Stage Employees IATSE Local 412 (Asolo Center)

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1084 (N.L.R.B. 1992)

1084
308 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 27, 1991, Administrative Law Judge Lawrence W.
Cullen issued the attached decision. The Respondent filed excep-
tions, a supporting brief, and a request for oral argument. The Gen-
eral Counsel filed an answering brief and a motion to strike the Re-
spondent’s exceptions. The Respondent filed a response to the mo-
tion to strike. The city of Sarasota filed an answering brief to the
exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 On September 8, 1992, the General Counsel filed a motion to re-
mand proceedings to administrative law judge and reopen record for
the receipt of evidence relative to unfair labor practice allegations in
a complaint issued in Case 12–CB–3463 on August 21, 1992. We
deny the motion to remand.
We deny the General Counsel’s motion to strike the Respondent’s
exceptions and brief. We also deny the Respondent’s request for oral
argument because the record, exceptions, and briefs adequately
present the issues and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We note that in sec. III, par. 1 of his decision, the judge erro-
neously stated that the city of Sarasota operates the Asolo Center for
the Performing Arts. The record clearly shows that the Asolo Center
is a private nonprofit employer. Contrary to the Respondent’s excep-
tions, the assertion of the Board’s jurisdiction in this case is validly
based on the operations of the Asolo Center.
4 We wish to clarify the judge’s analysis at sec. II,D, par. 4 by
denying any implication that the absence of written hiring hall stand-
ards, standing alone, was unlawful. The Respondent violated Sec.
8(b)(1)(A) of the Act because it operated an exclusive hiring hall
without any objective standards, written or unwritten.
5 The judge’s recommended Order does not include the complete
remedial language usually used by the Board to enjoin a respondent
from engaging in ‘‘like or related’’ unlawful conduct. We shall in-
clude the correct language in a modified Order.
International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of
the United States and Canada, I.A.T.S.E. &
M.P.M.O. Local 412 (Asolo Center for the Per-
forming Arts) and Karl Franz Von Mann. Case
12–CB–3463
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues presented for Board review here are
whether the judge1 correctly found that: the Respond-
ent had failed to prove that Section 10(b) of the Act
barred the filing of an unfair labor practice charge; the
Respondent violated Section 8(b)(1)(A) of the Act by
running an exclusive hiring hall without any objective
referral standards; and the Respondent violated Section
8(b)(1)(A) and (2) of the Act by refusing to refer Karl
Franz Von Mann to available jobs. The Board2 has
considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,3 and conclusions4 and to
adopt the recommended Order as modified.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Alliance of
Theatrical Stage Employees and Moving Picture Oper-
ators of the United States and Canada, I.A.T.S.E. &
M.P.M.O. Local 412, Sarasota, Florida, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 1(c).
‘‘(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
David Anhorn, Esq. and Peter J. Salm, Esq., for the General
Counsel.
Mark Kelly, Esq. (Kelly & McKee, P.A.), of Tampa, Florida,
for the Respondent.
Peter Hooper, Esq., of St. Petersburg, Florida, for Sarasota
and Sarasota Opera Association.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on October 10, 1991, at Sarasota,
Florida, and is based on a complaint filed on May 31, 1991,
by the Acting Regional Director for Region 12 of the Na-
tional Labor Relations Board. The complaint as amended at
the hearing is based on a charge filed by Karl Franz Von
Mann, an individual (the Charging Party) on March 26,
1991, and alleges that International Alliance of Theatrical
Employees and Moving Picture Machine Operators of the
United States and Canada, I.A.T.S.E. & M.P.M.O. Local 412
(the Respondent or the Union) violated Section 8(b)(1)(A) of
the National Labor Relations Act (the Act) by since on or
about September 27, 1990, failing and refusing and continu-
ing to fail and refuse to register for referral and refer to em-
ployment Karl Franz Von Mann with Asolo Center for the
Performing Arts (Asolo or the Employer) and other employ-
ers for unfair and for arbitrary reasons other than his failure
to tender periodic dues and the initiation fee unilaterally re-
quired as a condition of acquiring or retaining membership
in Respondent. The complaint alleges that since on or about
October 1, 1988, Respondent entered into an agreement or
maintained a practice with Asolo’s and other Employers’ em-
ployees which provides for the referral of employees without
benefit of written or published referral standards or objective
consistent standards and pursuant to the totally subjective
discretion of its Business Representative Martin Petlock. The
complaint is joined by the answer of Respondent Union as
amended at the hearing wherein it admits the employment
1085STAGE EMPLOYEES IATSE LOCAL 412 (ASOLO CENTER)
1 General Counsel’s unopposed motion to correct transcript is
granted. Page 22 L. 18 is corrected to read ‘‘system for employees
without written or published referral.’’ Page 188 L. 10 is corrected
to read ‘‘10(b) period violates the Act.’’
