Rhino Northwest, LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 3, 2017

19-CA-165356 (N.L.R.B. Nov. 3, 2017)

JD(SF)–46–17
Seattle, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
RHINO NORTHWEST, LLC
and Case 19–CA–165356
19–CA–168813
19–CA–169067
19–CA–181097
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
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 Respondent.
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,
International 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 General 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.
JD(SF)–46–17
2
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
5
I. JURISDICTION AND LABOR ORGANIZATION
Respondent admits that it is an Arizona limited liability company, with an office and
place of business in Fife, Washington, 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. 10
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 Northwest, LLC, 363 NLRB No. 72 (2015)
(Board finds Rhino is an employer engaged in commerce and the Union is a labor organization).
II. FACTS15
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 Rhino’s Fife, Washington facility. Rhino was started by Jeff Giek20
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 25
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 30
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 working full time. 4 (Tr. 54–60, 74, 160–61, 460–69, 480; GC.
1(s), 1(u); 2)
35
Although each facility is its own separate LLC, all are overseen by the Giek brothers
through an umbrella company called Rhino Staging; the Giek brothers are members of each of

1 Unless otherwise noted, witness demeanor was the primary consideration 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.
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.
JD(SF)–46–17
3
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 offices, 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 5
Biggers, who worked out of Respondent’s Fife, Washington office. Biggers left Rhino in
October 2015, and was replaced by Dan Scolnik, who was a supervisor 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 November 2015 Respondent hired Travis Medley to oversee the rigging manager. 10
(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 15
August 2014 a private, invitation only, Facebook page had been created to give Rhino’s riggers a
forum to discuss relevant issues, ask questions, and get feedback from a pro–union perspective.
The Facebook page was named “Northwest Riggers;” its cover photo was a caricature of a
rhinoceros 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 administrators20
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
employees; 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 25
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 30
between 30 to 60 riggers, and about 500 stagehands. A pre–election hearing was held on June 4
and 5 to resolve the issue. (Tr. 74–75, 230–31, 473) (GC. 2, 36)
C. Respondent’s pre–election campaign and the NLRB hearing
35
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 40
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)

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.
JD(SF)–46–17
4
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 5
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 meetings 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)10
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 evening,
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) 15
On June 4, Venegas again emailed Giek, stating that the correspondence was “100%
confidential.” In the email, Venegas told Giek that, after leaving their Tuesday evening meeting
in Tacoma, he went directly to a Union question and answer session where Local 15 “doted”
over “low experience” Rhino riggers; Venegas specifically noted that Rhine employee Travis 20
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 Union’s vote estimate,
and stated in the email that the “yes” votes outnumbered the “no” votes by a slight margin. (U. 25
2)
In the email, Venegas further told Giek that Klemisch, Travis Rzeplinski, and two other
employees were primarily responsible for “all the footwork” and organizing communications
between the Union and Rhino’s employees. He also said that IATSE was planning to waive 30
membership fees, dues, and would offer riggers “journeyman” status. Moreover, the Union was
deciding who would represent employees during negotiations; 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 Facebook and was 35
planning to “reach out” to individuals over the weekend. (U. 2)
2. The NLRB election hearing and decision
The NLRB pre–election hearing to determine the appropriate unit occurred on June 4 and 40
5. While Respondent and the Union contested the scope of the unit, the parties agreed to Rhino’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) 45

6 From the context of Venegas’ June 4 email to Giek, it is clear the pair met on Tuesday, June 2.
JD(SF)–46–17
5
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 5
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
Precision Rigging, which employed about 30 employees over the past year, including Klemisch. 10
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, Precision Rigging competes against
Rhino for shows on a small scale, but not on a large scale, as Rhino is more specialized, and 15
offers a more complete package – including stagehands. (GC. 36 at 293–96)
On June 18, the Regional Director issued his decision finding that the Union’s
petitioned–for unit of riggers was appropriate, 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 20
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 25
a. Mandatory employee meetings the week of June 8
Respondent’s electioneering campaign was in full swing after the NLRB election hearing.
During the week of June 8, Giek held a series of meetings in Seattle and Portland for Rhino 30
employees in all job classification.8 The meetings were mandatory, and employees were paid for
their attendance. Workers received a call from Rhino’s scheduling office, told of the mandatory
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 35
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. 17)
40
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
meeting, Respondent also passed out a list of questions and answers regarding the Union. Also,

