Stage Employees IATSE Local 412 (Various Employers)

National Labor Relations Board - Board Decisions

Sep 15, 1993

312 N.L.R.B. 123 (N.L.R.B. 1993)

123
312 NLRB No. 26
STAGE EMPLOYEES IATSE LOCAL 412 (VARIOUS EMPLOYERS)
1 On March 16, 1993, Administrative Law Judge William N. Cates
issued the attached decision. The Respondent and the General Coun-
sel each filed exceptions with supporting briefs.
2 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 the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
1 All dates hereinafter are 1992 unless I indicate otherwise.
2 Von Mann’s charge was filed on July 17.
3 The Board affirmed the judge’s conclusion this was a continuing
violation of the Act.
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 (Various Employers) and
Karl Franz von Mann. Case 12–CB–3611
September 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented here is whether the judge
correctly found that the Respondent violated Section
8(b)(1)(A) and (2) by permanently barring Charging
Party Karl Franz von Mann from using its exclusive
hiring hall system.1 The National Labor Relations
Board has considered the decision and the record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
and to adopt the recommended Order.
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 Ma-
chine Operators 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.
David Anhorn, Esq., for the General Counsel.
Mark F. Kelly, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
involves the July 10, 19921 letter International Alliance of
Theatrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, I.A.T.S.E. &
M.P.M.O., Local 412 (Union) Business Representative Mar-
tin Petlock (Business Representative Petlock) sent member
Karl Franz von Mann (von Mann) in which von Mann was
notified he was permanently barred from using the Union’s
exclusive referral system.
Counsel for the General Counsel (Government) contends
that since October 1988, the Union has been the exclusive
source of referrals of employees to employment with the
Asolo Center for the Performing Arts (Asolo) and other var-
ious employers in and around Sarasota, Florida. The Govern-
ment contends the Union, in violation of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act) perma-
nently barred von Mann from using its exclusive referral sys-
tem for reasons which are unfair and/or arbitrary, and other
than for von Mann’s failure to tender periodic dues and the
initiation fees uniformly required as a condition of acquiring
or retaining membership in the Union.
The Union denies having violated the Act in any manner.
Trial of this case was conducted before me in Sarasota,
Florida, on January 29, 1993, based on von Mann’s charge2
and the complaint and notice of hearing (complaint) issued
on August 21, by the Regional Director for Region 12 of the
National Labor Relations Board (the Board). The Govern-
ment and Union filed briefs which have been carefully con-
sidered.
On the basis of the entire record, and my observation of
the demeanor of the four witnesses who testified, I will, as
hereinafter more fully explained, conclude the Union violated
the Act when it permanently barred von Mann from using its
exclusive referral system.
FINDINGS OF FACT
I. JURISDICTION
Asolo is a Florida nonprofit corporation with an office and
place of business in Sarasota, Florida, where it is engaged in
the presentation of theatrical productions. During the 12
months preceding issuance of the complaint herein, a rep-
resentative period, Asolo 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. The complaint alleges, the par-
ties admit, the evidence establishes, and I find that Asolo is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties admit, the evidence es-
tablishes, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE FACTS
In a related case involving the identical parties herein, and
reported at 308 NLRB 1084 (1992) (Asolo I), the Board af-
firmed the judge’s findings that the Union violated Section
8(b)(1)(A) of the Act by operating an exclusive hiring hall
without any objective standards,3 written or unwritten. Union
Business Representative Petlock said the Union was in the
process of creating a handbook/manual and certain referral
lists to be utilized in their exclusive hiring hall but that such
had not, as of the trial herein, been accomplished or imple-
mented. Petlock acknowledged the Union refers employees to
various entertainment and theatrical venues in and around
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On September 8, counsel for the General Counsel filed a motion
with the Board to remand the proceedings in Asolo I to the judge
with directions that the judge reopen the record for receipt of evi-
dence relative to the unfair labor practice allegations in the instant
complaint. The Board, in Asolo I, denied counsel for the General
Counsel’s motion clearing the way for the trial herein.
