Stage Employees IATSE Local 720 (AVW Audio Visual)

National Labor Relations Board - Board Decisions

Jan 31, 2008

352 N.L.R.B. 29 (N.L.R.B. 2008)

STAGE EMPLOYEES IATSE LOCAL 720 (AVW AUDIO VISUAL)
352 NLRB No. 7
29
International Alliance of Theatrical Stage Employees
and Moving Picture Operators of the United
States and Canada, Local 720, AFL–CIO (AVW
Audio Visual, Inc.) and Steven Lucas. Case 28–
CB–4351
January 31, 2008
SECOND SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On July 16, 2007, the Board issued an Order denying
Charging Party Steven Lucas’ request for review of the
Regional Director for Region 28’s compliance determi-
nation in this case. Subsequently, Lucas filed a petition
for review with the United States Court of Appeals for
the Ninth Circuit of the Board’s Order denying review
and the remedial order in the underlying decision. On
August 29, 2007, the Board rescinded its order denying
review of the compliance determination and thereafter
sua sponte sought remand of the case to reconsider its
denial of Lucas’ request for review of the compliance
determination. On September 25, 2007, Lucas voluntar-
ily moved for dismissal, without prejudice, of his petition
for review. On October 10, 2007, the court granted Lu-
cas’ motion for voluntary dismissal.
Upon further consideration of Lucas’ request for re-
view, the National Labor Relations Board1 has decided to
amend the remedy in its June 2, 2004 Supplemental De-
cision and Order (IATSE II).2
At issue in this proceeding is whether the Board or-
dered the appropriate remedy for the violations found in
IATSE II. In the subsequent compliance determination,
the Regional Director for Region 28 determined that the
Respondent was obligated to make Lucas whole only for
lost employment opportunities with AVW Audiovisuals,
Inc. (AVW). Lucas has maintained that the appropriate
make-whole remedy is backpay for lost employment
opportunities with all relevant signatory employers. On
reconsideration, we find merit in the Charging Party’s
arguments and we further find, as discussed below, that
the limited backpay remedy ordered by the administra-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
2 341 NLRB 1267 (IATSE II). The Board’s original Decision and
Order, 332 NLRB 1 (2000) (IATSE I), is discussed below. In IATSE II,
the Board determined, as the law of the case, that the Respondent vio-
lated Sec. 8(b)(1)(A) and (2) by refusing to refer Charging Party Lucas
for employment through its exclusive hiring hall.
tive law judge in IATSE I did not fully remedy the viola-
tions alleged in the complaint and found by the Board.
Therefore, we modify the remedy ordered there to reflect
the range of employment opportunities lost to Lucas by
reason of the Respondent’s unlawful conduct.
The relevant facts and procedural history of the case
are as follows. The Union operated an exclusive hiring
hall under a collective-bargaining agreement with an
employer group that included employer AVW. Until
May 1994, Lucas was referred to signatory employers
through the hiring hall. In May 1994, a union representa-
tive told Lucas that the Union would no longer refer him
out because of complaints about his conduct.3 In March
1995, Lucas sought and was refused readmission to the
hiring hall. Lucas protested the refusal to the union
president, and submitted a letter by a clinical psycholo-
gist, who stated that she had tested Lucas and found him
fit for employment. Lucas also informed AVW of his
availability for work. On March 22, 1995, AVW re-
quested Lucas by name from the hiring hall. The Re-
spondent refused to refer Lucas, citing the 1994 expul-
sion. Lucas filed a charge with the Board.
Based on Lucas’ charge, a complaint issued, alleging
that the Union violated Section 8(b)(1)(A) and (2) by
refusing, on March 14, 1995, to register Lucas on its ex-
clusive referral roster, and by refusing, on March 22,
1995, to issue Lucas a work referral pursuant to a name
request by AVW. At the hearing, counsel for the Gen-
eral Counsel made an unopposed motion to amend the
complaint to allege that the Respondent refused to refer
Lucas “on or about March 14, 1995, and continuing
thereafter” (emphasis added).
