IATSE Local 142 (Various)

National Labor Relations Board - Administrative Judge Opinions

Feb 26, 2014

15-CB-005871 (N.L.R.B. Feb. 26, 2014)

JD(ATL)–10–14
Mobile AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA OFFICE
THE INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES AND
MOVING PICTURE TECHNICIANS, ARTISTS
AND ALLIED CRAFTS OF THE UNITED
STATES, ITS TERRITORIES AND
CANADA, AFL-CIO, CLC, LOCAL 142
and Case Nos. 15–CB–005871
15–CB–005924
RANDALL H. FINCH, an Individual 15–CB–072526
and
JONATHAN W. MUDRICH, an Individual 15–CB–005894
and
JAMES P. VACIK, an Individual 15–CB–070725
Beauford D. Pines, Esq., and Nairea K. Nelson, Esq.,
for the General Counsel.
J. Cecil Gardner, Esq., Kimberly C. Walker, Esq., and
David C. Tufts, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in
Mobile, Alabama, on February 25 through March 1, 2013. Randall H. Finch, an individual,
filed the initial charge in Case 15–CB–005871 on April 23, 2009. He amended the charge
twice, on September 25, 2009 and October 28, 2009. On September 25, 2009, Finch also filed
his second charge, in Case 15–CB–005924. Jonathan W. Mudrich, an individual, filed the
charge in Case 15–CB–005894 on June 15, 2009 and amended it on September 25, 2009.
Based on the first two charges filed by Finch and the charge filed by Mudrich, the General
Counsel issued a consolidated complaint against the Respondent, International Alliance of
JD(ATL)–10–14
2
Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United
States, Its Territories and Canada, AFL–CIO, Local 142 (the Union or Local 142), on
November 17, 2009.1 On December 14, 2011, while the case was pending a hearing, James P.
Vacik, an individual, filed the charge in Case 15–CB–070725, which he amended on October
30, 2012. Finch filed his third charge in this matter, in Case 15–CB–072526, on January 17, 5
2012, which he amended twice, on March 9 and October 30, 2012. Based on these new
charges, the General Counsel issued a new consolidated complaint on October 31, 2012,
incorporating the allegations of the initial complaint and adding new ones.
The consolidated complaint alleges that the Respondent Union, since October 23, 10
2008, has violated Section 8(b)(1)(A) and (2) of the Act through the operation of a hiring hall
serving various employers in the Mobile, Alabama area. Specifically, the complaint alleges
that the Respondent failed and refused to refer the individual Charging Parties, as well as Jon
P. Mudrich and others “whose names are currently unknown to Counsel for the Acting
General Counsel” for employment for arbitrary and/or discriminatory reasons, or in bad faith, 15
and to encourage membership in the Union; that it referred employees without using objective
referral criteria; and that it failed to follow hiring hall rules. The Respondent’s conduct in
operating the hiring hall is alleged to have breached the Respondent’s fiduciary duty owed to
employees it represents, and to have encouraged employers utilizing the hiring hall to
discriminate against employees based on their membership or nonmembership in the Union.20
On November 15, 2012, the Respondent filed its answer to the consolidated complaint,
denying the unfair labor practice allegations and asserting several affirmative defenses,
including that the allegations are not supported by a timely-filed charge under Section 10(b)
of the Act, that no unit employees suffered any damage, loss, or injury as a result of the 25
Respondent’s operation of its hiring hall, and that any deviation from hiring hall rules was
inadvertent error or mistake. The Respondent also specifically denied that it maintained an
exclusive hiring hall and that it had a collective-bargaining agreement with all of the named
employers.
30
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 Respondent, I make the
following
FINDINGS OF FACT35
I. JURISDICTION
SMG Worldwide (SMG), one of the Employers identified as having a collective-
bargaining agreement with the Respondent, is a limited liability company with an office and 40
place of business in Mobile, Alabama, where it is engaged in the business of managing the
operations at the Mobile Civic Center and the Mobile Convention Center, and at other
entertainment and convention facilities in the area. SMG annually derived gross revenues in

1 A settlement agreement was executed by the Respondent in about March 2010. Although a
hearing scheduled at the time was postponed “pending settlement”, the settlement agreement was
never approved by the General Counsel’s office.
