Jam Productions, Ltd. and Event Productions, Inc., a single employer

National Labor Relations Board - Board Decisions

Oct 29, 2018

367 NLRB No. 30 (N.L.R.B. 2018)

367 NLRB No. 30
NOTICE: This opinion is subject to formal revision before publication in the
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be included in the bound volumes.
Jam Productions, LTD and Event Productions, Inc., a
single employer and Theatrical Stage Employees
Union Local No. 2, IATSE. Case 13–CA–177838
October 29, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On May 26, 2017, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Respondents,
the General Counsel, and the Charging Party filed excep-
tions and supporting briefs; the Respondents and the
Charging Party filed answering briefs; and the Respond-
ents, the General Counsel, and the Charging Party filed
reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the stipu-
lated record in light of the exceptions and briefs and has
decided to reverse the judge’s decision and to dismiss the
complaint.
A. Facts
Jam Productions, Ltd. and Event Productions, Inc. are
Illinois corporations that have their offices and places of
business at the same location in Chicago and constitute a
single employer under the Act. Jam Productions pro-
motes and produces concerts, shows, and events by vari-
ous performers at multiple venues in Chicago. Event
Productions supplies labor, including stagehands, for
these events. The alleged discriminatees are stagehand
employees who worked at the Respondents’ events at the
Riviera, Park West, and Vic theaters in Chicago. Crew
manager Chris Shaw was responsible for offering and
assigning work to the stagehands at the Riviera Theatre;
as a result, this group of stagehands was referred to as
“the Shaw Crew.” Shaw’s practice was to call stage-
hands from the on-call list in order of seniority. The Re-
spondents never provided Shaw with written policies or
procedures governing how work should be offered, nor
did they provide Shaw with any guidance regarding
whether or not he should use seniority in making refer-
rals.
In September 2015, certain members of the Shaw
Crew distributed, signed, and collected union authoriza-
tion cards. On September 16, 2015, the Respondents
discharged the Shaw Crew and, a few days later, hired
Behrad Emami to replace Shaw as crew manager.1
Emami thereafter hired approximately 25–30 stagehand
employees (the “New Riviera Crew”). On September 17,
2015, Theatrical Stage Employees Union Local No. 2,
IATSE (the Union) filed a petition to represent the stage-
hands employed at the Riviera, Park West, and Vic thea-
ters. The following day, the Union filed an unfair labor
practice charge in Case 13–CA–160319, alleging that the
Respondents had discharged the Shaw Crew in retalia-
tion for their protected activity.2
Beginning in December 2015, the General Counsel
and the Respondents engaged in settlement negotiations
to resolve the allegations in Case 13–CA–160319. Dur-
ing negotiations, the General Counsel repeatedly pro-
posed that the Shaw Crew be offered “immediate and full
participation in the on-call list without discrimination
because of their union membership or support for the
Union and without prejudice to their seniority or any
other rights and/or privileges previously enjoyed.”3 The
Respondents repeatedly rejected the proposals that the
Shaw Crew be reinstated with “seniority or any other
rights and/or privileges previously enjoyed,” and further
objected to either discharging the New Riviera Crew or
giving the Shaw Crew any seniority or preferential
treatment over the New Riviera Crew.
After several rounds of back-and-forth negotiations, on
March 16, 2016, the General Counsel informally agreed
to terms of a settlement agreement. The agreement in-
cluded a nonadmissions clause, provided for backpay,
and required the Respondents to offer the Shaw Crew
“immediate and full participation in the on-call list for
work of the type they performed at the Riviera Theaters
from October 4, 2014, to September 21, 2015, or if those
jobs no longer exist, to substantially equivalent positions,
without discrimination because of their union member-
ship or support for the Union, and offer them work in a

1 Emami is a stipulated supervisor within the meaning of Sec. 2(11)
of the Act.
2 Following a representation election held on May 16, 2016, the Re-
gional Director for Region 13 certified the Union on June 20, 2016. On
January 5, 2017, the Board denied the Respondents’ request for review
of the Regional Director’s Corrected Report on Objection and Chal-
lenges and Certification of Representative. On May 16, 2017, the
Board found that the Respondents violated Sec. 8(a)(5) and (1) by
failing and refusing, since June 20, 2016, to recognize and bargain with
the Union. Jam Productions, Ltd., 365 NLRB No. 75 (2017). On May
17, 2017, the Respondents filed a Petition for Review of the Board’s
decision with the United States Court of Appeals for the Seventh Cir-
cuit. On June 28, 2018, the court granted the Respondents’ petition and
remanded the case back to the Board for a hearing on objections. That
case is pending before the Board as of the date of today’s decision. The
outcome does not affect our result here.
3 An earlier version proposed that the Shaw Crew be offered “im-
mediate and full reinstatement,” but the Region changed this to “imme-
diate and full participation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
non-discriminatory manner.” The agreement did not
include a seniority provision, nor did it refer to the New
Riviera Crew.
On March 28, 2016, the Respondents signed the set-
tlement agreement. Thereafter, Respondent Jam Produc-
tions sent a memo to Emami instructing him to offer the
Shaw Crew “immediate and full participation in the on-
call list” in a “completely non-discriminatory manner.”
As the judge found, Emami believed that “full participa-
tion” by members of the Shaw Crew meant that they
would share the work equally with the New Riviera
Crew members. The Shaw Crew comprised 47 percent
of the on-call list while the New Riviera Crew comprised
53 percent. Emami made 54 percent of his offers to the
Shaw Crew and 46 percent to the New Riviera Crew.
Almost all of the Shaw Crew received fewer offers than
they had received prior to the discharges.
On April 4, 2016, the Union sent an email to the Gen-
eral Counsel stating its objections to the settlement
agreement. In particular, the Union criticized the agree-
ment’s inclusion of the nonadmissions clause and failure
to require that the Shaw Crew be offered work from the
on-call list based on their seniority. In response, the
General Counsel told the Union that the seniority and
past privileges and rights language it wanted to include
in the agreement was “implicitly addressed” by the
agreement’s non-discrimination provision.4 Subsequent-
ly, on April 6, 2016, the Regional Director for Region 13
approved the informal settlement agreement over the
objections of the Union.
On June 7, 2016, the Union filed a charge based on the
Respondents’ implementation of the settlement agree-
ment. On October 28, 2016, the General Counsel filed
the instant complaint, alleging that the Respondents vio-
lated Section 8(a)(4), (3), and (1) of the Act when they
“failed to offer and assign work on a non-discriminatory
basis” to members of the Shaw Crew because, among
other reasons, they had been named as discriminatees in
the settlement agreement. The complaint seeks an Order
requiring the Respondents, among other things, to assign
members of the Shaw Crew to work assignments in the
same order and with the same frequency as prior to Sep-
tember 21, 2015, without any loss in their seniority or
benefits.
B. Judge’s Decision
The General Counsel argued to the judge that the Re-
spondents were required to fully restore the status quo as
it existed before the Shaw Crew was terminated by offer-
ing work to the Shaw Crew stagehands before offering it

