International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 89 (N.L.R.B. 2016)

364 NLRB No. 89
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied
Crafts of the United States, its territories and
Canada Local No. 151 (SMG and The Freeman
Companies d/b/a Freeman Decorating Services,
Inc.) and Katie M. Martens. Case 14–CB–
101524
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On June 20, 2014, Administrative Law Judge Christine
E. Dibble issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. Additionally, the General Counsel
filed a limited cross-exception, and the Respondent filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that the Board has ju-
risdiction over Freeman Decorating Services, Inc. (Freeman). In any
event, the Board’s jurisdiction over Freeman is established by uncon-
troverted evidence. We agree, for the reasons stated by the judge, that
the Board also has jurisdiction over SMG/Pershing and that the Re-
spondent operates an exclusive hiring hall with respect to the referral of
employees to SMG/Pershing and Freeman. In support of the latter
finding, the judge cited Carpenters Local 1507 (Perry Olsen Drywall),
358 NLRB 1 (2012), “and cases cited therein.” We do not rely on
Carpenters Local 1507, a decision that issued at a time when the Board
lacked a quorum. See NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).
We rely instead on the cases cited in Carpenters Local 1507.
We also agree, for the reasons stated by the judge, that the Respond-
ent discriminated against nonmembers in violation of Sec. 8(b)(1)(A)
and (2) of the Act by granting priority to its members for job referrals
for employment with SMG/Pershing and Freeman, and that the Re-
spondent’s 10(b) defense to this allegation is without merit. (In support
of the former finding, the judge again cited Carpenters Local 1507,
supra. We rely on the other cases cited in her discussion of this viola-
tion.)
Finally, we agree, again for the reasons stated by the judge, that the
Respondent violated Sec. 8(b)(1)(A) of the Act by refusing to pay
modified below,2 to amend the remedy section of the
judge’s decision, and to adopt the judge’s recommended
Order as modified and set forth in full below.3

money from its V-Fund, a vacation account funded by employer service
fees for its hiring hall referrals, to nonmembers. The judge additionally
found that the Respondent violated Sec. 8(b)(1)(A) by refusing to pay
money from its V-Fund to union members Les Haake, Dennis Hansen,
Steve Hike, Danny Ladely, and Anthony Polanka. We agree with the
finding of a violation as to the five named discriminatees, but we do not
rely on the judge’s finding that the Respondent’s requirement that
members submit requests for V-Fund payments on a union form was
unlawful, and that the V-Fund payment denials were therefore unlaw-
ful. Under the duty-of-fair-representation standard, unions are entitled
to a wide range of reasonableness in setting rules, and the Respondent
acted well within that range of reasonableness in requiring members to
submit request forms to obtain V-Fund bonus payments: the Respond-
ent was facing financial difficulties, and giving its members a voluntary
opportunity to decline a V-Fund payment was a reasonable measure to
take to address those difficulties. However, the evidence does not
establish that failure to submit the lawfully required form was the rea-
son for the denials at issue. Rather, as the judge found, the Respondent
denied these discriminatees V-Fund payments because they criticized
the Respondent’s V-Fund policies at a union meeting and retained an
attorney who sent a demand letter to the Respondent on their behalf.
The discriminatory nature of the Respondent’s conduct was demon-
strated by the fact that Haake and Hansen, who timely submitted the
required requests for payment, were denied the V-Fund payments while
all other members who submitted the form were paid the V-Fund bo-
nus. Further, the nonpayment to the five was not justified by the Re-
spondent’s purported concern over the legality of making payments to
members but not to nonmembers; the Respondent paid other members
who submitted forms for the V-Fund payments. Thus, the Respondent
denied V-Fund payments to these five individuals for discriminatory
reasons in violation of Sec. 8(b)(1)(A).
2 We have amended the judge’s conclusions of law consistent with
our findings herein.
3 We amend the judge’s remedy in several respects. Preliminarily,
we note that Tony Polanka and Anthony Polanka are different individu-
als. We also note that Anthony Polanka is deceased; thus, all make-
whole amounts due him shall be payable to his estate. Backpay for the
unlawful refusal to refer Sheila Brunkhorst and Tony Polanka on Feb-
ruary 4 and 5, 2013, and the unlawful suspensions from the hiring hall
beginning February 7 of Brunkhorst, Tony Polanka, Les Haake, Dennis
Hansen, Steve Hike, Danny Ladely, and Anthony Polanka shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). In accordance with our recent deci-
sion in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall also
order the Respondent to compensate employees affected by the above-
mentioned unlawful refusals to refer and unlawful suspensions for their
search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River Medical
Center, supra. For the reasons stated in his separate opinion in King
Soopers, supra, slip op. at 9-16, our dissenting colleague would adhere
to the Board’s former approach, treating search-for-work and interim
employment expenses as an offset against interim earnings. Backpay
for the unlawful failure to pay V-Fund payments to nonmembers and to
members Haake, Hansen, Hike, Ladely, and Anthony Polanka shall be
computed in accordance with Ogle Protection Service, 183 NLRB 682
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
1. Refusals to refer and suspensions from referrals.
We agree with the judge’s findings that the Respondent
violated Section 8(b)(1)(A) and (2) by refusing to refer
Sheila Brunkhorst and Tony Polanka to the Freeman job
at the Cornhusker Hotel on February 4 and 5, 2013,4 and
by suspending Brunkhorst, Anthony Polanka, Tony
Polanka, Les Haake, Dennis Hansen, Steve Hike, and
Danny Ladely from receiving referrals from its exclusive
hiring hall beginning about February 7. We do so apply-
ing a duty-of-fair-representation framework.5 Under this
framework, when a union interferes with an employee’s
employment status for reasons other than the failure to
pay dues, initiation fees, or other fees uniformly re-
quired, a rebuttable presumption arises that the interfer-
ence is intended to encourage union membership. As the
Board explained more than 40 years ago:
When a union prevents an employee from being hired
or causes an employee’s discharge, it has demonstrated
its influence over the employee and its power to affect
his livelihood in so dramatic a way that we will infer—
or, if you please, adopt a presumption that—the effect
of its action is to encourage union membership on the

(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra. We shall also order the Re-
spondent to compensate all backpay recipients for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award. See Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10, slip op. at
3 fn. 12 (2014) (respondent that has never been an employer of the
discriminatee is subject to tax-compensation remedy but not Social
Security reporting requirement). The nonmembers entitled to backpay
as a result of the Respondent’s failure to make V-Fund payments to
them were not identified at the hearing; they shall be identified in com-
pliance. See, e.g., Electrical Workers Local 724 (Albany Electrical
Contractors Assn.), 327 NLRB 730, 730 (1999). Finally, we do not
rely on the judge’s citation, in the remedy section of her decision, to
Teamsters Local 25, 358 NLRB 54 (2012), a decision issued at a time
when the Board lacked a quorum.
In its exceptions, the Respondent advances various contentions re-
garding its remedial obligations. Some of these contentions merely
reiterate the Respondent’s challenges to the merits of the unfair labor
practice findings and shall not be further addressed. Others, however,
relate to the implementation of remedies requiring backpay, restoration
of discriminatees to the hiring-hall referral list, and the creation of and
referral from a hiring-hall referral list based on objective, nondiscrimi-
natory criteria. The Respondent may raise these issues in compliance.
We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with Ferguson
Electric Co., 335 NLRB 142 (2001). Finally, we shall substitute a new
notice to conform to the Order as modified and in accordance with
Durham School Services, 360 NLRB No. 85 (2014).
4 All dates refer to 2013 unless otherwise indicated.
5 The duty-of-fair-representation standard is applicable to this allega-
tion because, with respect to Freeman, the Respondent operates an
exclusive hiring hall. See, e.g., Stage Employees IATSE, Local 720
(Tropicana Las Vegas), 363 NLRB No. 148, slip op. at 6 (2016) (“It is
well established that . . . an operator of an exclusive hiring hall . . .
owes a duty of fair representation to all applicants using that hall.”).
part of all employees who have perceived that exercise
of power. But the inference may be overcome, or the
presumption rebutted, not only when the interference
with employment was pursuant to a valid union-
security clause, but also in instances where the facts
show that the union action was necessary to the effec-
tive performance of its function of representing its con-
stituency. [Footnote omitted.]
Operating Engineers Local 18 (Ohio Contractors Assn.),
204 NLRB 681, 681 (1973). Once the General Counsel
establishes union interference with employment status in the
operation of an exclusive hiring hall, the “union bears the
burden of establishing that referrals are made pursuant to a
valid hiring-hall provision, or that its conduct was necessary
for effective performance of its representational function.”
Stagehands Referral Service, LLC, 347 NLRB 1167, 1170
(2006), enfd. 315 Fed. Appx. 318 (2009).
Turning first to the allegation that the Respondent un-
lawfully refused to refer Brunkhorst and Tony Polanka to
the Freeman job at the Cornhusker Hotel on February 4
and 5, it is undisputed that the Respondent interfered
with their employment status by refusing to refer both
employees. Accordingly, the Respondent bore the bur-
den of establishing that its refusal to refer them was ei-
ther “pursuant to a valid hiring-hall provision” or “neces-
sary for effective performance of its representational
function.” Stagehands Referral Service, supra. The Re-
spondent did not rely on a hiring-hall provision to justify
its failure to refer Brunkhorst and Tony Polanka, and the
judge rejected, on credibility grounds, the Respondent’s
claim that it did not refer them because of “their prior
behavior and inability to work with others assigned to . . .
the Freeman job.” Accordingly, the Respondent failed to
sustain its burden of proof.
Similarly, it is undisputed that the Respondent inter-
fered with the employment status of Sheila Brunkhorst,
Anthony Polanka, Tony Polanka, Les Haake, Dennis
Hansen, Steve Hike, and Danny Ladely when it suspend-
ed them from receiving referrals from its exclusive hiring
hall beginning on or about February 7. Again, the Re-
spondent did not rely on a hiring-hall provision to justify
these suspensions. And the judge found, and we agree,
that the reasons the Respondent advanced for these sus-
pensions were either not credible or contradicted by rec-
ord evidence.6 Accordingly, we find that the Respondent
failed to establish that the suspensions were “necessary

6 The judge inadvertently stated that the Respondent’s letter to Tony
Polanka regarding his suspension referred to his involvement in a law-
suit filed against the Respondent. In fact, the letter does not mention
the lawsuit. This does not affect our disposition of the allegation.
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 3
for effective performance of its representational func-
tion.” Stagehands Referral Service, supra.7
2. Respondent’s work rules. The Respondent’s hiring
hall work rules contain the following provisions:
9.1.3 Any referent who fails to show up for work
and/or walks off a job after accepting a referral shall be
subject to the following:
9.1.3.1 First offense in a twelve month period: $50.00
assessment and removal from the referral list until the
fine is paid.
9.1.3.2 Second offense is a twelve month period:
$100.00 fine and removal from the referral list
until the fine is paid.
9.1.3.3 Third Offense in a twelve month period: one
year suspension with the suspension to begin on the
date of conviction through one calendar year. The sus-
pended referent is not to perform any bargaining unit
work while under the imposed suspension. Upon com-
pletion of the suspension year, the suspended individual
shall have the right to petition the Referral Committee
for review and possible reinstatement on the list. This
decision shall be made solely by the Referral Commit-
tee; all decisions on these matters shall be final and
binding on all parties.
The General Counsel alleged, and the judge found, that
the Respondent violated Section 8(b)(1)(A) by maintain-
ing work rules 9.1.3, 9.1.3.1, and 9.1.3.2. The Respond-
ent does not challenge the merits of the judge’s finding.
It represents that it has “[begun] the process of removing
the language from its rules.” We agree with the judge,
for the reasons she states, that this representation does
not render the allegation moot.
In adopting the judge’s finding that work rules 9.1.3,
9.1.3.1, and 9.1.3.2 are unlawful, we do not find that the
maintenance of the rules constituted a violation of the
Act per se. See International Alliance of Theatrical
Stage Employees (Freeman Decorating Service), 364
NLRB No. 81 (2016) (rejecting General Counsel’s con-
tention that similar rules were unlawful per se). Rather,
applying the duty-of-fair-representation framework, we
find that the General Counsel has established a rebuttable
presumption that the work rules would “encourage union

7 Member Hirozawa does not view this kind of allegation as properly
subject to analysis under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982). How-
ever, if Wright Line were applied to the refusals to refer and suspen-
sions from referral in this case, he would find them unlawful under that
standard as well as under the applicable duty-of-fair-representation
standard, substantially for the reasons set forth by Member Miscimarra
in his partial concurrence.
membership” within the meaning of Operating Engi-
neers Local 18 (Ohio Contractors Assn.), supra, because
the rules affect the employment status of registrants in
the Respondent’s hiring hall by providing for suspension
from referral until fines or assessments are paid. The
burden then shifts to the Respondent to rebut this pre-
sumption. The Respondent, however, does not argue that
these work rules were reasonably designed to preserve
the integrity of the referral system, United Brotherhood
of Painters, Decorators & Paperhangers of America,
Local No. 487 (American Coatings), 226 NLRB 299, 301
(1976), or necessary to the effective performance of its
function of representing its constituency, Operating En-
gineers Local 18 (Ohio Contractors Assn.), supra. Ac-
cordingly, we find that the Respondent violated Section
8(b)(1)(A) of the Act by maintaining rules 9.1.3, 9.1.3.1,
and 9.1.3.2.8
3. The Respondent’s constitution and bylaws. The
General Counsel excepts to the judge’s dismissal of the
allegation that the Respondent’s maintenance of Article
12 (“Appeals”), Section 6 (“Exhausting Internal Reme-
dies”) of its constitution and bylaws violated 8(b)(1)(A).
The provision at issue reads: “The members further con-
sent to be disciplined in the manner provided by this
Constitution and Bylaws, and under no circumstances to
resort to outside tribunals until all the remedies therein
provided shall have been exhausted.” The General
Counsel argues that the maintenance of this provision
was unlawful because the policy did not include lan-
guage consistent with the four-month limitation on ex-
haustion of remedies set forth in Section 101(a)(4) of the
Labor Management Reporting and Disclosure Act
(LMRDA).9 Contrary to General Counsel's argument,
however, we find that the judge’s dismissal of this alle-
gation was consistent with well-established case law in
this area and that the General Counsel has not provided a

8 The judge also found work rule 9.1.3.3 unlawful. However, the
complaint did not allege that rule 9.1.3.3 is unlawful, and the General
Counsel does not so argue. The judge’s inclusion of rule 9.1.3.3 in her
discussion and recommended Order appears to have been an inadvert-
ent error. Accordingly, we shall modify the judge’s recommended
Order to delete the reference to rule 9.1.3.3.
9 29 U.S.C. § 411(a)(4). That section provides in relevant part:
No labor organization shall limit the right of any member thereof to
institute an action in any court, or in a proceeding before any adminis-
trative agency, irrespective of whether or not the labor organization or
its officers are named as defendants or respondents in such action or
proceeding, or the right of any member of a labor organization to ap-
pear as a witness in any judicial, administrative, or legislative proceed-
ing, or to petition any legislature or to communicate with any legisla-
tor: Provided, That any such member may be required to exhaust rea-
sonable hearing procedures (but not to exceed a four-month lapse of
time) within such organization, before instituting legal or administra-
tive proceedings against such organizations or any officer thereof . . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
compelling reason for reversing this precedent. Accord-
ingly, we adopt the judge’s dismissal of this allegation.
In Scofield v. NLRB, 394 U.S. 423, 429-430 (1969),
the Supreme Court interpreted Section 8(b)(1)(A) of the
Act, which contains language both prohibiting labor or-
ganizations from interfering with employees’ Section 7
rights as well as protecting the ability of a labor organi-
zation to “prescribe its own rules with respect to the ac-
quisition or retention of membership therein.” The Court
determined that, consistent with Section 8(b)(1)(A), un-
ions are free to maintain and enforce their internal regu-
lations, so long as those regulations do not affect a mem-
ber’s employment status or “invade[ ] or frustrate[ ] an
overriding policy of the labor laws.” Id. at 429.
The Board has consistently recognized that an exhaus-
tion of internal remedies provision in a union constitution
reflects a legitimate union interest and is consistent with
Section 101(a)(4) of the LMRDA, even if that provision
does not specifically reference the 4-month limitation
articulated in the LMRDA. For example, in Operative
Plasterers’ Local 521, 189 NLRB 553, 556–557 (1971),
the General Counsel alleged that the respondent union
violated Section 8(b)(1)(A) by maintaining a provision in
its constitution that required all members to “fully ex-
haust all remedies provided for within this Constitution
pertaining to this organization or its Local Union or their
membership or their officers and shall not resort to court
or administrative proceedings of any description until all
remedies provided for herein are fully exhausted.” Id. at
555 fn. 4. The Board adopted the judge's finding that the
provision at issue did not constitute a per se violation of
Section 8(b)(1)(A). The judge reasoned that the proce-
dure for resolving members’ problems internally served a
reasonable purpose, specifically “provid[ing] the organi-
zations with methods of resolving internal disputes so
that intrafamily squabbles could be settled intrafamily.”
Id. at 556. In deciding the case, the judge discussed Sec-
tion 101(a)(4) of the LMRDA, including its four-month
limitation period, as well as cases interpreting that provi-
sion. Contrasting the maintenance of a neutral exhaus-
tion of remedies provision with a union's coercive use of
such a provision, he concluded “there is no way to say
that a section commanding exhaustion of internal reme-
dies is per se illegal.” Id. at 557. Accordingly, the
Board adopted the judge’s finding and held that the pro-
vision did not violate 8(b)(1)(A), despite the fact that it
did not include a reference to the LMRDA's four-month
limitation period.
Similarly, in International Brotherhood of Teamsters
(Red Ball Motor Freight), 191 NLRB 479 (1971), enf.
denied on other grounds 462 F.2d 201 (5th Cir. 1972),
the Board, citing Operative Plasterers’ Local 521, held
that provisions in the respondent union’s constitution
providing, among other things, that members “exhaust all
remedies provided for in this Constitution and by the
International Union before resorting to any court, tribu-
nal or agency” did not constitute restraint and coercion
under Section 8(b)(1)(A). As in Operative Plasterers’
Local 521, the exhaustion provision did not reference the
LMRDA Section 101(a)(4)’s 4-month limitation.
Our dissenting colleague, ignoring the clear precedent
on this issue, argues that the language of article 12, Sec-
tion 6 when read together with article 12, Section 1
(“Right of Appeal”), would lead employees to reasonably
believe that their obligation to exhaust internal remedies
is open-ended, and thus, unlawfully interferes with em-
ployees’ right to file charges with the Board.10 Our col-
league attempts to analogize this case to those involving
employer-mandated arbitration policies that interfere
with employees’ right of access to the Board. Those
cases, which involve policies that employees would rea-
sonably construe to channel all employment-related dis-
putes exclusively and permanently into an arbitral forum,
to the exclusion of the Board and its processes, are clear-
ly distinguishable. The Respondent’s constitution and
bylaws expressly allow members to access other forums,
after exhausting internal remedies, and LMRDA Section
101(a)(4) ensures that the internal exhaustion may not
exceed 4 months, leaving ample time to file a charge
with the Board. See NLRB v. Industrial Union of Marine
and Shipbuilding Workers of America, 391 U.S. 418, 428
(1968) (“We conclude that unions were authorized to
have hearing procedures for processing grievances of
members, provided those procedures did not consume
more than four months of time.”).11
The dissent, in analyzing this case under U-Haul Co.
of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed.
Appx. 527 (D.C. Cir. 2008), fails to recognize that the
Board does not treat a union rule in the same manner as a
unilaterally implemented employer workplace rule.

