Teamsters Local 509 (ABC Studios)

National Labor Relations Board - Board Decisions

Dec 13, 2011

357 N.L.R.B. 1668 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL ALBOR REALTIONS BOARD
357 NLRB No.138
1668
International Brotherhood of Teamsters, Local 509
(Touchstone Television Productions, LLC d/b/a
ABC Studios) and Thomas Troy Coghill. Case
11–CB–004020
December 13, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On March 9, 2011, Administrative Law Judge Michael
A. Marcionese issued the attached decision in this con-
solidated unfair labor practice and backpay case. The
Respondent, International Brotherhood of Teamsters,
Local 509, filed exceptions and a supporting brief. The
Acting General Counsel and Charging Party Thomas
Troy Coghill filed answering briefs, and the Respondent
filed a reply brief.
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, find-
ings,1 and conclusions and to adopt the recommended
Order.2
We adopt the judge’s findings that the Respondent vio-
lated Section 8(b)(1)(A) of the Act by failing to place
Coghill on its referral list for arbitrary, discriminatory,
and invidious reasons and thereafter by failing to refer
him for employment, and violated Section 8(b)(2) of the
Act by causing the Employer to discriminate against
Coghill by not hiring him to work for season three of
Army Wives because he was not a member of the Re-
spondent local.
The Respondent contends that it did not discriminate
against Coghill by denying him placement on the referral
list, because it had closed the list to new applicants be-
fore season three began. We find this argument unavail-
ing. The manner in which the Respondent maintained the
list was itself unlawful and discriminatory. As the judge
found, the Respondent operated an exclusive hiring hall
that excluded nonmembers such as Coghill. The opera-
tion of such a hiring hall violates the Act. See Morrison
Knudsen, 291 NLRB 250, 259 (1988) (union that oper-

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all 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.
No exceptions were filed to the judge’s finding that the Respondent
operated an exclusive referral hall.
2 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
ates an exclusive hiring hall is obligated to refer individ-
uals without regard to their union membership or lack
thereof). The Respondent’s action in closing the list,
purportedly to preserve available work for members cur-
rently or, in certain circumstances, previously on the list,
merely perpetuated the unlawful effect of its prior
maintenance of a members-only, exclusive hiring hall.
Further, regardless of whether the list was open or
closed, the Respondent would not have placed Coghill, a
nonmember, on the list or referred him for employment.3
Accordingly, we find that, by excluding nonmembers,
including Coghill, from its movie referral list, the Re-
spondent operated a discriminatory hiring hall and un-
lawfully encouraged union membership among employ-
ees, in violation of Section 8(b)(1)(A) and (2).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Brotherhood of
Teamsters, Local 509, Cayce, South Carolina, its offic-
ers, agents, and representatives, shall take the action set
forth in the Order.

Rosetta B. Lane, Esq., for the General Counsel.
Justin P. Keating, Esq., for the Respondent.
W. James Young, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Charleston, South Carolina, on February 23–
25, 2010. Thomas Troy Coghill, an individual, filed the charge
in Case 11–CB–004020 on February 9, 2009, and amended it
on March 30, 2009. On January 29, 2010, based upon this
charge and the two charges that have been severed, the General
Counsel issued an amended consolidated complaint and com-
pliance specification, which was subsequently amended further
on February 5, 2010. The amended consolidated complaint, as
it relates to Charging Party Coghill, alleges inter alia, that In-
ternational Brotherhood of Teamsters Local 509, the Respond-
ent, violated Section 8(b)(1)(A) and (2) of the Act, in the opera-
tion of an exclusive hiring hall, by arbitrarily refusing to place
applicants, including Coghill, on its movie referral list, and by
refusing to refer Coghill for employment with Touchstone Tel-
evision Productions, LLC d/b/a ABC Studios, an employer
within the meaning of the Act, since November 17, 2008.1 The
compliance specification issued concurrently with the com-
plaint and consolidated for hearing alleges that the Respondent

