Stage Employees IATSE Local 720 (Production Support Services)

National Labor Relations Board - Board Decisions

Aug 22, 2008

352 N.L.R.B. 1081 (N.L.R.B. 2008)

STAGE EMPLOYEES IATSE LOCAL 720 (PRODUCTION SUPPORT SERVICES)
352 NLRB No. 128
1081
International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied
Crafts of the United States, its Territories and
Canada, Local 720, AFL–CIO, CLC (Produc-
tion Support Services, Inc.) and Michael Young.
Case 28–CB–6555
August 22, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 26, 2007, Administrative Law Judge
John J. McCarrick issued the attached decision.1 Charg-
ing Party Michael Young, appearing pro se, filed excep-
tions and a supporting brief and the Union filed an an-
swering brief.
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions3 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

1 By Board Orders dated May 21 and June 24, 2008, respectively,
Cases 28–CB–6336 (Steven Lucas) and 28–CB–6582 (Michael Serwe)
were severed from this proceeding and remanded to the Regional Di-
rector for Region 28 of the National Labor Relations Board for further
appropriate action in light of the parties’ non-Board settlement agree-
ments. Thus, this decision concerns only Case 28–CB–6555.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Charging Party argues that a union operating a hiring hall and
referral system cannot under any circumstance suspend a referent for
failing to pay a union fine and, therefore, the Union violated Sec.
8(b)(1)(A) and (2) of the Act by maintaining rules providing that failure
to pay a Union fine will result in an employee’s suspension from the
referral system until the fine is paid. We do not pass on the Charging
Party’s argument because it exceeds the scope of the General Counsel’s
theory of the case as alleged in the complaint and proffered at the hear-
ing. Kimtruss Corp., 305 NLRB 710, 711 (1991) (the charging party
cannot enlarge upon or change the General Counsel’s theory of the
case). Accordingly, in the absence of exceptions that pertain to the
issues raised in the complaint, as pleaded and litigated, we find it un-
necessary to pass on the judge’s analysis of the work rules, as main-
tained.
Joel Schochet, Esq., for the General Counsel.
Michael Urban, Esq. (Laquer, Urban, Clifford & Hodge, LLP),
of Las Vegas, Nevada, for the Respondent.
Michael Serwe, for the Charging Party, Pro Se.
Michael Young, for the Charging Party, Pro Se.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on August 14 and 15, 2007.
The original charge, Case 28–CB–6555, was filed March 1,
2007, and the order further consolidating cases, second con-
solidated complaint and notice of hearing (the complaint) is-
sued by the Regional Director for Region 28 issued on June 28,
2007. The complaint alleges that Respondent International
Alliance of Theatrical Stage Employees, Moving Picture Tech-
nicians, Artists and Allied Crafts of the United States, its Terri-
tories and Canada, Local 720, AFL–CIO, CLC (Respondent)
violated Section 8(b)(1)(A) and (2) of the Act by: (1) assessing
nonmembers who use Respondent’s hiring hall and referral
system, fees that are disproportionate to the cost necessary to
maintain and operate its hiring hall and referral system and
exceed the nonmembers’ pro rata share of the cost of operating
and maintaining Respondent’s hiring hall and referral system;
(2) causing employer AVW–Telav, Inc. (AVW) to discriminate
against employees who are nonmembers of Respondent by
denying employees the right to employment by assessing non-
members disproportionate fees for utilizing its hiring hall and
referral system; (3) refusing to provide Charging Party Steven
Lucas (Lucas) information detailing apportionment of Respon-
dent’s costs associated with the assessment of nonmembers’
fees relating to the maintenance and operation of its hiring hall
and referral system; (4) establishing and maintaining work rules
that provide for fines of employees who use Respondent’s hir-
ing hall and referral system; and (5) fining employee Michael
Serwe (Serwe) and refusing to refer Serwe to employment with
employers using Respondent’s referral system because he had
been charged with violating Respondent’s work rules and had
not paid the fine levied upon him for violating the work rules.