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 employees for attending one of the 15 meetings he held in Seattle and Portland. (GC. 10)
JD(SF)–46–17
6
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)5
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 pre–election 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 10
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 decision on which employees
would vote, but noted that regardless of the outcome Local 15 was not going away, and would 15
likely try to contact employees in the future for support. Giek said he 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, as20
it needed dues money from workers; he estimated that the average 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 four hour call minimum; Giek said he
knew of some union contracts that only require a two hour call minimum. (R. 23)25
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 30
illegal for a company to grant wages [sic] increases 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 election takes a long time to
negotiate because every word of every sentence of every paragraph has to be
negotiated. I’m aware of some negotiations in our industry taking years to 35
negotiate. 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 provided the highest quality 40
service at reasonable costs. (R. 23)
Giek next said that only a fraction of riggers in the Northwest 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 45
he trying to organize Rhino when his company is non–union.” Giek testified that, in the meeting
JD(SF)–46–17
7
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 5
company, 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 employees the Union gives
preference to senior members, and calls–out workers based upon their union seniority. Thus, 10
even if IATSE promised to give Rhino employees preference based upon their work for Rhino or
other production companies, “does it really make sense for you to wait in line for a job that you
already have?” After further questioning the Union’s seniority 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, 15
[h]ere in the Northwest, Rhino has been very successful in winning and keeping
contracts with several venues and production companies like Live Nation. And
it’s no secret that some of our clients want nothing to do with unions – especially
a union like IATSE. They do not want us bringing a union into their venue or 20
their shows. So you have to ask yourself why take the risk of alienating our best
clients in the Northwest by bringing IATSE in?
He asked employees why they would abandon a good job with Rhino to work out of the IATSE
hiring hall, decreasing their chances of working by being put on the bottom of the Union call out 25
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 30
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. 35
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 40
eligible 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. However,
he reminded workers they had the right to not speak to union organizers. (R. 23)

9 Klemisch testified at trial that Precision Rigging is a union signatory company.
JD(SF)–46–17
8
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 employees “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 5
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 received at the meetings contained a
list of 20 questions, with bullet–point answers from Rhino, and room for the Union to write–in 10
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, assessments, payments to political action
committees, strikes, the possibility that wages or benefits could decrease during negotiations, and
the likely inability to get promotions based upon skill and ability. (GC. 31)15
Along with these various topics, three particular questions/answers stand out. In
Question 12, Rhino asks:
Can you guarantee me job security? 20
 Again, the union cannot guarantee you nothing. While I can’t
predict the future, many companies have lost jobs or shut down
completely after their employees unionized in the past.
 In fact, the Local’s membership has recently decreased by 15%.
Nationally, only 6.7% of all employees in the private workforce 25
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.
30
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, 35
the union’s supporters testified under oath that they would not even
help push boxes because they are riggers. Is that the kind of work
environment that you want to this to be?
Finally, question 18 reads as follows:40
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 45
company should be able to represent a competing company’s
JD(SF)–46–17
9
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
5
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, and the company does have a union 10
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 compensation for the year. (Tr. 15
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 20
by Rzeplinski. Giek noted that, during negotiations everything employees currently receive 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 Rhino locations. 25
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.30
Giek also wrote that, at the NLRB hearing, three riggers testified “under oath” that they do not
work as a team with stagehands, 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 35
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 election40
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 45
JD(SF)–46–17
10
he hoped employees heard his message that he firmly 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 5
“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 employment 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 competition for available union jobs. The flier 10
ends with the statement “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 15
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)
20
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 unknown.” He ends the email by 25
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 30
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 comments made by other employees. (Tr. 490–92; GC. 33, 34) 35
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. 40
Someone named Jeremy Andrews referenced the Rhino “IATSE’s Most Wanted” flier that had
been emailed to employees, 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 national union. Later
in the comments, Andrews said that the motivation to unionize came when the “rigging team” 45
realized their attempts “at equal exchange” were not being met, or even acknowledged. In reply,
JD(SF)–46–17
11
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 5
she had to ask and fight for any raises she had received. Gonzalez further 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” outweigh the “pros” and “we need support.”
Gonzalez ended her message by asking people to private message her if they want to talk about 10
her experiences.
b. June 27, 2015 email from Smith (GC. 34)
On June 27 Smith forwarded another email to Giek, with further Facebook comments, 15
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 exposed 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 20
welcome,” and offers to discuss them on Facebook 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 25
to do things he was uncomfortable with. Rzeplinski further 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 without action and a whimper. No one ran to find lawyers . . . [and] no overwhelming
push from a ‘higher corrupt manager.’” Instead, a “cohesive group asking for more recognition 30
and more nationally recognized standards of compensation for the dangerous 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.
35
Drda responded directly to Rzeplinski, asking for information 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
implemented a “stage hand 101” course, and that in six months he and Scolnik had trained more 40
employees than compared to 2014.
c. June 28, 2015 email from Smith (GC. 34)
On June 28, Smith again forwarded an email containing Facebook comments to Giek, 45
saying “[a]ttached are a few more comments.” This email starts with a comment from
JD(SF)–46–17
12
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 5
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.” 10
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 15
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 20
sort,” but has also been present when Rhino’s “leads point this out and we maneuver people to
safer environments.” Scolnik ends his comment by asking “[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 companies?” 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 25
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 30
deaths.” Drda said that he researched “OSHA to see who had paid more in fines,” and that “[w]e
are national entities and both adopted/learned from tragedy.” 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 35
“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.
40
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 posted “this Facebook crap has got