status of Asolo but asserts as an affirmative defense that the
National Labor Relations Board (the Board) lacks jurisdiction
over the matters set forth in the complaint, and that such
matters are barred by the limitations period set forth in Sec-
tion 10(b) of the Act.
Upon the foregoing complaint and answer, the evidence
submitted at the hearing including the testimony of the wit-
nesses, and after due consideration of the briefs submitted by
the parties I make the following
FINDINGS OF FACT
I. JURISDICTION
A. Business of the Employer
The complaint alleges, Respondent amended its answer at
the hearing to admit, and I find that at all times material
herein the Asolo Center for the Performing Arts (Asolo) a
Florida nonprofit corporation has maintained an office and
place of business in Sarasota, Florida, where it is engaged in
the presentation of theatrical productions, that during the 12
months prior to the filing of the complaint, Asolo, in the
course and conduct of its business operations described
above received gross revenues in excess of $500,000 and
purchased and received goods and materials valued in excess
of $2000 directly from suppliers located outside the State of
Florida and that Asolo is now, and has been at all times ma-
terial, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
It is also alleged in the complaint, Respondent admitted at
the hearing, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES1
A. Facts
As set out above there are two alleged violations of the
Act involved in this case. One is that the Union failed and
refused and continues to fail and refuse to refer for employ-
ment under its exclusive hiring hall system Karl Franz Von
Mann, one of its members in good standing in violation of
Section 8(b)(1)(A) and (2) of the Act and the second is that
the Union has operated and continues to operate an exclusive
hiring hall without any written or published referral standards
or objectively consistent standards in violation of Section
8(b)(1)(A) of the Act. The Respondent has denied the alleged
violations and has asserted as an affirmative defense that
they are barred by 10(b) of the Act as the charge was filed
in excess of 6 months after the alleged commission of the
Act. Based on the facts hereinafter outlined in this decision
and the conclusions of law reached herein, I find that the
General Counsel established a prima facie case of both viola-
tions as alleged in the complaint, which the Respondent
failed to rebutt by the preponderance of the evidence. I find
that the Section 10(b) affirmative defense raised by the Re-
spondent is without merit. The facts in this case are largely
undisputed. Martin Petlock has been the Union’s business
representative since 1988 and previously served as its presi-
dent and treasurer. The Union operates an exclusive hiring
hall for employees in the theatrical business and refers em-
ployees to various entertainment and theatrical venues in the
Sarasota, Florida area. In his capacity as business representa-
tive of the Union, Petlock operates the hiring hall and de-
cides who will be referred for employment to the various
jobs for which employees are required in the theatrical busi-
ness in the Sarasota area. The largest employer of employees
referred by the Union is the Asolo which is a civic center
operated by the city of Sarasota where various theatrical pro-
ductions are held. The Union’s members operate as sound
men, lighting men and stage hands and generally perform all
of the work necessary to set the stage, establish the proper
lighting, change the scenery and operate a sound system. In
its operation of the hiring hall the Union does not have any
published or written standards or criteria. Nor was there any
objective criteria established by the evidence presented at the
hearing. Rather, Petlock decides who will be referred to jobs
based on his own subjective determinations and in accord-
ance with an informal call system by prospective employers.
