not have
full and complete records from the
Buckland confirmed
this, stating that the Union did not present to the Regional Office in its
investigation of this case Respondents’ Exhibit 4—an analysis of the earnings
of other employees during the base period, which was limited to the venues with
which Local 84 has contracts. However,
he did bring “boxes” of documents to the Regional Office during its investigation
which contained the information which was ultimately used in the preparation of
that exhibit. Buckland also conceded
that he did not present to the Regional Office a formula regarding the
comparable employee method of calculation to establish gross backpay, for
example the replacement employee formula.
See Reliable Electric Co., 330
NLRB 714, 723 (2000), where the “compliance officer was “particularly hampered
in the calculation of the gross backpay because no payroll records were
furnished to aid in the computation . . . until shortly before this hearing.”
Emirzian set forth her obligation as one to arrive at a “reasonable”
calculation with a reasonable factual basis.
Accordingly, Formula One was decided upon. I find that Formula One was the most
appropriate formula to be applied here.
The nature of the stagehands’ work requires the application of Formula
One in this case. Their work is not
performed in a factory where they report for a predictable and easily measured
40 hours per week. Rather, stagehands
obtain work from various sources including Local 84, other unions and directly from
employers. They sometimes work on two
jobs per day and may stay on a job for extended periods of time. Also, as was the case with Foti, while on one
job he received referrals from Local 84 and accepted those referrals. Based upon the evidence it is also clear that
Foti was a very industrious person, “networking” in order to obtain as much
work as possible.
Accordingly, I find
that the formula chosen by the Regional Office was reasonable and appropriate.
C. The Specification’s Calculations
1. The base period
In computing the
base period earnings, the compliance officer added Foti’s paystubs for work
performed pursuant to referrals from Local 84 for the 1-year base period, June
1, 2003, to May 31, 2004, and obtained a total of $29,757. Such work included referrals from the Union
to jobs within its jurisdictional area and those in which the Union called him
pursuant to a request of another union and directed him to report to work in
that other
As set forth above,
the Respondents object to the specification’s inclusion of work that Foti
performed pursuant to requests he received from Local 84 to perform work pursuant
to calls the Local 84 agent received from other unions. In support of this argument, the Respondents
assert that the only referrals that should be included in the base period were
those to which Local 84 referred him for work in its jurisdictional area and
with which the Union has a contract, specifically, The Bushnell Theater, The
Meadows,
Foti also worked
during the base period in jobs he obtained on his own and not as a result of
referrals from the
Emirzian correctly
and appropriately reasoned that supplemental earnings were in effect earnings
received from a “second job” which, according to Board policy, should not be deducted
from gross backpay as interim earnings because such earnings were received
during the base period before the discrimination began. Thus, it could be presumed that absent the
discrimination, Foti would have continued to work on such other jobs even after
he was refused referral by the
The specification
appropriately sets forth the gross backpay from the second quarter of 2004,
through the first quarter of 2008, listing Foti’s gross backpay according to
the above formula, his interim earnings which consisted of referrals by Local
84 and supplemental earnings. Also set
forth were Foti’s interim expenses consisting of mileage fees.
2. The backpay period
As set forth above,
the specification, using Formula One, projects Foti’s earnings during the base
period, the 1-year period prior to the discrimination, as the amount he would
have earned during the backpay period.
Thus, the gross backpay consists of Foti’s earnings from “Local 84 work”
which includes referrals from Local 84 to work at venues within its
jurisdictional area, and referrals from Local 84 pursuant to requests from
other unions to perform work in their jurisdictions. There has been no evidence that Local 84’s
practice of referring employees pursuant to requests from other unions has not
continued into the backpay period.
Indeed, it would seem, based upon Buckland’s testimony that such
referrals were made routinely, that such a practice continued thereafter.
Foti’s gross
backpay also includes “non-Local 84 work” which is work he obtained on his own
during the base period reduced by his earnings in work provided by Local 84 in
each quarter, and also reduced by his supplemental earnings, the work he
obtained on his own to the extent that such work exceeded the supplemental
earnings base of $5140 (the amount he earned in non-Local 84 work during the
base period) less interim expenses. Such
sums which exceeded $5140 are interim earnings.
It is undisputed
that the backpay period begins on June 1, 2004.
The specification asserts, and the evidence establishes, that the
backpay period has not ended since Foti has not received referrals from the
The Respondents
make several arguments. First, they contend
that the close of the backpay period chosen by the General Counsel is
incorrect. They assert that the backpay
period should end when Foti was first referred for employment after their
unlawful refusal to refer him on May 24, 2004.
Thus, they contend that the backpay period terminated at their first
referral to Foti in December 2004. That
referral was for 2 days. Foti was not
referred again until April 13, 2005.
