AVW-Telav, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 26, 2007

28-CB-006336 (N.L.R.B. Dec. 26, 2007)

JD(SF)–35–07
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO OFFICE
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES, MOVING PICTURE
TECHNICIANS, ARTISTS AND ALLIED CRAFTS
OF THE UNITED STATES, ITS TERRITORIES AND
CANADA, LOCAL 720, AFL-CIO, CLC
(AVW-Telav, Inc.)
and Case 28-CB-6336
STEVEN LUCAS, An Individual
And
MICHAEL SERWE, An Individual Case 28-CB-6582
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES, MOVING PICTURE
TECHNICIANS, ARTISTS AND ALLIED CRAFTS
OF THE UNITED STATES, ITS TERRITORIES AND
CANADA, LOCAL 720, AFL-CIO, CLC
(Production Support Services, Inc.)
And Case 28-CB-6555
MICHAEL YOUNG, An Individual
Joel Schochet, Esq. of Las Vegas, Nevada
for the General Counsel.
Michael Urban, Esq.
Laquer, Urban, Clifford & Hodge, LLP
of Las Vegas, Nevada, for the Respondent.
Mr. Michael Serwe, Charging Party, Pro Se.
Mr. Michael Young, Charging Party, Pro Se.
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge: This case was tried in Las Vegas,
Nevada, on August 14 and 15, 2007. The original charge, 28-CA-6555, was filed March 1, 2007
and the Order Further Consolidating Cases, Second Consolidated Complaint and Notice of
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Hearing (Complaint) issued by the Regional Director for Region 28 issued on June 28, 2007.
The Complaint alleges that Respondent International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the United States, tts Territories and
Canada, Local 720, AFL-CIO, CLC (Respondent) violated Section 8(b)(1)(A) and 8(b)(2) of the
Act by: (1) assessing non-members who use Respondent’s hiring hall and referral system, fees
that are disproportionate to the cost necessary to maintain and operate its hiring hall and
referral system and exceed the non-members’ pro-rata share of the cost of operating and
maintaining Respondent’s hiring hall and referral system;(2) causing employer AVW-Telav, Inc.,
(AVW) to discriminate against employees who are non-members of Respondent by denying
employees the right to employment by assessing non-members disproportionate fees for
utilizing its hiring hall and referral system; (3) refusing to provide charging party Steven Lucas
(Lucas) information detailing apportionment of Respondent’s costs associated with the
assessment of non-members’ fees relating to the maintenance and operation of its hiring hall
and referral system; (4) establishing and maintaining Work Rules that provide for fines of
employees who use Respondent’s hiring hall and referral system and; (5) fining employee
Michael Serwe (Serwe) and refusing to refer Serwe to employment with employers using
Respondent’s referral system because he had been charged with violating Respondent’s Work
Rules and had not paid the fine levied upon him for violating the Work Rules. Respondent filed
a timely answer to the Complaint denying any wrongdoing.
Findings of Fact
Upon the entire record herein, including the briefs from the General Counsel,
Respondents and Charging Parties, I make the following findings of fact.
I. Jurisdiction
AVW, is a Texas corporation with an office and place of business in Las Vegas, Nevada,
and engaged in the business of audio-visual presentations at shows and conventions during the
12-month period ending April 5, 2007, provided services valued in excess of $50,000 to
customers located in States other than the State of Nevada.
Production Support Services, Inc. (PSS), a Nevada corporation with an office and place
of business in Las Vegas, Nevada, and engaged in the business of audio-visual presentations
at shows and conventions during the 12-month period ending March 1, 2007, purchased and
received at PSS’ facility in Las Vegas, Nevada goods valued in excess of $50,000 directly from
points located outside the State of Nevada.
Based upon the above, AVW and PSS are and have been at all times material,
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted in its Answer and I find that Respondent is a labor organization
within the meaning of Section 2(5) of the Act.