There is no out-of-work list maintained wherein an employee
is placed on a list and referrals are made on a rotational
basis. Petlock testified that much of the work is sporadic and
many of the employees using the hiring hall are employed
in other jobs and often unavailable for referral. Some mem-
bers are employed with a much greater frequency than others
as they are regularly called for by employers or there is a
tacit understanding that they are to be referred when certain
employers such as the Asolo call for employees. Petlock tes-
tified that members and employees referred by the Union
often have other jobs such as a fishing boat captain, a chef,
the operation of a lawn care business, and some are members
of circuses who travel extensively and are available only dur-
ing certain times of the year. Some of the work involved is
skilled requiring experience and some of the work involves
only basic skills requiring the movement of settings or load-
ing or unloading of settings. Additionally, some of the em-
ployees may from time to time start with a travel show in
Sarasota and be hired by that employer to travel elsewhere
with the show.
Karl Franz Von Mann became a member of the Union in
January 1981 and has since been a member in good standing.
He received referrals for employment from the Union from
January 1981 until he left the Sarasota area in 1986. He re-
turned to Sarasota in the fall of 1989 and sent a letter to the
Union dated October 16, 1989, setting out his qualifications
and stating the he was available for referrals to employment.
Von Mann testified he is able to perform 90 percent of the
work available under the Union’s jurisdiction. In response to
Von Mann’s request for referrals Petlock sent him a letter
dated November 11, 1989, which accused him of a number
of asserted improprieties and demanded that he sign the letter
stating that he understood that he could no longer engage in
such activities. The letter is as follows:
Dear Franz:
I received your phone message today. Had I known
you were available I might have put you to work on
the 15th but as I write that call is filled. Thinking about
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
your return to our jurisdiction, I have to tell you that
I have some reservations about giving you work calls
which I will share with you. Quite frankly, I think that
I would like you to agree in writing just to make sure
we understand each other.
1. At management’s request, my predecessor re-
moved you from the Van Wezel roster. Their major
complaint was that you spent far too much time on
‘‘Union Politics.’’ Union business is NOT to be
brought into the workplace or discussed on the em-
ployers time and some of our contracts now state
this. Please DO start coming to meetings, the proper
forum for such discussion. It is also the only place
to air any charges or accusations concerning the offi-
cers of this organization.
2. You were perfectly well aware of the payment
time from Van Wezel. It used to be 4–6 weeks. I’ve
got that down to 3–5 weeks. If you are not willing
to wait that length of time I suggest you not accept
calls there.
3. We have become very strict about the use, in-
fluence or possession of controlled substances in or
near our workplaces. Please be very careful about
this. I hope you no longer indulge but all our agree-
ments state instant dismissal for violations.
4. All written agreements with management con-
tain an exclusive bargaining situation. You have al-
ways been forthright about setting up meetings with
our venues but in future you should do so only
through the local. Your privately arranged meetings
should not tempt management to breach our con-
tracts.
5. Our International Reps are stretched thin
enough. If you have problems or complaints you
have an obligation to ‘‘exhaust internal remedies’’
before exercising your right to go to the Inter-
national. If you don’t like me then talk to our presi-
dent. If he’s the problem then you should see a
member of your Executive Board. You can contact
President Meyrich at 813–355–1014 to receive their
names and numbers. There are two members at large
whose job is to be your representative.
6. In past you have committed unlawful acts that
could have created serious problems for the local. I
refer specifically to the Murray Periha incident and
your practice of taping conversations without inform-
ing the participants and replaying those tapes as
‘‘evidence.’’ Actions such as these will not be toler-
ated.
I do not enjoy writing this sort of letter. In view of
your past actions and relations with this Local I do feel
it to be necessary. I hold no animosity towards you and
hope you will agree to and abide by the above condi-
tions so that we may return you to our active list as
soon as possible.
