Stage Employees IATSE Local 646 (Parker Playhouse)

National Labor Relations Board - Board Decisions

Jun 27, 1984

270 N.L.R.B. 1425 (N.L.R.B. 1984)

STAGE EMPLOYEES IATSE LOCAL 646 (PARKER PLAYHOUSE)
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO, Local
646 (Parker Playhouse) and Beverly Safier.
Case 12-CB-2509
27 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 December 1983 Administrative Law Judge
John M. Dyer issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The judge found, and we agree, that the Re-
spondent violated Section 8(b)(1)(A) and (2) of the
Act by refusing to refer Beverly Safier for employ-
ment from its hiring hall after February 1982 for
arbitrary and invidious reasons, unrelated to any
objective standards for referral.
The judge directed the Respondent to cease and
desist from its refusal to refer Safier and further di-
rected that the Respondent establish a written re-
ferral list and written standards by which its refer-
ral system is to operate. Contrary to the judge, we
do not find appropriate that portion of his pro-
posed remedy which would require that the Re-
spondent create written referral lists and standards
for the operation of its hiring hall. While the Board
has stated that an exclusive hiring hall must be op-
erated on the basis of objective criteria and stand-
ards, it is clear that the absence of written stand-
ards is not itself violative of the Act but is one
factor to be considered in determining whether a
hiring hall has been operated objectively. Laborers
Local 394 (Building Contractors Assn. of New
Jersey), 247 NLRB 97 fn. 2 (1980). Under the cir-
cumstances, we shall allow the Respondent an op-
portunity to fashion criteria and standards which
' In sec. Il,B of his decision, the judge, in addressing the Respondent's
contention that Safier was not referred for nonpayment of assessments,
stated, "There is no proof that Mrs. Safier was ever informed she owed
the Respondent any fees .... " To the extent the judge was discussing
record evidence we note that the Respondent's bookkeeper and secretary
testified that the Union notified Safier on several occasions of the assess-
ments owed by her. Nevertheless, we agree with the judge's finding that
the Respondent's refusal to refer Safier was not caused by her nonpay-
ment of fees, and we adopt the remainder of the judge's analysis on this
point.
270 NLRB No. 204
conform to the requirements of the Act and shall
modify the remedy and recommended Order to re-
quire that the Respondent establish objective crite-
ria and standards for the referral of employees
without requiring that such criteria and standards
be in writing. 2
In addition, as part of his proposed remedy, the
judge recommended that the Respondent be re-
quired to make Safier whole by paying an amount
of back wages equal to the sum of referred work
performed by "extra" employees from 11 March
1982 until the Respodent reinstates Safier to a le-
gitimate referral list, divided by the number of
"extra" employees who worked during such inter-
im period. The General Counsel filed exceptions to
the judge's proposed backpay formula, and we find
merit in these exceptions. Thus, while the record
establishes that the Respondent's president classifies
employees as "regulars" or "extras" depending on
whether they rely exclusively on the operation of
the hiring hall for their livelihood, there is no evi-
dence that such classifications are used in determin-
ing which employees will be referred to available
work. Accordingly, we do not believe that the pro-
posed formula can reliably be used to determine
the back wages owed Safier, and we shall modify
the recommended Order to provide for a determi-
nation of Safier's lost wages in the compliance
stage of this proceeding.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, International Alliance of Theatrical
Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-
CIO, Local 646, Miami, Florida, its officers, agents,
and representatives, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1.
"1. Cease and desist from
"(a) Refusing to refer Beverly Safier for employ-
ment.
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the following for paragraph 2(a).
' Contrary to his colleagues, Member Hunter would adopt this portion
of the judge's proposed remedy. In Member Hunter's view, a require-
ment that the Respondent establish written criteria and standards for re-
ferral is a reasonable exercise of the Board's remedial authority, where, as
here, the absence of such criteria and standards is a factor supporting the
Board's finding of a violation.