3 Our holding here is limited to the facts of this case. Whether, in
other circumstances, a union may lawfully close a lawful referral list
due to the number of applicants and the amount of available work is not
before us.
1 All dates herein are in 2008, unless otherwise indicated.
TEAMSTERS LOCAL 509 (ABC STUDIOS) 1669
owes Coghill $55,467.62 in net backpay, plus interest, as a
remedy for its alleged unfair labor practices.
On February 18, 2010, the Respondent filed an amended an-
swer to the consolidated complaint and compliance specifica-
tion in which it denied, inter alia, that it operated an exclusive
hiring hall and that it arbitrarily refused to place applicants on
its movie referral list. Although the Respondent admitted that it
failed and refused to place Coghill on its movie referral list
since November 17, 2008, and failed and refused to refer him
for employment by the Employer, ABC Studios, it denied vio-
lating the Act by doing so and further denied that it operated its
hiring hall in a discriminatory, arbitrary, and capricious man-
ner. With respect to the compliance specification, the Respond-
ent denied that it owed any backpay to Coghill because the
Employer had the authority to hire Coghill despite his not being
on the referral list. The Respondent further asserts, in answer to
the compliance specification, that the Employer was planning
not to hire Coghill for the production in question, even if his
name was on the referral list. The Respondent’s answer also
raised issues with the formula used to calculate backpay and
with Coghill’s interim earnings and mitigation efforts.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Touchstone Television Productions, LLC, d/b/a ABC Studi-
os, the Employer, is a California corporation that has been en-
gaged in the production of a television series titled, Army
Wives, at a facility in Charleston, South Carolina. The Employ-
er annually purchases and receives at its Charleston facility
goods valued in excess of $50,000 directly from points outside
the State of South Carolina. The Respondent admits and I find
that the Employer is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
As noted above, the Employer produces the television series
Army Wives in and around Charleston, South Carolina. The
pilot was filmed in August 2006. Season one was filmed in
2007, season two in 2008, and season three in 2009. Season
four was in production at the time of the hearing in early 2010.
The dispute in this case concerns the Employer’s hiring of driv-
ers for season three.
Respondent Union represents drivers employed by UPS,
Owens Corning, AGY, Pet Dairy, and other companies within
its geographic jurisdiction. In addition, the Respondent operates
a referral service for individuals seeking employment as drivers
in the television and motion picture production industry within
its territory. The Respondent’s geographic jurisdiction encom-
passes all but the five northern counties of South Carolina.
Because of incentives offered by the State of South Carolina,
there has been an increase in the number of production compa-
nies using the State as the location for films, television pro-
grams, and commercials. There is no dispute that, as a result of
this growth in the business, there have been occasions when the
Respondent has had an insufficient number of qualified drivers
available for referral. There is also no dispute that, at least
when the dispute in this case arose, the referral list maintained
by the Respondent was a members-only list.
The Employer recognized the Respondent as the exclusive
collective-bargaining representative of drivers to be employed
on Army Wives before any drivers were hired. Although the
parties did not execute a collective-bargaining agreement until
after production of the pilot episode was completed, there is no
dispute that the Employer’s transportation coordinator, Lee
Siler, contacted the Respondent for a list of qualified drivers
when he began staffing the pilot. Siler is a member of Team-
sters Local 399 in Los Angeles. He served as the transportation
coordinator for the pilot and all four seasons of Army Wives.
On this production, he reported to Unit Production Manager
Barbara D’Alessandro. Both Siler and D’Alessandro testified in
this proceeding as witnesses for the General Counsel. I general-
ly found them to be credible witnesses.
The Respondent’s president and business agent, L.D. Fletch-
er, is responsible for administering the Respondent’s movie
referral service. He also is the union representative who con-
ducts negotiations with producers over the terms of collective-
bargaining agreements and processes grievances that arise dur-
ing production. The evidence indicates that the Respondent
utilizes essentially a standard agreement to cover movie and
television productions that may be modified to meet the needs
of individual employers, which is what happened in this case.
The initial agreement negotiated between the Respondent and
the Employer for Army Wives contained the following referral
language:
Article V

Employment

(a) The parties hereto recognize the conditions in this industry
require frequent hiring of drivers on a daily non-continuing
basis. For this purpose, the Union shall maintain, for the con-
venience of the Producer and the employee, a referral service
which shall in all respects comply with all applicable provi-
sions of law.

(b) The producer agrees to request referrals for all drivers re-
quired for work covered by the Agreement, from the Union.

A side letter to the agreement negotiated before the start of
production on season one, but after completion of the pilot,
contained the following language modifying article V:

It is understood in Article V Employment, that the Producer re-
tains the right to reject any applicant referred from the Union.