4 The General Counsel did not communicate this interpretation of
the settlement agreement to the Respondents.
to the New Riviera Crew. In other words, the Shaw
Crew must be given seniority over the New Riviera
Crew. The Respondents, in turn, contended that the par-
ties agreed on the plain terms of the settlement agree-
ment, which does not include a seniority hiring require-
ment, and that their reinstatement of the Shaw Crew on
an equal basis with the New Riviera Crew was in accord-
ance with the terms of the agreement and was not dis-
criminatory.
Noting the absence of any reference to “seniority and
any other rights and/or privileges previously enjoyed” in
the agreement, the judge determined that the phrase
“immediate and full participation in the on-call list” was
ambiguous and susceptible of more than one interpreta-
tion.
The judge concluded that both the General Counsel’s
and the Respondents’ interpretations of the agreement
were reasonable. He further found the extrinsic evidence
inconclusive as to what the parties intended in the set-
tlement agreement. He noted that, although the General
Counsel had agreed to the removal of any seniority re-
quirement, the General Counsel later opined to the Union
that the agreement’s nondiscrimination provision pre-
served the Shaw Crew’s seniority rights. Based on this,
the judge found that the parties did not have the neces-
sary meeting of the minds to establish an agreement.
Accordingly, the judge set the settlement agreement
aside, reinstated the charges in Case 13–CA–160319,
and, together with the charges here, remanded both cases
to the Division of Judges for trial. For the reasons ex-
plained below, we reverse.
C. Discussion
First, we disagree with the judge’s finding that the set-
tlement agreement is ambiguous as to whether the Shaw
Crew is entitled to seniority on the on-call list. Nothing
in the agreement requires the Respondents to offer work
to the Shaw Crew based on seniority or with other privi-
leges over the New Riviera Crew. Rather, it requires that
the Shaw Crew be given “full participation” in the on-
call list, with no privileges beyond that, and no reference
to reinstatement, hiring preference over or replacement
of New Riviera Crew stagehands, or other language that
would typically be expressly included in order to fully
restore the status quo ante.5 That the settlement agree-
ment is silent on its face regarding seniority rights and
past privileges indicates that the parties specifically

5 See Sansla, Inc., 323 NLRB 107, 109 (1997) (citing “‘well-
established general rule’” that where the parties to a contract have
agreed to put the terms of their agreement into writing, “‘it is conclu-
sively presumed that the entire engagement of the parties, and the ex-
tent and manner of their undertaking, have been reduced to writing’”)
(quoting 30 Am. Jur. 2d Contracts §1016 (1967)).
JAM PRODUCTIONS, LTD AND EVENT PRODUCTIONS, INC. 3
agreed not to include such requirements.6 Similarly, the
lack of reference to the New Riviera Crew indicates that
the parties deliberately chose not to give the Shaw Crew
any specific rights superior to the other stagehands.
Second, to the extent that it might be relevant to refer
to extrinsic evidence in interpreting the language of the
agreement, the history of negotiations confirms that the
parties did not intend to give the Shaw Crew seniority
rights over the New Riviera Crew. In order to reach a
settlement, the General Counsel agreed to remove senior-
ity language from the agreement that would have re-
quired the Respondents to offer work to all members of
the Shaw Crew before offering work to the New Riviera
Crew. The Respondents had repeatedly made it clear
that they would not agree to a seniority requirement. The
parties reached a meeting of the minds when the General
Counsel agreed to remove that requirement from the
agreement.7 The General Counsel now contends that we
should imply a seniority requirement that he specifically
agreed not to include in order to reach settlement, and,
consequently, that we should find that the Respondents
violated the Act by failing to act in accordance with the
agreement that the Region negotiated. This implication
is not warranted. As both the terms of agreement and the
extrinsic evidence make clear, the General Counsel’s
arguments are not consistent with the parties’ agree-
ment.8