Administrative Law Judge Michael D. Stevenson
found that the Union had violated Section 8(b)(1)(A) and
(2) by “permanently barring Steven Lucas, since on or
about March 22, from using its referral system.”4 With
respect to the backpay remedy, the judge stated as fol-
lows:
[h]aving found that the Respondent unlawfully denied
Steven Lucas referral to [AVW], I shall recommend
that Respondent be ordered to . . . pay[ ] him backpay
equal to the amount of wages that he would have
earned had he not been unlawfully denied referral to
AVW Audio Visual, Inc. since March 22, 1995 . . . . It
will be left to compliance proceedings for the determi-

3 On May 16, 1994, Lucas filed a charge alleging that the refusal to
refer him was unlawful. Shortly thereafter, the Union expelled Lucas
from the hiring hall, citing misconduct over a 15-year period. The
General Counsel dismissed Lucas’ charge based on evidence provided
by the Union that his expulsion was due to complaints about his behav-
ior.
4 332 NLRB 1, 9 (2000) (IATSE I).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
nation of the nature and extent of Lucas’s employment
opportunities at AVW Audio Visual, Inc. after March
22, 1995.
Id. at 9–10. (Emphasis added.)
In addition, the judge ordered the Respondent to cease
and desist from “failing and refusing to register for refer-
ral Steven Lucas in accordance with its exclusive hiring
hall agreement with AVW Audio Visual, Inc., or any
other employer with whom it has an exclusive hiring hall
agreement.” (Emphasis added.)
The Respondent filed exceptions to the findings of un-
fair labor practices. The General Counsel filed a limited
exception seeking reversal of the judge’s failure to order
a make-whole remedy running to all employers having a
referral agreement with the Union, rather than limiting
relief to lost opportunities with AVW. The General
Counsel argued that the broader remedy was appropriate
for the violations found, and cited the complaint amend-
ment at the hearing.
On September 12, 2000, the Board issued its original
Decision and Order in this proceeding, IATSE I. The
Board reversed the judge’s findings and dismissed the
complaint, finding that, inter alia, the Respondent’s per-
manent expulsion of Lucas from the hiring hall did not
violate the Union’s duty of fair representation. Because
it reversed the findings of violations, the Board did not
address the General Counsel’s exception.
Lucas subsequently filed a petition for review with the
Ninth Circuit Court of Appeals. The court granted Lu-
cas’ petition, reversed the Board’s decision, and re-
manded the case for entry of an order in favor of Lucas.5
With respect to the appropriate remedy, the court’s sole
finding in this regard was that it need not consider Lucas’
request for reimbursement of expenditures for psycho-
logical testing, stating in this regard only that it left “the
appropriate remedy to the Board.”
On remand, in IATSE II, the Board accepted the
court’s decision as the law of the case, and found that the
Respondent violated Section 8(b)(1)(A) and (2) by refus-
ing to readmit Lucas to its exclusive hiring hall.6 With
regard to the remedy, the Board stated that it “adopt[ed]
as [its] remedy and Order the recommended remedy and
Order” of the judge, and that, like the judge, the Board
would leave for compliance the determination of “the
nature and extent of Lucas’ employment opportunities at
AVW Audio Visuals, Inc., after March 22, 1995, when
the Respondent failed to refer Lucas.” 341 NLRB at
1267. However, the Board’s Order was not expressly
limited to employment lost at AVW. In this regard,

5 Lucas v. NLRB, 333 F.3d 927 (2003).
6 341 NLRB 1267 (2004) (IATSE II).
paragraph 2(b) of the Board’s order requires the Respon-
dent to:
Make Steven Lucas whole for any loss of earnings and
other benefits he may have suffered as a result of the
Respondent’s failure and refusal to refer him from its
exclusive hiring hall, with interest as set forth in the
remedy section of the judge’s decision.
Id. at 1268.