Respondent filed a timely answer to the complaint denying any
wrongdoing.
Upon the entire record herein, including the briefs from the
General Counsel, Respondent, and the Charging Parties, I make
the following
FINDINGS OF FACT
I. JURISDICTION
AVW, is a Texas corporation, with an office and place of
business in Las Vegas, Nevada, and engaged in the business of
audio-visual presentations at shows and conventions during the
12-month period ending April 5, 2007, provided services val-
ued in excess of $50,000 to customers located in States other
than the State of Nevada.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
Production Support Services, Inc. (PSS), a Nevada corpora-
tion, with an office and place of business in Las Vegas, Ne-
vada, and engaged in the business of audio-visual presentations
at shows and conventions during the 12-month period ending
March 1, 2007, purchased and received at PSS’ facility in Las
Vegas, Nevada, goods valued in excess of $50,000 directly
from points located outside the State of Nevada.
Based upon the above, AVW and PSS are and have been at
all times material, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admitted in its answer and I find that Respon-
dent is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Hiring Hall Fees Charged to Nonmember Referents
1. The facts
It is undisputed that pursuant to a succession of collective-
bargaining agreements Respondent has operated an exclusive,
nondiscriminatory hiring hall and referral system in the Las
Vegas, Nevada area that is the exclusive source of referral of
employees to who perform stagehand, hair, makeup, and ward-
robe work to signatory employers including employers AVW
and PSS.1
From about April 2005 to the present, Respondent has had
4900 persons registered for referral. Of the 4900 employees
registered, 1700 are members of Respondent. The record did
not disclose how many of the 4900 persons registered for refer-
ral worked and paid referral fees in 2005 and 2006, however, in
2006 there were 60,000 referrals made from the hiring hall.
Respondent operates the hiring hall from its wholly owned
building at 300 Valley View Drive, in Las Vegas, Nevada.
Respondent’s office also includes a training facility operated by
the Training Trust and a Credit Union. Respondent’s paid offi-
cers and employees consists of President Harold (Hal) Ritzer,
Business Representative Jeff Colman, three business agents,
two organizers, president’s assistant, Gary Elias, secretary-
treasurer Deidre Prestridge, Office Manager Lisa Lafever,
Jacky Ward, craft division v representative, Dispatch Supervi-
sor Brenda Neuhauser, seven dispatch employees, and other
clerical staff.
Ritzer’s duties include overseeing all of Respondent’s offi-
cers and employees, contract negotiations, organizing cam-
paigns, reviewing grievances, chairing various committees,
including the executive board, chairing membership meetings,
and attending political fundraisers and functions
Assistant to the president, Elias, works on various projects
including organizing, assisting with the office staff, building
maintenance, and maintaining hiring hall records.
The business representative engages in contract negotiations,
organizing campaigns, administration of the referral system,
and grievance processing.

1 See GC Exh. 1(v), Respondent’s answer admitting that it is a party
to collective-bargaining agreements requiring that Respondent be the
exclusive source for referrals for employment with the employers.
The business agents’ duties include organizing campaigns,
collective-bargaining agreement administration, and handling
grievances
The dispatch supervisor and seven dispatch employees han-
dle all referrals from the hiring hall and all discrepancies in
paychecks for referred employees.
The secretary-treasurer, Prestrige, handles all new member-
ship applications, health and welfare issues, contract negotia-
tions, political activities, and Respondent’s fiscal issues. She
files reports with the International Union, prepares minutes of
Respondent’s executive board and membership meetings, su-
pervises the office staff, process and distribute payroll checks
of employees referred from the hiring hall, processes member-
ship cards and cards of traveling union members, and corre-
spondence. Prestridge spends 15 percent of her time on politi-
cal activities, including campaigning for political candidates.