6 See, e.g., Postal Service, 348 NLRB 25, 25 (2006) (where settle-
ment agreement required parties to arbitrate pending grievances regard-
ing unit-placement issues, but was silent on rights and obligations in the
event a party disagreed with arbitration results, employer was not es-
topped from filing unit clarification petition to challenge a resulting
arbitral decision); Local Union 613, Electrical Workers, 227 NLRB
1954, 1955, 1957 (1977) (settlement agreement requiring union to
“place [alleged discriminatees] on a preferential list and refer them to
the first available employment with any NECA contractor” did not
require union to place them with any particular contractor, guarantee
employment of any specific duration or at preferred locations, or refer
them at the expense of other registrants).
7 Further, the fact that the General Counsel opined to the Union that
seniority rights were implicitly reserved in the settlement agreement—a
view the General Counsel did not communicate to the Respondents—
does not indicate that there was no meeting of the minds. This ex-
change occurred after the parties had signed the agreement, the General
Counsel knew full well that the Respondents would not have agreed to
settle were there a seniority requirement, and the General Counsel
expressly agreed to remove it. See, e.g., MK-Ferguson Co., 296 NLRB
776, 776 fn. 2 (1989) (“Whether a meeting of the minds was reached
is determined not by the parties' subjective inclinations, but by
their intent as objectively manifested in what they said to each other.”).
8 We find no merit in the General Counsel’s argument that the pro-
vision requiring “full participation” in the on-call list is identical to a
full reinstatement remedy that would restore the status quo and require
the Respondents to give the Shaw Crew seniority or other privileges
over the New Riviera Crew, particularly given that the parties expressly
agreed not to include any such requirement in the agreement. Cases
cited by the General Counsel to argue that the agreement must restore
In light of the above, we find that reinstatement with
seniority rights or other preferences was deliberately
excluded from the settlement agreement and that, there-
fore, the Respondents’ offers of work to the Shaw Crew
on an equal basis as the New Riviera Crew did not vio-
late Section 8(a)(3), (4), and (1) of the Act.9 According-
ly, we reverse the judge and dismiss the complaint.
ORDER
The judge’s order to set aside the settlement agreement
in Case 13–CA–160319 is rescinded and the complaint is
dismissed.
Dated, Washington, D.C. October 29, 2018
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

the status quo are inapposite and involve 8(a)(5) violations where,
unlike here, the remedies specifically require restoration of the status
quo. E.g., J. E. Brown Electric, 315 NLRB 620 (1994). There, where
the respondent repudiated contractual hiring-hall provisions in violation
of Sec. 8(a)(5), the remedy necessarily restored the status quo, which
was established by contract. Id. at 623. Here, in contrast, the Respond-
ents’ obligations have been established by a negotiated settlement
agreement that does not expressly or implicitly restore the status quo
ante and contains a nonadmissions clause. For this reason, our dissent-
ing colleague’s focus on the fact that the Shaw Crew members received
less work than they had previously is misplaced. Finally, while the
Union contends on brief that the hiring conflicts with the non-
discrimination requirement, the General Counsel’s specific agreement
with the Respondents, and the nonadmissions clause, establish a clear
meeting of the minds that is consistent with the Respondents’ post-
settlement hiring practices.
9 We disagree with our colleague that the Respondents’ recall of the
Shaw Crew on an equal basis as the new hires is “inherently destruc-
tive” of the Shaw Crew’s Section 7 rights and that the case should be
remanded. The Respondents reinstated the Shaw Crew without seniori-
ty considerations pursuant to the negotiated terms of the Settlement
Agreement, a fact that our colleague discounts as “beside the point.”
To relieve the General Counsel from the terms of a settlement agree-
ment to which he voluntarily agreed—as our colleague suggests we
do—would dissuade parties from negotiating settlements and contra-
vene the Board’s long held policy of encouraging the “peaceful, nonli-
tigious resolution of disputes” through compromises and settlements.
UPMC, 365 NLRB No. 153, slip op. at 3 (2017) (quoting Independent
Stave, 287 NLRB 740, 741 (1987)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
MEMBER MCFERRAN, dissenting.
The Respondents fired 55 of their stagehands—an en-
tire work crew (the Shaw Crew)—the day before the
Union filed a petition seeking to represent them. The
Respondent then hired a crew of replacement employees
(the New Riviera Crew). Not surprisingly, the Union
filed an unfair labor practice charge challenging the mass
discharge as discriminatory. That charge led to a settle-
ment between the General Counsel and the Respondents,
which agreed to provide backpay for the discharged
stagehands, to offer them “immediate and full participa-
tion in the on-call list for work,” and to “offer them work
in a non-discriminatory manner.” The issue in the pre-
sent case (as framed by the General Counsel’s complaint)
is whether the Respondents violated Sections 8(a)(3) and
8(a)(4) of the National Labor Relations Act by “fail[ing]
to offer and assign work on a non-discriminatory basis”
to the discharged stagehands, the Shaw Crew employees.
As did the administrative law judge, the majority mis-
construes both the General Counsel’s theory of the pre-
sent case and the relationship between this case and the
prior, settled case. Today’s case does not turn on the
interpretation of the earlier settlement agreement, nor
must that agreement be set aside (as the judge deter-
mined) before the General Counsel may proceed. The
question, rather, is whether the method used by the Re-
spondents to assign work after the settlement conformed
to the Act or whether, as the General Counsel argues, it
was “inherently destructive” of employees’ Section 7
rights, in the Supreme Court’s formulation.10 The major-
ity thus errs in dismissing the General Counsel’s com-
plaint alleging a statutory violation, based on its own
interpretation of the settlement agreement.
As the judge found, and the majority explains, after the
settlement, the Respondents decided that members of the
discharged Shaw Crew would share work equally with
their replacements, the members of the New Riviera
Crew. This target was essentially met: 54 percent of job
offers went to the Shaw Crew. Even so, almost all Shaw
Crew members received fewer job offers than they did
before they were fired. And, of course, the equal-share
rule meant that (in principle) there was a cap on the
number of job offers that Shaw Crew members as a
group could receive: i.e., not more than half. Moreover,
the very premise of the rule was that Shaw Crew mem-
bers—the employees who had sought union representa-
tion and who were discharged—would be treated as a
group, a group effectively defined by union status.