Siler testified that, in hiring for the Army Wives pilot, and
each succeeding season, he requested a copy of the Respond-
ent’s “movie referral list,” as required by the above-contract
language. Siler hired Robert Gillis, a member of another local
of the Teamsters, to be his captain, running the day-to-day op-
erations. Gillis was not on the Respondent’s list. Siler hired two
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1670
other employees who were not on the list to operate special
equipment, i.e., the honey wagon and the production van. He
did this because the Respondent did not have drivers qualified
to operate this type of equipment. The Respondent did not ob-
ject to these hiring decisions. With respect to the rest of the
crew, Siler testified that he hires 15–20 drivers each day de-
pending upon production needs, to move equipment and crew
members to different shooting sites. Siler testified further that,
because he was not familiar with the drivers on the Respond-
ent’s list, he called each of them to ascertain their qualifications
and experience. According to Siler, he was able to put together
a crew for the pilot from the list, notwithstanding limited avail-
ability of drivers due to other productions being filmed in the
area at that time.
By the time season one started production in January 2007,
the parties had completed negotiation of the collective-
bargaining agreement with the language referred to above. Siler
testified that, due to the filming of a movie called Leatherheads
in the Respondent’s jurisdiction at the same time, many of the
drivers on the Respondent’s list were not available. In order to
fill out his crew, Siler hired drivers from Teamsters Locals 71
and 391 to work on season one. Coghill, a member of Local
391 in Wilmington, North Carolina, was one of these drivers.
Production of season two, originally scheduled to begin in Jan-
uary 2008, was delayed due to a writer’s strike and did not get
underway until March. The parties agreed to extend the collec-
tive-bargaining agreement to cover season two and, as required
by the above language, Siler contacted the Respondent for its
movie referral list before hiring drivers. Again, because many
of the drivers on the Respondent’s list, including some who had
worked for Siler on season one, were already employed on
other productions, Siler hired drivers from other Teamster lo-
cals to work until those productions ended. Coghill was hired
for season two. When one of the other productions, a film
called New Daughter, ended in April, drivers who were on the
Respondent’s list who had worked on season one returned to
Army Wives, and the off-list drivers Siler had hired left for
other productions with one exception, i.e., Coghill. Coghill was
the only nonmember of the Respondent, other than Captain
Gillis and the honey wagon and production van drivers, to work
the remainder of season two.
Two drivers who were on the Respondent’s referral list,
Frankie Padgett and Jeff Corbett, who had worked on season
one and were coming off the job with New Daughter, were not
hired by Siler for full-time positions on season two. Instead,
Siler offered them part-time day player work, which they ac-
cepted. There is no dispute that Fletcher was not happy with
this arrangement and called Siler to complain that non-509
drivers were working full time while his members were part
time. According to Siler, at one point in the conversation,
Fletcher threatened to picket the production if Siler did not
release all non-509 drivers. When Siler refused to agree to this,
Fletcher called the Employer’s labor attorney in Los Angeles,
Laura Legge, and made the same demand. Legge, who had
negotiated the collective-bargaining agreement for the Employ-
er, attempted to resolve this dispute by scheduling a meeting in
Charleston with Respondent.
The parties met on May 13 at the Employer’s production of-
fice. D’Allessandro and Siler were present for the employer and
Fletcher and Business Agent James Todd represented the Re-
spondent. Fletcher again demanded that the Employer fire any
drivers not on the list and replace them with his members.
Fletcher admitted at the hearing that he told Siler and
D’Alessandro that he “could shut you down, but I’m not going
to shut you down.” D’Alessandro recalled that Fletcher threat-
ened to picket the production. Regardless of whether such a
threat was made, the Respondent never did picket or try to shut
down the production and Coghill continued to work the re-
mainder of season two, which ended production in September.
Siler testified that he told Coghill, toward the end of produc-
tion, that if Coghill wanted to work on season three, he should
move to South Carolina, establish residency, and join the Re-
spondent.
Coghill has been working as a driver in the movie/television
production industry since 1997. In fact, Coghill testified that it
was Siler who got him started in the business. Coghill has
worked with Siler on a number of productions other than sea-
sons one and two of Army Wives. Coghill was first hired to
work on Army Wives for season one and was assigned by Siler
to drive hair and makeup trailer. There is no dispute that this is
not considered specialized equipment. When first hired to work
within the Respondent’s jurisdiction, Coghill signed an applica-
tion for membership and checkoff authorization as well as a
document agreeing to pay 2 percent of gross wages to the Re-
spondent as a service fee.2
Coghill testified that, in November 2008, as advised by Siler,
he contacted the Respondent to find out how to go about trans-
ferring his membership to the Respondent. According to
Coghill, his calls were not returned. On November 14, he wrote
to the Respondent and his home local informing them of his
intent to relocate to Charleston, South Carolina, and requesting
an application to transfer his membership. On November 17,
Coghill called the Respondent’s office to confirm receipt of his
letter. Peggy Chavis, a secretary in the Respondent’s office,
confirmed that the letter had been received. According to
Coghill, she told him that someone would be contacting him.
When he did not receive any response, Coghill continued to call
the Respondent’s office periodically from November until Jan-
uary, without success. Coghill testified that he even made
phone calls to the Respondent while he was travelling in India.
Only once was Coghill successful in reaching Fletcher. Accord-
ing to Coghill, in response to his inquiries, Fletcher told him
that the Respondent’s referral list was “closed.” Fletcher asked
Coghill if Siler had promised him a job on season three. Coghill
replied that Siler had told him that it would be easier to hire
him if Coghill was a member of the Respondent. Fletcher then
told Coghill that he didn’t have to worry about Siler because
Siler would not be around much longer. When Coghill ex-
pressed that he could not understand why he couldn’t transfer
his membership since he was a member in good standing of

2 The service fee agreement signed by Coghill, which is used with all
nonmembers working in the movie industry, makes clear that the indi-
vidual is not joining the Respondent by signing the application for
membership. Instead, he retains his membership in his home local.
TEAMSTERS LOCAL 509 (ABC STUDIOS) 1671
Local 391 and had been paying service fees to the Respondent
while working in its jurisdiction, Fletcher replied that he would
send Coghill an application and put his name of the “B” list.
Fletcher admitted at the hearing that the Respondent did not
maintain a “B” list.
Fletcher’s version of the telephone conversation with Coghill
differs in significant respects. According to Fletcher, he had
made inquiries concerning Coghill’s transfer request after first
receiving a phone message that Coghill wanted to transfer into
the local. Fletcher testified that he was told by counsel that a
member could only transfer from one local to another if he was
already working in the new local’s jurisdiction when the re-
quest was made. When Fletcher finally spoke to Coghill on the
phone, he relayed this information. Fletcher recalled that
Coghill then asked to be placed on the movie referral list.
Fletcher admittedly told Coghill that the list was closed and that
the Respondent was not accepting any more applicants at that
time.3 Fletcher did not specifically deny referring to a B list or
telling Coghill that his name would be placed on such a list.
Coghill testified that he returned to the United States on Jan-
uary 3, 2009. A package from the Respondent was waiting for
him. The package contained an “Application and Notice” and a
memo regarding the Respondent’s service fee. A post-it note
was affixed with the handwritten note: “You do not need to
send any money now. When your name comes up on the B list,
I’ll contact you! Any questions, please call.” The note is not
signed but Chavis acknowledged in her testimony that she was
the one who sent this package to Coghill. When questioned
about the “B” list referred to on the post-it note, Chavis was at
a loss. As correctly noted by the General Counsel in her brief,
Chavis offered no explanation for her reference to a list that
admittedly did not exist. Although she speculated that she
might have been referring to a wait list, she did not know when
a wait list was created, how long it had been in existence,
where it was kept, how long employees had been on the list,
what happened to employees whose names were on the list. She
did not even know where the list was on the day she testified.
Coghill testified that, upon receiving the above package from
the Respondent, he completed the “Application and Notice,”
reflecting his new address in South Carolina, and returned it to
the Respondent with a copy of his commercial driver’s license
and a completed Movie Referral Request seeking placement on
the list. Coghill also enclosed a check to cover the $100 initia-
tion fee and the first month’s administrative fee to maintain his
name on the movie referral list. On January 30, 2009, Coghill
received a letter from the Respondent’s secretary-treasurer,
Powell Caldwell, which stated:

Teamsters Local 509 is in receipt of your request to be placed
on the Movie Referral List. At this time, no additional names
are being added to the list. Therefore, we are unable to trans-
fer your membership to Local 509. I am returning all of your
paperwork and the check you sent.

It is undisputed that the Respondent, through Fletcher and
Caldwell, told Coghill that his name could not be placed on the
list. These statements to Coghill were based on action that had

3 The closure of the list will be discussed infra.
been taken by the Respondent’s executive board on June 14,
2008, while production on season two was in progress. The
minutes of that meeting reflect that Fletcher discussed with the
board “the number of people needed to have a sufficient movie
referral list.” After that discussion, a member of the board,
trustee James Todd, moved to “add only those that had been on
the list if they became current in dues or administrative fees.”
The motion passed. Fletcher testified that he asked the execu-
tive board to cap the list at that time in order to preserve work
for members already on the list. According to Fletcher, work in
the movie industry had slowed since the beginning of season
two. Fletcher testified further that he instructed Chavis, after
this motion was passed, to keep track of people who called in
wanting to be placed on the list. He acknowledged that he did
not specifically refer to this as a “wait list” in talking to Chavis.
Although Chavis referred to a “waiting list” in her testimony,
she did not corroborate Fletcher’s testimony regarding its gene-
sis. In fact, as noted above, she was clueless regarding the crea-
tion of the list and other matters one would expect her to know
about.4
While Coghill was attempting to transfer his membership or
get his name on the movie referral list, the Employer was gear-
ing up for the production of season three, scheduled to start in
January 2009. In December 2008, Legge contacted Fletcher to
begin negotiations for a collective-bargaining agreement to
cover season three. She suggested that the parties apply the
season two contract until a new agreement could be reached. In
accordance with the terms of that agreement, the Employer
requested and, on January 2, 2009, was provided a copy of the
Respondent’s movie referral list. Coghill’s name was not on the
list. Siler testified that he was under instructions to only hire
drivers from this list. As in past seasons, the captain and the
two specialty equipment drivers who were hired were not on
the list. The other drivers hired were on the Respondent’s list.
Coghill was not hired for season three. Both Siler and
D’Alessandro testified that they would have hired Coghill if his
name was on the list.
The parties had one face-to-face collective-bargaining nego-
tiation session on January 21, 2009. Legge attended this meet-
ing with D’Alessandro, Siler, and Executive Producer Harry
Bring for the Employer. Fletcher and International Representa-
tive Ron Schwab were there for the Respondent. During the
meeting, Fletcher held up the movie referral list and said, “this
is the list you are hiring from.” It is not clear from the record
when the parties reached final agreement on a new collective-
bargaining agreement. Correspondence in May 2009 shows that
an agreement was in place by then. The new agreement, to
cover seasons three and four, contained new language in article
V:

(a) The parties hereto recognize the conditions in this industry
require frequent hiring of drivers on a daily non-continuing
basis. For this purpose, the Union shall prepare and maintain,
for the convenience of the Producer and the employee, Refer-

4 In her brief, counsel for the General Counsel moved to amend the
complaint to allege that the Respondent’s closing of the movie referral
list in June 2008 violated Sec. 8(b)(1)(A). I will rule on this motion
later in this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1672
ral Lists which the Union represents and warrants are pre-
pared and maintained in compliance with all applicable provi-
sions of law. A copy of the updated Local 509 Referral List is
attached hereto as Exhibit A.

(b) The Producer agrees to request referrals for all drivers re-
quired for work covered by the Agreement, from the Union.

(c) The Producer agrees that it will offer employment to quali-
fied drivers on the Local 509 Referral Lists before Producer
offers employment to persons who are not on the Local 509
Referral Lists. The Producer has the right to hire whomever it
chooses from the Referral Lists. If the Referral List (attached
as Exhibit A) is exhausted, the Producer shall request from the
Local Union, a supplemental Referral List.