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(a) Establish and maintain objective criteria and
standards for the referral of employees from its
hiring hall."
3. Substitute the following for paragraph 2(b).
"(b) Make Beverly Safier whole for the loss of
employment suffered by her as a result of its failure
to refer her for employment in a manner to be de-
termined in the compliance stage of this proceed-
ing."
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL establish and maintain, on a nondis-
criminatory basis, objective standards and criteria
by which the referral system is to operate.
WE WILL make Beverly Safier whole for the loss
of employment she suffered by our refusal to refer
her for employment.
INTERNATIONAL ALLIANCE OF THE-
ATRICAL STAGE EMPLOYEES AND
MOVING PICTURE MACHINE OPERA-
TORS OF THE UNITED STATES AND
CANADA, AFL-CIO, LOCAL 646
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge. Beverly
Safier filed a charge on April 8, 1983, against Interna-
tional Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States
and Canada, AFL-CIO, Local 646 (Parker Playhouse),
herein variously called Respondent, Local 646, or
IATSE, on which the Regional Director for Region 12
issued a complaint on May 20, 1983, alleging that Re-
spondent violated Section 8(b)(l)(A) and (2) of the Act.
Respondent's timely answer, as later amended, admitted
the commerce allegations, the status of the Union, and
that Paul Robinson was Local 646's president and acted
as its business agent. It was also admitted that Respond-
ent had contracts containing exclusive referral clauses
with several employers including Parker Playhouse and
Sunrise Theatre. Respondent denied that it had failed to
register or refer Safier for employment for irrelevant or
invidious reasons and stated it debarred her from its re-
ferral service because she was guilty of serious job mis-
conduct after which she failed to pay her assessments.
The parties filed briefs in early November 1983 which
were considered.
On the entire record in this case, including the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Maccabee Investments, Inc. is a Florida corporation
engaged in the business of operating theatres, and has
gross revenues in excess of $500,000 and purchases prod-
ucts valued in excess of $5000, directly from firms out-
side the State of Florida. Respondent admits and I find
that Maccabee Investments, Inc., with whom Respond-
ent has a contract with an exclusive referral clause, is an
employer within the meaning of the Act. Respondent
admits and I find that it is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Facts
Local 646, located in Broward County, Florida, is a
mixed local, which means it contains projectionists,
stagehands, sound and lighting technicians, and wardrobe
personnel. President Robinson testified there were a total
of 12-14 wardrobe persons who were referred by the
Union to wardrobe and dresser jobs and all but 3 or 4
were union members. Some of these persons depend on
this work for their livelihood and were considered regu-
lars. Others such as Safier, who with her family had a
costume business as her principal support, were consid-
ered as extras and three or four of these extras were not
union members. All persons referred through the union
hall agree in writing to pay the Union 3 percent of their
gross pay as a referral fee. Reports of the earnings of all
referred employees are made to the Union, and its finan-
cial secretary records such information on a form for
each employee and calculates the assessment amounts
owed.
Robinson testified that the referral system had no writ-
ten rules and that there was no written referral list. Some
of the employers had permanent staff people, and when
employers requested more people he would select who
to refer on the basis of trying to rotate the work and
equalize earnings. If persons were requested by name, he
would refer them if they were available.
Robinson testified that getting the four employers in
Broward County to agree to contracts with the referral
clauses had been extremely difficult and it had been man-
aged by convincing the employers that the Union would
supply competent people. For that reason Robinson said
he did not want to refer anyone who would not behave
properly on the job and where someone was accused of
misconduct he would suspend the individual until he had
a chance to investigate the situation and talk to the ac-
cused person.
There was testimony that some employees had been
suspended from the Union for nonpayment of their as-
1426
STAGE EMPLOYEES IATSE LOCAL 646 (PARKER PLAYHOUSE)
sessments and union dues. Robinson testified that if any
employee was 6 months in arrears in paying his assess-
ments he was automatically removed from the referral
list. He named several persons whom he said had been
suspended.