JD(ATL)–10–14
3
excess of $500,000 from its business and purchased and received at its Mobile facility goods
valued in excess of $5,000 directly from points outside the State of Alabama. The Respondent
admits, and I find, that SMG is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Respondent is a labor organization within the
meaning of Section 2(5) of the Act.25
II. ALLEGED UNFAIR LABOR PRACTICES
The undisputed evidence in the record establishes that the Respondent Local 142 did
not have a formal hiring hall prior to 2008. In about February 2008, International 10
Representative Scott Haskill met with the Respondent’s officers, including President Bud
Cook and Business Representative Philip Tapia, and suggested the Local establish a hiring
hall with a set of rules, policies and procedures. Haskill advised the Local that, if they did not,
the International Union would not represent them if they got into trouble over referrals.
Haskill presented Respondent with a set of rules it could use. Thereafter, the Respondent 15
submitted the rules to its membership for a vote and, upon approval, the new hiring hall with
its formal rules was created, effective April 1, 2008. The Respondent then created two rosters
for use in making referrals. Roster A consisted of union members, listed by date of
membership. Roster B consisted of nonmembers who had been referred to work by the Union.
There is no dispute that, in making referrals after April 2008, the Respondent referred its 20
members on the A roster before nonmembers on the B roster. This practice continued until
Finch filed his unfair labor practice charges in 2009. Effective October 1, 2009, the
Respondent’s members approved an amended set of hiring hall rules which, inter alia,
eliminated the A and B roster. Now, the Respondent uses one seniority list with names of all
employees who had used or desire to use the Union’s referral service to obtain work in the25
Mobile area, listed by the date they first worked in the stagecraft industry, without regard to
membership status.
In addition to the seniority rosters, the Union has maintained a First Hire list, as called
for in the hiring hall rules, for each venue it services. The First Hire list, by craft, identifies 30
those individuals with the highest skill and most seniority working at a particular venue. The
individuals on the First Hire crew are supposed to be the first ones in their respective craft to
be referred to the venue in question. As to all other venues or other crafts, their referral would
be based on their place on the seniority list. There is no dispute that, from April 1, 2008 until
July 2009, the Respondent did not have any written First Hire lists, even though it had first 35
hire crews for several venues, including the Mobile Civic Center and Convention Center. The
Respondent’s first written First Hire list was created on July 1, 2009. Charging Party Finch is
listed as the first hire stagehand for the Convention Center and Charging Party Vacik is listed
as the first hire lighting technician at the Arena, part of the Mobile Civic Center.3 Alleged

2 The complaint alleges that five other named parties in interest are also employers engaged in
commerce within the meaning of the Act. At the hearing, based on documents furnished pursuant to
subpoena, the parties were able to stipulate as to jurisdiction over these other entities. It is unnecessary
to make particular findings with respect to each as the Board’s jurisdiction in this matter is established
based on SMG’s status as an employer within the meaning of the Act.
3 Vacik is qualified for lighting and audio. He testified that he elected to be first hire for lighting
because every event requires lighting while there is not always sound for an event.
JD(ATL)–10–14
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discriminatee Jonathan P. Mudrich, is the first hire audio technician at the Civic Center’s
theatre.
Under the Respondent’s constitution and bylaws, the business representative is
responsible for the administration and operation of the hiring hall. As noted above, Tapia was 5
the business representative when the hiring hall was established in 2008.4 He served in this
capacity, an elected position, until January 2011 when he was succeeded by Charging Party
Vacik. Charging Party Finch served as a job steward under Business Representatives Mudrich
and Vacik. Vacik stepped down as business representative in August 2011. Tapia was
appointed to finish out his term, through December 2011. In January 2012, Tapia became the 10
Respondent’s president, succeeding Cook. John Kenneth Brown was elected as business
representative, a position he still held at the time of the hearing.
