Service Employees Local 9 (American Maintenance)

National Labor Relations Board - Board Decisions

Jul 19, 1991

303 N.L.R.B. 735 (N.L.R.B. 1991)

735
303 NLRB No. 113
SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all of the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
We note that the judge erred in his citation of the prior Board decision in-
volving the Respondent and Charging Party Yhya Mohamed. The correct cita-
tion is Service Employees Local 9 (Blumenfeld Enterprises), 290 NLRB 1
(1988).
2 We find no merit in the Respondent’s exceptions to the judge’s rec-
ommendation of a broad cease-and-desist order. For the reasons stated by the
judge in his decision, we agreed that a broad order is appropriate under the
criteria established in Hickmott Foods, 242 NLRB 1357 (1979). We also note
that the Respondent’s brief in support of exceptions incorrectly states that no
exceptions were filed to the judge’s finding in Blumenfeld Enterprises that the
Respondent violated Sec. 8(b)(1)(A) by refusing Mohamded’s request to see
hiring hall dispatch records. In fact, exceptions were filed in that case by the
Respondent, which was represented by the same attorney who represented it
here and signed the brief in support of exceptions.
1 The record establishes that the charge filed in Case 20–CB–8239 was
served on Respondent on January 10, 1990, by certified mail and that the
charge filed in Case 20–CB–8459 was served on Respondent on September
17, 1990, by certified mail. There is no evidence to support the complaint’s
allegation, denied by Respondent, that a first amended charge was filed by
Coen in Case 20–CB–8239 on February 28, 1990, and served by certified mail
on that date on Respondent.
2 A first amended charge and a second amended charge in Case 20–CB–
8329 was filed and served on Respondent on May 11 and 29, 1990, respec-
tively. The original charge in that case was served on Respondent on April
12, 1990.
Theatre and Amusement Janitors Union Local 9,
Service Employees International Union, AFL–
CIO (American Building Maintenance Co.,
Inc.) and James M. Coen and Yhya Mohamed.
Cases 20–CB–8239, 20–CB–8329, and 20–CB–
8459
July 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 28, 1991, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Theatre and Amusement
Janitors Union Local 9, Service Employees Inter-
national Union, AFL–CIO, San Francisco, California,
its officers, agents, and representatives, shall take the
action set forth in the Order.
Lucile L. Rosen, for the General Counsel.
William A. Sokol (Van Bourg, Weinberg, Roger &
Rosenfeld), for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
consolidated proceeding, in which a hearing was held on De-
cember 13, 1990, is based on complaints issued against The-
atre and Amusement Janitors Union Local 9, Service Em-
ployees International Union, AFL–CIO (the Respondent), by
the General Counsel of the National Labor Relations Board
(the Board), in Cases 20–CB–8239, 20–CB–8329, and 20–
CB–8459, on February 28, May 31, and October 30, 1990,
respectively, and on unfair labor practice charges filed
against Respondent by James M. Coen in Case 20–CB–8239
on January 9, 1990, and in Case 20–CB–8459 on September
14, 1990,1 and by Yhya Mohamed in Case 20–CB–8329 on
April 11, 1990.2
The complaints allege that during the time material, Re-
spondent represented a unit of theatre janitor employees em-
ployed by American Building Maintenance Company (the
Employer), for purposes of collective bargaining and that Re-
spondent and the Employer are party to a collective-bar-
gaining agreement covering the unit employees which,
among other things, requires Respondent to be the sole and
exclusive source of referrals of employee-applicants to the
Employer.
In Cases 20–CB–8239 and 20–CB–8459 the complaints al-
lege Respondent violated Section 8(b)(2) and (1)(A) of the
National Labor Relations Act (the Act), by operating its hir-
ing facility in a discriminatory and arbitrary manner when,
in or about the first weeks of August 1989 and September
1990, it failed and refused to refer Coen to employment with
the Employer because he refused to serve picket duty as or-
dered by Respondent and had filed unfair labor practice
charges against Respondent.
The complaint in Case 20–CB–8329 alleges that Respond-
ent violated Section 8(b)(2) and (1)(A) of the Act when, on
March 10 and 11, 1990, it failed and refused to refer
Mohamed to employment with the Employer because
Mohamed filed unfair labor practice charges against Re-
spondent with the Board and when, on or about April 26,
1990, it denied Mohamed access to its hiring hall. The com-
plaint in Case 20–CB–8329 further alleges that on or about
April 11, 1990, and continuing thereafter, Respondent re-
fused to permit Mohamed to view its hiring hall records
showing the names of applicants Respondent referred to jobs
and the names of the employers to whom they were referred,
and further alleges Respondent engaged in this conduct arbi-
trarily and because Mohamed filed unfair labor practice
charges with the Board, thereby violating Section 8(b)(1)(A)
of the Act.
In its answers to each of the aforesaid complaints, Re-
spondent denied having engaged in the alleged unfair labor
practices and in its answers to the complaints issued in Cases
20–CB–8239 and 20–CB–8329 alleged, as affirmative de-
fenses, that the complaints in those cases were barred by the
applicable statute of limitations and further alleged that those
cases should be deferred for action under the arbitration pro-
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent’s contention that the unfair labor practices alleged in the com-
plaints issued in Cases 20–CB–8239 and 20–CB–8329 should be deferred for
action under the grievance/arbitration provision of the Respondent’s collective-
bargaining agreement with the Employer lacks merit because the charges in
those cases were filed by individuals, whose interests are adverse to those of
the Respondent, and the Employer is not a party to the Board proceeding. See
Iron Workers Local 377 (M.S.B., Inc.), 299 NLRB 680 fn. 1 (1990), and cases
cited therein. Also, with respect to the complaint’s allegations in Case 20–CB–
8329, charging Respondent with violating Sec. 8(b)(2) and (1)(A) of the Act
for failing to refer Mohamed to the Employer because he filed an unfair labor
practice charge, deferral is inappropriate for the additional reason that this alle-
gation involves the question of employees’ access to the Board’s process, an
issue which is solely within the Board’s province to decide. See Laborers
Northern California Council (Baker Co.), 275 NLRB 278, 288 (1985).
vision of the collective-bargaining contract between Re-
spondent and the Employer.3 Respondent’s answers admit
that it is a labor organization within the meaning of Section
2(5) of the Act. Also Respondent stipulated that the Em-
ployer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and meets the Board’s applicable
discretionary jurisdictional standard. I therefore find that the
assertion of the Board’s jurisdiction in these cases will effec-
tuate the policies of the Act.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs filed by counsels for the General Counsel
and Respondent, I make the following
FINDINGS OF FACT
The Alleged Unfair Labor Practices
A. The Evidence
1. Background
Respondent is a labor organization of approximately 220
members who are employed within the city and county of
San Francisco, California, as janitors and in other positions
in the entertainment industry, i.e., theaters, race tracks, etc.
The Employer is a California corporation with its office and
place of business in San Francisco, California, where it is en-
gaged in the business of providing janitorial services to its
customers.
Respondent represents for purposes of collective bar-
gaining all the janitors employed by the Employer in theaters
within the city and county of San Francisco, California. Dur-
ing the time material Respondent and the Employer were
parties to a collective-bargaining agreement effective by its
terms from February 15, 1988, to February 14, 1991, gov-
erning the terms and conditions of employment of these jani-
tors. Section 2(b) of that agreement reads as follows:
Hiring: When new or additional employees are needed,
the Employer shall notify the Union of the number of
classifications of employees needed. Applicants for jobs
shall be referred by the Union to the Employer for em-
ployment on a nondiscriminatory basis.
The Employer shall be the sole judge of the com-
petency of all applicants and reserves the right to reject
any applicant referred by the Union. The Employer
agrees within seven (7) days of the date of hiring to no-
tify the Union of the name or names and addresses of
the persons hired and the theaters to which such per-
sons are assigned.
In hiring, the Employer shall give preference to appli-
cants previously employed in the building service in-
dustry in the local labor market area.
If the Union is unable to refer to the Employer suitable
applicants for employment within a reasonable period
of time, the Employer may then hire persons from other
sources provided the Employer on the date of hiring
shall notify the Union of the name and address of each
person hired.
Although at times the Employer may have deviated from
the terms of the above-described hiring agreement, Respond-
ent never agreed, expressly or implicitly by a course of con-
duct, that the Employer was not obligated to abide by the
plain language of the hiring agreement. Rather the record in-
dicates that in hiring janitors to work at its customers’ thea-
ters, the Employer generally abided by its agreement to hire
‘‘new or additional employees’’ exclusively from Respond-
ent’s hiring facility.
In referring employee-applicants to the Employer and
other employers, Respondent operates a hiring hall facility at
its office. The person in charge of the day-to-day operation
of that facility is David Wild, who occupies the position of
dispatcher. He is assisted in his job as dispatcher by Ann
Ybarreche, who occupies the position of assistant dispatcher.
Besides being the dispatcher for Respondent’s hiring hall fa-
cility, Wild also is employed by Respondent as a business
representative. Ybarreche, besides being Respondent’s assist-
ant dispatcher, is also employed by Respondent as its sole
clerical employee and in this capacity acts as Respondent’s
bookkeeper, secretary, and receptionist.
The record reveals that in her position as assistant dis-
patcher, Ybarreche does not decide which of the employee-
applicants should be referred to a job, when the Employer
requests a referral. Rather, Ybarreche relays the request to
Wild and Wild decides which applicant to refer to the Em-
ployer.