Respondent's Exhibit 2 is the Union's payment record
for Safier. It shows that she was first referred for work
on February 26, 1980, and from then until February 6,
1981, worked on five jobs and owed assessments for that
period of almost a year, totaling $71.09. On February 5,
1981, she paid $75 to the Union for her assessments.
Thereafter she worked on three jobs through December
1981 and at that time owed the Union assessments of
$48.22. Safier was referred to a job as a dresser for a
production of the King and I at the Sunrise Theatre on
January 17, 1982, and worked there through February
14, 1982. On January 29, 1982, she gave the secretary
and bookkeeper of the Union, Bonnie Landa, a money
order for $50 for her past due assessments.
According to Respondent's Exhibit 2, Safier owes the
Union assessments totaling $53.50 for that last employ-
ment and she denies it stating that she had made another
payment. There is no dispute that Safier owed assess-
ments for a year or so on two occasions and continued
to be referred to jobs by the union.
Respondent contended that nonpayment of her assess-
ments was one of the reasons for the Union's refusal to
refer Safier to jobs in its geographical area. For reasons
which will be stated later, I find that such is not true but
is in the nature of an afterthought to the central reason
for her debarment.
In his opening statement counsel for Respondent stated
Safier had been guilty of serious misconduct on the job
at two different employers in a year's time and it was for
this primary reason that Union President Robinson re-
moved Safier from the referral procedure about mid-Feb-
ruary 1982.
Respondent offered no competent testimony about any
misconduct of Safier at any location other than the Sun-
rise Theatre during the King and I production.
Safier testified that after her employment at the Sun-
rise Theatre she heard nothing from the Union concern-
ing her work there or about owing fees and had not been
called for any work. She testified that she called the
Union and spoke to either Robinson or Landa several
times a month between February and September and was
told that work was slow and nothing was available. In
September 1982 while speaking to Robinson she asked if
there was any reason she was not being referred and
Robinson replied that the wardrobe personnel did not
want to work with her. Robinson said he did not recall
talking to Safier over the phone but did not deny that
this conversation occurred. I find that the conversation
occurred as Safier testified, As may be noted, Robinson's
testimony was not consistent with independent facts on a
number of occasions.
She called Robinson some days later and asked for an
executive board meeting to straighten the matter out and
he said he would set it up. Robinson stated he had a
number of conversations with Mike Safier, a union
member, about setting up an executive board meeting for
Beverly Safier and said one was finally set around Janu-
ary 1983.
Robinson admitted that he never talked to Safier about
her alleged misconduct at the Sunrise Theatre, despite
his testimony that such was his procedure before barring
someone from work. He said he talked to six or seven
people who had worked at the Sunrise Theatre and at
that point decided to remove Safier from his work refer-
ral list until they could have a hearing on it. He did not
testify about trying to set up a hearing until being re-
quested to do so the following September. Robinson said
he told Mike Safier that his wife had been sewing in the
hall and caused a crowd to congregate and it had been
necessary to have the police clear the way. He also said
she had not been at her proper station.
Robinson conducted the February meeting. The ward-
robe personnel were there along with some members of
the executive board. Safier said she wanted to know why
she was not working and why the wardrobe personnel
did not want to work with her. One of the dressers, who
also owned a costume shop, said he heard she had made
a derogatory remark about his costumes. She denied
doing so. Safier said there was a lot of talk and remem-
bered only that one of the wardrobe persons said that
Safier would work at anything and Mary Soule, a perma-
nent employee at Sunrise Theatre, saying that Safier
never did her job. Safier said that Robinson stopped the
meeting saying they were not resolving any problems
and that the executive board would make the decision.
Robinson said that everyone had a chance to talk at
the hearing but did not testify concerning what was said.