10 The dissent argues that Article 12, Section 1 further supports a vi-
olation because it would be impossible for a member to complete the
five-step procedure for exhausting remedies in less than 6 months.
However, aggrieved members are not required to complete the five-
step procedure. The provision states that “[a]ny member aggrieved by
the decision, rule, regulation, order or any other act or omission or
mandate of an officer or the Executive Board of this Local may, after
exhausting their remedies within the Local by appeal to the member-
ship, appeal the case in the following order . . . .” [emphasis added].
11 The dissent suggests that it may be unlawful for a union to impose
any delay on the filing of charges with the Board. LMRDA Sec.
101(a)(4) obviously contradicts his suggestion, as it expressly permits
labor organizations to require their members to exhaust internal proce-
dures, not to exceed 4 months, “before instituting legal or administra-
tive proceedings against such organizations or any officer thereof.”
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 5
Thus, the issue here is not whether an employee would
reasonably interpret Article 12, Section 6 to interfere
with their Section 7 rights, as our colleague contends.
Rather, as discussed above, the Supreme Court has rec-
ognized that internal union rules are reviewed under a
different standard. Scofield, 394 U.S. at 428; accord La-
borers’ Union Local No. 324, 318 NLRB 589 (1995) (a
union is free to adopt and maintain a rule which prohibits
distribution of material in its hiring hall, so long as the
rule adheres to the guidelines set forth in Scofield), enfd.
in relevant part 123 F.3d 1176 (9th Cir. 1997). Further,
the Board and courts have found provisions requiring
union members to exhaust internal union remedies to be
unlawful only where they have been invoked to interfere
with or punish an employee for resort to the Board. See
NLRB v. Marine & Shipbuilding Workers, 391 U.S. at
424 (“Any coercion used to discourage, retard, or defeat
that access [to the Board] is beyond the legitimate inter-
ests of a labor organization.”); Operative Plasterers’
Local 521, 189 NLRB at 558–559 (despite facially law-
ful internal union rule requiring members to exhaust in-
ternal remedies before resorting to courts or administra-
tive proceedings, union threat to file internal charges
against employees who filed Board charges without hav-
ing exhausted internal union remedies was unlawful be-
cause it was used to coerce member by obstructing “his
path to the Board”). It is undisputed that there was no
such interference or coercion in this case.
Finally, we note that there is nothing in the text of the
LMRDA that requires a labor organization to set forth
the four-month limitation in its constitution and bylaws;
the LMRDA simply permits the member to proceed with
his or her action in court after he or she has pursued rea-
sonable hearing procedures for 4 months. The statute
does not make it an actionable offense for a union to
have a contrary provision in its constitution and bylaws.
Rather, it invalidates any provision in a union’s constitu-
tion and bylaws which would be inconsistent with the
statute’s purpose. Section 101(b), 29 U.S.C. § 411(b)
(“Any provision of the constitution and bylaws of any
labor organization which is inconsistent with the provi-
sions of this section shall be of no force or effect.”). Fur-
thermore, as recognized in Operative Plasterers, the pro-
visions of the LMRDA are not to be interpreted as super-
seding Board law. Rather, "the LMRA and LMRDA
must coexist and complement one another under the stat-
utory scheme." Id. at 557. Accordingly, unlike our dis-
senting colleague, we decline to interpret Section
101(a)(4) of the LMRDA in a way that would render that
provision "paramount" over well-established Board law
pertaining to Section 8(b)(1)(A) of the Act. Accord id.
In summary, the Board has long recognized that the
maintenance of internal union provisions requiring that
internal remedies be exhausted before members resort to
outside forums does not violate 8(b)(1)(A) of the Act,
even where those provisions do not reference the four-
month limitation period contained in the LMRDA. In
excepting to the judge's decision here, the General Coun-
sel has not expressly asked us to reverse this well-
established precedent, and we find no reason to do so.
Accordingly, we agree with the judge’s dismissal of this
complaint allegation.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 3, 4,
and 6.
“3. By refusing to refer Sheila Brunkhorst and Tony
Polanka for a job with Freeman for discriminatory and
arbitrary reasons, the Respondent has violated Section
8(b)(1)(A) and (2) of the Act and has caused or attempt-
ed to cause any employer that is signatory to its collec-
tive-bargaining agreement to discriminate in violation of
Section 8(a)(3) of the Act.”
“4. By discriminating against nonmembers by granting
priority to its members for job referrals for employment
with SMG/Pershing and Freeman, the Respondent has
violated Section 8(b)(1)(A) and (2) of the Act and has
caused or attempted to cause any employer that is signa-
tory to its collective-bargaining agreements to discrimi-
nate in violation of Section 8(a)(3) of the Act.”
“6. By suspending seven members (Brunkhorst,
Haake, Hansen, Hike, Ladely, Anthony Polanka, and
Tony Polanka) from its exclusive hiring hall for discrim-
inatory and arbitrary reasons, the Respondent has violat-
ed Section 8(b)(1)(A) and (2) of the Act and has caused
or attempted to cause any employer that is signatory to
its collective-bargaining agreements to discriminate in
violation of Section 8(a)(3) of the Act.”
ORDER
The Respondent, International Alliance of Theatrical
Stage Employees, Moving Picture Technicians, Artists
and Allied Crafts of the United States, Its Territories and
Canada Local No. 151, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Operating an exclusive hiring hall without using
objective, nondiscriminatory criteria in referring appli-
cants for employment.
(b) Failing and refusing to refer employees from its
exclusive hiring hall for arbitrary or discriminatory rea-
sons.
(c) Discriminating against nonmembers by granting
priority to union members for job referrals to employers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(d) Maintaining unlawful rules that authorize the Re-
spondent to refuse to refer employees for work from its
exclusive hiring hall until they have paid fines and/or
assessments.
(e) Suspending employees from its exclusive hiring
hall referral list for arbitrary or discriminatory reasons.
(f) Failing and refusing to remit V-Fund payments to
members for discriminatory reasons.
(g) Failing and refusing to remit V-Fund payments to
nonmembers because of their membership status.
(h) Causing or attempting to cause any employer that
is signatory to its collective-bargaining agreements to
refuse to hire any qualified applicant for discriminatory
or arbitrary reasons.
(i) 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) Operate its exclusive hiring hall using objective,
nondiscriminatory referral criteria.
(b) Within 14 days from the date of this Order, restore
Sheila Brunkhorst, Les Haake, Dennis Hansen, Steve
Hike, Danny Ladely, and Tony Polanka to the exclusive
hiring hall referral list in their rightful order of priority.
(c) Make Sheila Brunkhorst, Les Haake, Dennis Han-
sen, Steve Hike, Danny Ladely, Tony Polanka, and An-
thony Polanka whole for any loss of earnings and other
benefits suffered as a result of their unlawful suspensions
from the referral list, in the manner forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspensions
from the exclusive hiring hall referral list of Sheila
Brunkhorst, Les Haake, Dennis Hansen, Steve Hike,
Danny Ladely, Anthony Polanka, and Tony Polanka, and
within three days thereafter notify them in writing that
this has been done and that their removal from the list
will not be used against them in any way.
(e) Make Sheila Brunkhorst and Tony Polanka whole
for any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful failure and refusal to
refer them from its exclusive hiring hall to the Freeman
Decorating Services Cornhusker Hotel job, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(f) Make Les Haake, Dennis Hansen, Steve Hike,
Danny Ladely, and Anthony Polanka whole for any loss
of earnings and other benefits suffered as a result of the
Respondent’s unlawful failure to remit V-Fund payments
to them, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(g) Make nonmembers whole for any loss of earnings
and other benefits suffered as a result of the Respond-
ent’s unlawful failure to remit V-Fund payments to them,
in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(h) Compensate Sheila Brunkhorst, Les Haake, Dennis
Hansen, Steve Hike, Danny Ladely, Tony Polanka, An-
thony Polanka, and nonmembers unlawfully deprived of
V-Fund payments for the adverse income tax conse-
quences, if any, of receiving lump-sum backpay awards.
(i) Create a referral list based on objective criteria and
that does not discriminate based on union membership
status.
(j) Within 14 days from the date of this Order, rescind
work rules 9.1.3, 9.1.3.1, and 9.1.3.2.
(k) 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 desig-
nated by the Board or its agents, all hiring-hall referral
records, V-Fund payment records, 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.
(l) Within 14 days after service by the Region, post at
its facility in Lincoln, Nebraska, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees and
members are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its members by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(m) Within 14 days after service by the Region, deliver
to the Regional Director for Region 14 signed copies of
the notice in sufficient number for posting by employers
signatory to the collective-bargaining agreements, if they
wish, in all places where notices to employees are cus-
tomarily posted.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 7
(n) Within 21 days after service by the Region, file
with the Regional Director for Region 14 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I agree with my colleagues’ disposition of the allega-
tions in this case in most respects.1 Contrary to my col-

1 I join my colleagues in adopting the judge’s findings that the Board
has jurisdiction over SMG/Pershing and Freeman Decorating Services
(Freeman), that the Respondent operates an exclusive hiring hall vis-à-
vis SMG/Pershing and Freeman, and that the Respondent unlawfully
discriminated against nonmembers by granting priority to its members
for referrals for jobs with SMG/Pershing and Freeman (and the Re-
spondent’s 10(b) defense to this allegation is without merit). Because
the Respondent operates an exclusive hiring hall vis-à-vis
SMG/Pershing and Freeman, I find it unnecessary to rely on the judge’s
statement, at Sec. III,B,3 of her decision, that “[e]ven if the situation
involves a nonexclusive hiring hall, a union owes a ‘duty of fair repre-
sentation’ to the workers who use its referral service[.]” I also join my
colleagues in adopting the judge’s finding that the Respondent unlaw-
fully failed and refused to pay V-Fund money to nonmembers.
For the following reasons, I join my colleagues in adopting the
judge’s finding that the Respondent unlawfully failed and refused to
pay V-Fund money to members Les Haake, Dennis Hansen, Steve
Hike, Danny Ladely, and Anthony Polanka. In 2012, the Respondent
imposed a requirement on its members to submit a form requesting
payment if they wished to receive a V-Fund payment for 2011. Haake,
Hansen, Hike, Ladely, and Anthony Polanka objected to the form and
would later jointly file suit against the Respondent. Ultimately, two of
the five—Haake and Hansen—submitted a request form, but all five
were denied V-Fund payments. Even assuming the Respondent had a
rational justification for requiring members to request payment—an
issue I need not and do not reach—it did not rely on that justification
when it withheld the disputed V-Fund payments. Rather, it discrimi-
nated against Haake, Hansen, Hike, Ladely, and Anthony Polanka
because, as the judge found, they criticized the Respondent’s V-Fund
policies at a union meeting and retained an attorney who sent a demand
letter to the Respondent on their behalf. I agree with my colleagues
that this was the reason the V-Fund payments were withheld, not any
failure to submit V-Fund request forms, because the Respondent with-
held payments from all five, including the two who submitted a pay-
ment request, while making V-Fund payments to every other union
member who requested one. A union breaches its duty of fair represen-
leagues, however, I would find merit in the General
Counsel’s limited cross-exception to the judge’s dismis-
sal of the allegation that article 12, section 6 of the Re-
spondent’s constitution and bylaws violates Section

tation when its conduct toward a member of the bargaining unit “is
arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171,
190 (1967). Here, it was discriminatory.
In adopting the judge’s finding that work rules 9.1.3, 9.1.3.1, and
9.1.3.2 are unlawful, I agree with my colleagues that the Respondent
has not excepted to the judge’s unfair labor practice finding (other than
to contend the allegation is moot, and I agree with my colleagues that it
is not). Accordingly, I find it unnecessary to reach or pass on the Gen-
eral Counsel’s contention that work rules 9.1.3, 9.1.3.1, and 9.1.3.2 are
unlawful per se. I agree with my colleagues that the judge’s reference
to rule 9.1.3.3, which the General Counsel did not allege to be unlaw-
ful, appears to have been inadvertent and should therefore be deleted
from the Order.
Regarding the allegations that the Respondent unlawfully refused to
refer Sheila Brunkhorst and Tony Polanka for the Freeman job at the
Cornhusker Hotel and unlawfully suspended Brunkhorst, Les Haake,
Dennis Hansen, Steve Hike, Danny Ladely, Tony Polanka, and Antho-
ny Polanka from its referral list, I agree with my colleagues, for the
reasons they state, that the refusals-to-refer and the suspensions violat-
ed Sec. 8(b)(1)(A) and (2) under a duty-of-fair-representation frame-
work.
I would also find that these same actions violated Sec. 8(b)(1)(A)
and (2) under Wright Line, 251 NLRB 1083 (1980) (subsequent history
omitted). With respect to Brunkhorst and Tony Polanka, I find that
they engaged in protected concerted activities and that the Respondent
was aware of those activities. I so find for the reasons stated by the
judge, except I do not rely on the theory of “inherently” concerted
activity, which the judge invoked. See Hoodview Vending Co., 362
NLRB No. 81 (2015), slip op. at 5–7 (Member Miscimarra, dissenting);
Alternative Energy Applications, Inc., 361 NLRB No. 139, slip op. at 7-
8 (2014) (Member Miscimarra, dissenting in part). Further, I agree
with the judge’s finding that Respondent Business Agent Perry
Gillaspie’s testimony amounted to an admission that the Respondent
refused to refer Brunkhorst and Tony Polanka for discriminatory rea-
sons. Finally, I note that the judge rejected the Respondent’s proffered
explanations why it failed to refer Brunkhorst and Tony Polanka to the
Cornhusker job as not credible, and I join my colleagues in upholding
the judge’s credibility determinations.
As for the suspensions of Brunkhorst, Les Haake, Dennis Hansen,
Steve Hike, Danny Ladely, Tony Polanka, and Anthony Polanka from
the hiring-hall referral list, I agree with the judge, for the reasons she
states (except, again, her reliance on a theory of “inherently concerted”
activity), that each of these individuals engaged in protected concerted
activities and that the Respondent was aware of those activities. More-
over, the letters issued to Haake, Hansen, Hike, and Ladely cited their
participation in a lawsuit, which they filed collectively against the
Respondent, as the reason for their suspensions; the letter issued to
Anthony Polanka cited his participation in this lawsuit as one reason
among others for his suspension; and the letters issued to Brunkhorst
and Tony Polanka cited the same protected concerted activities that
motivated the Respondent to refuse to refer them to the Freeman job at
the Cornhusker Hotel. Thus, the General Counsel established that
protected activity was a motivating factor in all seven suspensions.
And the Respondent failed to show that it would have suspended these
individuals even in the absence of their protected activity; as the judge
found, the reasons the Respondent advanced for these suspensions were
either not credible or contradicted by record evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
8(b)(1)(A) of the Act because it requires members to
exhaust internal union remedies, but Respondent’s con-
stitution and bylaws do not contain the four-month max-
imum set forth in Section 101(a)(4) of the Labor Man-
agement Reporting and Disclosure Act (LMRDA).
Section 101(a)(4) of the LMRDA states, in relevant
part, that unions cannot prohibit their members from su-
ing them, but they may require members to exhaust in-
ternal union procedures before filing any lawsuit, provid-
ed that the internal exhaustion requirement does not last
longer than 4 months. Thus, Section 101(a)(4) states:
No labor organization shall limit the right of any Mem-
ber thereof to institute an action in any court, or in a
proceeding before any administrative agency, irrespec-
tive of whether or not the labor organization or its of-
ficers are named as defendants or respondents in such
action or proceeding, or the right of any member of a
labor organization to appear as a witness in any judi-
cial, administrative, or legislative proceeding, or to pe-
tition any legislature or to communicate with any legis-
lator: Provided, that any such member may be required
to exhaust reasonable hearing procedures (but not to
exceed a four-month lapse of time) within such organi-
zation, before instituting legal or administrative pro-
ceedings against such organizations or any officer
thereof . . . .2
The Respondent requires its members to exhaust inter-
nal remedies as permitted under the LMRDA, but the
Respondent’s constitution and bylaws make no reference
to the four-month maximum specified in LMRDA Sec-
tion 101(a)(4). In this regard, Article 12, section 6 of the
Respondent’s constitution and bylaws states that “[t]he
members . . . consent to be disciplined in the manner
provided by this Constitution and Bylaws, and under no
circumstances to resort to outside tribunals until all the
remedies therein provided shall have been exhausted”
(emphasis added). And article 12, Section 1 of the Re-
spondent’s constitution and bylaws sets forth an exten-
sive series of internal union remedies:
Section 1. Right of Appeal.
Any member aggrieved by the decision, rule, regula-
tion, order or any other act or omission or mandate of
an officer or the Executive Board of this Local may, af-
ter exhausting their remedies within the Local by ap-
peal to the membership, appeal the case in the follow-
ing order: (1) from the decision of the membership of
the Local to the International President of this Alliance;
(2) from the decision of the International President to
the General Executive Board; (3) from the ruling of the

