Rhino Northwest, LLC

National Labor Relations Board - Board Decisions

Feb 6, 2020

369 N.L.R.B. 25 (N.L.R.B. 2020)

369 NLRB No. 25
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rhino Northwest, LLC and Local No. 15, Interna-
tional Alliance of Theatrical Stage Employees
and Moving Picture Technicians and Artists and
Allied Crafts of the United States and Canada
AFL–CIO, CLC. Cases 19–CA–165356, 19–CA–
168813, 19–CA–169067, and 19–CA–181097.
February 6, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On November 3, 2017, Administrative Law Judge
John T. Giannopoulos issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed cross-
exceptions and a supporting brief. The Respondent and
General Counsel each filed an answering brief, and the
Respondent filed a reply brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings,1 and conclusions,
except as modified in this Decision and Order, and to
adopt the recommended Order as modified and set forth
in full below.2
We agree with the judge, for the reasons he stated, that
in November 2015 the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act by
unilaterally instituting a policy of more stringent en-
forcement of its 90-day deactivation rule,3 that it violated

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language, and we
shall substitute a new notice to conform to the Order as modified. Spe-
cifically, the recommended remedial provisions applicable to the Re-
spondent’s discriminatory deactivation of discriminatees will be ex-
tended to discriminatee Matthew Klemisch.
3 We reject the Respondent’s argument that the community of inter-
ests test in PCC Structurals, Inc., 365 NLRB No. 160 (2017), warrants
finding that the riggers’ unit is inappropriate, abnegating the Respond-
ent’s obligation to bargain. In this instance, the Board has rejected the
Respondent’s test of certification on the appropriate-unit issue, Rhino
Northwest, 363 NLRB No. 72 (2015), and the bargaining order for the
riggers’ unit in that decision was enforced in Rhino Northwest v. NLRB,
867 F.3d 95 (D.C. Cir. 2017).
Section 8(a)(4), (3), and (1) of the Act when it “deac-
tivated” prounion employee Heidi Gonzalez, and that it
violated Section 8(a)(3) and (1) of the Act when it “deac-
tivated” prounion employee Travis Rzeplinski.
We also agree with the judge that the General Counsel
met the initial Wright Line4 burden of proving unlawful
motivation for the “deactivation” of prounion employee
Matthew Klemisch.5 However, as discussed below, we
disagree with the judge’s finding that the Respondent
established that it would have deactivated Klemisch even
in the absence of his protected union activity because
Klemisch operated a competing business. Accordingly,
we reverse the judge and find that that Klemisch’s deac-
tivation also violated Section 8(a)(4), (3), and (1) of the
Act.
The Respondent provides riggers and stagehands to
perform work at various performance events. To hire
riggers and stagehands to service an upcoming show, the
Respondent’s human resources staff would contact its
active employees to offer them work assignments. If an
employee declined, which was not uncommon in light of
the fact that most employees received work referrals
from other companies as well, the Respondent would
continue through its active employee list until a sufficient
number agreed to staff the job.
In December 2013, well before the Union began its
campaign to represent riggers, the Respondent added a
provision to its employee handbook stating that employ-
ees would “automatically be removed from [the Re-
spondent’s] current employee in good standing list” if
they did not work a shift for a period of 90 days. This
meant that such employees could be “deactivated” from
the active list, resulting in their not receiving hiring calls
or being able to log into the Respondent’s employee por-
tal to check for upcoming shows. As found above, how-

The record fully supports the judge’s finding that prior to November
2015, the 90-day deactivation policy was “only enforced sporadically.”
We therefore reject the Respondent’s argument that the past practice
analysis set forth in Raytheon Network Center Systems, 365 NLRB No.
161 (2017), supports finding that the implementation of a strict en-
forcement action did not involve a change requiring bargaining.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
5 In affirming the judge’s finding that the General Counsel met the
initial Wright Line burden for all three discriminatees, we do not rely as
evidence of animus on pre-election statements, not alleged to be unlaw-
ful, made by the Respondent’s officials about the consequences of
unionization. We also do not rely on Facebook statements made by
supervisor Scolnik in reply to postings by Rzeplinski and Gonzalez
about unsafe working conditions. Other record evidence cited by the
judge is more than sufficient to meet the General Counsel’s initial
burden of proving that animus against the discriminatees’ union activity
and, in the case of Gonzalez and Klemisch, testimony at the Board
hearing, was a motivating factor in their deactivations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ever, the 90-day deactivation policy was “only enforced
sporadically” until November 2015. Further, in nearly
all cases when the policy was enforced, the deactivated
employee had not worked for the Respondent for many
months or even years. In November 2015, soon after
Amber Peterson took over the Respondent’s human re-
source functions, she began to strictly enforce the 90-day
rule, resulting in a significant increase in the number of
deactivations. We have affirmed the judge’s finding that
this action was an unlawful unilateral change. Further,
the judge also found that even after Peterson began to
strictly enforce the deactivation rule, the Respondent
continued to follow a consistent practice of liberally re-
activating deactivated employees who requested
reemployment, but it failed to do so for the three discrim-
inatees in this case.
The Respondent’s officials knew prior to the Union’s
July 2015 election victory that all of the discriminatees
were union supporters. They also knew that Klemisch
and Gonzalez had testified on behalf of the Union at a
pre-election Board hearing on June 4 and 5. On the day
that hearing began, employee Andy Venegas told Presi-
dent Jeff Giek that Klemisch, Rzeplinski, and two other
employees were primarily responsible for organizing
activities. Venegas predicted that if the Union won the
election, Klemisch would be selected to represent the
riggers in contract negotiations and that “[t]his is not
good for you.”
During the preelection Board hearing, the Respond-
ent’s counsel asked Klemisch if he owned his own rig-
ging company. Klemisch affirmed that he did. Counsel
then asked if the company was called Precision Rigging.
Klemisch said that it was. It is undisputed that Klemisch
had been the owner-operator of Precision Rigging since
2012, and that at all material times the Respondent’s em-
ployee handbook contained a conflict-of-interest provi-
sion that could apply to Klemisch’s operation of that
company. It is also undisputed that he and employees
working for Precision Rigging had worked events along-
side the Respondent’s employees, and that some of the
Respondent’s managers and supervisors had long been
aware of Klemisch’s company. In fact, in February
2015, Karen Biggers, while employed as the Respond-
ent’s director of operations, referred an event company
client to Klemisch to discuss the prospect of his company
providing rigging equipment services for an event in
March 2015.
Giek attended the Board hearing. The judge credited
his testimony that he was unaware of Klemisch’s compa-
ny until Klemisch testified about it. In the week after
that hearing, Giek held a series of mandatory meetings
with employees in all job classifications. At all of these
meetings Giek read from a script, urging employees to
oppose the Union. He singled out Klemisch as “the driv-
ing force” behind the organizing drive. At the meeting
Klemisch attended, Giek noted that Klemisch owned a
rigging business of his own and asked him whether his
company was union. Klemisch responded that it was. At
another meeting attended by Rzeplinski, Giek falsely
claimed that Klemisch’s company did not have a union
contract. In addition, one of the Q&A flyers Giek dis-
tributed at these meetings asked: “Do you think that one
company should be able to represent a competing com-
pany’s employees? How could such a company have
only the interests of those employees, and not its busi-
ness interests, at heart?”
At the hearing in this case, Giek was asked what he did
after Klemisch “testified [at the pre-election hearing] that
he had a competing company.” Giek answered, “I told
[Regional Director of Operations] Michelle Smith that he
couldn’t work for us anymore.” Giek could not recall
when he spoke with Smith and did not indicate that he
gave her a reason for denying Klemisch work. Smith was
not asked about this conversation during her testimony.
Klemisch was scheduled to work two additional shows
in late July, but at some unidentified point earlier that
month the Respondent cancelled each assignment. He
testified that he was only told “my position was no long-
er needed, my shift had been withdrawn.” Peterson’s
entry for Klemisch’s deactivation in the Respondent’s
employment record was dated November 3 and stated
“violations of conflict of interest policy” as the reason.
However, Klemisch was never told by anyone in the Re-
spondent’s management that he was ineligible for em-
ployment due to his operation of a competing business.
To the contrary, although not noted by the judge, Klem-
isch testified that later in November he discovered he had
been deactivated when he tried to log into the Respond-
ent’s employee portal. He then called Peterson and she
told him he had been deactivated for not having worked
in 90 days. Klemisch said he wanted to work, and Peter-
son said she would “let the [dispatchers] know.” 6
As noted above, the judge found, and we agree, that
the General Counsel demonstrated that Klemisch’s union
activity and his testimony at the Board hearing were mo-
tivating factors in his deactivation. The question pre-
sented here is whether the judge correctly found that the
Respondent met its responsive Wright Line burden of

