Stage Employers Local 39 (Freeman Decorating)

National Labor Relations Board - Board DecisionsOct 5, 1989

296 N.L.R.B. 1161 (N.L.R.B. 1989)

STAGE EMPLOYEES LOCAL 39 (FREEMAN DECORATING) International Alliance of Theatrical , Stage Employ- ees & Motion Picture Operators (IATSE), Local 39 (Freeman Decorating Company; Zev Bufman Entertainment , Inc.) and Robert John Austin. Case 15-CB-3199 October 5, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On August 12, 1987, Administrative Law Judge William A . Gershuny issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The National Labor Relations Board had delgated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions, and to adopt the recommended Order. ' The evidence does not support any inference suggested by the judge 's decision that the order of employees on the journeyman I list is based on the dates that the employees were accepted into the Respondent Local The General Counsel offered no evidence to contradict Business Agent Kraus' testimony indicating that the order of employees is estab- lished by the date that the employee met the objective requirement for journeyman I status , and that if more than one employee qualified on the same date, the order between them is determined by years of experience in the industry Although the journeyman I list and the membership ap- plications in evidence do show a general consistency between placement on the journeyman I list and the date stamped on the employee's applica- tion, there is no showing that the consistency is anything but the coninci- dental result of the qualification standard for journeyman I status and Local membership being the same The General Counsel contends that 11 journeyman Its were promoted to journeyman I in February 1984 because they were credited with time spent picketing in 1983 to meet the journeyman I qualification standard The judge found that there was no evidence that the journeyman [Is had failed to meet the applicable qualification standard because the General Counsel had not shown what the standard was at the relevant time He added that it would be proper to credit , for the purpose of promotion to journeyman I, the hours that were spent picketing We do not rely on the judge 's latter statement but adopt his finding for the following reasons The General Counsel elicited very little testimony about the procedure for promoting a journeyman II to journeyman I status The only person whom he asked about the 1984 promotions testi- fied that he did not know how those promoted had qualified, because that determination was made by the Investigating Committee . The Gen- eral Counsel made no attempt to identify or question members of the Committee Although it can be deduced from the record evidence that the applicable standard for promotion in 1983 -1984 was 1000 hours of work in 1 year , the General Counsel assumed , without offering proof, that the qualification year was a calendar year Documentary evidence indicates that promotions occurred throughout the year so that an infer- ence of a calendar year standard is unwarranted Accordingly , evidence that the journeyman Its failed to work 1000 hours in calendar year 1983 fails to establish that they did not meet the qualification standard actually relied upon by the Committee The record does not support the judge 's statement that witnesses Lion, Walker, Tharp , and Bushnell testified that they knew that the criteria for becoming a journeyman I is separate from the criteria for joining the Local . This does not affect our decision because there is no evidence that the Respondent told any employees that they had to join the Union to get on the journeyman I list 1161 ORDER . The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Clement J. Kennington, Esq., for the General Counsel. Harry E. Forst, Esq., of New Orleans, Louisiana, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY , Administrative Law Judge. Five days of hearing were conducted in New Orleans, Louisiana , commencing on 20 April 1987, on complaint issued 17 July 1986, as amended 26 February 1987, 5 March , 15 April, and again during the hearing , alleging a number of violations of Section 8(b)(1)(A) of the Act, arising out of the operation of Respondent 's hiring hall. On the entire record , including my observation of wit- ness demeanor, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act, and that the employers designated above are employers subject to the Act, within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At all relevant times, Respondent and a number of convention service contractors in the New Orleans area were parties to four labor agreements, which, in relevant part, provided that Respondent would be the exclusive source of referrals for journeymen and helpers. The agreements permitted contractors to request specific indi- viduals to be referred. Effective 1 July 1986, the contracts were renegotiated so as to change the referral ratios, i.e., the number of helpers to be referred in relation to the number of jour- neymen . This latter provision is particularly relevant to the principal issue in