During the period covered by the complaint, the Respondent has had 2 collective
bargaining agreements with SMG covering work performed at the Mobile Civic Center and 15
Convention Center. The first was effective from October 1, 2006 through September 30,
2009. This agreement was negotiated by Jonathan P. Mudrich, who was the Union’s business
representative at the time and SMG General Manager Jay Hagerman. Both men signed the
agreement along with International Union Representative Donald Gandolini. This agreement
was succeeded by the current contract, which is effective July 1, 2011 through September 30, 20
2014. Charging Party Vacik negotiated the current agreement while serving as the
Respondent’s business representative. Hagerman also represented SMG for the 2011
agreement. Vacik, Hagerman and Gandolini signed this agreement. Both contracts contain
almost identical provisions with respect to recognition and the hiring of employees
represented by the Respondent.25
Both agreements open with several “Whereas” paragraphs recognizing the employer’s
need from time to time for skilled stagehands and other craftspeople to perform work related
to presentation of entertainment and theatrical events and the Respondent having such
individuals as members who are available to perform the required work and expressing the 30
mutual desire of the parties to set forth the terms under which such work will be performed.
Article 1, “Scope of Work and Recognition,” identical in both contracts, sets forth the
arrangement for hiring of personnel as follows:
1.1 Subject to the limitations set forth in the remainder of this Article or 35
elsewhere in this Agreement, the Employer recognizes the Union as the sole and
exclusive bargaining agent for all Personnel employed by the Employer in the
Mobile Civic Center. The Union has submitted proof and the Employer is
satisfied that the Union has been designated or selected for the purposes of
collective bargaining by the majority of employees in a unit appropriate for such 40
purposes.
1.2 (a) When requested by the Employer, Personnel represented by the Union
shall perform work required by the Mobile Civic Center in connection with the

4 Jonathan P. Mudrich, the father of Charging Party Mudrich and a named discriminatee himself,
was the business representative from 2005 until Tapia was elected in 2008.
JD(ATL)–10–14
5
stage-related aspects of the Mobile Civic Center’s presentation of entertainment
and theatrical events, and sports competitions and exhibitions.
(b) With respect to entertainment and theatrical events, the work of
Personnel may include, but shall not be limited to, truck and car loading and 5
unloading, the “Move-In”, “Performance”, and “Move-Out” of shows and
attractions, the staging of theatrical equipment, and the wardrobe requirements in
connection therewith.
(c) With respect to entertainment and theatrical events, and sports 10
competitions and exhibitions, the work of Personnel also may include stage
lighting; slide projection; filming, taping, photographing, or broadcasting, or
support thereof; and sound amplification, provided, however, that (i) individual(s)
designated by and traveling with the Show, who possesses the specialized skill,
ability and knowledge of the Show, may be permitted by the Employer to direct 15
or coordinate Personnel in the performance of any such duties, and (ii) any such
duties may be performed by persons other than Personnel covered by this
Agreement, including but not limited to the Employer’s stage manager and/or
Assistant Stage Manager, the Employer’s contractor, or the Show or its
contractor.20
(d) The Union acknowledges that the setup and tear down of meeting
rooms, including seating, risers, and other house equipment, in connection with
entertainment, theatrical events, sports competitions and exhibitions, or with
trade and industrial shows, flat shows, or conventions, whether in the Arena, 25
Theater, or Expo Hall, will be performed by employees other than Personnel
covered by this Agreement, unless Personnel are directed to do so by the
Employer on a case-by-case basis, in which event they shall be compensated in
accordance with this Agreement.
30
(e) It is expressly understood that all Personnel are subject to the
assignment, engagement, selection, direction, and control of the Mobile Civic
Center’s General Manager, Stage Manager (or Assistant Stage Manager), and/or
Director of Operations, or their respective designee(s), who will coordinate the
respective needs of the Show and the Mobile Civic Center.35
1.3 The Union agrees to provide Personnel skilled and experienced in
performing the aforementioned work, as and when requested by the Employer,
and the Employer agrees to give the Union Steward, or in his absence the Union
Business Agent, as much advance notice of such Personnel needs, or the 40
scheduling thereof, as is reasonably possible.