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III. The Alleged Unfair Labor Practices
A. Hiring Hall Fees Charged to Non-Member Referents
1. The facts
It is undisputed that pursuant to a succession of collective-bargaining agreements
Respondent has operated an exclusive, non-discriminatory hiring hall and referral system in the
Las Vegas, Nevada area that is the exclusive source of referral of employees to who perform
stagehand, hair, makeup, and wardrobe work to signatory employers including employers AVW
and PSS.1
From about April 2005 to the present, Respondent has had 4900 persons registered for
referral. Of the 4900 employees registered, 1700 are members of Respondent. The record did
not disclose how many of the 4900 persons registered for referral worked and paid referral fees
in 2005 and 2006, however in 2006 there were 60,000 referrals made from the hiring hall.
Respondent operates the hiring hall from its wholly owned building at 300 Valley View
Drive, in Las Vegas, Nevada. Respondent’s office also includes a training facility operated by
the Training Trust and a Credit Union. Respondent’s paid officers and employees consists of
President Harold “Hal” Ritzer, Business Representative Jeff Colman, three Business Agents,
two organizers, President’s Assistant, Gary Elias, Secretary-Treasurer, Deidre Prestridge, Office
Manager Lisa Lafever, Jacky Ward, Craft Division V Representative, Dispatch Supervisor
Brenda Neuhauser, seven dispatch employees and other clerical staff.
Ritzer’s duties include overseeing all Respondent’s officers and employees, contract
negotiations, organizing campaigns, reviewing grievances, chairing various committees,
including the executive board, chairing membership meetings, and attending political
fundraisers and functions
Assistant to the President Elias works on various projects including organizing, assisting
with the office staff, building maintenance, and maintaining hiring hall records.
The business representative engages in contract negotiations, organizing campaigns,
administration of the referral system, and grievance processing.
The business agents’ duties include organizing campaigns, collective bargaining
agreement administration, and handling grievances
The dispatch supervisor and seven dispatch employees handle all referrals from the
hiring hall and all discrepancies in paychecks for referred employees.
The Secretary-Treaurer Prestrige handles all new membership applications, health and
welfare issues, contract negotiations, political activities, and Respondent’s fiscal issues. She
files reports with the International Union, prepares minutes of Respondent’s executive board
and membership meetings, supervises the office staff, process and distribute payroll checks of

1 See GC Exh. 1(v), Respondent’s Answer admitting that it is a party to collective bargaining
agreements requiring that Respondent be the exclusive source for referrals for employment with
the employers.
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employees referred from the hiring hall, processes membership cards and cards of traveling
union members, and correspondence. Prestridge spends 15% of her time on political activities,
including campaigning for political candidates.
For about two years, while Respondent was under trusteeship it charged both Union
member and non-union referents 3% of their gross wages as a referral fee. Since about
January 1, 2005 when the trusteeship ended, Respondent has charged both Union member and
non-members 3.5% of their gross wages as a referral fee. Ritzer admitted that when the referral
fee was raised to 3.5% in 2005 no calculation was performed to determine the cost of operating
the hiring hall. In addition to the referral fees Union members pay a $500 initiation fee and
quarterly fees of $50 to the International Union.
Glenn Goodenough (Goodenough), Respondent’s accountant, prepared accounting
reports for Respondent for 2005 and 2006.2 These reports were based on Respondent’s 2005
and 2006 LM-2 forms3 prepared by Goodenough and submitted to the United States
Department of Labor together with Goodenough’s interviews with Respondent’s officers to
ascertain those expenses that were chargeable as expenses of the hiring hall. Goodenough’s
report for 2005 reflects that Respondent had income from hiring hall referral fees of
$1,944,367and income unrelated to the hiring hall of $423,679. Expenses chargeable to the
operation of the hiring hall were $1,798,250. Non-chargeable expenses excluded from the
operation of the hiring hall amounted to $429,706. Goodenough’s report for 2006 shows
Respondent had income from referral fees of 2,345,764 and income unrelated to referral fees of
$617,305. Expenses chargeable to the hiring hall were $2,212,401. Non-chargeable expenses
excluded from the operation of the hiring hall were $503,036.
2. The Analysis
In the Second Consolidated Complaint (Complaint) paragraphs 5(c) through 5(e), 5(h)
through 5(j) and 5(m) through 5(q) it is alleged that Respondent has restrained and coerced
employees in the exercise of the rights guaranteed under Section 7 of the Act in violation of
Section 8(b)(1)(A) of the Act by assessing referral fees to non-members that are
disproportionate to their pro rata share of the costs of maintaining and operating Respondent’s
hiring hall and referral system.