D’Alessandro testified that the Employer chose to film Army
Wives in South Carolina because of incentives offered by the
State of South Carolina to encourage this type of business. Alt-
hough the tax and other incentives are not contingent upon the
Employer hiring only residents of the State, there is evidence in
the record that State officials were pressuring the Employer and
other producers to hire more residents for political reasons.
Legge admitted in her testimony that the Employer feared that
South Carolina might change or even repeal the incentives in
response to concerns that the State was subsidizing the hiring of
nonresidents through tax dollars. Email correspondence in evi-
dence shows that the Employer made a concerted effort before
season three to increase the proportion of South Carolina resi-
dents working on the production. An October 1, 2008 email
from D’Alessandro to her superiors in Los Angeles reveals that
she specifically discussed Coghill’s situation, advising them
that transportation, presumably Siler, had agreed that only Siler,
transportation captain Gillis and honey wagon driver Stevens
would be “distant hires.” Although the Respondent argues that
this is a reference to hiring of South Carolina residents, “distant
hires” also refers to individuals hired from outside the Re-
spondent’s geographic jurisdiction. Significantly, this statement
from D’Alessandro’s email is in the context of her noting that
“LD,” i.e., Fletcher, “is still making life hell for lee [Siler].
called him this am with lots of cursing and outrageous de-
mands, etc.” (sic) It also should be noted that the transportation
department was not one of the departments that historically had
a disproportionate number of nonresidents of South Carolina. In
a January 5, 2009 email, D’Alessandro reported to her superiors
that the Employer had increased the ratio of residents to nonres-
idents on the entire crew from 90:65 to 94:61. One of the
changes noted from previous emails on the subject was to
change a slot that had been designated for Coghill in September
to “TBD,” with his position switched from nonresident to resi-
dent.
As previously noted, season four of Army Wives was filming
during the hearing. Coghill was hired to work season four be-
cause his name had been placed on the Respondent’s movie
referral list in June 2009, after the charge had been filed and
complaint issued in this case.
B. Analysis
1. The Respondent’s exclusive hiring hall
An exclusive hiring hall is an arrangement that requires an
employer who is signatory to a collective-bargaining agreement
with a union to obtain referrals for employees needed to fill
bargaining unit positions from the union. The fact that there are
exceptions that allow an employer to hire from outside the hall
under certain circumstances does not negate a finding of exclu-
sivity. Longshoremen Local 1408, 258 NLRB 132 (1981), enfd.
705 F.2d 1549, 1552 (11th Cir. 1983); Stage Employees IATSE
Local 769 (Broadway in Chicago), 349 NLRB 71 (2007). See
also Carpenters Local 608 (Various Employers), 279 NLRB
747, 754 (1986), enfd. 811 F.2d 149 (2d Cir. 1987); Laborers
Local 394, 247 NLRB 97, 101 (1980). Similarly, an employer’s
retention of the right to reject applicants referred by the Union
does not disprove the existence of an exclusive hiring hall ar-
rangement. Morrison-Knudsen, 291 NLRB 250, 258 (1988);
Plumbers Local 17 (FSM Mechanical Contractor), 224 NLRB
1262, 1263 (1976), enfd. 575 F.2d 583 (6th Cir. 1976). As the
Respondent correctly points out, the burden is on the party
asserting the existence of an exclusive hiring hall to prove it.
Carpenters Local 537 (E. I. DuPont), 303 NLRB 419 (1991),
and cases cited therein.
A finding of exclusivity is significant because the Board has
long held that a union that operates an exclusive hiring hall
violates Section 8(b)(1)(A) and (2) if it refuses to refer appli-
cants for employment because they are not members of the the
union. Longshoremen ILA Local 1423 (Savannah Maritime),
306 NLRB 942, 946 (1992). A union that operates a nonexclu-
sive hiring hall owes no duty to assist nonmembers in seeking
employment because, presumably, they can solicit work direct-
ly from signatory employers. Carpenters Local 537, 303 NLRB
at 420; Teamsters Local 460 (Superior Asphalt Co.), 300
NLRB 441 (1990).5
Applying precedent to the credible evidence in the record, I
find that the General Counsel has met the burden of proving the
existence of an exclusive hiring hall arrangement in this case.
The language in the collective-bargaining agreement negotiated
for season two, which applied to the hiring for season three at
the time Siler began hiring for that season, clearly stated that
the Employer was required to request referrals from the Union
for all drivers to be covered under the contract. Although the
Employer negotiated a modification to retain the right to reject
any referral, what the Respondent describes as “producer’s
choice,” it was clearly expected that the Union would be the
first source of employees. The contract negotiated for season
three made this even more explicit, requiring the Employer to
offer employment to persons on the list before offering em-
ployment to persons not on the list, and requiring the employer
to contact the Union for additional names if it exhausted the
first list of referrals. Significantly, nothing in either contract
explicitly gave the Employer the right to hire drivers directly