1.4 In the event an electrician is needed to perform general maintenance or
repair work in the entertainment and theatrical areas, the Employer may
subcontract such work or may assign a qualified, regular employee of the Mobile 45
Civic Center to perform the necessary work, as in the past. If the Employer
JD(ATL)–10–14
6
assigns an electrician who is a regular full-time or regular part-time employee of
the Mobile Civic Center, such employee shall be paid in accordance with the
terms and conditions of employment normally applicable to such full-time or part-
time employee.
5
1.5 The Employer and the Union will honor all Yellow Card attractions,
provided, however, that union members of touring companies permitted to work a
live theatrical production in the Mobile Civic Center never will outnumber the
Personnel assigned under this Agreement to work that production. There are no
fixed manning requirements or provisions applicable to the Mobile Civic Center, 10
subject to the Yellow Card requirements described herein. The Employer will not
invoke this provision for the purpose of depriving Personnel of legitimate work
assignments, and will notify the Union Business Representative of any events to
which Personnel may be assigned under this Agreement.
15
1.6 In the event the parties hereto disagree as to who shall do certain work at
the Mobile Civic Center, the Employer shall attempt to resolve any such work
dispute by meeting with the Union and any other party to the dispute. In the event
a mutually satisfactory solution cannot be reached at such meeting, the Employer
will make the final decision with respect thereto, subject to the union’s right to 20
grieve.
[Emphasis added.]. Yellow Card attractions, referred to in section 1.5, are travelling shows
that operate under a collective-bargaining agreement with the International Union.
25
The two contracts between the Respondent and SMG also included an “Addendum A”
which “outlines the agreement between [the Respondent] and SMG relating to the services or
personnel at the Mobile Convention Center” which provides as follows:
It is agreed between the parties that when requested by SMG, personnel 30
represented by IATSE shall perform the designated work at the Mobile
Convention Center Exhibit Hall. The work, conditions, safety, management
rights, visitation, and assignment shall be governed by the provisions in that
agreement entered into between SMG and IATSE on or about [date of
agreement]. (Emphasis added)35
Hagerman was subpoenaed to testify by the Respondent. He has been the General
Manager at the Civic Center and Convention Center for SMG since 1994. As noted above, he
negotiated and signed both collective-bargaining agreements for SMG. Hagerman testified
that neither agreement requires SMG to hire stagehands exclusively through the Union’s 40
hiring hall. SMG can and has utilized its own employees, employees of subcontractors and
crews traveling with a show or exhibition to do work covered by the Agreement. Hagerman
acknowledged that, in most case, it will utilize the hiring hall as a convenient source of skilled
employees. In all cases, SMG has the final say as to the source of labor.