10 NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). See,
e.g., Woodcrest Health Care Center, 366 NLRB No. 70, slip op. at 3
(2018) (explaining Great Dane analytical framework).
In these circumstances, the General Counsel’s “inher-
ently destructive” theory of discrimination is viable, to
say the least. The Board has found job-bidding policies
that restricted employees’ opportunities based on their
union status to be inherently destructive of Section 7
rights and thus unlawful, even absent proof of anti-union
motivation. In Honeywell, Inc., 318 NLRB 637 (1995),
for example, the Board struck down an employer policy
that precluded employees covered by a collective-
bargaining agreement from bidding on certain job vacan-
cies. Such a policy, the Board explained, “necessarily
discourages union membership because the message to
employees is that choosing union representation is risky
because that choice can be used to discriminate against
you. . . .” Id. at 638. The Honeywell Board found, in
turn, that the employer had failed to carry its burden to
prove that the discriminatory policy was motivated by
legitimate and substantial business justifications. Id.11
Instead of permitting the General Counsel to pursue
his complaint, the majority dismisses it. Perhaps the
majority is led astray by the administrative law judge’s
own error here: he mistakenly ordered the settlement
agreement set aside (and reinstated the original unfair
labor practice charges attacking the discharge of the
Shaw Crew), based on his finding that there had been no
meeting of the minds between the General Counsel and
the Respondents with respect to whether the agreement
required that the Shaw Crew stagehands be given seniori-
ty over the New Riviera crew. But here, the General
Counsel has not asked that the settlement agreement be
set aside, in order that he might pursue the original (set-
tled) charges.12 As explained, the gravamen of the cur-
rent complaint, based on a new unfair labor practice
charge, is that the Respondent’s chosen method of as-
signing work after the settlement violated the Act. The
General Counsel is correct, then, when he argues that
“[i]n his decision, the [judge] failed to address the central
issue in this case.”13
The majority seems to make the same mistake. Its de-
cision focuses entirely on interpreting the settlement
agreement. The majority asserts that because “rein-
statement with seniority rights or other preferences was
deliberately excluded from the settlement agreement,”
the Respondent’s “offers of work to the Shaw Crew on

11 See also Legacy Health System, 355 NRB 408, 408 fn. 3 (2010)
(dicta), affirming and incorporating 354 NLRB 337 (2009) (addressing
employer policy prohibiting employees from simultaneously holding
both part-time bargaining-unit and nonbargaining-unit positions, thus
limiting employees’ future job opportunities based on initial hire into
bargaining-unit position).
12 For such a case, see Nations Rent, 339 NLRB 830 (2003).
13 Counsel for the General Counsel’s Exceptions and Brief in Sup-
port at p. 9 (July 10, 2017).
JAM PRODUCTIONS, LTD AND EVENT PRODUCTIONS, INC. 5
an equal basis as the New Riviera Crew did not violate
. . . the Act.” Simply put, this conclusion does not follow
from the premise. Whether or not the agreement com-
pelled the Respondent to give the Shaw Crew employees
seniority—to prefer them over the Riviera Crew employ-
ees for work assignments—is beside the point. The
question instead is whether the Respondent’s chosen
method of assigning work (purportedly implementing the
settlement) violated the Act, because it discriminatorily
limited the job opportunities of the Shaw Crew employ-
ees. At a minimum, those employees each were statuto-
rily entitled to be assigned work regardless of their union
support or affiliation, based on some neutral rule (such as
seniority or random assignment) that did not include a
discriminatory cap on assignments predicated on their
union status.
The settlement agreement, of course, could not possi-
bly be read either to compel or to condone a statutory
violation.14 The majority does not attempt to argue oth-
erwise. There is no suggestion here that the General
Counsel affirmatively agreed to the Respondent’s equal-
share rule based on union status or that the General
Counsel somehow waived the right to challenge the
means chosen by the Respondents to implement the set-
tlement agreement, even if it violated the Act.15 Under
the circumstances, then, I would remand the case to the
administrative law judge, with instructions to address the
General Counsel’s theory of the case, to determine
whether the Respondent’s equal-share rule violated the
Act, and, if so, to devise an appropriate remedy for that
violation.
Dated, Washington, D.C. October 29, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

14 See First National Supermarkets, 302 NLRB 727, 727–728
(1991) (rejecting interpretation of settlement agreement that would
create unlawful interference with statutory right to file unfair labor
practice charges). See also Formby-Denson v. Dept. of Army, 247 F.3d
1366, 1377–1378 (Fed. Cir. 2001) (rejecting interpretation of settle-
ment agreement that would require violation of public policy).
15 As noted above, the majority is simply mistaken when it asserts
that the General Counsel seeks to be “relieve[d] . . . from the terms of a
settlement agreement to which he voluntarily agreed.” The settlement
agreement in this case did not incorporate the Respondent’s equal-share
rule based on union status, which the General Counsel challenges as
violating the Act. The question, then, is not whether the settlement
agreement should be set aside or how the settlement agreement should
be interpreted, but whether the Respondent violated the Act in purport-
ed compliance with the agreement. The Board’s policy of encouraging
settlements, cited by the majority, does not create a license to violate
the statute.
Kevin McCormick, Esq., for the General Counsel.
Greg Shinall, Esq. (Sperling & Slater), and Steven L. Gillman
(Holland & Knight LLP), of Chicago, Illinois, for the Re-
spondent.
David Huffman-Gottschling, Esq. (Jacobs, Burns, Orlove &
Hernandez), of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried on a stipulated record. Theatrical Stage Employees
Union Local No. 2, IATSE (the Union) alleges that Respond-
ents, Jam Productions, Ltd. (Jam) and Event Productions, Inc.
(Event Productions) violated Section 8(a)(4), (3) and (1) of the
National Labor Relations Act (the Act)1 by failing to reinstate
55 stagehands in accordance with the settlement agreement in a
prior Board proceeding relating to their mass termination. The
primary issue in this case is whether the phrase, “immediate
and full participation in the on-call list,” required a return to the
status quo ante, thus giving the 55 stagehands seniority or other
preference over the stagehands who replaced them, or simply
the right to be offered work assignments equally with their
replacements.
On the entire record, including my consideration of the stipu-
lated record and the briefs filed by the General Counsel, the
Respondent and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Jam is an Illinois corporation with an office and place of
business in Chicago, Illinois, is engaged in the business of
promoting and producing concerts, shows, and events by vari-
ous performers, at various venues in Chicago, Illinois. Event
Productions, Inc., an Illinois corporation with an office and
place of business at the same location, has been engaged in the
business of supplying labor, including stagehands, for concerts,
shows, and events by various performers at venues in Chicago,
Illinois., Jam and Event Productions are a single-integrated
business enterprise and a single employer within the meaning
of the Act, and are employers engaged in commerce within the
meaning of Sections 2(2), (6), and (7) of the Act. The Union is
a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Shaw Crew
For many years prior to September 16, 2015, Chris Shaw
was a part-time employee of Event Productions, with day-to-
day responsibilities as the crew manager in charge of offering
and assigning work to part-time stagehands at the Riviera Thea-
tre (the Riviera). He reported to Nick Miller (a Vice President
and the head talent buyer for the club department at Jam) and/or
Kevin Lynch (the production manager at the Riviera). Neither
Event Productions nor Jam provided Shaw with written policies
or procedures governing how he or any other crew manager or