6 Peterson testified after Klemisch but did not contradict his testi-
mony about this conversation. Although the judge stated that Klemish
was never told “the reason for his deactivation,” it is clear that the
judge was referring to the alleged conflict-of-interest “reason” rather
than discrediting Klemisch’s uncontroverted testimony about what
Peterson told him.
RHINO NORTHWEST, LLC 3
proving by a preponderance of the evidence that it would
have deactivated him even in the absence of his protected
activities. We find that the judge erred.
We affirm the judge’s credibility-based findings that
Giek did not know about Klemisch’s company until the
Board hearing and that “at some point” after the hearing
Giek told Smith not to assign Klemisch any more work.
We also accept the judge’s finding that Precision Rig-
ging’s work, though not identical to the Respondent’s,
overlapped it to a sufficient extent to fall within the terms
of the Respondent’s no-conflict policy. On this ground,
we acknowledge that a lawful basis existed for the Re-
spondent to deactivate Klemisch from employment. But
it is well established that, under Wright Line, “‘[a]n em-
ployer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evi-
dence that the same action would have taken place even
in the absence of the protected activity.’” Consolidated
Bus Transit, 350 NLRB 1064, 1066 (2007), enfd. 577
F.3d 467 (2d Cir. 2009) (quoting W. F. Bolin Co., 311
NLRB 1118, 1119 (1993), petition for review denied 70
F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th
Cir. 1996)). In other words, a respondent must show that
it would have taken the challenged adverse action in the
absence of protected activity, not just that it could have
done so. The Respondent did not make that showing
with respect to Klemisch.
As noted above, neither Giek nor any of the Respond-
ent’s other officials told Klemisch that he was deactivat-
ed because of a conflict of interest. In particular, Giek’s
testimony about what he said to Smith gives no indica-
tion about why Giek told her to deactivate Klemisch.
The only evidence specifically supporting an inference
that the Respondent relied on the no-conflict policy is
Peterson’s deactivation report, dated November 3, which
referred to “violations of conflict of interest policy.”
However, that evidence is contradicted by Peterson’s
subsequent failure to tell Klemisch that he was deactivat-
ed for this reason, instead telling him that he was deac-
tivated pursuant to the 90-day rule and suggesting that
reactivation was a possibility.
There are two additional problems with the judge’s re-
liance on Giek’s statement. First, even if Giek was not
aware of Klemisch’s operation of Precision Rigging, it is
undisputed that other members of Respondent’s man-
agement knew about it and, in spite of the longstanding
conflict-of-interest policy, did not raise the matter of a
conflict with Giek or Klemisch. On the contrary, Re-
spondent’s third-in-command, Karen Biggers, actually
referred a customer to Klemisch and his company just a
few months prior to the Board hearing. Second, although
Giek learned about Precision Rigging in mid-June, noth-
ing in the record shows the Respondent took action
against Klemisch prior to the mid-July tally of ballots
confirming the Union’s election victory. Giek could not
recall when he told Smith not to assign work to Klem-
isch. Giek’s derogatory public comments about Klem-
isch and his business at the mandatory pre-election em-
ployee meetings showed Giek’s animus against a leading
union proponent but failed to give any indication that
Klemisch had already been or would be denied further
work based on violation of the no-conflict policy. The
first possible indication that such an action had taken
place was when Klemisch’s two late-July show assign-
ments were cancelled, but the Respondent failed to pro-
duce any evidence either that the cancellations took place
prior to the Union’s election victory or that they were
based on the conflict-of-interest policy.
Based on the foregoing, we find that the Respondent
has not met its Wright Line burden of showing by a pre-
ponderance of the evidence that Klemisch would have
been denied work after the Board’s early June 2015 pre-
election hearing if he had not engaged in protected activi-
ty. Klemisch’s deactivation was consequently unlawful
under Sections 8(a)(3), (4), and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 5 of the judge’s
Conclusions of Law:
“5. By discriminating against Heidi Gonzalez and
Matthew Klemisch because they engaged in union activi-
ties and testified at a hearing before the National Labor
Relations Board, Respondent has violated Sections
8(a)(3), 8(a)(4), and 8(a)(1) of the Act.”
ORDER
Respondent Rhino Northwest LLC, Fife, Washington,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against employees because they
engaged in protected union activities, or because they
gave testimony in a hearing before the National Labor
Relations Board.
(b) Refusing to bargain collectively and in good faith
with IATSE Local 15 by unilaterally implementing a
policy more stringently enforcing its 90-day deactivation
rule.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full–time and regular part–time riggers, including
boom lift riggers, ballroom riggers, decorating riggers,
down riggers, ETCP high riggers, fly operators, head
riggers, head fly operators, high riggers, high rigger
trainees, high rigger welders, installation riggers, roof
operators, roof supervisors, and rigging trainees, em-
ployed out of our Fife, Washington, facility, excluding
all other employees, guards and supervisors as defined
in the National Labor Relations Act.
(b) Rescind the more stringent 90-day deactivation
policy that was unilaterally implemented in November
2015.
(c) Make Travis Rzeplinski, Heidi Gonzalez, and Mat-
thew Klemisch whole for any loss of earnings or other
benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the
judge’s decision.
(d) Make any Unit employees affected by the more
stringent 90-day deactivation policy whole in the manner
set forth in the remedy section of the judge’s decision.
(e) Compensate Travis Rzeplinski, Heidi Gonzalez,
Matthew Klemisch, and any Unit employees due back
pay for the adverse tax consequences, if any, of receiving
a lump–sum back pay award, and file with the Regional
Director for Region 19, within 21 days of the date the
amount of back pay is fixed, either by agreement or
Board order, a report allocating the back pay award to the
appropriate calendar years.
(f) Within 14 days from the date of this Order, reacti-
vate Travis Rzeplinski, Heidi Gonzalez, Matthew Klem-
isch, and any Unit employee affected by the more strin-
gent 90-day deactivation policy, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and inform them, in writing, that they have been
reactivated.
(g) Within 14 days from the date of this Order, re-
move from its files any references to the deactivations
issued to Rzeplinski, Gonzalez, Klemisch, and any Unit
employee who was deactivated pursuant to the more
stringent enforcement of the 90-day deactivation policy,
and within 3 days thereafter, notify them in writing that
this has been done and that their deactivations will not be
used against them in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of back pay due under
the terms of the Order.
(i) Within 14 days after service by the Region, post at
its Fife, Washington facility copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed any of the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at the closed facilities any time since November
3, 2015.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply with this order.
Dated, Washington, D.C. February 6, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RHINO NORTHWEST, LLC 5
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discriminate against any of you for sup-
porting Local No. 15, International Alliance of Theatrical
Stage Employees and Moving Picture Technicians, Art-
ists, and Allied Crafts of the United States and Canada,
AFL–CIO, CLC (the Union), or any other labor organi-
zation or because you have engaged in protected concert-
ed activity by testifying at a National Labor Relations
Board hearing.
WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT unilaterally and without giving the Un-
ion an opportunity to bargain institute a policy of more
strictly enforcing our 90-day deactivation rule for Unit
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All full–time and regular part–time riggers, including
boom lift riggers, ballroom riggers, decorating riggers,
down riggers, ETCP high riggers, fly operators, head
riggers, head fly operators, high riggers, high rigger
trainees, high rigger welders, installation riggers, roof
operators, roof supervisors, and rigging trainees, em-
ployed out of our Fife, Washington, facility, excluding
all other employees, guards and supervisors as defined
in the National Labor Relations Act.
WE WILL rescind the more stringent 90-day deactiva-
tion policy that we unilaterally implemented, restore the
status quo ante, and bargain with the Union as the bar-
gaining representative of Unit employees with respect to
any changes to that policy.
WE WILL, within 14 days from the date of the Board’s
Order, reactivate Travis Rzeplinski, Heidi Gonzalez,
Matthew Klemisch, and any bargaining unit employee
affected by the more stringent 90-day deactivation poli-
cy, without prejudice to their seniority or other rights and
privileges previously enjoyed, and inform them, in writ-
ing, that they have been reactivated.
WE WILL make Travis Rzeplinski, Heidi Gonzalez, and
Matthew Klemisch whole for any loss of earnings and
other benefits resulting from the discrimination against
them, less any interim earnings, plus interest, and WE
WILL also make such employees whole for reasonable
search-for-work and interim employment expenses, plus
interest. .
WE WILL make any Unit employee deactivated because
of the more stringent 90-day deactivation policy whole
for any loss of earnings and other benefits resulting from
the deactivation, less any interim earnings, plus interest,
and WE WILL also make such employees whole for rea-
sonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL compensate Travis Rzeplinski, Heidi Gonza-
lez, Matthew Klemisch, and any other Unit employee
due back pay for the adverse tax consequences, if any, of
receiving a lump–sum back pay award, and WE WILL file
with the Regional Director of Region 19, within 21 days
of the date the amount of back pay is fixed, either by
agreement or Board order, a report allocating the back
pay award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the deacti-
vations issued to Travis Rzeplinski, Heidi Gonzalez,
Mathew Klemisch, and any Unit employee who was de-
activated pursuant to the more stringent 90-day deactiva-
tion policy, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
wrongful deactivations will not be used against them in
any way.
RHINO NORTHWEST, LLC
The Board’s decision can be found at
www.nlrb.gov/case/19–CA–165356 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Helena A. Fiorianti, Esq., for the General Counsel.
Katelyn M. Sypher, Esq. (Schwerin Campbell Bernard Iglitzin
& Lavitt, LLP), for the Charging Party.
Timothy A. Garnett, Esq., and Heidi K. Durr, Esq. (Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.), for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This
case was tried before me in Seattle, Washington, on February
17–19, 2017 based upon charges filed by Local 15, Internation-
al Alliance of Theatrical Stage Employees and Moving Picture
Technicians, Artists and Allied Crafts of the United States and
Canada Local, AFL–CIO, CLC (Union, IATSE, or Local 15)
and an Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing dated October 20, 2016 (Complaint) issued
by the Regional Director for Region 19 on behalf of the Gen-
eral Counsel. The Complaint, which was amended at hearing,
alleges that Rhino Northwest, LLC, (Respondent or Rhino),
violated Sections 8(a)(1), (3), (4), and (5) of the National Labor
Relations Act (“Act”). Respondent denies the allegations.
Based upon the entire record, including my observation of
the demeanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Union, and Respondent, I
make the following findings of fact and conclusions of law.1
I. JURISDICTION AND LABOR ORGANIZATION
Respondent admits that it is an Arizona limited liability
company, with an office and place of business in Fife, Wash-
ington, and is engaged in the business of providing event labor
staffing services.2 It further admits that it provides services
valued in excess of $50,000 to customers located in states other
than the state of Washington. Rhino admits, and I find, that it
is an employer engaged in commerce within the meaning of
Sections 2(2), (6), and (7) of the Act. Respondent also admits,
and I find, that IATSE Local 15 is a labor organization within
the meaning of Section 2(5) of the Act. See also Rhino North-
west, LLC, 363 NLRB No. 72 (2015) (Board finds Rhino is an
employer engaged in commerce and the Union is a labor organ-
ization).
II. FACTS
A. Background
This case arises out of IATSE Local 15’s petition, filed on
May 26, 2015,3 to represent a unit of “riggers” employed at

1 Unless otherwise noted, witness demeanor was the primary con-
sideration used in making credibility resolutions. Testimony contrary
to my findings has been discredited.
2 Fife, Washington is a suburb of Seattle. (Tr. 463.)
3 All dates are in 2015 unless otherwise noted.
Rhino’s Fife, Washington facility. Rhino was started by Jeff
Giek and his brothers. It’s Fife, Washington, office is one of 11
similar facilities scattered throughout the country. Each facility
is organized through a separate LLC, and provides riggers,
stagehands, and related services to venues for sporting events,
concerts, trade shows, and other live performances. While
Rhino occasionally provides staging and production equipment,
over ninety percent of its revenues come from providing labor
services. “Riggers are responsible for using motors to safely
suspend objects overhead before events and safely removing
them with motors afterwards.” Rhino Northwest, LLC v. NLRB,
867 F.3d 95, 98 (DC. Cir. 2007) (internal quotation omitted)
Stagehands perform more general tasks such as pushing boxes,
packing–unpacking, and assembling–disassembling items to be
used for the show. As is customary in the industry, to staff its
events, Rhino relies on a large group of intermittent hourly
workers, who also work for other production companies, as
needed. This is the established staffing practice in the industry,
as production companies such as Rhino generally do not have
enough work to keep a large complement of employees work-
ing full time. 4 (Tr. 54–60, 74, 160–61, 460–69, 480; GC 1(s),
1(u); 2.)
Although each facility is its own separate LLC, all are over-
seen by the Giek brothers through an umbrella company called
Rhino Staging; the Giek brothers are members of each of the
separate LLCs.5 Jeff Giek, who resides in San Diego, is the
CEO and president of Rhino Staging and oversees the overall
operations. Michelle Smith, the regional director for operations
at Rhino Staging, is in charge of the 11 different regional offic-
es, including operations in the Northwest. Smith works from
Las Vegas and reports directly to the Giek brothers. In 2015
Respondent’s operations in the Northwest were managed by
director of operations Karen Biggers, who worked out of Re-
spondent’s Fife, Washington office. Biggers left Rhino in Oc-
tober 2015, and was replaced by Dan Scolnik, who was a su-
pervisor before taking over for Biggers; as with Biggers,
Scolnik reported directly to Smith. Rigging manager Tyler
Alexander directly managed the Northwest riggers, until he was
fired in March 2106 and replaced by Dion Spires. In Novem-
ber 2015 Respondent hired Travis Medley to oversee the rig-
ging manager. (Tr. 317–18, 351–52, 377–78, 395–98, 458–
463; GC 27–28.)
B. The employee Facebook page and the filing of the election
petition
It is unclear when Rhino employees first started discussing
forming a union, but by August 2014 a private, invitation only,
Facebook page had been created to give Rhino’s riggers a fo-
rum to discuss relevant issues, ask questions, and get feedback

4 Transcript citations are denoted by “Tr.” with the appropriate page
number. Citations to the General Counsel, Union, Respondent, and
Administrative Law Judge Exhibits, are denoted by “GC” “U.” “R.”
and “ALJ.” respectively. Transcript and exhibit citations are only
intended as an aid, as factual findings are based upon the entire record
as a whole.
5 The LLC’s are named according to the areas where they provide
services, such as Rhino Tucson, LLC, Rhino Las Vegas LLC, etc. (R.
1.) This proceeding only involves Rhino Northwest LLC.
RHINO NORTHWEST, LLC 7
from a pro–union perspective. The Facebook page was named
“Northwest Riggers;” its cover photo was a caricature of a rhi-
noceros wearing a t–shirt with an IATSE logo, with the words
“WORK SAFE, WORK SMART, WORK UNION.” Rhino
employee Matthew Klemisch was one of the administrators of
the private Facebook page. As an administrator, Klemisch had
the ability to invite people to join this private Facebook group.
Most of the members of the Facebook group were Rhino em-
ployees; a few Rhino supervisors were also members. (Tr. 66–
73; GC 5.)
After collecting a sufficient number of authorization cards,
the Union filed an election petition on May 26. A few days
before the petition was filed, Klemisch told Alexander about
the petition. Some of the riggers considered Alexander to be a
friend and Klemisch wanted him to know, hoping Alexander
would inform his bosses and not get blamed for the workers’
actions. When the petition was filed Respondent challenged
the appropriateness of the unit asserting that stagehands, and
multiple other classifications, should be included. At the time,
Rhino employed between 30 to 60 riggers, and about 500
stagehands. A preelection hearing was held on June 4 and 5 to
resolve the issue. (Tr. 74–75, 230–31, 473) (GC 2, 36.)
C. Respondent’s preelection campaign and the NLRB hearing
1. The week leading up to the NLRB hearing
Giek testified that he heard grumblings about “union stuff
and unhappy riggers” so he arranged for a meeting of all Rhino
riggers in a bowling alley outside of Seattle on May 27. The
purpose of the meeting was to listen to the riggers’ concerns
and to tell them that the company wanted to stay union free.
Rhino provided free food, drinks, and bowling for the event,
which attracted between 30–40 riggers. (Tr. 78, 358–59, 463–
64, 496; U. 2; GC 26.)
Giek met Klemisch for the first time at the bowling alley
event. At the meeting, Giek also met a rigger named Andy
Venegas, who turned out to be a source of information for Giek
about the Union’s organizing drive. (Tr. 135, 463, 496; U. 2.)
On June 1, Venegas emailed Giek saying that he was unable
to get a copy of the Union’s bylaws and “apologize[d] for not
being able to come through for you.” In the email, Venegas
also told Giek the Union was holding two informational meet-
ings in a Seattle pub on June 2 and June 3, and warned that
“this is a time when people who would play the role of loyal,
but aren’t, can be most harmful.” Finally, Venegas asked
whether Giek was aware of “the ‘secret’ Facebook page where
much of this is discussed.” (U. 2.)
Giek replied by email the same day, saying that he was in
Seattle for the week and asking if he and Venegas could meet
or speak by phone. Venegas proposed they meet the next even-
ing, June 2; Giek responded that they should “touch base” in
the afternoon to see how the day was progressing. The pair met
on Tuesday, June 2 in Tacoma, Washington.6 (U. 2.)
On June 4, Venegas again emailed Giek, stating that the cor-
respondence was “100% confidential.” In the email, Venegas
told Giek that, after leaving their Tuesday evening meeting in

