Hargrove, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 11, 2006

15-CA-016086 (N.L.R.B. May. 11, 2006)

JD(ATL)—20—06
Lanham, MD

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

HARGROVE, INC.

and CASE 15-CA-16086

INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES
(IATSE), LOCAL NO. 39, AFL-CIO

and

UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF
AMERICA, LOCAL
UNION NO. 1846, AFL-CIO
Party in Interest

Kevin McClue, Esq.,
Counsel for General Counsel.
Steven E. Bers, Esq., Counsel for Respondent.
James Fagan, Esq., Counsel for
Charging Party.
William Lurye, Esq., Counsel for
Party in Interest.

DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge. This case is before me on
Counsel for General Counsel’s Motion for Summary Judgment filed on April 21, 2006. The
original Complaint and Notice of Hearing herein, Complaint, which issued on May 21, 2001,
was based upon an unfair labor practice charge and an amended charge filed on February 16
and April 24, 2001, by International Alliance of Theatrical Stage Employees (IATSE), Local
No. 39 AFL-CIO, herein called the Union or IATSE, alleges that Hargrove, Inc., herein called
the Respondent, violated Section 8(a)(1), (2) and (5) of the National Labor Relation Act, as
amended, herein Act, by in or about November 2000, entering into a collective-bargaining
agreement with United Brotherhood of Carpenters and Joiners of America, Local Union No.
1846, AFL-CIO, herein Carpenters or Party in Interest, as the exclusive collective bargaining
representative in an appropriate unit even though the Carpenters did not represent an

JD(ATL)—20—06

uncoerced majority in the appropriate unit and, by since in or about November, 2000, failing
to abide by the terms of the July 1, 1986 to June 30, 1989 collective-bargaining agreement
between Respondent and the Union and by, in or about November 2000, ceasing to apply the
terms of the July 1, 1986 to June 30, 1989 collective-bargaining agreement including the
requirement that Respondent use the Union’s referral services when seeking applicants for
employment and without first affording the Union notice and an opportunity to bargain. On
June 7, 2001, the Respondent filed its Answer to the Complaint in which it denied having
violated the Act in any manner alleged in the Complaint. On June 21, 2001, an Amended
Complaint and Notice of Hearing, herein Amended Complaint, was issued restating the
allegations of the original Complaint and alleging the Carpenters to be a labor organization
within the meaning of Section 2(5) of the Act. On July 3, 2001, the Respondent filed its
Answer to the Amended Complaint in which it denied having violated the Act in any manner
alleged in the Amended Complaint. The scheduled trial of this matter was postponed
indefinitely on October 18, 2001, for settlement purposes. On February 14, 2005, a new trial
date was set for May 27, 2005. On March 12, 2005, trial was again postponed indefinitely.
On May 11, 2005, Respondent filed an Amended Answer to the Amended Complaint in
which Respondent admitted all allegations of the Amended Complaint. Respondent limited
its admissions for paragraphs 8 and 18 to the time periods covered by the Amended
Complaint. On May 17, 2005, Counsel for General Counsel filed a Motion for Summary
Judgment with the National Labor Relations Board, herein Board. On January 4, 2006, the
Board denied the Motion for Summary Judgment based on the Carpenters (Party in Interest’s)
opposition in which the Party in Interest contended material factual issues remained for
resolution at a trial. On April 5, 2006, the Party in Interest waived its interest in the matter
and indicated it would not participate in any trial of this matter. On April 10, 2006, the Party
in Interest advised it would not oppose a new Motion for Summary Judgment submitted by
Counsel for General Counsel. Based on Respondent’s effectively admitting all of the
Amended Complaint allegations, the Party in Interest’s waiver of interest in this matter, and
Counsel for General Counsel’s Motion for Summary Judgment, I make the following findings
of fact and conclusions of law:

Findings of Fact and Conclusions of Law

1. The charge in this proceeding was filed by the Union on February 16, 2001,
and was served by regular mail upon the Respondent on the same date.

2. The amended charge in this proceeding was filed by the Union on April 24,
2001, and served by regular mail on Respondent on the same date.

3. At all material times, Respondent, a Maryland corporation with an office and
place of business in Lanham, Maryland, has been in the business of producing tradeshows,
conventions, parades and other special events.

4. During the 12-month period ending April 30, 2001, Respondent, in conducting
its business operations described above performed services valued in excess of $50,000 in
states other than the State of Maryland.

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5. At all material times, Respondent has been engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.

6. At all material times, the Union has been a labor organization within the
meaning of Section 2(5) of the Act.

7. At all material times, the United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1846, AFL-CIO, herein Carpenters or Party in Interest has been a
labor organization within the meaning of Section 2(5) of the Act.