For about 2 years, while Respondent was under trusteeship it
charged both union member and nonunion referents 3 percent
of their gross wages as a referral fee. Since about January 1,
2005, when the trusteeship ended, Respondent has charged both
union member and nonmembers 3.5 percent of their gross
wages as a referral fee. Ritzer admitted that when the referral
fee was raised to 3.5 percent in 2005 no calculation was per-
formed to determine the cost of operating the hiring hall. In
addition to the referral fees, union members pay a $500 initia-
tion fee and quarterly fees of $50 to the International Union.
Glenn Goodenough (Goodenough), Respondent’s account-
ant, prepared accounting reports for Respondent for 2005 and
2006.2 These reports were based on Respondent’s 2005 and
2006 LM-2 forms3 prepared by Goodenough and submitted to
the United States Department of Labor together with Goode-
nough’s interviews with Respondent’s officers to ascertain
those expenses that were chargeable as expenses of the hiring
hall. Goodenough’s report for 2005 reflects that Respondent
had income from hiring hall referral fees of $1,944,367 and
income unrelated to the hiring hall of $423,679. Expenses
chargeable to the operation of the hiring hall were $1,798,250.
Nonchargeable expenses excluded from the operation of the
hiring hall amounted to $429,706. Goodenough’s report for
2006 shows Respondent had income from referral fees of
$2,345,764 and income unrelated to referral fees of $617,305.
Expenses chargeable to the hiring hall were $2,212,401. Non-
chargeable expenses excluded from the operation of the hiring
hall were $503,036.
2. The analysis
In the second consolidated complaint (the complaint) para-
graphs 5(c) through (e), (h) through (j), and (m) through (q) it is
alleged that Respondent has restrained and coerced employees
in the exercise of the rights guaranteed under Section 7 of the
Act in violation of Section 8(b)(1)(A) of the Act by assessing
referral fees to nonmembers that are disproportionate to their
pro rata share of the costs of maintaining and operating Re-
spondent’s hiring hall and referral system.

2 R. Exhs. 34 and 65.
3 GC Exhs. 17–18; R. Exhs. 6–7.
STAGE EMPLOYEES IATSE LOCAL 720 (PRODUCTION SUPPORT SERVICES) 1083
Counsel for the General Counsel (CGC) contends that the
evidence establishes that Respondent’s 3.5-percent referral fee
charged to nonmember referents does not represent their pro
rata share of the costs of maintaining and operating its hiring
hall and referral system and thus Respondent has violated both
Section 8(b)(1)(A) and (2) of the Act.
Respondent contends that the 3.5-percent referral fee for
nonmember referents represents their fair share of the costs of
the operation of the hiring hall and referral system and absent
evidence of discriminatory operation of the hiring hall and re-
ferral system there is no violation of the Act in charging the
3.5-percent fee to nonmembers.
A union may charge nonunion members a fee to use an ex-
clusive hiring hall unless the fee is excessive or based on an
improper allocation of hiring hall expenses. J. J. Hagerty, Inc.,
153 NLRB 1375 (1965). In Hagerty, where the Board had
found blanket discrimination in the operation of the hiring hall,
allowable expenses associated with the operation of the hiring
hall included office expenses, rent, salaries, utilities, publica-
tions, and payroll taxes. Expenses excluded from the operation
of the hiring hall were union meetings, dinners, conventions,
contributions, and International union assessments. The Board
accepted the administrative law judge’s formula for calculating
the costs of operating the hiring hall and allocating the pro rata
share of each person eligible to use the hiring hall. In determin-
ing which expenses were excluded from the operation of the
hiring hall the judge disallowed items properly chargeable to
the union as an institution rather than as a bargaining agent. To
arrive at referents’ pro rata share of costs, the judge divided the
allowable expenses of operating the hiring hall by the total
number of employees eligible to use it in arriving at a pro rata
share. This amount was subtracted from the fees actually paid
by the referents in calculating the amount of refund due. The
trial examiner ordered, and the Board adopted his finding, that
$3.50 be refunded to each registrant based on his finding that
the fees charged were excessive and did not represent the ac-
tual costs to referents of operating the hiring hall.