Yours sincerely,
/s/ Marty Petlock
Marty Petlock
Business Agent
Although the letter purported to be from Petlock it was not
signed by Petlock, and Von Mann returned the letter to
Petlock because it had not been signed by Petlock. Petlock
returned this letter to Von Mann and sent a followup letter
to Von Mann dated November 27, 1989, which demanded
that Von Mann sign the November 11 letter, thus at least im-
plicitly acknowledging the improprieties alleged in the No-
vember 11 letter. The Union had never taken such an action
or made such a demand on an employee prior to this time.
Von Mann had never been charged with any of the alleged
improprieties which he was asked to acknowledge in the No-
vember 11 letter. On November 28, 1989, Petlock offered a
referral to Von Mann for November 30, 1989, which Von
Mann was unable to accept because of a prior commitment.
On that date Von Mann sent a letter to Petlock thanking him
for the referral and advising him that he was committed until
December 28, 1989. Petlock then offered Von Mann a refer-
ral for December 1, 1989, although Von Mann had advised
in his letter that he was unavailable for work until after De-
cember 28, 1989. Von Mann received no further referrals and
on April 1, 1990, he again wrote Petlock reminding him of
his availability for referrals. On April 6, 1990, Petlock noti-
fied Von Mann that the Respondent had no work but that he
might be able to obtain work through the Tampa IATSE
local union and that he (Von Mann) could contact it.
Prior to the charge filed in the instant case, Von Mann
filed a charge in Case 12–CB–3358 on May 4, 1990, which
alleged a violation of Section 8(b)(1)(A) of the Act by the
Union’s insistence that Von Mann sign the November 11 let-
ter as a condition to be referred for employment. This charge
was dismissed in part because Von Mann had told the Re-
gion that he had been told there was no work available in
the Sarasota area but had been advised by the Union to con-
tact the Tampa local union for referrals in that area. In order
to aid in the investigation of this charge in Case 12–CB–
3358 Von Mann requested in a letter dated May 9, 1990,
sent to Victor Meyrich, the Union’s president that the
Union’s referral records from December 28, 1989, to May 9,
1990, be made available to him for review as he was gen-
erally aware that other employees were being referred for
employment whereas he was not. The Union refused this re-
quest. Von Mann next filed a charge in Case 12–CB–3395
on August 25, 1990, alleging the refusal to furnish the infor-
mation concerning the lists as a violation of Section
8(b)(1)(A) of the Act. The Union’s attorney responded to this
charge by a letter of October 17, 1990, advising Von Mann
the records would be made available to him for review and
Von Mann thereupon withdrew the charge in Case 12–CB–
3395 based on this assurance. However, Petlock continued to
refuse to supply the records to Von Mann and demanded
$100 to furnish the information. Von Mann rejected this de-
mand but offered to pay the cost of copying the records and
again reminded Petlock of his availability for work. Con-
sequently, Von Mann filed a subsequent charge in Case 12–
CB–3434 on December 11, 1990, again alleging a refusal to
furnish the records. This charge culminated in a settlement
agreement approved by the Regional Director wherein the
Union agreed to supply the records. However, the records
were not provided until March 20, 1990, and consisted of in-
voices sent to employees by the Union for referrals made
through the Union hiring hall. No referral list, out-of-work
list, or list of availability of employees was received. Petlock
1087STAGE EMPLOYEES IATSE LOCAL 412 (ASOLO CENTER)
testified at the hearing that no such list exists. Upon receipt
Von Mann was at last in possession of documents verifying
that other employees were being referred for work by the
Union whereas he was not. Von Mann then requested the
records for up to April 1991 which were received in June
1991 and which showed numerous referrals by the Union
subsequent to September 27, 1990. The charge in the instant
case was filed March 26, 1991, and the complaint was issued
May 31, 1991.
The Respondent presented evidence through the testimony
of its Business Representative Petlock who testified concern-
ing Von Mann’s alleged misconduct as set out in Petlock’s
November 11, 1989 letter. Petlock contended at the hearing
that during Von Mann’s absence from the Sarasota area from
the Union’s jurisdiction during the 2-year period prior to No-
vember 1989, the employers using the Union’s referral sys-
tem had substantially tightened working conditions and that
Petlock was merely attempting to ensure the integrity of the
Union’s referral system and the availability of work for its
members by requiring Von Mann to acknowledge his alleged
offenses set out in Petlock’s November 11 letter to Von
Mann and to agree not to commit them again. Petlock’s letter
alleges several improprieties by Von Mann. Petlock testified
at the hearing concerning certain of the alleged improprieties.