10 Facebook allows users to “tag” people in posts. When an individual 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)
JD(SF)–46–17
13
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. Alexander 5
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)
10
Smith followed up with an email to Giek on June 29, with additional Facebook
comments, saying “[t]he last of the comments.” 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 15
night,” saying that “we are exposed 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 20
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 organizing rep named Radar Bateman. Radar makes 119k a 25
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 30
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
outcome 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 union to add and subtract contract language. Your demands could 35
be overlooked as 51% of fellow riggers pass the contract.
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 representatives who are not active Rhino employees. Actually they have 40
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.
45
JD(SF)–46–17
14
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
representation. Rhino Northwest, LLC, 363 NLRB No. 72 (2015). (Tr. 74; GC. 1(u), 36)5
On August 3, the Union was certified as the exclusive collective 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 10
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,
employed by the Employer out of its Fife, Washington, facility, excluding all
other employees, guards and supervisors as defined in the National Labor 15
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 refusing to recognize and bargain with the Union, 20
Rhino had violated Section 8(a)(1) and (5) of the Act. Id. Respondent petitioned 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 “legitimate basis plainly exists for permitting riggers to form
their own unit,” as the distinction between riggers and Rhino’s other employees “are significant.” 25
Rhino Northwest, LLC v. NLRB, 867 F.3d 95, 103 (DC. Cir. 2007)
After Local 15’s certification, Rhino shook up the management 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 Biggers was replaced as director of 30
operations by Scolnik. In November 2015, Rhino hired Travis Medley to serve as the director 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 operations. 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)35
E. Respondent’s computer system and its “deactivation” policy
Rhino’s website contains an employee online portal, whereby employees can log into the
company’s computer system, check their work schedule, and review upcoming shows. The 40
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)
JD(SF)–46–17
15
To fill jobs on upcoming shows, Rhino’s staff telephones active 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)
5
In December 2013, Respondent added a section to its employee handbook which stated
that employees would “automatically 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 10
name,] you are no longer an active employee. Please contact the office for more information.”
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 because 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, 15
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. 20
417; R. 17) This report shows that Respondent was consistently deactivating employees 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 Respondent 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 25
being deactivated for not having worked for more than three months, and when a deactivation
did occur, it was because the employee in question had not worked for multiple months or even
years – not just 90 days. (Tr. 411–17; R. 17)
For example, in mid–June 2014, six months after the 90 day deactivation rule was 30
implemented, two employees were deactivated because they had not worked since 2012, and one
employee 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 deactivated because they had not accepted work in six months, and two 35
others for not having worked since their hire date – nearly five months earlier; another was
deactivated for not having worked in a year. On July 3, 2015, an employee was deactivated for
not having worked since he was hired five months earlier. On August 11, 2015, an employee
was deactivated for not having accepted work for a year, and on September 16, 2015 an
employee was deactivated for not having worked in two years. In its post–hearing brief 40
Respondent admits that, before November 2015, while deactivations would occur, enforcement