Counsel for the General Counsel (CGC) contends that the evidence establishes that
Respondent’s 3.5% referral fee charged to non-member referents does not represent their pro
rata share of the costs of maintaining and operating its hiring hall and referral system and thus
Respondent has violated both Sections 8(b)(1)(A) and 8(b)(2) of the Act.
Respondent contends that the 3.5% referral fee for non-member referents represents
their fair share of the costs of the operation of the hiring hall and referral system and absent
evidence of discriminatory operation of the hiring hall and referral system there is no violation of
the Act in charging the 3.5% fee to non-members.
A union may charge non-union members a fee to use an exclusive hiring hall unless the
fee is excessive or based on an improper allocation of hiring hall expenses. J.J. Hagerty, Inc.,
153 NLRB 1375 (1965). In Hagerty, where the Board had found blanket discrimination in the
operation of the hiring hall, allowable expenses associated with the operation of the hiring hall

2 R. Exhs. 34 and 65.
3 GC Exhs. 17-18 and R. Exhs. 6-7.
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included office expenses, rent, salaries, utilities, publications, and payroll taxes. Expenses
excluded from the operation of the hiring hall were union meetings, dinners, conventions,
contributions, and international union assessments. The Board accepted the ALJ’s formula for
calculating the costs of operating the hiring hall and allocating the pro rata share of each person
eligible to use the hiring hall. In determining which expenses were excluded from the operation
of the hiring hall the ALJ disallowed items properly chargeable to the union as an institution
rather than as a bargaining agent. To arrive at referents’ pro rata share of costs, the ALJ
divided the allowable expenses of operating the hiring hall by the total number of employees
eligible to use it in arriving at a pro rata share. This amount was subtracted from the fees
actually paid by the referents in calculating the amount of refund due. The Trial Examiner
ordered, and the Board adopted his finding, that $3.50 be refunded to each registrant based on
his finding that the fees charged were excessive and did not represent the actual costs to
referents of operating the hiring hall.
However in IATSE Local 640 (Associated Independent Theater Co.), 185 NLRB 552,
558 (1970), a case involving no discrimination in the operation of the hiring hall, the Board
rejected the ALJ’s conclusion that the hiring hall fees were in excess of the value of the hiring
hall services provided. In IATSE Local 640, all referents paid referral fees of 2% of gross wages
from jobs obtained through referrals. In 1967 the union collected $35,000 in referral fees paid
by members and non-members and spent $29,000 in operating the hiring hall. In 1968 the
union collected $29,000 in referral fees from both members and non-members and spent
$26,000 in operating the hiring hall. In evaluating the referral fees collected against the costs of
operating the hiring hall the Board said:
After careful consideration of the issue, we are disposed to dismiss the allegation
relating to assessment of referral fees. In our view, the breakdown of income and
expenses in the record does not demonstrate that the assessments were not, in
terms of the test laid down by the Second Circuit, “reasonably related to the
services provided by the union,” or that the assessments were “in excess of the
value of the hiring hall services.” In 1967, using the Union accountant's
concededly less-than-rigorous figures, the Union spent at least $29,500 for hiring
hall and related collective bargaining (and $12,000 for “institutional expenses”).
In that year, the Union collected $35,000 from hiring hall assessments of
members and nonmembers, $28,500 of which was from members and $6,500
from nonmembers. The Union, in other words, on the less-than-precise figures
before us, spent at least five-sixths of its hiring hall assessments for the Costs of
the hall. Furthermore, if it had to return the other one-sixth of the assessments
($5,500), it would have to reimburse nonmembers for only somewhat more than
one-fifth of that amount ($1,100), since assessments were collected from
nonmembers and members at a ratio of $6,500/ $28,500. The only other figures
available related to just the first 9 months of 1968, showing total costs allocable
to the hiring hall of $26,000 and total assessments received of about $29,000. In
Local 138, supra, there was a finding of a substantial amount of discrimination
and a clear showing that, over a 5-year period, the Union consistently collected
$3.50 per month more (out of $10) than it needed for running the hiring hall. In
the present case, we make no finding of substantial discrimination, and it may
well be that, over a more representative period of years, the assessments and
their proper allocations would be equalized. In the circumstances of this case, we
are of the opinion that the evidence does not support a finding that the
assessment system was violative of the Act, and we shall dismiss the relevant
complaint allegations.