The Act is remedial. Its intent is to restore the discriminatee to
that which would have been the case had the violation not occurred. The purpose of backpay is to make the discriminatee
whole and compensate him as if the unlawful action had not occurred. The Board’s remedial Order here is clear and
broad. It did not state that Foti would
be considered as having been made whole upon his first referral after the
The Respondents
further contend that inasmuch as Foti was a person who had strong “networking”
skills and actively sought and received referrals from sources other than the Respondents
and found work on his own from other unions and even nonunion venues, the
Respondents’ obligation ended. They note
Foti’s testimony that he did not apply for full-time work at the Casino because
he believed that such work, involving only 40 hours per week, would take him
“out of the loop” preventing him from accepting higher paying jobs
elsewhere. Foti concedes telling
Buckland that he did not want to work full time for the Casino because he did
“very well freelancing.”
Foti admitted the
obvious—he could not accept two jobs at the same time. But he added that he has worked two jobs in 1
day, and has done so about 20 to 30 times in the past 4 years. For example, he did set up work in the
morning at one venue, and did “overnights” at another location. In fact, he stated that Buckland has asked
him to do two shows on the same day.
However, Compliance Officer Emirzian stated that the question before her
was whether Foti was being referred by Local 84, not whether if he was working
elsewhere he could accept Local 84 referrals.
Emirzian explained that backpay is not tolled because the employee is
working elsewhere. His work elsewhere is
deducted from gross backpay as interim earnings as was done here. Emirzian stated that her focus was whether
Foti received referrals from Local 84 during the backpay period and if he did
not, backpay continues to run and his work elsewhere was considered as interim
earnings if they were over the threshold that Foti had made in the base
period. Emirzian stated that the fact
that Foti worked for a particular employer does not necessarily mean that he
was unavailable for work from Local 84.
For example during the base period he accepted work from Local 84 and
from other sources in the same quarter.
After being
rejected for membership and told that he would not be referred because he was
not a member, Foti was obligated, due to financial need and due to his duty to
search for work and to find work wherever he could. Accordingly, the fact that he was working in
non-Local 84 jobs or referrals does not diminish the Respondents’ obligation to
refer him. In addition, Buckland
conceded that Foti had the right to call an employer or another local union
directly for work unless the employer had an exclusive hiring hall arrangement
with the
The Respondent
argues that in 2005 and 2006, Foti was “mostly not available for Local 84 or
SRS” work because he was working with Local 538, Aventek and other employers,
and that he used his “extensive network to pick and choose the most favorable
jobs.” Brief, p. 23. However, this overlooks the fact that Foti
gave uncontradicted testimony that he never refused a Local 84 referral when
made, and Buckland’s testimony that he did not call him because he assumed that
he was not available. However, I credit
Foti’s testimony that regardless of any work that he was doing at the time, if
Local 84 called he would “reprioritize” and accept that work. Accordingly, the Respondents’ argument that
Foti’s non-Local 84 work interfered with his Local 84 work because he could not
work at two jobs at the same time, is misplaced. He credibly testified without contradiction
that whenever he received a referral from Local 84 he accepted that work.
Foti worked
extensively for Local 538 whose business agent and president are Rob Francis
and Mike Hughes, respectively. In about April 2006, they formed an independent
private company called Crew 538 or Stage Production Services, for the purpose
of making referrals to the Casino, replacing SRS. After that time, no stagehands were referred
to the Casino by SRS. Foti received
referrals from Crew 538 to that venue.
In July 2006, Foti became a member of Local 538. About 1 month later, the International Union
directed Local 538 to be merged into Local 84, and at that time, Foti became a
member of Local 84.
Upon becoming a
member of Local 84 in August 2006, Foti and other members were told by Buckland
that they should not accept work from Crew 538.
As a result, Foti did not accept work from Crew 538 for about 9 or 10
months. However, in about mid-2007, due
to financial necessity, he began taking calls from Crew 538 and performing work
for that union.
Buckland testified
that Local 84 was unhappy with the Casino and with Crew 538 because he
considered it a nonunion work force which took work from it in Local 84’s
jurisdiction. Buckland did not support
Crew 538, hoped that it would fail, and told his membership not to accept work
from Crew 538. Buckland became aware
that Foti was working for Crew 538, and had worked at the Casino. He was “disappointed and unhappy” that he was
working for Crew 538, telling Foti that he “crossed the line,” had a “scab
mentality,” and that many members were unhappy about him taking that work
because the Union’s position is that Local 84 members would not work for Crew
538. Foti explained that he was not able
to survive financially and needed to take the work. Buckland advised him to do what he believed
he had to do. Thus, although Foti had an
obligation to search for and obtain work, Local 84 sought to limit his opportunity
to do so with Crew 538.
The Respondents
argue that inasmuch as Foti became a member of Local 84 in July 2006, he could
not, thereafter, be discriminated against for being a nonmember. The General Counsel’s response, which I agree
with, is that the liability phase of this case has been concluded with a
finding that discrimination against Foti has occurred, and this case involves
the remedy to be applied to make him whole because of that discrimination,
specifically that backpay continues to run until Foti’s referrals are restored
to the amount he enjoyed prior to the discrimination against him. Therefore, backpay appropriately continued to
run after Foti became a union member because has not yet been referred to the extent
that he had been during the base, one year period before his discrimination.
Buckland testified
that Foti was “not as available as normal” in 2006, and did not call in for 1
month prior to becoming a member of Local 84 in August 2006, but then he began
calling in on a weekly basis, adding that Foti was “getting his lion’s share of
work through Local 538 . . . and other places.”
