Stage Employees IATSE Local 720 (AVW Audio Visuals)

National Labor Relations Board - Board Decisions

Jun 2, 2004

341 N.L.R.B. 1267 (N.L.R.B. 2004)

STAGE EMPLOYEES IATSE LOCAL 720 (AVW AUDIO VISUALS) 1267
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada, Local 720, AFL–CIO
(AVW Audio Visuals, Inc.) and Steven Lucas.
Case 28–CB–4351
June 2, 2004
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On September 12, 2000, the National Labor Relations
Board issued its Decision and Order in the above-
captioned case.1 Subsequently, Charging Party Steven
Lucas filed a petition for review with the United States
Court of Appeals for the Ninth Circuit. On April 16,
2003, the court issued its decision.2 The court reversed
the Board’s decision and remanded the case so that the
Board may enter an appropriate remedial order in favor
of Lucas.
Lucas had been expelled from the Respondent Union’s
exclusive hiring hall system based on a charge of 15
years of misconduct. The Board found that the Union
had neither breached its duty of fair representation nor
engaged in an unfair labor practice encouraging union
membership when, 10 months after Lucas’ expulsion, it
refused to readmit Lucas to its hiring hall and refer him
to a job with AVW Audio Visuals, Inc., an employer
who had requested Lucas by name. The Board dismissed
the complaint alleging violations of Section 8(b)(1)(A)
and (2) of the Act.
The court reversed the Board’s dismissal of the com-
plaint. The court concluded that the Board had applied
an incorrect legal standard in dismissing to the extent it
relied on the more deferential “wide range of reasonable-
ness” standard articulated in Air Line Pilots Assn. v.
O’Neill, 499 U.S. 65, 81 (1991), in assessing whether the
union had breached its duty of fair representation in this
case. Id. at 935. In this respect, the court held that a
heightened duty of fair dealing applies to the union’s
operations of an exclusive hiring hall (citing Jacoby v.
NLRB, 233 F.3d 611 (D.C. Cir. 2000), and Plumbers
Local 32 v. NLRB, 50 F.3d 29 (D.C. Cir. 1995)). Id. The
court, however, found it unnecessary to remand this case
to the Board for the purpose of “reconsider[ing] its deci-
sion under the correct legal standard.” Id.
The court concluded that the Union’s liability for an
unfair labor practice turned on whether the Union’s re-
fusal to refer Lucas from the hiring hall was necessary to
the effective functioning of the hall. The court held that
substantial evidence did not support the Board’s deter-

1 332 NLRB 1 (2000).
2 Lucas v. NLRB, 333 F.3d 927 (9th Cir. 2003).
mination that “the Union’s refusal to readmit Lucas to its
exclusive hiring hall was necessary to promote the effi-
ciency and integrity of its hiring hall operations.” Id.
Consequently, the court found that the Union’s refusal to
readmit Lucas to its exclusive hiring hall violated Section
8(b)(1)(A) and (2) of the Act. The court remanded for
entry of a Board Order in favor of Lucas.
On September 30, 2003, the Board advised the parties
that it had accepted the court’s remand and would take
appropriate action consistent with the court’s remand.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the Ninth Circuit’s remand,
and has decided to accept the court’s decision as the law
of the case and to issue the appropriate remedial order
against the Union for the violations found. We adopt as
our remedy and Order the recommended remedy and
Order of the administrative law judge in this proceeding,
as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of
the United States and Canada, Local 720, AFL–CIO, Las
Vegas, Nevada, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing and refusing to register for referral Steven
Lucas in accordance with its exclusive hiring hall agree-
ment with AVW Audio Visuals, Inc., or any other em-
ployer with whom it has an exclusive hiring hall agree-
ment.
(b) In any like or related manner breaching its duty of
fair representation for all its members and other persons
entitled to use its hiring hall.
3 See 332 NLRB at 9–10. We shall modify the judge’s recom-
mended Order in accordance with our decisions in Indian Hills Care
Center, 321 NLRB 144 (1996), and Ferguson Electric Co., 335 NLRB
142 (2001). We shall substitute a new notice in accordance with our
decision in Ishikawa Gasket American, Inc., 337 NLRB 175 (2001),
enfd. 354 F.3d 534 (6th Cir. 2004).
As the judge did (see 332 NLRB at 10), we shall leave to compli-
ance for determination the nature and extent of Lucas’ employment
opportunities at AVW Audio Visuals, Inc., after March 22, 1995, when
the Respondent failed to refer Lucas. We also shall leave to compli-
ance consideration of Lucas’ request that the Union reimburse him for
the $500 that he expended for psychological testing. See 333 F.3d at
937.
341 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Maintain and operate its hiring hall and job referral
system in a nondiscriminatory manner, referring Steven
Lucas for employment as appropriate for those jobs he is
qualified to perform.
(b) Make Steven Lucas whole for any loss of earnings
and other benefits he may have suffered as a result of the
Respondent’s failure and refusal to refer him from its
exclusive hiring hall, with interest as set forth in the rem-
edy section of the judge’s decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records,
timecards, personnel records and reports, and all other
records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days from the date of this Order, rein-
state any of Lucas’ cards listing those jobs for which he
is qualified to be referred which were pulled by the Re-
spondent or its agents from the Respondent’s hiring hall
register.
(e) Within 14 days from the date of this Order, remove
from its files and records any reference to the unlawful
failure and refusal to refer Steven Lucas from its hiring
hall and, within 3 days thereafter, notify him in writing
that it has done so and that it will not use the nonreferral
against him in any way.
(f) Within 14 days after service by the Region, post at
its business office and meeting places copies of the at-
tached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
and members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(g) Within 14 days after service by the Region, sign
and return to the Regional Director sufficient copies of
the notice for posting by AVW Audio Visuals, Inc., if
willing, at places where notices to employees are cus-
tomarily posted.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to register for referral Ste-
ven Lucas in accordance with our exclusive hiring hall
agreement with AVW Audio Visuals, Inc., or any other
employer with whom we have an exclusive hiring hall
agreement.
WE WILL NOT in any like or related manner breach our
duty of fair representation for all our members and other
persons entitled to use our hiring hall.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL maintain and operate our hiring hall and job
referral system in a nondiscriminatory manner, referring
Steven Lucas for employment as appropriate for those
jobs he is qualified to perform.
WE WILL make Steven Lucas whole for any loss of
earnings and other benefits he may have suffered as a
result of our failure and refusal to refer him from our
exclusive hiring hall, with interest.

STAGE EMPLOYEES IATSE LOCAL 720 (AVW AUDIO VISUALS) 1269
WE WILL, within 14 days from the date of the Board’s
Order, reinstate any of Steven Lucas’ cards listing those
jobs for which he is qualified to be referred which were
pulled by us or our agents from our hiring hall register.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files and records any reference
to the unlawful failure and refusal to refer Steven Lucas
from our hiring hall and, within 3 days thereafter, notify
him in writing that we have done so and that we will not
use the nonreferral against him in any way.

INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES AND MOVING PICTURE
MACHINE OPERATORS OF THE UNITED STATES
AND CANADA, LOCAL 720, AFL–CIO