2 LMRDA Sec. 101(a)(4) (emphasis added).
General Executive Board to the Alliance in convention
assembled and the latter body shall be the tribunal of
ultimate judgment. However, in the interim ruling of
any proper tribunal of this Local or the Alliance shall
be enforced pending disposal of the appeal, unless a
stay of the decision has, upon application, been granted.
All appeals by a member to the membership of the Lo-
cal must be heard within sixty (60) days of the date the
appeal was filed or the member may appeal directly to
the International President.
The General Counsel argues that the Respondent’s
omission of the 4-month limitation period referenced in
LMRDA Section 101(a)(4) is unlawful because, contrary
to the express language of the LMRDA, the Respond-
ent’s constitution and bylaws impose an open-ended re-
striction on the right of employees to file legal claims
against IATSE. Based on the wording of Article 12, Sec-
tion 6—particularly when read together with Article 12,
Section 1—employees would reasonably believe that
their obligation to exhaust internal remedies is open-
ended. Moreover, Section 10(b) of the Act prevents par-
ties from pursuing any claims alleging violations of the
NLRA unless a charge is filed with the Board within 6
months after a party knows or reasonably should have
known of the alleged violation. Therefore, the Respond-
ent’s exhaustion requirement—not subject to any maxi-
mum—could effectively prevent members from pursuing
any claims against the Respondent arising under the
NLRA, given that the exhaustion of internal union pro-
cedures may take longer than 6 months.
I agree with the General Counsel’s argument. Contra-
ry to my colleagues, I would find that the Respondent’s
constitution and bylaws unlawfully interfere with em-
ployees’ right to file charges with the Board. Article 12,
section 6 of that document states that “under no circum-
stances” are members “to resort to outside tribunals until
all the remedies . . . provided” under the Respondent’s
constitution and bylaws “shall have been exhausted”
(emphasis added). In turn, article 12, Section 1 sets forth
a five-step procedure for exhausting internal union reme-
dies: (i) the decision of an officer or the Executive Board
of Local 151; (ii) appeal to Local 151’s membership; (iii)
appeal to “the International President of this Alliance”;
(iv) appeal to “the General Executive Board”; and finally
(v) appeal to “the Alliance in convention assembled.”
Although article 12, section 1 states that members may
avail themselves of the last three steps, article 12, section
6 provides that aggrieved members must pursue all these
appeals before resorting to “outside tribunals” such as the
Board, since “under no circumstances” are members “to
resort to outside tribunals until all the remedies . . . pro-
vided” under the Respondent’s constitution and bylaws
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 9
“shall have been exhausted.” And except by sheer luck
of timing, it is impossible to pursue all these steps in
fewer than 6 months, since “the Alliance”—i.e., the In-
ternational Union—assembles in convention once every
four years.3
The Board has not hesitated to find similar interference
with access to the Board unlawful when committed by
employers. Thus, under U-Haul Co. of California, 347
NLRB 375, 377 (2006), the Board will find unlawful,
under Section 8(a)(1) of the Act, an employer’s policy
that employees would reasonably interpret to preclude
them from filing charges with the Board. Indeed, the
Board has applied this analysis in a flurry of recent cases
involving arbitration policies that, in the Board’s view,
fail to make it sufficiently clear that employees remain
free to file charges with the Board—even where the
agreements preserve the right to file Board charges in so
many words.4 In my view, the U-Haul principle is no
less applicable to the allegation here, along with the
Board’s often-stated reminder that employees should not
be held to the standard of an attorney trained in the nu-
ances of administrative law.5 A reasonable union mem-
ber would interpret the strict, “under no circumstances”
prohibition against resorting to “outside tribunals” until
internal union remedies have been exhausted—read in
conjunction with the Respondent’s byzantine, multistep
appeals process—as meaning that he or she cannot file a
charge with the Board until the internal appeals process
has ended. This language is a trap for the unwary, as it
says nothing about LMRDA Section 101(a)(4)’s prohibi-
tion against requiring exhaustion of internal union reme-
dies beyond 4 months.6

3 See http://iatse.net/about-iatse/structure-iatse (last visited June 20,
2016) (“All officers of the IATSE are elected during the IATSE Inter-
national Convention, which is held every four years.”).
4 See, e.g., SolarCity Corp., 363 NLRB No. 83 (2015) (finding
agreement stating that “this Agreement does not prohibit me from
pursuing . . . claims with local, state, or federal administrative bodies or
agencies authorized to enforce or administer employment related laws .
. . . Such permitted agency claims include filing a charge or complaint
with . . . the National Labor Relations Board” unlawfully interferes
with Board charge filing); Securitas Security Services USA, Inc., 363
NLRB No. 182 (2016) (finding agreement stating that “[c]laims may be
brought before an administrative agency but only to the extent applica-
ble law permits access to such an agency notwithstanding the existence
of an agreement to arbitrate. Such administrative claims include with-
out limitation claims or charges brought before . . . the National Labor
Relations Board” unlawfully interferes with Board charge filing).
5 See, e.g., SolarCity Corp., supra, slip op. at 5 (citing Ingram Book
Co., 315 NLRB 515 (1994)); Labor Ready Southwest, Inc., 363 NLRB
No. 138, slip op. at 1 fn. 2 (2016) (same).
6 My colleagues’ argument that Article 12, Section 1 does not re-
quire members to complete the entire five-step internal appeals proce-
dure is irrelevant. The issue is what the language in Article 12, Sec-
tions 1 and 6 says, not whether a particular member chooses to pursue
internal union appeals all the way to “the Alliance in convention as-
Citing Scofield v. NLRB, 394 U.S. 423, 429–430
(1969), my colleagues say that my application of U-Haul
Co. of California, supra, to the Respondent’s constitution
and bylaws is misplaced because, under Scofield, internal
union rules are reviewed under a different standard than
unilaterally implemented workplace rules. Under the
Supreme Court’s Scofield standard, however, a union is
“free to enforce a properly adopted rule” if, among other
things, the rule “impairs no policy Congress has imbed-
ded in the labor laws . . . .” Id. at 430 (emphasis added).
When it enacted Section 10(b) of the NLRA, Congress
“imbedded in the labor laws” a policy of requiring charg-
es alleging violations of the Act to be filed and served
within 6 months of the date a party knows or reasonably
should have known of the alleged violation. As ex-
plained above, the Respondent’s exhaustion rule impairs
this policy and thus crosses the line—drawn by the Court
in Scofield—into illegality.7
The Board has likewise not hesitated—especially in
recent years—to invalidate employer-maintained policies
or rules that employees would “reasonably construe” to
interfere with NLRA-protected rights, even if such poli-
cies or rules do not expressly limit Section 7 activity.
See, e.g., William Beaumont Hospital, 363 NLRB No.
162 (2016); Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004).8
I disagree with my colleagues’ attempt to distinguish
employer interference with Board charge filing, on the
one hand, from the union interference with Board charge

sembled.” The Respondent’s open-ended, multistep appeals process
that sets no end date and fails to refer to LMRDA Section 101(a)(4)’s
four-month limit on exhaustion of internal union remedies unlawfully
interferes with Board charge filing, and this interference exists regard-
less whether any particular union member chooses to avail him- or
herself of the entire process—just as an employer-mandated arbitration
agreement that interferes with Board charge filing is unlawful regard-
less whether any particular employee ever resorts to arbitration under
that agreement.
7 To the extent that Operative Plasterers’ Local 521, 189 NLRB 553
(1971), and International Brotherhood of Teamsters (Red Ball Motor
Freight), 191 NLRB 479 (1971), hold to the contrary, I believe those
cases were wrongly decided.
8 I dissented in relevant part from the Board majority’s decision in
William Beaumont Hospital (and similar decisions) based on my disa-
greement with the Lutheran Heritage “reasonably construe” standard.
See William Beaumont Hospital, supra, slip op. at 7-24 (Member
Miscimarra, concurring in part and dissenting in part). However, un-
like those cases, there is no question that the exhaustion requirement in
Respondent’s constitution and bylaws—because it is unlimited in time,
contrary to the LMRDA’s requirements—could prevent union members
from filing timely unfair labor practice charges with the Board, which
would be a prerequisite to the pursuit of any NLRA claims against the
Respondent. In this regard, Respondent’s constitution and bylaws are
unambiguous, and the instant case involves none of the other considera-
tions that have prompted me to disagree with the “reasonably construe”
standard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
filing in the instant case. In my view, there is no merit in
my colleagues’ contention that the Respondent’s exhaus-
tion requirement merely delays access to the Board,
whereas an employer-mandated arbitration agreement
that precludes Board charge filing prohibits such access.
For one thing, my colleagues do not cite any cases for the
proposition that it is permissible for any parties—
employers or unions—to impose a mandatory delay on
an employee’s filing of charges with the Board, and I
have concerns that even a time-limited restriction on
Board charge filing may violate the Act. Here, however,
my colleagues disregard the fact that the exhaustion re-
quirement set forth in Respondent’s constitution and by-
laws contains no time limit. On their face, therefore,
Respondent’s constitution and bylaws may operate to
prevent union members from pursuing claims for viola-
tion of the NLRA against the Respondent, given Section
10(b)’s six-month limitations period for filing Board
charges.
Further, notwithstanding the wording of Article 12,
section 6, my colleagues treat LMRDA Section 101(a)(4)
as effectively guaranteeing that any member’s internal
union proceedings will end, at the latest, in 4 months,
leaving “ample time” to file a Board charge within Sec-
tion 10(b)’s six-month limit. However, their finding in
this regard is based on two assumptions, both of which I
think are misguided in the present circumstances.
First, my colleagues assume that LMRDA Section
101(a)(4) requires union proceedings to halt at 4 months.
In my view, however, Section 101(a)(4) prohibits a union
from requiring its members to exhaust union procedures
beyond 4 months. Nothing in LMRDA Section
101(a)(4) imposes a requirement that all internal union
procedures be completed within 4 months, and I am con-
fident that in many cases, internal union claims pro-
cessing, for legitimate reasons, takes substantially longer
than 4 months to complete.9 I believe Section 101(a)(4)
prohibits unions from requiring exhaustion of union
remedies beyond the four-month mark. Because Section

9 My colleagues quote the following language from the Supreme
Court’s decision in NLRB v. Industrial Union of Marine and Shipbuild-
ing Workers of America, 391 U.S. 418, 428 (1968), in support of their
interpretation: “We conclude that unions were authorized to have
hearing procedures for processing grievances of members, provided
those procedures did not consume more than four months of time.”
However, the issue in that case was whether the union violated Sec.
8(b)(1)(A) by disciplining a member for bypassing union procedures
altogether and filing a charge with the Board. To resolve that issue, the
Court did not need to decide whether LMRDA Sec. 101(a)(4) requires
all internal union claims processing to be completed within 4 months.
Consistent with the language of the LMRDA, I believe the above-
quoted language means, at most, that unions cannot have mandatory
internal hearing procedures that restrict the filing of external charges or
claims against the union for a period longer than 4 months.
101(a)(4) does not preclude internal union procedures
from taking more than 4 months to complete, and be-
cause Respondent’s internal claims processing may con-
tinue for years, there is no doubt that employees may
lose their right of access to the Board by doing what Ar-
ticle 12, section 6 of the constitution and bylaws re-
quires: exhausting all internal union remedies, and “un-
der no circumstances” resorting to any “outside tribunal”
until exhaustion is concluded.
Second, even assuming LMRDA Section 101(a)(4)
could be reasonably interpreted to impose a hard stop on
internal union proceedings after 4 months, my colleagues
implicitly assume that the Respondent will comply with
this obligation and discontinue all claims processing at
the four-month mark. However, nothing in the Respond-
ent’s constitution and bylaws indicates this will occur.
As noted previously, the terminal step of the Respond-
ent’s internal claims procedures—an appeal “to the Alli-
ance in convention assembled”—can only be taken once
every four years. Consequently, the mere existence of a
four-month limit in the LMRDA, even if given the inter-
pretation adopted by my colleagues, does not prevent the
Respondent’s constitution and bylaws from unlawfully
interfering with Board charge filing.10
Accordingly, for the above reasons, I respectfully dis-
sent in part from my colleagues’ decision.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO

10 Contrary to my colleagues’ suggestion, I am not treating the provi-
sions of the LMRDA as “superseding Board law.” I simply believe that
here, given the open-ended appeals process described in the Respond-
ent’s constitution and bylaws, language setting forth the four-month
limitation had to have been included to avoid a 8(b)(1)(A) violation.
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 11
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT operate an exclusive hiring hall without
using objective, nondiscriminatory criteria in referring
applicants for employment.
WE WILL NOT fail and refuse to refer employees from
our exclusive hiring hall for arbitrary or discriminatory
reasons.
WE WILL NOT discriminate against nonmembers by
granting priority to union members for job referrals to
employers.
WE WILL NOT maintain unlawful rules that authorize us
to refuse to refer employees for work from our exclusive
hiring hall until they have paid fines and/or assessments.
WE WILL NOT suspend employees from our exclusive
hiring hall referral list for arbitrary or discriminatory
reasons.
WE WILL NOT fail and refuse to remit V-Fund pay-
ments to members for discriminatory reasons.
WE WILL NOT fail and refuse to remit V-Fund pay-
ments to nonmembers because of their membership sta-
tus.
WE WILL NOT cause or attempt to cause any employer
that is signatory to a collective-bargaining agreement
with us to refuse to hire any qualified applicant for dis-
criminatory or arbitrary reasons.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL operate our exclusive hiring hall using objec-
tive, nondiscriminatory referral criteria.
WE WILL, within 14 days from the date of the Board’s
Order, restore Sheila Brunkhorst, Les Haake, Dennis
Hansen, Steve Hike, Danny Ladely, and Tony Polanka to
the exclusive hiring hall referral list in their rightful order
of priority.
WE WILL make Sheila Brunkhorst, Les Haake, Dennis
Hansen, Steve Hike, Danny Ladely, Tony Polanka, and
the estate of Anthony Polanka whole for any loss of earn-
ings and other benefits resulting from their unlawful sus-
pensions from the referral list, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and
interim employment expenses.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions of Sheila Brunkhorst, Les Haake, Dennis
Hansen, Steve Hike, Danny Ladely, Anthony Polanka,
and Tony Polanka from the exclusive hiring hall referral
list, and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that their removal
from the list will not be used against them in any way.
WE WILL make Sheila Brunkhorst and Tony Polanka
whole for any loss of earnings and other benefits suffered
as a result of our unlawful failure and refusal to refer
them from our exclusive hiring hall to the Freeman Dec-
orating Services Cornhusker Hotel job, less any net inter-
im earnings, plus interest, plus reasonable search-for-
work and interim employment expenses.
WE WILL make Les Haake, Dennis Hansen, Steve
Hike, Danny Ladely, and Anthony Polanka whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful failure to remit V-Fund payments to
them, plus interest.
WE WILL make nonmembers whole for any loss of
earnings and other benefits suffered as a result of our
unlawful failure to remit V-Fund payments to them, plus
interest.
WE WILL compensate Sheila Brunkhorst, Les Haake,
Dennis Hansen, Steve Hike, Danny Ladely, Tony
Polanka, the estate of Anthony Polanka, and nonmem-
bers unlawfully deprived of V-Fund payments for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards.
WE WILL create a referral list based on objective, non-
discriminatory criteria.
WE WILL, within 14 days from the date of the Board’s
Order, rescind work rules 9.1.3, 9.1.3.1, and 9.1.3.2.
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES, MOVING PICTURE
TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF
THE UNITED STATES, ITS TERRITORIES AND
CANADA LOCAL NO. 151
The Board’s decision can be found at
www.nlrb.gov/case/14-CB-101524 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington
D.C. 20570, or by calling (202) 274-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
William F. LeMaster, Esq., for the General Counsel.
Krista Carlson, Esq., for the Respondent.
Katie M. Martens, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Lincoln, Nebraska, on January 22 and 23, 2014.
Katie M. Martens (the Charging Party) filed the initial charge
on March 29, 2013, and amended it on October 29, 2013.1 On
November 5, 2013, the General Counsel issued the complaint
against the International Alliance of Theatrical Stage Employ-
ees, Moving Picture Technicians, Artists and Allied Crafts of
the United States, Its Territories and Canada Local No. 151
(SMG and the Freeman Companies d/b/a Freeman Decorating
Services, Inc.) (the Respondent).2 The Respondent filed a time-
ly answer denying all material allegations. (GC Exhs. 1-A to 1-
N.)
The complaint alleges that the Respondent operated an ex-
clusive hiring hall, and utilizing it, attempted to cause or caused
employers to violate Section 8(a)(3) of the Act in violation of
Section 8(b)(2) and (1)(A) of the National Labor Relations Act
(NLRA/the Act) by the following conduct: Since September
29, the Respondent has discriminated against nonunion em-
ployees by granting priority to Respondent’s members for job
referrals from its exclusive hiring hall for employment with the
Freeman Companies d/b/a Freeman Decorating Services, Inc.
(Freeman), SMG, and other employers;3 on or about February 4
and 5, 2013, the Respondent failed and refused to refer em-
ployees Sheila Brunkhorst (Brunkhorst) and Tony Polanka
(Polanka Junior)4 from its exclusive hiring hall to Freeman;5 on
or about February 7, 2013, the Respondent suspended from its
referral list Brunkhorst, Les Haake (Haake), Dennis Hansen
(Hansen), Steve Hike (Hike), Danny Ladely (Ladely), Anthony

1 All dates hereinafter are in 2012, unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for Re-
spondent’s exhibit; “CP Exh.” for Charging Party’s exhibits; “ALJ
Exh.” for administrative law judge exhibit; “Jt. Exh.” for joint exhibit;
“GC Br.” for General Counsel’s brief; “R. Br.” for Respondent’s brief;
and “CP Br.” for Charging Party’s brief.
3 This allegation is alleged in par. 7(d) of the complaint.
4 Tony Polanka is the son of Anthony Polanka. Although his legal
name is “Tony Polanka,” there was testimony that members referred to
him as Junior and Anthony Polanka as Senior in order to distinguish
between the father and son. Therefore, I will continue that distinction
in this decision.
5 This allegation is alleged in par. 7(e) of the complaint.
Polanka (Polanka Senior),6 and Polanka Junior.7 The complaint
also alleges that Respondent separately violated Section
8(b)(1)(A) by the following conduct: Since September 29, the
Respondent maintained a rule in its constitution and bylaws
prohibiting legal proceedings against it by employees without
providing for the 4-month limitation on such prohibition re-
quired by the Labor Management Reporting and Disclosure Act
(LMRDA) Section 101(a)(4);8 since September 29, the Re-
spondent has maintained referral rules that allow for the refusal
to refer an employee to enforce the collection of a fine and/or
assessment;9 since September 29, the Respondent failed and
refused to remit V fund moneys to employees who are not
members of the Respondent;10 and since November 26, the
Respondent has failed and refused to remit V fund moneys to
Haake, Hansen, Hike, Ladely, and Polanka Senior.11
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that Freeman is an employer that has
maintained an agreement and practice requiring that the Re-
spondent be the exclusive source of referrals of employees.
Freeman, a corporation with an office and place of business in
Des Moines, Iowa, provides event and exhibition planning,
setup, and management for convention and trade shows. I find
that in conducting its operations during the 12-month period
ending September 30, 2013, Freeman performed services val-
ued in excess of $50,000 in states other than the State of Io-
wa.12 I also find that Freeman is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. (GC Exh. 35.)
The complaint also alleges that SMG (herein called
SMG/Pershing)13 is an employer that has maintained an agree-
ment and practice requiring that the Respondent be the exclu-
sive source of referrals of employees. SMG/Pershing, a corpo-
ration with an office and place of business in Lincoln, Nebras-
ka, is engaged in the business of managing, marketing, and
developing entertainment venues for governmental and com-
mercial enterprises. I find that SMG has purchased services
valued in excess of $50,000 which were furnished to
SMG/Pershing directly from points outside the State of Ne-
braska within the last 12 months. I also find that SMG is an