5 A union with a nonexclusive hiring hall may still be found to have
violated Sec. 8(b)(1)(A) if it refuses to assist members of the union in
finding work in retaliation for the exercise of protected concerted activ-
ities. Carpenters Local 537, supra.
TEAMSTERS LOCAL 509 (ABC STUDIOS) 1673
off the street. The fact that the Employer hired a captain, a cou-
ple of specialty drivers, and other nonlist individuals to fill
positions when there were an insufficient number of available
qualified drivers on the referral list, does not negate the exclu-
sive nature of the arrangement, as found by the Board in the
cases cited above. Moreover, Fletcher’s communications with
the Employer, his actions in filing grievances during his dispute
with Siler over Coghill’s employment, and his testimony at the
hearing, made clear his intention and understanding of the con-
tract as requiring employers to hire drivers off the movie refer-
ral list before giving work to other applicants.
The Respondent offered evidence to show that a large num-
ber of drivers who were not on the list were employed during
the period at issue by this employer and other producers in the
movie industry working within its geographic jurisdiction to
prove the nonexclusive nature of the arrangement. I find that
evidence with regard to the hiring of drivers by employers other
than this Employer is irrelevant to the decision in this case. The
only issue before me is whether this Employer had an exclusive
hiring hall arrangement with the Respondent and whether the
Respondent violated the Act in the operation of its referral sys-
tem vis-a-vis this Employer. Moreover, the evidence in the
record shows that, for much of the time that Army Wives was
filming seasons one through three in the Charleston area, it was
competing with other employers for the same types of workers.
Under these circumstances, where there was more work than
the number of qualified applicants on the referral list, the fact
that people were hired who were not on the list would not be
surprising, nor a deviation from the exclusivity of the Respond-
ent’s referral service.6
In sum, I conclude in agreement with the General Counsel
and the Charging Party that the Respondent’s movie referral list
constituted an exclusive hiring hall arrangement. However, I do
not find that the Respondent’s arbitrary closing of the list in
June 2008 violated the Act because counsel for the General
Counsel’s motion to amend the complaint to allege such a vio-
lation was untimely. Although the General Counsel was aware
during the investigation that the list had been “closed,” no alle-
gation was included in the initial complaint or any subsequent
amendments. Even when the issue came up in testimony at the
hearing, counsel failed to advise the Respondent that its actions
in June 2008 were being challenged as unlawful. Had the Re-
spondent been so notified, it might have called additional wit-
nesses or presented other evidence to justify the decision to
close the list. In addition, the Respondent would presumably
have addressed the issue in its brief had it known of the
amendment. Only after the hearing was closed and briefs were
filed did the Respondent get notice of this potential additional
violation. Under these circumstances, I find that the issue was
not “fully and fairly litigated” and that Respondent was denied
due process by the posthearing attempt to amend the complaint.
2. The Respondent’s treatment of Coghill
There is essentially no dispute that the Respondent refused to
place Coghill’s name on its movie referral list in November

6 Respondent in effect created this situation by limiting its referral
list to its own members, thus limiting the supply of eligible employees
to refer.
2008 and, as a result, failed and refused to refer him to em-
ployment for season three of Army Wives. There is also no
dispute that Coghill was not a member of the Respondent and
his request to join the Respondent by transferring his member-
ship from Local 391 was rejected by the Respondent. Because
the Respondent’s movie referral list was a members-only list at
the time, this prevented Coghill from getting on the list, which
the Employer was contractually required to use as a source for
employees. The General Counsel alleges that these actions by
the Respondent violated Section 8(b)(1)(A) and (2) of the Act.
The Respondent contends that it’s actions were not unlawful
because Coghill was not prevented from seeking employment
on his own. The Respondent’s argument is predicated upon a
finding that the movie referral list was not an exclusive hiring
hall arrangement, a claim I have rejected. The evidence in the
record shows clearly that the Respondent, through Fletcher,
demanded that the Employer only hire from the list for season
three and specifically that the Employer not hire Coghill. I
credit the testimony of Siler and D’Alessandro that, were it not
for these demands, Coghill would have been hired for season
three based upon its practice of trying to retain the same crew
members season to season. I find that the General Counsel has
met the burden of proof here and that the Respondent’s treat-
ment of Coghill was arbitrary and discriminatory, and a breach
of its duty of fair representation. I find further that this conduct
caused the Employer not to hire Coghill for season three.
The Respondent attempted to avoid such a finding by sub-
mitting evidence to show that Coghill’s loss of employment
was not caused by the action of its agents but by the State of
South Carolina’s efforts to encourage the employment of its
residents by producers receiving tax incentives for filming in
the State. I am not persuaded by this evidence. As counsel for
the General Counsel points out in her brief, had the Respondent
placed Coghill’s name on the list, or allowed him to transfer his
membership as he requested in November, he would have
moved to South Carolina and become a resident before anyone
was hired for season three. Similarly, the October memo from
D’Alessandro referring to “distant hires” would not have ap-
plied to Coghill because he would not be a distant hire if he was
a member of the Respondent or had been placed on the list.
Finally, the January 2009 email in which Coghill’s slot was
changed from a nonresident hire to a resident hire “to be deter-
mined” would not have prevented Coghill being hired if the
Respondent had allowed him to join the local or placed his
name on the list because he would have become a resident by
that time.
Accordingly, I conclude based on the above and the record
as a whole that the Respondent violated Section 8(b)(1)(A) and
(2) of the Act by its actions toward Coghill.7
III. COMPLIANCE SPECIFICATION
In a typical unfair labor practice proceeding, my decision
would end here with conclusions of law, a recommended reme-