1 29 U.S.C. §§ 151–169.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
production manager should offer and assign work to the part-
time stagehands at the Riviera. Moreover, neither Event Pro-
ductions nor Jam authorized or requested Shaw to use a system
providing seniority or any other privileges to stagehands based
on length of service.
Prior to September 16, 2015, Shaw typically assigned stage-
hands from the aforementioned group of part-time employees
to fill the crews for shows at the Riviera (the Shaw Crew):
Danny Alvarez, Mike Alvarez, James Bartolini, Karlis Bau-
manis, Brent Benson Jr., Lester Berry, Edward J. Bilecki, Scott
Bulawa, Todd Carter, Christopher C. Chambers, Don Corney,
Nick Curry, Alek Dombrovskis, Jerome Fritz, Zachary Fritz,
Tom Garrity, Willie Gee, Christopher Glazebrook, Bryan Gon-
zalez, Sean D. Gunn, Justin Huffman, Joe Kelly, Gregor Kra-
mer, Chris Leggett, Joe Lyons, Bryan Mangnall, Michael Mul-
vey, Quintin Muntaner, Bertil Peterson, Chris Phipps, Martin
Pollack, Paul Repar, Adam Ross, Tom Roszel, Eric D. Sanders,
Brad Sikora, Louis Svitek Jr., Gabriel Thompson, Paul Wright,
Archie Yumping, Steph Tremius, Devonte Jackson, Charlie
Naese, James Curry, Evon Peterson, Kristopher Brumnell, Joe
McNulty, Tim Taylor, Ken Kinder, Mike Howe, Kasia Kozsiol,
Eric Pospishil, Louis Svitek IV, Dan May, and Peter Falk.
Prior to September 16, 2015, Shaw typically assigned em-
ployees from the Shaw Crew to Riviera events after receiving a
call and an “Advanced Sheet” from Lynch telling him how
many people were needed for the event. Shaw usually called
crew members in order of seniority, with few exceptions. An
example where talent superseded seniority was when a sound
monitor controller was needed. Shaw would generate a Jam
payroll timesheet for each show, recording the hours worked
and entering the hourly pay rates established by Jam. Before or
during the show, Shaw would hand the timesheet to Lynch,
who would initial it along with the band production manager
and submit it to the Jam talent buyer. Based on those time-
sheets, Jam would issue paychecks to the Shaw Crew mem-
bers.2 Shaw’s only other responsibilities as crew leader was to
purchase performance related supplies, for which he was reim-
bursed. Major equipment purchases, on the other hand, were
made by the Riviera’s building engineer.
On September 16, 2015, Respondents discharged Shaw and
the rest of the Shaw Crew from working shows at the Riviera.
However, certain of these employees were permitted to work at
previously-assigned shows at the Riviera on September 18 and
21, 2015 (and other previously-assigned events outside of the
Riviera). Thus, the last day of employment at the Riviera for
the employees who worked the September 18 and 21, 2015,
shows was either September 18 or 21, 2015, respectively.
On September 22, 2015, Event Productions hired Behrad
Emami to replace Lynch as production manager and Shaw as
crew manager at the Riviera. Between September 22 and 25,
2015 Emami worked with Shaw and Lynch to put together a
crew for his first show on September 25, 2015. Thereafter,
Emami typically assigned stagehand employees to work shows
at the Riviera using a list of stagehands that he and Jason Pla-