this case and will be discussed in greater detail below . Four referral lists, again to be dis- cussed in greater detail later , were established by Re- spondent : the journeyman-I list , the journeyman-II list, the helper-I list, and the helper -II list . These lists were rotated daily , i.e., each day when referral calls were made, beginning generally late in the afternoon of a par- ticular day , Respondent started at the top of each list. B. The Guzman Representation Concerning Insurance Eligibility The complaint alleges that Assistant Business Manager Guzman told nonunion journeymen that they, as non- union journeymen, would have to work 1300 hours per 296 NLRB No. 152 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD year through the hiring hall to be eligible for insurance coverage , whereas union journeymen had to work only 1000 hours . For reasons set forth below , this allegation is dismissed. The contract provisions for insurance coverage are clear and undisputed as to their eligibility provisions; one, the insurance coverage is nondiscriminatory, i.e., coverage is available to journeymen regardless of union membership ; and two, initial year eligibility requires 1300 hours of work under the contract, while continued eligi- bility requires 1000 hours. The substance of the conversation is disputed , and, in my opinion , result from the fact that Guzman, who is foreign born and whose primary language apparently is Spanish , is quite difficult to understand . During athe course of his testimony , I myself had considerable diffi- culty in understanding Guzman , and I find it not surpris- ing that some journeymen , whose contact with Guzman was limited , would have difficulty following his explana- tion of this complicated coverage provision . According- ly, I find and conclude that Guzman did not intend to misstate the coverage provisions , but that due to lan- guage difficulties, his statements were misinterpreted by the nonunion journeymen in question. C. The Threats of Business Agent Kraus The complaint alleges that Kraus threatened nonunion journeyman Reites with nonspecific action because of Reites position as a discriminatee in this case . In this regard , Reites testified that the incident occurred at 3 a.m. in a bar after he had been drinking at a number of bars for more than 5 hours. He testified, incredibly I conclude, that during his 5 -hour drinking evening, he had not more than eight beers . Kraus was unable to recall the details of the meeting , because he had been drinking so heavily. I confirm my observation made at the hearing that the allegation must be dismissed for want of proof, for the reason that both parties to the conversation were at the time under the influence of al- cohol and their ability to recall was severely impaired. I will not engage , in these important proceedings, in the suggestion of the General Counsel that I determine which of the two drunken individuals is the more credi- ble in this instance. D. The Discriminatory Hiring Hall Practices Paragraph 14 of the complaint , as amended as late as the first day of the hearing , alleges that since 10 January 1986, Respondent "has based its [hiring hall] referrals of journeymen upon length of union membership , thereby discriminating against [one] member and [eight] non- member applicants for employment . . . because of union membership considerations rather than any objective considerations unrelated to union membership " in viola- tion of Section 8(b)(1)(A) and (2) of the Act. Each of the labor agreements establishes three job classifications : journeyman , helper-I , and helper-II. In implementing these contracts , Respondent established four lists : journeyman-I, journeyman-II, helper-I, and helper-II. The current journeyman -I list is comprised of journey- men with 1000 hours of work experience for 2 consecu- tive years . These are the same current requirements for Local 39 membership . The evidence is unclear as to what those requirements were prior to 1985 . All journey- men on the journeyman -I list are Local 39 members, with the exception of one who resigned or was removed from the Union after making the journeymen -I list. There is no evidence that any eligible journeyman was denied advancement to the journeyman-I list because of a refusal to join Local 39. The current journeyman-II list is comprised of jour- neymen with 500 hours of work as a helper -I for 2 con- secutive years . A number of journeymen on this list are members of other IATSE locals, but have not yet met the work requirements for membership in Local 39. There is no residency requirement for either journeyman list, and helpers may move directly to the journeyman-I list, if they meet the requirements for that list. This in fact happened under the prior agreement under which helpers accumulated large numbers of hours because of a formula calling for 40 percent of the work force to be comprised of helpers. The evidence in this record indicates that the order of the names on the lists is determined, in the case of the journeyman-I list , by the date of admission into Local 39, which apparently also is