7 In view of my findings above, I need not address counsel for the
General Counsel’s alternative argument that Respondent’s conduct
would be unlawful even if the Respondent operated a nonexclusive
hiring hall, an allegation not raised in the amended consolidated com-
plaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1674
dy, and proposed order. Any issues arising with regard to back-
pay would be handled in a separate compliance proceeding only
after the Board had ruled on any exceptions filed to my unfair
labor practice decision. In this case, the General Counsel has
chosen to consolidate the compliance proceeding with the un-
fair labor practice case so I must address backpay issues raised
by the Respondent’s answer to the compliance specification.
As noted above, the Respondent denied that any backpay
was due based on its claim that Coghill would not have been
hired for season three even assuming the Respondent was inno-
cent of any unfair labor practice. I have already rejected that
claim in making my determination above. In its answer, the
Respondent also challenged some of the General Counsel’s
backpay computations to arrive at gross backpay. At the hear-
ing, the Respondent stipulated that, if an unfair labor practice
were found, the amount of gross backpay computed and the
General Counsel’s method of calculating it by using the earn-
ings of a comparable employee was accurate. The only issue
remaining for determination then is whether Coghill satisfied
his duty to mitigate damages. As to these issues, the burden is
on the Respondent. See Pope Concrete Products, 312 NLRB
1171 (1993), enfd. 67 F.3d 300 (6th Cir. 1995).
The compliance specification alleges and the Respondent has
agreed that the backpay period in this case begins on November
17, 2008, the date the Respondent refused to include Coghill’s
name on the movie referral list and ended sometime in Decem-
ber 2009 when the Respondent included Coghill’s name on the
referral list used by the Employer to hire drivers for season
four. As noted, the Respondent stipulated that the General
Counsel’s use of a comparable employee’s earnings to calculate
what Coghill would have earned during this period was accu-
rate. Using employee Joey Ricker’s earnings resulted in a gross
backpay calculation of $66,500.19, which the Respondent has
stipulated was accurate. The General Counsel has reported that
Coghill had interim earnings in every quarter of the backpay
period totaling $11,032.57. When the interim earnings are de-
ducted from gross backpay on a quarterly basis, they result in
net backpay of $55,467.62, which is the remedy the General
Counsel seeks for the unfair labor practice found above.
Coghill testified at the hearing about his efforts to mitigate
backpay in response to questions from the Respondent’s coun-
sel. The Respondent also had available records kept by Coghill
regarding his search for work, including the quarterly Claim-
ant’s Expense, Search for Work and Interim Earnings Reports
that he had submitted to the Region. At the hearing and in brief,
the Respondent narrowed its mitigation defense to a claim that
Coghill should be denied backpay for the period May 10
through July 7, 2009, relying on a statement contained in one of
the reports he filed with the Region. In the report for the second
quarter of 2009, Coghill wrote the following:

I was unemployed and looking for work as directed by Va.
Employment Commission. Work with MKC became unavail-
able and I lived off my savings and tax return as my unem-
ployment was frozen. My records of the job search are too
sketchy to document for these proceedings, so I will not try.
(sic)