6 From the context of Venegas’ June 4 email to Giek, it is clear the
pair met on Tuesday, June 2.
Tacoma, he went directly to a Union question and answer ses-
sion where Local 15 “doted” over “low experience” Rhino
riggers; Venegas specifically noted that Rhine employee Travis
Rzeplinski was at the union meeting, along with members of
the Union’s leadership. Venegas informed Giek that he was
shown a list of all Rhino riggers, with IATSE’s estimate of
whether they would vote “yes” or “no.” A star was put next to
some of the names, including his own, and Union officials
asked what it would take get his vote. Venegas tallied the Un-
ion’s vote estimate, and stated in the email that the “yes” votes
outnumbered the “no” votes by a slight margin. (U. 2.)
In the email, Venegas further told Giek that Klemisch, Travis
Rzeplinski, and two other employees were primarily responsi-
ble for “all the footwork” and organizing communications be-
tween the Union and Rhino’s employees. He also said that
IATSE was planning to waive membership fees, dues, and
would offer riggers “journeyman” status. Moreover, the Union
was deciding who would represent employees during negotia-
tions; Venegas wrote he was betting it would be Klemisch and
if so “[t]his is not good for you.” Venegas ended the email by
telling Giek the Union had been working for 18 months on the
organizing drive, and that it was part of a national campaign.
He assured Giek that he was “planting seeds of doubt” on Fa-
cebook and was planning to “reach out” to individuals over the
weekend. (U. 2.)
2. The NLRB election hearing and decision
The NLRB preelection hearing to determine the appropriate
unit occurred on June 4 and 5. While Respondent and the Un-
ion contested the scope of the unit, the parties agreed to Rhi-
no’s position with respect to eligibility. Because of the nature
of employment in the industry, Rhino and Local 15 stipulated
that employees would be eligible to vote in an election if they
had worked on at least two calls within the past 12 months prior
to the payroll period ending May 26. (GC 2; GC 36, p. 14, 23.)
At the hearing, Klemisch along with Rhino employees Heidi
Gonzalez and Kyle Daley testified on behalf of the Union.
Various members of Rhino’s management team were present
during the hearing, including Giek, Biggers, Smith, Scolnik,
and Eric Drda—who was a general supervisor. Giek, Biggers,
and Drda were in the courtroom while Klemisch testified. They
were also present for Gonzalez’ testimony, as were with Smith
and Scolnik. (Tr. 75, 165–66.)
While cross–examining Klemisch, Respondent’s counsel
asked whether he owned his own rigging company. Klemisch
testified that he did, in fact, own a rigging company called Pre-
cision Rigging, which employed about 30 employees over the
past year, including Klemisch. As with Rhino, these workers
were intermittent employees – working anywhere from one to
multiple shifts for the company during the year. Klemisch also
stated that he is typically hired through Precision Rigging to
supervise other people, and that the company provided rigging
labor about ten times a year. Thus, Klemisch testified, Preci-
sion Rigging competes against Rhino for shows on a small
scale, but not on a large scale, as Rhino is more specialized, and
offers a more complete package – including stagehands. (GC
36 at 293–96.)
On June 18, the Regional Director issued his decision find-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ing that the Union’s petitioned–for unit of riggers was appro-
priate, and directing a mail–ballot election. As stipulated by
the parties, Rhino’s proposed formula was adopted, in that all
riggers who had worked on at least 2 calls within the 12 months
prior to the payroll period ending May 26, 2015 were eligible to
vote.7 According to the decision, Ballots would be mailed to
employees on June 26, and counted in July. (GC 2.)
3. Respondent’s election campaign
a. Mandatory employee meetings the week of June 8
Respondent’s electioneering campaign was in full swing af-
ter the NLRB election hearing. During the week of June 8,
Giek held a series of meetings in Seattle and Portland for Rhino
employees in all job classification.8 The meetings were manda-
tory, and employees were paid for their attendance. Workers
received a call from Rhino’s scheduling office, told of the man-
datory meeting, and were given a choice of available meeting
times. (Tr. 77, 168, 216, 472–73; GC 10.)
Giek, along with various Rhino managers and supervisors
were also present at the meetings. Gonzalez and Klemisch
attended the same meeting, at the Fife, Washington office,
along with about 20–30 other employees. Rzeplinski attended
a meeting on June 9, also in Fife, with about 60 workers from
various job classifications. Giek and Rzeplinski met for the
first time at this meeting. (Tr. 77, 167–68, 215–17, 472; GC
1.7)
Giek spoke at the meetings, relying primarily on an 11 page
script on what to say. Giek testified that he stood at a lectern in
front of the employees and read from his script. At the meet-
ing, Respondent also passed out a list of questions and answers
regarding the Union. Also, copies of the Union’s constitution,
bylaws, and LM–2 filings were made available. During at least
one of the meetings, Giek also distributed a flier titled
“IATSE’s Most Wanted – Where does your dues money go? To
a leadership full of criminals.” The document listed the names
of ten different individuals and their purported crimes; the same
document was also emailed to workers. (Tr. 169, 188–89, 474;
GC 9, 17, 31; R. 23.)
Giek started his speech by saying that he wanted to update
employees about one of the most critical issues that Respondent
has faced, the Union’s petition to unionize the riggers. He told
workers about the NLRB preelection hearing and stated the
company’s belief that all employees, not just riggers, should
have the right to vote; he thought it was wrong for the Union to
try to take away the “legal right” to vote from employees who
were not riggers. Moreover, he thought it was wrong for the
Union to represent any of Rhino’s employees. (R. 23.)
Giek described the significance of the pending NLRB deci-
sion on which employees would vote, but noted that regardless
of the outcome Local 15 was not going away, and would likely
try to contact employees in the future for support. Giek said he

7 Employees who had quit or had been discharged for cause were not
eligible to vote. (GC 2.)
8 Giek testified that he held at least three such meetings in early
June. However, in a June 19 email to workers, Giek thanked employ-
ees for attending one of the 15 meetings he held in Seattle and Portland.
(GC 10.)
wanted his position to be clear: “Rhino does not want a union
here—not IATSE—not any union.” (R. 23.)
Giek then described the election process, telling employees
that, from his perspective, Rhino workers had nothing to gain
from union representation. Instead, IATSE stood to gain, as it
needed dues money from workers; he estimated that the aver-
age Local 15 member paid $1,100 annually in dues. According
to Giek, if the Union won the election, it only gained the right
to negotiate for employees—nothing more. And, everything
employees currently received would be “put on the table for
negotiation,” including the current 4-hour call minimum; Giek
said he knew of some union contracts that only require a 2-hour
call minimum. (R. 23.)
Giek then said that, during negotiations, what employees
currently have could go up, down, or stay the same—there are
no guarantees. And, he said
[y]ou also need to know that during negotiations, everything
is frozen – it is illegal for a company to grant wages [sic] in-
creases without getting an agreement first. So how long
would you have to wait for a pay increase – it could be
months or it could be years. The first contract after an elec-
tion takes a long time to negotiate because every word of eve-
ry sentence of every paragraph has to be negotiated. I’m
aware of some negotiations in our industry taking years to ne-
gotiate. On the other hand, without a union we are free to
make changes at any time and we are free to correct errors
when we are made aware of them.
Giek told employees that Rhino would not negotiate a
contract that makes the company less competitive in the
market, as the company was successful because it pro-
vided the highest quality service at reasonable costs. (R.
23.)
Giek next said that only a fraction of riggers in the North-
west are unionized. At this point, Giek mentioned Klemisch
and his company Precision Rigging. Giek’s script contains the
following notation, “[i]s Matt Klemisch’s company union? If
not, make the point of . . . why is he trying to organize Rhino
when his company is non–union.” Giek testified that, in the
meeting where Klemisch was present – when he asked if his
company was union, Klemisch raised his hand, and someone
responded that it was a union company. (Tr. 476; R. 23.)
However, in the meeting Rzeplinski attended, at this point in
his speech, Giek told employees that Klemisch was the driving
force behind the Union’s organizing drive, and that his compa-
ny, Precision Rigging, did not have a contract with the union.9
At Rzeplinski’s meeting, Giek also said “they want to destroy
Rhino.” (Tr. 220–22; GC 17.)
Back on script, after discussing Klemisch, Giek told employ-
ees the Union gives preference to senior members, and calls–
out workers based upon their union seniority. Thus, even if
IATSE promised to give Rhino employees preference based
upon their work for Rhino or other production companies,