the date on which the work ex- perience was verified by a review board composed of union and contractor representatives; and, in the case of the journeyman-II list, by the date on which the experi- ence requirements were verified. When a number of ap- plicants are admitted on the same day, then , as to either list, seniority is determined within the group on the basis of overall work experience. Most of the referral work is under the Master Agree- ment, whose signatories put on entire conventions at major hotels, the New Orleans Convention Center, and River Gate, another major exhibition hall in the central business district of New Orleans, or erect and dismantle convention booths . Both require the same general skills. A limited amount of referral work is under a contract covering commercial/industrial shows where the rates are $4 an hour higher or under other agreements conver- ing theatrical work . This work often requires particular skills not possessed by stagehands generally. The contracts give to the Union the responsibility for establishing all referral procedures , except in two re- spects : one, the contractors retain the authority to make specific name requests for journeymen on either the I or II lists; the other, the contracts contain ratios which govern the number of helpers to be referred to a particu- lar job . This latter provision underwent a significant change on 1 July 1986 . Under the old agreement , refer- rals to a single contractor were made on a formula of 60 percent journeymen , 20 percent helper-I , and 20 percent helper-II . This resulted in less work for journeymen gen- erally, but he impact was felt more severely by those on the journeyman -II list, since the lists rotated daily and the journeyman -I list had to be exhausted before the journeyman-1I list was used . Under that formula, helpers could easily move from the helper-I list directly to the STAGE EMPLOYEES LOCAL 39 (FREEMAN DECORATING) journeyman-I list, bypassing the journeyman -II list, and winding up with "preferential" treatment over journey- men on the II list who were not receiving much work. Under the new 1 July 1986 contract , this "ratio" was eliminated and, in its stead , is a formula which calls for helpers on a job only after the 35th journeymen is re- ferred. The effect on all journeymen was favorable and immediate : all journeymen were receiving more work; the journeyman-II list was dipped into by the Union much more frequently ; journeyman on that list could more easily qualify for the I list ; and helpers could no longer accumulate enough hours to skip over the jour- neyman-II list directly to the I list . Not surprising is the fact that the discriminatees in this case , one journeyman from the I list and eight from the II list , testified to no complaints as to the operation of the referral service under the current contract. Job orders , and thus job referrals , generally commence late in the afternoon and continue through the early hours of the next day. Respondent rotates its referral lists over this afternoon -to-afternoon period of time, i .e., on a "daily" basis . For helpers , Respondent 's business agent or his assistant exhaust the helper -I list before turning to the helper-II list . The identical procedure is used for journeymen referrals , and the journeyman -II list is used only after the journeyman- I list is exhausted. The effect is to give, each day, the more senior stagehands (all but one of whom are Local 39 members) greater job oppor- tunities over the less experienced stagehands on the jour- neyman-II list , some of whom are members of other IATSE locals, but none of whom are yet eligible for want of work experience for Local 39 membership or a position on the journeyman -I list. As set forth above, the complaint alleges that Re- spondent unlawfully based its referrals of journeymen upon "length of union membership " rather than objec- tive considerations unrelated to union membership. In his brief, counsel for General Counsel particularizes that general allegation by contending that it is Respondent's establishment of a separate journeyman-I list, confined to Local 39 members, and rotated daily so as to give daily referral preferences to its members, that violates the Act. That contention , however, is premised on assumptions which find no support in this record, i.e., they are based on speculation, and, accordingly, paragraph 14 of the complaint must be dismissed for want of proof. Board law is now clear that the operation of hiring halls must be based on objective criteria unrelated to union membership . E.g., Stage Employees IA TSE Local 646 (Parker Playhouse), 270 NLRB 1425 (1985). Board law is clear , and at the hearing counsel for General Counsel conceded that hiring hall rules which give refer- ral preferences based on length of service with employ- ers are lawful , objective criteria. This case, then, does not turn on an interpretation of the law, but rather on an analysis of the facts. The starting point for General Counsel 's argument- indeed , the essential element of the case-is that the jour- neyman-1 list , from which first referrals are made on a daily rotational basis, is established for members of Local 39. There is no factual basis for that assumption. 