45
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The General Counsel initially alleged in the complaint that five other employers in the
Mobile area who utilize stagehands from time to time have collective-bargaining agreements
that required the Respondent to be the exclusive source of referrals of employees to perform
work within the Respondent’s trade jurisdiction. However, at the hearing, no such collective
bargaining agreements were offered into evidence. Philip Tapia served as the Respondent’s 5
business representative from January 2008 through December 2010 and again from October
through December 2011, when he was elected president of the Union, the position he held
when testifying at the hearing. As business representative, Tapia was in charge of
administering the hiring hall. He testified without dispute that the Respondent did not have a
collective-bargaining agreement with any of these employers.5 Representatives of several of 10
these employers, who were subpoenaed by the Respondent, appeared at the hearing and
testified that they had no agreement with the Union requiring them to use the Respondent’s
hiring hall as the exclusive source of labor. The testimony of these employer representatives
revealed that each had, from time to time, utilized the Respondent as a source of employees
because it was convenient to do so, not because they were under any contractual obligation. 15
All testified consistently that they had hired stagehands, including union members, directly
without contacting the Respondent or utilizing the hiring hall. Faced with this evidence,
counsel for the General Counsel amended the complaint at the hearing to allege that by
contract “or practice,” the Respondent has been the exclusive source of referrals of employees
within its trade jurisdiction.20
The General Counsel’s theory of the case rests upon a finding that the Respondent
operated an exclusive hiring hall for jobs in the stagehand craft in the Mobile area. Under the
Act, a union that operates an exclusive hiring hall may not discriminate against and among
employees in the way it refers employees for employment. Laborers Local 334 (Kvaerner 25
Songer), 335 NLRB 597 (2001). A union that operates a nonexclusive hiring hall is not
obliged to follow a nondiscriminatory referral system because, in such cases, the union lacks
the power to put jobs out of reach of employees. Carpenters Local 537 (E. I. duPont), 303
NLRB 419 (1991). It is well established that the party asserting the existence of an exclusive
hiring hall has the burden of proof. Id. at 420.30
The evidence described above fails to establish that, by contract or “practice,” the
Union operated an exclusive hiring hall with respect to any of the employers named in the
complaint. SMG is the only employer with whom the Respondent had a collective bargaining
agreement and that agreement, on its face, does not create an exclusive referral system. 35
Rather, it provides that the employer may utilize the Union as a source of employees when it
deems it necessary. The collective bargaining agreement established the wages, hours, and
terms and conditions of employment of employees referred to the Civic Center and its venues
only when the Union referred such employees. It does not govern the terms and conditions of
SMG’s own employees, who perform some of the work that stagehands do, and it doesn’t 40
govern the terms and conditions of contractor employees who are utilized from time to time. I
credit the testimony of Hagerman over any contradictory testimony offered by the Charging
Parties that would suggest that an exclusive hiring hall arrangement existed in practice.

5 The five employers, named as parties in interest in the complaint, are: AIG Baker Wharf Inn,
LLC (“the Wharf”); BayFest, Inc.; Dorsett Productions Unlimited (“DPU”); Gulf Coast Exploreum
Science Center (“Exploreum”); and Alabama Power Company.
JD(ATL)–10–14
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The General Counsel’s case is even more unsustainable as to the other named
employers. None ever recognized the Union as the 9(a) representative of its employees. None
ever signed a collective-bargaining agreement with the Union. None ever signed any
agreement with the Union that would require them to use the Union as the exclusive source of 5
employees in the craft. Moreover, credible testimony from representatives of these
noncontract employers shows the nonexclusive nature of the Respondent’s referral service.
The fact that these employers, from time to time, elected to obtain through the Union the
services of skilled stagehands for specific functions, by itself, does not create an exclusive
hiring hall by any stretch of the imagination. 10
A union’s duty to act fairly and impartially drives from its status as exclusive
collective bargaining representative of employees in a specified unit. Vaca v. Sipes, 386 U.S.
171 (1967); Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 326 F.2d 172 (2d Cir.
1963). In this case, the Union had never been recognized by Alabama Power, the Wharf, 15
BayFest, the Exploreum, or DPU as exclusive representative of any unit of employees. Thus,
the Union owed no duty to assist its members or others in finding employment with these
employers who could and did hire individuals directly. The General Counsel’s reliance on
those cases where the Board found a “de facto” exclusive hiring hall are not apposite to the
situation here, with the exception of SMG. In those cases, there was at least recognition of the 20
union, a bargaining relationship and a collective bargaining agreement between the union and
the employer. See Teamsters Local 200 (Bechtel Construction), 357 NLRB No. 192 (2011);
Teamsters Local 293 (Beverage Distributors), 302 NLRB 403 (1991); Teamsters Local 328
(Blount Bros.), 274 NLRB 1053, 1057 (1985); Laborers Local 135 (Bechtel Corp.), 271
NLRB 777 (1984); Teamsters Local 174 (Totem Beverages), 226 NLRB 690 (1976).25
Because SMG had a collective-bargaining agreement with the Union which contained
referral language, those cases relied on by the General Counsel are relevant. However, I find
that they are distinguishable from the facts here which show, as described above, that SMG
retained discretion to determine when and whether to use the Union’s referral service. 30
Accordingly, I find that even as to SMG, the Union did not operate a “de facto” exclusive
hiring hall.