Respondent apparently takes the position that Ybarreche is
merely a clerical employee and does not occupy the position
of assistant dispatcher. In concluding she is Respondent’s as-
sistant dispatcher, I relied on the following: The admission
in Respondent’s answer to the complaint in Case 20–CB–
8239 that Ybarreche occupied the position of assistant dis-
patcher; the undisputed fact that occasionally Ybarreche
signs her name as ‘‘dispatcher’’ on the dispatch slips issued
to employers on behalf of the applicants who are dispatched
from Respondent’s hiring facility; during a general member-
ship meeting in 1989, the members were informed that David
Wild and Ann Ybarreche were Respondent’s dispatchers;
and, Coen’s testimony that when he visited Respondent’s fa-
cility in 1989 and 1990, he observed that both Wild and
Ybarreche acted as dispatchers.
The Employer has cleaning contracts with the owners and
operators of the Curran and Golden Gate theaters, where
plays are staged for public presentation. Whenever a play
opens at either one of these theaters, the Employer contacts
Respondent and requests Respondent to dispatch a crew of
janitors to the theater for the duration of the play. The Em-
ployer’s practice is to reemploy the same persons as janitors
at those theaters who have worked their previously. Respond-
ent has acquiesced in this policy. Thus, when a new play
opens at either of these theaters, the Employer asks Respond-
737SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
4 Based on the uncontradicted testimony of the Employer’s district manager,
Vera Barnard, a disinterested witness whose testimonial demeanor was good
(Tr. 159–160, 162–163, 188–190, 195–196).
5 Sec. (g) of art. XX of Respondent’s constitution and bylaws provides in
pertinent part that, ‘‘[t]he officers of the Union may request any member for
Continued
ent to refer the persons who, in the past, have been regularly
employed by the Employer at the theater, and Respondent
complies with this request.
The Employer has a cleaning contract with the American
Conservatory Theater (ACT) and, as in the case of the
Curran and Golden Gate theaters, the Employer regularly re-
employs the same persons as janitors at ACT, who have
worked there previously. In this regard, when ACT opens its
season in the fall of each year, the Employer either person-
ally contacts each regular member of ACT’s crew of janitors
and asks them to come to work, or contacts Respondent and
asks Respondent to dispatch ACT’s regular crew of janitors,
whom the Employer names. In those instances where the
Employer contacts ACT’s janitors personally, rather than
through the Respondent, it subsequently notifies Respondent
that it has gone ahead and reemployed ACT’s regular crew
of janitors for the new season.
Occasionally, one of the persons regularly employed by
the Employer at the Curran or Golden Gate Theater or at
ACT, become temporarily unavailable for work and must be
replaced. During the past 5 years, on several occasions when
this has occurred, the Employer has asked Respondent to dis-
patch a replacement to fill in for the regular member of the
crew who has become unavailable, and in doing so has
named the replacement janitor whom it wanted Respondent
to dispatch. If the named replacement requested was avail-
able for work, Respondent complied with the Employer’s re-
quest on each of these occasions, except in three instances,
infra, involving alleged discriminatees Coen and Mohamed.4
2. Coen’s unfair labor practice charges (Cases 20–CB–
8239 and 20–CB–8459)
Coen has been a janitor for over 20 years and a member
of Respondent since approximately 1974. He has been regu-
larly employed for the past 17 years by the Employer as a
janitor as a part of the regular crew of janitors employed at
ACT during its yearly repertory season. He was initially re-
ferred to this job in 1973 by Respondent and his terms and
conditions of employment during his entire period of em-
ployment on this job have been governed by collective-bar-
gaining agreements between Respondent and the Employer.
ACT’s yearly season for staging its plays begins in or
about September and lasts through about May or June. Since
Coen is not a new or an additional employee of the Em-
ployer with respect to his employment at ACT, but is regu-
larly employed as part of ACT’s regular crew of janitors, the
Employer at the start of each new season usually personally
contacts Coen and the other members of the janitorial crew
directly concerning their employment at ACT, rather than re-
quest Respondent to dispatch them. However, the record re-
veals that at the start of ACT’s 1987 and 1988 seasons Coen
received dispatch slips from Respondent when he went back
to work for ACT for the Employer at the start of ACT’s
1987 and 1988 seasons.
Since approximately 1979 Respondent has been engaged
in a labor dispute with a chain of movie theaters owned and
operated by United Artists. Respondent from the start of that
dispute required that each of its members spend a certain
amount of time picketing United Artists’ theaters. Pursuant
to Respondent’s requests Coen picketed at various times
from 1979 to 1982. In 1982 Coen notified Respondent he no
longer intended to obey their requests to picket. Thereafter,
from 1982 through 1989, he generally refused Respondent’s
requests to picket on its behalf at United Artists’ theaters, ex-
cept for two or three occasions, including an 8-month period
in 1987–1988, when he did comply with Respondent’s re-
quests to picket.
On those occasions during the period from 1982 through
1989 when Coen refused Respondent’s requests to picket,
intraunion charges were filed against him alleging he vio-
lated Respondent’s constitution and bylaws by refusing to
picket. In the latter part of the 1980s such charges were filed
against Coen in 1985, 1986, 1988, and 1989. None of the
charges filed with Respondent against Coen for refusing to
picket ever resulted in Respondent finding him guilty as
charged, nor has Respondent ever fined or otherwise dis-
ciplined him for his failure to picket. However, during a
hearing before Respondent’s executive board held in August
1987 concerning a charge filed against Coen for refusing to
picket, the Respondent’s vice president Frank Cataldo sug-
gested that if Coen did not want to picket that his job should
be taken away, that he should not be allowed to work.
Coen’s lawyer, who was present, informed Respondent’s ex-
ecutive board that if this occurred Coen would sue Respond-
ent. There is no evidence that Respondent ever interfered
with Coen’s regular employment with the Employer at ACT.
In 1989 during a hearing by Respondent’s executive board
concerning intraunion charges filed against Francis Holland
for refusing to obey Respondent’s order to picket a United
Artists theater, Respondent’s president, Charles Huber,
warned Holland that if he did not picket Respondent would
take his job. However, as in Coen’s case, there is no evi-
dence that Respondent ever interfered with or attempted to
interfere with Holland’s regular job with the Employer at
ACT.
The circumstances leading up to and surrounding the
charges filed with Respondent against Coen in 1989 for his
refusal to picket, and what occurred at the hearing before the
Respondent’s executive board concerning those charges, may
be briefly summarized as follows. On June 14, 1989, Re-
spondent’s secretary-treasurer Alfred Kelly notified Coen, by
letter, that Coen had been assigned to picket at one of the
United Artists theaters commencing on Wednesday, June 21,
1989, from 5 to 8 p.m. and on each Wednesday thereafter,
and warned Coen that Respondent intended to check the
picket line and that if Coen was not at his picketing assign-
ment he would be cited under Respondent’s constitution and
bylaws. Coen did not comply with this request. As a result,
Larry Elizarde, one of Respondent’s business representatives,
who is also employed as its picket line coordinator, filed a
charge with Respondent against Coen for failing to picket.
On July 27, 1989, Secretary-Treasurer Kelly notified Coen,
by letter, to appear before Respondent’s executive board on
August 14, 1989, ‘‘to answer charges for not performing
your picket assignment in accordance with Article XX Sec-
tion (g) and Article XVII, Section 11 of the [Respondent’s]
Constitution and Bylaws.’’5 More specifically, the letter in-
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picket duty. . . . Each member upon notification shall report to the Union of-
fice within twenty-four (24) hours after receipt of notification and tell the offi-
cers in charge of picket assignments the time he can report and the best day
suited for him. . . . Any member after being notified by the Union who fails
to report or after reporting refuses to do his allotted time on the picket line
shall be fined at the minimum rate of $5 per hour for every hour he was re-
quired to and failed to picket.’’ Sec. 11 of art. XVII of Respondent’s constitu-
tion and bylaws provides in substance that the basis for charges against mem-
bers for which they shall stand trial shall consist of disobedience to the regula-
tions, rules, mandates, and decrees of Respondent.
6 Janitors employed by the Employer as working foreman are included in
the unit covered by the Employer’s collective-bargaining agreement with Re-
spondent.
formed Coen that he had failed to carry out his obligation
to perform picket line duty as requested by Respondent at
one of the United Artists’ theaters on several Wednesdays
during June and July 1989. The aforesaid charges against
Coen were heard by Respondent’s executive board on Au-
gust 14 and 28, 1989.
During the executive board hearing Coen accused Re-
spondent of not referring him to two jobs at the Golden Gate
theater because of his refusal to picket. He stated he had not
been referred to those jobs even though the Employer had re-
quested him by name and that Respondent had referred new
applicants to those jobs instead of him. Respondent’s sec-
retary-treasurer, Kelly, responded by stating it was too late
for Respondent to do anything about the Employer’s request
that he be dispatched to the Golden Gate Theater, because
the show being staged at the Golden Gate theater had already
closed, but that in any event Respondent had not been obli-
gated to refer him to that theater so long as in referring the
other applicants instead of Coen Respondent had applied the
same practices and rules for every one. In addition, either
Kelly or Respondent’s vice president, Cataldo, informed
Coen that Coen had been recently employed for 9 months
and the applicants referred by Respondent to the Golden
Gate theater had not been employed as frequently.
The executive board’s trial of Coen concluded on August
28, 1989, with a majority of the executive board voting to
continue the hearing concerning the charges against Coen to
October 2, 1989, because it was the majority’s view that
Coen by that date would be again employed by the Employer
at ACT, and that if he then refused to picket the executive
board would reinstate the proceedings against him.
In 1989 Coen’s job with the Employer for ACT ended for
the 1988–1989 season in late May 1989. Subsequently, dur-
ing the summer of 1989, from June into September, when he
resumed his regular employment with ACT at the start of
ACT’s 1989–1990 season, Coen, as described infra, sought
work through Respondent’s hiring facility and Respondent
offered him just one job referral which he rejected.