However, Foti did receive referrals from the Respondents prior to May
2004, without calling in. In fact, Foti
stated that his referrals were so numerous in the base period that he did not
have to call in. Indeed, Foti credibly
testified that from late May 2004, until August 2006, he had no obligation to
call the
In this regard, Buckland testified that he did not refer
Foti because Foti did not advise the
Buckland testified
that according to Foti’s work records, he received 200 and 170 referrals to non-Local
84 locations in 2005 and 2006, respectively.
He received such work by “networking”—getting the jobs on his own. Buckland concluded that those jobs are more
lucrative than those that Local 84 could provide, and assumes that Foti could
not have accepted such Local 84 referrals because he was not available for them
in those 2 years. Buckland surmised that
if Foti did not call in for 6 months he obviously was working elsewhere, assuming
that he was not available because he did not call the office. Nevertheless, Buckland noted that he did not
attempt to call Foti during that period of time to offer him work, and stated
that Foti has never been denied work.
Buckland testified
that in 2005 and 2006, it was an “unofficial” requirement that employees call
in for work, but conceded that those employees who did not call in would probably
be referred anyway because of the need to provide employees for work requests. Buckland conceded that after Foti became a
member of Local 84 he called in on a weekly basis. Later Buckland stated that during the period
January 12, 2005 to February 27, 2006, there was a requirement, disseminated by
word of mouth, that workers call in to advise of their availability to take
calls. This is doubtful in that the
Buckland testified
that after referring Foti to the Casino on December 3, 2004, whenever Foti
called for work if Buckland had work to refer him to he was referred. It must be noted that apparently Buckland
waited for Foti to call him and ask for work, notwithstanding that 75 percent
of the membership was not calling in on a weekly basis. However, Foti stated that he called in weekly
even though others did not. Buckland
stated that Foti should have known that he should call in to make his
availability known when he returned from a work referral. However, this testimony must be contrasted
with Buckland’s other testimony that, prior to May 2004, Foti was his “go-to”
person who he could rely on to take a call on short notice. Accordingly,
Buckland’s interest in calling Foti for referrals drastically declined after
the discrimination against him. Further,
Buckland’s testimony that there were many occasions when work was not available
and he so advised Foti this leads to the conclusion that Foti did call in when
he wanted work and was told that none was available.
Finally, there was
some evidence that Foti was assaulted by Local 84’s members, apparently
introduced to show that Foti was uncomfortable working with that Union’s
members and perhaps did not seek referrals for that reason. Nevertheless, Foti continued to receive referrals
from Local 84 and continued to accept them.
Conclusion
I find that the
calculations as set forth in the compliance specification were appropriately
made and approximate the amount Foti would have earned absent the
discrimination, and that they are not unreasonable or arbitrary under the circumstances. Based upon the above, I issue the following
recommended14
ORDER
The Respondent,
Stagehands Referral Service (SRS) and International Alliance of Theatrical
& Stage Employees & Motion Picture Technicians of the United States &
Canada, Local 84, AFL–CIO, Hartford, Connecticut, shall make Stephen Foti whole
by paying to him the sums set forth in attached Appendix—Backpay Calculation
column entitled Total Backpay and Interest, such interest being computed in
accordance with New Horizons for the Retarded,
283 NLRB 173 (1987), minus tax withholdings required by Federal and State laws.15
Dated,
Stagehands Referral Service, LLC
1 The underlying unfair
labor practice decision is reported at
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 Liebman and Member Schaumber 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 Respondents have
excepted to some of the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect.
1 Counsel for the Respondents advised that he has appealed the Board’s decision.
2 Prior to the opening of the hearing, the General Counsel filed a Motion for Summary Judgment with the Board and a Partial Motion for Summary Judgment with me. Both motions were denied.
3 Following the close of the hearing, R. Exhs. 2 and 4 were received pursuant to the Respondents making available to the General Counsel the underlying documents which formed the basis of the two exhibits.
4 At the hearing, the parties were advised that I intended to issue two decisions. Tr. 83, 84.
5
6 The Respondents challenge the use of Formula One and instead urge that Formula Two or no formula at all should be used. This will be discussed below.
7 See R. Exh. 2, where SRS is listed as a venue to which Foti was referred.
8 GC Exh. 3, the referrals of Foti to “Local 84 work.”
9 GC Exh. 6.
10 That figure is computed as follows: $29,757 average earnings during the 1-year base period divided by 52, equals $572.25 per week times 13 weeks to obtain the quarterly figure.
11 R. Exh. 4.
12 GC Exh. 2.
13 In this regard, R. Exh. 5, a list of about 70 jobs that Buckland testified that Foti would have been referred to in the period May 28 to December 3, 2004, if he called in, is given little weight inasmuch as Buckland told Foti in May 2004, that he would not be referred for work. Accordingly, Foti’s calling in would be an exercise in futility. Moreover, he was not required to call in at that time.
14 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 to them shall be deemed waived for all purposes.
15 Emirzian testified that she became aware of and corrected certain errors made in the computations. Those corrections are set forth in the attached compliance specification.