Without this predicate finding of an exclusive hiring hall, much of the General
Counsel’s case falls apart. Thus, any allegations that the Union violated the Act with respect 35
to referrals to employers other than SMG must fall because the Union owed no statutory duty
to the potential or actual employees of these employers who had not recognized it as the 9(a)
representative of their employees. Even as to SMG, because the Respondent operated a
nonexclusive hiring hall, it was not required to make referrals in a nondiscriminatory manner
nor was the Union required to follow objective criteria in the operation of the hiring hall. See40
Carpenters Local 370 (Eastern Contractors Assn.), 332 NLRB 174 (2000); Carpenters Local
537 (E. I. duPont), supra; Development Consultants, 300 NLRB 479 (1990). Accordingly, I
shall recommend dismissal of those allegations in the complaint that are based on alleged
discrimination in making referrals based on an applicant’s nonmembership in the Union or
based upon the Union’s failure to follow its hiring hall rules or other objective criteria in 45
making referrals to SMG.
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A Union that operates a nonexclusive hiring hall still owes its members a duty not to
retaliate against them for exercising their Section 7 rights and may be found to violate Section
8(b)(1)(A) where it discriminates against members in retaliation for their protected activities.
Teamsters Local 17 (Universal Studios), 251 NLRB 1248, 1257 (1980), cited with approval 5
by the Board in Carpenters Local 537 (E. I. duPont), 303 NLRB Supra at 420. Accord:
Teamsters Local 460 (Superior Asphalt), 300 NLRB 441, 441 fn. 1 (1990); Development
Consultants, 300 NLRB 479, 480 (1990). In this case, the General Counsel alleges that the
Respondent discriminated against Charging Parties Finch and Vacik in making referrals based
on their protected activity.10
Finch has worked in the industry for over 20 years and has been a member of the
Respondent Union since October 9, 2006. He served as steward when Jonathan P. Mudrich
was business representative, in 2006–2007. Finch more recently served as the elected
secretary-treasurer, from January to June 2012. He is listed on the first hire crew for the15
Convention Center as the first hire stagehand, which means he should be the first stagehand
referred when the convention center requests a referral. Finch has experience in all aspects of
stagehand work, including lighting and rigging, although he admitted that prefers not to work
certain freestyle up-rigging jobs that require a rigger to work on open beams. Finch also has a
history of filing charges against the Respondent, including three of the charges involved in 20
this case.
There is no dispute that, on March 1, 2008, Mary Gordon Forde, SMG’s event
services manager for the Convention Center, informed Cook, the Respondent’s president at
the time, that the producer of the Gulf Coast Boat Show had requested that Finch no longer 25
work on any boat shows due to his slow response and poor quality of work. Finch admitted
that he has not worked a boat show at the Convention Center since then. Around the same
time, Hagerman sent a letter to the Respondent, dated April 16, 2008, stating that SMG would
no longer allow Finch to work as part of a stagehand call at the Civic Center because he was
perceived to be slowing down work and had exhibited a bad attitude toward SMG 30
management and employees. Finch has not been referred to work any events at the Civic
Center since April 2008.
There is some evidence in the record that some officials of the Respondent bore
animus toward Finch. On September 28, 2009, 3 days after Finch had filed his second charge 35
against the Union and amended his first charge, Tapia sent an email to then Secretary-
Treasurer Helen Megginson in which he referred to Finch as “Rat Fink.” On December 20,
2010, while Finch’s charges were awaiting a hearing in this case, someone posted a sarcastic
comment on the Respondent’s webpage identifying Finch as the Respondent’s new
webmaster and directing members to “address all concerns to him.” There is no dispute that 40
Finch never served as the Respondent’s webmaster. It is also undisputed that only Business
Representative Tapia and Secretary-Treasurer Megginson had access to and the authority to
post information on the Respondent’s webpage.