On or about June 1, 1989, Coen visited Respondent’s of-
fice and spoke to Assistant Dispatcher Ybarreche. He told
her he was looking for work and asked to be dispatched to
one of the theaters where plays were being staged during the
summer months. Ybarreche informed him that the Golden
Gate Theater was opening shortly and she would submit his
name to Wild for dispatch to that theater. Coen returned to
Respondent’s hiring facility later in June 1989, after having
failed to receive a job referral, and asked Ybarreche if he
could be dispatched to the Curran Theater or to any other
theater where plays were being staged, which needed fill-in
janitors. Ybarreche answered by stating she would submit his
name to Wild and discuss his request with Wild. Ybarreche
also told Coen: ‘‘You know what happened in the last in-
stance in June, you did not receive work. It’d be much easier
for me to get you work if you return to the picket line.’’
Late in June 1989 Vera Barnard, the Employer’s district
manager, personally contacted Coen and, without going
through Respondent’s hiring facility, hired him to work as
the working foreman for the run of a play at the Orpheum
Theater.6 Coen worked there for the Employer late in June
as its janitors’ foreman for 2 days and then early in July
1989, for the play’s remaining 6 days, was replaced by an-
other foreman, but remained on the job as a janitor. As de-
scribed supra, Coen was not dispatched to this job by Re-
spondent, but was hired directly by the Employer. However,
Respondent learned of his employment immediately after it
began, apparently from the Employer. Respondent did not
object to his employment as a janitor at the Orpheum Theater
and on July 5, 1989, issued to the Employer a slip dis-
patching Coen to the Employer at the Orpheum Theater for
the remainder of the run of the play being staged there.
In mid-July 1989, following the conclusion of his job at
the Orpheum Theater, Coen went to Respondent’s office and
asked Ybarreche to be dispatched to the Golden Gate The-
ater. She reduced Coen’s request into writing and told him
she would place it on Wild’s desk and that they would get
back to him. Neither Ybarreche nor Wild got back to him.
In August 1989, Vera Barnard, the Employer’s district
manager, telephoned Respondent’s office and spoke to
Ybarreche. She asked Ybarreche to dispatch a crew of jani-
tors to the Golden Gate Theater for the play To The Woods
which was scheduled to open there in 2 to 3 days. Barnard
asked Ybarreche to dispatch the three janitors who regularly
worked for the Employer at the Golden Gate Theater and
asked that a fourth janitor also be dispatched. She specifi-
cally asked that Coen be the fourth janitor dispatched.
Ybarreche replied she would check to see whether Respond-
ent could dispatch Coen, and then remarked: ‘‘You know
how they feel about Jim. I don’t know if he’ll be able to go
out.’’ (Tr. 153–157, 173–175.)
The above description of Barnard’s conversation with
Ybarreche is based on Barnard’s uncontradicted testimony.
Barnard was a disinterested witness and her testimonial de-
meanor was good. I have considered that Coen testified it
was in September 1989 when Barnard told him she intended
to ask that Respondent dispatch him to the Golden Gate The-
ater. However, I am persuaded that the testimony of Barnard,
a disinterested witness, was more reliable than Coen’s as to
the date when she made this request and find it was in Au-
gust 1989, not September 1989, when Barnard informed
Coen she intended to ask Respondent to dispatch him to the
Golden Gate Theater. Immediately after Coen was informed
of this by Barnard, he spoke to Ybarreche and told her that
a play would be opening at the Golden Gate Theater and he
was requesting to be dispatched to that theater. Ybarreche re-
duced his request into writing and told him she would dis-
cuss his request with Wild.
Coen was not dispatched to the Golden Gate Theater, as
requested by Barnard. Another applicant was dispatched by
Respondent instead. Subsequently, in August 1989, after a
general membership meeting, Coen spoke to Wild at Re-
spondent’s hiring facility. He told Wild he needed work and
739SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
7 In rejecting the dispatch because Lewis & Taylor owed him money, Coen
was referring to the fact that at one time in the past he had been employed
by Lewis & Taylor as a foreman and Lewis & Taylor had refused to reim-
burse him for his services at the higher rate of pay set forth in the contract
with Respondent for a foreman.
8 The above description of Barnard’s conversation with Ybarreche is based
on Barnard’s uncontradicted testimony. Barnard, whose testimonial demeanor
was good, was a disinterested witness. Barnard initially testified that the job
she spoke to Ybarreche about in early September 1990 and asked that Coen
and three other named applicants be referred to was for a play to be staged
at the Orpheum Theater. However, after refreshing her memory by looking at
the Employer’s business records, Barnard corrected her prior testimony; she
testified, ‘‘I was wrong. It was the Golden Gate Theater.’’
had asked Respondent to dispatch him to the Golden Gate
Theater. Wild replied that a crew had already been picked
for that job. Their conversation was interrupted when Wild
received a telephone call from the janitor foreman at the
Curran Theater who wanted Respondent to dispatch a janitor
to that theater and, in response to Wild’s inquiry as to who
the foreman wanted Wild to dispatch, the foreman gave Wild
the name of an individual whom Wild stated he would dis-
patch. Coen, hearing this conversation, asked to be dis-
patched to the Curran Theater, explaining again that he need-
ed work. Wild stated he would find something for him. Later
that evening Wild mailed Coen a dispatch slip for a job at
television station KRON. On receipt of the dispatch slip
Coen telephoned Wild and rejected the dispatch. He ex-
plained to Wild that he had previously worked for Lewis &
Taylor, the employer that had the contract with KRON to
perform its janitorial work, and had not been paid by Lewis
& Taylor for his work.7
Coen’s janitor job with the Employer for ACT during
ACT’s 1989–1990 season ended in late June 1990, when
ACT concluded its season.
During the summer of 1990, from July until late in Sep-
tember, when Coen resumed work for the Employer at ACT
for ACT’s 1990–1991 season, he worked as a janitor for the
Employer for approximately 36 days in July and August at
the Orpheum Theater for the run of the play ‘‘Oba Oba.’’
In the first week of September 1990, Coen went to Re-
spondent’s hiring facility and told Assistant Dispatcher
Ybarreche he was looking for a job and asked to be dis-
patched to the Golden Gate Theater to work as a janitor for
the Employer for the run of the play which was scheduled
to open at that theater. Coen also informed Ybarreche that
if there was no job available for him at the Golden Gate
Theater that he would like Respondent to refer him to a job
at the Bay Meadows Race Track or to any other vacation or
fill-in jobs available during September 1990. Ybarreche
wrote down his request and stated she would put it on Wild’s
desk.
Early in September 1990, the Employer’s district manager,
Vera Barnard, telephoned Respondent’s hiring facility and
asked that four janitors be dispatched to the Employer to
work at the Golden Gate Theater. Barnard spoke to
Ybarreche and, in making this request, gave her the names
of each of the four janitors she wanted Respondent to dis-
patch. One of the persons whom she named was Coen. In
response to Barnard’s request that Coen be referred to this
job, Ybarreche told Barnard: ‘‘You know how they feel
about [Coen]. I don’t know if he’ll be able to go out.’’ Bar-
nard answered, ‘‘fine, just do what you can.’’8
In September 1990, pursuant to Barnard’s aforesaid re-
quest, Respondent dispatched four janitors to the Employer
to work at the Golden Gate Theater. Coen was not among
those dispatched.
In September 1990, after discovering that janitors other
than himself had been dispatched by Respondent to the Em-
ployer to work at the Golden Gate Theater, Coen telephoned
Wild and complained about Respondent’s failure to dispatch
him to that job. Coen asked Wild why he had not been dis-
patched by Respondent to the Golden Gate Theater inasmuch
as he had previously spoken to Ybarreche and had requested
that Respondent dispatch him there when the play opened.
Wild replied that the crew of janitors had already been cho-
sen for the Golden Gate Theater and were already at work
there. Wild also indicated he was surprised to learn Coen
was looking for a job and stated he did not know Coen had
requested to be referred to the Golden Gate Theater and also
stated that Coen’s name had not been placed on Respond-
ent’s out-of-work list. Coen answered that he was looking for
work and asked Wild to be dispatched to the Bay Meadows
Race Track or to any other available job. Wild asked if Coen
intended to go back to work for the Employer at ACT and
asked if he should dispatch him to ACT. Coen stated he in-
tended to return to work for the Employer at ACT at the start
of ACT’s 1990–1991 season. Wild told Coen he would dis-
patch him to a job at a television station, but that Coen usu-
ally declined those jobs. Coen explained that he did not like
working for Lewis & Taylor, but would be willing to take
a janitor’s job at television stations for whom Lewis & Tay-
lor did not perform the janitorial work. The conversation
ended with Wild stating he would attempt to get Coen a job
at the Bay Meadows Race Track and would get back to him.
Subsequently, Wild failed to contact Coen concerning this
matter.
3. Mohamed’s unfair labor practice charge (Case 20–
CB–8329)
Yhya Mohamed has been working as a janitor for 18
years. During the time material, he was not a member of Re-
spondent. He had been a member from 1972 until 1985.