However, in Stage Employees IATSE Local 640 (Associated
Independent Theater Co.), 185 NLRB 552, 558 (1970), a case
involving no discrimination in the operation of the hiring hall,
the Board rejected the administrative law judge’s conclusion
that the hiring hall fees were in excess of the value of the hiring
hall services provided. In Stage Employees IATSE Local 640,
all referents paid referral fees of 2 percent of gross wages from
jobs obtained through referrals. In 1967, the union collected
$35,000 in referral fees paid by members and nonmembers and
spent $29,000 in operating the hiring hall. In 1968, the union
collected $29,000 in referral fees from both members and non-
members and spent $26,000 in operating the hiring hall. In
evaluating the referral fees collected against the costs of operat-
ing the hiring hall the Board said:
After careful consideration of the issue, we are disposed to
dismiss the allegation relating to assessment of referral fees.
In our view, the breakdown of income and expenses in the re-
cord does not demonstrate that the assessments were not, in
terms of the test laid down by the Second Circuit, “reasonably
related to the services provided by the union,” or that the as-
sessments were “in excess of the value of the hiring hall ser-
vices.” In 1967, using the Union accountant's concededly less-
than-rigorous figures, the Union spent at least $29,500 for hir-
ing hall and related collective bargaining (and $12,000 for
“institutional expenses”). In that year, the Union collected
$35,000 from hiring hall assessments of members and non-
members, $28,500 of which was from members and $6,500
from nonmembers. The Union, in other words, on the less-
than-precise figures before us, spent at least five-sixths of its
hiring hall assessments for the Costs of the hall. Furthermore,
if it had to return the other one-sixth of the assessments
($5,500), it would have to reimburse nonmembers for only
somewhat more than one-fifth of that amount ($1,100), since
assessments were collected from nonmembers and members
at a ratio of $6,500/ $28,500. The only other figures available
related to just the first 9 months of 1968, showing total costs
allocable to the hiring hall of $26,000 and total assessments
received of about $29,000. In Local 138, supra, there was a
finding of a substantial amount of discrimination and a clear
showing that, over a 5-year period, the Union consistently col-
lected $3.50 per month more (out of $10) than it needed for
running the hiring hall. In the present case, we make no find-
ing of substantial discrimination, and it may well be that, over
a more representative period of years, the assessments and
their proper allocations would be equalized. In the circum-
stances of this case, we are of the opinion that the evidence
does not support a finding that the assessment system was
violative of the Act, and we shall dismiss the relevant com-
plaint allegations.
A fee paid by nonmember referents equal to that paid by un-
ion members was not found excessive where there was no
showing made by the General Counsel of the cost of operating
the union’s hiring hall or the pro rata share of each registrant.
Operating Engineers Local 825 (Homan), 137 NLRB 1043,
1044 (1962). In Morrison-Knudsen Co., 291 NLRB 250
(1988), cited with approval by the Board in Communications
Workers Local 22 (Pittsburgh Press), 304 NLRB 868 (1991),
the Board found that the General Counsel had made a prima
facie showing the referral fees were discriminatory by proving
that nonmembers’ fees were higher than union members dues.
Counsel for General Counsel contends that the rule of
Hagerty, supra, has been superceded by Communications Work-
ers v. Beck, 487 U.S. 735 (1988), and its progeny, including Cali-
fornia Knife & Saw Works, 320 NLRB 224 (1995). In Beck, the
Court dealt with the 8(a)(3) proviso permitting union-security
clauses requiring union membership. The Court held that “finan-
cial core” membership in a union requires payment of fees neces-
sary for collective bargaining and representation obligations and
a union may not require payment from unwilling members of
sums for a union’s political and fraternal activities.