The General Counsel cites a number of specific instances where it is claimed Finch 45
should have been referred to a job instead of someone else on the list. The first incident cited
JD(ATL)–10–14
10
by the General Counsel was the Order of Venus event at the Convention Center on February
16, 2009. Finch was referred to work the load-in and load-out for this Mardi Gras related
event, but he was not referred to work the performance phase. According to Finch, when he
questioned Tapia about this, Tapia told him that Finch had not been at a recent union meeting
and another member who was at the meeting requested to work the event. The General 5
Counsel also cites a number of events at the Convention Center where it is claimed that
someone was referred to a job ahead of Finch even though Finch was the First Hire Stagehand
for that venue. The first such event was the annual Nutcracker Ball in December 2010. Finch
had worked this event every year. According to Finch, he was watching the evening news on
December 21 and saw a report about the event and saw other stagehands working at the 10
Convention Center in preparation for it. Finch had not been called by Tapia for this job. Finch
testified that he checked the Respondent’s webpage to see if the event was listed and that is
when he discovered the sarcastic comment about him being the new webmaster. After Finch
submitted a written complaint about this to Tapia and the Respondent’s Hiring Hall Board, he
was referred to the event on December 23.15
Other events at the Convention Center, to which the General Counsel claims others
were referred ahead of Finch despite his being on the First Hire Crew for that venue are: Alfa
Showbiz on December 1, 2011; a December 29, 2011 event for Church of His Presence
(CHP) at the Convention Center for DPU; the Gulf States Horticulture show on January 14-17 20
(Finch was referred for the first day and not the remainder of the show); Another DPU event
for CHP on January 28, 2012; and Jam Fest Nationals, a dance competition, on February 23,
2012. The General Counsel also cites an incident on January 2, 2012 involving an event for
Dauphin Way Baptist Church. There is no dispute that employees other than Finch were
referred to perform rigging and stagehand work. Tapia claimed that the call for employees 25
came in to the Union at 6:00 pm for a job that started at 8:30 pm, less than two hours away.
Tapia testified that he referred two employees who were present at the Civic Center when he
received the call rather than using the seniority roster. Finally, the General Counsel cites a
referral to the Exploreum to help with setting up and taking down a travelling dinosaur
exhibit.6 Finch and Charging Party Vacik were referred for 2 days to do the load-in. The 30
complaint is that they did not work the next 2 days (January24 and 25, 2012). John Kenneth
Brown was the business representative at the time, having succeeded Tapia after Tapia was
elected president. Brown testified that he recalled that Finch and Vacik had another job on
January 24 and 25.
35
As already found, the Respondent Union did not operate an exclusive hiring hall with
respect to work at the Mobile Convention Center and had no contractual or statutory
obligation to fairly represent employees of the other employers named in the complaint, such
as DPU and the Exploreum. Thus, to establish a violation of the Act regarding these non-
referrals for Finch, the General Counsel must prove that the Respondent, in failing to make a 40
referral, was motivated by protected activity engaged in by Finch. While there is no question
that Finch’s charge-filing activity was protected, and although there is some evidence that
there was no love lost between Finch and Tapia, I find that the General Counsel has not met
his burden of proving causation between Finch’s protected activity and the nonreferrals. The
Respondent’s witnesses, Tapia and Brown, provided an explanation for the non-referrals 45

6 The Exploreum is one of the employers with whom the Union had no contract.
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11
which was not unreasonable. Finch’s testimony was not entirely credible because he tended to
exaggerate his rigging skills and experience in the face of contradictory testimony from the
Respondent’s witnesses. I also note that, during his testimony, Finch took an unusually long
time to answer some questions, even when posed by Counsel for the General Counsel,
suggesting that he was contemplating the consequences of whatever answer he gave. I also 5
note that SMG management, which operates the Convention Center, had already expressed
their displeasure with Finch’s work performance. Finally, the record shows that, despite these
incidents when Finch was allegedly denied a referral by the Respondent, he received multiple
other referrals to the Convention Center and other venues during the period of time after he
filed charges against the Union. This evidence tends to belie any claim that the Respondent 10
was intent on retaliating against Finch for unlawful reasons.