9 Klemisch testified at trial that Precision Rigging is a union signato-
ry company.
RHINO NORTHWEST, LLC 9
“does it really make sense for you to wait in line for a job that
you already have?” After further questioning the Union’s sen-
iority system, Giek said that it “just does not make any sense to
me why you would want to stand in line for a job you already
have.” Giek went on to tell employees why Rhino does not
want a union. He said that,
[h]ere in the Northwest, Rhino has been very successful in
winning and keeping contracts with several venues and pro-
duction companies like Live Nation. And it’s no secret that
some of our clients want nothing to do with unions – especial-
ly a union like IATSE. They do not want us bringing a union
into their venue or their shows. So you have to ask yourself
why take the risk of alienating our best clients in the North-
west by bringing IATSE in?
He asked employees why they would abandon a good job
with Rhino to work out of the IATSE hiring hall, de-
creasing their chances of working by being put on the
bottom of the Union call out list. (R. 23.)
Giek then said that Rhino treats employees fairly and pays
competitive wages. When problems arise occasionally, they
resolve the issue amongst themselves and move on. However,
IATSE likes “to create problems and even intimidate workers
to show them they bring some value to the workplace. They
simply don’t.” (R. 23.)
Giek asked employees to get answers signed by IATSE from
the list of questions and answers they received at the meeting.
Giek then reviewed the document and said it was easy for the
Union to make promises because they do not have to make any
of them come true. Meanwhile, it was illegal for the company
to make promises, because the company can make the promises
come true, the union cannot. (R. 23.)
Giek then addressed “tactic[s]” and “tricks” Local 15 may
use to get stagehands to sign authorization cards. He described
in general the NLRB election process, and encouraged all eligi-
ble employees to vote. He apologized for having to give
IATSE the email addresses and cell phone numbers of workers,
but said it was required under new NLRB election rules. How-
ever, he reminded workers they had the right to not speak to
union organizers. (R. 23.)
Giek ended the speech by telling employees he is proud of
what they have done to make Rhino a great company. He did
not want “this outside union” to interfere with what they had
built, did not want to lose the privilege of working with em-
ployees “as individuals,” and did not want to have to go
through “a union just to talk to you.” He asked employees to
contact any Rhino supervisor if they had questions, and gave
out his cell phone number saying they could call or text him at
any time. He promised to get answers to their questions within
24 hours if possible. (R. 23.)
The flier with questions and answers that employees re-
ceived at the meetings contained a list of 20 questions, with
bullet–point answers from Rhino, and room for the Union to
write–in its own answers. It also contained a signature block
for the signature of a “Union Officer.” Many of the questions
and proffered answers involved negative aspects that Rhino
perceived would come from unionization, including fines, as-
sessments, payments to political action committees, strikes, the
possibility that wages or benefits could decrease during negoti-
ations, and the likely inability to get promotions based upon
skill and ability. (GC 31)
Along with these various topics, three particular ques-
tions/answers stand out. In Question 12, Rhino asks:
Can you guarantee me job security?
 Again, the union cannot guarantee you nothing.
While I can’t predict the future, many compa-
nies have lost jobs or shut down completely af-
ter their employees unionized in the past.
 In fact, the Local’s membership has recently de-
creased by 15%. Nationally, only 6.7% of all
employees in the private workforce are union.
Why do you think they are so eager to organize
a bargaining unit of more than 70 new members.
 If union’s are such a good deal, why are there so
few union members in Local 15 and so few in
the US.
In question 16 Rhino asks:
Why doesn’t the union want to represent employees other
than riggers?
 The union has made it clear that its vision of the
job involves rigid classification of employees
who do not act as a team. Last week, the un-
ion’s supporters testified under oath that they
would not even help push boxes because they
are riggers. Is that the kind of work environ-
ment that you want to this to be?
Finally, question 18 reads as follows:
Does the Union and its supports have business interests that
would benefit from making Rhino’s operations less efficient?
 Union supporter Matthew Klemisch testified
that he runs his own company, which competes
with Rhino. Do you think that one company
should be able to represent a competing compa-
ny’s employees? How could such a company
have only the interests of those employees, and
not its business interests, at heart?
b. Rzeplinski’s email exchange with Giek
Travis Rzeplinski took notes of the mandatory meeting and,
relying upon those notes, sent Giek a strongly worded email the
evening of June 9 questioning many of Giek’s statements.
Among the various issues addressed in his email, Rzeplinski
said that, from his understanding, the Union did not want to
destroy the company, but only wanted to represent workers. He
also said that he had worked for Precision Rigging on occasion,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
and the company does have a union contract. In the email
Rzeplinski questioned why Rhino’s Las Vegas and Denver
riggers are paid, and billed out at, higher rates than the majority
of the Seattle riggers. Rzeplinski also noted that, during the
mandatory meeting he asked Giek to release Rhino’s financial
statements, in reply to Giek’s reference to the salaries made by
Union officials, but that Giek declined to do so. Therefore,
Rzeplinski asked whether Giek would disclose his compensa-
tion for the year. (Tr. 220–224; GC 17.)
Having not received a reply to his June 9 email, Rzeplinski
again emailed Giek on June 15 asking for an update. Giek
replied by email on June 18 thanking Rzeplinski for his hard
work. The email went on to focus on what Giek believed were
the most important issues raised by Rzeplinski. Giek noted
that, during negotiations everything employees currently re-
ceive can be put on the bargaining table, and could stay the
same, get better, or even get worse. Regarding wages, Giek’s
email stated that
I want you to know that I am aware of the differences in Rhi-
no locations. However, due to the union’s petition, federal law
requires that wage rates remain frozen while the petition is
pending, and the law prevents me from making any promises.
If the union wins an election to represent Rhino’s employees,
federal law also requires that wage rates remain frozen until
an agreement is reached. Unfortunately, contract negotiations
can take months or even years.
Giek also wrote that, at the NLRB hearing, three riggers testi-
fied “under oath” that they do not work as a team with stage-
hands, and he was “stunned by their denunciation of Rhino’s
core values. If those three riggers represent the values of
IATSE, Rhino’s dedicated employees have no need for the
Union.” Giek further wrote that Rzeplinski had the legal right
to support the union, as his coworkers have the legal right to be
“union–free” and Giek’s goal was to put “all the facts on the
table.” He ended the email by wishing Rzeplinski safe travels
on an upcoming trip to Japan. (Tr. 224; GC 17.)
c. Giek’s other correspondence to employees about
the election
On June 19 Giek emailed employees updating them on the
Regional Director’s ruling that only riggers could vote in the
upcoming election. He noted his belief that IATSE would still
try to organize the stagehands, and therefore said he would also
keep stagehands “informed about this union and why I don’t
think it is in your best interest to support this union.” Giek
wrote that he hoped employees heard his message that he firm-
ly believes they are better without a union, and that he would be
sending employees more information in the coming days. (GC
10.)
On June 23, Giek sent another email to employees, this one
with the subject line “IATSE—How Will Your Earnings
Change?” The email contained a flier with headings that said
“Rumor: You will earn more money with the union,” and
“Facts: Here’s what current IATSE members think of the idea
of Rhinos joining their ranks.” The flier then allegedly quotes
an unnamed union member complaining that, with “a low em-
ployment rate . . . bringing in non–union people to our union
will go over like a ‘lead balloon’ with the Membership,” as
expanding the membership base will only result in more com-
petition for available union jobs. The flier ends with the state-
ment “Even if wages go up, you can make less money if your
hours go down. Why wait in line for a job you already have.”
(GC 11.)
On June 27, Giek sent employees yet another email with the
subject “Voting Guidelines.” The email contained election
procedures for Rhino employees, noted that 66 riggers were
eligible to vote, and that the outcome would be determined by
the majority of actual voters. Therefore, all employees were
encouraged to vote. The last bullet point of the email states
“[o]nce you have reviewed all the facts, we are confident that
you’ll agree that a ‘NO’ vote is best for you and your family.”
(GC 12.)
On June 29, Giek sent one last email to employees, with the
subject line “Upcoming Vote: Known vs. Unknown.” In the
email Giek asks employees to exercise their right to vote, notes
that Rhino is one of the safest staging companies in the country,
and questions the impact of having a “rigger only” bargaining
unit, among other things. Giek asks workers whether they want
to put their “trust in the known or take a risk with the un-
known.” He ends the email by stating that going to “an outside
third party, like a union, will not help resolve our issues. Just
look at the conflict the union supporters have already created
between the riggers and the stagehands. That’s not what I want
and hope you don’t either.” (GC 13.)
4. Rhino’s monitoring Facebook discussions
The evidence shows that, in the run–up to the election,
Michelle Smith emailed various employee Facebook comments
to Jeff Giek. She also sent copies to Giek’s brothers, Biggers,
Drda, and Scolnik. Indeed, some of the Facebook comments
were made by Drda and Scolnik themselves replying to com-
ments made by other employees. (Tr. 490–92; GC 33, 34)
a. June 26,2015 email from Smith (GC 34)
In a June 26, email to Giek, Smith said “[s]ome interesting
reading;” she then pasted into the body of the email various
comments from employees that were posted on Facebook.
Someone named Jeremy Andrews referenced the Rhino
“IATSE’s Most Wanted” flier that had been emailed to em-
ployees, and argued that none of the individuals listed lived,
worked, or served anywhere near Seattle or IATSE Local 15.
Drda replied by reposting the content of the actual flier, and
stating that he saw the relevance as Local 15 is part of the na-
tional union. Later in the comments, Andrews said that the
motivation to unionize came when the “rigging team” realized
their attempts “at equal exchange” were not being met, or even
acknowledged. In reply, Drda said “Jeremy your issues were
kept at too low of a level” and unionization brought a spotlight
“on our situations and because of the organization issues are
frozen. Our upper management can’t fix any of the problems
due to these labor laws.” Another employee stated that she had
received wage increases, and was never mistreated or exposed
to unsafe conditions. In reply, Heidi Gonzalez commented that
she had been exposed to unsafe conditions, and that she had to
ask and fight for any raises she had received. Gonzalez further
RHINO NORTHWEST, LLC 11
stated that she has been asked to “take one for the team” many
times, but questioned when the “team” would benefit her. And,
Gonzalez wrote that many good experiences had come from her
time with Rhino, but as time has progressed the “cons” out-
weigh the “pros” and “we need support.” Gonzalez ended her
message by asking people to private message her if they want
to talk about her experiences.
b. June 27, 2015 email from Smith (GC 34)
On June 27 Smith forwarded another email to Giek, with fur-
ther Facebook comments, saying “[a]dditional comments on the
post I sent.” Again, Smith pasted various comments into the
body of the email. In the Facebook comments, Drda replies
directly to Gonzalez about her statement that she had been ex-
posed to unsafe conditions, stating “we would love to hear
about past unsafe conditions,” as he and Tyler Alexander “take
pride in enforcing our safety policies.” Drda further notes that
he has been “combating these issues as they arise however
input is always welcome,” and offers to discuss them on Face-
book or through private message, whichever Gonzalez prefers.
Following–up on Gonzalez’ comment, Rzeplinski remarked
that he too has been asked to “take too many for the ‘team’”
and has seen his coworkers be overworked, underpaid, and
asked to do things he was uncomfortable with. Rzeplinski fur-
ther complains of not receiving overtime, when it was charged
to the client, and not being asked back to calls after speaking
about safety issues. Rzeplinski said that there “was a time for
cohesive conversation, for cohesive action and it passed with-
out action and a whimper. No one ran to find lawyers . . . [and]
no overwhelming push from a ‘higher corrupt manager.’” In-
stead, a “cohesive group asking for more recognition and more
nationally recognized standards of compensation for the dan-
gerous work we do.” Rzeplinski ends his comment by stating
his hopes that everyone does their own research, reaches “out to
both ‘sides’ of this” and decide what they think will benefit
them, their coworkers, friends, and the industry.
Drda responded directly to Rzeplinski, asking for infor-
mation on “the times you felt uncomfortable where safety was a
concern,” because it was unacceptable to be put in a dangerous
situation. Drda further said that minimizing risk is his primary
focus and that Rhino’s riggers “should never be in immediate
danger.” Drda noted that, the previous April, they implement-
ed a “stage hand 101” course, and that in 6 months he and
Scolnik had trained more employees than compared to 2014.
c. June 28, 2015 email from Smith (GC 34)
On June 28, Smith again forwarded an email containing Fa-
cebook comments to Giek, saying “[a]ttached are a few more
comments.” This email starts with a comment from Rzeplinski
saying that recently trainings have been more consistent, but
that he has been asked “several times to do a load in and out
and then drive, paying my own gas, to a venue over 6 h[ours]
away.” Rzeplinski then goes on to describe various instances in
which he believed safety was put at risk because people lacked
equipment, experience, or training. Rzeplinski stated that he
has been on shows where shackles “were dropped out of the
air,” because people were so exhausted from having traveled to
the job from another city, where there were not enough hard
hats for all stagehands, and people “in the air” that “lacked the
training or comprehension for the job.” Rzeplinski ended his
comment by saying “Yeah dude . . . you guys have done a great
job recently working within the system you have been given,
[b]ut sometimes the system needs to fundamentally change to
become more effective.”
Scolnik replied directly to Rzeplinski’s comments, tagging10
Rzeplinski and saying “Travis, if you’d like to open this can of
worms, I’d truly LOVE to talk about some things I’ve seen you
PERSONALLY do on our job sites, on Pyramid gigs as well as
other companies, so if you’d like to start calling out Rhino in
particular, let’s have it you’ve got a LOT of nerve, you want to
go this route, then let’s do this.” In a later post Scolnik states
“again, I don’t want to go down these routes,” but “so many of
you act like you’re perfectionists on a job site” that it “blows
my mind you’d even start going this rout.” Scolnik notes that
he has worked with Local 15 riggers when they have had no
personal protective equipment “gear on w[ith] boom lifts and
riggers in the air.” Furthermore, Scolnik says that he has “seen
ALL groups do something of this sort,” but has also been pre-
sent when Rhino’s “leads point this out and we maneuver peo-
ple to safer environments.” Scolnik ends his comment by ask-
ing “[a]re you so blinded by this crusade that you are willing to
keep attacking us for stuff I’ve seen you do or other compa-
nies?” An hour later, Scolnik posted another comment saying
“maybe it’s time to pull away from your keyboard and start
thinking about your process during this. If these are the tactics,
I’m pretty ok w[ith] following up w[ith] what I’ve seen you &
plenty more folks do.”
Drda replied with a comment that, it was “local practice to
ground a rigger for a dropped object,” and that he has worked a
“full Rhino schedule last year and had to ground one person.”
Drda goes on to state that, if you research Rhino and IATSE
you will find injuries and even deaths.” Drda said that he re-
searched “OSHA to see who had paid more in fines,” and that
“[w]e are national entities and both adopted/learned from trag-
edy.” Drda commented that “we are actively on the cutting
edge with PPE,” and required employees to wear helmets and
harnesses before most in the industry. Drda admitted being on
“a few calls” that were short some helmets, but that he would
never allow anyone “over height without a harness.” He then
said that Rhino “are trend setters,” and that corporate had added
several safety specialists in recent years. Drda also noted that
Rhino was his only current employer and he could not help but
disagree “with the picture of Rhino as an unsafe company.”
Drda ended his post saying that he believed himself, Scolnik,
and Alexander were part of the solution, and still have room for
improvement.
Tyler Alexander then replied, tagging Rzeplinski, saying “if
you feel that I have failed in improving safety and training for
the riggers in the NW then I apologize. I must have failed in
pursuing my passion. My career is over.” Later, Alexander

10 Facebook allows users to “tag” people in posts. When an individ-
ual has been “tagged” the comment will usually appear on the person’s
Facebook wall and become associated with the tagged individual’s
account. See Thompson v. Autoliv ASP, Inc., 2012 WL 2342928, at *4
(D. Nev. 2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
posted “this Facebook crap has got to stop! If safety is on the
table now, let’s talk like grown–ups and schedule a meeting
face to face.” In the comment Alexander further says that he is
proud and thankful for being a Rhino rigger and was honored
and excited when he accepted his current job “for the team to
finally have one of its own be the voice for change.” Alexander
stated that he had fought for, and won whenever a concern that
was put on his desk, and is making changes for the better. Al-
exander ended his comment saying that, people should realize
“things are better” and they are moving towards a healthier and
safer team; change takes time, and he is “in it for the long
haul.”
d. June 29, 2015 email from Smith (GC 34)
Smith followed up with an email to Giek on June 29, with
additional Facebook comments, saying “[t]he last of the com-
ments.” This email contains a comment from Venegas, in part,
telling Gonzalez that the benefit she received “is that you were
allowed to and taught how to high rig, which would absolutely
not have happened anytime soon if you had started with Local
15.” Venegas then noted an unsafe condition involving two
union riggers at a show “last night,” saying that “we are ex-
posed to safety issues by individuals, not by organizations.”
e. June 30, 2015 email from Smith (GC 33)
The final email containing Facebook comments that Smith
sent to Giek occurred on June 30. The email contains a long
Facebook comment from Drda, reading as follows:
I've been accused of portraying the Rhino management team
as hostile. Let's take a step back. Eleven months ago the NW
rigger page was created, behind our backs, by a union organ-
izing rep named Radar Bateman. Radar makes 119k a year in
the efforts to increase union dues. He doesn’t pull ropes, push
boxes or grind with the crews. Instead he enjoys the white
collar life while selectively convincing disgruntled workers
into cutting their direct ties with management.
Let that sink in. One gives away their rights to a larger entity
for the greater good of the group. One no longer has the right
to negotiate on their behalf. When they ask what you want on
the contract it’s a ploy on dreams. The reality is a yes out-
come keeps pay frozen until a contract is reached. During
similar situations years can pass and original crews have
turned over so others reap the “rewards.” It allows for the un-
ion to add and subtract contract language. Your demands
could be overlooked as 51% of fellow riggers pass the con-
tract.
A concerned rigger showed me this page weeks ago and it
opened my eyes to who is the brain trust behind the scenes.
Matt Klemisch was added after at least 5 union representa-
tives who are not active Rhino employees. Actually they have
never been Rhino employees and at least two are paid hefty
sums in the attempt to recruit if not an outright military style
draft of employees. If their actions fail to correlate as an act of
war I implore you to wait for my next post on this topic.
D. The Union’s election victory, Rhino’s refusal to bargain,
and changes in management
The election was held as scheduled, with ballots mailed to
employees on June 26. The ballots were counted on July 17,
and a majority of Rhino’s riggers voted for union representa-
tion. Rhino Northwest, LLC, 363 NLRB No. 72 (2015). (Tr.
74; GC 1(u), 36.)
On August 3, the Union was certified as the exclusive collec-
tive bargaining representative of the in the following unit of
Rhino’s employees:
All full–time and regular part–time riggers, including boom
lift riggers, ballroom riggers, decorating riggers, down riggers,
ETCP high riggers, fly operators, head riggers, head fly op-
erators, high riggers, high rigger trainees, high rigger welders,
installation riggers, roof operators, roof supervisors, and rig-
ging trainees, employed by the Employer out of its Fife,
Washington, facility, excluding all other employees, guards
and supervisors as defined in the National Labor Relations
Act. (GC 3.)
In August 2015 IATSE requested Rhino meet and bargain.
Respondent refused to do so in order to test the validity of the
certification. Rhino Northwest, LLC, 363 NLRB No. 72
(2015). On December 17, 2015, the Board found that, by refus-
ing to recognize and bargain with the Union, Rhino had violat-
ed Section 8(a)(1) and (5) of the Act. Id. Respondent peti-
tioned for review of the Board’s decision, and the Board filed a
cross–application for enforcement. On August 11, 2017, the
Board’s order was enforced the United States Court of Appeals,
District of Columbia Circuit, with the court noting that a “legit-
imate basis plainly exists for permitting riggers to form their
own unit,” as the distinction between riggers and Rhino’s other
employees “are significant.” Rhino Northwest, LLC v. NLRB,
867 F.3d 95, 103 (DC. Cir. 2007).
After Local 15’s certification, Rhino shook up the manage-
ment and supervisory structure in the Northwest office. On
October 5, Rhino hired Amber Peterson to take over the various
human resources functions. Also in October 2015 Karen Big-
gers was replaced as director of operations by Scolnik. In No-
vember 2015, Rhino hired Travis Medley to serve as the direc-
tor of rigging, with direct oversight of the rigging manager –
who at the time was Alexander. Before Medley was hired, the
rigging manager reported directly to the local director of opera-
tions. And finally, in March 2016, Alexander was fired and was
replaced by Dion Spires. (Tr. 251, 317–18, 351–52, 411–13;
GC 27, 28.)
E. Respondent’s computer system and its “deactivation” policy
Rhino’s website contains an employee online portal, where-
by employees can log into the company’s computer system,
check their work schedule, and review upcoming shows. The
portal also gives employees access to the employee newsletter,
various policies and procedures, and the employee handbook.
All active employees have access to the computer system. (Tr.
84, 254–55, 270–71, 283, 323–24, 382–83, 407–08.)
To fill jobs on upcoming shows, Rhino’s staff telephones ac-
RHINO NORTHWEST, LLC 13
tive employees to inquire if they are available to work.11 If
someone is not available, Rhino goes through the employee list
until someone is available to fill the job. If the company is
unable to fill a call with employees in the computer system,
they bring in workers from outside the Northwest. (Tr. 324–
26)
In December 2013, Respondent added a section to its em-
ployee handbook which stated that employees would “automat-
ically be removed from our current employee in good standing
list,” for not having worked a shift in any 90-day period. This
would result in employees being “deactivated” and unable to
log into the employee portal. If an employee was deactivated,
when they tried to log into the employee portal, they would
receive a message saying “[employee name,] you are no longer
an active employee. Please contact the office for more infor-
mation.” Deactivated employees would not receive calls for
upcoming shows. Michelle Smith testified that the reason the
90–day policy was added to the employee handbook was be-
cause having to contact people “who don’t return phone calls,
who don’t take shifts . . . [and] that don’t want to work,” slows
down the process when Rhino has large calls to fill. (Tr. 391,
402, 415–16, 402, 426; GC 6, 14; R. 1.)
That being said, the evidence shows that before November
2015, the actual policy was only enforced sporadically. At
hearing, Respondent introduced into evidence a report showing
Rhino employees who had been deactivated from June 4, 2014
through January 24, 2017.12 (Tr. 417; R. 17.) This report
shows that Respondent was consistently deactivating employ-
ees for a number of reasons, such as walking off the job, not
showing up for work, not returning phone calls, or even being
in jail. However, it was not until November 2015 that Re-
spondent started applying the employee handbook policy of
automatically deactivating employees for not having worked in
90 days. Instead, the report shows that multiple weeks could
pass without anyone being deactivated for not having worked
for more than 3 months, and when a deactivation did occur, it
was because the employee in question had not worked for mul-
tiple months or even years—not just 90 days. (Tr. 411–17; R.
17.)
For example, in mid–June 2014, 6 months after the 90-day
deactivation rule was implemented, two employees were deac-
tivated because they had not worked since 2012, and one em-
ployee was deactivated for not having worked since 2011.
Another employee was deactivated on June 13, 2014, who was
hired 9 months earlier—but had never worked at all. On June
27, 2014 one employee was deactivated for not working since
March 2013. On October 13, 2014, three employees were de-
activated because they had not accepted work in 6 months, and
two others for not having worked since their hire date—nearly
5 months earlier; another was deactivated for not having
worked in a year. On July 3, 2015, an employee was deactivat-