5 Details related to von Mann’s suspension and Petlock’s previous
correspondence are addressed by the judge in Asolo I, 308 NLRB
1084 (1992).
6 Assistant Executive Director Donna Gerdes was also present at
the meeting.
7 Meyrich is also the production manager for Asolo. Meyrich’s po-
sition as president of the Local is being challenged by the U. S. De-
partment of Labor in a Federal court action on the basis that
Meyrich’s position with Asolo is a management position. The basis
for that court action stems from a complaint filed by Von Mann with
the U. S. Department of Labor.
Sarasota, Florida, including Asolo which is one of the largest
users of its referral hall services. The Board also affirmed the
judge’s conclusion in Asolo I that the Union had, in violation
of Section 8(b)(1)(A) and (B) of the Act, refused for arbi-
trary and invidious reasons to refer von Mann for employ-
ment in the Sarasota, Florida, area.4
It is undisputed that von Mann has, since January 1981,
been, and continues to remain, a member in good standing
of the Union. Von Mann lived outside the Sarasota, Florida
area from January 1981 until November 1989. It is undis-
puted that von Mann has not been the subject of any internal
union charges or complaints since having returned to Sara-
sota, Florida, in 1989.
The thrust of this case revolves around the letter Union
Business Representative Petlock sent to von Mann on July
10. The letter, in its entirety, follows:
July 10, 1992
Karl Franz Von Mann
217 S Shave Ave
Sarasota FL 24237
Dear Brother Von Mann:
We have learned that on May 22, 1992, you went to
the Asolo Theater and spoke with Lee Warner and
Donna Gerdes, two Asolo officials. You told them that
you wanted to bring to their attention financial impro-
prieties allegedly committed by me and Victor Meyrich
in the course of our employment with the Asolo. You
accused us of misuse of funds, placing unauthorized
signatures on payroll checks, misusing Asolo’s equip-
ment and leasing it to others without the Asolo’s
knowledge, taking unauthorized advertisements in
IATSE Newsletters on behalf of the Asolo but without
its consent, and other allegations. These matters were
reported to us and later confirmed by Lee Warner in a
conversation with our union attorney.
You are unquestionably aware that the allegations you
made against Victor Meyrich and me are utterly false and
without any factual foundation whatsoever. Your sole pur-
pose in making the statements can only have been to injure
our reputations, perhaps to cause us to be terminated, and to
impair Local 412’s relationship with its most substantial con-
tracting employer. Fortunately, the recipients of your out-
rageous accusations recognized immediately the lack of any
foundation for them. Nonetheless, by making such statements
you have impaired our ability to provide additional employ-
ment opportunities for members of this local union and other
applicants for referral by chilling our further use of Asolo
equipment in other facilities, even though our use of such
equipment in the past was entirely appropriate, and was with
Asolo’s full knowledge and consent, with the understanding
that we would use qualified members to operate it.
We have discussed this matter with the Executive
Board and our attorney. All are in agreement that your
conduct goes beyond mere slander and disloyalty to the
union: it is a wilful and malicious attack on me, Vic
Meyrich, and Local 412 as a whole. Insofar as you
have already damaged the Local, Vic Meyrich and me
to some extent and may possibly have caused us further
damage by repeating these outrageous, wilful, and false
accusations to others, outside of any conceivably legiti-
mate forum and without any conceivable exuse, we
have instructed our attorney to initiate suit against you
forthwith. In the meantime, notwithstanding the fact
that you are presently suspended from use of the refer-
ral procedure based on your failure to agree to abide by
the current referral conditions as set forth in my pre-
vious correspondence to you,5 this most recent conduct
of yours, standing alone, is sufficiently egregious to re-
lieve Local 412 of any further obligation to allow your
use of our referral procedures. Accordingly, your privi-
lege of using the Local 412 referral hall is hereby per-
manently revoked.