None of the other respondent witnesses testified as to
what occurred at the union meeting leaving Safier's testi-
mony as the sole evidence of what occurred.
Robinson said the executive board voted to uphold the
removal of Beverly Safier, but did not testify about in-
forming her of the decision. Safier telephoned Robinson
in March and asked what the executive board had decid-
ed and was told that the decision would stand and that
the wardrobe people did not want to work with her. The
following month she filed the charge in this case.
B. Positions, Discussion, and Conclusions
The Union claims that a second reason for not refer-
ring Safier was that she owed fees to the Union and was
thus doubly barred from being referred.
Safier testified that she was never told by the Union
that she owed fees and has never received any written
bill and that in fact she has overpaid her fees.
Respondent's Exhibit 2 clearly establishes that there is
no 6 month fees delinquency debarment rule in effect.
While the exhibit would appear to show that Safier owes
Respondent some fees, she claims to have paid them.
Such an issue is capable of resolution between the parties
by their showing one another their records.
There is no proof that Safier was ever informed she
owed Respondent any fees and certainly there is no
proof that Respondent informed her it was not referring
her to work because of an alleged fee delinquency, par-
ticularly when she was told that the reason for debar-
ment was the objections of other dressers. This claim is
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an afterthought, of no weight and as a defense it is
hereby dismissed.
The question of whether Beverly Safier engaged in
misconduct at the Sunrise Theatre is the subject of con-
flicting testimony. There was no testimony to support
Robinson's claim that police were needed to clear the
passageways, the inference apparently being sought that
it was because of crowds congregating to watch Safier
sew or sketch. The testimony concerning passageways
appears much overblown. What could be misconduct,
being gone from a work station, or reading in a dressing
room, was not so heinous that it called for a written
warning. Safier explained that she had other duties
beyond those that Soule testified about and those duties
necessitated her being away from the chair. in the hall-
way.
Taken for its essence, it is clear that Soule, Landa, and
apparently a number of the other wardrobe personnel
did not like Beverly Safier and did not want to work
with her. The wishes of these persons prevailed on Rob-
inson, who in February 1982 decided not to refer Safier
for any more work but did not bother to tell her so.
This small Union acted like an exclusive private club
by blackballing someone they did not like and refusing to
work with her. Respondent made much of the fact that it
did not prevent Safier from working in another jurisdic-
tion when work was offered to her. Such action only
serves to further demonstrate the club-like attitude it
took in dealing with Beverly Safier.
The problem is that Respondent is not a private club,
but rather is a union which, because of its particular po-
sition and contracts, has certain responsibilities it chose
to ignore. Respondent had and has an exclusive hiring
agreement and because of this agreement has duties and
responsibilities in providing that service, and that means
using objective criteria or standards for referring em-
ployees, or for not referring employees.
In this case there are no written criteria or standards
for referral and not even a written referral list. The oper-
ation of the system depended, and apparently still de-
pends, on Robinson's decisions as to who to refer or not
refer. He stated what he considered in making referrals
and what he did in deciding to debar a person from re-
ferrals. In the case before us, Robinson did not follow his
own unwritten standards, but strung Safier along for 6 or
7 months saying there was no work until she asked why
and was told the others did not want to work with her.
Her requests, and apparently those of her husband, for
an executive board meeting to appeal this decision were
deferred for another 4 to 5 months until the February
1983 meeting.
The testimony concerning that meeting shows no ob-
jective standard being set or used in reaching a determi-
nation, but rather the meeting seems to have been a
family squabble with the verdict going to those who did
not like Safier and based only on the apparent fact that
they did not want to work with her for whatever undis-
closed personal reasons they had.
No objective criteria or standards of any sort have
been shown by Respondent to exist or to have been used
by it. Such an event is an abdication of the responsibil-
ities the Union has in running an exclusive hiring hall
and cannot be countenanced.
Accordingly, I find that Respondent violated Section
8(b)(1)(A) and (2) of the Act in its refusal to refer Bever-
ly Safier for employment after February 1982.