He filed the unfair labor practice charge, which is the sub-
ject of the instant proceeding, on April 11, 1990, and it was
received by Respondent on April 13, 1990. In October 1987,
he filed an unfair labor practice charge against Respondent
in Case 20–CB–7404. In December 1987, based on that
charge, a complaint issued alleging Respondent was refusing
to permit Mohamed to view its hiring hall records, in viola-
tion of Section 8(b)(1)(A) of the Act. Subsequently, a hear-
ing was held before an administrative law judge who, in per-
tinent part, found: On November 17, 1987, after having been
informed by Respondent’s president that Respondent’s hiring
hall had no work for him, Mohamed indicated he thought
others had been dispatched out of order when he should have
been dispatched and asked Respondent’s president to furnish
him a copy of Respondent’s dispatches for the past 6
months; Respondent’s president replied by informing
Mohamed that Respondent could not give him this informa-
tion without a court order and referred him to Respondent’s
attorney; and, when Mohamed attempted to reach Respond-
ent’s attorney by telephone, the attorney failed to return his
several telephone calls. The judge, based on these findings,
and Respondent’s status as the employees’ exclusive bar-
gaining agent, concluded that Respondent had violated Sec-
tion 8(b)(1)(A) of the Act by arbitrarily refusing to provide
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mohamed with copies of dispatches for a specified 6-month
period and recommended that Respondent be ordered to
cease and desist from ‘‘refusing arbitrarily to honor requests
for information regarding referrals for employment by failing
to provide Yhya Mohamed with copies of the dispatch slips
reflecting dispatches from its hiring hall for a discrete 6-
month period,’’ and also recommended that Respondent,
‘‘upon request, provide Yhya Mohamed with copies of dis-
patch slips as he requested for the 6-month period preceding
November 16 and 17, 1987.’’ The Board in its Decision and
Order in Case 20–CB–7404, issued on July 29, 1988, af-
firmed the judge’s aforesaid findings and conclusions, and
adopted her recommended Order. Service Employees Local 9
(Blumenfeld Enterprises), 289 NLRB No. 1 (not published in
bound volumes).
Late in February 1990, Robert Miguel, employed by the
Employer as the janitor foreman at the Golden Gate Theater,
informed Vera Barnard, the Employer’s district manager, that
he would be absent from work on March 10–11, 1990, be-
cause of his vacation and recommended he be replaced on
those days by Mohamed, whom he explained had worked as
a janitor for him previously at the Golden Gate Theater in
February 1990 and had done a good job.
On February 23, 1990, Barnard sent a letter, dated Feb-
ruary 23, 1990, to Ann Ybarreche, Respondent’s assistant
dispatcher, stating that the Employer requested Mohamed be
dispatched as a janitor to the Golden Gate Theater to work
on March 10–11, 1990, and explained to Ybarreche that
Mohamed had been dispatched by Respondent to that theater
on February 14, 1990, and had performed satisfactorily.
Also, at about the same time as she sent this letter, Barnard
telephoned Ybarreche and told her Miguel was going on va-
cation and because of this the Employer needed to replace
him on the days he would be absent from work and wanted
to replace him with Mohamed since Mohamed had worked
at the Golden Gate Theater previously.
Respondent did not dispatch Mohamed to the Golden Gate
Theater to work on March 10–11, as requested by Barnard.
Instead, it dispatched another person to that job. No expla-
nation was offered by Respondent to Barnard for Respond-
ent’s failure to honor Barnard’s request and Barnard never
asked for an explanation.
On or about March 9, 1990, Mohamed went to Respond-
ent’s hiring facility and spoke to dispatcher Wild about being
dispatched, pursuant to Barnard’s request, to the Golden Gate
Theater. He informed Wild that Barnard had requested Re-
spondent to refer him to the Golden Gate Theater for 2 days
of work and told Wild he would like to be dispatched to that
job. Wild replied that Respondent had already referred an-
other applicant to that job. Mohamed protested that the Em-
ployer had specifically asked that he be dispatched. Wild an-
swered, ‘‘I don’t care. I just sen[t] somebody else.’’
It is undisputed that during the period from January
through April 1990, Mohamed was registered for work with
Respondent and that during this period he advised represent-
atives of Respondent on several different occasions that he
was seeking work through Respondent’s hiring facility as a
janitor. During this period Respondent dispatched him to two
jobs; a 1-day job at the Golden Gate Theater in mid-February
and to a television station on an unspecified date in Feb-
ruary.
Prior to March 14, 1990, Mohamed was available for
evening, as well as morning, employment. On about March
14, 1990, a labor organization, other than Respondent, dis-
patched him to a janitor’s job with Golden State, a cleaning
contractor, which required that he work during the evening
hours. He has been employed by Golden State regularly—5
days each week—in the evenings from March 14, 1990,
through the date of the hearing.
Subsequent to Mohamed’s March 14, 1990 employment
with Golden State, he still sought referrals from Respond-
ent’s hiring facility. However, he made it known to Respond-
ent that because he was now regularly employed during the
evening hours by Golden State, he was now only interested
in being dispatched by Respondent to morning janitorial jobs.
Dispatcher Wild generally responded by informing Mohamed
that because he was not able to work evenings Respondent
had no work for him since there were no morning jobs avail-
able to refer him to. However, as described infra, it is undis-
puted that on two different occasions Wild indicated to
Mohamed that Mohamed’s nonmembership in Respondent
and his unfair labor practice charges against Respondent
played a part in Respondent’s failure to refer him for em-
ployment.
On March 16, 1990, Mohamed visited Respondent’s hiring
facility for the purpose of speaking to Wild about being re-
ferred to a job. Present was Negi Ahmed, Mohamed’s friend.
Ahmed intended to be away from the area for a while and,
in Mohamed’s presence, asked Wild to refer Mohamed to his
janitor job for the period he would be absent while out of
town. Wild told Ahmed that Mohamed should speak up for
himself. Mohamed spoke up and told Wild he had come to
Respondent’s hiring facility previously in search of work and
had been informed by Wild that there was no work for him
and would be dispatched when something came up, but that
Wild subsequently had refused to dispatch him to a job at
the Golden Gate Theater even though the Employer had
asked for him by name, and now Wild was apparently going
to refuse to dispatch him as Ahmed’s replacement. Mohamed
asked ‘‘why’’ Wild had not dispatched him to the Golden
Gate Theater job and now did not want to refer him to a job
as Ahmed’s replacement. Wild answered by stating
Mohamed was not a member of Respondent and had filed a
charge against Respondent. Mohamed stated that he would
pay his dues to Respondent, if that was what Wild wanted,
and asked to see Respondent’s dispatch records. In this last
regard, Mohamed stated he felt he should be getting work
from Respondent’s hiring facility and stated he had a right
to look at Respondent’s dispatch records. Wild answered that
Respondent’s officials did not intend to let him see Respond-
ent’s dispatch records and told him if he wanted to see them
he should have his lawyer come to Respondent’s hiring facil-
ity and speak to Wild. The conversation ended with Wild
telling Mohamed that Mohamed did not have the right to be
in Respondent’s hiring facility because he was not a member
of Respondent and told him to ‘‘just get out.’’ Mohamed left.
Subsequently Mohamed returned to Respondent’s hiring fa-
cility on several different occasions and was not refused en-
trance nor instructed to leave.
In April 1990, the date in April not specified in the record,
Mohamed visited Respondent’s hiring facility for the purpose
of joining Respondent. He spoke to Assistant Dispatcher
Ybarreche who, as described supra, also was Respondent’s
741SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
9 As I have found supra, Mohamed filed his charge in this case against Re-
spondent on April 11, 1990, and it was received by Respondent on April 13,
1990.
10 In analyzing Respondent’s motivation for failing and refusing to refer
Coen and Mohamed, pursuant to the Employer’s requests, I have been guided
by the Board’s decision in Wright Line, 251 NLRB 1083 (1980). See Team-
sters Local 287 (Consolidated Freightways), 300 NLRB 539, 548 fn. 20
(1990); Operating Engineers Local 77 (Potts & Callahan), 298 NLRB 8, 10
fn. 4 (1990).
sole clerical employee. He told Ybarreche he wanted to be-
come a member of Respondent. Ybarreche told him he
would have to pay $100. Mohamed paid her the $100. A few
days later, when he returned to the facility, Ybarreche re-
turned his $100. She explained to him she had gotten herself
into trouble by taking his money inasmuch as she was not
supposed to take his money because he had filed a charge
against Respondent.
On April 26, 1990, Mohamed went to Respondent’s hiring
facility to seek employment and, as he was entering the facil-
ity, met Wild, who was on his way out. As they crossed
paths, Wild, who appeared to be angry when he spoke to
Mohamed, remarked to Mohamed, ‘‘you went to the Labor
Board to file a complaint.’’9 Mohamed answered, ‘‘yes,’’
and Wild stated that since Mohamed had filed a charge with
the Board he would see him in court, that he did not intend
to give him any work. Then when Mohamed asked, ‘‘there’s
no work for me,’’ Wild answered, ‘‘no, I’ll see you in court.
You went to the [Board], you filed a charge, I’ll see you in
court.’’
On May 15, 1990, Mohamed sent a letter, dated May 15,
1990, to Wild requesting that he be allowed to review Re-
spondent’s ‘‘dispatch records for the past six months in order
to find out why I have not been dispatched to jobs.’’ On No-
vember 13, 1990, Mohamed sent Wild another letter dated
November 13, 1990, which was identical in content to the
above-described May 15 letter. Neither Wild nor anyone
else, on behalf of Respondent, answered those letters. Re-
spondent has not furnished Mohamed with the requested in-
formation nor is there evidence that Respondent has other-
wise notified him that it is willing for him to review the re-
quested dispatch records.
B. Discussion
1. Respondent refuses to refer Coen and Mohamed for
employment with the Employer
A union may lawfully administer a referral system for the
benefit of employers seeking workers and employees seeking
jobs. Teamsters Local 357 v. NLRB, 365 U.S. 667, 672–677
(1961). However, where, as here, a union operates an exclu-
sive job referral system, the union violates Section 8(b)(1)(A)
and (2) of the Act if it fails or refuses to refer applicants for
employment because of discriminatory considerations. Id. at
676–677. Accordingly, a union which operates an exclusive
hiring facility violates Section 8(b)(1)(A) and (2) if it fails
to dispatch an applicant to a job because the applicant chal-
lenges union policy, including union policy which requires
the applicant to picket on the union’s behalf, or fails to dis-
patch an applicant to a job because the applicant has filed
an unfair labor practice charge against the union with the
Board. See, e.g., NLRB v. Operating Engineers Local 925,
460 F.2d 589 (5th Cir. 1972); Standard Fruit & Steamship
Co., 211 NLRB 121 (1974); Plumbers Local 17 v. NLRB,
575 F.2d 585, 586 (6th Cir. 1978); NLRB v. Shipbuilders,
391 U.S. 418 (1968).
The record in this case, as described supra, establishes Re-
spondent operates a hiring facility for the benefit of employ-
ers and employees and that pursuant to its collective-bar-
gaining agreement with the Employer administers an exclu-
sive referral system whereby the Employer is obligated to
hire its theater janitors exclusively from Respondent’s hiring
facility. The General Counsel contends that on two occa-
sions, once in August 1989 and again in September 1990,
Respondent violated Section 8(b)(2) and (1)(A) of the Act by
failing and refusing to refer Coen to the Employer because
he refused to picket on Respondent’s behalf. The General
Counsel also contends Respondent violated Section
8(b)(1)(A) and (2) in March 1990 by failing and refusing to
refer Mohamed to the Employer because he filed an unfair
labor practice charge against Respondent with the Board.