1163 The journeyman-I list has objective eligibility crite- ria-1000 hours per year for 2 consecutive years. The fact that Local 39's membership requirements are identi- cal is, under the circumstances here, coincidental. As will be seen below , there is no requirement for union membership and the journeyman -I list includes one non- Local 39 member. The criteria, although not published, are known by journeyman . Discriminatee Duggan, who is on the jour- neyman-I list, testified that the criteria are known by journeymen on the II list . Recording Secretary Apple- white, called as a witness by General Counsel , testified that discriminatee Reites knew , and discriminatees Lion, Walker, Tharp, and Bushnell testified they knew. Eligibility for the journeyman -I list is determined by a joint union-management review board , not by the Local 39. The journeyman-I list is open to no-Local 39 members. These presently is one journeyman on the list who is not a member of Local 39. There presently is one journey- man on the list who is not a member of Local 39. Most importantly , however, there is not one shred of evidence that any eligible stagehand (either on the journeyman-II or helper-I list) was ever denied entrance to the journey- man-I list because of a failure or refusal to pay the $800 initiation fee and annual dues of $ 124. Indeed, counsel's characterizaton of the I list as Union and the II list as nonunion itself is without basis in fact . Not only is there a nonunion journeyman on the I list , many of the jour- neymen on the II list are IATSE members . I reject the suggestion of counsel for General Counsel that a jour- neyman's willingness to pay initiations fees and dues is evidence of the "preferential treatment" to be gained from the journeyman-I list . The history of the American labor movement teaches that large numbers of workers have been willing to bear the cost of collective represen- tation , not for the sake of economic gain , but to secure for themselves, their brothers, and their children fair treatment in the workplace through collective action. There is a valid business reason for establishing two journeyman referral lists and rotating them daily-the as- signment of more experienced journeymen to the con- tractor signatories. The record evidence supports the finding that , as a whole, journeymen on the I list are more experienced than those on the II list. Discriminatee Duggan admitted this fact, and common sense confirms it. It is not for the Board to dictate the rules for union hiring halls; its role is limited to reviewing the rules es- tablished by the union itself to ensure that they are based on objective standards , unrelated to union membership. There is no evidence of journeymen on the I list who have not met the work experience criteria for that list as established or subsequently modified by the Union. Counsel for General Counsel points to three journeymen who were placed on the I list in early 1985, without meeting the 1000-hour/2-year work requirement. That requirement , however, had been in effect only a short time prior to this hearing, and counsel for General Coun- sel failed to establish what the eligibility requirements were for the years in question , presumably 1982, 1983, and/or 1984. The evidence is clear that during that 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD period, the criteria did in fact change , and discriminatee Bushnell confirmed the fact of a change . Counsel for General Counsel also points to 11 journeymen who were moved from the II list to the I list in early 1984, without having met the 1000-hour/2-year "requirements." Again, there is no evidence as to what the criteria were for those years. These list II journeymen were given work credit for their hours of picket duty during a particularly lengthy strike, when they were deprived of work through the hiring hall . The evidence is that this credit, in the form of an amendment to the journeyman-I list eli- gibility criteria , was voted on by the Union. There is nothing in this record to indicate whether these list II journeymen were IATSE members or were nonunion. One thing is clear is that they were not Local 39 mem- bers . There is nothing in this record to indicate that picket line duty was offered to some list II journeymen and not others or that these journeymen were offered Local 39 membership (and list II placement ) in exchange for their strike support . Solidarity among workers who benefit from a union hiring hall is a proper subject for compensation in the form of work credit for lost work opportunities in the nonunion market . Counsel for Gen- eral Counsel points to no Board authority to suggest that such credits, under these circumstances , are unlawful. Because this allegation must be dismissed for want of proof, it is unnecessary to consider or reconsider Re- spondent's motion to dismiss the amendment which added journeymen discriminatees to a case originally lim- ited to one helper . Respondent in this