(Emphasis added). Although counsel for the General Counsel
solicited testimony from Coghill regarding his efforts to find
work during this period and put in evidence telephone records
showing calls made to contacts Coghill had in the movie indus-
try, former employers and other prospects, Respondent argues
that the statement on the form show be credited as proof that he
failed to look for work during this approximately 2-month peri-
od. The Respondent seeks to reduce Coghill’s backpay award
by $9,667.70 to reflect this period.
The Board and the courts have consistently held that a dis-
criminatee is only required to make reasonable efforts to miti-
gate damages and that they are not held to the highest standard
of diligence. The burden is not onerous and the fact that an
employee was unsuccessful in finding interim employment for
part of the backpay period is not fatal. Pope Concrete Products,
supra at 1172, and cases cited therein. See also Phelps Dodge v.
NLRB, 313 U.S. 177, 199–200 (1941); NLRB v. Mastro Plastics
Corp., 354 F.2d 170, 175 (2d Cir. 1965), cert. denied 384 U.S.
972 (1966). In addition, an individual’s efforts to find other
work during the entire backpay period, rather than in any par-
ticular quarter, must be considered in determining whether his
efforts were reasonable. Black Magic Resources, Inc., 317
NLRB 721 (1995); Rainbow Coaches, 280 NLRB 166, 179–
180 (1986). The Board has also held that an employee’s faulty
recollection, poor recordkeeping, or exaggeration with respect
to his job search efforts is ordinarily not enough to prove lack
of reasonable diligence in seeking other work. Laredo Packing
Co., 271 NLRB 553, 556 (1984); Arduini Mfg. Co., 162 NLRB
972, 975 (1967), enfd. 395 F.2d 420 (1st Cir. 1968).
Having considered the testimony and other evidence, I find
that the Respondent has not met its burden of showing that
Coghill did not make reasonable efforts to mitigate damages
during the backpay period, notwithstanding the above statement
contained on the form he previously submitted to the Region.
His testimony at the hearing, supported by the interim earnings
he did receive and the phone records in evidence, show that
Coghill made reasonable efforts to seek employment and was
not idle during any part of the backpay period. The fact that he
had a 2-month period when his efforts were not successful does
not negate the evidence of his successful efforts before and
after this period.
Although the Board, more recently, has accepted prehearing
unsworn statements contained in agency reports as proof of
lack of diligence when contradicted by sworn testimony at the
compliance hearing, that is not the case here. Domsey Trading
Corp., 351 NLRB 824, 836 (2007). In Domsey, the discrimi-
natee had earlier reported he was physically unable to work but
testified at the hearing to the contrary. Coghill’s statement on
the form was simply that his records were too “sketchy” to
document his job search during this particular period, not that
he didn’t make such efforts. I find that his testimony was not
inconsistent with the earlier statement and that, as a whole,
Coghill made reasonable efforts to mitigate damages.
Accordingly, based on the above, I find that the net backpay
calculated by the General Counsel is the correct amount owed
to Coghill as a result of the Respondent’s unlawful conduct.
CONCLUSIONS OF LAW
1. By failing and refusing to place the name of Thomas Troy
TEAMSTERS LOCAL 509 (ABC STUDIOS) 1675
Coghill on its movie referral list, for arbitrary, discriminatory,
and invidious reasons, on and after November 17, 2008, and by
failing and refusing to refer him to employment on Army
Wives season three, the Respondent has breached its duty of
fair representation owed to Coghill and has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(b)(1)(A) and Section 2(6) and (7) of the Act.
2. By the above conduct, the Respondent caused the Em-
ployer, Touchstone Television Productions, LLC d/b/a ABC
Studios, to discriminate against Coghill by not hiring him to
work on Army Wives season three because he was not a mem-
ber of the Respondent, and has engaged in unfair labor practic-
es affecting commerce in violation of Section 8(b)(2) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Because the Respondent has already
placed Coghill’s name on the movie referral list and referred
him to employment with the Employer for Army Wives season
four, I shall not recommend an affirmative order requiring the
Respondent to place him on the list or refer him for employ-
ment. However, I shall recommend that the Respondent be
ordered to cease and desist denying nonmembers access to its
movie referral list and the employment opportunities that en-
tails. I shall also recommend that the Respondent be ordered to
make whole Coghill for the loss he incurred as a result of the
Respondent’s unlawful conduct toward him by paying him
backpay in the amount of $55,467.62, with interest to be com-
puted daily in accordance with the Board’s recent decision in
Kentucky River Medical Center, 356 NLRB 6, 9–10 (2010).
Finally, in accordance with the Board’s decision in J. Piccini
Flooring, 356 NLRB 11, 15–16 (2010), I shall recommend that
the Respondent be required to distribute the attached notice to
members and employees electronically, if it is customary for
the Respondent to communicate with employees and members
in that manner. Also in accordance with that decision, the ques-
tion as to whether a particular type of electronic notice is ap-
propriate should be resolved at the compliance stage. Id, slip
op. at p. 3.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, International Brotherhood of Teamsters,
Local 509, Cayce, South Carolina, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Failing and refusing to place Thomas Troy Coghill, or
any other individual seeking employment in the movie industry,
on its movie referral list for arbitrary, discriminatory, or invidi-

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ous reasons.
(b) Causing or attempting to cause Touchstone Television
Productions, LLC d/b/a ABC Studios, or any other employer
that is signatory to its “Movie Agreement,” to refuse to hire
Coghill or any other applicant because they are not a member
of the Respondent.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Coghill whole for any loss of earnings and benefits
suffered as a result of the Respondent’s unlawful refusal to
place his name on the movie referral list and refer him to em-
ployment on Army Wives season three by paying to him
$55,467.62, with interest computed in accordance with Ken-
tucky River Medical Center, 356 NLRB 6 (2010), enf. denied
on other grounds sub nom. Jackson Hospital Corp. v. NLRB,
647 F.3d 1137 (D.C. Cir. 2011).
(b) Within 14 days after service by the Region, post at its un-
ion office in Cayce, South Carolina, copies of the attached no-
tice marked “Appendix.”9 Copies of the notice, on forms pro-
vided by the Regional Director for Region 11, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees and members are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or inter-
net site, and/or other electronic means, if the Respondent cus-
tomarily communicates with employees and members by such
means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material.
(c) Sign and return to the Regional Director sufficient copies
of the notice for posting by Touchstone Television Productions,
LLC d/b/a ABC Studios, if willing, at all places at the Employ-
er’s Charleston, South Carolina facility where notices to em-
ployees are customarily posted.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
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 violated
Federal labor law and has ordered us to post and obey this no-
tice.

9 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1676
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain on your behalf with
your employer.
Act together with other employees for your benefit and
protection.
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT fail and refuse to place Thomas Troy Coghill,
or any other individual seeking employment in the movie in-
dustry, on our movie referral list for arbitrary, discriminatory,
or invidious reasons.
WE WILL NOT cause or attempt to cause Touchstone Televi-
sion Productions, LLC d/b/a ABC Studios, or any other em-
ployer that is signatory to our “Movie Agreement,” to refuse to
hire Coghill or any other applicant because they are not a mem-
ber of this Union.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Coghill whole for any loss of earnings and
other benefits resulting from our unlawful conduct toward him,
less any net interim earnings, plus interest, as set forth in the
Board’s order.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 509 (TOUCHSTONE TELEVISION PRODUCTIONS,
LLC D/B/A ABC STUDIOS)