2 The timesheets also identify employees not listed in the aforemen-
tioned Shaw Crew who filled positions for shows other than stagehand,
e.g., runner, hospitality, production, and crew call.
hutnik developed based on their experience working with
stagehands at other area venues (the “New Riviera Crew”).
There were 25 to 30 crew members on the initial New Rivera
Crew list.3
B. The Previous Litigation
During an undetermined period of time, certain Shaw Crew
members, including Justin Huffman, distributed, signed and/or
collected union authorization cards.4 On September 17, 2015,
the Union filed a petition with the National Labor Relations
Board, Region 13, to represent the following individuals em-
ployed at the Riviera, Park West Theater and Vic Theater:
All full-time and regular part-time stage production employ-
ees employed by the Employer at the Riviera, Park West, and
Vic Theatres, but excluding production managers and crew
leaders, office clerical employees and guards, professional
employees and supervisors as defined in the Act.
On September 18, 2015, the Union filed a charge in Case
13–CA–160319 alleging that Respondents discharged the
aforementioned Shaw Crew employees in retaliation for their
protected activity. On March 4, 2016, a Second Amended
Complaint issued in Case 13–CA–160319, alleging that Re-
spondents discharged the Shaw Crew employees in violation of
the Act.
On April 6, 2016, the Regional Director of Region 13 ap-
proved a settlement agreement and notice to employees in Case
13–CA–160319. The following employees, comprising the
Shaw Crew, were named in that settlement agreement: Danny
Alvarez, Mike Alvarez, James Bartolini, Karlis Baumanis,
Brent Benson Jr., Lester Berry, Edward J Bilecki, Scott Bula-
wa, Todd Carter, Christopher C Chambers, Don Corney, Nick
Curry, Alek Dombrovskis, Jerome Fritz, Zachary Fritz, Tom
Garrity, Willie Gee, Christopher Glazebrook, Bryan Gonzalez,
Sean D Gunn, Justin Huffman, Joe Kelly, Gregor Kramer,
Chris Leggett, Joe Lyons, Bryan Mangnall, Michael Mulvey,
Quintin Muntaner, Bertil Peterson, Chris Phipps, Martin Pol-
lack, Paul Repar, Adam Ross, Tom Roszel, Eric D Sanders,
Brad Sikora, Louis Svitek Jr., Gabriel Thompson, Paul Wright,
Archie Yumping, Steph Tremius, Devonte Jackson, Charlie
Naese, James Curry, Evon Peterson, Kristopher Brumnell, Joe
McNulty, Tim Taylor, Ken Kinder, Mike Howe, Kasia Kozsiol,
Eric Pospishil, Louis Svitek IV, Dan May, and Peter Falk. In
the accompanying Notice to Employees (Notice), Respondents
agreed, among other things, to offer the Shaw Crew “immediate
and full participation in the on-call list for work of the type they
performed at the Riviera Theatre without discrimination be-
cause of their union membership or support for the Union, and
offer them work in a non-discriminatory manner.”
The provision requiring Respondents to offer the Shaw Crew

3 Jt. Exh. 24 at 1–4.
4 Justin Huffman was also the sole member of the Shaw Crew to
appear at the subsequent Representation Case hearing; and he was the
Union's sole observer at each of the two sessions of the union election.
There is no indication in the record, however, as to when the he and
others distributed, signed and collected authorization cards.
JAM PRODUCTIONS, LTD AND EVENT PRODUCTIONS, INC. 7
“immediate and full participation in the on-call list for work
without discrimination because of their union membership or
support for the Union, and offer them work in a non-
discriminatory manner” was, along with other provisions in the
settlement agreement, the subject of several rounds of back-
and-forth negotiation.
Initially, Region 13 proposed that the Shaw Crew be offered
“immediate and full participation in the on-call list without
discrimination because of their union membership or support
for the Union and without prejudice to their seniority or any
other rights and/or privileges previously enjoyed, if any.” Re-
spondents rejected Region 13’s proposal that the Shaw Crew be
reinstated with “seniority or any other rights and/or privileges
previously enjoyed.” Respondents objected to discharging the
New Riviera Crew or to giving the Shaw Crew any seniority or
preferential treatment over the New Riviera Crew. The Region
ultimately agreed to the terms and language proposed by Re-
spondents for the reinstatement and recall of the Shaw Crew
employees, including backpay for the period of October 4,
2014, to September 21, 2015.
Respondents signed the Settlement Agreement and Notice to
Employees on March 28, 2016. The settlement included a non-
admissions clause stating that, “[b]y entering into this Settle-
ment Agreement, the Charged Parties do not admit to having
violated the act.” On the same date, Jerry Mickelson, Jam’s
Chairman, Vice President and Secretary, sent a Memorandum
to Emami implementing the foregoing provision of the Notice.5
Mickelson’s Memorandum stated, in pertinent part:
As part of that settlement, the companies have agreed that, ef-
fective now, you, as the person who hires stagehands for [Riv-
iera] . . . will offer the . . . former [Shaw] crew (names are
listed below) “immediate and full participation in the on-call
list for work of the type they performed at the Riviera Theatre
from October 4, 2014 to September 21, 2015 without discrim-
ination because of their union membership or support for the
Union, and offer them work in a non-discriminatory manner.
. . . To be clear, you may hire whomever you think is best and
appropriate for jobs. But union support or membership, or
lack of support or membership in the union, may not play any
role—NONE—in the hiring decisions you make. And you
have to give fair consideration to Jolly’s former crew. No
doubt, you have people whom you are now using whom you
know and trust. But in order to be fair to [Shaw’s] former
crew, I want you to make sure that you give people a chance –
especially people who were most active at the [Riviera]. In
order to show your and our good faith in this, I would like you
to make a particular effort to choose among [Shaw’s] former
crew as stagehands for the immediately upcoming [Riviera]
shows on April 1 (if possible), 7, 14, 15 and 16. . . . You must
make sure that you continue to hire stagehands in a complete-