respect contends that the amendment , otherwise untimely, is unrelated to the original charge , citing Carpenters Local 720 (Stone & Webster), 274 NLRB 1506 (1985), and that the amend- ment resulted from an improper written solicitation of journeymen by the Regional Office which in its letter represented or suggested that the Board had already de- termined that Local 39's hiring hall criteria were unlaw- ful. General Counsel's motion to file a reply brief limited to the issue of the admissibility of one posttrial exhibit is granted . General Counsel 's Exhibits 20 and 21 are re- ceived. E. The Refusal to Register and Refer Austin as a Helper This case originated with a charge limited to Austin. The complaint , in paragraph 13, alleges that Respondent, in May 1986 and thereafter , "refused to allow Austin to register for employment . . . and has refused to refer, and continues to refuse to refer, Austin to employment ... and has refused to refer, and continues to refuse to refer, Austin to employment .... .. The evidence is far from clear . Austin was flippant and less than a candid witness ; Business Agent Kraus' testimony was vague ; and there are few if any union records to corroborate either version of the events. As I piece the facts together , Austin had at some earlier time been registered with Respondent 's hiring hall , persuma- bly on the helper-II list . In mid-May, Austin appeared at the union offices to "register" and was told by an un- identified Union secretary that she knew of no "out-of- work" list. She took his name and address . Several weeks later, he returned to the union office and met with Business Agent Kraus . Austin told Kraus to call if he needed help. Kraus told him that there was little work for helpers during the slow summer months, that no ap- plications were being taken during those months, and that he should return in September when the season began . There is no evidence or suggestion that Respond- ent was taking applications from any other helper or journeyman during that period . All parties to this case, including Charging Party Austin , agree that there is little work for stagehands during the summer months of New Orleans . Austin apparently did not return to see Kraus in September , but, in the meantime , began to receive refer- rals in July , several weeks after his first meeting with Kraus. Austin testified that he was in another business, that he did not live in the New Orleans area the entire time, and that he was referred out a number of times in 1986. Union trust fund records indicate he worked 96 hours in 1986 , a fact Austin denied . Beginning with his first referrals , Austin 's work produced several letters from the largest New Orleans contractors advising the Union that Austin 's work was unsatisfactory and that he was not to be referred to them . There is no evidence or suggestion that these letters were solicited by the Union or were anything other than genuine contractor com- plaints about Austin 's work . A revised helper-II list of early 1987 shows Austin on the list . There is no evidence to indicate when his name was added to the list or how it got on the list, but the record is clear than he began to receive referrals shortly after his May visit to Kraus. The record is clear not only that the summer months are the slowest of the year, but that under the new 1 July con- tract the work available to helpers was severely restrict- ed. As stated above, helpers were referred only after the 35th journeyman was called for on a job . Given the fact that the Union maintained a helper-I and helper -II list and the further fact that the I list was exhausted before use of the II list, I find no basis for concluding that the Union refused to refer Asutin as a helper . Nor is there a basis for concluding that the union refused to refer Austin as a helper . Nor is there a basis for concluding that the union unlawfully refused to register Austin in May. It is for a union to establish hiring hall rules and the union does not violate the Act if those rules are ob- jective and applied nondiscriminatorily . Again, there is no evidence to indicate that a rule not to take applica- tions during a time when there is little work, especially for helpers , is not an objective one with a valid business purpose. And, again , there is no evidence of discrimina- tion . In fact , this is the disturbing aspect of the Austin case-there is simply nothing to indicate hostility be- tween Respondent and Austin. Indeed, he had worked out of the hiring hall in years past; he was referred out only weeks after his May visit to the union offices; and the work he performed was so unsatisfactory that he pre- cluded himself from being referred to the largest con- tractors. STAGE EMPLOYEES LOCAL 39 (FREEMAN DECORATING) 1165 This paragraph must be dismissed for want of proof. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER It is ordered that the complaint be dismissed. ' If no exceptions are filed as provided by Sec 102 .46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall , as provided in Sec . 102 48 of the Rules , be adopted by the poses