Jerry Jagielski, a management official at the Von Wezel hall,
testified he had informed the Union not to send him Von
Mann for a short period in 1986 because he engaged in dis-
cussing union politics on the job and his failure to perform
a task as Jagielski wanted it done but denied that he had in-
formed the Union that Von Mann should be permanently
barred from employment there. At the hearing Von Mann de-
nied the various allegations of wrongdoing set out in
Petlock’s letter.
B. Statement of the Issues
There are four separate issues cited by the parties in their
briefs: (1) Whether the complaint is time barred by Section
10(b) of the Act; (2) whether the Union arbitrarily refused
to refer Von Mann for employment in violation of the Act;
(3) whether the Union has operated and continues to operate
an exclusive hiring hall without written or published referral
standards or objectively consistent standards pursuant to the
totally subjective discretion of Business Representative
Petlock; and (4) whether the Union’s refusal to refer Von
Mann is justified because of his alleged violation of referral
hall rules by engaging in repeated direct solicitation of em-
ployment at venues under contract with the Union, thus bar-
ring his entitlement to a remedy.
C. Contentions of the Parties
The General Counsel contends this action is not time-
barred by Section 10(b) of the Act as the referral system as
operated currently is violative of the Act and that the filing
of the charge with respect to conduct going back to Septem-
ber 27, 1990, the 6-month cutoff date prior to the filing of
the charge in the instant case on March 26, 1991, is timely.
Any argument that Von Mann was on notice of the Union’s
refusal to refer him by the November 11, 1989 letter, thus
constituting the date of the violation making the instant
charge untimely, ignores both the fact that Petlock did not
specifically advise Von Mann that he was not being referred
but rather offered to refer him for employment in November
and December 1989 and advised him in April 1990 that there
was no work in the Sarasota area and suggested he contact
the Tampa area local union of IATSE for referrals. Further-
more, the refusal to disclose its referral records to Von Mann
further impeded his obtaining definite proof that he was not
being referred as evidenced by the dismissal of the original
charge, Von Mann’s filing of two separate charges based on
the refusals to furnish the referral records and the subsequent
delay in furnishing the records even after the Union entered
into a settlement agreement to do so.
The General Counsel also contends that the Union arbitrar-
ily and invidiously refused to refer Von Mann for employ-
ment. The Union presented no competent evidence to support
its allegations concerning Von Mann or the truth of these
reasons. Jagielski refuted the Union’s claim that Von Wezel
Hall would not employ Von Mann. Assuming arguendo that
the allegations were true (which Von Mann denied at the
hearing) the Union has internal disciplinary procedures avail-
able to it but chose not to utilize them and instead to punish
Von Mann by refusing to refer him for employment. The
General Counsel further contends that the Union has also
violated the Act by its operation of an exclusive hiring hall
without benefit of written or published standards or objec-
tively consistent standards and pursuant to the totally subjec-
tive discretion of Business Representative Petlock.
The General Counsel further contends that the Union’s re-
fusal to refer Von Mann is not justified because of his al-
leged violation of referral hall rules by direct solicitation of
employment with employers in the Union’s jurisdiction. With
respect to this issue Von Mann contended he was applying
only for management jobs which he asserts are not within the
Union’s jurisdiction. There is no question Von Mann’s ef-
forts in this regard were in good faith and were not surrep-
titious and were occasioned by the Union’s unlawful refusal
to refer Von Mann for employment and that the Union has
ways to lawfully deal with perceived violations of union
rules but chose not to invoke them.
The Respondent contends the complaint is barred by Sec-
tion 10(b) of the Act and should be dismissed. It contends
the 6-month limitation period began to run on November 11,
1989, when the Union wrote Von Mann and advised Von
Mann ‘‘unequivocally’’ that he would receive no referrals
prior to his acknowledging the changed working conditions.