Subsequently, the Respondent filed a petition for re-
view of the remedy ordered in IATSE II with the Ninth
Circuit. The Respondent argued that the Board’s sup-
plemental order exceeded the scope of the remand by
awarding a remedy that went beyond issuance of “an
appropriate remedial order in favor of Lucas.” Both the
General Counsel and the Charging Party filed cross-
motions for enforcement and oppositions to the Respon-
dent’s petition. On February 11, 2005, the Ninth Circuit
granted the Board’s motion for summary denial of the
Respondent’s petition for review and for summary en-
forcement of the Board’s supplemental order.
On June 30, 2005, the Regional Director issued a com-
pliance specification and notice of hearing, the terms of
which required the Respondent to pay the Charging Party
backpay for all lost employment opportunities, not just
those with AVW. In its answer, the Respondent asserted,
in relevant part, that the language of the judge and the
Board limited the Respondent’s backpay obligation to
employment opportunities with AVW. On October 7,
2005, the Regional Director withdrew the compliance
specification and cancelled the notice of hearing. On
July 21, 2006, the Regional Director issued a compliance
determination based on an interpretation of the Board’s
remedial language limiting backpay to lost employment
with AVW.
The Charging Party subsequently filed an appeal with
the General Counsel of the Regional Director’s compli-
ance determination. Lucas argued, inter alia, that the
appropriate remedy under the Board’s Order is to make
him whole for all employment opportunities he lost as a
result of his unlawful exclusion from the hiring hall. The
Charging Party asserted that language in the judge’s de-
cision and carried over into the Board’s Supplemental
Decision and Order, which appears to limit backpay to
lost employment opportunities with AVW, was a “scriv-
ener’s error,” and that basing backpay on that erroneous
language would deny him a full remedy for the Respon-
dent’s unlawful conduct. The General Counsel denied
the Charging Party’s appeal.
Thereafter, Lucas filed the instant request for review
pursuant to Section 102.53 of the Board’s Rules and
Regulations. As noted above, on July 16, 2007, the
STAGE EMPLOYEES IATSE LOCAL 720 (AVW AUDIO VISUAL) 31
Board denied Lucas’ request for review, essentially on
procedural grounds. The Board noted that the Charging
Party had failed to file a motion for reconsideration of
the Supplemental Decision and Order, and further noted
that compliance proceedings are not the proper forum for
litigating the provisions of the remedial order in the un-
derlying unfair labor practice proceeding, citing Starcon,
Inc. v. NLRB, 176 F.3d 948 (7th Cir. 1999). Lucas then
sought review with the Ninth Circuit of the remedy pro-
visions of the Supplemental Decision and Order. There-
after, the Board rescinded its Order denying review and
the court granted Lucas’ motion for voluntary with-
drawal of his petition for review.
The Board has reconsidered the arguments raised by
the Charging Party in light of the entire record. Having
duly considered the matter, we grant the Charging
Party’s request for review, reverse the Regional Director,
and remand the case to the Regional Director to under-
take compliance proceedings and issue a compliance
specification that will make Lucas whole for all lost em-
ployment opportunities from employers that were signa-
tories to the exclusive hiring hall agreement during the
relevant period. We believe that this outcome is appro-
priate both procedurally and substantively.
1. Procedure. In our Order denying the Charging
Party’s request for review, we stated that because the
Charging Party had failed to file a request for reconsid-
eration of the remedial provisions of IATSE II, he was
precluded from challenging the Regional Director’s com-
pliance determination. The effect of this holding was, in
essence, to preclude Lucas from challenging the Re-
gional Director’s interpretation of the remedial language
in the Supplemental Decision and Order and in the un-
derlying judge’s decision. While we continue to believe
that compliance proceedings are not the proper forum for
addressing the merits of a Board remedial order, we find
that reconsideration is appropriate here due to ambiguity
in the scope of the Board’s remedial order in IATSE II.