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A fee paid by non-member referents equal to that paid by union members was not found
excessive where there was no showing made by the General Counsel of the cost of operating
the union’s hiring hall or the pro-rata share of each registrant. Local 825, Operating Engineers
(Homan), 137 NLRB 1043, 1044 (1962). In Morrison-Knudsen Co., 291 NLRB 250 (1988), cited
with approval by the Board in Communications Workers Local 22 (Pittsburgh Press), 304 NLRB
868 (1991), the Board found that the General Counsel had made a prima facie showing the
referral fees were discriminatory by proving that non-members’ fees were higher than union
members dues.
Counsel for General Counsel contends that the rule of Hagerty, supra, has been
superceded by Communications Workers v. Beck, 487 U.S. 735 (1988) and its progeny
including California Knife & Saw Works, 320 NLRB 224 (1995). In Beck, the Court dealt with
the Section 8(a)(3) proviso permitting union security clauses requiring union membership. The
Court held that “financial core” membership in a union requires payment of fees necessary for
collective bargaining and representation obligations and a union may not require payment from
unwilling members of sums for a union’s political and fraternal activities.
In California Saw & Knife Works, supra, the Board, in applying Beck, held that Beck was
grounded in a union’s 8(b)(1)(A) duty of fair representation and applies where union dues are
mandatory. The Board set forth certain “Beck rights” and held that before a union seeks to
obligate an employee to pay fees and union dues under a union security clause, the employee
must be informed that they have the right to object to paying for union activities not relevant to
the union’s duties as bargaining representative, that they be given sufficient information to
intelligently decide to object, including the percent of reduction in dues, the basis for the
calculation and the right to challenge that figure, and that
they be apprised of internal union procedures to object.
In Teamsters Local 443 (Connecticut Limousine Service), 324 NLRB 633 (1997), the
Board found that providing an employee with the union’s LM-2 financial reports satisfied the
Beck requirement for providing information to challenge the union’s calculation of reduced fees.
While CGC argues that the Beck line of cases applies to hiring hall fees, no case has
been cited by any party reflecting the application of Beck to the hiring hall. Indeed Beck is
limited to cases dealing with the interpretation of the union security proviso to Section 8(a)(3)
and the union’s duty of fair representation. Moreover, in cases4 dealing with hiring hall fees
subsequent to Beck, the Board has continued to adhere to the Homan and J.J. Hagerty, supra,
line of cases in assessing the union’s obligations under Section 8(b)(1)(A) of the Act.
In this case, according to the accountant’s 2005 and 2006 reports summarizing5
Respondent’s audited income and expenses, Respondent collected fees from both Union
member and non member referents of $1,944,367 in 2005 and $2,345,764 in 2006. Chargeable
expenses for 2005 were reported to include payroll and benefits, accounting, automobile, bank
fees, building maintenance, computer maintenance, contracted services, delegate expense,
delivery expenses, dues and subscriptions, education, entertainment, insurance, legal fees,
miscellaneous, office expenses, copier expenses, organizing expenses, payroll taxes, postage,
property taxes, sales tax, telephone, trustee expenses, utilities, depreciation, per capita taxes of
$1200 and contributions of $1,798,250. Goodenough’s report explained that $6,696 was

4 Morrison-Knudsen Co., 291 NLRB 250 (1988), cited with approval by the Board in
Communications Workers Local 22 (Pittsburgh Press), 304 NLRB 868 (1991).