6 The parties stipulated that Polanka Senior died on April 13, 2013.
7 This allegation is alleged in par. 7(f) of the complaint.
8 This allegation is alleged in par. 6 of the complaint.
9 This allegation is alleged in par. 7(c) of the complaint.
10 This allegation is alleged in par. 8(b) of the complaint.
11 This allegation is alleged in par. 8(c) of the complaint.
12 Pursuant to the NLRB investigation into the charges, Freeman
acknowledged that it met the Board’s discretionary monetary standards
and is an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. (GC Exh. 35.)
13 SMG refers to the entity that manages venues globally.
SMG/Pershing refers to SMG’s local management of the Pershing
Center venue in Lincoln, Nebraska.
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 13
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Respondent, however, argues
that SMG/Pershing Center does not meet the Board’s discre-
tionary monetary standards. The Respondent contends that
because testimony on this point was not limited to
SMG/Pershing but rather addressed the purchase of services by
SMG as a corporation, which manages over 200 different facili-
ties globally, the discretionary monetary standard has not been
established.
I find the Respondent’s argument is without merit. Thomas
Lorenz (Lorenz), general manager of Pinnacle Bank Arena and
Pershing Center for SMG, testified that SMG has purchased
services in excess of $50,000 from entities outside the State of
Nebraska within the last 12 months. It is irrelevant whether
this amount applies to SMG globally or only SMG/Pershing.
The Respondent failed to provide case law to support an argu-
ment for making a distinction. Board law is contrary to the
Respondent’s argument. In Siemons Mailing Service,14 the
Board explained “Under the new standards, the Board will
continue to apply the concept that it is the impact on commerce
of the totality of an employer’s operations that should deter-
mine whether or not the Board will assert jurisdiction over a
particular employer. (Footnote omitted.) Accordingly, the
Board will continue its past practice of totaling the commerce
of all of an employer’s plants or locations to determine whether
the appropriate jurisdictional standard is met.” Based on this
standard, SMG clearly meets the jurisdictional standard.
Further, I find that the alleged unfair labor practices at issue
are exactly the type of activities Congress envisioned when
passing the Act. Changing the terms and conditions of em-
ployment in retaliation for engaging in concerted activity would
tend to lead to a labor dispute that would “burden or obstruct
commerce” or the “free flow” of commerce. The Respondent
has alleged that the actions have caused the loss of labor calls.
Therefore, presumably, reducing the amount of services sold
intrastate and the amount of services needed to purchase from
interstate suppliers, thus burdening the “free flow” of com-
merce. Stoppage or disruption of work in Lincoln involves
interruptions in the steady stream into and out of Nebraska, of
credit, cash, and supplies. Congress has explicitly regulated
transactions and goods in interstate commerce and also activi-
ties which in isolation might be found to be “merely local but in
the interlacings of business across state lines adversely affect
such commerce.” See Polish National Alliance v. NLRB, 322
U.S. 643 (1944); NLRB v. Reliance Fuel Oil Corp., 371 U.S.
224 (1963).
Accordingly, I find that SMG purchased services valued in
excess of $50,000 which were furnished to SMG at the Per-
shing Center directly from points outside the State of Nebraska,
and is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find that it is a labor organiza-
tion. However, the Respondent denies that it is a labor organi-
zation within the meaning of Section 2(5) of the Act. The Re-
spondent provided no bases or arguments to support the reasons
for its denial.

14 122 NLRB 81, 84 (1958).
Section 2(5) of the Act reads:
The term “labor organization” means any organization of any
kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work.
The evidence contains collective-bargaining agreements that
the Respondent has entered into with various employers on
behalf of its membership, and testimony from the Respondent’s
officials about negotiating wages, working conditions, and
other terms and conditions of employment on behalf of its
membership. Finally, the Respondent’s constitution and by-
laws make it abundantly clear that it considers itself a labor
organization within the meaning of Section 2(5) of the Act.
(GC Exh. 8.) Therefore, I find that the Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operation
The Respondent is a union that represents individuals (mem-
bers and nonmembers) in Lincoln, Nebraska, to provide set-up,
support, and tear-down of the equipment and staging require-
ments for entertainers and exhibitors producing shows in Ne-
braska. (GC Exh. 12.) Trades represented by the Respondent,
include but are not limited to, stagehands, lighting technicians,
and rigging technicians. The current membership is approxi-
mately low 30s. In 2013, the following members were elected
to the Respondent’s executive board: President Denny Buffum
(Buffum), Vice President Breck Shilling (Shilling), Secretary
Erik Holy (Holy),15 Treasurer Eugene Trausch (Trausch), Busi-
ness Agent T. Perry Gillaspie (Gillaspie), and Sergeant at Arms
John Green (Green). Polanka Junior immediately preceded
Gillaspie as the Respondent’s business agent. The executive
board oversees the Respondent’s general operations. During
the same period, the following individuals served as the Re-
spondent’s trustees: Gary Larsen (Larsen), Brian Wait (Wait),
and Tom Stickney (Stickney). (GC Exh. 2.)
B. Respondent’s Referral Committee and Job Referral Rules
In 2012 and 2013, the Respondent’s referral committee de-
veloped a list of qualified individuals within the industry and
referred those individuals for jobs with outside employers. (Tr.
28–30.) In 2013, Gillaspie, Jessie Snyder (Snyder), Larsen,
Wait, and Michael Madcharo (Madcharo) were appointed by
Buffum to serve on the referral committee. As the business
agent, Gillaspie was responsible for, among other duties, refer-
ring members and nonmembers for jobs as they became availa-
ble.
The referral committee’s duties are also codified at Section
6.0 of the Respondent’s work rules which states
6.1 The President of the Union shall appoint a Referral

15 Business Agent T. Perry Gillaspie testified that GC Exh. 2 is an
accurate list of the officers elected from 2007 to 2013 but notes that in
2012, three people held the secretary position at separate times.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Committee consisting of five (5) Union members in good
standing, the term of office shall be for one year.
6.2 The Referral Committee shall be responsible for hearing
complaints regarding the operation of this Referral System
and shall hear all appeals concerning these rules. The Refer-
ral Committee shall not have the authority to change these
rules.
6.3 Three (3) members of the Referral Committee shall con-
stitute a quorum, All decisions shall be made by a majority
vote of those members present at any meeting.
6.4 The Referral Committee shall meet as the need arises, or
when so call by the Executive Board.
Section 6.0 of the work rules explains the reasons for sus-
pending or removing individuals from the referral list and sub-
sequent penalties. It reads
7.1 The Union may suspend or remove individuals
from the referral list as follows:
7.1.1 Any person who commits a major or minor of-
fense in violation of the Disciplinary Code will be notified
in writing to the referents last known address listing the
date and nature of the offense. The referent will be sus-
pended ten (10) calendar days after receipt of written no-
tice unless the person has filed a timely appeal. In case of
appeal, no penalty shall be imposed until the appeal pro-
cedure has been completed except in cases of serious of-
fense. All letters of recommendation and offenses shall be
kept on file indefinitely.
7.1.2 Referral fees are due and payable at receipt of
paycheck and shall be deducted from said paycheck by
Local 151’s payroll service.
7.1.3 Referents obtaining Stage and Convention work
within the Union’s jurisdiction without being referred by
the Union or without permission of the Business Repre-
sentative will be removed immediately from the Referral
List.
7.1.4 A referent that voluntarily removes his/her name
from the Referral List, and later wishes to return to the Re-
ferral List shall be required to notify the Union in writing
of same. The referral committee has the right to accept or
reject the request.
(GC Exh. 7.) It is undisputed that these work rules pertaining
to the referral list were in effect during the relevant period.
C. Complete Payroll Service, Inc.’s Agreements with Respond-
ent and Gillaspie
In January 2013, the Respondent contracted with Complete
Payroll Service, Inc. (Complete), located in Omaha, Nebraska,
to provide its payroll and accounting services. (GC Exhs. 10,
11.) Anthony Gross is president of Complete. His brother,
John Gross, also plays a role in the overall operation of the
company. In February or March 2013, Gillaspie was hired by
Complete as the full time labor director.
On or about October 4, 2013, the Respondent entered into an
agreement with Complete which read in relevant part:
3. IATSE Local No. 151 fulfills these requirements [to pro-
vide set-up, support, and tear-down of the equipment and
stage requirements for entertainers and exhibitors producing
shows in Nebraska] by contracting with Complete Payroll
who provides Complete Payroll employees to perform such
services. The Complete Payroll employees may be IATSE
Local No. 151 members or may be non-members. Hereinaf-
ter said persons shall be referred to as “IATSE workers” to
distinguish them from other Complete Payroll
5. The IATSE Local No. 151 member and non-member
workers who are provided to the production companies and
others through IATSE Local No. 151’s organization are solely
employees of Complete Payroll.
(GC Exhs. 12, 13.) Also, once Complete became the payroll
processing company for the Respondent, the Respondent noti-
fied members that they had to submit to Complete an updated
W-4 form, I-9 form (employment eligibility), authorization for
direct deposit form, blank check, copy of their social security
card, and valid state identification. (GC Exh. 28.) The infor-
mation was needed to process and disburse the members’
paychecks.
Likewise, Complete entered into a contract with Gillaspie on
October 4, 2013. The contract listed his duties as:
a. Hire, direct, and supervise the Complete Payroll employees
that IATSE Local No. 151 provides to the contractors through
IATSE Local No. 151’s organization (Perry Gillaspie may do
so either directly or by delegation of these duties to the person
of his choosing); and
b. Collect the funds from the contractors that have contracted
with IATSE Local No. 151 and who have used Complete
Payroll’s employees through IATSE Local No. 151’s organi-
zation.
(GC Exh. 13.) According to Gillaspie, in January 2013, the
Respondent’s referral committee relinquished all referral duties
to him as labor director for Complete and retained only the
responsibility of creating the referral list. However, I do not
credit his testimony on this point. It is clear that the contractual
language between Complete and Gillaspie authorized him to
fire IATSE workers, both members and nonmembers.16 Fur-
ther, if he needed assistance referring individuals for jobs, two
employees at Complete helped him to fill job requests from
employers, and one of the executive board members can also
assisted. Likewise, it is established that Gillaspie maintained
his position as the Respondent’s business agent, even after his
hiring as Complete’s labor director. Despite his argument that
the Respondent no longer exercises control over the referral
process, the evidence establishes otherwise.
As noted above, the Respondent’s referral rules were in ef-
fect during the relevant period. Those rules show that the Re-
spondent, through its referral committee, had ultimate control

16 Gillaspie explained that nonmembers also refers to casual and ex-
tra workers. (Tr. 80.)
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 15
over who was placed and remained on, and removed from the
referral list. (GC Exh. 7.) Gillaspie’s duties as Complete’s
labor director are the same as his responsibilities as the Re-
spondent’s business agent. The Respondent’s constitution and
bylaws gives the business agent full charge of the Respondent’s
local office and authority to represent it in all dealings with
employers. Gillaspie’s contract with Complete simply rein-
forces that authority. Further, it was in his role as the Respond-
ent’s business agent that Gillaspie exercised his authority not to
refer members (Brunkhorst and Polanka Junior) for jobs with
outside employers (which I will discuss in more detail later).
Gillaspie’s testimony on this issue is also suspect because he
gave shifting testimony in response to often leading questions
by counsel for the Respondent. As an example, he explained
“At some point last year in early spring, I turned [the referral
list] over to the referral committee and then they turned it back
over to me to be used. So at that point, they took possession of
the referral list.” (Tr. 134.) This appears to be a complicated
way to say that the Respondent maintains control of the referral
process but allows Gillaspie, as its agent and Complete’s labor
director, to administer those duties.
D. Gillaspie’s Responsibilities for Developing & Administer-
ing the Referral Process
Within 3 months of being appointed to the Respondent’s re-
ferral committee, Gillaspie resigned because he felt it was a
conflict with his position as labor director with Complete.
However, he retained his position on the Respondent’s execu-
tive board as the business agent. Gillaspie explained that when
he became the business agent no one gave him a referral list,
billing information, referral procedures, telephone or telephone
line. The only resources he received to enable him to carry out
his responsibilities of referring individuals for work was a
computer stripped of data and a list of the names of approxi-
mately 30 members with phone numbers. The list of names he
received for referrals did not contain nonmember names. Since
the list did not contain the members’ seniority dates, he created
a new referral list starting with these names and gave them all a
seniority date of January 1, 2012, regardless of their initiation
date into the union. Nonmembers that worked the Blake Shel-
ton concert were also given a seniority day of January 1, 2012.
(Tr. 129.) Subsequent names were added to the referral list in
sequential order, regardless of whether they were union mem-
bers. In his affidavit to the National Labor Relations Board
(NLRB/the Board) Gillaspie explained his referral practice as
follows
“So if I receive a request for five stagehands from Pershing
Center, I will go into my referral program and start at the top
of the list, which is based on their experience. I then go down
the list based on qualifications and ability. After I go through
our Local 151 member list, I will sometimes contact IATSE
Local 42 and other sister locals to see if they have any quali-
fied journeyman available. At that point, I will go through my
casual or extra list. The membership is aware of my referral
process. I have announced my process to them on more than
one occasion.”
(Tr. 87.)17
After leading questions posed to him by the Respondent’s
counsel, Gillaspie changed his testimony by noting that he
found qualification more important to him in making referrals
than experience of availability and he defined experience and
seniority as the same. (Tr. 128, 133.)
E. Alleged Unlawful Provisions in Respondent’s Constitution,
Bylaws, and Work Rules
It is alleged that the provisions under Section 9.0 of the Re-
spondent’s work rules are unlawful because they authorize the
removal from the referral list of employees who have been
fined for misconduct or rule violations until the fine has been
satisfied. The relevant sections read
9.1.3 Any referent who fails to show up for work and/or
walks off a job after accepting a referral shall be subject to the
following:
9.1.3.1 First offense in a twelve month period: $50.00 as-
sessment and removal from the referral list until the fine is
paid.
9.1.3.2 Second offense is a twelve month period: $100.00 fi-
ne and removal from the referral list until the fine is paid.
9.1.3.3 Third Offense in a twelve month period: one year
suspension with the suspension to begin on the date of convic-
tion through one calendar year. The suspended referent is not
to perform any bargaining unit work while under the imposed
suspension. Upon completion of the suspension year, the
suspended individual shall have the right to
(GC Exh. 7.)
Section 101(a)(4) of the Labor-Management Reporting and
Disclosure Act (LMRDA). Section 101(a)(4) reads
Protection of the Right to Sue—No labor organization shall
limit the right of any member thereof to institute an action in
any court, or in a proceeding before any administrative agen-
cy, irrespective of whether or not the labor organization of its
officers are named as defendants or respondents in such ac-
tion or proceeding, or the right of any member of a labor or-
ganization to appear as a witness in any judicial, administra-
tive, or legislative proceeding, or to petition any legislature or
to communicate with any legislator: Provided, That any such
member may be required to exhaust reasonable hearing pro-

17 During the hearing Gillaspie attempted to disavow this portion of
his affidavit. He claimed that he misspoke and he should have ex-
plained that he always refers the qualified individual first and then the
most experienced person who is available. He denied considering a
person’s journeyman status in making his referral decisions. (Tr. 82–
84, 88–89.) I do not credit his denial that the statement he made in his
affidavit was incorrect. In May 2013, Gillaspie provided his affidavit
to the Board’s agent. Presumably, he reviewed his affidavit and had
ample time to notify the Board’s agent or the Respondent’s counsel of
any inaccuracies. Notably, Gillaspie repeated the testimony he gave in
the affidavit to the Respondent’s counsel when she contacted him for
clarification requested by the Region. (Tr. 83–88; GC Exh. 24.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
cedures (but not to exceed a four-month lapse of time) within
such organization, before instituting legal or administrative
proceedings against such organizations or any officer thereof;
And provided further, That no interested employer or em-
ployer association shall directly or indirectly finance, encour-
age, or participate in, except as a party, any such action, pro-
ceeding, appearance, or petition.
The Respondent’s current local constitution and bylaws were
in effect during the relevant period. (GC Exh. 8.) It is undis-
puted that article 12, section 6.0 of the local constitution and
bylaws addresses exhaustion of internal remedies but does not
mention the 4-month limitation required by the LMRDA.
F. Marriott Cornhusker Job Referral Incident on
February 4 and 5
The underlying event leading to the charge that the Respond-
ent unlawfully failed to refer Brunkhorst and Polanka Junior for
a job occurred on February 5, 2013. On that date, Polanka
Junior was driving past the Marriott Cornhusker Hotel (Corn-
husker Hotel) and spotted a Freeman truck in front. Since he
was first on the referral list for Freeman work and was not con-
tacted, he decided to stop in the hotel to investigate. Polanka
Junior spoke to Wes Backstrom (Backstrom)18 who explained
he had been called to work the job with Dan Stoner (Dan), Dale
Stoner (Dale), and Brian Wait (Wait). Backstrom told him they
had set up the event space on February 4, 2013, and returned on
February 5, 2013, to clear the event space (also referred to as a
teardown). Polanka Junior tried to contact Buffum to get in-
formation on why he was not called to work the Freeman job
but was only able to leave a voicemail message. Buffum never
returned his call. Polanka Junior left the hotel but returned with
Brunkhorst later the same day because she was also higher on
the seniority list than Dan, Dale, and Wait. They saw Dale and
Dan outside the hotel and asked them when they received the
call to work the Freeman job. Dan and Dale responded, “. . . if
we were going to bump them off because they knew we had
seniority over them, and we said no. . . .” (Tr. 249.) The con-
versation lasted 2 to 5 minutes. Polanka Junior and Brunkhorst
proceeded inside to the hotel’s ballroom and encountered Wait.
They had a discussion that lasted about 5 minutes.19