In California Saw & Knife Works, supra, the Board, in apply-
ing Beck, held that Beck was grounded in a union’s 8(b)(1)(A)
duty of fair representation and applies where union dues are
mandatory. The Board set forth certain “Beck rights” and held
that before a union seeks to obligate an employee to pay fees
and union dues under a union-security clause, the employee
must be informed that they have the right to object to paying
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
for union activities not relevant to the union’s duties as bargain-
ing representative, that they be given sufficient information to
intelligently decide to object, including the percent of reduction
in dues, the basis for the calculation, and the right to challenge
that figure, and that they be apprised of internal union proce-
dures to object.
In Teamsters Local 443 (Connecticut Limousine Service),
324 NLRB 633 (1997), the Board found that providing an em-
ployee with the union’s LM-2 financial reports satisfied the
Beck requirement for providing information to challenge the
union’s calculation of reduced fees.
While CGC argues that the Beck line of cases applies to hir-
ing hall fees, no case has been cited by any party reflecting the
application of Beck to the hiring hall. Indeed, Beck is limited to
cases dealing with the interpretation of the union-security pro-
viso to Section 8(a)(3) and the union’s duty of fair representa-
tion. Moreover, in cases4 dealing with hiring hall fees subse-
quent to Beck, the Board has continued to adhere to the Homan
and J. J. Hagerty, supra, line of cases in assessing the union’s
obligations under Section 8(b)(1)(A) of the Act.
In this case, according to the accountant’s 2005 and 2006 re-
ports summarizing5 Respondent’s audited income and ex-
penses, Respondent collected fees from both union member and
nonmember referents of $1,944,367 in 2005 and $2,345,764 in
2006. Chargeable expenses for 2005 were reported to include
payroll and benefits, accounting, automobile, bank fees, build-
ing maintenance, computer maintenance, contracted services,
delegate expense, delivery expenses, dues and subscriptions,
education, entertainment, insurance, legal fees, miscellaneous,
office expenses, copier expenses, organizing expenses, payroll
taxes, postage, property taxes, sales tax, telephone, trustee ex-
penses, utilities, depreciation, per capita taxes of $1200, and
contributions of $1,798,250. Goodenough’s report explained
that $6696 was excluded from payroll for lobbying activity and
time devoted to the Respondent’s newsletter sent to members
only. Advertising expenses of $26,323 were eliminated as not
related to the hiring hall. Half of the delegate expense of $9731
was eliminated as only half the union convention was unrelated
to the hiring hall. Office expenses of $10,350 were eliminated
as a cost of providing rental space for union member meetings.
Postage expenses of $4768 were excluded as cost of mailing
the members newsletter. Virtually all of the union members’
per capita taxes were excluded. Total chargeable expenses for
2005 amounted to $1,798,250. Under the Hagerty formula, I
would additionally disallow legal fees, contributions, enter-
tainment, and delegate expenses6 in the sum of $114,797 as no
showing was made that these expenses are directly related to
costs of operating the hiring hall as opposed the costs of the
Union as an institution. The adjusted expenses for 2005 are
$1,683,453. Fees paid from hiring hall referents in excess of

4 Morrison-Knudsen Co., 291 NLRB 250 (1988), cited with ap-
proval by the Board in Communications Workers Local 22 (Pittsburgh
Press), 304 NLRB 868 (1991).
5 R. Exhs. 34 and 65.
6 Ritzer testified that he had fruitful discussions with other union
representatives at the Union’s conferences about hiring hall issues. I
find no evidence that these discussions comprised more than a minimal
portion of the union conventions.
costs chargeable to the operation of the hiring hall in 2005
amounted to $260,914 or 13 percent of all fees paid.