Sincerely,
/s/ Martin Petlock
Martin Petlock
Von Mann testified he met with Asolo’s executive direc-
tor, Lee Warner, on May 22.6 Von Mann said he requested
the meeting because he had information causing him to sus-
pect Union President Victor Meyrich7 and Business Rep-
resentative Petlock were renting Asolo equipment possibly
without Asolo knowing about the rentals. Von Mann testified
he presented Asolo’s executive director, Warner, four docu-
ments. The documents were: (1) a page from the Sarasota,
Florida telephone directory yellow pages, (2) a circular dis-
tributed by a sister union local (Local 477), (3) a copy of
an invoice issued by the Union to the Brandenton, Florida
Ballet School, and, (4) a business card for Roger Ragland.
Von Mann said he explained to Asolo’s executive director,
Warner, he was not accusing Union President Meyrich and
Business Representative Petlock of any improprieties but he
thought the information he was supplying and the cir-
cumstances surrounding the documents would prove interest-
ing to Asolo. Von Mann explained that the Union’s yellow
pages advertisement puzzled him because the Union was a
labor organization and he felt it should not be advertising
itself as renting sound, lighting, props, and other types of
equipment. Von Mann said he had no problem with the
Union’s advertising that it supplied personnel to operate such
equipment but that his problem concerned the Union listing
its telephone number for equipment rentals. Von Mann testi-
fied Union President Meyrich placed an advertisement for
Asolo Scenic Studios (a division of Asolo) in a Union Local
125STAGE EMPLOYEES IATSE LOCAL 412 (VARIOUS EMPLOYERS)
8 According to von Mann, this particular local is involved with
film and video productions whereas the Union herein is involved
with stage productions.
9 Von Mann acknowledged Union President Meyrich was, and
continues to be, production manager for Asolo as well as Asolo Sce-
nic Studios and that his duties involved overseeing the entire oper-
ation of Asolo Scenic Studios.
10 Counsel for the General Counsel, at trial, stated the Government
was not asserting that von Mann’s actions leading to the Union’s
barring him from using its hiring hall was protected activity but rath-
er that the Union’s barring von Mann was unlawful regardless of the
actions that lead the Union to take the action it did.
11 Warner testified Asolo is not a state institution as believed by
von Mann, and Warner said he did not mention to von Mann that
it would be improper for Asolo to engage in competition with pri-
vate enterprise. Warner stated Asolo engages in private enterprise
and pays Federal taxes as a result thereof.
12 Business Representative Petlock acknowledged he was the union
official who administers and operates the Union’s exclusive referral
hall.
13 For a discussion of the ‘‘series of problems’’ Business Rep-
resentative Petlock references, see Asolo I, 308 NLRB 1084 (1992).
4778 publication thus placing Asolo in the commercially
competitive field and von Mann said it was his impression
Asolo was a nonprofit corporation barred from the commer-
cial arena. Von Mann explained to Asolo’s executive direc-
tor, Warner, that the invoice the Union issued to the
Brandenton Ballet School was for supplying personnel for a
performance but that at the bottom of the invoice was an ad-
dendum which was a bill for equipment rental that called for
payment to be made to Business Representative Petlock. Von
Mann said it looked as if Business Representative Petlock
was renting equipment that was being billed through the
Union which von Mann described as ‘‘an impropriety.’’ von
Mann testified that although he possibly thought Petlock
might be pocketing the money from the rentals to the ballet,
he did not mention such to Asolo’s executive director, War-
ner. Von Mann explained he provided Warner Ragland’s
business card so Warner might verify the accuracy of certain
information Ragland had related to von Mann. Von Mann
testified Ragland told him while he (Ragland) was employed
by Asolo Scenic Studios at Universal Studios, Orlando, Flor-
ida location he received an Asolo check for wages that was
signed by Union President Meyrich. Von Mann testified, ‘‘I
was of the impression that this was an impropriety.’’9
Von Mann testified he supplied the documents and infor-
mation to Asolo’s executive director, Warner, and Warner’s
assistant, Gerdes, because he wanted to protect the interests
of the Union. Von Mann said if there were improprieties,
such could harm the Union inasmuch as Meyrich and Petlock
were both officials of the Union. Von Mann testified the 45-
minute meeting ended with Warner thanking him for coming
and that Warner promised to look into the matters von Mann
had raised.