18 Backstrom is the foreman for Freeman and was supervising the
job at the hotel on February 4 and 5, 2013.
19 There was conflicting testimony about whether the exchange was
loud and its proximity to other individuals in the ballroom. Wait testi-
fied that during the discussion with Junior and Brunkhorst, Junior
swore at him, and he felt threatened by them. According to Wait the
disagreement involved raised voices, and it occurred within 12-feet of
some of the event’s participants with no background noise to keep them
from overhearing the heated exchange. (Tr. 420–421.) Junior denied
swearing at Wait. He and Brunkhorst allege that Wait started the con-
versation by telling them it was not the appropriate time or place for a
confrontation to which Junior responded “Now you see why this Union
is screwed up.” (Tr. 250–251.) According to Junior and Brunkhorst,
the brief exchange was carried on at a normal conversational level in a
corner of the 75 feet by 75 feet ballroom. Junior testified that during
his and Brunkhorst’s conversation with Wait, the only other people
nearby were Dan, Dale, and Backstrom who were all standing about 10
to 15 feet from them. I find the overall evidence supports my finding
that Polanka Junior’s and Brunkhorst’s version of the conversation was
Brunkhorst and Polanka Junior left, and once outside of the
hotel, Polanka Junior encountered Trausch and made a sarcastic
comment to him. Trausch responded that he had been called to
the jobsite “because there could be some kind of disturbance
going on at the Cornhusker Hotel.” (Tr. 253.) Polanka Junior
complained that he and Brunkhorst were not referred for the
Freeman job at the hotel. Trausch responded, “. . . we needed
to support the elected board and their decisions, I needed to
support. As far as us getting along with the Local, we just
needed to drop the lawsuits and discuss this and try to solve it
within the Local without involving other legal means to resolve
internal union affairs.” (Tr. 466.) Brunkhorst went to her car
and Polanka Junior continued talking with Trausch about the
need for the union members to solve their differences and work
harmoniously. The entire conversation lasted less than 10
minutes.
G. Vacation Fund (V-Fund) Procedures and Payments
For approximately 20 years, the Respondent has maintained
a vacation account commonly referred to as the V-Fund. (Tr.
58.) Members were paid bonuses annually from the fund based
on 5 percent of the employee’s gross earnings. The moneys in
the fund were derived from a portion of the processing fee the
Respondent charged for referring workers to employers. In
addition to payment for payment of wages for hours worked,
the employers paid a processing fee to the Respondent. Over
the years the fee has ranged from 29.7 and 31.5 percent. In-
cluded in the processing fee were expenses that the Respondent
had for State and Federal taxes, Social Security contributions,
worker’s compensation, general liability insurance, payroll
processing, and unemployment insurance. The processing fee
also included 5percent for the V-fund bonus and 5 percent for
member directed retirement benefit (cash annuity). ( GC Exh.
27.) Despite receiving a processing fee from employers for
both members and nonmembers, the Respondent disbursed the
annual V-fund bonus only to members. The portion of the fee
received for nonmembers remained in the Respondent’s treas-
ury. (GC Exh. 31.)
H. Nonpayment of V-Fund Bonus in 2012
Except for the sergeant at arms, John Green, all of the local
union officers in 2012 were newly elected.20 Following the
election of new local leaders, an issue arose regarding the con-
tinued annual payment of the V-fund. Beginning with the Feb-
ruary monthly membership meeting and throughout 2012, the
trustees and other officers discussed suspending payment of the
V-fund bonus for 2011 and not issuing them at all for 2012

more credible than Wait’s rendition. There was no third-party testimo-
ny to support Wait’s version. Although Backstrom mentioned the
incident to Scott Young, Freeman’s sales manager, he found it so une-
ventful that he could not recall the details. There is also no credible
evidence that Freeman ever complained to the Respondent about
Polanka Junior’s and Brunkhorst’s action that day. Based on the totali-
ty of the evidence and the witnesses’ overall demeanor, I do not find
Wait’s testimony credible on this point.
20 In 2012, Brian Wait became the only new trustee. Dean Smith’s
term as trustee expired in January 2013 and Gary Larson’s term as
trustee expired in January 2014. (GC Exh. 2.)
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 17
because of a lack of funds. In the February membership meet-
ing Buffum told the members that the V-fund bonus would not
be paid in 2012. During the March membership meeting, it was
noted that “hopefully” the following month V-fund bonus
checks would be paid. (GC Exh. 17.) At the April membership
meeting Gillaspie put forth a motion to pay the V-fund bonuses
to members when funds became available. The motion pro-
posed to authorize payment of the V-fund bonuses to members
for work performed in 2011. The motion was seconded by
Tom Stickney (Stickney) and approved by the membership. In
about April, the Respondent gave members forms to complete
and return to receive their V-fund bonus. (GC Exhs. 16, 17.)
The form read in part:
Calendar Year 2011 expenses exceeded income by approxi-
mately $25,000. Funds for the V Fund check were transferred
from the Local 151 treasury (CD). Please check the appropri-
ate box and return to the treasurer. ASAS
___ For the good of the local, I decline a V fund check for the
calendar year 2011
___ Taking a V fund check is financially irresponsible for the
local, however, I choose to claim a V fund check for the cal-
endar year 2011.
(GC Exh. 16.) Several of the members signed the form and
accepted the V-fund bonus, while other members chose not to
receive the funds. (GC Exh. 16.) Additionally, some of the
members objected to the form’s language and others objected to
a requirement that they had to sign the form in order to receive
their check. Specifically, Brunkhorst, Haake, Hansen, Hike,
Ladely, Polanka Senior, and Polanka Junior objected to signing
the form.
Prior to the Respondent’s June membership meeting,
Polanka Senior and Haake consulted an attorney about the le-
gality of the form sent to members to sign to receive their V-
fund bonuses. By letter dated May 30, the attorney, Joy
Shiffermiller (Shiffermiller), notified the Respondent that she
had consulted with some members of the local about V-fund
payments and determined that failure to pay the bonus “is in
violation of the wage payment and collection act.” (GC Exh.
14.) The letter also read:
In addition, the contract is still in force for this entire year so
current comments about discontinuing the payment for this
next year is inappropriate.
(GC Exh. 14.) During the June membership meeting, the letter
from Shiffermiller was discussed. The meeting’s notes de-
scribes the discussion that occurred about the attorney’s letter
threatening action for nonpayment of the V-fund bonus as fol-
lows:
V-Fund: Discussion about letter from lawyer, Denny reads
pledge calls out people who went to the lawyer and broke
their pledge. . . . Lawyer letter: no one takes responsibility,
Perry talks about meetings are the forum to state case, no joy
there you [go] tointernational, if not then you go outside. The
letter writers didn’t do this, breaking their pledge to the Un-
ion, and didn’t have the courage to stand up and take respon-
sibility for doing it in open meeting.
(GC Exh. 17.) Several union members again voiced their ob-
jections to the language of the original form sent to members to
sign to receive a V-fund bonus payment. After much discus-
sion, Gillaspie agreed to modify the form to delete the offend-
ing language and extend the deadline for signing and submit-
ting the form to receive the V-fund bonus to June 15. (GC Exh.
17; Tr. 60–61.) The modified form read:
Would you like a V-Fund check for 2011?
___ Yes
___ No
(GC Exh. 16.)
The treasurer’s report dated June 4 indicates that 26 mem-
bers submitted the V-fund request forms for work performed in
2011. Among those 26 members who submitted the forms, 13
declined a bonus check and 13 members accepted it. Following
the June 4 treasurer’s report, Hansen and Haake submitted
forms requesting a V-fund check for 2011. By the June 15
deadline, Brunkhorst, Polanka Junior, Haake, and Hansen sub-
mitted their request to receive V-fund payments. (GC Exh. 16,
17.) There is no indication that prior to June 15, Hike, Ladely,
or Polanka Senior submitted the V-fund request form for work
performed in 2011. Subsequent to the June membership meet-
ing, Haake had several conversations with Gillaspie inquiring
about when the remaining members would receive their V-fund
money. Gillaspie told him that the Respondent’s treasurer or
trustees did not want to sign the V-fund bonus checks. Further,
Gillaspie informed Haake that he would likely seek legal advice
about issuing payments from the V-fund. Despite Gillaspie’s
response, the Respondent paid all other members except Haake,
Hansen, Hike, Ladely, Polanka Senior, and those members who
rejected the payment.
I. Suspension from the Referral List for Seven Members in
2013
By letter dated February 7, 2013, the Respondent notified
seven of its members that they were suspended from the refer-
ral list for the remainder of the 2013 calendar year. Brunkhorst,
Haake, Hansen, Hike, Ladely, Polanka Senior, and Polanka
Junior received suspension letters. (GC Exh. 20.) Brunkhorst,
Haake, and Polanka Junior were also notified orally of their
suspensions. (Tr. 254–255, 294, 319–320.) Each of the seven
members was suspended for the same actions. However,
Brunkhorst, Polanka Junior, and Polanka Senior were also noti-
fied of additional bases for their suspensions
J. Underlying Incidents that Formed the Bases of the Seven
Members’ Suspensions in 2013
On September 20, Haake, Hansen, Hike, Ladely, and
Polanka Senior filed a lawsuit in the County Court of Lancaster
County, Nebraska. In their complaint, the plaintiffs alleged that
the Respondent’s failure to pay their V-fund bonuses was a
violation of the Nebraska Wage Payment and Collection Act.
(GC Exh. 18.) On November 26, the Respondent responded to
the lawsuit and also filed a counterclaim. (GC Exh. 19.) As of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
the date of the hearing, the lawsuit was pending, and the Re-
spondent had not paid the V-fund bonus for work performed in
2011 to Haake, Hansen, Hike, Ladely, and Polanka Senior. (Tr.
63.)
The letter issued to Haake, Hansen, Hike, and Ladely de-
scribes the action that caused their suspension as follows:
Bringing suit against Local 151 before exhausting procedures
for redress outlined in Local 151’s Constitution and Bylaws.
As a result of this suit, venues and employers of Local 151
have expressed concern about the Local’s ability [to] meet its
duties and obligations, and questioned the solidarity of the
Local.
(GC Exh. 20.) This was the only reason given to Haake, Han-
sen, Hike, and Ladely as the basis for their suspension.
In addition to filing a lawsuit against the Respondent,
Polanka Senior’s letter informed him that he was also suspend-
ed from the referral list for:
Discussing Local 151’s internal matters with current and po-
tential clients of Local 151 in a manner designed to embarrass
and denigrate the Local. This action places existing and fu-
ture contract relationships with these organizations at risk.
(GC Exh. 20.) The underlying incident giving rise to the se-
cond reason for Polanka Senior’s suspension was his meeting
with Brunkhorst and Donald Adams (Adams), the production
manager for SMG Lincoln and the Nebraska State Fair, to re-
solve Brunkhorst’s wage dispute. (Tr. 68–71, 159–160.)
The Respondent notified Polanka Junior that he was sus-
pended for the following reasons:
1) Visiting Local 151’s payroll service on 31 January 2013
and a [sic] creating a disturbance at their place of business.
This disturbance resulted in the potential loss of business to
Complete Payroll, placed Local 151’s new relationship with
Complete Payroll at risk, and brought embarrassment to the
Local.
2) Interfering with Local 151’s call at the Cornhusker Hotel
on 4 February 2012. These actions caused the client Freeman
Decorating to question the Local’s ability to complete the call
in a competent manner, embarrassed Freeman Decorating in
from of its client the Nebraska Bankers Association, and em-
barrassed the Local in front of Freeman Decorating and the
Nebraska Bankers Association.
(GC Exh. 20.) The reasons given for Polanka Junior’s suspen-
sion refer to his visit with Brunkhorst to Complete’s offices on
January 31, 2013, and his encounter on February 5, 2013, with
several workers at the Cornhusker Hotel that was discussed
earlier in the decision.
Brunkhorst’s letter informed her that she was being suspend-
ed from the referral list because of the following actions:
1) Bringing suit against Local 151 before exhausting proce-
dures for redress outlined in Local 151’s Constitution and By-
laws. As a result of this suit, venues and employers of Local
151 have expressed concern about the Local’s ability [to]
meet its duties and obligations, and questioned the solidarity
of the Local.
2) Discussing Local 151’s internal matters with current and
potential clients of Local 151 in a manner designed to embar-
rass and denigrate the Local. This action places existing and
future contract relationships with these organizations at risk.
3) Visiting Local 151’s Payroll Service on 31 January 2013
and a [sic] creating a disturbance at their place of business.
This disturbance resulted in the potential loss of business to
Complete Payroll, placed Local 151’s new relationship with
Complete Payroll at risk, and brought embarrassment to the
Local.
4) Interfering with Local 151’s call at the Cornhusker Hotel
on 4 February 2012. These actions caused the client Freeman
Decorating to question the Local’s ability to complete the call
in a competent manner, embarrassed Freeman Decorating in
from of its client the Nebraska Bankers Association, and em-
barrassed the Local in front of Freeman Decorating and the
Nebraska Bankers Association.
(GC Exh. 20.) Brunkhorst’s suspension letter references as the
bases for her suspension the small claims action she filed
against the Respondent on January 11, 2013; her discussion
with Adams to resolve her wage dispute for work she per-
formed at the Nebraska State Fair; her visit on January 31,
2013, with Polanka Junior to Complete’s office and discussion
with one of its owners; and her visit on February 5, 2013, with
Polanka Junior to the Cornhusker Hotel.
The encounter between Brunkhorst, Polanka Junior, and oth-
er members at the Cornhusker Hotel has been discussed earlier
in this decision. Another incident that formed one of the bases
for Brunkhorst’s suspension involved her repeated complaints
about her wages for working the Nebraska State Fair. Since
1995, Brunkhorst has worked the Nebraska State Fair held
annually in August. She is always referred for the job through
the Respondent’s business agent. In August 2012, she worked
at the state fair but did not receive timely payment. She raised
the topic with the Respondent at the October membership.
Brunkhorst explained, “I asked if the State Fair bill had been
presented to the State Fair board. At that point, it had not been.
The business agent [Gillaspie] presented me a version that he
was going to present to the State Fair board.” (Tr. 321.) She
“pointed out” some mistakes in the bill to Gillaspie who re-
fused to make any changes to the bill. During the meeting, she
questioned other members who had also worked the state fair
about their pay. Brunkhorst discovered that those members
also felt that the Respondent was not adequately paying them
for the work they performed. After determining that her pro-
posed pay for the event was inaccurate, Brunkhorst contacted
Adams. She asked Adams if she could review a copy of the
State Fair bill he received from the Respondent’s business
agent, Gillaspie. She told Adams that the billing for her ser-
vices was incorrect. Brunkhorst also mentioned to him (pre-
sumably at a later conversation) that she and other union mem-
bers had filed a small claims lawsuit against the Respondent.
Adam’s provided corroborating testimony that Brunkhorst nev-
er made negative comments about the Respondent to him.
During the November membership meeting, Brunkhorst
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 19
again raised the issue of her pay for the Nebraska State Fair.
The Respondent did not respond to her concerns. Brunkhorst “.
. . sent an email in early December to the president [Buffum]
outlining the mistakes that [she] found in the bill and the addi-
tional payments [she] felt that [she] deserved.” (Tr. 326.) She
also broached the topic at the December membership meeting.
The Respondent asked Brunkhorst to attend its executive board
meeting to talk about the wage issue and she agreed. However,
she left without presenting her concerns because of a disagree-
ment with the executive board about whether she could video
tape the meeting. She also consulted with Polanka Senior and
Polanka Junior in their capacity as former officers for the Re-
spondent. Polanka Senior contacted Adams on Brunkhorst’s
behalf without disparaging the Respondent. Despite her and
other members’ efforts, the Respondent did not resolve to
Brunkhorst’s satisfaction her concerns about her wages for
working the Nebraska State Fair. Consequently, on January 11,
2013, Brunkhorst filed a small claims action against the Re-
spondent in the County Court of Lancaster County, Nebraska
for wages owed. (GC Exh. 21.)
Another basis for Brunkhorst’s suspension was her visit with
Polanka Junior to Complete’s office. On January 31, 2013,
Brunkhorst and Polanka Junior went to Complete’s office in
Omaha, Nebraska, to submit their W-4 forms and ask why they
received paychecks despite their failure to provide the request-
ed documents. They spoke with John Gross in his office and
asked to review the payroll documents that were on file for
them. Polanka Junior wanted to review the paperwork Com-
plete had on file for him because the name on his paycheck was
inaccurate. John Gross could not find any paperwork on
Polanka Junior or Brunkhorst but told them that he would speak
with his brother, Anthony, about the matter and get back with
them. They also questioned him about the contract between the
Respondent and Complete. John Gross assured them that it was
a written signed 2-year contract and verified that Complete’s
fee for handling the Respondent’s payroll services was 22.5
percent. Their discussion with John Gross was cordial and
lasted approximately 20 minutes.21 Brunkhorst provided cor-
roborating testimony about their conversation with John Gross.
K. Exclusive Hiring Hall
1. SMG/Pershing
A threshold question in this case is whether the Respondent
operated an exclusive hiring hall with SMG/Pershing and
Freeman. The General Counsel alleges the Respondent main-