5 R. Exhs. 34 and 65.
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excluded from payroll for lobbying activity and time devoted to the Respondent’s newsletter sent
to members only. Advertising expenses of $26,323 were eliminated as not related to the hiring
hall. Half of the delegate expense of $9731 was eliminated as only half the union convention
was unrelated to the hiring hall. Office expenses of $10,350 were eliminated as a cost of
providing rental space for Union member meetings. Postage expenses of $4,768 were
excluded as cost of mailing the members newsletter. Virtually all of the union members’ per
capita taxes were excluded. Total chargeable expenses for 2005 amounted to $1,798,250.
Under the Hagerty formula, I would additionally disallow legal fees, contributions, entertainment,
and delegate expenses6 in the sum of $114,797 as no showing was made that these expenses
are directly related to costs of operating the hiring hall as opposed the costs of the Union as an
institution. The adjusted expenses for 2005 are $1,683,453. Fees paid from hiring hall
referents in excess of costs chargeable to the operation of the hiring hall in 2005 amounted to
$260,914 or 13% of all fees paid.
Chargeable expenses for 2006 were reported as payroll and benefits, accounting,
advertising, automobile, bank fees, building maintenance, computer maintenance, contracted
services, delegate expense, dues and subscriptions, education, entertainment, insurance, legal
fees, miscellaneous, referent drug test fees, office expenses, copier expenses, organizing
expenses, payroll taxes, postage, property taxes, sales tax, settlement payments to NLRB,
telephone, trustee expenses, utilities, depreciation, per capita taxes, PAC disbursements and
contributions. Total chargeable expenses for 2006 amounted to $2,212, 401. Under the
Hagerty formula, I would additionally disallow delegate expenses, entertainment, legal fees,
settlement payments to NLRB, PAC disbursements and contributions in the sum of $231,682 as
no showing was made that these expenses are directly related to costs of operating the hiring
hall as opposed the costs of the Union as an institution. The adjusted expenses for 2006 are
$1,980,719. Fees paid from hiring hall referents in excess of costs chargeable to the operation
of the hiring hall in 2006 amounted to $365,044 or 15% of all fees paid.
In assessing how much non Union member referents may have been overcharged, I am
guided only by the estimate that of 4900 referents on the referral list in 2005 and 2006, 3200 or
65% were non Union members7. Thus, for 2005, 65% of the $260,914 paid in excess referral
fees is $169,594 or 8.7% of all referral fees charged and for 2006, 65% of $365,045 paid in
excess referral fees is $237,272 or 10% of all referral fees charged. Each non union referent
would be entitled to a refund of $52.00 each for excess dues paid in 2005 and $74.14 each for
excess dues paid in 2006.
In IATSE Local 640 (Associated Independent Theater Co.), 185 NLRB 552, 558 (1970),
the Board found no violation of the Act in the assessment of hiring hall fees where, like here,
was no evidence of discriminatory operation of the hiring hall, and where 20% of the fees in
excess of chargeable expenses were attributable to non union member referents.
As in IATSE Local 640, over a longer period of time the allowable expenses and referral
fees of Respondent’s hiring hall may be equalized and given the fact that only $126 is owed to
each non union member referent, I find that Respondent’s assessment system does not violate
Section 8(b)(1)(A) of the Act.

6 Ritzer testified that he had fruitful discussions with other Union representatives at the
Union’s conferences about hiring hall issues. I find no evidence that these discussions
comprised more than a minimal portion of the Union conventions.
7 There is no evidence as to how many member or non member referents were dispatched
or of how much in fees were paid by member and non member referents respectively.
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B. The Request for Information Regarding Referral Fees
1. The Facts
Union member Steven Lucas sent Respondent a letter8 dated June 7, 2005, requesting
that Respondent provide the basis for charging 3.5% referral fee to registrants. After requesting
withdrawal from Respondent, Lucas sent the Respondent a second letter9 dated September 26,
2005 requesting Respondent substantiate how the 3.5% referral fee is related to the cost of
operating the hiring hall. By letter10 dated December 1, 2005, Ritzer advised Lucas that all
costs of Respondent were related to operation of the hiring hall. On December 15, 200511,
Lucas requested Respondent provide financial statements supporting the 3.5% fee charged to
non-members. Finally on May 31, 2006, Respondent furnished Lucas with the Union’s LM-2
form for 2005.12 Respondent has not provided Lucas any other information concerning its basis
for charging non-member referents a fee of 3.5%.