8. At all material times, Senior Project Manager Ted Unland and Supervisor
Chris Jackson have been supervisors of the Respondent within the meaning of Section 2(11)
of the Act and agents of Respondent within the meaning of Section 2(13) of the Act.

9. The following employees of Respondent, herein called the Unit, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act:

Those employees who are engaged in the installation, dismantling and operation
of scenery, curtains, properties, electrical effects, and the operation of spotlights;
installation and dismantling of exhibits, displays, booths, decorations; and the
installation, dismantling and operation of sound accessories, motion picture, T.V.
and video tape productions where the Company has the contract and
responsibility for the and installation, dismantling and operation of such
equipment.

10. Since about August 15, 1988, and at all material times, the Union has been the
designated exclusive collective bargaining representative of the Unit and since August 15,
1988, the Union has been recognized as the representative by the Respondent. This
recognition has been embodied in a collective-bargaining agreement which is effective from
August 15, 1988 to the present.

11. At all times since August 15, 1988, based on Section 9(a) of the Act, the Union
has been the exclusive collective bargaining representative of the Unit.

12. On or about August 15, 1988, Respondent entered into a collective-bargaining
agreement effective for the period July 1, 1986 to June 30, 1989, whereby it recognized the
Union as the exclusive collective bargaining representative of the unit described above and
agreed to continue the agreement in effect from year to year thereafter unless timely notice
was given in accordance with the terms of Section 17 of the collective bargaining agreement.

13. In or about November 2000, Respondent in New Orleans, Louisiana, entered
into a collective-bargaining agreement with the Carpenters as the exclusive collective
bargaining representative of the Unit.

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14. Respondent engaged in the conduct described in paragraph 13, even though the
Carpenters did not represent an uncoerced majority of the Unit.

15. Since in or about November 2000, Respondent in New Orleans, Louisiana,
failed to abide by the terms of the July 1, 1986 to June 30, 1989 collective-bargaining
agreement with the Union.

16. In or about November 2000, the Respondent ceased applying the terms of the
July 1, 1986 to June 30, 1989 collective-bargaining agreement described in paragraph 12
above including the requirement that Respondent use the Union’s referral services when
seeking applicants for employment.

17. Respondent engaged in the conduct set forth in paragraphs 15 and 16 above
without first affording the Union notice or an opportunity to bargain.

18. The subjects set forth in paragraphs 15 and 16 above related to wages, hours,
and other terms and conditions of employment of the Unit and are mandatory subjects for the
purposes of collective bargaining.

19. By the conduct described above in paragraphs 13 and 14, Respondent has been
rendering unlawful assistance and support to a labor organization in violation of Section
8(a)(1) and (2) of the Act.

20. By the conduct described above in paragraphs 15, 16 and 17, Respondent has
been failing and refusing to bargain collectively and in good faith with the exclusive
collective bargaining representative of its employees in violation of Section 8(a)(1) and (5) of
the Act.

21. The unfair labor practices of Respondent described above, affect commerce
within the meaning of Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent engaged in certain unfair labor practices, I
recommend that it be ordered to take certain affirmative action designed to effectuate the
policies of the Act. Respondent having rendered unlawful assistance and support to the
Carpenters by entering into a collective-bargaining agreement with the Carpenters as the
exclusive collective bargaining representative of the Unit even though the Carpenters did not
represent an uncoerced majority of the Unit, it must cease giving any effect to and rescind any
or all of the collective bargaining provisions that are still applicable, and it shall refund any
union dues collected pursuant to its collective-bargaining agreement with the Carpenters and
withdraw recognition from the Carpenters and cease any unlawful assistance to the
Carpenters. Respondent shall apply the terms of the July 1, 1986 to June 30, 1989 collective-
bargaining agreement with the Union to any Unit employees employed pursuant to its
collective-bargaining agreement with the Carpenters.

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Having found Respondent failed and refused to bargain collectively and in good faith
with the Union as the exclusive collective-bargaining representative of its employees in the
Unit it must bargain collectively and in good faith with the Union and abide by the terms of
the July 1, 1986 to June 30, 1989 collective-bargaining agreement with the Union including
the requirement that it use the Union’s referral services when seeking applicants for
employment. Respondent shall make whole, with interest, those that would have been
applicants for referral through the Union’s referral services but for the Respondent’s unlawful
assistance and support to the Carpenters.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:
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ORDER

The Respondent, Hargrove, Inc., it officers, agents, successors, and assigns shall:

1. Cease and desist from:

(a) Rendering unlawful assistance and support to United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1846, AFL-CIO, including entering into
a collective-bargaining agreement with the Carpenters at a time when the Carpenters did not
represent an uncoerced majority of the Unit.

(b) Giving any effect to the collective-bargaining agreement it entered into
in New Orleans, Louisiana, in or about November 2000, with the United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1846.