CONCLUSIONS OF LAW
1. Respondent Local 646 is a labor organization within
the meaning of the Act and Maccabee Investments, Inc.
is an employer engaged in commerce within the meaning
of the Act.
2. Respondent, by removing Beverly Safier from its re-
ferral list and refusing to refer her for employment for
irrelevant and invidious reasons, has violated its duty of
fair representation in running an exclusive hiring hall and
violated Section 8(b)(1)(A) and (2) of the Act.
REMEDY
Having found that Respondent committed unfair labor
practices, it is necessary to order it to cease such and to
take certain actions to remedy the violations and effectu-
ate the purposes of the Act.
Respondent must cease its refusal to refer Beverly
Safier for employment and make her whole for the loss
of employment it caused her. Respondent must also es-
tablish and place Safier on a written referral list and es-
tablish a referral system with stated objective standards
which will not discriminate against qualified persons
seeking work through the referral system. The referral
lists along with the standards by which the system is to
be run must be made available to members and appli-
cants.
Respondent hid from Safier the fact that it was not re-
ferring her for jobs until she persisted and got that
answer from Robinson in September, and then her re-
quest for an executive board meeting to appeal that deci-
sion was stalled until February 1982 and she did not
learn the decision until March. As a consequence, she
did not file the charge in this case until April 8, 1983,
seeking in the interim to have the Union solve the
matter. It was Respondent that delayed Safier in seeking
a resolution of the matter internally. Therefore, I recom-
mend that Respondent make Safier whole for any work
she lost as a result of Respondent's refusing to refer her
from March 1, 1982, on in the following manner: The
sum of all referred work performed by extra employees
from March 11, 1982, until Respondent reinstates Safier
to a legitimate referral list, divided by the number of
extra employees who worked during such interim period,
including Safier, would provide a proportionate share of
the work she should have received if Respondent had
operated a legitimate nondiscriminatory referral system.
Safier's income from her costume business shall not be
considered in mitigation of her loss in income, since the
wardrobe work was always as an extra to her main occu-
pation. The sums so found to be due Beverly Safier shall
be computed on a quarterly basis, see F. W. Woolworth
Co., 90 NLRB 289 (1950), from March 1, 1982, until she
is placed on a properly established and maintained refer-
ral list, plus interest as computed in Florida Steel Corp.,
231 NLRB 651 (1977).
1428
STAGE EMPLOYEES IATSE LOCAL 646 (PARKER PLAYHOUSE)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, International Alliance of Theatrical
Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada, AFL-CIO, Local
646, Miami, Florida, its officers, agents, and representa-
tives, shall
1. Cease and desist from refusing to refer Beverly
Safier for employment.
2. Take the following affirmative action.
(a) Establish and maintain on a nondiscriminatory
basis, a written referral list and written standards by
which the referral system is to operate and make such
list and standards available to members and applicants.
(b) Place Beverly Safier on the written referral list and
make her whole for the loss of employment she suffered
by the method set forth in the remedy section of this de-
cision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying its
' 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 pur-
poses.
records and reports of the earnings of wardrobe person-
nel and all other records necessary to the determination
of the amounts due Safier under the terms of this Order.
(d) Remove from its records any reference to the as-
serted misconduct of Safier and its action in debarring
her from its referral list.
(e) Post at its hall or facility copies of the attached
notice marked "Appendix." 2 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by Respondent's authorized represent-
ative, shall be posted by Respondent at its hall or facility
immediately on receipt, at places where notices are cus-
tomarily posted, and maintained for 60 consecutive days.
Respondent shall take reasonable steps to ensure the
posted notices are not altered, defaced, or covered by
any other material. Respondent shall also, at its expense,
mail copies of the signed notice to all its members and to
all persons who have used its referral system since
March 1, 1982.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps it has taken
to comply.
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1429