5 The parties stipulated that Mickelson and Emami acted as supervi-
sors within the meaning of Sec. 2(11) of the Act and agents within the
meaning of Sec. 2(13) of the Act on behalf of Jam and Event Produc-
tions, respectively.
ly non-discriminatory manner. (Emphasis in original.)6
On April 4, 2016, counsel for the Union sent the General
Counsel an email objecting to the proposed settlement in Case
13–CA–160319, specifically, the agreement’s inclusion of a
non-admissions clause and failure to mention the Shaw Crew’s
seniority rights upon reinstatement. The General Counsel re-
sponded the same day, explaining that the settlement agree-
ment’s non-discrimination provision fully remedied the alleged
unfair labor practices. Neither communication was provided to
Respondents in connection with the Settlement Agreement. The
Region subsequently approved the Settlement Agreement and
Notice over the Union’s objection.
On April 5 and 6, 2016, Respondents requested that the Re-
gion provide current contact information for the Shaw Crew so
they could be offered work. On April 8, 2016, the Region sent
Respondents the final backpay calculations for the Settlement
Agreement.
C. Shaw Crew Employees Are Recalled
After receiving the March 28, 2016 memorandum from
Mickelson, Emami began offering and assigning work to the
former Shaw Crew employees. Emami proceeded with the
belief that “full participation” by members of the Shaw Crew
meant that they would share the work equally with the New
Crew employees. Emami was not otherwise instructed on how
to offer work to the Shaw Crew members, except to “make an
effort to use those listed as the ‘most active.’”7 In this regard,
Emami kept a log reflecting the events at the Riviera, the name
of each person he contacted to work that event, how he contact-
ed the individual (text or call), the date and time of the contact,
whether he succeeded in making contact, and the individual ‘s
response.8
From the combined group of employees that Emami had to
pick from, the Shaw Crew comprised 47 percent and the New
Riviera Crew amounted to 53 percent of the group. Emami
subsequently made 54 percent of his offers to the Shaw Crew
and 46 percent to the New Riviera Crew. The Shaw Crew’s
most utilized stagehands—Gregor Kramer, Paul Repar, Archie
Yumping and Justin Huffman—received the most offers. Nev-
ertheless, Emami’s logs indicate that they too received fewer
opportunities after reinstatement. Kramer previously worked 97
percent of shows, but was called by Emami for 74 percent of
shows; Huffman previously worked 80 percent of shows, but
Emami called him only half of the time. Almost all of the rest
of Shaw Crew received less calls after reinstatement. Overall,
Shaw Crew members filled 48 percent of the all-day slots and
46 percent of the total slots.
In some instances, Shaw Crew contacted by Emami refused
offers of employment or were unavailable. Some informed him
that they were unavailable due to scheduling conflicts with
work assignments for employers other than Respondents; one
Shaw Crew member, Archie Yumping ignored Emami’s offers