11 Sometimes employees would also be contacted through text message, 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)
JD(SF)–46–17
16
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 5
work, just because they had not accepted an assignment in the preceding 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
request, with little cause for concern about previous deactivations. Thus employees were 10
reactivated even though they had multiple serious infractions in the past causing their initial
deactivation. For example, Rhino reactivated numerous employees 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 15
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, 402–04; 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 20
deactivating employees from the computer system, including deactivating 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 25
scheduled to work an upcoming show, and she would deactivate the employee and make a
notation 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 30
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 the first six months of 2015,
a total of 246 employees were deactivated for various reasons. Of these, about 16 (6.5%) were 35
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
specifically 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) 40

13 Tyler Anderson testified that he knew about the 90 day deactivation 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. 402–03)
JD(SF)–46–17
17
From November 1, 2015 through April 30, 2016, the first six months after Amber
Peterson started enforcing the 90 day deactivation 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 5
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 Rzeplinski10
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 15
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 20
already booked by other employers. (Tr. 208, 225–26, 234)
At some point in mid–to late 2015, Rhino held a monthly supervisors 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 25
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 curious why Alexander was scheduling him. At this point Giek abruptly ended 30
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)
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 records 35
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)
40
In January 2016 Rzeplinski was in San Diego so he contacted Giek and asked to meet for
lunch; they met at a Japanese restaurant. Rzeplinski asked Giek for an update about the union,
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

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)
JD(SF)–46–17
18
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 5
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 employee newsletter. The newsletter noted that that Tyler
Alexander had received award “points” for exceptional work. Rzeplinski became upset when he 10
saw this, as he and Alexander 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 includes a picture of the 15
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 demands.
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 20
behind an action” against the company. Instead of signing 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 25
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
congratulated him for a well written letter. (Tr. 256–62; GC. 21, 22, 28) 30
After his April 2016 job for Rhino at the Washington State convention center, Rzeplinski
tried to secure more work assignments from Respondent. He logged into Rhino’s employee
portal, and printed out the calendar of upcoming events which displayed multiple shows for the
months of June through September that would require riggers. Previously, Rzeplinski would go 35
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) 40
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)
45
JD(SF)–46–17
19
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)
5
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 company
and saw Drda. He told Drda that he was in town, available, 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 company. He saw Dan Scolnik at the theater 10
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 convention center, Rhino never contacted Rzeplinski to inquire about his availability or 15
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 20
rigger after about a year. She performed 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 pre–election hearing in June 2015. At the hearing, when
asked by Respondent’s counsel whether it was important for Rhino’s stagehands and riggers to 25
work as a team to assemble a show, Gonzalez testified 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 30
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 employees,
worked for a company named Pyramid, and not for Rhino. (Tr. 178–182, 185; GC. 15)
35
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, 40
saying that he had passed her information on to the schedulers and that Gonzalez may need to
contact Peterson to verify her eligibility. (Tr. 176, 200–02; GC. 14, 16)

16 The Scorpions are a 1980’s rock band. (Tr. 178)
JD(SF)–46–17
20
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 wanted to work, and told 5
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, 201–02)
10
Peterson admitted having a conversation with Gonzalez in December about her
reactivation. Peterson claimed that, Gonzalez asked to come back to work for Rhino, and said
she wanted to work on an upcoming job that was assigned to her brother. 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) 15
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 20
people on her call list that would be more eligible to work than Gonzalez, with better attitudes.
(Tr. 427–28)
In the five 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 25
Gonzalez that she would not be assigned work because of performance issues. (Tr. 506–08)
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
“Rhino riggers,” who were available and interested in working a Rhino show scheduled later that 30
month. The list included Gonzalez 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)
35
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 40
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

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)
JD(SF)–46–17
21
year. When he returned from China, Klemisch called a Rhino supervisor 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 Klemisch tried to log into the employee portal, but he had been deactivated.
Rhino’s records show Klemisch was deactivated on November 3 for violating the conflict of 5
interest policy. However, 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
10
During the organizing drive Klemisch collected authorization 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 pre–election NLRB hearing on June 4, testifying,
among other things, about how riggers generally work separately from stagehands. (Tr. 66, 368–15
372; GC. 36)
b. Precision Rigging
In May 2012, Klemisch and his wife formed a limited liability company named Precision 20
Rigging LLC. Both were managers of the LLC, while Klemisch was the registered agent. In
September 2015 Precision Entertainment, Inc., was incorporated 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 formal change in the corporate structure, and the “transfer” of ownership, 25
the evidence shows that Klemisch continued running the operations of Precision Rigging while
his wife provided support in the areas of accounting, finance, and payroll. (Tr. 105–113, 131; R.
3, ALJ 2)
Precision Rigging rents rigging equipment, provides production rigging services, 30
production riggers, and general rigging 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) 35
At various times while he was working for Precision Rigging, Klemisch has either
interacted, or worked directly with, Rhino employees – including supervisors. On some shows
Klemisch provided production rigging through Precision Rigging, but oversaw a rigging crew
provided by Respondent, with Rhino supervisors. On other occasions Precision Rigging 40
provided the event rigging labor, while the stagehands were provided by Rhino. (Tr. 88–90; Tr.
139–44)