11 Sometimes employees would also be contacted through text mes-
sage, email, or in–person discussions; but primarily these contacts are
made by telephone. (Tr. 163, 209.)
12 The report includes all Rhino employees who were deactivated,
from any classification, including riggers and stagehands. (Tr. 420–
21.)
ed for not having worked since he was hired 5 months earlier.
On August 11, 2015, an employee was deactivated for not hav-
ing accepted work for a year, and on September 16, 2015 an
employee was deactivated for not having worked in 2 years. In
its posthearing brief Respondent admits that, before November
2015, while deactivations would occur, enforcement of the 90-
day deactivation policy “was not done on a regular basis and
the reasons for the deactivations were not always consistent.”13
(Resp’t Br., at 6) (R. 17).
Also, longstanding employees credibly testified that, before
the Union’s certification, they had never known or heard of any
Rhino employee being deactivated, or told they could not work,
just because they had not accepted an assignment in the preced-
ing 90 days. Indeed, it appears that Rhino employees were
never aware of such instances because being “reactivated” into
the system was a simple process involving nothing more than
clicking a few buttons on a computer screen.14 Respondent’s
report shows that employees were easily reactivated upon re-
quest, with little cause for concern about previous deactiva-
tions. Thus, employees were reactivated even though they had
multiple serious infractions in the past causing their initial de-
activation. For example, Rhino reactivated numerous employ-
ees despite the fact they had previously been deactivated for
having multiple no call/no shows, not returning phone calls, not
accepting work, walking off the job, or simply being too busy
with their other job. Also, it was a general practice that an
employee could go on tour for an extended period, or move
away, then come back to town and simply inform Respondent
they had returned; Rhino would then reactivate the employee
and assign them work. (Tr. 61–62, 186, 314, 402–404; R. 17.)
On October 5, 2015, Rhino hired Amber Peterson to handle
the various human resource functions in the Northwest office.
As part of her job duties, Peterson was put in charge of deac-
tivating employees from the computer system, including deac-
tivating them for not working in a 90-day period. Peterson
started regularly deactivating employees for not working in 90
days starting November 3. Peterson testified that she would run
a report showing the employee’s name, hire date, and date last
worked. She would then look at the work history to see if the
employee was currently scheduled. If the employee had not
worked in 90 days and was not scheduled to work an upcoming
show, and she would deactivate the employee and make a nota-
tion in the system that the employee has not worked in 90 days.
After November 3, employees were consistently deactivated for
not working in a 90-day period. Notwithstanding, Respondent
continued its practice of liberally reactivating employees who
had been previously deactivated. For example, a review of
Respondent’s deactivation report shows that, of the employees
who were deactivated in November and December 2015 for not
working in 90 days, 41 were subsequently reactivated (Tr. 411–
14, 424) (R. 17).
A review of Rhino’s deactivation report also shows that, for

13 Tyler Anderson testified that he knew about the 90-day deactiva-
tion policy, but that it was not consistently enforced. (Tr. 329, 335.)
14 Michelle Smith testified that to reactivate an employee, someone
with access to Rhino’s computer system would simply need to click “an
active button.” (Tr. 402–403.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
the first 6 months of 2015, a total of 246 employees were deac-
tivated for various reasons. Of these, about 16 (6.5%) were
deactivated for generally not working. And half of these 16
deactivations occurred after the petition was filed on May 26.
For these 16 individuals, the deactivation report does not spe-
cifically say the employee was deactivated for not working in
90 days. Instead, it contains notations like “hasn’t worked in a
long time,” “hasn’t worked in over a year [and] only worked
one show,” or “doesn’t accept work.” (R. 17.)
From November 1, 2015, through April 30, 2016, the first 6
months after Amber Peterson started enforcing the 90-day de-
activation rule, 252 employees were deactivated. Of these,
about 142 (56.3%) were deactivated for not having worked in
90 days. And in virtually every one of these instances, the
notation in the deactivation report specifically says, “has not
worked in 90 days.” Respondent never bargained with the
Union about any changes related to its practice of deactivating
employees or enforcing its 90-day deactivation policy. (Tr. 23;
R. 17.)
F. The alleged discrimination against Rzeplinski, Gonzalez,
and Klemisch
1. Travis Rzeplinski
Travis Rzeplinski started working for Rhino in about 2000
and worked for the company until July 2016. As per industry
custom, Rzeplinski worked as a rigger for about 20 different
employers a year, including Rhino. Rzeplinski is an ETCP
certified rigger, and is able to perform most types rigging jobs
that do not require welding.15 As noted above, after attending
the mandatory employee meeting on June 9, Rzeplinski sent a
series of emails to Giek contesting many of the statements he
made in the meeting. After his email exchange with Giek,
Rzeplinski testified that work “flowed differently.” He stopped
receiving as many offers for longer engagements, and when
Rhino did contact him it was for more short–term work with
less advance notice. This resulted in Rzeplinski having to turn
down Rhino work because he was already booked by other
employers. (Tr. 208, 225–226, 234.)
At some point in mid–to late 2015, Rhino held a monthly su-
pervisors meeting where Rzeplinski was discussed. Multiple
supervisors and managers were present including Jeff Giek,
Tyler Alexander, and Michelle Smith. At the meeting, Smith
inquired as to who scheduled Rzeplinski for an upcoming
event. Alexander replied that he was responsible, and asked
why Smith wanted to know. Smith, asked why Alexander
would schedule Rzeplinski when he was only a few days away
from being deactivated. Alexander said that Rzeplinski was a
great employee, “why would I not schedule him?” Smith said
that Rzeplinski was possibly pro–union, and said she was curi-
ous why Alexander was scheduling him. At this point Giek
abruptly ended the conversation by saying that this did not need
to be discussed, and that Alexander was doing what he was
supposed to be doing by scheduling workers. (Tr. 330–33.)

15 ETCP is an acronym for Entertainment Technician Certification
Program. An ETCP certification is not generally needed to work as a
rigger, but some venues require this certification for certain type of
rigging work. (Tr. 57–58.)
Alexander guessed that this conversation happened during
the “summer busy season,” but could not recall if it was before
or after the Union election. However, Rzeplinski’s work rec-
ords suggest that it may have occurred sometime in the late
summer/early fall, depending upon how early Rhino was
scheduling shows at the time. Rzeplinski worked an event for
Rhino on November 22, when he was less than a week away
from going 90 days without working for Respondent and being
subject to the 90-day deactivation rule. (R. 20.)
In January 2016 Rzeplinski was in San Diego so he contact-
ed Giek and asked to meet for lunch; they met at a Japanese
restaurant. Rzeplinski asked Giek for an update about the un-
ion, and whether they were working on a contract. Giek replied
that his hands were tied, as the lawyers were handling things
and he was staying out of it. Rzeplinski mentioned that work
had slowed for both he and Klemisch, but Giek said that he did
not know anything and a lot of changes were occurring in the
Northwest office. After this meeting, Rzeplinski worked a
Black Sabbath concert for Respondent in February 2016. He
then worked a Rhino show at the Washington State convention
center on April 13, 2016; Rhino had contacted Rzeplinski to
work the same job on April 14, but he turned it down. This was
the last job Rzeplinski worked for Respondent. (Tr. 26–27,
226–28, 299–300.)
Rzeplinski received his paycheck for the April 13 job in the
mail; included with the check was a copy of Respondent’s em-
ployee newsletter. The newsletter noted that that Tyler Alex-
ander had received award “points” for exceptional work.
Rzeplinski became upset when he saw this, as he and Alexan-
der were close friends; Rhino fired Alexander a month earlier.
Therefore, on April 27, 2016, Rzeplinski wrote a “heated letter”
and emailed it to Klemisch, with a copy to the Union. (Tr.
229–232, 249–255, 290–91; GC 18, 19.)
The letter complains about Alexander’s discharge, and in-
cludes a picture of the newsletter. It discusses how Alexander
rose through the ranks at Rhino, was a 10-year veteran, and
“our leader for years.” The letter links Alexander’s discharge
with the employee union drive and infers that Rhino associated
Alexander as being supportive of employee workplace de-
mands. It says that “we are part of a union because together we
are stronger than we are apart.” The letter further lists various
job related complaints against Rhino and calls for employees
“to get behind an action” against the company. Instead of sign-
ing his name, Rzeplinski signed it “In Solidarity, A brother.”
(Tr. 231; GC 21–22.)
Klemisch and Rzeplinski then spoke, discussed the letter,
and Klemisch asked to post it on the Facebook page. Klemisch
made some minor grammatical changes to the letter and posted
it on Facebook the same day with a comment “a friend of mine
wrote this and I could not agree more.” The post was seen by
43 members of the Facebook group, including Dion Spires, the
rigging manager who replaced Alexander. Although the letter
was posted as being from an anonymous “brother,” Rzeplinski
testified that after it was posted various coworkers congratulat-
ed him for a well written letter. (Tr. 256–62; GC 21, 22, 28.)
After his April 2016 job for Rhino at the Washington State
convention center, Rzeplinski tried to secure more work as-
signments from Respondent. He logged into Rhino’s employee
RHINO NORTHWEST, LLC 15
portal, and printed out the calendar of upcoming events which
displayed multiple shows for the months of June through Sep-
tember that would require riggers. Previously, Rzeplinski
would go directly through Alexander for his work assignments.
Because Alexander had been fired, he instead called the office.
In May 2016 Rzeplinski twice called the Rhino office to get
scheduled for work. He spoke to the scheduler, told her that he
was going to be out of town from June 19 to June 3, but that
otherwise he was available and wanted to work; Rzeplinski was
going on his honeymoon for about two weeks starting June 19.
(Tr. 266–79, 303, 312–13; GC 23.)
The scheduler said that she would pass Rzeplinski’s name to
Travis Medley who was doing the scheduling, and would let
Rzeplinski know. However, Rzeplinski never heard back from
anyone at Rhino. (Tr. 267–68.)
After he returned from his honeymoon, on about July 6
Rzeplinski again called Rhino to inquire about work. He spoke
to an office assistant, said that he knew there were jobs coming
up and that he was interested in working. He was again told
that his name would be passed on, and again heard nothing.
(Tr. 279–80.)
Rzeplinski also asked two Rhino supervisors directly for
work during this time frame. He first spoke with supervisor
Eric Drda. Rzeplinski was working an event for another com-
pany and saw Drda. He told Drda that he was in town, availa-
ble, and knew Respondent was busy. However, Drda brushed
him off. Rzeplinski’s second conversation occurred on July 26,
2016, again while he was working an event for another compa-
ny. He saw Dan Scolnik at the theater and told him that he
would like to work, but Scolnik also gave him the brush off.
After speaking with Scolnik, Rzeplinski tried logging into the
employee portal, but he had been deactivated. Respondent’s
records show that Rzeplinski was deactivated on July 15, 2016,
for not having “worked in 90 days.” These records also show
that, after the April 14 show at the Washington State conven-
tion center, Rhino never contacted Rzeplinski to inquire about
his availability or otherwise tried to schedule him for work. (Tr.
282–83; GC 24; R. 17.)
2. Heidi Gonzalez
Heidi Gonzalez started working for Rhino in April 2010 as a
stagehand and became a rigger after about a year. She per-
formed rigging work for Rhino until August 2015. As with the
other riggers, Rhino was not Gonzalez’ only employer during
this time period. She generally worked for about 20 different
employers each year, including Rhino. Gonzalez testified for
the Union on the second day of the NLRB preelection hearing
in June 2015. At the hearing, when asked by Respondent’s
counsel whether it was important for Rhino’s stagehands and
riggers to work as a team to assemble a show, Gonzalez testi-
fied that the stagehands and riggers work independently, as a
team amongst themselves—riggers with riggers and stagehands
with stagehands – as opposed to working together. (Tr. 159–
161, 166; GC 36; R. 17.)
In late September 2015, Tyler Alexander sent Gonzalez a
text message about working a Scorpions concert on October 9,
in Kent, Washington.16 Alexander confirmed Gonzalez for the
show, but a few days later another company contacted her to
work the same show. It turns out that everyone working the
Scorpions concert, including Gonzalez and other Rhino em-
ployees, worked for a company named Pyramid, and not for
Rhino. (Tr. 178–182, 185; GC 15.)
Gonzalez found out that she had been deactivated when she
tried logging into the employee portal sometime in December
2015; the login screen said that she was no longer an active
employee and to contact the office for more information. On
December 14, 2015 Gonzalez emailed Alexander with her
availability for the remainder of the month along with January
and February 2016. Alexander replied, with a copy to Amber
Peterson and Dan Scolnik, saying that he had passed her infor-
mation on to the schedulers and that Gonzalez may need to
contact Peterson to verify her eligibility. (Tr. 176, 200–02; GC
14, 16.)
Gonzalez called Peterson sometime in December to find out
why she had been deactivated. Peterson told her that she was
deactivated because she had not worked for Rhino in 90 days.
Gonzalez protested, saying that she had been scheduled to work
the Scorpions concert for Rhino, but that the call was cancelled.
Peterson told Gonzalez that, since she did not actually work the
show for Rhino, it did not count. Gonzalez said that she want-
ed to work, and told Peterson she had emailed Alexander about
wanting to work. Peterson replied that she had to speak with
someone to see if Gonzalez could be reactivated, and would
call Gonzalez back. However, neither Peterson nor anyone
from Rhino ever contacted Gonzalez about working. (Tr. 177–
78, 183–84, 187, 201–202.)
Peterson admitted having a conversation with Gonzalez in
December about her reactivation. Peterson claimed that, Gon-
zalez asked to come back to work for Rhino, and said she want-
ed to work on an upcoming job that was assigned to her broth-
er. Peterson told Gonzalez that this was not acceptable, and not
part of the process – because Gonzalez was not on the call list,
and the schedulers were responsible for scheduling shows. (Tr.
426.)
Peterson further testified that the schedulers were aware that
Gonzalez wanted to return to work but that “[t]here are other
factors that are taken into consideration.” Peterson claimed that
there was “poor performance feedback” regarding Gonzalez
and that she had a “bad attitude” towards the schedulers and
accepting work. Peterson testified that there were other people
on her call list that would be more eligible to work than Gonza-
lez, with better attitudes. (Tr. 427–28.)
In the 5 years Gonzalez worked for Rhino, Respondent never
told her that her job performance was poor, or that she had a
bad attitude. Furthermore, nobody from Rhino ever told Gon-
zalez that she would not be assigned work because of perfor-
mance issues. (Tr. 506–508.)
The Union also tried getting Gonzalez scheduled for a Rhino
show in early 2016. On February 9, 2016, Union business
agent Mylor Treneer sent Alexander a letter with a list of “Rhi-
no riggers,” who were available and interested in working a
Rhino show scheduled later that month. The list included Gon-