Charging Party Vacik has worked in the industry since 1994 and has been a member
of the Respondent since November 13, 2006. As noted above, Vacik is on the First Hire Crew
for the Arena at the Civic Center as Head Lighting. Vacik also has substantial audio15
experience and has worked as a stagehand and rigger. As noted previously, Vacik also served
as the Respondent’s business representative, in charge of making referrals, from January to
August 2011.He filed one of the charges in this case, on December 14, 2011. There is no
evidence of any specific animus towards Vacik over the exercise of any protected activity.
20
The General Counsel does not allege that Vacik was passed over for referrals to the
Arena where he was on the First Hire Crew. Rather, the General Counsel cites a number of
events between October 4, 2011 and February 5, 2012 where records kept by the Respondent
show that employees with less seniority than Vacik were referred to jobs at other venues.
Three of the events occurred around the same time: an Alabama Power Company business 25
meeting held at the Grand Hotel in Point Clear, Alabama on October 4, 5 and 7, 2011; The
BayFest Miller Stage on October 5, 6, 7, 8 and 9, 2011 (Vacik usually works this event every
year and in fact worked the event on October 7 and 8 and declined to work on October 9); and
the load out of the Space Shuttle exhibit at the Exploreum on October 5. 2011. All of these
events were presented by employers who did not have a contractual relationship with the 30
Union. Thus there was no obligation for the Respondent to follow objective criteria or act
fairly in making these referrals. The only thing the Respondent was prohibited from doing
was denying a referral because of a members protected activity. As with the allegations
regarding Finch, the General Counsel has the burden of proving an unlawful motivation. I
find that, in this instance, he has not met his burden. Vacik in fact was referred and worked 35
one of these events during this period. If the Respondent were intent on retaliating against
Vacik, why would they have referred him for 3 days at the BayFest job? Vacik declined one
of the 3 days he was offered work. It’s possible that he also declined work on October 5, a day
all three events shared.
40
The other events which Vacik was allegedly passed over for discriminatory reasons
involve primarily audio work. There was disagreement in the testimony over the extent of
Vacik’s skill and qualifications for this work. I note that Vacik’s testimony about work he
performed at a venue not named in the complaint (the Saenger Theater), was not corroborated
by the production manager at that facility, Mitch Teeple, who testified that another individual 45
actually performed the work that Vacik claimed to have done. In light of Vacik’s questionable
JD(ATL)–10–14
12
credibility regarding his expertise and experience, I cannot say that the testimony of the
Respondent’s witnesses as to the reasons Vacik was not referred to these jobs was pretextual.
Having found that the General Counsel has not met his burden of proving that the
Respondent discriminated against Finch and Vacik in making referrals because they had 5
engaged in protected activity, I shall recommend that these allegations in the complaint be
dismissed as well. Carpenters Local 537 (E. I. duPont), Supra.
CONCLUSIONS OF LAW
10
1. The Respondent Union did not operate an exclusive hiring hall with respect to
referral of employees to the Mobile Civic Center and Mobile Convention Center under its
collective-bargaining agreement with SMG Worldwide.
2. The Respondent was not the Section 9(a) representative of and owed no statutory 15
duty to employees of Alabama Power Company, AIG Baker Wharf Inn, LLC, BayFest, Inc.,
Dorsett Productions Unlimited and Gulf Coast Exploreum Science Center.
3. The Respondent did not violate Section 8(b)(1)(A) and (2) of the Act through the
operation of its nonexclusive hiring hall.20
4. The Respondent did not violate Section 8(b)(1)(A) of the Act by discriminating in
making referrals against Randy Finch and James Vacik because they engaged in activity
protected by the Act.
25
5. The Respondent has not violated the Act in any other manner alleged in the
complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended730
ORDER
The complaint is dismissed.
35
Dated, Washington, D.C. February 26, 2014
40
Michael A. Marcionese
Administrative Law Judge

7 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.