It is undisputed that the Union filed a defamation suit
against von Mann based on von Mann’s Asolo meeting out-
lined above. It is likewise undisputed that the General Coun-
sel of the Board sustained, on appeal, Region 12’s refusal to
issue a complaint on von Mann’s charge (Case 12–CB–3623)
that the Union’s defamation suit against him was brought in
retaliation for his having filed charges alleging the Union op-
erated an unlawful hiring hall. In that regard, the General
Counsel, in a letter dated January 15, 1993, advised von
Mann in part that ‘‘even assuming, without concluding, that
the lawsuit otherwise might have been retaliation for your
having approached the Employer [Asolo] to allege possible
improprieties by Union officials, it was concluded that in the
circumstances of this case, such action was not a violation
of the National Labor Relations Act.’’10
Asolo’s executive director, Warner, corroborated von
Mann’s testimony regarding their May 22 meeting with two
exceptions.11 Warner testified that he and/or Assistant Execu-
tive Director Gerdes already were aware of everything von
Mann brought to their attention at the May 22 meeting. War-
ner testified von Mann did not accuse Union President
Meyrich or Business Representative Petlock of any impropri-
eties. Warner testified that after von Mann made him aware
of Business Representative Petlock’s July 10 letter to von
Mann, that he (Warner) wrote Petlock advising him von
Mann ‘‘did not’’ speak of any financial improprieties, that
von Mann spoke only of ‘‘potential financial improprieties.’’
[Emphasis in original.]
Executive Director Warner testified that the May 22 meet-
ing with von Mann did not necessitate any investigation by
Asolo based on the information von Mann supplied because
Asolo was already aware of everything von Mann raised at
the meeting. Warner stated no improprieties existed. Warner
testified Asolo did not direct or request that Union President
Meyrich or Business Representative Petlock change their
business dealings with Asolo in any manner. Warner stated
the contract between Asolo and the Union is still being ad-
ministered in the same manner as before his meeting with
von Mann on May 22.
Warner testified that if the Union referred von Mann to
Asolo as an employee, they would, in good spirit, accept von
Mann but that Asolo would not name request von Mann.
Business Representative Petlock testified he wrote his July
10 letter to von Mann after he learned von Mann had gone
to Asolo ‘‘and made all sorts of allegations about President
Meyrich and [him]self.’’ Petlock said he was simply ‘‘outlin-
ing [his] dismay and unhappiness’’ with von Mann’s ‘‘accus-
ing [him] of criminal activities.’’ Petlock acknowledged he
notified von Mann the Union was permanently revoking his
use of the Union’s exclusive referral hall services.12 Petlock
said von Mann was permanently barred because:
Mr. von Mann is a continuing source of problems.
We mentioned, the last time we were in this court-
house, a series of problems that Mr. von Mann had cre-
ated through the years.13 Is it necessary to go into them
all? I would be happy to if you want me to spend the
time.
There are continuing problems. This was in a way a
final, just the final touch. He came into a building
where he believed President Meyrich and myself were
employed at the time and went to management and said
terrible things about us, that we were crooks and
thieves and we were dishonest. His information was so
far off base, that he was not even aware I was no
longer employed at the building.