2. The Analysis
It appears that CGC contends that Respondent violated its duty of fair representation to
Lucas under Section 8(b)(1)(A) of the Act because it did not provide a cost breakdown of costs
directly related to operation of the hiring hall. It is undisputed that Respondent was under a
trusteeship until January 2005 and it would have been difficult for Respondent’s new officers to
provide financial information in 2005. CGC concedes that not until 2006, with the completion of
the 2005 LM-2 forms, could Respondent provide the financial information Lucas requested.
CGC argues that Respondent’s LM-2 forms provided to Lucas on May 31, 2006 were
insufficient for him to make an intelligent objection to the amount of referral fees paid by non
member users of the hiring hall since there was no breakdown of expenses for operation of the
hiring hall and expenses related to the operation of Respondent as an institution.
Under Section 8(b)(1)(A) of the Act a union, as operator of an exclusive hiring hall, owes
users of the exclusive hiring hall a duty of fair representation by not operating the hiring hall in a
manner that is arbitrary or unfair. Radio Electronics Officers Union, 306 NLRB 43, n. 2 (1992).
Concomitant with that obligation of fair representation is the requirement that the union provide
users of an exclusive hiring hall with information sufficient to intelligently challenge the hiring hall
fee structure. Cf. California Saw and Knife, supra. Certainly Ritzer’s December 1, 2005 letter
was insufficient to provide Lucas with sufficient information to make an intelligent decision
whether to object to the hiring hall fee structure. However, when Respondent provided Lucas
with the 2005 LM-2 reports on May 31, 2006, as soon as the reports where prepared, Lucas had
sufficient information, even under the Beck and California Saw & Knife rules to make an
informed decision to challenge the hiring hall fees. Teamsters Local 443 (Connecticut
Limousine Service), 324 NLRB 633 (1997). I find Respondent did not violate Section 8(b)(1)(A)
of the Act by failing to provide sufficient information to Lucas.

8 GC Exh. 9.
9 GC Exh. 11.
10 GC Exh. 13.
11 GC Exh. 14.
12 GC Exh. 15.
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C. Work Rules Violations
1. The Facts
Michael Serwe has been a member of Respondent since 2004 and has utilized
Respondent’s referral system. In December 2006, Respondent dispatched Serwe to a job
pursuant to request of AVW-Telav. Serwe worked for about 10 days for AVW. On the last day
of work about 20-30 minutes after he finished his work but while he remained at AVW’s worksite
waiting to speak with a Union steward, Serwe had a conversation with an AVW employee
named Victor. Serwe told Victor that he looked forward to working with him again. Victor
replied, “The next time you work for me are you going to take a phone call while you’re on my
job?” Serwe said, “I’m not your nigger. I’m paid labor and the only reason I take a call, and I
very seldom do on a job, is if it’s somebody calling me to see if I’m available for work. However,
I always do my amount of work on a job. You can ask anybody that I work with and they will tell
you that.”
After making this statement, Serwe saw Michael Jeffrey, an African-American AVW
supervisor behind him. Serwe told Jeffrey, “You know I’m not prejudiced.” Jeffrey replied he
heard what he heard.
In late December 2006, Serwe called Respondent to see if there was work for him. He
was told that he was suspended. On January 5, 2007, Respondent sent Serwe a letter advising
that:13
In accordance with Article VIII of Work Rules and Procedures for Referents, 14
which we have included for your reference, you are in violation of Article VIII,
Section 1B(iv): Verbal assault against or threatening harm to any referent, Union
employee, Job Steward, Union official, or Employer representative while at work,
or in connection with work. This includes threatening or abusive language to the
employees at the Union office.
The letter added that Serwe was being fined $1000 and would be suspended from the
dispatch list until he paid the fine. Serwe was further advised that the fine and suspension
would be held in abeyance if he appealed the fine.
Serwe appealed the fine and suspension. On February 21, 2007, Respondent denied
the appeal15 and advised that if Serwe failed to pay the fine within 35 days he would be
removed from the referral system until the fine was paid. On April 5, 2007, Serwe learned that
he had been suspended from the referral system effective April 2, 2007. Serwe remained
suspended until July 16, 2007 when he entered into an agreement to make installment
payments on the fine.
