IATSE Local 8 (1. Elliott-Lewis Corp., 2. Freeman)

National Labor Relations Board - Administrative Judge Opinions

Mar 11, 2019

04-CB-216541 (N.L.R.B. Mar. 11, 2019)

JD–27-19
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
In the Matter of
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES, MOVING PICTURE
TECHNICIANS, ARTISTS, AND ALLIED CRAFTS
OF THE UNITED STATES, ITS TERRITORIES,
AND CANADA, PHILADELPHIA LOCAL NO. 8, AFL-CIO
(ELLIOTT LEWIS CONVENTION SERVICES, LLC)
and Case 04-CB-216541
04-CB-221871
MARTIN C. MCINTYRE, an Individual
David Rodriguez, Esq.,for the General Counsel.
Regina C. Hertzig, Esq., (Cleary, Josem & Trigiani, Philadelphia, Pennsylvania)
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on January 31, 2019. Michael C. McIntyre (aka Chris McIntyre) filed the charges
giving rise to this case on March 14, and June 12, 2019. The General Counsel issued the
complaint on September 25, 2018.
The General Counsel alleges that Respondent, IATSE Local 8, violated Section 8(b)(2) in
in causing an employer, Elliott-Lewis Convention Services, LLC, to remove Michael McIntyre
from the house crew or core workforce at the Philadelphia Convention Center on March 6, 2018.
He also alleges the Union violated Section 8(b)(1)(A) in bringing internal union charges against
McIntyre on April 30, and June 6, 2018.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Charged Party Union, I make the
following:
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FINDINGS OF FACT
I. JURISDICTION
5
The Respondent Union, IATSE Local 8, is a labor organization within the meaning of
Section 2(5) of the Act. It represents employees who work at the Philadelphia Convention Center
(PCC). These employees’ nominal employer, Elliott-Lewis Convention Services, LLC, and
Freeman Decorating Company, for whom the Charging Party performed services at the PCC, are
employers engaged in commerce with the meaning of Section 2(2), (6) and (7) of the Act. 10
Elliott-Lewis, has an office in Pennsylvania and purchases and receives goods valued in excess
of $50,000 directly from points outside of Pennsylvania. Freeman has an office in New Jersey
and has performed services valued in excess of $50,000 outside of New Jersey.
II. ALLEGED UNFAIR LABOR PRACTICES15
IATSE Local 8 began providing labor for employers at the PCC in 2003. Initially, these
employees performed only audio-visual work. In 2014, however, the Union began supplying
labor for many other functions at the PCC, such as trade shows. Its members began doing such
work as laying carpeting, hanging signs and installing and dismantling trade show booths.20
The Union has a “Customer Satisfaction Agreement” with Elliott-Lewis, which is
essentially a staffing agency for contractors working the Convention Center. Contractors request
labor at the PCC by submitting a labor order form to Elliott-Lewis, which then procures the labor
from IATSE Local 8. Pursuant to its agreement with Elliott-Lewis, the Union is allowed to 25
designate a number of employees as a core workforce or “house crew.” These employees have
priority in getting work at the PCC over other union members. If more employees are needed at
the PCC than are on the house crew, the Union refers them via its exclusive hiring hall.
In 2014, the house crew initially consisted of 15 union members plus Axel Barnes, the 30
general foreman and union steward. Due to injuries to some of its members the crew increased
to 18 members, plus Barnes, by 2016. The Charging Party, Michael “Chris” McIntyre, was the
last person added to the house crew in September 2016. The crew did not have any new
members until March 2018.
35
Removal of McIntyre from the House Crew
McIntyre, a union member since 2002, has had disagreements with the union leadership.
Some of these involved the staffing at the PCC, which he considers the most desirable job in the
Union’s jurisdiction. In September 2017, McIntyre complained to Pete Tzorgatos, a union 40
member who serves as a general foreman at the PCC, about the house crew assignments. These
complaints included concerns as to which members received overtime work. This prompted
Michael Barnes, the President of Local 8, to send the following email to McIntyre on September
19, 2017:
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Dear Brother McIntyre,
Please be informed the seniority for the House Crew at the convention center is
based on building seniority not industry seniority. This was explained to you 5
when the job was offered. You may recall the job was offered to you on the
condition you did not disrupt the stability of the crew. If this issue persist (sic),
you will be replaced on the house crew.
On March 5, 2018, McIntyre apparently believed that another IATSE employee was 10
doing work that should have been assigned to him. He sent a text message complaining about
this to two members of the Union’s Executive Board.