Having found that in August 1989 and September 1990,
Respondent failed and refused to dispatch Coen to work as
a janitor at the Golden Gate Theater, as requested by the
Employer, and having found that in March 1990 Respondent
failed and refused to refer Mohamed to work as a janitor at
the Golden Gate Theater, as requested by the Employer, and
having found that during the times material Coen and
Mohamed were registered for work at Respondent’s exclu-
sive hiring facility, the remaining question for decision is
whether Respondent engaged in the aforesaid conduct be-
cause Coen refused Respondent’s instruction to picket and
because Mohamed filed an unfair labor practice charge
against Respondent, as alleged by the General Counsel and
disputed by Respondent. If Respondent failed to refer Coen
and Mohamed for these reasons, its conduct violated Section
8(b)(2) and (1)(A) of the Act. E.g., Plasterers Local 908,
185 NLRB 879 (1970), and Standard Fruit & Steamship Co.,
211 NLRB 121 (1974). I am of the opinion, for the reasons
below, that the General Counsel has established a prima facie
case of unlawful motivation that the Respondent has failed
to rebut, thus Respondent’s alleged misconduct violated Sec-
tion 8(b)(2) and (1)(A) of the Act.10
a. Respondent violated Section 8(b)(2) and (1)(A) of the
Act by refusing to dispatch Coen to the Employer
The record contains prima facie proof that it was Respond-
ent’s animus toward Coen for refusing to obey Respondent’s
instruction to picket, which motivated Respondent’s decision
to refuse to refer Coen to the Golden Gate Theater in August
1989 and September 1990, even though the Employer spe-
cifically requested Respondent to refer him to those jobs.
The following factors, viewed in their totality, support this
inference.
It is undisputed that during the times material, Respondent
was hostile toward Coen because on several occasions be-
tween 1982 and 1989 he refused to obey Respondent’s in-
struction to picket the United Artists’ theaters in support of
Respondent’s labor dispute with that employer. It is also un-
disputed that during June and July 1989 Coen once again re-
fused Respondent’s order to picket a United Artists theater,
and that the Respondent’s business representative responsible
for coordinating Respondent’s picketing of the United Artists
theaters filed an intraunion charge against Coen in July 1989
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 As set forth supra, in evaluating Respondent’s motivation for not dis-
patching Coen to the Employer’s Golden Gate Theater jobs in August 1989
and September 1990, I relied, among other things, on various remarks made
by Respondent’s assistant dispatcher, Ybarreche, to Coen and Barnard, in re-
sponse to their requests that Coen be dispatched by the Respondent to the Em-
ployer. I am of the opinion that there is a sufficient basis for inferring that
Ybarreche, in responding to their requests, was speaking with actual knowl-
edge of Respondent’s motivation because she was employed by Respondent
as its assistant dispatcher and, as such, with Dispatcher Wild was responsible
for the operation of Respondent’s hiring facility. The record also reveals that
the majority of Coen’s referral requests were made by Coen to Ybarreche who
communicated his requests to Wild and that each one of Barnard’s requests
to Respondent to refer Coen was communicated by her to Ybarreche, who,
presumably during the normal course of business, relayed those requests to
Dispatcher Wild. In view of all the above circumstances, it is appropriate to
infer that Wild informed his assistant, Ybarreche, of his reason or reasons for
not referring Coen to the Golden Gate Theater in August 1989 and September
1990, despite the fact that Barnard had specifically asked that Coen be referred
to those jobs.
12 There is no evidence that Respondent has interfered with or attempted to
interfere with Coen’s or Holland’s regular employment with the Employer at
ACT. This, however, does not detract from the fact that Respondent’s presi-
dent and vice president were sufficiently angered by Coen’s and Holland’s re-
fusals to obey Respondent’s orders to picket, so as to threaten them with the
loss of employment if they continued to refuse to picket.
charging him with violating Respondent’s constitution and
bylaws by failing to perform his picket line assignment at a
United Artists theater during the months of June and July
1989.
Respondent’s officers indicated to Coen and another mem-
ber of Respondent, who, like Coen, had disobeyed Respond-
ent’s order to picket a United Artists theater, that Respondent
intended to interfere with their employment if they continued
to refuse to picket. In August 1987 Respondent’s vice presi-
dent, Cataldo, warned Coen that if he disobeyed Respond-
ent’s order to picket he would not be allowed to work, and,
in 1989 Respondent’s member Francis Holland was warned
by Respondent’s president Huber that Respondent would
interfere with his employment, if he did disobey Respond-
ent’s order to picket.
That Coen’s refusal to obey Respondent’s order to picket
was a consideration relied on by Respondent in failing and
refusing to dispatch him to the Employer’s August 1989 and
September 1990 Golden Gate Theater jobs, is further dem-
onstrated by Assistant Dispatcher Ybarreche’s admission to
Coen in June 1989 that, ‘‘it’d be much easier for me to get
you work if you return to the picket line.’’
Also relevant in assessing Respondent’s motivation for not
referring Coen to the Employer’s August 1989 and Sep-
tember 1990 Golden Gate Theater jobs, despite District Man-
ager Barnard’s specific request that he be dispatched to those
jobs, is Assistant Dispatcher Ybarreche’s admissions to Bar-
nard that in view of Respondent’s hostility toward Coen for
not picketing on Respondent’s behalf, Ybarreche did not
know if Respondent would dispatch Coen, as requested by
Barnard, to the Golden Gate Theater. In this regard, it is un-
disputed that when, in August 1989 and September 1990,
Barnard asked Ybarreche to refer Coen to the Golden Gate
Theater, Ybarreche replied by stating, ‘‘You know how they
feel about [Coen]. I don’t know if he’ll be able to go out.’’
The record establishes that when Ybarreche remarked, ‘‘you
know how they feel about [Coen],’’ that the only conceivable
thing she could have been referring to was Respondent’s ad-
mitted hostility toward Coen for refusing to obey Respond-
ent’s order to picket United Artists’ theaters.11
The inference that Respondent was unlawfully motivated
when it ignored District Manager Barnard’s requests that
Coen be referred to the Golden Gate Theater in August 1989
and September 1990 is further supported by Respondent’s
deviation from its past practice in similar situations. It is un-
disputed that in the past when Barnard needed someone to
fill in as a janitor at either the Curran or Golden Gate Thea-
ters and asked Respondent to dispatch a particular applicant,
whom she named, that prior to Barnard’s August 1989 re-
quest for Coen, Respondent had complied with Barnard’s re-
quest on each occasion, if the applicant requested was avail-
able for work. Respondent offered no evidence to explain
why it deviated from this practice in the instant case.
Lastly, the inference that Respondent’s failure to dispatch
Coen to the Golden Gate Theater in September 1990 was un-
lawfully motivated is further supported by the false reason
advanced by Respondent when it gave Coen an explanation
for not dispatching him to that job. In September 1990 when
Coen complained to Dispatcher Wild about Respondent’s
failure to dispatch him to the Golden Gate Theater job and
asked why he had not been dispatched to that job, Wild an-
swered he had dispatched another applicant to the job and in-
dicated he had done so because he had not known Coen was
looking for work or wanted to be dispatched to the Golden
Gate Theater job, and also remarked that Coen’s name had
not even been placed on Respondent’s out-of-work list. This
explanation is false inasmuch as it is undisputed that pre-
viously, during the first week in September 1990, Coen had
visited Respondent’s hiring facility and told Assistant Dis-
patcher Ybarreche he was looking for work and specifically
asked to be dispatched to the Golden Gate Theater to work
for the Employer for the run of a play which he explained
was scheduled to open at that theater. Ybarreche replied by
reducing his request into writing and stating she would place
it on Wild’s desk. Presumably Ybarreche did this and Wild
received the request. Respondent presented no evidence that
this was not the case. Therefore, the reasons which Wild of-
fered Coen to justify the referral of another person instead
of Coen to the September 1990 Golden Gate Theater job
were false, and this lends further support to the inference that
Wild’s failure to refer Coen to that job was unlawfully moti-
vated.
Considering Respondent’s animosity toward Coen for re-
fusing to picket United Artists’ theaters on Respondent’s be-
half; considering that during the time material Coen once
again disobeyed Respondent’s order to picket a United Art-
ists theater; considering Respondent indicated to Coen and to
another member of Respondent that Respondent intended to
interfere with their employment if they continued to refuse
to picket on Respondent’s behalf;12 considering Assistant
Dispatcher Ybarreche’s admission to Coen that it would be
much easier for her to refer him to jobs if he obeyed Re-
spondent’s order to picket; considering Ybarreche’s further
admission to the Employer’s district manager, Barnard, that
because of Respondent’s hostility toward Coen for not pick-
eting on its behalf, that she did not know whether Respond-
ent would dispatch Coen to the Golden Gate Theater in Au-
gust 1989 and September 1990, as requested by Barnard;
considering that Dispatcher Wild offered a false reason to
Coen to justify his failure to refer Coen to the Employer’s
Golden Gate Theater job in September 1990; and, consid-
ering Respondent’s deviation from its past practice of refer-
743SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
13 In its posthearing brief Respondent argues that the language of the hiring
agreement between Respondent and the Employer precluded the Employer
from asking for job applicants by name, when it requested referrals from Re-
spondent’s hiring facility. I disagree. Although the hiring agreement, set forth
in detail supra, does not require Respondent to dispatch the specific applicant
named by the Employer, it does not preclude the Employer from requesting
Respondent to refer a specific applicant named by the Employer and, as I have
found supra, until Respondent’s August 1989 refusal to refer Coen, the Re-
spondent’s practice in similar situations has been to dispatch the applicant
named by the Employer’s district manager, provided that the specified appli-
cant was available for employment.