Respondent’s Work Rules and Procedures for Referents provides in pertinent part at
Article VII, Section 2:
Failure to pay the fine in the allowed period of time as per Article VIII, Section 3,
will result in automatic suspension from the Local 720 referral system until such

13 GC Exh. 3.
14 GC Exh. 4.
15 GC Exh. 6.
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fine is paid in full. In case of appeal, no penalty shall be imposed until the appeal
procedure has been completed.
2. The Analysis
CGC contends that Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing
to refer Serwe because he failed to pay a Union fine and for maintaining a rule in its 2006 Work
Rules providing that failure to pay a fine will result in Respondent’s refusal to refer.16
Respondent argues that Serwe was properly suspended for work rules violations, citing
Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432 (1983).
Radio Electronics Officers Union, supra, held that when a union prevents an employee
from being hired it compels an inference that its action is to encourage union membership and
may be overcome only by showing that it is acting pursuant to a valid union security clause or
by showing its action is necessary to performing its representative function. Stagehands
Referral Service, 347 NLRB No. 101, slip op.at 3 (2006).
The Board has held that the inference is overcome where a union refused to refer an
individual who was not qualified to perform the job; Plasterers Local 299 (Wyoming Contractors
Assn.), 257 NLRB 1386 (1981); where a union suspended an applicant for violating work
referral rules; Boilermakers Local 40, supra; where the union refused to refer an applicant for his
long history of misconduct and where the majority of employers using the hiring hall for referents
requested the employee not be referred; Stage Employees IATSE Local 150 (Mann Theaters),
268 NLRB 1292 (1984); where the union refused to refer an employee who had caused a
wildcat strike; Longshoremen Local 341 (West Gulf Maritime Assn.),254 NLRB 334 (1981) ; and
where the union refused to refer an employee with a 15 year history of misconduct toward fellow
employees, employers using the hiring hall and employers’ clients; Stage Employees IATSE
Local 720 (AVW Audio Visual), 332 NLRB 1 (2000). In each of the above cases the Board
found that the union’s action taken was necessary to performing its representative function.
The Board has found the union did not overcome the inference where it removed an
employee for non payment of a fine and non payment of dues without proper notice; Radio
Electronics Officers Union, supra; and where an employee was removed from the referral list
without adequate showing that he had performance problems; Stagehands Referral Service,
supra.
In this case Serwe was removed from Respondent’s referral system after failing to pay a
fine pursuant to Work Rule Article VIII, Section 1B(iv) for use of a racial epithet on a jobsite.
There is no dispute that Respondent has prevented Serwe from being hired. Like wise it is
undisputed that the action taken against Serwe was not pursuant to a valid union security
clause. Thus Respondent can overcome the inference that its action was to encourage or
discourage union membership by showing that it took the action because it was necessary to
performing its representative function.
Unlike the employees in Stage Employees IATSE Local 150 (Mann Theaters), 268
NLRB 1292 (1984) Stage Employees IATSE Local 720 (AVW Audio Visual), 332 NLRB 1
(2000), here, Serwe had no long history of misconduct or poor performance. Serwe’s

16 This is the only remaining portion of Charging Party Michael Young’s charge that has
been alleged as a violation of the Act in the instant complaint.
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misconduct was limited to one employer. Since there is no evidence that other employers have
refused to accept Serwe as a referent, his isolated conduct would not preclude his referral to
other employers. Likewise, there is no evidence that Serwe is not unqualified to perform jobs to
which he may be referred and he did not attempt to undermine the referral system like the
referents in Plasterers Local 299 (Wyoming Contractors Assn.), 257 NLRB 1386 (1981) or
Boilermakers Local 40, supra. Finally, Serwe’s conduct was not so aggregious as to affect the
entire bargaining unit like the employee in Longshoremen Local 341 (West Gulf Maritime
Assn.),254 NLRB 334 (1981). I conclude that Respondent has not overcome the inference that
it took the action against Serwe in order to encourage or discourage union membership in
violation of Section 8(b)(1)(A) and (2) of the Act in suspending Serwe from the referral system
for failure to pay a fine.