It further argues that, ‘‘this case does not encompass a con-
tinuing violation.’’ The Union further contends that the re-
fusal to refer Von Mann was neither unfair nor arbitrary as
the General Counsel has not proved that the Union operates
an exclusive hiring hall and that consequently there is ‘‘no
duty of fair representation’’ owed by the Union to Von Mann
and ‘‘a violation of the Act can be found only if it is shown
that the Union somehow retaliated against Von Mann based
on his [exercise of] rights protected under the Act.’’ The Re-
spondent argues further that even if the General Counsel
could establish the existence of an exclusive referral proce-
dure, the General Counsel has failed to show the Union treat-
ed Von Mann in an unfair or arbitrary manner as its ‘‘treat-
ment of Von Mann was based solely on work-related consid-
erations which were entirely relevant to the operation of its
referral procedure.’’ The Respondent contends there was no
evidence of hostility toward Von Mann and therefore the re-
fusal to refer him for work-related reasons was not arbitrary
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or capricious and no violation can be found notwithstanding
the lack of records of the operation of the hiring hall. The
Respondent also argues that there is ‘‘no evidence that
Petlock’s interpretation of the referral procedures, or of the
Union’s duties and responsibilities under such procedure, is
unreasonable.’’ Respondent also contends that the alleged di-
rect dealing by Von Mann with potential employers was a
violation of its referral rules and ‘‘constitutes a legitimate,
non-discriminatory reason for suspending [him] from the re-
ferral procedure.’’
The Respondent also contends that its operation of its re-
ferral procedure is not violative of the Act as the complaint
does not allege the hiring hall is exclusive and in the absence
of ‘‘such an allegation, even a wholly subjective referral pro-
cedure does not in and of itself violate the Act.’’ Assuming
arguendo the referral system is exclusive, the General Coun-
sel has failed to prove the procedure violates the Act, as
there was no evidence of abuse of the referral system such
as granting preferences to ‘‘its own members, or supporters
of its incumbent leadership.’’ Respondent further contends
that Von Mann’s alleged persistent violation of its exclusive
referral arrangement precludes his entitlement to relief as
such conduct ‘‘would warrant his suspension from the refer-
ral procedure.’’
D. Analysis
I find at the outset that the complaint is not barred by Sec-
tion 10(b) of the Act. Initially I do not accept Respondent’s
argument that the November 11, 1989 letter constituted the
critical date of the violation upon which the statute began to
run. As contended by the General Counsel, the letter is am-
biguous and does not clearly state that no referrals will be
given to Von Mann. Also as contended by the General Coun-
sel, the Union was sending Von Mann mixed signals as it
did offer him referrals in November and December 1989. Al-
though Von Mann clearly had a basis for suspecting that the
Union would not refer him out until he signed the letter, the
letter did not unequivocally state that he would not be re-
ferred out until he signed it. The offer of referrals in Novem-
ber and December certainly did not form a basis for conclud-
ing that Von Mann was not being referred out because of his
refusal to sign the letter, notwithstanding Petlock’s subse-
quent letter demanding that Von Mann sign the letter and get
to work. As time went on and Von Mann received no further
referrals, he made additional inquiries of the Union and was
advised there was no work in the Sarasota area but was also
advised to contact the local IATSE union in Tampa, Florida.