21 Gillaspie testified that based on unidentified reports, he was con-
cerned that the Respondent’s and Complete’s business relationship was
endangered by Brunkhorst’s and Polanka Junior’s behavior at Com-
plete’s office. However, I do not credit his testimony on this point.
Gillaspie’s testimony was vague and in response to a leading question
by the Respondent’s counsel. Further, there was no testimony from
John Gross disputing Brunkhorst’s and Polanka Junior’s description of
their visit. Equally important, there was no corroborating or other
evidence to support Gillaspie’s testimony. It is also significant that
months after Brunkhorst’s and Polanka Junior’s visit to the Complete
office, Complete signed a contract for services with the Respondent and
hired Gillaspie as its labor director. These actions are not indicative of
an endangered business relationship.
tained an exclusive referral relationship with SMG/Pershing
through contractual language and practice.
The Respondent counters that there was not an exclusive hir-
ing hall agreement with SMG/Pershing because its contract
with SMG/Pershing was 1) never ratified by the local member-
ship; 2) was negotiated by someone who lacked authority to do
so; 3) the contract expired on February 28, 2012, and the Re-
spondent has not maintained a written agreement with
SMG/Pershing since the expiration of the contract; and 4) the
contract language does not establish an exclusive referral rela-
tionship.
Based on the evidence, I find that the Respondent’s and
SMG/Pershing’s had a practice of SMG/Pershing utilizing labor
referred through the Respondent before obtaining labor else-
where and that this establishes an exclusive referral relation-
ship.
The Supreme Court defines “exclusive” within the context of
the job referral system as:
The word “exclusive” when used with respect to the job refer-
ral systems is a term of art denoting the degree to which hiring
is reserved to the union hiring hall. Hiring is deemed to be
“exclusive,” for example, if the union retains sole authority to
supply workers to the employer up to a designated percentage
of the work force or for some specified period of time, such as
24 or 48 hours, before the employer can hire on his own.
Breininger v. Sheet Metal Workers International Association
Local Union No. 6, 493 U.S. 67, 71, 110 S.Ct. 424, 428 (1989).
It is well established that an exclusive hiring hall may be creat-
ed by written or oral agreement or by practice. See Southwest
Regional Council of Carpenters (Perry Olsen Drywall), 358
NLRB 1, slip op. at 1 fn. 2 (2012), and cases cited therein. An
exclusive hiring hall exists when an employer has the right to
reject individuals referred by a union; is required to use a union
for referrals for a certain time period; and has a contractual
right to use a certain number or percentage of its own employ-
ees for a job. Breininger at 73, fn. 1; Local 334 (Kvaerner
Songer, Inc.), 335 NLRB 597, 599–600 (2001); Teamsters
Local Union No. 174 (Totem Beverages, Inc.), 226 NLRB 690,
690 (1976).
It is undisputed that there is no collective-bargaining agree-
ment (CBA) between the parties. However, general manager
for SMG/Pershing Center, Thomas Lorenz (Lorenz), was re-
sponsible for establishing the bargaining relationship with the
Respondent that has been in existence for more than 18 years.
(Tr. 197–198.) Although the Respondent and SMG/Pershing
did not have a ratified CBA, Lorenz and the Respondent’s
business agent at the time, Polanka Junior, signed a letter of
understanding for Contracted Services (LOU) on May 18,
2011, and May 4, 2011, respectively. The terms of the agree-
ment were in effect from the date of signing until February 28,
2012. (GC Exh. 3.) The relevant part of the LOU reads:
NON-EXCLUSIVE SERVICE PROVIDER:
On those occasions when Local 151 cannot meet the staffing
demands of an event, Pershing/SMG will supplement Local’s
call with its own personnel or with another service provider.
(GC Exh. 3.) Subsequently, the Respondent and SMG/Pershing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
added an addendum to the LOU which clarified the fee struc-
ture for billable expenses. (GC Exh. 27.) Although the wage
rate has changed, the Respondent and SMG/Pershing continue
to operate under the same terms of the expired LOU with a few
minor changes. (Tr. 200–201.)22
The Respondent argues that the LOU simply makes clear
that SMG/Pershing can use its own personnel or labor from
other sources when the Respondent cannot meet
SMG/Pershing’s staffing needs. The Respondent presented
witnesses to testify that SMG/Pershing did not exclusively use
workers referred by the Respondent to staff all of its jobs. For
example, Wait testified that “for many years” he has performed
work for SMG/Pershing under his private business, Brian Wait
Lighting Services. He has also worked at the annual Rib Fest
as the lighting director for McCray Lighting and Production,
which was hired by SMG/Pershing to provide lighting for the
event. (Tr. 392–393.) According to Wait, he worked other
events at SMG/Pershing through his private company without
being referred by the Respondent.
I find that Wait’s testimony, however, is insufficient to show
that there was not an exclusive relationship. For many of the
years Wait worked events at Pershing Center, SMG was not the
management company. Consequently, Wait’s working rela-
tionship at Pershing is irrelevant for the years prior to SMG
taking over as the management company. In addition, his tes-
timony lacked specificity about the jobs he got directly from
SMG/Pershing without being referred by the Respondent. Wait
performed lighting work on some Rib Fests, New Year’s Eve
shows, and MMA Fighting. According to him, however, he did
not receive any of those jobs as a result of being referred by the
Respondent, nor did any union members work those jobs with
him. (Tr. 393.) I do not find his testimony on these points
persuasive because it lacks specificity about when he worked
the events, if SMG was the management company, how many
laborers he worked with on those jobs, the percentages that
were union workers, the members that were hired directly by
SMG, the Respondent, or another source. Equally important,
Wait failed to establish that he had direct knowledge regarding
how each person was hired to work the aforementioned events.
In support of its argument against an exclusive referral ar-
rangement, the Respondent also points to Brunkhorst’s testi-
mony admitting “she worked for Pershing/SMG following her
suspension from IATSE’s referral list.” (R. Br. 12.) However,
Brunkhorst’s admission pertained to an event, Luminners,
where she worked one night as a runner at the Pershing Center
in 2013.23 The General Counsel’s brief correctly sets out why
Brunkhorst’s work at Luminners does not establish a nonexclu-

22 The complaint at par. 7(d) charges the Respondent with discrimi-
nation in the use of its exclusive hiring hall to refer workers for em-
ployment with Freeman, SMG/Pershing, and “other employers.” Alt-
hough evidence was presented that the Respondent also has a written
agreement with SMG/Pinewood Bowl to provide it labor and a verbal
agreement with SMG/Pinnacle Bank Arena to provide labor, the Gen-
eral Counsel failed to present any other evidence to establish that the
Respondent referred workers to “other employers” through an exclusive
hiring arrangement. (Tr. 198.) Therefore that portion of the complaint
is dismissed.
23 The runner position is also covered by the parties’ LOU.
sive hiring hall. “The testimony at hearing established that the
Luminners show was originally scheduled to take place at an
outdoor venue called the Pinewood Bowl. However, due to
rain, within 24 hours, emergency arrangements were made to
move the concert to the Pershing Center. Respondent provided
no additional evidence concerning the use of runners at the
Pershing Center beyond this one limited exception.” (GC Br.
33.) The evidence is clear that Brunkhorst was hired to work at
Pinewood Bowl and Pershing Center was a last minute weather
emergency substitution.
The evidence persuades me that the Respondent and
SMG/Pershing established an exclusive hiring hall through a
consistent practice. Lorenz, in his position as the general man-
ager for SMG/Pershing, continues to hire labor referred by the
Respondent for the classifications covered by the LOU before
hiring outside its terms. Lorenz and his staff have never hired
“off the street” instead of using labor referred by the Respond-
ent.24 (Tr. 202–203.) Adams, production manager for SMG
Lincoln, provided corroborating testimony that the Respondent
is the sole labor provider for the entertainment at Pinewood
Bowl, Pershing Center, and Pinnacle Bank Arena. (Tr. 160-
161.) Pursuant to the provisions of the LOU, SMG/Pershing
obtained all of its labor through the Respondent without adver-
tising for workers or hiring them “off the street.” In keeping
with the relevant provision of the LOU, SMG/Pershing has
infrequently exercised its right to use its own personnel or an-
other “service provider.” (GC Exh. 3.)
While the Respondent argues that SMG/Pershing frequently
uses labor that has not been referred by it, the evidence indi-
cates otherwise. It is undisputed that the LOU between the
parties allows SMG/Pershing to “supplement [the Respond-
ent’s] call with its own personnel or with another service pro-
vider” when the Respondent was unable to meet the staffing
demands of an event. SMG/Pershing management and a for-
mer union official gave credible testimony that this provision
was used infrequently. Regardless, the Board has long held
such provisions do not negate the exclusivity of a referral ar-
rangement. See, e.g., Theatrical Wardrobe Union Local 769
(Broadway in Chicago), 349 NLRB 71, 72–73 (2007) (employ-
er hired outside the union referral list on a few occasions when
the list was exhausted); Morrison-Knudsen, 291 NLRB 250,
258 (1988).
The Respondent’s argument that the LOU was invalid be-
cause it was not ratified by the membership is also without
merit. There is no credible evidence to show that it was a re-
quirement or standard practice for the membership to ratify all
contracts (or any contract) that the executive board entered into
on behalf of the Respondent. Polanka Junior gave undisputed
testimony that while he was the business agent, and during the
union meetings he attended, contracts were never put up for a
ratification vote by the membership. (Tr. 229–230.) Haake
provided corroborating testimony that based on his more than
47 years in the union, it has not been the Respondent’s normal
practice to put agreements and contracts before the general
membership for a ratification vote. He explained that the

24 Gillaspie testified that SMG has hired from off the street. I credit
Lorenz’s testimony on this point.
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 21
agreement or contract was discussed in the meeting and “if
anybody had any objections to it being signed or agreed upon,
they had [the] right to a say.” (Tr. 292.) However, there is no
credible evidence that a member’s objection voided the agree-
ment or contract. Board law has established that ratification is
a requirement to the creation of a contract only when the parties
have an expressed agreement to such effect. See Observer-
Dispatch, 334 NLRB 1067 (2001)]? There is no evidence of an
express agreement that ratification by the membership was
required for the LOU with SMG/Pershing to be valid.
Last, it is nonsensical to believe that Gillaspie, as the busi-
ness agent, did not have either express or implied authority to
negotiate the LOU on behalf of the Respondent. Article 7,
section 5 of the Respondent’s constitution and bylaws reads in
pertinent part:
The Business Agent shall have full charge of the office of this
Local, represent it in all dealings with employers, but shall at
all times be under the supervision of the Executive Board.
(GC Exh. 8.) The actions of Gillaspie and the executive board
establish that Gillaspie has express and implied authority from
the executive board to enter into binding agreements and con-
tracts on the Respondent’s behalf. There is no evidence that
anyone on the executive board (or the general membership)
objected to the agreements and contracts Gillaspie (or past
business agents) negotiated and executed on behalf of the Re-
spondent (LOU with SMG/Pershing, contract with Complete,
CBA, and successor agreement with Freeman). These agree-
ments were negotiated and signed by the business agents and
enforced by the Respondent. Despite the Respondent’s argu-
ment that Gillaspie did not have authority to enter into contracts
on behalf of the Respondent, it is notable that the Respondent
never sought to have the agreements and contract declared void
by a court of law. Again, the Respondent adhered to the terms
of the agreements and contracts for the length of their terms;
and in the case of Freeman sought to negotiate and entered into
a successor agreement. (GC Exhs. 4, 5, 6.)
2. Freeman Decorating
The Respondent and Freeman entered into a CBA effective
September 1, 2010, to August 31, 2013. (GC Exh. 4.) A suc-
cessor agreement was effective September 1, 2013, to August
31, 2016. (GC Exh. 6.) Both agreements contain the following
relevant language:
The Employer agrees that the work described above shall be
performed only by qualified workers assigned by the Union
through its job referral procedure.
(GC Exhs. 4, 6.) Scott Young, Freeman’s sales manager, is
responsible for notifying the Respondent’s business agent when
Freeman needs labor for an event. He makes the “labor calls”
by sending an email to the business agent, notifying him or her
that he needs workers. Young does not deviate from this prac-
tice.25 (Tr. 404, 406; GC Exhs. 4, 6, 33, 34.) Prior to February

25 The Respondent argues that Young does deviate from the practice
and therefore should not be credited on this point. However, I credit
Young’s testimony because there was credible corroborating testimony.
(Tr. 244–245.)
4, 2013, the Respondent worked on average 4 to 6 labor calls
year for Freeman.
Based on the evidence, I find that the Respondent has oper-
ated an exclusive hiring hall for work it performs for Freeman.
In the case at hand, the parties’ written agreement and prac-
tice show that laborers must be referred by the Respondent to
obtain work with Freeman, i.e., they cannot be hired directly by
Freeman off the street or through a referral from other sources.
While Freeman occasionally uses its own foremen to oversee
the labor of the workers, may reject a referred worker, or hire
other workers if the Respondent is unable to fill a numerical
request, it does not negate the exclusivity of the agreement
between the parties. The Board has consistently held that these
types of limited exceptions do not make an otherwise exclusive
referral arrangement nonexclusive. See, e.g., Pipefitters Local
247 (Inland Industrial Contractors, Inc.), 332 NLRB 1029,
1031–1032 (2000) (employer had right to request up to 50 per-
cent of employees by name and to hire from other sources if
union failed to furnish workers without 48 hours); Ironworkers
Local 843 (Norglass, Inc.), 327 NLRB 29, 31 (1998) (employer
had right to request 50 percent of employees by name, to reject
any applicant referred by the union, and to employ applicants
directly at jobsite if union was unable to fill the employer’s
requisition within 24 hours).
The Respondent argues that it did not maintain an exclusive
hiring hall with Freeman because the fact it conducted so little
work for Freeman infers that Freeman was getting workers
from other sources in the area; the contract with Freeman was
invalid because it had not been ratified by the membership; and
the Respondent has “never disciplined any member for working
for Freeman directly instead of going through the Local.” (R.
Br. 17.)
None of the Respondent’s arguments are persuasive. The
evidence establishes that the Respondent received calls from
Freeman to work 4–6 events during the period at issue. None
of the parties presented evidence to show that Freeman had
work for more than that number, and if it did how much more.
Second, there is no credible evidence to show that it was a re-
quirement or standard practice for the membership to ratify all
contract (or any contracts) that the executive board entered into
on behalf of the Respondent. See Observer-Dispatch, 334
NLRB 1067 (2001)]? There is no evidence of an express
agreement that ratification by the membership was required for
the contract with Freeman to be valid. Furthermore, the ex-
press language of the contract and its successor agreement
clearly states that “the work described above shall be performed
only by qualified workers assigned by the Union through its job
referral procedure.” (GC Exhs. 4, 6.) Witnesses confirmed that
the job referral practice was carried out by Freeman according
to the terms of the agreement and, except in rare circumstances,
workers were not hired outside of the referral system. Finally,
even assuming the Respondent never disciplined members who
worked for Freeman without being referred by the Respondent,
it is irrelevant to the question of whether the Respondent main-
tained an exclusive hall arrangement with Freeman.
Accordingly I find that the Respondent operated an exclusive
hiring hall with Freeman and SMG/Pershing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
III. DISCUSSION AND ANALYSIS
A. Legal Standards
Section 8(b)(2) of the Act provides that it is an unfair labor
practice for a labor organization or its agents “to cause or at-
tempt to cause an employer to discriminate against an employee
in violation of subsection (a)(3) [of subsection (a)(3) of this
section] or to discriminate against an employee with respect to
whom membership in such organization has been denied or
terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.”26
Unions can maintain and enforce internal regulations if those
regulations do not affect a member’s employment status or
“invade or frustrate an overriding policy of the labor laws . . .”
Scofield v. NLRB, 394 U.S. 423, 429 (1969). Nevertheless, a
union operating an exclusive hiring hall cannot stop an employ-
ee from being hired or cause an employee’s discharge, even if it
does so pursuant to an internal union rule. The Board will then
presume that the effect of the union’s action is to unlawfully
encourage union membership because the union has displayed
to all users of the hiring hall its power over their livelihoods.”
Stage Employees IATSE Local 720 (AVW Audio Visual), 332
NLRB 1, 2 (2000), revd. on other grounds 333 F.3d 927 (9th
Cir. 2003).
In Stagehand Referral Service27 the Board explained, “The
Supreme Court has upheld the legality of hiring hall referral
systems, acknowledging that “the very existence of a hiring hall
encourages union membership,” but holding that “the only
encouragement or discouragement of union membership
banned by the Act is that which is ‘accomplished by discrimi-
nation.’” [Citations omitted.] In Operating Engineers Local 18
(Ohio Contractors Assn.), 204 NLRB 681 (1973), the Board
explained that there is a rebuttable presumption that arises
when a union interferes with an employee’s employment status
for reasons other than the failure to pay dues, initiation fees, or
other fees uniformly required, that the interference is intended
to encourage union membership:
When a union prevents an employee from being hired or
causes an employee’s discharge, it has demonstrated its influ-
ence over the employee and its power to affect his livelihood
in so dramatic a way that we will infer—or, if you please,
adopt a presumption that-the effect of its action is to encour-
age union membership on the part of all employees who have
perceived that exercise of power. But the inference may be
overcome, or the presumption rebutted, not only when the in-
terference with employment was pursuant to a valid union-
security clause, but also in instances where the facts show that
the union action was necessary to the effective performance
of its function of representing its constituency.
Thus, a union bears the burden of establishing that referrals are
made pursuant to a valid hiring-hall provision, or that its con-
duct was necessary for effective performance of its representa-

26 An 8(b)(2) violation has as a derivative an 8(b)(1)(A) violation.
Jacoby v. NLRB, 233 F.3d 611, 618 (2000); NLRB v. Iron Workers
Union, Local 433, 767 F.2d 1438, 1440 (1985).
27347 NLRB 1167, 1170 (2006).
tional function.”
Section 8(b)(1)(A) of the Act provides that it is an unfair la-
bor practice for a labor organization or its agents “to restrain or
coerce employees in the exercise of the rights guaranteed in
section 7 [section 157 of this title]: Provided, That this para-
graph shall not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or retention
of membership therein.” The rights guaranteed in Section 7
include, in relevant part, the right “to form, join or assist labor
organizations . . . and the right to refrain from any or all such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorize in Section 8(a)(3) . . . .”
B. Complaint Allegations
1. Respondent’s refusal to refer Brunkhorst and Polanka Junior
on February 4 and 5
The General Counsel argues “Respondent’s failure to adhere
to its normal referral criteria was in retaliation for its members
engaging in protected Section 7 activity. As such, Respondent
violated Section 8(b)(1)(A) and (2) when it refused to refer
Brunkhorst and Polanka (Junior) to the Freeman Decorating
Services job at the Cornhusker Hotel on February 4 and 5,
2013.” (GC Br. 47.) According to the General Counsel,
Brunkhorst and Polanka Junior engaged in several acts of con-
certed protected activity which formed the bases of the Re-
spondent’s refusal to refer them to the Freeman job. The Re-
spondent counters that they were not referred for the Freeman
job because of “their prior behavior and inability to work with
others assigned to that [sic] the Freeman job. . . .” (R. Br. 26.)
Further, the Respondent contends that the job required a certi-
fied Freeman forklift operator and Wait was one of only two
available operators to work those days. I find that this allega-
tion is supported by a preponderance of the evidence.
The Board has consistently held that employees’ discussions
about wages are inherently concerted. In re Sabo, Inc., 359
NLRB 355 (2012); Trayco of S.C., 297 NLRB 630 (1990); U.S.
Furniture Industries, 293 NLRB 159 (1989). In Copper Craft
Plumbing,28 the Board held that two employees who wanted to
meet with a manager to discuss wages were not pursuing indi-
vidual interest simultaneously. Instead, their issues (wages)
directly affected the terms and conditions of employment for
both employees. Likewise, the Board has repeatedly held that
individual action is concerted if it is conducted with the inten-
tion of initiating or inducing group action. See Family
Healthcare, Inc., 354 NLRB 254 (2009). Brunkhorst believed
that the Respondent had inaccurately calculated her wages for
the time she worked at the Nebraska State Fair. She raised the
issue in meetings with union officials and with Nebraska State
Fair production manager, Adams. Further, in a union meeting
she also inquired of other members about the accuracy of their
pay and discovered they had the same concerns. In addition,
Brunkhorst was open and vocal in her criticism of the union
official’s billing for the Nebraska State Fair. Her criticism is
protected by Section 7 of the Act, regardless of whether or not
it is concerted. See, e.g., International Brotherhood of Team-