18 Production rigging services and production riggers provide advance 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)
JD(SF)–46–17
22
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 5
motors.” He emailed Biggers the rigging guidelines and draft site plane, along with a list of
equipment needed for the show, including trusses. Biggers replied on January 27, via email,
noting 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 company for motors. Finally, she 10
recommended Klemisch as a production 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 replied with the information requested.
On February 6, Biggers emailed Latimer saying that Klemisch “is the best production rigger if 15
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 Biggers “at Rhino” had referred
him for a show in late March. Latimer said that he wanted an ETCP certified head rigger for the 20
show, explained what else he needed, including equipment, and asked whether Klemisch was
interested and available. He 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 equipment.
Precision Rigging was hired for the job, and its invoices show that Endless Entertainment was 25
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
seventeen month period from June 2014 through October 2015 Precision Rigging billed 30
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) 35

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. 25)
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 contrary, providing rigging labor is a significant part
of Precision Rigging’s business.
JD(SF)–46–17
23
c. The termination of Klemisch’s employment
When Klemisch testified at the June 4 NLRB pre–election hearing, Giek learned that
Klemisch operated Precision Rigging, which competed against Rhino. Therefore, at some point
after the hearing date, Giek told Michelle Smith that Klemisch could no longer work for Rhino. 5
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, employee, or otherwise for any business . . . with which [Rhino] has a 10
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. 384–84, 392–94, 466, 480–81))
According to Giek, this policy is designed to prohibit a competitor from potentially 15
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 Rigging. Hourly employees, on the other hand, are simply staffing events, and not 20
involved in securing contracts for the companies that employed them. (Tr. 467–71)
After Klemisch testified at the NLRB hearing, he was scheduled to work two concerts for
Rhino, one on July 24 and another on July 31. However, for both shows Klemisch received
telephone calls from Rhino saying that he was no longer needed. Klemisch then turned down 25
work offers from Rhino for events scheduled for August 9, and August 10; the last event
Klemisch actually worked for Rhino was on May 27. Afterwards, 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)
30
II. ANALYSIS
A. Alleged discrimination against Rzeplinski, Gonzalez, and Klemisch
1. Legal Standard35
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 framework, the 40
General Counsel must prove by a preponderance of the evidence that an employee’s union or
other protected activity was a motivating factor in the employer’s actions. The elements required

23 The Board applies Wright Line to alleged 8(a)(1), (3), and (4) violations where the employer’s motivation is at
issue regarding an adverse 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 No. 10, slip op. at 14
(2014) (applying Wight Line to alleged 8(a)(1) discrimination).
JD(SF)–46–17
24
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 5
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
justification becomes an affirmative defense). Where an employer’s explanation is “pretextual,
that determination constitutes a finding that the reasons advanced by the employer either did not 10
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).
15
2. Alleged discrimination against Rzeplinski and Gonzalez
a. Union and protected activity
The evidence clearly shows that both Rzeplinski and Gonzalez engaged in union 20
activities. Rzeplinski attended union meetings, and in his June 9 email he directly challenged
Giek’s anti–union statements made at the mandatory employee meeting. 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 Rhino was working on a
contract with the Union during his January 2016 lunch with Giek in San Diego. Finally, 25
Rzeplinski 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 pre–election hearing. Gonzalez’ testimony is
also protected under Section 8(a)(4) of the Act.2430
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, Gonzalez complained that she had, in fact,
been exposed to unsafe conditions, had been asked to “take one for the team” many times, and 35
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 40
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 recognition and
pay for “the dangerous work we do.” On this theme, Rzeplinski then commented about having