(c) Failing and refusing to bargain collectively and in good faith with the
International Alliance of Theatrical Stage Employees (IATSE), Local No. 39, AFL-CIO, as
the exclusive collective bargaining representative of the Unit employees.

(d) Failing to abide by the terms of the July 1, 1986 to June 30, 1989
collective bargaining agreement with the International Alliance of Theatrical Stage
Employees (IATSE), Local No. 39, AFL-CIO.

(e) Failing to apply the terms of the July 1, 1986 to June 30, 1989
collective-bargaining agreement with the International Alliance of Theatrical Stage
Employees (IATSE), Local No. 39, AFL-CIO including the requirement that it use the
International Alliance of Theatrical Stage Employees (IATSE), Local No. 39, AFL-CIO
referral services when seeking applicants for employment.

1 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 purposes.
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2. Take the following affirmative action necessary to effectuate the policies of the
Act:

(a) Withdraw recognition from the United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1846, AFL-CIO, for employees in the Unit and rescind
the collective-bargaining agreement it entered into with the Carpenters in or about November
2000, in New Orleans, Louisiana for the Unit.

(b) Refund any union dues collected pursuant to its collective-bargaining
agreement with the Carpenters.

(c) Make any employees whole, with interest, for any losses they may have
suffered as a result of their being employed subject to the terms of the collective-bargaining
agreement between the Carpenters and Respondent rather than the terms of the July 1, 1986 to
June 30, 1989 collective-bargaining agreement Respondent had with the Union.

(d) Bargain collectively and in good faith with the Union as the exclusive
collective bargaining representative of its Unit employees.

(e) Apply the terms of the July 1, 1986 to June 30, 1989 collective
bargaining agreement with the Union including the requirement that Respondent use the
Union’s referral services when seeking applicants for employment.

(f) Make those whole, with interest, who suffered losses as a result of
Respondent’s failure to utilize the Union’s referral services when seeking applicants for
employment.

(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director for Region 15 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, time cards, 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.

(h) Within 14 days after service by the Region, post at its Lanham,
Maryland and New Orleans, Louisiana, locations copies of the attached notice marked
“Appendix.”2 Copies of the Notice, on forms provided by the Regional Director for Region
15, after being signed by the Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced or covered by any
other material. In the event that during the pendency of these proceedings, the Respondent

2 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.”
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has gone out of business or closed the facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the Notice to Employees, to all current
employees and former employees employed by the Respondent at any time since November
2000.

(i) Within 21 days after service by the Region, file with the Regional
Director for Region 15 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.

Dated, Washington, D.C., May 11, 2006.

_________________________
William N. Cates
Associate Chief Judge
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APPENDIX

NOTICE TO EMPLOYEES

Posted by the 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 with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT render unlawful assistance and support to the United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1846, AFL-CIO by entering into a
collective-bargaining agreement with the Carpenters at a time when the Carpenters did not
represent an uncoerced majority of our employees in an appropriate unit.

WE WILL NOT fail to abide by the terms of the July 1, 1986 to June 30, 1989,
collective-bargaining agreement with International Alliance of Theatrical Stage Employees
(IATSE), Local No. 39, AFL-CIO.

WE WILL NOT fail to apply the terms of the July 1, 1986 to June 30, 1989
collective-bargaining agreement with International Alliance of Theatrical Stage Employees
(IATSE), Local No. 39, AFL-CIO, including the requirement that we use the Union’s referral
services when seeking applicants for employment.

WE WILL withdraw recognition from the Carpenters and rescind the collective-
bargaining agreement we entered into with the Carpenters in or about November 2000 in New
Orleans, Louisiana for the Unit.

WE WILL refund union dues collected pursuant to our collective-bargaining
agreement with the Carpenters.

WE WILL make employees whole, with interest, for losses they may have suffered as
a result of their being employed subject to the terms of our collective-bargaining agreement
with the Carpenters rather than the terms of the July 1, 1986 to June 30, 1989 collective-
bargaining agreement with International Alliance of Theatrical Stage Employees (IATSE),
Local No. 39, AFL-CIO.

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WE WILL bargain collectively and in good faith with International Alliance of
Theatrical Stage Employees (IATSE), Local No. 39, AFL-CIO as the exclusive bargaining
representative of the Unit.

WE WILL apply the terms of the July 1, 1986 to June 30, 1989 collective-bargaining
agreement with IATSE including the requirement that we use IATSE’s referral services when
seeking applicants for employment.

WE WILL make employees whole, with interest, for losses they may have suffered as
a result of our failure to utilize IATSE’s referral services when seeking applicants for
employment.

HARGROVE, INC.
(Employer)

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 Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.

1515 Poydras Street , Room 610, New Orleans, LA 70112-3723.
(504) 589-6361, Hours: 8:00 a.m. to 4: 30 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, (504) 589-6389

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