28 354 NLRB 958 (2009).
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 23
sters, Local 657 (Texas Productions, Inc.), 342 NLRB 637
(2004); see also Plasterers Local 121, 264 NLRB 192 (1982)
(individual employee’s right to criticize union leadership clear-
ly protected by the Act.) Further, Polanka Junior and Polanka
Senior contacted Adams to support Brunkhorst in her wage
dispute. Although Brunkhorst’s actions may have initially been
motivated by concern for her own wages, the activity was car-
ried out in a concerted fashion. See Benjamin Franklin Plumb-
ing, 352 NLRB 525 (2008); Alton H. Piester, 353 NLRB 369
(2008), enfd. 591 F.3d 332 (4th Cir. 2010).
Likewise, Brunkhorst’s and Polanka Junior’s meeting with
an official of Complete to discuss their concerns about their
paychecks and Complete’s business relationship with the Re-
spondent also constitutes protected concerted activity.29 The
contract for services between Complete and the Respondent
designates as Complete employees the “IATSE Local No. 151
member and non-member workers who are provided to the
production companies and other through IAS|TSE Local No.
151’s organization. . . .” (GC Exh. 12.) Therefore, Brunkhorst
and Polanka Junior were discussing with their employer (or a
party aligned with their employer) subjects that affected the
terms and conditions of employment for them and other em-
ployees. They talked with John Gross about how Complete
obtained their financial information. They also asked him if the
contract between Complete and the Respondent was a verbal or
signed agreement. The conversation about the method for pro-
cessing their paychecks, the maintenance of their confidential
financial records, and the structure of the agreement with Com-
plete impacted the terms and conditions of their employment
with the Respondent. Copper Craft Plumbing, at 965.
It is undisputed and Gillaspie admitted that Brunkhorst and
Polanka Junior’s meeting at Complete was the basis for his
decision not to refer them for the Freeman job at the Cornhusk-
er Hotel on February 4 and 5, 2013. (Tr. 78–79.) Although
Dale and Dan Stoner had less seniority than Brunkhorst and
Polanka Junior, Gillaspie testified that he referred them for the
Freeman job because he was “worried about destruction and
possible further complications with contractual issues with our
vendors.” (Tr. 137.) I do not find Gillaspie credible on this
point. There is no credible evidence to contradict Brunkhorst’s
and Polanka Junior’s testimony that their meeting with John
Gross at Complete was cordial and professional. Likewise,
there is no substantive evidence that Respondent’s business
relationship with Complete was negatively impacted by
Brunkhorst’s and Polanka Junior’s conversation with John
Gross. Since it has already been established that their conver-
sation at the Complete office is concerted protected activity,
Gillaspie’s testimony is a clear admission that the refusal to
refer them for the Freeman job was illegal.
I find that Gillaspie’s admission, combined with the other

29 Earlier in the facts section, I established that Brunkhorst’s and
Polanka’s conversation with John Gross was cordial. I did not find
credible the Respondent’s argument that their discussion at the Com-
plete office was disruptive and, or threatening. Therefore, the evidence
does not warrant an analysis pursuant to Atlantic Steel Co., 245 NLRB
814 (1979), to determine if, because of their actions, they lost protec-
tion of the Act.
less than credible reasons that he gave, support an inference
that discriminatory animus was the actual motive for
Gillaspie’s refusal and failure to refer Brunkhorst and Polanka
Junior for the Freeman job at the Cornhusker Hotel on February
4 and 5, 2013.
Accordingly, I find that the General Counsel has established
that the Respondent’s refusal and failure to refer Brunkhorst
and Polanka Junior to the Freeman job on February 4 and 5,
2013, violated Section 8(b)(1)(A) and (2) of the Act.
2. Nonmembers and the Respondent’s referral list
In the complaint, the Respondent is charged with discrimi-
nating against nonunion employees by granting priority to its
members for job referrals for employment with SMG/Pershing
and Freeman. (GC Exh. 1-K.) The General Counsel alleges
that the “Respondent conducted an unlawful exclusive hiring
hall operation when at all material times, Business Agent Perry
Gillaspie has utilized membership as a basis for referrals.” (GC
Br. 48.) The Respondent disputes that it operates an exclusive
hiring hall. Further, the Respondent contends that Gillaspie
“did the best he could” to create a fair referral list given the
information he possessed at the time. (R. Br. 34.)
The Board has long held that unions operating exclusive hir-
ing halls cannot discriminate against and among employees in
its referral practices. Laborers Local 334 (Kvaerner Songer),
335 NLRB 597 (2001); Boilermakers Local 154 (Western
Pennsylvania Service Contractors Assn.), 253 NLRB 747
(1980), enfd. mem. 676 F.2 687 (3d Cir. 1982) (union’s system-
ic discrimination against nonmembers in the operation of hiring
hall violated Section 8(b)(1)(A) and (2) of the Act); Southwest
Regional Council of Carpenters (Perry Olsen Drywall), 358
NLRB 1, 8 (2012) (“a union operating an exclusive hiring hall
may not discriminate with respect to registration and referrals
on the basis of membership or nonmembership in the union
. . . .”), citing Sachs Electric Co., 248 NLRB 669, 670 (1980).
A union must act fairly and impartially because of its status as
the exclusive collective-bargaining representative of employees
in a specified unit. Vaca v. Sipes, 386 U.S. 171, 177 (1967).
In the case at hand, I have found that the Respondent operat-
ed an exclusive hiring hall with SMG/Pershing and Freeman.
Therefore, the Respondent’s first argument fails. The Re-
spondent also insists it treats nonmembers and members equal-
ly for purposes of referrals. The charge against the Respondent
stems from the method Gillaspie used to create a referral list
when he became the business agent. It is undisputed that the
first 30 names Gillaspie placed on the referral list were all un-
ion members. Gillaspie insists this is because Polanka Junior
did not provide him with a working referral list when Polanka
Junior was voted out of office as the business agent. According
to Gillaspie, he was therefore unable to create a referral list
based on employees’ actual seniority dates. Consequently, for
every name and contact information he had, Gillaspie reset
their seniority date to January 1, 2012. Gillaspie contends it
was purely coincidental that the first 30 to 40 names on the
referral list were union members. The Respondent argues
Gillaspie “did the best he could and acted in the most fair way
that he was able with the information he was given.” (R. Br.
34.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
I am not persuaded by the Respondent’s argument. There is
no case law to support absolving the Respondent of using dis-
criminatory methods for referrals because its agent, Gillaspie,
“did the best he could” with the information he possessed.
Second, in his sworn affidavit to the Board agent investigating
the charge, Gillaspie admitted that he first referred workers
from the local member list and sometimes contacted “IATSE
Local 432 and other sister locals to see if they have any quali-
fied journeymen available. At that point, I will go through my
casual or extra list.” (Tr. 87.) Although Gillaspie attempted to
change his testimony through responses to leading questions by
the Respondent’s counsel, he presented no credible basis for
believing this new version of his referral procedure other than
that “he was confused.” (Tr. 121.)
Accordingly, I find that the Respondent conducted an unlaw-
ful hiring hall operation by using union membership as a basis
for referrals in violation of Section 8(b)(1)(A) and 8(a)(3) and
8(b)(2) of the Act.
3. Respondent’s suspension of seven members on or about
February 7
The General Counsel alleges that the Respondent suspended
seven members (Brunkhorst, Haake, Hansen, Hike, Ladely,
Polanka Senior, and Polanka Junior) from its exclusive hiring
hall because of their protected concerted activity. According to
the General Counsel, the Respondent’s decision to suspend
them for filing lawsuits prior to exhausting internal union rem-
edies is illegal because as an exclusive hiring hall there is a
duty of fair representation. Even assuming the Respondent
operates a nonexclusive hiring hall, the General Counsel argues
that the Respondent violated the Act because “the incidents
relied upon for suspension by Respondent all constitute pro-
tected concerted activity under the Act.” (GC Br. 43.) The
Respondent counters that it does not operate an exclusive hiring
hall so it has no duty of fair representation. Further, the Re-
spondent contends some members were suspended for discuss-
ing internal union matters with outside businesses; others for
failing to give the Respondent an opportunity to resolve dis-
putes internally before resorting to the court system; two mem-
bers for intentionally destroying union property and, or refusing
to return documents to the Union; and two members for “direct-
ly causing tension between IATSE and parties with which it
contracted . . . .” (R. Br. 19.) The Respondent argues these
actions violated work rules and constituted egregious miscon-
duct that affected the entire bargaining unit. (R. Br. 20.)
As previously noted, a union’s internal discipline process, or
the application of an internal union rule, must not negatively
impact the employee-employer relationship. Consequently,
union discipline cannot stop the reemployment of an employee
or impose negative working conditions on employees. See
Plumbers Local 420 (Carrier Corp.), supra; Scofield v. NLRB,
394 U.S. 423, 429 (1969). When a union operates an exclusive
hiring hall, it cannot prevent an employee from being hired or
cause an employee’s discharge, even if it is pursuant to an in-
ternal union rule. The Supreme Court explained that when a
union operates an exclusive hiring hall it, “wield[s] additional
power . . . by assuming the employer’s role,’ [and] ‘its respon-
sibility to exercise that power fairly increases rather than de-
creases.” Breininger at 89. In order to rebut this presumption,
the Board had indicated the union must establish that “its inter-
ference with employment was pursuant to a valid union-
security clause or was necessary to the effective performance of
its representative function. Operating Engineers Local 406
(Ford, Bacon & Davis Construction Corp.), 262 NLRB 50, 51
(1982), enfd. 701 F.2d 504 (5th Cir. 1983). A valid union-
security clause is not present in this matter. Even if the situa-
tion involves a nonexclusive hiring hall, a union owes a “duty
of fair representation” to the workers who use its referral ser-
vice and it cannot deny them referrals because they exercise
their Section 7 rights. See Plumbers Local 13 (MCA of Roches-
ter), 212 NLRB 477 (1974); Teamsters Local 923 (Yellow Cab
Co.), 172 NLRB 2137, 2138 (1968).
I have previously held that the Respondent operated an ex-
clusive hiring hall; thus the Respondent’s first argument (that it
did not operate an exclusive hiring hall) fails. Therefore, the
Respondent has to overcome the presumption that the suspen-
sions were discriminatorily motivated by showing its actions
were necessary to perform its representative function. I find
that the Respondent has not met its burden.
During the hearing and in its brief, the Respondent listed
several reasons for suspending the seven members. However,
the plain language of the letters notifying them of their suspen-
sion cites their act of filing a lawsuit prior to exhausting inter-
nal union remedies as set forth in article 12, section 6 of the
Respondent’s local constitution and bylaws. (GC Exh. 8.)
Haake, Hansen, Hike, and Ladely were informed that their
suspension was based on the lawsuit that they filed against the
Respondent before exhausting internal remedies. The suspen-
sion letters issued to Polanka Senior, Polanka Junior, and
Brunkhorst noted the lawsuits as one of several bases for their
suspensions. Moreover, the Respondent agrees that all seven
members were suspended because they “failed to exhaust inter-
nal remedies before bringing a lawsuit. . . .” (R. Br. 22.)
Gillaspie insisted that their suspensions were necessary be-
cause their actions were damaging to the Respondent’s business
relationships and disruptive to its ability to carry out its “duties
and obligations.” (GC Exh. 7 and 20; Tr. 148–155, 169, 388–
391.) Gillaspie testified that labor calls from Freeman dropped
precipitously after the February 5 incident at the Cornhusker
Hotel. In addition, Gillaspie claimed after the members filed
lawsuits against the Respondent, its relationship with SMG
deteriorated. The difficulty, however, with the Respondent’s
argument is that there is absolutely no evidence that the law-
suits negatively impacted its contractual relationships with the
employers. Further, the Respondent’s contention that it “legit-
imately perceived it was in danger of losing those contracts” is
not credible. Representatives from the companies that regularly
conducted business with the Respondent testified that they were
aware of the lawsuits but that it did not negatively influence
their business relationships with the Respondent. Lorenz testi-
fied that even after becoming aware of the lawsuits, SMG con-
tinued to conduct business with and signed a new contract with
the Respondent. Similarly, Young testified that he continued to
use the Respondent for Freeman’s labor calls after Backstrom
informed him of the incident involving Brunkhorst and Polanka
Junior that occurred on February 4 or 5 at the Cornhusker Ho-
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 25
tel. (GC Exhs. 33, 34.) As an example, Young noted that he
used the Respondent for a labor call in April 2013. (GC Exh.
34.) Despite Gillaspie’s claim that Brunkhorst’s and Polanka
Junior’s actions caused tension in the relationship with Free-
man, Young testified that he never had a discussion with
Gillaspie or any other union official about the Cornhusker inci-
dent. Finally, the business relationship with Complete clearly
did not suffer after Brunkhorst and Polanka Junior met with
John Gross in January 2013, because the Respondent signed a
contract for services with Complete in or on January 13, 2013,
and a second agreement on October 4, 2013. (GC Exhs. 10, 11,
12, 13.)
The suspension letter to Polanka Senior also listed as a basis
for his suspension the meeting he had with Brunkhorst and
Adams about Brunkhorst’s disputed wages for working the
Nebraska State Fair. Polanka Senior’s action to assist
Brunkhorst’s efforts to recoup wages owed to her is protected
concerted activity. The meeting involved a discussion about
wages that the Board has consistently held is inherently con-
certed. In re Sabo, Inc., supra. Therefore, the Respondent’s
admitted use of the incident as a basis for suspending Polanka
Senior is likewise a violation of the Act.
In addition to filing a lawsuit, the suspension letter notified
Polanka Junior that he was suspended for his visit to the Com-
plete office in January 2013, and the incident at the Cornhusker
Hotel. Previously, I found that both acts were protected under
the Act. The suspension letter to Brunkhorst also listed as a
basis for her suspension the meeting she had with Polanka Sen-
ior and Adams about her disputed wages for working the Ne-
braska State Fair; visiting the Complete office with Polanka
Junior; and the incident at the Cornhusker Hotel in February
2013. Earlier I found that each of these acts was also protected
concerted activity. Since the Respondent admits these actions
were the bases for their suspensions, the Respondent is unable
to show that it would have suspended Brunkhorst and Polanka
Junior even absent the protected concerted activities.
During the hearing, Gillaspie testified that the members were
suspended for other reasons not specifically listed in the sus-
pension letters. As an example, the Respondent alleged
Polanka Junior was also suspended because he destroyed data
from the Respondent’s computer prior to his suspension; and
Polanka Senior embezzled the Respondent’s money and falsi-
fied bills to employers. I find that the reasons are not credible
and were formulated simply in anticipation of trial. These are
serious allegations, yet Polanka Junior and Senior were never
notified that they were part of the bases for their suspensions.
Further, in its April 2, 2012 meeting minutes Polanka Junior
was cleared of the charges. The relevant portion of the minutes
note:
Executive Board met with Tony Polanka Jr. where he an-
swered all their questions. The Board did not have time to
look to review the retrieved material on the computer prior to
this meeting. During the questioning, Tony Jr. mentioned that
Steve Hike helped him delete some old bills and spread
sheets. Steve Hike apologized for his actions. President
Buffum stated upon reviewing the “Missing” files which
[were] all old bills, which are already printed up and in the fil-
ing cabinet as well as some old excel spread sheets. At this
time, they could not find anything damning against Tony Jr.
(GC Exh. 17, IATSE 00294.) The executive board also pointed
out that the accusation that Polanka Junior maliciously can-
celled his cell phone (which was also the phone number listed
in the union bulletin) was unfounded because the number listed
was still active.
Based on the evidence, I find that the Respondent’s reasons
for suspending the members from the referral list are simply
pretexts for discrimination. Accordingly, I find that the Gen-
eral Counsel has established that the Respondent suspended the
seven members because of their concerted protected activity in
violation of Section 8(b)(1)(A) and 8(a)(3) and 8(b)(2) of the
Act.
4. Respondent’s work rules and the collection of fines and
assessments
The General Counsel alleges that the plain language of cer-
tain provisions of the Respondent’s work rules are a per se
violation of Section 8(b)(1)(A) of the Act. Since September 29,
the Respondent has maintained rules that authorize the Re-
spondent to refuse to refer an employee for work until he or she
has satisfied an unpaid fine and/or assessment. (GC Exh. 7.)
The General Counsel argues that the Board “has historically
found that a labor organization cannot refuse to refer an em-
ployee to enforce the collection of a fine and/or assessment.”
(GC Br. 56.) The Respondent does not dispute the plain lan-
guage of the work rules, but rather argues the issue is moot
because the rules were never enforced against a member since
the new executive board has taken office. The Respondent
further notes, “when it was brought to IATSE’s attention that
the language was unenforceable, IATSE began the process of
removing the language from its rules.” (R. Br. 8.)
The Respondent’s arguments are unpersuasive for several
reasons. The Board has long held that unions’ internal disci-
pline process, or the application of an internal union rule, must
not negatively impact the employee-employer relationship.
Consequently, union discipline cannot stop the reemployment
of an employee or impose negative working conditions on em-
ployees. See Plumbers Local 420 (Carrier Corp.), 347 NLRB
563 (2006); Fisher Theater, 240 NLRB 678, 691–692 (1979)
(unlawful for union to refuse to refer members who failed to
pay union fines imposed for violating union’s no-bumping
policy). In the case at hand, the adopted rules interfere with the
employees’ ability to procure work through the Respondent’s
exclusive hiring hall. The Respondent acknowledges that the
work rules are unenforceable; and the reason for its unenforce-
ability is due to the restrictions the rules place on the employ-
er’s ability to hire an employee with uncollected fines and that
employee’s ability to obtain employment. The Respondent
contends that the issue is moot because the current executive
board has never enforced the rule. However, a violation can be
found even if the Respondent has never imposed discipline.
See Teamsters Local 492 (United Parcel Service), 346 NLRB
360 (2006).
The Respondent’s alternate argument, the issue is moot be-
cause it is in the process of removing the language from its
rules, is likewise unpersuasive. First, there is no Board law to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
support this argument; and the Respondent does not present
any. Further, it is undisputed that since at least September 29,
the Respondent has maintained these illegal job referral rules.
There is also no evidence in the record to support a finding that
all of the unlawful rules have been removed. Consequently,
since September 29 to the present the rules would have a rea-
sonable tendency to restrain and coerce employees in the exer-
cise of the rights guaranteed to them in Section 7 of the Act.
Accordingly, I find that the Respondent violated Section
8(b)(1)(A) when it created the work rules at sections 9.1.3,
9.1.3.1, 9.1.3.2, 9.1.3.3. (GC Exh. 7.)
5. Respondent’s failure and refusal to remit V-fund moneys to
nonmembers
The General Counsel charges that the Respondent’s failure
and refusal to pay money from the V-fund to nonmembers vio-
lates Section 8(b)(1)(A) of the Act. The Respondent argues
“IATSE has not yet remitted V-fund monies to non-members
because it is waiting to see if the NLRB or Lancaster District
Court will find the Pershing/SMG Addendum to be illegal in
the first instance.” (R. Br. 36.)
The V-fund money was derived from a portion of the pro-
cessing fee that the Respondent charged employers for referring
laborers to them. Members were paid annually from the V-
fund at a rate of 5 percent of the employee’s yearly gross earn-
ings. Despite referring members and nonmembers for em-
ployment and charging employers a fee for those referrals, it is
undisputed that the Respondent has never paid money out of
the V-fund to its nonmembers. The Respondent has failed to
present any authority to support its defense that it is waiting for
a court order to direct it to pay the moneys to its nonmembers
and no precedent supports its position.
Accordingly, I find that the Respondent’s failure and refusal
to pay V-fund moneys to nonmembers violated Section
8(b)(1)(A) of the Act.
6. Respondent’s failure and refusal to remit V-fund moneys to
members Haake, Hansen, Hike, Ladely, and Polanka Senior
The General Counsel contends that the Respondent breached
its duty of fair representation when it refused to pay V-fund
bonuses to members who filed lawsuits against it. The General
Counsel charges that the “Respondent failed to pay the object-
ing members their V-fund bonus for arbitrary, irrelevant, and
discriminatory reasons.” (R. Br. 17.) The Respondent counters
that the charge should be dismissed because the Board does not
have jurisdiction over SMG/Pershing or Freeman and the V-
fund did not relate to Freeman. Second, the Respondent argues
“there was no ratified agreement by the local to pay a V-fund to
the members.” (R. Br. 35.) I find that the Respondent’s argu-
ments fail for the following reasons.
I have already determined that the requirements for the
Board to assert jurisdiction have been established in this case.
Second, failure to ratify the contract authorizing the Respond-
ent to pay V-fund bonuses to members is not a valid or credible
defense in this instance.
Article 7, section 5 of the Respondent’s local constitution
and bylaws gives the business agent full authority to “represent
it in all dealings with employers. . . .” (GC Exh. 8.) It goes on
to state:
The Business Agent shall be a member, ex-officio, of all ne-
gotiating committees. Contracts negotiated by any such
committee shall be subject to ratification of the membership
unless the membership has in advance empowered the Com-
mittee to conclude the contract without ratification.
(GC Exh. 8.) In addition to its processing fee, 5 percent for all
labor referred was charged by the Respondent to employers for
the V-fund bonus. Freeman was excluded from paying a pro-
cessing fee that included the V-fund bonus because it adminis-
tered its own payroll. SMG/Pershing paid this fee and it was
explicitly spelled out in the addendum to the LOU entered into
in May 2011 between SMG/Pershing and the Respondent. It is
undisputed that neither the LOU, nor the addenda were ratified
by the members. (GC Exhs. 3, 27.) However, it is irrelevant
because despite the contract not being ratified, the Respondent
paid V-fund bonuses to all members who elected payment ex-
cept for those members who filed lawsuits against it. Addition-
ally, at the membership meeting on April 2, 2012, Gillaspie
made a motion to approve payment of the 2011 V-fund bonus.
His motion was seconded by Tom Stickney and approved. (GC
Exh. 17.)
The Respondent also reasons that it did not pay the V-fund
bonuses because “there were legitimate concerns over the legal-
ity of paying the funds to members and not paying them to non-
members.” (R. Br. 36.) Further, the Respondent contends that
except for Haake and Hansen, the remaining complaining
members did not submit “the required request form for the
payment by the deadline established by the secretary (or ever).”
(R. Br. 36.) Again, I reject the Respondent’s arguments. If the
Respondent had a legitimate concern about the legality of mak-
ing V-fund payments to members and not nonmembers, then
the Respondent would not have paid any member until the issue
had been settled in court. Instead, the Respondent paid every
member who elected to receive the bonus, while refusing to pay
the members who asked for their V-fund bonus but also con-
sulted a lawyer about their concerns over administration of the
V-fund; collectively objected to the V-fund decisions made by
the executive board; and collectively filed a lawsuit to get the
V-fund moneys owed to them. Second, it is clear to me that the
Respondent’s requirement for members to submit a form elect-
ing to get their V-fund bonus was an attempt to embarrass and
coerce them into foregoing it. (See GC Exh. 16.) I find that
this action was arbitrary and unrelated to whether they were
entitled to receive the bonus they had already earned and that
had been a past practice since at least the early 1990s. (Tr.
223.) There is no evidence that in all the years members re-
ceived V-fund bonuses, they ever had to submit a form asking
for it. Therefore, I find that the Respondent’s refusal to make
V-fund payments to those members who had consulted a law-
yer over the issue and filed a lawsuit to recoup their bonus
money was based on arbitrary and discriminatory reasons.
Accordingly, I find that the Respondent’s failure and refusal
to pay V-fund moneys to Haake, Hansen, Hike, Ladely, and
Polanka Senior violated Section 8(b)(1)(A) of the Act.
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 27
7. Respondent’s constitution and bylaws allegedly contain
unlawful provisions
The General Counsel alleges that article 12, section 6 of the
Respondent’s constitution and bylaws violates Section
8(b)(1)(A) of the Act because it requires members to exhaust its
internal remedies without including the 4-month limitation
required by section 101(a)(4) of the LMRDA. The Respondent,
however, counters that the LMRDA “does not require the Con-
stitution and Bylaws to build into its provisions an explanation
that the requirements are limited to 4 months; it simply allows
the member to proceed with his action in court after he or she
has pursued reasonable hearing procedures for four months.”
(R. Br. 5–6.)
It is undisputed that the Respondent’s constitution and by-
laws require members to exhaust all internal remedies before
seeking relief from outside tribunals. Likewise, the constitution
and bylaws do not include language containing the 4-month
limitation period set forth in the LMRDA. However, the Gen-
eral Counsel has the burden of proving the allegations in a
complaint, and I find that the General Counsel failed to articu-
late a strong argument or provide case law to establish that the
LMRDA requires the Respondent to include in its constitution
and bylaws an explicit clause noting the LMRDA’s 4-month
limitation period.
The record contains minimal testimony or other evidence to
support the General Counsel’s case on this issue. Accordingly,
I recommend dismissal of this allegation in the complaint.
C. Respondent’s 10(b) Argument as an Affirmative Defense
The Respondent argues that the allegation pertaining to the
referral procedures is barred by Section 10(b) of the Act be-
cause the Respondent did not maintain a referral hall in the 6
months prior to the filing of the amended charge. According to
the Respondent, it maintains a list of available workers but
“IATSE no longer chooses who will be sent on any particular
call, and has not since February or March of 2013.” (R. Br.
37.) The General Counsel contends “Gillaspie and Respondent
attempt to deflect any referral responsibilities to Complete Pay-
roll by arguing that Respondent has nothing to do with referrals
and has not for some time. Respondent’s claim is not accu-
rate.”
For the reasons discussed in section II, subsection C of this
decision, I reject the Respondent’s argument, and find that the
Respondent at all times maintained control over and referred
workers from its exclusive hiring hall. Therefore, the Respond-
ent’s 10(b) argument has no merit.
CONCLUSIONS OF LAW
1. The Respondent, International Alliance of Theatrical
Stage Employees, Moving Picture Technicians, Artists and
Allied Crafts of the United States, Its Territories and Canada
Local No. 151 (SMG and the Freeman Companies d/b/a Free-
man Decorating Services, Inc.), is a labor organization within
the meaning of Section 2(5) of the Act.
2. The Respondent did operate an exclusive hiring hall with
respect to referral of employees to SMG/Pershing and the
Freeman Companies d/b/a Freeman Decorating Services, Inc.
3. By refusing to refer Sheila Brunkhorst and Tony Polanka
for a job with Freeman because they engaged in protected con-
certed activity, the Respondent has violated Section 8(b)(1)(A)
and (2) of the Act.
4. By discriminating against nonmembers by granting priori-
ty to its members for job referrals for employment with
SMG/Pershing and Freeman, the Respondent has violated Sec-
tion 8(b)(1)(A) and 8(a)(3) and 8(b)(2) of the Act.
5. By maintaining work rules that authorize the Respondent
to refuse to refer an employee for work until he or she has satis-
fied an unpaid fine and/or assessment, the Respondent has vio-
lated Section 8(b)(1)(A) of the Act.
6. By suspending seven members (Brunkhorst, Haake, Han-
sen, Hike, Ladely, Polanka Senior, and Polanka Junior) because
they engaged in protected concerted activity, the Respondent
has violated Section 8(b)(1)(A) and 8(a)(3) and 8(b)(2) of the
Act.
7. By failing and refusing to pay money from its V-fund to
nonmembers, the Respondent has violated Section 8(b)(1)(A)
of the Act.
8. By failing and refusing to pay money from the Respond-
ent’s V-fund to Haake, Hansen, Hike, Ladely, and Polanka
Senior because they filed lawsuits against it, the Respondent
has violated Section 8(b)(1)(A) of the Act.
9. The Respondent did not violate Section 8(b)(1)(A) of the
Act when it did not include explicit language in its constitution
and bylaws an explanation that there is a 4-month limitation
required by section 101(a)(4) of the LMRDA.
10. The above violations are unfair labor practices that af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
11. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily refused to refer
Sheila Brunkhorst and Tony Polanka to the Freeman job at the
Cornhusker Hotel on February 4 and 5, 2013, I shall recom-
mend that the Respondent be ordered to make the employees
whole for any loss of earnings and other benefits they suffered
as a result of the discrimination against them from the date of
the discrimination to the date they are reimbursed for their loss-
es. The Respondent must notify them in writing that these
actions have been completed and that the refusal to refer them
for the job will not be used against them in any way.
The Respondent having discriminatorily granted priority to
its members for job referrals to the detriment of nonmembers, I
shall recommend the Respondent create a referral list that does
not discriminate based on membership status.
The Respondent having maintained work rule provisions that
unlawfully authorize the Respondent to refuse to refer an em-
ployee for work until he or she has satisfied an unpaid fine
and/or assessment, I shall recommend that the Respondent re-
move the unlawful provisions. The Respondent must notify
workers that the unlawful provisions have been removed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
The Respondent having discriminatorily suspended members
(Sheila Brunkhorst, Les Haake, Dennis Hansen, Steve Hike,
Danny Ladely, Anthony Polanka, and Tony Polanka) from its
referrals from its exclusive hiring hall, I shall recommend that
the Respondent be ordered to make the employees whole for
any loss of earnings and other benefits they suffered as a result
of the discrimination against them from the date of the discrim-
ination to the date they are reimbursed for their losses. I shall
also recommend that the Respondent rescind their suspensions,
restore them to the referral list in rightful order or priority, and
remove all reference to their suspensions from the Respond-
ent’s official and unofficial records. The Respondent must
notify the suspended members in writing that these actions have
been completed and that the removal will not be used against
them in any way.
The Respondent having discriminatorily refused to pay V-
fund bonuses to members Les Haake, Dennis Hansen, Steve
Hike, Danny Ladely, Anthony Polanka, and nonmembers, I
shall recommend that the Respondent remit V-fund payments
owed to those members and nonmembers. The Respondent
must notify the affected members and nonmembers in writing
that these actions have been completed.
Backpay because of the discriminatory suspensions, failure
to refer for work, and failure to remit V-fund money shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as provided in New Horizon, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010) enf. denied on
other grounds sub. nom. Jackson Hospital Corp. v. NLRB, 647
F.3d 1137 (D.C. Cir. 2011).
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate Sheila Brunkhorst,
Les Haake, Dennis Hansen, Steve Hike, Danny Ladely, Antho-
ny Polanka, Tony Polanka, and other affected workers for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year,
Latino Express, Inc., 359 NLRB 518 (2012).
Further, in accordance with the Board’s decision in J. Piccini
Flooring, 356 NLRB 11, 15–16 (2010), I shall recommend that
the Respondent be required to distribute the attached appendix
and notice to members and employees electronically, if it is
customary for the Respondent to communicate with employees
and members in that manner. Also in accordance with that
decision, the question as to whether a particular type of elec-
tronic notice is appropriate should be resolved at the compli-
ance state. Id, slip op. at p. 3. See, e.g., Teamsters Local 25,
358 NLRB 54 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30