16 The Scorpions are a 1980’s rock band. (Tr. 178.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
zalez and Klemisch. However, neither was ever contacted to
work the show. Respondent’s records show that Gonzalez was
deactivated on November 3, 2015 for not having worked in 90
days. Gonzalez’ last show for Rhino was a concert on August
2, 2015. (GC 4; R. 17, 18.)
3. Matthew Klemisch
Matthew Klemisch’s employment with Rhino started in July
2006 and ended in November 2015.17 Klemisch started as a
stagehand, and eventually became an ETCP certified rigger.
He only worked for Rhino a few months after starting in the
summer of 2006. He returned to Rhino a few years later, after
friends suggested to a supervisor that Klemisch was available
when they needed an extra person. Klemisch was scheduled to
work the show, and continued working for about a year. He
then moved to China in 2009, where he worked for a year.
When he returned from China, Klemisch called a Rhino super-
visor and said he was back in town; Rhino put him back to
work. Each time he returned, Rhino simply put Klemisch back
to work. He was not required to complete a new W–4 form or
any other new employee paperwork. In November 2015 Klem-
isch tried to log into the employee portal, but he had been deac-
tivated. Rhino’s records show Klemisch was deactivated on
November 3 for violating the conflict of interest policy. How-
ever, Rhino never told Klemisch that he had been deactivated,
or the reason for his deactivation. (Tr. 57–63, 81–82, 99, 101–
02; GC 6; R. 2, 17.)
a. Klemisch’s union and protected activity
During the organizing drive Klemisch collected authoriza-
tion cards, and was put on the Union’s organizing committee.
As noted earlier, he was also an administrator on the Facebook
page; he remained active on the Facebook page even after he
stopped working for Rhino. Also, Klemisch was the Union’s
first witness at the preelection NLRB hearing on June 4, testify-
ing, among other things, about how riggers generally work
separately from stagehands. (Tr. 66, 368–372; GC 36.)
b. Precision Rigging
In May 2012, Klemisch and his wife formed a limited liabil-
ity company named Precision Rigging LLC. Both were man-
agers of the LLC, while Klemisch was the registered agent. In
September 2015 Precision Entertainment, Inc., was incorpo-
rated in the State of Washington, and Klemisch transferred his
ownership in the company to his wife. Even though the LLC
became inactive, the new corporation continued using the name
“Precision Rigging” as a d/b/a. Also, notwithstanding the for-
mal change in the corporate structure, and the “transfer” of
ownership, the evidence shows that Klemisch continued run-
ning the operations of Precision Rigging while his wife provid-
ed support in the areas of accounting, finance, and payroll. (Tr.
105–113, 131; R. 3, ALJ 2.)
Precision Rigging rents rigging equipment, provides produc-
tion rigging services, production riggers, and general rigging

17 Throughout his employment with Rhino, Klemisch also worked
with other companies as a rigger, and estimated he worked for 10 to 15
different employers during any given year. This was true even as he
worked for both Rhino and Precision Rigging. (Tr. 59, 150.)
labor to various shows and venues primarily in the Pacific
Northwest.18 Precision Rigging is a union signatory employer.
(Tr. 122.) However, it generally does not use the union’s hiring
hall. Instead, to staff events Precision Rigging hires workers
directly from the pool of riggers in the Puget Sound area, which
includes individuals who also work for Rhino.19 (Tr. 86–88,
116, 120–22.)
At various times while he was working for Precision Rig-
ging, Klemisch has either interacted, or worked directly with,
Rhino employees—including supervisors. On some shows
Klemisch provided production rigging through Precision Rig-
ging, but oversaw a rigging crew provided by Respondent, with
Rhino supervisors. On other occasions Precision Rigging pro-
vided the event rigging labor, while the stagehands were pro-
vided by Rhino. (Tr. 88–90; Tr. 139–44.)
On one occasion Klemisch even received a referral from
Rhino. In early 2015 Karen Biggers referred Andrew Latimer,
the production manager for Endless Entertainment, to Klemisch
for an event in Seattle. Latimer had reached out to Biggers
saying that his staffing manager would contact her to discuss
hiring stagehands, but that he wanted to “talk riggers and mo-
tors.” He emailed Biggers the rigging guidelines and draft site
plane, along with a list of equipment needed for the show, in-
cluding trusses. Biggers replied on January 27, via email, not-
ing that Rhino did not carry much inventory, and that she was
unsuccessful in renting some of the needed equipment. She
attached a copy of Rhino’s labor rates, and then recommended
a specific company for lighting equipment, and another compa-
ny for motors. Finally, she recommended Klemisch as a pro-
duction rigger and noted he had trusses available. Latimer
replied a few days later asking whether Rhino had rigging staff
working the show that could determine the specific points and
plots that were needed. At some point Biggers texted Klemisch
asking what he charged for production rigging; Klemisch re-
plied with the information requested. On February 6, Biggers
emailed Latimer saying that Klemisch “is the best production
rigger if you are looking for someone to lay out points,” and
that Rhino’s riggers “can help make last minute adjustments if
that is all that is needed.”20 (Tr. 151–52; GC 25.)
Latimer emailed Klemisch on February 10, saying that Big-
gers “at Rhino” had referred him for a show in late March.
Latimer said that he wanted an ETCP certified head rigger for
the show, explained what else he needed, including equipment,
and asked whether Klemisch was interested and available. He

18 Production rigging services and production riggers provide ad-
vance planning for events, before they occur, while general rigging
labor is provided during the event itself, including the load–in and
load–out. (Tr. 87, 118, 460–61.)
19 At the hearing, both the Union and the General Counsel agreed
that Precision Rigging performs similar work as Rhino and that there
may be an overlap in the customer base. (Tr. 128–29.)
20 Notwithstanding any testimony to the contrary, the evidence
shows that Biggers knew Klemisch was in the business of renting
equipment and offering production rigging. The evidence also shows
that, when she recommended Klemisch, Biggers was doing so in an
attempt to have Rhino provide the general rigging and stagehand labor,
with other companies to provide motors and lighting, and Klemisch to
provide trusses and production rigging services. (Tr. 356–57; GC 2.5.)
RHINO NORTHWEST, LLC 17
also asked whether Klemisch could provide the equipment, as
per Biggers’ recommendation. Klemisch replied on February
11, saying that he was “the owner of Precision Rigging,” and
provided a cost breakdown for the requested labor and equip-
ment. Precision Rigging was hired for the job, and its invoices
show that Endless Entertainment was billed $4,335 for the
work. This amount included a charge for equipment rental, and
$1,950 for related rigging labor, including an ETCP rigging
supervisor.21 (Tr. 504–05; GC 7; R. 4, at 9.)
A review of the Precision Rigging invoices introduced into
evidence show that for the 17-month period from June 2014
through October 2015 Precision Rigging billed customers over
$370,000 for its services. Of this amount, over one third (about
$130,000) was for general rigging labor while the remaining
amount was for equipment rental, production rigging, and other
related services.22 There is no evidence that Klemisch ever
received permission from Giek, or any other Rhino executive,
to operate a separate company that competes directly against
Rhino for business. (Tr. 135–36; R. 4.)
c. The termination of Klemisch’s employment
When Klemisch testified at the June 4 NLRB preelection
hearing, Giek learned that Klemisch operated Precision Rig-
ging, which competed against Rhino. Therefore, at some point
after the hearing date, Giek told Michelle Smith that Klemisch
could no longer work for Rhino. According to Respondent, as
the driving force behind Precision Rigging, Klemisch violated
Rhino’s conflict of interest policy which is contained in the
employee handbook. This policy prohibits employees from
putting themselves in a position where their personal interests
conflict with Rhino’s. As an example of such a conflict, the
employee handbook cites “acting as a director, officer, employ-
ee, or otherwise for any business . . . with which [Rhino] has a
competitive . . . business relationship without written approval
of the President.” Respondent’s records show that Klemisch
acknowledged reviewing the employee handbook in August
2012. (R. 1, 2, 16; Tr. 384–384, 392–394, 466, 480–481.)
According to Giek, this policy is designed to prohibit a com-
petitor from potentially stealing Rhino’s customers or business.
Giek testified that the policy did not prohibit general hourly
employees from working for other production companies, as
this is the accepted industry model, and there is not enough
work for one company to employ all the hourly workers full
time. Giek explained that Klemisch was competing directly
against Rhino by pursuing the same work for Precision Rig-
ging. Hourly employees, on the other hand, are simply staffing
events, and not involved in securing contracts for the compa-
nies that employed them. (Tr. 467–471.)
After Klemisch testified at the NLRB hearing, he was sched-
uled to work two concerts for Rhino, one on July 24 and anoth-
er on July 31. However, for both shows Klemisch received
telephone calls from Rhino saying that he was no longer need-
ed. Klemisch then turned down work offers from Rhino for

21 It is unclear whether Rhino was also hired to perform rigging work
on this show.
22 The invoices show that, notwithstanding any testimony to the con-
trary, providing rigging labor is a significant part of Precision Rig-
ging’s business.
events scheduled for August 9, and August 10; the last event
Klemisch actually worked for Rhino was on May 27. After-
wards, Rhino stopped contacting Klemisch for work, and its
employment records list Klemisch being fired on November 3,
2015, for violating the company’s conflict of interest policy.
(Tr. 59, 78–80, 147; R. 2, 18, 19.)
II. ANALYSIS
A. Alleged discrimination against Rzeplinski, Gonzalez, and
Klemisch
1. Legal Standard
To show that an adverse employment action was motivated
by an employee’s protected activities, the Board applies the
burden shifting framework set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).23 Under this frame-
work, the General Counsel must prove by a preponderance of
the evidence that an employee’s union or other protected activi-
ty was a motivating factor in the employer’s actions. The ele-
ments required to support such a showing are union or other
protected activity, knowledge of that activity, and animus on
the part of the employer. See, e.g., Consolidated Bus Transit,
350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir.
2009).
If the General Counsel makes this initial showing, the burden
of persuasion shifts to the employer to prove, as an affirmative
defense, that it would have taken the same action even if the
employee had not engaged in protected activity. Id. at 1066; see
also Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1550
(10th Cir. 1996) (by shifting the burden the employer’s justifi-
cation becomes an affirmative defense). Where an employer’s
explanation is “pretextual, that determination constitutes a find-
ing that the reasons advanced by the employer either did not
exist or were not in fact relied upon.” Limestone Apparel
Corp., 255 NLRB 722, 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). And, “where the Employer’s proffered non–
discriminatory motivational explanation is false even in the
absence of direct motivation the trier of fact may infer unlawful
motivation.” Roadway Express, 327 NLRB 25, 26 (1998).
2. Alleged discrimination against Rzeplinski and Gonzalez
a. Union and protected activity
The evidence clearly shows that both Rzeplinski and Gonza-
lez engaged in union activities. Rzeplinski attended union
meetings, and in his June 9 email he directly challenged Giek’s
anti–union statements made at the mandatory employee meet-
ing. The email was clearly supportive of the union drive, and
noted that the IATSE only wanted to represent workers, and not
destroy Rhino as Giek claimed. Rzeplinski also asked whether