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).
JD(SF)–46–17
25
to pay for his own gas while driving to a work assignment six hours away, and described 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 5
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 No. 31 (2014) (employees using social media, including Facebook, to discuss their
working conditions constitutes concerted activities for the purposes of mutual aid and 10
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 concerted activity
protected by the Act).
b. Knowledge15
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 election with members of IATSE’s
leadership team. Venegas also reported to Giek that Rzeplinski was one of the people primarily 20
responsible for organizing communications between the 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 pro–union. 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 25
both employees. Finally, multiple members of Rhino’s management and supervisory team were
present when Gonzalez testified on behalf of the IATSE at the NLRB pre–election hearing.
Respondent clearly knew that both Rzeplinski and Gonzalez were engaged in both union and
protected concerted activities
30
c. Animus
The evidence is replete with animus, both general and specific. During the mandatory
pre–election 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 35
our clients want nothing to do with unions – 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 Rhino’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 40
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 comment).25 Here, Giek did not present to employees any objective factual

25 See also, Crown Cork & Seal Company, 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
JD(SF)–46–17
26
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 unionized. 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 5
statements, 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
negotiations everything is frozen, and that it is illegal for the company to grant a wage increase 10
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 15
types of statements, made in similar circumstances, violate Section 8(a)(1) of the Act. Marathon
Metallic Building Co., 224 NLRB 121, 122–123 (1976).27 Here, I believe there is sufficient
evidence in the record to support a finding that these statements also show animus.
Also, in the list of questions and answers that Rhino disseminated to employees at the 20
mandatory meetings, Rhino states that, while it cannot “predict the future, many companies have
lost jobs or shut down completely after their employees unionized 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 25
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 pre–election hearing. In his email
to Rzeplinski he cited this testimony saying that three riggers testified under oath they do not 30
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 included Gonzalez and Klemisch,
represent the Union’s values and that “Rhino’s dedicated employees have no need for the

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 control). 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 convey 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 violation of § 8(a)(1)).
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 employer was
committing unfair labor practices. Nissan Motor Corp. in the U.S.A., 263 NLRB 635, 640–41 (1980).
JD(SF)–46–17
27
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 5
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
would schedule a possible pro–union rigger who was days away from being deactivated also 10
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 15
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 protected activity. I find
that Respondent has not done so.
Respondent argues that there could be no violation because Peterson deactivated 20
Gonzalez and Rzeplinski, thereby removing 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 explain why it refused to reactivate Gonzalez and Rzeplinski,
thereby continuing to deny them access to Respondent’s computer system, and in turn ensuring
they would not be called to work future Rhino events.25
After learning she was deactivated, Gonzalez spoke with Peterson and specifically asked
for work. Peterson admits speaking 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 30
knew Gonzalez wanted to be scheduled for work. Notwithstanding, 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 caused35
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 40
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 employees, 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 45
computer system and ensuring that she would not be called or scheduled for future events. Belle
JD(SF)–46–17
28
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 5
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 with Rhino, but again to no avail.
Similarly, after he had been deactivated, Rzeplinski asked Scolnik for work, but was given the
brush off. 10
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 Rzeplinski. There is no other explanation for Smith’s questioning Alexander 15
as to why he would schedule Rzeplinski, who appeared to be pro–union, when he was only days
away from being deactivated. 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 20
Rzeplinski, and subsequently refusing to reactivate him, because Rzeplinski engaged in protected
concerted activities, and because of his union activities.
3. Matthew Klemisch’s discharge
25
The evidence also shows that the General Counsel has presented 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 pre–election hearing. It cannot be questioned
that Respondent knew about Klemisch’s union activities, as he was highlighted by Giek in his 30
speech during the mandatory employee 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 protected activities.
35
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
evidence shows that Giek made the ultimate decision to terminate Klemisch’s employment, and
he made this decision after learning Klemisch owned and operated Precision Rigging, which
competed directly against Rhino.28 Over one–third of Precision Rigging’s revenues came 40
directly from providing rigging labor – the same work provided by Rhino. This is clearly
distinguishable from the industry practice of riggers working for multiple companies throughout