On reconsideration, we hold that the Supplemental
Decision and Order was not sufficiently clear to put Lu-
cas on notice that the order in IATSE II was limiting his
backpay remedy. Although the relevant language of the
judge’s decision stated that Lucas was entitled to “back-
pay equal to the amount of wages that [Lucas] would
have earned had he not been unlawfully denied referral to
AVW Audio Visual, Inc.,” the Board’s Supplemental
Decision and Order required the Respondent to “[m]ake
Steven Lucas whole for any loss of earnings and other
benefits he may have suffered as a result of the Respon-
dent’s failure and refusal to refer him from its exclusive
hiring hall, with interest as set forth in the remedy sec-
tion of the judge’s decision.” (Emphasis added.) This
broader reference in the Board’s order to “any loss of
earnings” and the reference to “interest” as set forth in
the remedy section of the judge’s decision can reasona-
bly be interpreted as awarding the Board’s standard rem-
edy for the violation of refusing to refer an employee
through an exclusive hiring hall, and not a remedy lim-
ited to the loss of earnings incurred solely by the unlaw-
ful failure to refer Lucas to AVW.
Indeed, the subsequent litigation of the case before the
Ninth Circuit and in the compliance proceedings bears
out the ambiguity of the Board’s order. Specifically, in
opposing the Respondent’s petition for review both the
Charging Party and the General Counsel referred to the
backpay and reinstatement remedy as the “standard rem-
edy,” which, as discussed below, typically would include
backpay for all lost employment opportunities.7 In addi-
tion, the Regional Director for Region 28 apparently ini-

7 For example, in the General Counsel’s motion for summary denial
of the Respondent’s petition for review and for summary entry of a
judgment enforcing the Board’s order, the General Counsel stated that:
[i]n its Supplemental Decision and Order, the Board “accepted the
court’s decision as the law of the case” and entered—as “the appropri-
ate remedial order for the violations found”—an order awarding Lu-
cas back pay and reinstatement to the hiring hall (the remedy previ-
ously recommended by the ALJ). . . . To be sure, in its decision this
Court found no need to consider Lucas’ argument that he was entitled
to monetary relief in addition to [emphasis in original] the standard re-
instatement and back pay remedy recommended by the ALJ, and
hence “le[ft] the appropriate remedy to the Board.”. . . But it is clear
. . . that this Court simply left to the Board’s discretion a determination
of whether Lucas would be entitled to a quantum of monetary relief
over and above the standard back pay award that the ALJ had rec-
ommended and the Board ultimately ordered.” [Emphasis added.]
In addition, in Lucas’ opposition to the Respondent’s petition for re-
view, Lucas characterized the Board’s actions after the Ninth Circuit’s
decision issued as follows:
[i]n accepting the remand . . . the Board faithfully followed this
Court’s mandate and applied its traditional notice posting and make
whole remedy. Indeed, the Board’s remedial order was identical to
orders issued in hundreds of similar hiring hall discrimination cases
over the past 50 years. . . . [W]hen Mr. Lucas previously stated that
this Court remanded this case “solely” for entry of a judgment in his
favor, he . . . never argued that the remedy must be limited to him
alone, or that it must be limited only to the job that he lost at [AVW],
as opposed to the many other jobs which Local 720 kept him from ful-
filling for over one year. [Emphasis added.]
Further, in his reply brief in opposition to the Respondent’s petition
for review, the General Counsel stated that:
the Union contends that this Court should remand this case to the
Board a second time so that the Union may argue that Lucas—who,
this Court concluded, was entitled to a remedial order in his favor to
remedy the Union’s unfair labor practices—should be denied the stan-
dard Board remedy of reinstatement and backpay.
. . . [W]e pause to stress that not only does the plain import of the
Court’s Lucas decision foreclose the Union’s challenge to the Board’s
remedial order, but also this Court . . . [has]—at least implicitly—
rejected the contention that the Board should be permitted to consider
denying Lucas the standard relief of reinstatement and back pay.”