23 The Board applies Wright Line to alleged 8(a)(1), (3), and (4) vio-
lations where the employer’s motivation is at issue regarding an ad-
verse employment action. Freightway Corp., 299 NLRB 531, 532 fn.4
(1990) (noting that Wright Line applies to 8(a)(4) as well as 8(a)(3)
violations); Tortillas Don Chavas, 361 NLRB 101, 114 (2014) (apply-
ing Wight Line to alleged 8(a)(1) discrimination).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Rhino was working on a contract with the Union during his
January 2016 lunch with Giek in San Diego. Finally, Rzeplin-
ski drafted the “anonymous” April 16, 2016 letter, which was
posted on the employee Facebook page, and described why
employees were part of a union and called on workers to “get
behind an action” against the company. Gonzalez engaged in
union activities, in that she testified on behalf of Local 15 at the
June 2015 preelection hearing. Gonzalez’ testimony is also
protected under Section 8(a)(4) of the Act.24
Both Gonzalez and Rzeplinski also engaged in protected
concerted activities involving the various comments they made
on Facebook. In reply to someone who said they had never
been subjected to unsafe working conditions at Rhino, Gonza-
lez complained that she had, in fact, been exposed to unsafe
conditions, had been asked to “take one for the team” many
times, and questioned when the “team” would benefit her. In
this same comment, Gonzalez said that “we need support,” as
the “cons” of working at Rhino outweigh the “pros.”
Following up on Gonzalez’ comment, Rzeplinski posted that
he too had been asked to “take too many for the team” and has
seen coworkers being overworked, underpaid, and asked to
perform “things he was uncomfortable with.” In the same
comment Rzeplinski complains of not receiving overtime, and
notes that a “cohesive group” is now asking for more recogni-
tion and pay for “the dangerous work we do.” On this theme,
Rzeplinski then commented about having to pay for his own
gas while driving to a work assignment 6 hours away, and de-
scribed various incidents where he believed safety was put at
risk because of a lack of equipment or training. Furthermore,
Rzeplinski commented that Rhino supervisors had done a great
job recently, working within the system they had been given,
but that “sometimes the system needs to fundamentally change
to be more effective.” All of these Facebook comments made
by Gonzalez and Rzeplinski are protected under the Act. See
World Color (USA) Corp., 360 NLRB 227, 228 (2014) (noting
that the Board has found Facebook posts among employees
about working conditions to be protected concerted activity);
Triple Play Sports Bar & Grille, 361 NLRB 308 (2014) (em-
ployees using social media, including Facebook, to discuss
their working conditions constitutes concerted activities for the
purposes of mutual aid and protection), enfd. 629 Fed.Appx. 33
(6th Cir. 2015) (employee’s endorsement of former coworker’s
Facebook claim that employer erred in tax withholdings is con-
certed activity protected by the Act).
b. Knowledge
There is ample evidence showing that Respondent knew
about the union and protected activities engaged in by Gonzalez
and Rzeplinski. As for Rzeplinski, Venegas reported to Giek
that Rzeplinski was present at a union meeting before the elec-
tion with members of IATSE’s leadership team. Venegas also
reported to Giek that Rzeplinski was one of the people primari-
ly responsible for organizing communications between the

24 The Board broadly interprets Section 8(a)(4) to include testimony
in all types of Board proceedings, including election/representation
proceedings; it even protects employees who appear at a hearing but do
not testify. Virginia–Carolina Freight Lines, Inc., 155 NLRB 447, 452
(1965); Belle Knitting Mills, Inc., 331 NLRB 80, 103 (2000).
Local 15 and Rhino’s employees. Moreover, Giek personally
exchanged emails and spoke with Rzeplinski about the Union.
And Smith stated in a monthly supervisors meeting that
Rzeplinski was possibly prounion. Also, Smith forwarded the
Facebook comments made by Gonzalez and Rzeplinski directly
to Giek. Likewise, Drda and Scolnik were directly commenting
on Facebook in reply to posts made by both employees. Final-
ly, multiple members of Rhino’s management and supervisory
team were present when Gonzalez testified on behalf of the
IATSE at the NLRB preelection hearing. Respondent clearly
knew that both Rzeplinski and Gonzalez were engaged in both
union and protected concerted activities
c. Animus
The evidence is replete with animus, both general and specif-
ic. During the mandatory preelection employee meetings, Giek
told workers that Rhino had been successful getting contracts
with venues and production companies like Live Nation, that
“it’s no secret some of our clients want nothing to do with un-
ions – especially a union like IATSE,” that they “do not want
us bringing a union into their venues or their shows;” he then
asked employees why they would take a risk of alienating Rhi-
no’s best clients in the Northwest by unionizing. The Board
has found that an employer’s assessment of the “risk” of losing
its major customer if employees unionized is a violation where
there is no objective factual basis for making the claim. Blaser
Tool & Mold Co., Inc., 196 NLRB 374, 374 (1972) (statement
from company president of concern that major customer might
stop doing business with the company if employees voted for
the union constituted an implied threat of job loss and plant
closure, as there was no objective factual basis for the com-
ment).25 Here, Giek did not present to employees any objective
factual basis for his claim that Rhino’s customers, or the venues
in which they work, do not want Rhino brining a “union into
their venues or shows.” The same holds true for Giek’s claim
that Rhino would risk alienating its best clients if they union-
ized. The message conveyed to employees was that, if they
unionized, Rhino’s would possibly lose their best customers
and ultimately workers would be without work. Because Giek
provided no objective factual basis when he made these state-
ments, it supports a finding of animus.
Similarly supporting a finding of animus are statements
made by Giek and Drda about everything being frozen because
of the Union. In his speech to employees, Giek said that during

25 See also, Crown Cork & Seal Co., Inc., 255 NLRB 14, 14 (1981),
enfd 691 F.2d 509 (9th Cir. 1982) (table) (Supervisor’s statement that,
if employees unionized, the company’s sole customer would switch to a
less costly producer, forcing a shutdown in operations, a violation as
there was no objective factual basis for this statement nor a showing
that these speculative consequences were beyond the employer’s con-
trol). National Propane Partners, L.P., 337 NLRB 1006, 1017 (2002)
(employer’s “predictions” about the effects of unionization a violation
unless they are “carefully phrased on the basis of objective fact to con-
vey an employer’s belief as to demonstrably probable consequences
beyond his control.”); Tellepsen Pipeline Services Co. v. NLRB, 320
F.3d 554, 564 (5th Cir. 2003) (statement that employer’s customer
could terminate its contract if the Union won and all employees could
possibly lose their jobs constituted implied threats of reprisals in viola-
tion of § 8(a)(1)).
RHINO NORTHWEST, LLC 19
negotiations everything is frozen, and that it is illegal for the
company to grant a wage increase without an agreement, and
asked employees how long they would be willing to wait as it
could take months or years for a first contract. On the other
hand, he noted that without a union the company could make
changes anytime. He made a similar statement in his email to
Rzeplinski. Also, in his Facebook comment, Drda said that a
“yes” vote “keeps pay frozen until a contract is reached,” and
that during “similar situations years can pass.”26 The Board has
found that these types of statements, made in similar circum-
stances, violate Section 8(a)(1) of the Act. Marathon Metallic
Building Co., 224 NLRB 121, 122–123 (1976).27 Here, I be-
lieve there is sufficient evidence in the record to support a find-
ing that these statements also show animus.
Also, in the list of questions and answers that Rhino dissem-
inated to employees at the mandatory meetings, Rhino states
that, while it cannot “predict the future, many companies have
lost jobs or shut down completely after their employees union-
ized in the past.” This statement is also evidence of animus. S.
Bakeries, LLC v. NLRB, 871 F.3d 811, 821 (8th Cir. 2017) (“In
a similar case, we determined that an employer violated §
8(a)(1) when it ‘called employees’ attention to other plants in
the community where employees had been laid off following
their vote to unionize’” quoting NLRB v. Noll Motors, Inc., 433
F.3d 853, 854 (8th Cir. 1970)).
The record also contains various other examples of animus.
Giek was clearly mad at the content of the testimony that Rhino
riggers gave at the NLRB preelection hearing. In his email to
Rzeplinski he cited this testimony saying that three riggers
testified under oath they do not work as a team with stagehands
and that he was “stunned by their denunciation of Rhino’s core
values.” Giek further wrote that those employees, which in-
cluded Gonzalez and Klemisch, represent the Union’s values
and that “Rhino’s dedicated employees have no need for the
Union.” He made a similar reference to this testimony in the
questions and answers supplied to employees at the mandatory
meetings.
Animus against the concerted activities of Rzeplinski and
Gonzalez is also shown in the replies made by Scolnik to the
Facebook posts about unsafe working conditions. Scolnik’s
comments show that he was particularly angry at the claim of
unsafe working conditions at Rhino, saying that Rzeplinski had
“a LOT of nerve,” asking whether Rzeplinski was “so blinded
by this crusade” that he was willing to attack Rhino for conduct
that other companies, and Rzeplinski himself, engaged in.
Finally, Smith’s comments to Alexander questioning why he

26 See R. 23, GC 17 and GC 33 for the statements made by Giek and
Drda.
27 The Board looks to the following factors to determine whether a
violation occurs in these types of circumstances: (1) did the union
threaten to protest conferring benefits; (2) is some other basis for the
employer to fear such a protest; (3) has the employer made an effort to
secure the union’s consent to the institution or increase of benefits; (4)
was it made clear that the deferral of benefits is to avoid the appearance
of election interference; (5) were the comments made in the context of
an antiunion appeal; and (6) did the comments occur while the employ-
er was committing unfair labor practices. Nissan Motor Corp. in the
U.S.A., 263 NLRB 635, 640–641 (1980).
would schedule a possible pro–union rigger who was days
away from being deactivated also shows animus against union
supporters in general, and against Rzeplinski in particular.
d. Respondent has not rebutted the General Counsel’s case
The General Counsel having presented a prima facie case of
discrimination against Gonzalez and Rzeplinski, the burden of
persuasion now shifts to Respondent to show that it would have
taken the same actions against them notwithstanding their pro-
tected activity. I find that Respondent has not done so.
Respondent argues that there could be no violation because
Peterson deactivated Gonzalez and Rzeplinski, thereby remov-
ing their access to the employee portal, as part of her new and
more stringent application of the 90-day deactivation rule
which applied to everyone. That being said, Rhino cannot ex-
plain why it refused to reactivate Gonzalez and Rzeplinski,
thereby continuing to deny them access to Respondent’s com-
puter system, and in turn ensuring they would not be called to
work future Rhino events.
After learning she was deactivated, Gonzalez spoke with Pe-
terson and specifically asked for work. Peterson admits speak-
ing with Gonzalez about her reactivation, and that the Rhino
schedulers were aware that Gonzalez wanted to return to work.
Also, based on Gonzalez’ email exchange with Alexander on
December 14, it is clear that Alexander, Peterson, and Scolnik
all knew Gonzalez wanted to be scheduled for work. Notwith-
standing, she was never reactivated, or called to work Rhino
events.
The evidence shows that, before the Union’s certification,
employees were reactivated upon request with little concern,
even if they had multiple infractions in the past which caused
their initial deactivation. Moreover, the evidence also shows
that, after Peterson was hired, multiple employees who were
deactivated pursuant to the 90-day deactivation policy, were
subsequently reactivated. However, instead of reactivating
Gonzalez and assigning her work, Peterson claimed that she
had other people with better attitudes to take a work call. See
Children’s Studio School Pub. Charter School, 343 NLRB 801,
805 (2004) (“Board has long considered . . . comments, such as
accusing an employee of having a ‘bad attitude,’ to be a veiled
reference to the employee's protected activities.”) Respondent
has not, and cannot, explain why it would reactivate other em-
ployees, but refused to reactivate Gonzalez. As such, I find that
Respondent’s explanation is pretext, and that Rhino violated
Section 8(a)(1), (3), and (4) of the Act by continuing to keep
Gonzalez in deactivated status, thereby denying her access to
the computer system and ensuring that she would not be called
or scheduled for future events. Belle Knitting Mills, Inc., 331
NLRB 80, 103 (2000) (violation where employees were denied
recall because of their union activities, and/or because they
gave testimony under the Act).
The same holds true for Rzeplinski. Respondent’s records
show that the last time Rhino contacted Rzeplinski for work
involved a job scheduled for April 14, 2016, which Rzeplinski
turned down—having worked for Rhino the previous day. In
May 2016, Rzeplinski actively tried to secure work from Rhino,
but was never called. After returning from his honeymoon in
July 2016, he again actively tried to get scheduled for work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
with Rhino, but again to no avail. Similarly, after he had been
deactivated, Rzeplinski asked Scolnik for work, but was given
the brush off.
By not contacting Rzeplinski for work after April 14, 2016,
Respondent ensured that he would be deactivated under the
more stringent application of its 90-deactivation day policy.
Indeed, the evidence supports a finding that Respondent was
using the 90-deactivation policy to specifically target Rzeplin-
ski. There is no other explanation for Smith’s questioning Al-
exander as to why he would schedule Rzeplinski, who appeared
to be prounion, when he was only days away from being deac-
tivated. Rhino knew Rzeplinski wanted to work, but refused to
schedule him and would not reactivate him, for no legitimate
reason. Accordingly, I find that Respondent has not shown that
it would have taken the same actions against Rzeplinski absent
his protected activities. Therefore, Respondent violated Section
8(a)(1) and (3) of the Act by deactivating Rzeplinski, and sub-
sequently refusing to reactivate him, because Rzeplinski en-
gaged in protected concerted activities, and because of his un-
ion activities.
3. Matthew Klemisch’s discharge
The evidence also shows that the General Counsel has pre-
sented a prima facie case that Klemisch was discharged because
of his protected activities. Klemisch was one of the employees
leading the union organizing drive, he was the administrator of
the Facebook page, and he testified on behalf of Local 15 at the
NLRB preelection hearing. It cannot be questioned that Re-
spondent knew about Klemisch’s union activities, as he was
highlighted by Giek in his speech during the mandatory em-
ployee meetings, and in the questions and answers passed out to
employees. Moreover, Venegas specifically warned Giek that
it would not be “good for you” if IATSE appointed Klemisch to
represent employees at negotiations. And, as described above,
Respondent harbored animus against employee union and pro-
tected activities.
However, unlike Rzeplinski and Gonzalez, I find Respondent
has shown that it would have taken the same action against
Klemisch, notwithstanding his protected activities. The evi-
dence shows that Giek made the ultimate decision to terminate
Klemisch’s employment, and he made this decision after learn-
ing Klemisch owned and operated Precision Rigging, which
competed directly against Rhino.28 Over one–third of Precision
Rigging’s revenues came directly from providing rigging la-
bor—the same work provided by Rhino. This is clearly distin-
guishable from the industry practice of riggers working for
multiple companies throughout the year. Here, Precision Rig-
ging was hiring the same riggers used by Rhino, and competing
directly against Rhino for the same clients.
By operating a competing rigging company, Klemisch was in
clear violation the conflict of interest policy in Rhino’s em-
ployee handbook, which Klemisch acknowledged receiving.