14 There is no due process issue because the 8(b)(2) allegation, as well as
the 8(b)(1)(A) allegation, was included in the complaint and notice of hearing
which issued several months prior to the hearing, thereby affording Respond-
ent ample notice of the 8(b)(2) allegation and a meaningful opportunity to de-
fend against that allegation.
ring those applicants whom Barnard had specifically re-
quested by name—I find that, considering all of these cir-
cumstances, the General Counsel has established that when
Respondent ignored Barnard’s August 1989 and September
1989 requests for Coen’s dispatch to the Golden Gate The-
ater, and instead dispatched other applicants in Coen’s place,
that Respondent’s conduct was motivated at least in part by
its animosity toward Coen for having refused to obey Re-
spondent’s order to picket on Respondent’s behalf at United
Artists’ theaters.
In reaching this conclusion, I considered that Coen has not
been fined or otherwise disciplined by Respondent for refus-
ing to picket and there is no evidence Respondent has at-
tempted to interfere with his regular employment with the
Employer for ACT. Quite the opposite, during the periods
Coen has refused to picket, Respondent has referred him to
employment with the Employer for ACT or otherwise
cleared him for such employment. I also considered that dur-
ing the summers of 1989 and 1990, when Coen was not em-
ployed at ACT, Respondent referred him to three different
fill-in jobs: In July 1989, Respondent did not object to his
employment by the Employer at the Orpheum Theater and
issued the Employer a slip dispatching him to that job; in
August 1989, after Coen protested to Wild about Respond-
ent’s failure to dispatch him to the Golden Gate Theater,
Wild referred him to a job at a television station; and, in July
1990 Respondent dispatched him to a job at the Orpheum
Theater with the Employer. Nonetheless, on balance, I am of
the opinion that the foregoing considerations are insufficient
to outweigh the other considerations, described supra, which
I have found warrant the inference that Respondent’s animus
toward Coen for refusing to picket on Respondent’s behalf
was a motivating factor in Respondent’s decision to ignore
the Employer’s August 1989 and September 1990 requests
that he be referred by Respondent to fill in jobs at the Gold-
en Gate Theater.
Having found that the record contained prima facie proof
that by failing and refusing to refer Coen from its exclusive
hiring facility to jobs with the Employer at the Golden Gate
Theater in August 1989 and September 1990, that Respond-
ent violated Section 8(b)(1)(A) and (2) of the Act, the burden
shifted to Respondent to show that what appeared to be ille-
gal motivation on the part of Respondent was in fact justified
by a legitimate reason or reasons and that based on this le-
gitimate reason or reasons Respondent would have failed to
refer Coen to work for the Employer at the Golden Gate
Theater in August 1989 and September 1990, even absent its
animus toward Coen for refusing to picket. I find, for the
reasons below, Respondent failed to rebut the General Coun-
sel’s prima facie case.
Respondent called no witnesses in an effort to justify or
otherwise explain why, despite the Employer’s August 1989
and September 1990 request that Coen be dispatched by Re-
spondent to the Golden Gate Theater, Respondent dispatched
other job applicants in Coen’s place to those jobs.13 The only
record evidence colorably suggesting a legitimate reason for
Respondent’s treatment of Coen, concerns remarks made by
officials of Respondent to Coen in August 1989, when, dur-
ing his hearing before the Respondent’s executive board,
Coen accused Respondent of not dispatching him to the Em-
ployer’s August 1989 Golden Gate Theater job because of its
animosity toward him for not picketing. In response, officials
of Respondent made the following remarks: Secretary-Treas-
urer Kelly told Coen Respondent had not been obligated to
dispatch him to that job, even though the Employer had
asked for him by name, so long as Respondent applied the
same rules and practices to Coen as it did to all of the other
hiring facility registrants; and, either Kelly or Vice President
Cataldo informed Coen that the registrants referred by Re-
spondent to the Golden Gate Theater job had not been em-
ployed as much as Coen, inasmuch as Coen had recently
been employed for 9 months. However, Respondent pre-
sented no evidence that when it failed to honor the Employ-
er’s August 1989 request that Coen be dispatched to the
Golden Gate Theater, that it applied its hiring facility’s rules
uniformly and treated Coen just like other applicants have
been treated. Nor did it present evidence that its reason for
failing to honor the Employer’s request was that other appli-
cants had been unemployed for a longer period than Coen.
Instead, Respondent chose not to present evidence to rebut
the General Counsel’s case, and there is otherwise no record
evidence which establishes that even absent Respondent’s
animus toward Coen for refusing to picket on Respondent’s
behalf, that Respondent would have ignored the Employer’s
August 1989 and September 1990 requests that he be dis-
patched to jobs at the Golden Gate Theater, and not have re-
ferred him to those jobs.
Based on the foregoing, I find Respondent failed and re-
fused to dispatch Coen from its exclusive hiring facility in
August 1989 and in September 1990 to jobs with the Em-
ployer at the Golden Gate Theater, and engaged in this con-
duct because of its animosity toward Coen for having refused
Respondent’s order to picket a United Artists theater on its
behalf, and that by failing and refusing to refer Coen to those
jobs that the Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the Act.
In concluding that Respondent’s refusal to refer Coen to
the Employer’s Golden Gate Theater job in August 1989 vio-
lated Section 8(b)(2) and (1)(A) of the Act, as alleged in the
complaint issued in Case 20–CB–8239, I note that the under-
lying charge in that case alleges only a violation of Section
8(b)(1)(A) of the Act and Respondent’s answer to that com-
plaint alleges, as an affirmative defense, that the complaint’s
allegations are time-barred under Section 10(b) of the Act.
Therefore, the issue raised by this affirmative defense is
whether a violation of Section 8(b)(2), as well as Section
8(b)(1)(A), may be found in Case 20–CB–8239, when Sec-
tion 8(b)(2) of the Act was not alleged to be an unfair labor
practice in the underlying charge.14
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Likewise without merit is Respondent’s further contention that the com-
plaint issued in Case 20–CB–8329 is time barred under Sec. 10(b). This con-
tention, which was raised as an affirmative defense in its answer to that com-
plaint, was not pressed in Respondent’s posthearing brief, and has no colorable
support in the record.
In this regard the law is settled that since a charge merely
sets in motion the Board’s investigatory machinery and does
not preclude the Board from dealing with unfair labor prac-
tices which are related to those alleged in the charge (NLRB
v. Fant Milling Co.), 360 U.S. 301, 306–309 (1959), a com-
plaint may contain allegations related to the same subject
matter as that covered in the charge, even though the alleged
violation involves a different section of the Act, so long as
it arose out of and was related to the same situation as al-
leged to be unlawful in the timely charge. See NLRB v. Hotel
Conquistador, 398 F.2d 430, 433 (9th Cir. 1968); Great
Plains Steel Corp., 183 NLRB 968, 974–975 (1970);
Pergament United Sales v. NLRB, 920 F.2d 130 (2d Cir.
1990). The relationship between the unfair labor practice al-
legation set forth in the charge and a complaint allegation,
not set forth in the charge, ‘‘need be close enough only to
negate the possibility that the Board is proceeding on its own
initiative rather than pursuant to a charge.’’ NLRB v. Central
Power & Light Co., 425 F.2d 1318, 1321 fn. 3 (5th Cir.
1970). Here the complaint’s 8(b)(2) allegation is ‘‘closely re-
lated’’ to the 8(b)(1)(A) allegation in the underlying charge,
because: the 8(b)(1)(A) and (2) allegations involved the same
underlying legal theory, namely, whether Respondent was
unlawfully motivated when it refused to dispatch Coen to the
Employer’s Golden Gate Theater job in August 1989; the
8(b)(2) allegation arose from the identical factual situation
and sequence of events as the 8(b)(1)(A) allegation; thus, it
is readily apparent that Respondent would rely on the same
or similar defenses to both allegations. See generally Redd-
I, Inc., 290 NLRB 1115 (1988). It is for these reasons that
Respondent’s contention that the complaint’s allegations in
Case 20–CB–8239 are time-barred under Section 10(b) of the
Act is without merit.15
b. Respondent violated Section 8(b)(2) and (1)(A) of
the Act by failing to dispatch Mohamed to the
Employer to work at the Golden Gate Theater
on March 10–11, 1990
The record contains prima facie proof that it was Respond-
ent’s animus toward Mohamed for filing an unfair labor
practice charge with the Board against Respondent which
motivated Respondent’s refusal to refer to Mohamed, as re-
quested by the Employer, to the Golden Gate Theater to
work there on March 10–11, 1990. The following factors,
viewed in their totality, support this inference.
Respondent was hostile toward Mohamed for having filed
his charge in Case 20–CB–7404 against Respondent, which
resulted in the Board issuing a decision in that case in July
1988 finding Respondent guilty of violating Section
8(b)(1)(A) of the Act by refusing to provide Mohamed with
copies of hiring facility dispatch slips, as alleged in
Mohamed’s charge. Thus, on March 16, 1990, as described
in detail supra, Respondent’s dispatcher, David Wild, admit-
ted to Mohamed that one of Wild’s reasons for failing to
refer Mohamed to the March 10–11, 1990 Golden Gate The-
ater job, as requested by the Employer, was that Mohamed
had filed a charge against Respondent in Case 20–CB–7404.