In response, Union President Michael Barnes sent McIntyre the following email on
March 6:15
On September 19, 2017 you were sent the attached email. Based on additional
information reported to this office after this email was sent, you are being removed from
the house crew at the convention center.
20
On March 17, 2018, 11 days after removing McIntyre from the house crew, the Union
added Joseph McAlee, a union member with far less seniority than McIntyre, to the house crew.
The Union contends this was done to replace member Tim Yowler, who stopped working in
February due to illness. However, when Yowler returned to work in August 2018, McAlee
remained on the house crew.25
Despite this “smoking gun” establishing that McIntyre was removed from the house crew
for complaining about losing work to another member. Respondent has proffered a non-credible
pretextual explanation for McIntyre’s removal from the house crew.
30
Union President Michael Barnes testified that the reason that he removed McIntyre from
the house crew was that the Union decided to reduce the number of members on the PCC house
crew from 18 to 15. There are a number of reasons why I decline to credit this testimony. First,
Barnes’ March 6 email does not give any such reason for McIntyre’s removal.
35
Secondly, there is no documentary corroboration for Barnes’ testimony in this regard.
There is also no documentation that 2 other employees were removed from the house crew at the
same time. In fact, Barnes’ testimony appears to establish that Jim Gilroy and Vince Messina
were removed from the house crew at times unspecified for reasons other than a non-
discriminatory decision to reduce the size of the house crew. At Tr. 198 Barnes testified that 40
Gilroy was removed from the house crew because he regularly wanted to work elsewhere.
Moreover, Gilroy was still on the house crew when McAlee joined it on March 17. Barnes’s
testimony also indicates that Gilroy may have been removed in part to objecting to the addition
of McAlee to the house crew, Tr. 206. Barnes testified that Messina was removed due to
disciplinary problems and challenging the basis of adverse incident reports.45
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Moreover, Barnes admitted that McIntrye’s questioning of job assignments was a factor
in his decision to remove McIntyre from the house crew, Tr. 198.
The filing of internal union charges
5
On April 30, 2018, Local 8 President Michael Barnes filed 2 internal union charges
against McIntyre alleging that he violated the Constitution and By-Laws of the Union by 1)
failing to exhaust internal remedies to resolve a decision by a local officer and 2) soliciting
referral jobs using the Union’s hiring hall procedure.
10
As to the first charge, McIntrye’s union personnel file describes the offense as “filed
charges with the NLRB before exhausting internal remedies.” I find that Barnes would not have
filed either charge had McIntrye not filed his unfair labor practice charge on March 14, 2018.
The Union dropped both charges without explaining the reason(s) to McIntyre.15
On June 6, 2018, Joseph Baliski, the Union’s recording secretary, filed another internal
union charge against McIntyre, accusing him of leaving work at the PCC 50 minutes early on
May 2, 2018 without the consent of his steward or head of his department. On May 3, Union
President Michael Barnes told McIntyre that he would have to appear before the Union’s 20
Executive Board as a result of the May 2 incident because he already had union charges pending
against him. Barnes told another employee, who was also accused of leaving work early, that he
had nothing to worry about since it was his first violation of union rules. Recording Secretary
Baliski confirmed at this hearing that whether a member is brought up on internal union charges
depends of their prior history and that McIntyre was brought up on charges on June 6, at least in 25
part due to the charges that were subsequently withdrawn, Tr. 166-67.1
Analysis
Removal from the House Crew30
Since the Respondent Union operates an exclusive hiring hall, it owes a duty of fair
representation to its members. Once the General Counsel establishes union interference with a
member’s employment status, the union bears the burden of establishing the such interference
was made pursuant to a valid hiring-hall provision, or that its conduct was necessary for effective 35
performance of its representational function, IATSE Local 151 (SMG and the Freeman Cos.,
d/b/a Freeman Decorating Services), 364 NLRB No. 89, slip opinion at p. 2 (2016).2
A union’s duty of fair representation applies to all union activity. A union may not treat a
unit employee in a manner that is arbitrary, discriminatory or in bad faith, Vaca v. Sipes, 386 40
U.S. 171 (1967); Steelworkers v. Rawson, 495 U.S. 362 (1992); Air Line Pilots Assn. v. O’Neil,