The mandatory language of Respondent’s Work Rule Article VIII, Section 1B(iv) is
subject to the same test set forth above. The rule prevents an employee from being hired and
raises the inference that the rule encourages or discourages union membership that can be
overcome only by showing that the rule is necessary to the Union’s performance of its
representative function. Non payment of a fine, per se, has nothing to do with the Union’s
representative function. It is the reason for imposing the fine that must be scrutinized. As the
cases above have demonstrated there may be legitimate and unlawful reasons for imposing
fines that result in removal from a referral system. These cases must be scrutinized on a case
by case basis.
In Radio Electronics Officers Union, 306 NLRB 43, footnote 2 (1992), the union was
found to have violated the Act for suspending an employee from its referral system for non
payment of dues where the employee was not given adequate notice of his delinquency before
removal. Likewise the Board found that the rule requiring removal from the referral list for non
payment of dues was unlawful as it required removal prior to notice to the delinquent referent.
Here after Serwe’s appeal was denied he was given notice that he had 35 days to pay
the fine or face suspension from the referral system. In this case, adequate notice is provided in
Respondent’s work rules before an employee may be suspended for non payment of a fine. I
find there is nothing in the work rule itself that violates the Act but that in cases where an
individual is suspended for non payment of a fine, the Respondent’s rationale for imposing the
fine must be examined under the Radio Electronics Officers Union test. I find that Respondent’s
Work Rules and Procedures for Referents, Article VII, Section 2 does not violate Section
8(b)(1)(A) and (2) of the Act.
Conclusions of Law
1. AVW and PSS have been employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent Union has been a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) and (2) of the Act since April 2, 2007 by
refusing to allow Michael Serwe to register for referral from its exclusive hiring hall because of
his failure to pay a fine levied against him by the Union.
4. Respondent did not otherwise violate Section 8(b)(1)(A) or (2) of the Act and the
remaining portions of the Complaint are dismissed.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully refused to allow Serwe to register for
referral, I shall recommend it be ordered to list Serwe on its referral register and, on request
from him, list him on any appropriate referral register that he requests to be listed on. I further
recommend that Respondent be ordered to make Serwe whole for any loss of wages and
benefits he may have suffered as a result of the Respondent’s refusing to allow him to register
on its referral list on and after April 2, 2007.
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended. 17
ORDER
The Respondent, International Alliance of Theatrical & Stage Employees & Moving
Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada,
Local 720, AFL-CIO, CLC, its officers, agents, and representatives,
1. Cease and desist from
(a) Refusing to refer Michael Serwe for employment for arbitrary, invidious, or
capricious reasons.
(b) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Michael Serwe whole, with interest, for any loss of wages and other
benefits he may have suffered by reason of the Respondent Union's
discriminatory failure to refer him to employment after April 2, 2007.
(b) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.

17 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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(c) Within 14 days after service by the Region, post at its union hall or facility, copies
of the attached notice marked “Appendix“.18 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by an
authorized representative of the Respondent Union, shall be posted by the
Respondent Union and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
(d) Reasonable steps shall be taken by the Respondent Union to ensure that the
notices are not altered, defaced, or covered by any other material.
(e) 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 Union has taken to comply.
IT IS FURTHER ORDERED that the Second Consolidated Complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 26, 2007
____________________
John J. McCarrick
Administrative Law Judge

18 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and
obey this Notice.
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 activities
WE WILL NOT refuse to refer Michael Serwe for employment for arbitrary, invidious or capricious reasons.
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 Michael Serwe whole, with interest, for any loss of wages and other benefits he may have suffered
by reason of our discriminatory failure to refer him to employment after April 2, 2007.
INTERNATIONAL ALLIANCE OF THEATRICAL & STAGE
EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS,
AND ALLIED CRAFTS OF THE UNITED STATES, ITS
TERRITORIES AND CANADA, LOCAL 720, AFL-CIO, CLC
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Phoenix, Arizona Regional office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, Arizona 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (602) 640-2146.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the Decision of which this
Notice is a part may do so by contacting the Board’s Offices at the address and telephone number appearing
immediately above.