The inference that Respondent was antagonistic toward
Mohamed for filing this charge is bolstered further by Re-
spondent’s reaction to the charge he filed on April 11, 1990,
in the instant case. In this regard, as described in detail
supra, in April 1990, apparently after Mohamed filed his
most recent charge, Assistant Dispatcher Ybarreche explained
to him she could not accept the money he had given her to
join Respondent because he had filed a charge against Re-
spondent, and later that month, on April 26, as described in
detail supra, Dispatcher Wild told Mohamed that since he
had filed a charge against Respondent, Wild did not intend
to give him any work, but instead would see him in court.
Since Respondent reacted in this manner to the filing of
Mohamed’s most recent charge against Respondent, it is rea-
sonable to infer it was just as antagonistic toward him for
having filed his earlier charge which had resulted in a Board
Decision and Order finding Respondent guilty of violating
the Act.
Dispatcher Wild’s March 16, 1990 statement to Mohamed
that his failure to refer him to the Employer’s March 10–11
Golden Gate Theater job was motivated by Mohamed’s lack
of membership in Respondent and his having filed an unfair
labor practice charge against Respondent, not only constitutes
persuasive evidence that Wild was angry at him for having
filed the charge, it also constitutes an admission by Wild that
the filing of the charge by Mohamed was a motivating factor
in Wild’s decision not to refer him to the Employer’s March
10–11 Golden Gate Theater job.
The inference that Respondent was unlawfully motivated
when, despite the Employer’s request, it failed to dispatch
Mohamed to the Golden Gate Theater on March 10 to work
there for 2 days, is further supported by Respondent’s devi-
ation from its past practice in similar situations. It is undis-
puted that in the past when Respondent’s district manager
Barnard needed someone to fill in as a janitor at either the
Curran or Golden Gate Theaters and asked Respondent to
dispatch a particular applicant, whom she named, that Re-
spondent always complied with Barnard’s request except
where, as I have found supra, Respondent failed to refer
Coen for an unlawful reason. Respondent offered no evi-
dence to explain why it deviated from its usual practice in
Mohamed’s case.
Considering Respondent’s animosity toward Mohamed for
having filed an unfair labor practice charge with the Board
against Respondent; considering Dispatcher Wild’s admission
to Mohamed that Wild’s failure to refer him to the Golden
Gate Theater to work March 10–11, 1990, was motivated in
part by Respondent’s animosity toward him for having filed
that charge; and, considering Respondent’s deviation from its
practice of referring those applicants whom District Manager
Barnard specifically request by name—I find that, consid-
ering all of these circumstances, the General Counsel estab-
lished that when Respondent ignored Barnard’s request that
Mohamed be referred to the Golden Gate Theater to work for
the Employer on March 10–11, 1990, and instead dispatched
another applicant in his place, Respondent’s conduct was
motivated at least in part by its animosity toward Mohamed
for filing an unfair labor practice charge with the Board
against Respondent.
In so concluding, I considered that in February 1990 Re-
spondent dispatched Mohamed to two jobs; a 1-day job for
the Employer at the Golden Gate Theater and to another em-
745SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
16 As a matter of fact, in April 1990, shortly after Dispatcher Wild’s March
16, 1990 instruction to Mohamed to leave the hiring facility because he was
not a member of Respondent, Mohamed tried to join Respondent but was in-
formed by Assistant Dispatcher Ybarreche that she could not accept the money
he had given her to join because he had filed a charge with the Board against
Respondent. I note Respondent could not have lawfully required Mohamed to
become a member of Respondent pursuant to its union-security agreement with
the Employer inasmuch as there is no showing that Mohamed had been em-
ployed by the Employer for the requisite number of days.
ployer to work as a janitor at a television station. Nonethe-
less, on balance, I am of the opinion that the foregoing cir-
cumstances are insufficient to outweigh the other cir-
cumstances, described supra, which I have found warrant the
inference that Respondent’s animus toward Mohamed for fil-
ing a charge with the Board against Respondent in Case 20–
CB–7404 was a motivating factor in Respondent’s decision
to ignore the Employer’s request that he be referred to the
Employer to work at the Golden Gate Theater on March 10–
11, 1990.
Having found that the record evidence contained prima
facie proof that by failing and refusing to dispatch Mohamed
from its exclusive hiring facility to work for the Employer
at the Golden Gate Theater on March 10–11, 1990, Respond-
ent violated Section 8(b)(2) and (1)(A) of the Act, the burden
shifted to Respondent to prove that what appeared to be ille-
gal motivation on the part of Respondent was in fact justified
by a legitimate reason or reasons and that based on this le-
gitimate reason or reasons, Respondent would have failed to
refer Mohamed to work for the Employer at the Golden Gate
Theater on March 10–11, 1990, even absent its animus to-
ward him for filing an unfair labor practice charge with the
Board against Respondent.
Respondent failed to rebut the General Counsel’s prima
facie case. It did not call a single witness to justify or ex-
plain why, despite the Employer’s request that Mohamed be
referred to the Golden Gate Theater on March 10–11, 1990,
Respondent dispatched another job applicant in his place.
Nor did the record otherwise contain evidence which estab-
lishes Respondent would have ignored the Employer’s re-
quest and not referred Mohamed to work for the Employer
at the Golden Gate Theater on March 10–11, 1990, even ab-
sent Respondent’s animus toward for filing an unfair labor
practice charge with the Board against Respondent.
Based on the foregoing, I find that in violation of Section
8(b)(2) and (1)(A) of the Act, Respondent failed and refused
to dispatch Mohamed from its exclusive hiring facility in
March 1990 to work for the Employer at the Golden Gate
Theater on March 10–11, 1990, because of its animosity to-
ward him for having filed an unfair labor practice charge
with the Board against Respondent.
2. Respondent tells Mohamed to leave its hiring facility
because he is not a member of Respondent
The complaint in Case 20–CB–8329 alleges that ‘‘on or
about April 26, 1990, Respondent, by Wild, denied
Mohamed access to its hiring hall,’’ thereby violating Section
8(b)(1)(A) and (2) of the Act. In support of this allegation
the General Counsel, as described in detail supra, established
that on March 16, 1990, when Mohamed visited Respond-
ent’s hiring facility and spoke to Dispatcher Wild about
being dispatched to a job, Wild informed him that his lack
of membership in Respondent was one of the reasons Wild
had failed to dispatch him to jobs, and abruptly ended his
conversation with Mohamed by stating that Mohamed did
not have the right to be present in Respondent’s hiring facil-
ity because he was not a member of Respondent, and ordered
him to leave the hiring facility, which Mohamed did.
Since a collective-bargaining agent is required to represent
all members of the bargaining unit, irrespective of their
membership in the Union, it is a violation of Section
8(b)(1)(A) of the Act for a union to deny to unit employees
access to an exclusive hiring facility because of their status
as nonmembers of the union. See American Postal Workers
(Postal Service), 300 NLRB 34 (1990). Accordingly, Re-
spondent violated Section 8(b)(1)(A) of the Act on March
16, 1990, when hiring hall Dispatcher Wild told Mohamed
to leave Respondent’s hiring facility and explained to
Mohamed he was being denied access to the hiring facility
because he was not a member of Respondent.
In concluding Respondent violated Section 8(b)(1)(A) by
telling Mohamed he was being denied access to Respond-
ent’s hiring facility because he was not a member of Re-
spondent, I considered that when Mohamed subsequently vis-
ited the hiring facility that he was not denied access or in-
structed to leave. Nonetheless, I am persuaded that Dis-
patcher Wild’s March 16, 1990 instruction to Mohamed to
leave the hiring facility, with an explanation that he was
being denied access to the facility because he was not a
member of Respondent, was the type of conduct reasonably
calculated to restrain and coerce Mohamed from exercising
his statutory right to refrain from becoming a member of Re-
spondent,16 and for this reasons violated Section 8(b)(1)(A),
even though Respondent did not subsequently refuse
Mohamed access to Respondent’s hiring facility.
I also considered that the complaint alleges that Wild de-
nied Mohamed access to its hiring facility, whereas the evi-
dence is that although Dispatcher Wild told Mohamed that
Mohamed was being denied access to the facility because he
was not a member of Respondent, that Respondent did not
thereafter deny Mohamed access to the facility. However, I
am of the opinion that the General Counsel’s proof (Re-
spondent told Mohamed he was being denied access to the
hiring facility because he lacked membership in Respondent),
is comprehended by the language of the complaint (Respond-
ent denied Mohamed access to its hiring facility). I am also
of the opinion that the date of the violation found herein is
likewise comprehended by the language of the complaint.
See Vermont Marble Co., 301 NLRB 103, 104 fn. 8 (1991),
where the Board held that even if it were to conclude that
the unfair labor practice found in that case did not actually
occur until May 31, the Board would find it was com-
prehended by the language of the complaint, which alleged
that the unfair labor practice occurred ‘‘on or about April
21.’’
3. Respondent denies Mohamed’s request for job
referral information
The complaint in Case 20–CB–8329 alleges that since on
or about April 11, 1990, and continuing thereafter, Respond-
ent arbitrarily refused to permit Mohamed to view Respond-
ent’s hiring facility’s records showing the names of appli-
cants it referred to jobs and the names of employers to whom
they were referred, and further alleges that by engaging in
this conduct Respondent violated Section 8(b)(1)(A) of the
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act. The theory of this allegation is based on the settled
principle that a union breaches it duty of fair representation,
in violation of Section 8(b)(1)(A) of the Act, when it arbi-
trarily denies a request for job referral information made by
an employee-applicant, when that request is reasonably di-
rected toward ascertaining whether the employee-applicant
has been fairly treated with respect to obtaining job referrals
to employers whose employees the union represents. NLRB
v. Operating Engineers Local 139, 796 F.2d 985, 992–994
(7th Cir. 1986); Carpenters Local 608 v. NLRB, 811 F.2d
149 (2d Cir. 1987); Operating Engineers Local 324 (Michi-
gan Chapter, AGC), 226 NLRB 587 (1976).