This proved to be false as during April a large number of
referrals were made by the Union while none were offered
to Von Mann. Subsequently, his attempts to obtain informa-
tion were rebuffed and it was not until March 1991 that Von
Mann received documentation that other employees were
being referred out while he was not. Under these cir-
cumstances I find the Respondent has not met its burden in
asserting Section 10(b) of the Act as an affirmative defense
on both factual grounds as to when Van Mann was fully ap-
prised of the Union’s refusal to refer him while referring
other employees to employment within its jurisdiction and
also on equitable grounds as its mixed signals in initially re-
ferring Von Mann in November and December 1989 and its
representation to him in April 1990 that there was no work
available in its jurisdiction placed Von Mann in an uncertain
and confusing situation. Furthermore, the Union’s various re-
fusals and delays in furnishing its records for Von Mann’s
review served only to further impede his investigation of this
matter. Under all of these circumstances I find that the Union
has failed to meet it burden of proof in asserting Section
10(b) as an affirmative defense and that the Union should not
benefit from its concealment of the true facts from Von
Mann. See Service Employees Local 3036 (Linden Mainte-
nance), 280 NLRB 995, 996 (1986), relying on language in
Strick Corp., 241 NLRB 210 fn. 1 (1979), wherein the Board
said ‘‘notice whether actual or constructive, must be clear
and unequivocal and that the burden of showing such notice
is on the party raising the affirmative defense of Section
10(b).’’ See Burgess Construction Corp., 227 NLRB 765
(1977), enfd. 596 F.2d 378 (9th Cir. 1979), cert. denied 444
U.S. 940 (1979), wherein the Board held that the 10(b) pe-
riod of limitations was tolled from the commencement of the
unlawful conduct until the charging party union acquired
knowledge of it and held that the remedy should not be lim-
ited to the 6-month period preceding the filing of the charge
as ‘‘To find otherwise would allow Respondent to escape
from providing a full remedy as a result of the successful
concealment of their unlawful conduct.’’ See also Barnard
Engineering Co., 275 NLRB 208 (1989), wherein the Board
adopted the administrative law judges’ finding that the
Union’s charge was not barred by Section 10(b) as the Union
did not have clear notice of the alleged violations of the Act
more than 6 months before it filed its charge.
With respect to the purported reason for the letter and the
Union’s insistence that Von Mann acknowledge at least im-
plicitly having been guilty of the various alleged impropri-
eties contained in the letter of November 11, 1989, and con-
sent to no longer engage in them, it is now clear the Union
was asking Von Mann to acknowledge these improprieties
and that in the absence of his doing so, the Union chose not
to refer him. It is undisputed that Von Mann was a dues-pay-
ing member in good standing qualified to perform 90 percent
of the work available to the Union through the operation of
the referral hall which I find based on the undisputed evi-
dence was an exclusive hiring hall.
The Union’s refusal to refer Von Mann was clearly arbi-
trary and invidious discrimination and constituted a violation
of Section 8(b)(1)(A) and (B) of the Act. If the Union had
legitimate problems with Von Mann’s past conduct on the
job or in his work-related dealings in the Union’s jurisdic-
tion, it had available to it, its own internal procedures for
bringing charges against Von Mann. However, it did not do
so but rather treated him as having been charged and found
guilty by imposing on him economic sanctions by refusing
to refer him for employment. See Stage Employees IATSE
Local 646 (Parker Playhouse), 270 NLRB 1425 (1985).
Similarly I reject the Respondent’s assertion at the hearing
that Von Mann should not be reinstated to the Union’s refer-
ral system because of his resort to self help in seeking em-
ployment within the Union’s jurisdiction. At the outset it
should be noted that Von Mann’s individual job search was
occasioned by the Union’s refusal to refer him for employ-
ment without any semblance of fairness in doing so. Further,
Von Mann contends he applied only for management jobs
which he contends were not within the Union’s jurisdiction.
Here again the Union did not utilize its internal procedures
for determining the validity of its or Von Mann’s position on
1089STAGE EMPLOYEES IATSE LOCAL 412 (ASOLO CENTER)
1 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C § 6624.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
this issue but now seeks to rely on this as a reason for pre-
cluding Von Mann from receiving referrals. I find its reliance
thereon is also misplaced. See Longshoremen Local 341
(West Gulf Maintenance Assn.), 254 NLRB 334 (1981);
Longshoremen Local 1408 (Jacksonville Maritime Assns.),
258 NLRB 132 (1981); Plumbers Local 553 (Plumbers Con-
tracting), 271 NLRB 1361 (1984).