28 I find that it is of no substance that other Rhino employees or managers may have known about Klemisch’s
involvement with Precision Rigging before the union organizing drive. The record shows that Giek made the
ultimate decision to fire Klemisch, and there is no evidence that, before Klemisch’s NLRB testimony, Giek knew
anything about Klemisch’s involvement with Precision Rigging.
JD(SF)–46–17
29
the year. Here, Precision Rigging 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 employee handbook, which Klemisch acknowledged receiving. 5
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, 910–11 (1987) (respondent’s claim that employee
was rejected for employment because he operated a “shade tree” garage at his home was pretext,
in part, because the evidence showed other employees who ran “shade tree” garages were hired 10
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
termination be dismissed.
B. Alleged failure to bargain over deactivating/denying employee access to Respondent’s 15
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, 20
371–73 (6th Cir. 1991) (collecting cases and finding a violation where, after the union election,
the employer implemented a more stringent enforcement of work rules but failed to bargain with
the union, even though the rules in question had been in effect since the company commenced
operations); Celotex Corp., 259 NLRB 1186, 1193–94 (1982) (employer violated Section 8(a)(5)
by unilaterally instituting and pursuing a policy of stricter enforcement of its employee work 25
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 attendance and disciplinary reports
to drivers) adopted by Board after remand 356 NLRB 168 (2010), enfd. 479 Fed.Appx. 743 (9th
Cir. 2012).
30
The evidence shows that, even though Respondent’s 90 deactivation day policy was
added into the employee handbook in December 2013, the enforcement of the rule was lax and
sporadic. For example, for the first six 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 enforcing Respondent’s 90 day 35
deactivation rule, for the six 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 number of employees deactivated for not having worked in a 90 day
period increased almost 900 percent. Under these circumstances, Respondent had an obligation
to bargain with the union before more strictly enforcing its 90 day deactivation policy.30 Celotex 40

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 General Counsel has not attacked the Respondent’s
motives for more strictly enforcing its preexisting work rule.
JD(SF)–46–17
30
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 union).
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 5
of discharge for failing to meet efficiency standards was not a unilateral change. In so doing, the
Board noted that the employer’s productivity standards predated the union’s certification 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 10
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 15
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),
adopting 352 NLRB 211 (2008).
CONCLUSIONS OF LAW20
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 25
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:30
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, 35
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 40
concerted activities, and because he engaged in union activities, Respondent has independently
violated 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 45
JD(SF)–46–17
31
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 opportunity to bargain over the
decision to institute a policy of more stringent enforcement of its 90 day deactivation rule,5
Respondent has violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 10
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 15
by discriminating against Heidi Gonzalez, I shall order Respondent to reactivate them and make
them whole for any loss of earnings and other benefits suffered as a result of the discrimination
against them.
Having found that Respondent failed to bargain with the Union about its decision to 20
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 deactivation rule, and make bargaining unit employees whole for any
loss of earnings they may have suffered because of Respondent’s unilateral implementation of
the policy more strictly enforcing the 90 day deactivation rule. 25
Respondent shall compensate Rzeplinski, Gonzalez, and any other Unit employee due
backpay, for any adverse tax consequences 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 30
employment expenses regardless of whether those expenses exceed interim earnings. King
Soopers, Inc., 364 NLRB No. 93 (2016).
Backpay, search–for–work, and interim employment expenses, shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed 35
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 Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
Additionally, Respondent shall file with the Regional Director for Region 19, within 21 40
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 45
them and the Regional Director of Region 19, in writing, that this has been done and that the
JD(SF)–46–17
32
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
recommended315
ORDER
Respondent Rhino Northwest LLC, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:10
(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.
15
(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, restraining, or coercing 20
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) Rescind the more stringent enforcement of its 90 day deactivation policy, 25
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 30
earnings or other benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy 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 35
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 40
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,

31 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD(SF)–46–17
33
(e) 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 the 90 day deactivation policy, without prejudice
to their seniority or other rights and privileges previously enjoyed, and 5
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 deactivated pursuant to the more stringent 10
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.
(g) Preserve and, within 14 days of a request, or such additional time as the 15
Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel records and reports,
and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under 20
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 25
being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, posting on an 30
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 altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed any of the facilities 35
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.
40
(i) Within 21 days after service by the Region, file with the Regional Director
for Region 19 a sworn certification of a responsible official on a form

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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–46–17
34
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
5
John T. Giannopoulos
Administrative Law Judge10
ow^P,PJL—
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 a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT 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, 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,
employed out of our Fife, Washington, facility, excluding all other employees,
guards and supervisors as defined 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 enforcing 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 activities 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, restrain, 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 consequences, 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 employee
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
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret–ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
915 Second Avenue, Room 2948; Seattle, WA 98174–1078
(206) 220–6300; Hours: 8:15 a.m. to 4:45 p.m.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.