28 I find that it is of no substance that other Rhino employees or
managers may have known about Klemisch’s involvement with Preci-
sion Rigging before the union organizing drive. The record shows that
Giek made the ultimate decision to fire Klemisch, and there is no evi-
dence that, before Klemisch’s NLRB testimony, Giek knew anything
about Klemisch’s involvement with Precision Rigging.
Moreover, the General Counsel has not shown pretext, as there
is no evidence that Respondent allowed other employees to
remain employed while they operated a competing company.
Cf. Memphis Truck & Trailer, 284 NLRB 900, 910–911 (1987)
(respondent’s claim that employee was rejected for employ-
ment because he operated a “shade tree” garage at his home
was pretext, in part, because the evidence showed other em-
ployees who ran “shade tree” garages were hired and later told
to cease their “shade tree” operations, while the discriminatee
was never given this option). Therefore, I recommend that the
unfair labor practice allegations relating to Klemisch’s termina-
tion be dismissed.
B. Alleged failure to bargain over deactivating/denying em-
ployee access to Respondent’s computer system for not working
in a 90-day time period.29
The Board has found that a more stringent enforcement of
existing work rules constitutes a change in employee terms and
conditions of employment over which an employer has the
obligation to bargain. Hyatt Regency Memphis, 296 NLRB
259, 264 (1989), enfd. 939 F.2d 361, 371–73 (6th Cir. 1991)
(collecting cases and finding a violation where, after the union
election, the employer implemented a more stringent enforce-
ment of work rules but failed to bargain with the union, even
though the rules in question had been in effect since the com-
pany commenced operations); Celotex Corp., 259 NLRB 1186,
1193–1194 (1982) (employer violated Section 8(a)(5) by uni-
laterally instituting and pursuing a policy of stricter enforce-
ment of its employee work rules.) San Luis Trucking, Inc., 352
NLRB 211, 229 (2008) (employer violated Section 8(a)(5) by
more strictly enforcing its rules regarding the issuance of at-
tendance and disciplinary reports to drivers) adopted by Board
after remand 356 NLRB 168 (2010), enfd. 479 Fed.Appx. 743
(9th Cir. 2012).
The evidence shows that, even though Respondent’s 90 de-
activation day policy was added into the employee handbook in
December 2013, the enforcement of the rule was lax and spo-
radic. For example, for the first 6 months of 2015, which is
before the election ballots were returned and counted, of the
246 employees who were deactivated—only 6.5% (16 workers)
were deactivated for not working. After Peterson started en-
forcing Respondent’s 90-day deactivation rule, for the 6-month
period from November 1, 2015 through April 30, 2016, 252
employees were deactivated; of these 56.3% (142 workers)
were deactivated for not having worked in 90 days. The num-
ber of employees deactivated for not having worked in a 90-day
period increased almost 900 percent. Under these circumstanc-
es, Respondent had an obligation to bargain with the union
before more strictly enforcing its 90-day deactivation policy.30

29 The complaint also alleges that, based upon requests to bargain
made by Local 15 in August 2015, Rhino has violated Section 8(a)(5)
of the Act by refusing to bargain with the union. However, the Board
has already ruled on these exact same allegations, finding a violation.
Rhino Northwest, LLC, 363 NLRB No. 72 (2015), enfd. 867 F.3d 95
(DC. Cir. 2007).
30 I note that here, as in Celotex Corp., 259 NLRB at 1193, the Gen-
eral Counsel has not attacked the Respondent’s motives for more strict-
ly enforcing its preexisting work rule.
RHINO NORTHWEST, LLC 21
Celotex Corp., 259 NLRB 1186, 1193–94 (1982) (violation
where, after union election, employer increased the frequency
of warnings by 1,000 percent without bargaining with the un-
ion).
Respondent’s reliance on Wabash Transformer Corp., 215
NLRB 546 (1974), and its progeny, is unavailing. In Wabash
Transformer, the Board found that the employer’s imposition of
discharge for failing to meet efficiency standards was not a
unilateral change. In so doing, the Board noted that the em-
ployer’s productivity standards predated the union’s certifica-
tion and the employer “actively enforced its rules by personally
interviewing individuals in default, posting notices on bulletin
boards, and by delivering speeches to assembled employees.”
Id. at 547. Such is not the case here, as Respondent’s 90-day
deactivation policy was haphazardly applied and administered
before the union was on the scene, and then strictly applied to
the detriment of employees after Local 15’s certification.
As such, I find that Respondent violated Section 8(a)(1) and
(5) of the Act by instituting and pursing a policy of stricter
enforcement of its 90-day deactivation rule without giving the
union notice and an opportunity to bargain. Celotex Corp., 259
NLRB 1186 (1982); Hyatt Regency Memphis, 296 NLRB 259
(1989); San Luis Trucking, Inc., 356 NLRB 168 (2010), adopt-
ing 352 NLRB 211 (2008).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local No. 15, International Alliance of Theatrical Stage
Employees and Moving Picture Technicians, Artists, and Allied
Crafts of the United States and Canada, AFL–CIO, CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The following employees constitute an appropriate unit
(Unit) for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full–time and regular part–time riggers, including boom
lift riggers, ballroom riggers, decorating riggers, down riggers,
ETCP high riggers, fly operators, head riggers, head fly op-
erators, high riggers, high rigger trainees, high rigger welders,
installation riggers, roof operators, roof supervisors, and rig-
ging trainees, employed by the Employer out of its Fife,
Washington, facility, excluding all other employees, guards
and supervisors as defined in the National Labor Relations
Act.
4. By discriminating against Travis Rzeplinski because he
engaged in protected concerted activities, and because he en-
gaged in union activities, Respondent has independently violat-
ed both Section 8(a)(1) and Section 8(a)(3) of the Act.
5. By discriminating against Heidi Gonzalez because she
engaged in protected concerted activities, union activities, and
testified at a hearing before the National Labor Relations
Board, Respondent has independently violated Sections 8(a)(1),
8(a)(3), and 8(a)(4) of the Act.
6. By unilaterally and without giving the Union an oppor-
tunity to bargain over the decision to institute a policy of more
stringent enforcement of its 90-day deactivation rule, Respond-
ent has violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative actions designed to effectuate the
policies of the Act.
Specifically, having found that Respondent violated Sections
8(a)(1) and (3) of the Act by discriminating against Travis
Rzeplinski, and violated Sections 8(a)(1), (3), and (4) of the Act
by discriminating against Heidi Gonzalez, I shall order Re-
spondent to reactivate them and make them whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them.
Having found that Respondent failed to bargain with the Un-
ion about its decision to institute a policy of more stringent
enforcement of its 90-day deactivation rule, I shall order that
Respondent restore the status quo ante, bargain with the Union
about any changes to the enforcement of the 90-day deactiva-
tion rule, and make bargaining unit employees whole for any
loss of earnings they may have suffered because of Respond-
ent’s unilateral implementation of the policy more strictly en-
forcing the 90-day deactivation rule.
Respondent shall compensate Rzeplinski, Gonzalez, and any
other Unit employee due backpay, for any adverse tax conse-
quences of receiving a lump–sum backpay award. AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016). Respondent shall
also compensate Rzeplinski, Gonzalez, and any other affected
Unit employee, for their search–for–work and interim employ-
ment expenses regardless of whether those expenses exceed
interim earnings. King Soopers, Inc., 364 NLRB No. 93
(2016).
Backpay, search–for–work, and interim employment expens-
es, shall be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), 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), enf. denied on other grounds sub. nom., Jackson Hospi-
tal Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
Additionally, Respondent shall file with the Regional Direc-
tor for Region 19, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years.
The Respondent shall also be required to expunge from its
files any references to the deactivations issued to Rzeplinski,
Gonzalez, and any other affected Unit employee, and notify
them and the Regional Director of Region 19, in writing, that
this has been done and that the wrongful deactivations will not
be used against them in any way. The Respondent shall also
post the attached notice in accordance with J. Picini Flooring,
356 NLRB 11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended31

31 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
ORDER
Respondent Rhino Northwest LLC, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discriminating against employees because they engaged
in protected concerted activities, union activities, or because
they gave testimony in a hearing before the National Labor
Relations Board.
(b) Refusing to bargain collectively and in good faith with
IATSE Local 15 by unilaterally implementing a policy more
stringently enforcing its 90-day deactivation rule.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the more stringent enforcement of its 90-day de-
activation policy, restore the status quo ante, and bargain with
the Union, as the bargaining representative of Unit employees
with respect to any changes to that policy.
(b) Make Travis Rzeplinski and Heidi Gonzalez whole for
any loss of earnings or other benefits suffered as a result of the
discrimination against them in the manner set forth in the rem-
edy section of this decision.
(c) Make any Unit employees affected by the more stringent
enforcement of the 90-day deactivation policy whole in the
manner set forth in the remedy section of this decision.
(d) Compensate Travis Rzeplinski, Heidi Gonzalez, and any
Unit employees due backpay, for the adverse tax consequences,
if any, of receiving a lump–sum backpay award, and file with
the Regional Director for Region 19, within 21 days of the date
the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay award to the appropriate
calendar years.
(e) Within 14 days from the date of the Board’s Order, reac-
tivate Travis Rzeplinski, Heidi Gonzalez, and any Unit em-
ployee affected by the more stringent enforcement of the 90-
day deactivation policy, without prejudice to their seniority or
other rights and privileges previously enjoyed, and inform
them, in writing, that they have been reactivated.
(f) Within 14 days from the date of this Order, remove from
its files any references to the deactivations issued to Rzeplinski
and Gonzalez, and any other Unit employee who was deac-
tivated pursuant to the more stringent enforcement of the 90-
day deactivation policy and within 3 days thereafter, notify
them in writing that this has been done and that their deactiva-
tions will not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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 the Order.
(h) Within 14 days after service by the Region, post at its
Fife, Washington facility copies of the attached notice marked
“Appendix.”32 Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed any of the facilities
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at the closed facilities any time since November 3, 2015.
(i) Within 21 days after service by the Region, file with the
Regional Director for Region 19 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply with this
order.
Dated, Washington, D.C. November 3, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively with Local No.
15, International Alliance of Theatrical Stage Employees and
Moving Picture Technicians, Artists, and Allied Crafts of the
United States and Canada, AFL–CIO, CLC (IATSE Local 15),
as the collective–bargaining representative of the following
employees (Unit):
All full–time and regular part–time riggers, including boom
lift riggers, ballroom riggers, decorating riggers, down riggers,

32 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RHINO NORTHWEST, LLC 23
ETCP high riggers, fly operators, head riggers, head fly op-
erators, high riggers, high rigger trainees, high rigger welders,
installation riggers, roof operators, roof supervisors, and rig-
ging trainees, employed out of our Fife, Washington, facility,
excluding all other employees, guards and supervisors as de-
fined in the National Labor Relations Act.
WE WILL NOT unilaterally and without giving the Union an
opportunity to bargain institute a policy of more strictly enforc-
ing our 90-day deactivation rule for Unit employees.
WE WILL NOT discriminate against Travis Rzeplinski because
he engaged in protected concerted activities, and because he
engaged in activities in support of IATSE Local 15.
WE WILL NOT discriminate against Heidi Gonzalez because
she engaged in protected concerted activities, engaged in activi-
ties in support of IATSE Local 15, and because she provided
testimony at a National Labor Relations Board hearing.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights listed
above.
WE WILL rescind the more stringent enforcement of our 90-
day deactivation policy, restore the status quo ante, and bargain
with IATSE Local 15, as the bargaining representative of Unit
employees, with respect to any changes to that policy.
WE WILL, within 14 days from the date of the Board’s Order,
reactivate Travis Rzeplinski, Heidi Gonzalez, and any Unit
employee affected by the more stringent enforcement of our 90-
day deactivation policy, without prejudice to their seniority or
other rights and privileges previously enjoyed, and inform
them, in writing, that they have been reactivated.
WE WILL make Travis Rzeplinski and Heidi Gonzalez whole
for any loss of earnings and other benefits resulting from the
discrimination against them, less any interim earnings, plus
interest.
WE WILL make any Unit employee deactivated because of the
more stringent enforcement of our 90-day deactivation policy
whole for any loss of earnings and other benefits resulting from
the deactivation, less any interim earnings, plus interest.
WE WILL compensate Travis Rzeplinski, Heidi Gonzalez, and
any other Unit employee due backpay, for the adverse tax con-
sequences, if any, of receiving a lump–sum backpay award, and
WE WILL file with the Regional Director of Region 19, within
21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the deactivations issued
to Travis Rzeplinski, Heidi Gonzalez, and any other Unit em-
ployee who was deactivated pursuant to the more stringent
enforcement of our 90-day deactivation policy, and WE WILL,
within 3 days thereafter, notify them in writing that this has
been done and that the wrongful deactivations will not be used
against them in any way.
RHINO NORTHWEST, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19–CA–165356 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.