With respect to the operation of the hiring hall, this is a
continuing ongoing operation and Section 10(b) does not
apply. I find that the Respondent has violated Section
8(b)(1)(A) of the Act by the operation of the hiring hall in
the complete absence of any standards or written rules or
maintenance of a written eligibility list. While it is true that
under certain circumstances the Board has not found a viola-
tion on the basis of the mere absence of these standards and
rules, in the instant case, it is clear that the absence of these
standards, rules, or eligibility list were utilized to thwart Von
Mann’s efforts to seek employment in the Sarasota area and
thus a violation of Section 8(b)(1)(A) of the act has occurred
and is continuing to occur by the Union’s operation of its
hiring hall without adequate standards, rules or eligibility list.
Parker Playhouse, supra.
CONCLUSIONS OF LAW
1. Respondent, International Alliance of Theatrical Em-
ployees and Moving Picture Machine Operators of the
United States and Canada, I.A.T.S.E. & M.P.M.O. Local
412, is a labor organization within the meaning of Section
2(5) of the Act.
2. Asolo is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
3. The complaint is not barred by Section 10(b) of the Act.
4. By its maintenance and operation of a practice and/or
an agreement with Asolo and covering certain of Asolo’s and
other employer’s employees which provides for the referral
of employees without benefit of written or published stand-
ards and pursuant to the totally subjective discretion of Busi-
ness Representative Petlock, Respondent Local 412 violated
Section 8(b)(1)(A) of the Act.
5. By its failure and refusal since on or about September
27, 1990, to register for referral and refer to employment
with Asolo and other employers employee Karl Franz Von
Mann, Respondent has violated Section 8(b)(1)(A) and
8(b)(2) of the Act.
6. The aforesaid unfair labor practices in conjunction with
the Employer’s status as an employer engaging in interstate
commerce affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Local 412 has violated
the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative actions to remedy the
violations including the posting of an appropriate notice.
Local 412 shall make Karl Franz Von Mann whole for all
loss of earnings and benefits sustained by him as a result of
its failure and refusal to refer him for employment, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Backpay and benefits shall be with interest as computed in
New Horizons for the Retarded, 282 NLRB 760 (1987).1 It
is also recommended that Respondent Local 412 be ordered
to establish and maintain objective criteria and standards for
the referral of employees from its hiring hall.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, International Alliance of Theatrical Em-
ployees and Moving Picture Machine Operators of the
United States and Canada, I.A.T.S.E. & M.P.M.O. Local
412, Sarasota, Florida, its officers, agents, successors, and
representatives, shall
1. Cease and desist from
(a) Maintaining and operating a hiring hall without objec-
tive criteria and standards for the referral of employees.
(b) Refusing and failing to refer employees for employ-
ment for arbitrary and invidious reasons.
(c) In any like or related manner violating the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Establish and maintain objective criteria and standards
for the referral of employees from its hiring hall.
(b) Refer Karl Franz Von Mann and other employees for
employment and make him whole for the loss of earnings
and benefits he sustained by reason of its refusal and failure
to refer him with interest as set out in the remedy section
of this decision.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Remove from its records any reference to the alleged
misconduct of Von Mann and inform him in writing that this
has been done and that such records, if any exist, will not
be used against him in any manner in the future.
(e) Post at its hall or facility copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 12, 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 employees and members
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.
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT maintain and operate a hiring hall without
objectives standards and criteria for the referral of employ-
ees.
WE WILL NOT refuse and fail to refer employees for em-
ployment because of arbitrary and invidious reasons.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL establish and maintain, on a nondiscriminatory
basis objective standards and criteria by which the referral
system is to operate.
WE WILL make Karl Franz Von Mann whole for the loss
of earnings and benefits he suffered by our failure and re-
fusal to refer him for employment.
WE WILL remove from our records all references to the
unlawful actions taken against Von Mann and will notify him
in writing that they shall not be used against him in any
manner in the future.
INTERNATIONAL ALLIANCE OF THEATRICAL
EMPLOYEES AND MOVING PICTURE MACHINE
OPERATORS OF THE UNITED STATES AND
CANADA, I.A.T.S.E. & M.P.M.O. LOCAL 412