[Emphasis added.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
tially shared the view of the Charging Party and counsel
for the General Counsel, as his initial compliance speci-
fication provided for backpay for all lost employment,
not just employment with AVW. Thus, we find signifi-
cant evidence that the Board’s Supplemental Decision
and Order in IATSE II was subject to two reasonable in-
terpretations, and we find further that, prior to the issu-
ance of the Regional Director’s Compliance Determina-
tion, the Charging Party could not fairly have been re-
quired to guess which one would eventually provide the
basis for the determination of the scope of his backpay
remedy. Thus, the Charging Party’s request for review
of the Regional Director’s Compliance Determination
was the first opportunity for the Charging Party to chal-
lenge the limitation on the remedy.
2. Substantive law. We find further that a backpay
remedy covering all lost employment opportunities is
appropriate for the violations found. In IATSE I, the
judge found that the Respondent violated Section
8(b)(1)(A) and (2) of the Act by “permanently barring”
Lucas from the hiring hall. 332 NLRB at 9. Similarly,
in IATSE II, the Board adopted as the law of the case the
court’s finding that “the Union’s refusal to readmit Lucas
to its exclusive hiring hall violated Section 8(b)(1)(A)
and 8(b)(2) of the Act.” 341 NLRB at 1267. Almost
without exception, the remedy ordered by the Board for
unlawful refusals to refer employees from exclusive hir-
ing halls has been, and is, that “the Union shall make
[the employee] whole for any loss of earnings and bene-
fits sustained by him as a result of the Union’s failure
and refusal to refer him for employment.” Stage Em-
ployees IATSE Local 1412 (Various Employers), 312
NLRB 123 (1993) (union arbitrarily banned an employee
permanently from the exclusive hiring hall).8
It appears clear from these cases that, to the extent that
the judge’s order limits Lucas’ backpay to employment
opportunities lost at AVW, the remedy deviated from the
“standard” relief ordered in like cases. The judge in
IATSE I did not articulate a rationale for a limited back-
pay remedy, and we find no basis in the record of this
matter for such a limitation.
For the foregoing reasons, we clarify the scope of the
Board’s remedial order in IATSE II to provide a standard
backpay remedy. Accordingly, we order the Respondent
to make Steven Lucas whole for any loss of earnings and
other benefits he may have suffered as a result of the
Respondent’s refusal to refer him from the exclusive
hiring hall, with interest. Backpay and interest are to be
computed in the manner set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
It is ordered that this proceeding be remanded to the
Regional Director for Region 28 for further action con-
sistent with this Decision.

8 Other cases apply the same remedy. See, e.g., Stagehands Referral
Service, 347 NLRB No. 101 (2006) (arbitrary denial of referrals); Elec-
trical Workers Local 48 (Oregon-Columbia Chapter), 344 NLRB 829
(2005) (out-of-order dispatch); Electrical Workers Local 28, 342
NLRB 101 (2004) (egregious errors in dispatching employees); Iron-
workers Local 433 (Steel Fabricators Assn.) 341 NLRB 523 (2004)
(union’s actions made registering for referral futile); Denver Theatrical
Stage Employees Local 7 (IATSE), 339 NLRB 214 (2003) (referrals
made without reference to objective criteria); Local 1, Amalgamated
Lithographers of America (Metropolitan Lithographers Assn.), 336
NLRB 801 (2001) (referrals denied because of unsuccessful candidacy
for union office); Pipefitters & Steamfitters Local 247, 332 NLRB 1029
(2000) (unexplained denial of opportunity to register on referral list);
Electrical Workers Local 3 (White Plains), 331 NLRB 1498 (2000)
(referral conditioned on command of union’s constitution and bylaws);
Painters Local Union No. 1255 (Alaska Constructors), 241 NLRB 741
(1979) (unlawful temporary ban from hiring hall); Electrical Workers
Local 367 (Penn-Del-Jersey Chapter, NECA), 230 NLRB 86 (1977),
enfd. 578 F.2d 1375 (3d Cir. 1978), cert. denied 439 U.S. 1070 (1979)
(same).