I don’t know what purpose he thought he was serv-
ing, aside from just pure malice and spite. This is a
small town, sir, and Mr. Warner, I’m sure, sees the
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other chief executive officers of our other employers:
the opera house, the Van Wezel, at fund-raising events,
at social events, at opening nights. I don’t know that he
would willingly say terrible things about us, but I’m
sure that, you know, the question might come up in dis-
cussion. I think we’re really open to a situation of, you
know, what’s going on. I’m sorry. I guess I’m not
being terribly clear.
Just of this kind smear on our reputations. The kind
of business we’re in is one where things happen very
fast and your reputation and your word are very impor-
tant. A lot of things don’t get written in this situation.
A lot is based on your personal integrity and that was
attacked by Mr. von Mann.
It was, I think, a spiteful and malicious move on his
part because we had attempted to try to inject some dis-
cipline into the work place. We had, as we mentioned
in the last trial, he did unlawful acts. He did secret tape
recordings of people that were unaware and attempted
to play them back and create charges against union offi-
cers. He offered me a marijuana cigarette at the Van
Wezel during a work period, once. He damaged the
Van Wezel physical appearance by cutting a hole in the
decorative architectural screen without permission.
There is a long list of problems that we’ve had with
this gentleman. And when we attempted to at least
make him understand that certain behavior would not
be tolerated he, as was his right, went to the NLRB.
And when he did not get instant satisfaction he, I be-
lieve, took an action by himself, which was to attack
us. Totally criminal.
I’m offended by it and he won’t come to the meet-
ings, he won’t come speak as he’s sworn to do in his
oath to the union to deal with it internally.
Business Representative Petlock did state things were busi-
ness as usual with Asolo after von Mann’s visit with Asolo
officials on May 22.
Union President Meyrich testified that as production man-
ager for Asolo, he is the person that contacts the Union for
referrals. Meyrich testified he could and has name requested
individuals but that he would not request, nor would he ac-
cept, von Mann for employment with Asolo. Meyrich testi-
fied he would not request or use von Mann because ‘‘many
years’’ ago he employed von Mann in a ‘‘sound’’ position
but that von Mann quit the approximately 40-week job after
only 2 weeks leaving him ‘‘fairly high and dry’’ trying to
replace von Mann. In addition, Meyrich said he was aware
of the things brought out in the Asolo I trial as well as other
things and that all in all, he considered von Mann to be an
‘‘unreliable,’’ ‘‘conspiratorial theorist,’’ with a ‘‘plot and a
plan’’ that created problems backstage for the other crew
hands. Meyrich said he does not think von Mann is qualified
to perform work referred from the union hall because of his
unreliability. Meyrich said von Mann does not conduct him-
self in a professional manner and exhibits an ‘‘uncaring atti-
tude toward the equipment of the producer.’’ Meyrich added
von Mann ‘‘knocked over things’’ on the sets. Meyrich said
von Mann’s visit with his (Meyrich’s) employer (Asolo) on
May 22, ‘‘angered’’ him and he thereafter had ‘‘animosity
for Brother von Mann.’’
It is undisputed von Mann has received no referrals from
the Union since July 10.
IV. POSITIONS OF THE PARTIES
Counsel for the General Counsel contends the Union un-
lawfully disciplined von Mann for arbitrary and invidious
reasons by using the most powerful tool at its disposal—the
denial of employment to him. Counsel for the General Coun-
sel asserts von Mann made no accusations against either
Union President Meyrich or Business Representative Petlock.
In support thereof, counsel for the General Counsel points to
Asolo Executive Director Warner’s testimony that von Mann
made no accusations and also to the fact Warner advised the
Union that von Mann had not made any accusations against
Meyrich, Petlock, or the Union. Counsel for the General
Counsel asserts the Union may not legally bar von Mann
from using its hiring hall based on actions or accusations of
actions on von Mann’s part that never took place. Counsel
for the General Counsel also asserts the Union has not been
harmed in any manner by von Mann’s actions. In support
thereof, counsel for the General Counsel points out that War-
ner and Petlock both testified that the relationship between
the Union and Asolo has not changed in any way since von
Mann visited with Asolo’s executives. In summary, counsel
for General Counsel contends the Union violated the Act
when it permanently barred von Mann from utilizing its ex-
clusive hiring hall system because he visited with Asolo’s of-
ficials on May 22.