6 The lists attached to Mickelson’s memorandum identified 22 indi-
viduals as “Most Active Working Riv Shows” and 24 individuals as
“Additional Crew Available To Work.” (Jt. Exh. 19.)
7 Jt. Exh. 24 at 4–10.
8 Jt. Exh. 27.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
of employment; Gabriel Thompson relocated to another state;
Brent Benson has a serious medical condition that prevents him
from working; and Brad Sikora passed away
D. Charges Are Filed After Respondents Recall Shaw
Crew Members
On June 7, 2016, the Union filed an unfair labor practice
charge against Respondents in Case 13–CA–177838 alleging
that they failed and refused to offer the Shaw Crew employees
“full participation in the on-call list because of their protected,
concerted, union activity; in retaliation for their being named
discriminatees in the complaint and settlement agreement; and
in violation of the terms of the settlement agreement.”
On July 13, 2016, the Regional Director notified the Union
that Region 13 would not pursue the charge:
We have carefully investigated and considered your charge
[and) [f]rom the investigation, the evidence is insufficient to
show that the Employer has failed and refused to offer the
employees named as discriminatees in Case 13-CA-160319
full participation in the on call list for work assignments, as
required by the settlement agreement that was reached in that
case, because of their engagement in protected concerted or
union activity, or because they were named as discriminatees
in the Complaint or Settlement Agreement. Further, the evi-
dence is insufficient to show that the Employer is in violation
of the express terms of the settlement agreement reached in
Case 13-CA-160319.
The Charging Party appealed the dismissal of charges in
Case 13–CA–177838. On October 19, 2016, after considering
the Charging Party’s appeal as a request for reconsideration and
newly submitted evidence, the Regional Director reversed his
decision and revoked the dismissal of charges.
LEGAL ANALYSIS
The General Counsel and Charging Party contend that Re-
spondents unlawfully discriminated against Shaw Crew mem-
bers in violation of Sections 8(a)(4), (3), and (1) by reducing
their work hours and, thus, denying them “immediate and full
participation” upon reinstatement after the settlement of Case
13–CA–160319. Respondents insist that the Shaw Crew em-
ployees were reinstated in accordance with the terms of the
settlement and were afforded work opportunities at the Riviera
Theatre through the on-call list in a nondiscriminatory manner.
The resolution of the unfair labor practice allegations de-
pends on an interpretation as to what the General Counsel and
Respondents intended by the “immediate and full participation
in the on-call list” by Shaw Crew employees in the settlement
agreement in Case 13–CA–160319.
Respondents highlight the settlement discussions between
the parties in Case 13–CA–160319 that resulted in a settlement
agreement over the objection of the Union. The Union specifi-
cally objected to the inclusion of a non-admissions clause and
the omission of a provision assuring the reinstated Shaw Crew
employees of seniority in the on-call list.
In his brief, the General Counsel objected to the admissibil-
ity of settlement discussions in determining the meaning of the
settlement agreement. Those discussions, in the form of emails
exchanged between counsels in Case 13–CA–160319, are rele-
vant and admissible for two reasons. First, to the extent that the
General Counsel objection relies on the inadmissibility of evi-
dence of settlement related discussions pursuant to FRE Rule
408, that argument lacks merit. Evidence of discussions relating
to a settlement agreement is admissible in determining the
meaning of its contents. Basha v. Mitsubishi Motor Credit of
America, Inc., 336 F.3d 451 (5th Cir. 2003) (settlement-related
letters between parties admissible where not used to establish
liability, but, rather, to interpret parties’ settlement agreement);
Central Soya Co., Inc. v. Epstein Fisheries, Inc., 676 F.2d 939,
944 (7th Cir. 1982) (explaining that evidence relating to a set-
tlement is admissible to explain the settlement’s terms).
Second, the parties reasonably disagree as to whether “im-
mediate and full participation in the on-call list” requires a
return to the on-call list previously used for the Shaw Crew or
simply inclusion into an on-call list with the New Riviera Crew.
As it relates to “seniority and any other rights and/or privileges
previously enjoyed” by Shaw Crew employees, the phrase is
silent and thus unclear or susceptible of more than one interpre-
tation. In a case where the wording of a provision is ambiguous,
as it is here, the Board applies established rules of contract
interpretation and considers extrinsic evidence. Sanitation Sal-
vage Corp., 342 NLRB 449, 451–452 (2004), citing Des
Moines Register & Tribune Co., 339 NLRB 1035, 1037 (2003);
Sansla, Inc., 323 NLRB 107, 109 (1997).
The extrinsic evidence in this record, however, is also incon-
clusive as to what the parties intended in the settlement agree-
ment. Respondents rely on the General Counsel’s inclusion of
seniority language in the initial draft of the settlement agree-
ment and its removal from the final version of the agreement,
over the Union’s objection, after Respondents rejected that
language. On the other hand, there is evidence that the General
Counsel, in responding to the Union’s objection, expressed his
opinion that the final version of the settlement agreement pre-
served the Shaw Crew’s seniority rights notwithstanding the
omission of specific language to that effect.
The patent ambiguity of the requirement that Respondents
provide the Shaw Crew with “immediate and full participation
in the on-call list” is further evident from the agreement to
make whole the Shaw Crew employees for the entire backpay
period, while omitting any reference to the rights of the New
Riviera Crew that replaced the Shaw Crew members during that
period. Indeed, the settlement agreement fails to mention the
New Riviera Crew in any way.
The Board has always encouraged voluntary settlements of
unfair labor practice claims. Based on the evidence, however,
it is evident that there was no meeting of the minds as to Re-
spondents’ obligations under the settlement agreement in Case
13–CA–160319 upon which the parties premises their theories
of this case. Accordingly, it will be recommended that the
Board set aside the settlement in Case 13–CA–160319, rein-
state those allegations, and remand that case to the Division of
Judges for a trial of both the reinstated allegations and those in
the instant complaint, and to make the necessary findings, anal-
ysis, and conclusions of law. See Doubletree Guest Suites
Santa Monica, 347 NLRB 782, 784 (2006), citing Howard
Electrical & Mechanical, 293 NLRB 472, 472 fn. 2, 490
(1989), enfd. mem. 931 F.2d 63 (10th Cir. 1991).
JAM PRODUCTIONS, LTD AND EVENT PRODUCTIONS, INC. 9
CONCLUSIONS OF LAW
1. Respondents Jam Productions, Ltd. and Event Produc-
tions, Inc. are a single-integrated business enterprise and a sin-
gle employer within the meaning of the Act, and are employers
engaged in commerce within the meaning of Sections 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. On September 16, 2015, the following employees, collec-
tively referred to as the Shaw Crew, were discharged by Re-
spondents: Danny Alvarez, Mike Alvarez, James Bartolini,
Karlis Baumanis, Brent Benson Jr., Lester Berry, Edward J
Bilecki, Scott Bulawa, Todd Carter, Christopher C Chambers,
Don Corney, Nick Curry, Alek Dombrovskis, Jerome Fritz,
Zachary Fritz, Tom Garrity, Willie Gee, Christopher
Glazebrook, Bryan Gonzalez, Sean D Gunn, Justin Huffman,
Joe Kelly, Gregor Kramer, Chris Leggett, Joe Lyons, Bryan
Mangnall, Michael Mulvey, Quintin Muntaner, Bertil Peterson,
Chris Phipps, Martin Pollack, Paul Repar, Adam Ross, Tom
Roszel, Eric D Sanders, Brad Sikora, Louis Svitek Jr., Gabriel
Thompson, Paul Wright, Archie Yumping, Steph Tremius,
Devonte Jackson, Charlie Naese, James Curry, Evon Peterson,
Kristopher Brumnell, Joe McNulty, Tim Taylor, Ken Kinder,
Mike Howe, Kasia Kozsiol, Eric Pospishil, Louis Svitek IV,
Dan May, and Peter Falk.
4. On April 6, 2016, the Regional Director of Region 13 of
the National Labor Relations Board approved a settlement
agreement and notice reinstating the Shaw Crew employees
disposing of the allegations in Case 13–CA–160319. In the
accompanying Notice to Employees, Respondents agreed,
among other things, to offer the Shaw Crew “immediate and
full participation in the on-call list for work of the type they
performed at the Riviera Theatre without discrimination be-
cause of their union membership or support for the Union, and
offer them work in a non-discriminatory manner.”
5. On and after April 7, 2016, Respondents began offering
work equally to the Shaw Crew and New Riviera Crew em-
ployees. By sharing the work opportunities at the Riviera
Theatre with the New Riviera Crew employees, most Shaw
Crew members received significantly less work than before
they were discharged on September 16, 2015.
6. The March 28, 2016 settlement agreement between the
General Counsel and Respondents to offer the Shaw Crew em-
ployees “immediate and full participation in the on-call list for
work of the type they performed at the Riviera Theatre without
discrimination because of their union membership or support
for the Union, and offer them work in a non-discriminatory
manner” was patently ambiguous, establishes that there was no
meeting of the minds between the parties on this issue, and is
unenforceable.
REMEDY
The agreement in Case 13–CA–160319 between the General
Counsel and Respondents to offer the Shaw Crew “immediate
and full participation in the on-call list for work of the type they
performed at the Riviera Theatre without discrimination be-
cause of their union membership or support for the Union, and
offer them work in a non-discriminatory manner” was ambigu-
ous and unenforceable. That settlement agreement is an inte-
gral element of the allegations in this case. Accordingly, I shall
recommend that the Board set aside the settlement in Case 13–
CA–160319, reinstate those allegations, and remand this pro-
ceeding to the Division of Judges for a trial of both the reinstat-
ed allegations in Case 13–CA–160319 and those in the instant
complaint, and to make the necessary findings, analysis, and
conclusions of law.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The settlement agreement in Case 13–CA–160319 is set
aside, the allegations in that complaint are reinstated and re-
manded to the Division of Judges for a trial of both the reinstat-
ed allegations in Case 13–CA–160319 and those in the instant
complaint, and to make the necessary findings, analysis, and
conclusions of law.
Dated, Washington, D.C. May 26, 2017

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.