1 Respondent has the burden of showing that Barnes was referring to charges other than those filed
illegally, if that was the case. It did not do so. As the General Counsel points out, Baliski’s contention
that he was unaware that McIntyre had filed a ULP charge is not credible.
2 Although this cited case deals with referrals, the principle logically applies to removal of a union
member from his job as well.
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499 U.S. 65 (1991). The Union’s conduct with regard to Chris McIntyre was arbitrary,
discriminatory and in bad faith. It is not necessary for the Union to effectively perform its
representative functions to punish McIntrye for complaining about his assignments or
questioning whether the Union is operating its hiring hall fairly.
5
There is no question but that McIntyre was removed from the house crew for questioning
whether the Union was treating him fairly with regard to work assignments. Union President
Michael Barnes admitted this was at least a factor in removing McIntrye. Thus, the Union
violated the Act in removing McIntyre from the house crew. Contrary to the assertions of
Respondent in its brief at page 17, it violated its duty of fair representation regardless of whether 10
McIntyre’s complaints concerned only his personal situation, Operating Engineers Local 627,
359 NLRB 758, 766 (2013); 361 NLRB 908 (2014) enfd. 635 Fed. Appx. 480 (10th Cir. 2015);
Teamsters Local 657 (Texia Productions, Inc.)342 NLRB 637 (2004); Plasterer’s Local 21, 264
NLRB 192 (1982).
15
The Board will not seek to quantitatively analyze the effect of the unlawful cause once it
has been found. “It is enough that the employees' protected activities are causally related to the
employer action which is the basis of the complaint. Whether that ‘cause’ was the straw that
broke the camel's back or a bullet between the eyes, if it were enough to determine events, it is
enough to come within the proscription of the Act.” Wright Line, 251 NLRB 1083, at 1089 fn. 20
14; accord: Bronco Wine Co., 256 NLRB 53, at 54 fn. 8 (1981).
Filing Internal Union Charges Against Michael McIntyre
It is a violation of Section 8(b)(1)(A) for a Union to file internal charges against a 25
member for filing an unfair labor practice charge, IBEW Local 34, 208 NLRB 639, 641-42
(1974). This is so even if the member has failed to exhaust internal union procedures, Western
Exterminator Co., 223 NLRB 1270, 1282 (1976). This record makes it clear that the Union
would not have filed the charges against McIntyre or brought him up before the Executive Board
but for the fact that he had filed the initial charge in this case. Therefore, the April 30, 2018 and 30
the June 6, 2018 charges were filed and pursued in violation of the Act.
CONCLUSIONS OF LAW
Respondent IATSE Local No.8 violated Sections 8(b)(1)(A) of the Act in removing 35
Michael “Chris” McIntyre from the house crew at the Philadelphia Convention Center and
effectively reducing his employment opportunities at that location.3
Respondent IATSE Local 8 violated Section 8(b)(1)(A) by filing 2 internal union charges
on April 30, 2018 and another charge on June 6, 2018 against Michael McIntyre because he filed 40
an unfair labor practice charge over his removal from PCC house crew.