The Union asserts that von Mann, at his meeting with
Asolo officials on May 22, made statements that were false,
malicious, and defamatory to Union President Meyrich and
Business Representative Petlock. The Union asserts von
Mann’s comments were the product of ‘‘pure malice’’ and
‘‘spite’’ and an attempt to place activities by Union President
Meyrich and Business Representative Petlock in a false light
making it appear they were doing something illegal, or were
dishonest or unethical. The Union argues that as a result of
von Mann’s unsubstantiated and unprotected statements to
Asolo officials it was legally privileged to permanently bar
von Mann from using its exclusive referral system. The
Union contends von Mann’s statements had the potential to
impair the Union’s reputation and to hinder its ability to se-
cure business with other area venues. Thus, the Union argues
its action of barring von Mann from its referral system was
based on legitimate business considerations and absent proof
of a statutorily prescribed objective is immune from Board
scrutiny. The Union argues there is no evidence on which it
could be concluded that the Union acted in bad faith or that
its action was baseless. In summary the Union argues that
the evidence amply supports the inference that von Mann’s
statements were made either maliciously, or at the very least,
recklessly and that his purpose was to impugn the reputation
of Meyrich and Petlock and through them the Union. The
Union asserts its concern about the possible effects of von
Mann’s statements gave it ample reason to believe its legiti-
mate business interests stood to be impaired and thus its ac-
tions against von Mann did not violate the Act.
127STAGE EMPLOYEES IATSE LOCAL 412 (VARIOUS EMPLOYERS)
14 A union may also show it was acting pursuant to a valid union-
security clause; however, such is not an issue herein.
15 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. § 6621.
16 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.
V. ANALYSIS
It is not disputed that the Union has exclusive hiring hall
arrangements with Asolo and other various employers in and
around Sarasota, Florida.
It is well established that as the operator of an exclusive
hiring hall, a union owes a duty of fair representation to ap-
plicants using that hall. As a part of its duty of fair represen-
tation, a union has an obligation to operate the exclusive hir-
ing hall in a manner that is not ‘‘arbitrary or unfair.’’ See,
e.g., Radio-Electronics Officers Union, 306 NLRB 43 (1992).
Where a union causes, attempts to cause, or prevents an em-
ployee from being hired or otherwise impairs the job status
of an employee, it demonstrates its power and influence over
the employee’s livelihood so dramatically as to compel an
inference that the effect of the union’s actions is to encour-
age union membership on the part of all employees who
have perceived the display of power. A union may overcome
this inference or rebut this presumption, by proving that the
action was necessary to the effective performance of its func-
tion of representing its constituency.14 See, e.g., Teamsters
Local 456 (Louis Petrillo Corp.), 301 NLRB 18 at 22
(1991).
The evidence clearly establishes that the Union herein per-
manently barred von Mann from its exclusive hiring hall sys-
tem because he visited with two Asolo executives on May
22. Was the Union’s action necessary to the effective per-
formance of its function in representing employees? That
question must be answered in the negative. First, it is clear
from the credited testimony of von Mann and Asolo Execu-
tive Director Warner that von Mann did not accuse Union
President Meyrich or Business Representative Petlock of any
improprieties as claimed by Petlock in his July 10 letter to
von Mann. After Asolo Executive Director Warner learned of
Petlock’s July 10 letter to von Mann he wrote Petlock telling
Petlock von Mann had not spoken of any financial impropri-
eties and also noted that he (Warner) had not reported such
to anyone in the Union. Second, von Mann did not report or
provide anything to Asolo’s executives that they were not al-
ready aware of. Stated differently von Mann did not reveal
anything new to Asolo’s executives when he met with them.