In the instant case it is undisputed that Mohamed re-
quested Respondent to furnish him with certain relevant job
referral information so he could ascertain whether he had
been fairly treated by Respondent with respect to his requests
for job referrals from Respondent’s exclusive hiring facility,
and that Respondent arbitrarily refused to comply with his
information request. In this regard, the record reveals the fol-
lowing. On March 16, 1990, David Wild, the dispatcher of
Respondent’s hiring facility, indicated to Mohamed that
Mohamed had not been dispatched by Respondent to the
Employer’s March 10–11, 1990 job and that Respondent was
not favorably disposed to dispatch him to a job as a fill-in
for his friend Ahmed, because Mohamed was not a member
of Respondent and had filed a charge against Respondent
with the Board. Mohamed responded by indicating he felt he
should have been dispatched to jobs by Respondent and
asked Wild to show him Respondent’s dispatch records. Wild
refused to show him the records and told him if he wanted
to view the records Mohamed’s lawyer should visit Respond-
ent’s office and speak to Wild. Subsequently, in mid-May
and mid-November 1990, Respondent received letters dated
May 15 and November 13, respectively, from Mohamed
which asked that he be allowed to review Respondent’s dis-
patch records for the past 6 months in order to find out why
he had not been dispatched to jobs. Respondent did not an-
swer those letters and offered no reason to Mohamed for its
refusal to comply with the request. Nor did Respondent offer
any justification during this proceeding for its refusals to
comply with Mohamed’s requests to view its dispatch
records in order to ascertain why he had not been dispatched
to jobs. Rather, during the hearing in this case (Tr. 266–267)
and in its posthearing brief (Br. 11), Respondent conceded
that by refusing to permit Mohamed to view Respondent’s
dispatch records, as he requested, Respondent violated Sec-
tion 8(b)(1)(A) of the Act, as alleged in the complaint.
Based on the foregoing, I find Respondent on March 16,
1990, and again in mid-May and mid-November 1990, arbi-
trarily refused to furnish Mohamed with job referral informa-
tion in violation of Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. By failing and refusing to dispatch Coen from its exclu-
sive hiring facility in August 1989 and in September 1990
to jobs with the Employer at the Golden Gate Theater be-
cause of Respondent’s animosity toward him for having re-
fused Respondent’s order to picket a United Artists theater,
Respondent engaged in unfair labor practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act.
2. By failing and refusing to dispatch Mohamed from its
exclusive hiring facility in March 1990 to work for the Em-
ployer at the Golden Gate Theater on March 10–11, 1990,
because of Respondent’s animosity toward him for having
filed an unfair labor practice charge against Respondent with
the Board, Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the Act.
3. By informing Mohamed on March 16, 1990, that he
was being denied access to its exclusive hiring facility be-
cause he was not a member of Respondent, Respondent en-
gaged in unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
4. By arbitrarily refusing to furnish Mohamed with job re-
ferral information on March 16, 1990, and in mid-May and
mid-November 1990, Respondent engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated Section 8(b)(2) and
(1)(A) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
I am of the opinion that a broad cease-and-desist order is
warranted because Respondent’s arbitrary refusal to furnish
Mohamed with job referral information on three different oc-
casions in 1990 constituted not just a violation of Section
8(b)(1)(A) of the Act, as found supra, but was also a willful
violation of the Board’s Decision and Order issued on July
29, 1988, in Case 20–CB–7404, wherein the Board held that
Respondent violated Section 8(b)(1)(A) in November 1987
by arbitrarily refusing to furnish Mohamed with job referral
information. Service Employees Local 9 (Blumenfeld Enter-
prises), 289 NLRB No. 1. In addition to willfully ignoring
the Board’s Decision and Order issued in Case 20–CB–740,
by continuing to refuse to provide Mohamed with job refer-
ral information in violation of Section 8(b)(1)(A) of the Act,
as found supra, Respondent further violated Section
8(b)(1)(A), as well as Section 8(b)(2), by retaliating against
Mohamed for filing the charge in Case 20–CB–7404, when
in March 1990 Respondent refused to refer him for employ-
ment with the Employer, and, as found supra, during the
same time period violated Section 8(b)(1)(A) by informing
Mohamed that he was being denied access to its exclusive
hiring facility because he was not a member of Respondent.
Additionally, as found supra, Respondent violated Section
8(b)(2) and (1)(A) by refusing to refer Coen for employment
with the Employer in August 1989 and September 1990 be-
cause of his protected concerted activity. In view of Re-
spondent’s proclivity to violate the Act and the egregious na-
ture of the violations found, in particular Respondent’s retal-
iation against Mohamed for having filed the charge which re-
sulted in the Board’s Decision and Order in Case 20–CB–
7404 against Respondent, I am persuaded that a broad cease-
and-desist order is warranted in this case.
I shall also order the Respondent to make employees Yhya
Mohamed and James Coen whole for any loss of earnings
and other benefits suffered as a result of the Respondent’s
unlawful failure to dispatch Mohamed to work for the Em-
ployer at the Golden Gate Theater on March 10–11, 1990,
and its unlawful failure to dispatch Coen to work for the Em-
747SERVICE EMPLOYEES LOCAL 9 (AMERICAN MAINTENANCE)
17 283 NLRB 1173 (1987). Interest will be computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986 amendment
to 26 U.S.C. § 6621.
18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
19 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ployer at the Golden Gate Theater in August 1989 and Sep-
tember 1990. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded.17
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Theatre and Amusement Janitors Union
Local 9, Service Employees International Union, AFL–CIO,
San Francisco, California, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Refusing to refer or dispatch employees from its exclu-
sive hiring facility because they exercise their rights under
Section 7 of the Act, including but not limited to their right
to file a charge against Respondent with the Board and their
right to refuse to obey Respondent’s request to picket an em-
ployer on Respondent’s behalf.
(b) Causing or attempting to cause employers, including
the Employer, to discriminate against James Coen and Yhya
Mohamed, or any other employees, members, job applicants,
or registrants, by discriminatorily refusing to refer or dis-
patch them to the Employer, or to any other employer, pursu-
ant to the operation of its exclusive hiring facility or referral
system.
(c) Arbitrarily denying employees the right to review Re-
spondent’s hiring facility records when such a request is rea-
sonably related to an alleged failure by Respondent to prop-
erly refer such employees to jobs.
(d) Informing employees that they are being denied access
to Respondent’s hiring facility because they are not members
of Respondent.
(e) In any other manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make James Coen and Yhya Mohamed whole for any
loss of earnings and benefits that they may have suffered be-
cause Mohamed was unlawfully denied referral and dispatch
to employment with the Employer at the Golden Gate The-
ater on March 10–11, 1990, and because Coen was unlaw-
fully denied referral and dispatch to employment with the
Employer at the Golden Gate Theater in August 1989 and
September 1990, in the manner set forth in the remedy sec-
tion of the decision.
(b) Honor requests by Yhya Mohamed to view Respond-
ent’s hiring facility records where such a request is related
to the Respondent’s alleged failure to properly refer
Mohamed for employment, including but not limited to those
requests made by Mohamed’s letters to Respondent dated
May 15 and November 13, 1990.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all hiring records,
dispatcher lists, referral slips, and other documents necessary
to analyze and compute the amount of backpay due Yhya
Mohamed and James Coen.
(d) Post at its business office, hiring facility, and meeting
places in San Francisco, California, copies of the attached
notice marked ‘‘Appendix.’’19 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members and employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Additional copies of the attached notice marked ‘‘Ap-
pendix’’ shall be signed by an authorized representative of
Respondent, and forthwith returned to the Regional Director
for Region 20 for posting by the Employer, it being willing,
at its places of business in San Francisco, California, where
notices to its employees are customarily posted.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to refer or dispatch you for employ-
ment from our hiring facility because you exercise your
rights under Section 7 of the National Labor Relations Act,
including but not limited to your right to file a charge against
us with the National Labor Relations Board and your right
to refuse to obey our request to picket an employer on our
behalf.
WE WILL NOT cause or attempt to cause employers, includ-
ing American Building Maintenance Company, to discrimi-
nate against James Coen and Yhya Mohamed, or any other
employees, members, job applicants, or registrants, by
discriminatorily refusing to refer or dispatch them to Amer-
ican Building Maintenance Company, or to any other em-
ployer, pursuant to the operation of its exclusive hiring facil-
ity or referral system.
WE WILL NOT arbitrarily deny you the right to review our
hiring facility’s records, when such a request is reasonably
related to our alleged failure to to properly refer you to jobs.
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT tell you that you are being denied access
to our hiring facility because you are not a member of our
organization.
WE WILL NOT in any other manner restrain or coerce you
in the exercise of the rights guaranteed you in Section 7 of
the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL make James Coen and Yhya Mohamed whole
for any loss of earnings and benefits that they may have suf-
fered because we unlawfully refused to refer and dispatch
Mohamed to employment with the American Building Main-
tenance Company in March 1990 and unlawfully refused to
refer and dispatch Coen to employment with that employer
in August 1989 and September 1990, with interest to be paid
on the amounts owing.
WE WILL honor Yhya Mohamed’s request to view our hir-
ing facility records where such a request is related to our al-
leged failure to properly refer him for employment, including
but not limited to those requests made by Mohamed’s letters
to us dated May 15 and November 13, 1990.
THEATRE AND AMUSEMENT JANITORS UNION
LOCAL 9, SERVICE EMPLOYEES INTER-
NATIONAL UNION, AFL–CIO