3 The General Counsel alleges that Respondent violated Section 8(b)(2) in causing Elliott Lewis to
remove McIntyre from the house crew. However, the Union, not Elliott Lewis removed him. The facts,
which were fully litigated establish a violation of 8(b)(1)(A), Pergament United Sales, 296 NLRB 333,
334 (1989) enfd. 920 F. 3d 130 (2d Cir. 1990).
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REMEDY
Having found that the Respondent, IATSE Local 8 has engaged in certain unfair labor
practices, I shall order it to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. It shall make Michael McIntyre whole for any loss 5
of earnings and other benefits, computed on a quarterly basis from March 6, 2018 to the date
McIntyre is restored to house crew, less any net interim earnings, as prescribed in F.W.
Woolworth, 90 NLRB 289 (1950), plus interest as computed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
10
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
Respondent, IATSE Local Union 8, Philadelphia, Pennsylvania its officers, agents, and 15
representatives, shall
1. Cease and desist from
(a) Removing employees from the Philadelphia Convention Center house crew for 20
arbitrary, discriminatory and/or bad faith reasons, including their objections or
criticisms as to how the Union operates its hiring hall.
(b) Bringing internal union charges against any employee or member because he or she
has filed an unfair labor practice charge against it.25
(c) 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. Respondent IATSE Local 8shall take the following affirmative action necessary to 30
effectuate the policies of the Act.
(a) Respondent IATSE Local 8 shall restore Michael McIntyre to the PCC house crew
without prejudice to his seniority or other rights or privileges previously enjoyed
within 14 days of this Order and shall notify Elliott Lewis Convention Services and 35
Freeman Decorating in writing that it is doing so.
(b) Respondent IATSE Local 8 shall make Michael McIntyre whole for any loss of
earnings and other benefits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.40
(c) Respondent IATSE Local 8 shall compensate Michael McIntyre for any search-for-
work and interim employment expenses regardless of whether those expenses exceed

4 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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his interim earnings. Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
5
(d) Respondent shall within 14 days of this Order remove from its files any reference to
the unlawful removal from the house crew and unlawful union charges, and within 3
days thereafter, notify Michael McIntyre, in writing that this has been done and that
the reasons for his removal from the house crew, the removal from the house crew,
his filing of an unfair labor practice charge and the illegal internal union charges will 10
not be used against him in any way.
(e) Within 14 days after service by the Region, Local 8 shall post its offices and hiring
hall in Philadelphia, Pennsylvania copies of the attached notices marked “Appendix”5
Copies of the notice, on forms provided by the Regional Director for Region 4, after 15
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, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other 20
electronic means, if the Respondent customarily communicates with its employees
and/or 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. In
the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the office involved in these proceedings, the Respondent 25
shall duplicate and mail, at its own expense, a copy of the notice to all members and
other persons who have signed up at the hiring hall at any time since March 6, 2018.
(f) Respondent Local 8 shall 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 30
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.

5 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 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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5
(g) Within 21 days after service by the Region, Respondent Local 8 shall 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 Respondents have taken to comply.
Dated, Washington, D.C. March 11, 201910
Arthur J. Amchan15
Administrative Law Judge
c ,/,,,tA avvt.Jal/L_
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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 remove you from the Philadelphia Convention Center house crew or otherwise
discriminate against you for objecting or complaining about the manner in which we operate our
exclusive hiring hall.
WE WILL NOT bring internal union charges against you for filing an unfair labor practice
charge against IATSE Local 8.
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 McIntyre whole for any loss of earnings and other benefits resulting
from his removal from the PCC house crew, less any net interim earnings, plus interest
compounded daily.
WE WILL remove from our files any reference to our unlawful removal of Michael McIntyre
from the house crew and the unlawful internal union charges filed against him, and within 3 days
thereafter, WE WILL notify Michael McIntyre, in writing that this has been done and that the
reasons for his removal from the house crew, the removal from the house crew, his filing of an
unfair labor practice charge and the illegal internal union charges will not be used against him in
any way.
WE WILL compensate Michael McIntyre for any search for work expenses regardless of
whether those expenses exceed his interim earnings.
JD–27-19
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Michael McIntyre the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards covering periods longer than 1 year.
INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES,
MOVING PICTURE TECHNICIANS,
ARTISTS, AND ALLIED CRAFTS OF
THE UNITED STATES, ITS TERRITORIES,
AND CANADA, PHILADELPHIA LOCAL
NO. 8, AFL-CIO
(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
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Wanamaker Building, 100 East Penn Square, Suite 400
Philadelphia, PA 19007
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CB-216541 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (215) 597-5354.