30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
The Respondent, International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied
Crafts of the United States, Its Territories and Canada Local
No. 151 (SMG and the Freeman Companies d/b/a Freeman
Decorating Services, Inc.), Lincoln, Nebraska, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to refer employees from its exclusive
hiring hall, who are or rightfully should be on the Respondent’s
referral list, for work with employers because those individuals
exercised the rights guaranteed to them under Section 7 of the
Act.
(b) Discriminating against nonunion employees by granting
priority to union members for job referrals to employers, thus
attempting to cause or causing those employers to discriminato-
rily fail to employ employees because of their status as nonun-
ion members.
(c) Maintaining unlawful rules and policies that authorize the
Respondent to refuse to refer employees for work from its ex-
clusive hiring hall until he or she has satisfied an unpaid fine
and/or assessment.
(d) Suspending employees from its exclusive hiring hall re-
ferral list, who are or rightfully should be on the Respondent’s
referral list, because those employees exercised the rights guar-
anteed to them under Section 7 of the Act.
(e) Failing and refusing to remit V-fund payments to mem-
bers because those individuals exercised their rights guaranteed
to them under Section 7 of the Act; and nonmembers because
of their membership status.
2. Take the following affirmative action necessary to effec-
tuate the purposes and policies of the Act.
(a) Within 14 days from the date of the Board’s Order, make
Sheila Brunkhorst and Tony Polanka whole for any loss of
earnings and benefits suffered as a result of the Respondent’s
unlawful refusal and failure to refer them from its exclusive
hiring hall to the Freeman Decorating Services job on February
4 and 5, 2013.
(b) Within 14 days from the date of the Board’s Order, create
a referral list that does not discriminate based on membership
status.
(c) Within 14 days from the date of the Board’s Order, re-
scind or make lawful the Respondent’s work rules at sections
9.1.3; 9.1.3.1; 9.1.3.2; and 9.1.3.3.
(d) Within 14 days from the date of the Board’s Order, make
whole Sheila Brunkhorst, Les Haake, Dennis Hansen, Steve
Hike, Danny Ladely, Anthony Polanka, and Tony Polanka for
any loss of earnings and other benefits they suffered as a result
of the discrimination against them from the date of the discrim-
ination to the date they are reimbursed for their losses. Further,
within 14 days from the date of the Board’s Order, remove
from the Respondent’s files any reference to the unlawful sus-
pensions, and within 3 days thereafter notify the aforemen-
tioned employees in writing that this has been completed and
that the suspensions will not be used against them in any way.
(e) Within 14 days from the date of the Board’s Order, remit
V-fund payments, including interest, owed to nonmembers and
members Les Haake, Dennis Hansen, Steve Hike, Danny
IATSE LOCAL 151 (SMG AND THE FREEMAN COS. D/B/A FREEMAN DECORATING SERVICES, INC.) 29
Ladely, and Anthony Polanka, and within 3 days thereafter
notify the aforementioned employees in writing that this has
been completed.
(f) Within 14 days after service by the Region, post at its fa-
cility in Lincoln, Nebraska, copies of the attached notice
marked “Appendix.”31 Copies of the notice, on forms provided
by the Regional Director for Region 14, Subregion 17, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees and members are customarily posted. In
addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since September 29,
2012.
(g) 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 has taken to comply.
Dated, Washington, D.C. June 20, 2014
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
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 activi-
ties.
WE WILL NOT fail and refuse to refer employees from our ex-
clusive hiring hall, who are or rightfully should be on our refer-

31 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ral list, for work with employers because those individuals
exercised the rights guaranteed to them under Section 7 of the
Act.
WE WILL NOT discriminate against nonunion employees by
granting priority to union members for job referrals to employ-
ers, thus attempting to cause or cause those employers to dis-
criminatorily fail to employ employees because of their status
as nonunion members.
WE WILL NOT maintain unlawful rules and policies that au-
thorize us to refuse to refer employees for work from our exclu-
sive hiring hall until he or she has satisfied an unpaid fine
and/or assessment.
WE WILL NOT suspend employees from our exclusive hiring
hall referral list, who are or rightfully should be on the referral
list, because those employees exercised the rights guaranteed to
them under Section 7 of the Act.
WE WILL NOT fail and refuse to remit V-fund payments to
members because those individuals exercised their rights guar-
anteed to them under Section 7 of the Act; or fail and refuse to
remit V-fund payments to nonmembers because of their mem-
bership status.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the rights guaranteed to them
by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
refer employees from our exclusive hiring hall, who are or
rightfully should be on our referral list, for work with employ-
ers because those individuals exercised the rights guaranteed to
them under Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
stop discriminating against nonunion employees by granting
priority to union members for job referrals to employers, thus
attempting to cause or cause those employers to discriminatori-
ly fail to employ employees because of their status as nonunion
members.
WE WILL, within 14 days from the date of the Board’s Order
rescind the unlawful rules and policies that authorize us to re-
fuse to refer employees for work from our exclusive hiring hall
until he or she has satisfied an unpaid fine and/or assessment.
WE WILL, within 14 days from the date of the Board’s Order
make whole employees suspended from our exclusive hiring
hall referral list, who are or rightfully should be on the referral
list, because those employees exercised the rights guaranteed to
them under Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order
remit V-fund payments to members who were denied those
payments because they exercised their rights guaranteed to
them under Section 7 of the Act; and remit V-fund payments to
nonmembers who were denied those payments because of their
membership status.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful suspen-
sions, and within 3 days thereafter notify, in writing, those em-
ployees who were suspended that this has been completed and
that the suspensions will not be used against them in any way.
WE WILL file a report with the Social Security Administration
allocating back payments to the appropriate quarters.
WE WILL compensate the affected employees (both members
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
and nonmembers) for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS
AND ALLIED CRAFTS OF THE UNITED STATES, ITS
TERRITORIES AND CANADA LOCAL NO. 151 (SMG AND
THE FREEMAN COMPANIES D/B/A FREEMAN
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CB-101524 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273-
1940.