Third, business has continued as usual between the Union
and Asolo since von Mann met with the Asolo officials on
May 22. There also is no showing that the Union’s relation-
ship with any other employer has changed following von
Mann’s visit at Asolo.
In light of all the above, I conclude the Union has failed
to meet its burden of establishing adequate justification for
permanently barring von Mann from using its exclusive hir-
ing hall system. The Union’s action violates Section
8(b)(1)(A) and (2) of the Act and I so find.
CONCLUSIONS OF LAW
1. International Alliance of Theatrical Stage Employees
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 or-
ganization within the meaning of Section 2(5) of the Act.
2. Asolo Center for the Performing Arts is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. On or about October 1, 1988, Asolo and other various
employers and the Union entered into, and has since that
date maintained, a practice and/or arrangement requiring the
Union to be the sole and exclusive source of referrals of em-
ployees to employment with Asolo and other various em-
ployers.
4. By permanently barring Karl Franz von Mann, since on
or about July 10, 1992, from using its referral system, the
Union has been, and is, engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the Act.
THE REMEDY
Having found that the Union has engaged in certain unfair
labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
I shall recommend that the Union be ordered to revoke
and give no effect to its July 10, 1992 letter permanently
barring von Mann from using its referral system. It is further
recommended that the Union shall refer von Mann for em-
ployment utilizing objective criteria and standards. It is fur-
ther recommended that the Union shall make Karl Franz von
Mann whole for any loss of earnings and benefits sustained
by him as a result of the Union’s failure and refusal to refer
him for employment. See F. W. Woolworth Co., 90 NLRB
289 (1950). Backpay and benefits shall be with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).15
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the
United States and Canada, I.A.T.S.E & M.P.M.O., Local
412, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Barring Karl Franz von Mann from using its referral
system.
(b) Failing and refusing to refer employees for employ-
ment for unfair and/or arbitrary reasons.
(c) In any like or related manner interfering with, restrain-
ing, or coercing members/employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Refer Karl Franz von Mann for employment based on
objective criteria and standards.
(b) Make Karl Franz von Mann whole for any loss of
earnings and other benefits he may have suffered as a result
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 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.’’
of its failure and refusal to refer him, with interest, as set
forth 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 analyze the
amount of backpay due under the terms of this Order.
(d) Revoke and remove from its records any reference to
its July 10, 1992 written communication permanently barring
von Mann from the use of its referral system.
(e) Post at its office, hiring hall, or other facilities copies
of the attached notice marked ‘‘Appendix.’’17 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 12, after being signed by the Union’s authorized rep-
resentative, shall be posted by the Union immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Union to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Mail a copy of said notice to Karl Franz von Mann.
(g) Forward to the Regional Director for Region 12 signed
copies of the notice, sufficient in number, for Asolo and
other various employers, if willing, to post at their Sarasota,
Florida facilities.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Union has taken
to comply.
APPENDIX
NOTICE TO 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 permanently bar Karl Franz von Mann or
anyone similarly situated from using our exclusive referral
system for referrals to employment with the Asolo Center for
the Performing Arts and other various employers in the Sara-
sota, Florida area.
WE WILL NOT fail or refuse to refer employees for em-
ployment based on unfair and/or arbitrary 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 make Karl Franz von Mann whole for any loss
of earnings he may have suffered as a result of our barring
him from using our exclusive referral system and/or our fail-
ure and/or refusal to refer him for employment based on un-
fair and/or arbitrary reasons.
WE WILL remove from our records all references to our
unlawfully barring Karl Franz von Mann from using our ex-
clusive referral system and WE WILL notify him in writing
that we have done so.
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES AND MOVING PICTURE
MACHINE OPERATORS OF THE UNITED STATES
AND CANADA, I.A.T.S.E. & M.P.M.O., LOCAL
412