Chargeable expenses for 2006 were reported as payroll and
benefits, accounting, advertising, automobile, bank fees, build-
ing maintenance, computer maintenance, contracted services,
delegate expense, dues and subscriptions, education, entertain-
ment, insurance, legal fees, miscellaneous, referent drug test
fees, office expenses, copier expenses, organizing expenses,
payroll taxes, postage, property taxes, sales tax, settlement
payments to NLRB, telephone, trustee expenses, utilities, de-
preciation, per capita taxes, PAC disbursements, and contribu-
tions. Total chargeable expenses for 2006 amounted to
$2,212,401. Under the Hagerty formula, I would additionally
disallow delegate expenses, entertainment, legal fees, settle-
ment payments to NLRB, PAC disbursements, and contribu-
tions in the sum of $231,682 as no showing was made that
these expenses are directly related to costs of operating the
hiring hall as opposed the costs of the Union as an institution.
The adjusted expenses for 2006 are $1,980,719. Fees paid from
hiring hall referents in excess of costs chargeable to the opera-
tion of the hiring hall in 2006 amounted to $365,044 or 15 per-
cent of all fees paid.
In assessing how much nonunion member referents may
have been overcharged, I am guided only by the estimate that
of 4900 referents on the referral list in 2005 and 2006, 3200 or
65 percent were nonunion members.7 Thus, for 2005, 65 per-
cent of the $260,914 paid in excess referral fees is $169,594 or
8.7 percent of all referral fees charged and for 2006, 65 percent
of $365,045 paid in excess referral fees is $237,272 or 10 per-
cent of all referral fees charged. Each nonunion referent would
be entitled to a refund of $52 each for excess dues paid in 2005
and $74.14 each for excess dues paid in 2006.
In Stage Employees IATSE Local 640 (Associated Independ-
ent Theater Co.), 185 NLRB 552, 558 (1970), the Board found
no violation of the Act in the assessment of hiring hall fees
where, like here, was no evidence of discriminatory operation
of the hiring hall, and where 20 percent of the fees in excess of
chargeable expenses were attributable to nonunion member
referents.
As in Stage Employees IATSE Local 640, over a longer pe-
riod of time the allowable expenses and referral fees of Re-
spondent’s hiring hall may be equalized and given the fact that
only $126 is owed to each nonunion member referent, I find
that Respondent’s assessment system does not violate Section
8(b)(1)(A) of the Act.
B. The Request for Information Regarding Referral Fees
1. The facts
Union member Steven Lucas sent Respondent a letter8 dated
June 7, 2005, requesting that Respondent provide the basis for
charging 3.5-percent referral fee to registrants. After request-
ing withdrawal from Respondent, Lucas sent the Respondent a

7 There is no evidence as to how many member or nonmember refer-
ents were dispatched or of how much in fees were paid by member and
nonmember referents respectively.
8 GC Exh. 9.
STAGE EMPLOYEES IATSE LOCAL 720 (PRODUCTION SUPPORT SERVICES) 1085
second letter9 dated September 26, 2005, requesting Respon-
dent substantiate how the 3.5-percent referral fee is related to
the cost of operating the hiring hall. By letter10 dated Decem-
ber 1, 2005, Ritzer advised Lucas that all costs of Respondent
were related to operation of the hiring hall. On December 15,
2005,11 Lucas requested Respondent provide financial state-
ments supporting the 3.5-percent fee charged to nonmembers.
Finally on May 31, 2006, Respondent furnished Lucas with the
Union’s LM-2 form for 2005.12 Respondent has not provided
Lucas any other information concerning its basis for charging
nonmember referents a fee of 3.5 percent.
2. The analysis
It appears that CGC contends that Respondent violated its
duty of fair representation to Lucas under Section 8(b)(1)(A) of
the Act because it did not provide a cost breakdown of costs
directly related to operation of the hiring hall. It is undisputed
that Respondent was under a trusteeship until January 2005 and
it would have been difficult for Respondent’s new officers to
provide financial information in 2005. CGC concedes that not
until 2006, with the completion of the 2005 LM-2 forms, could
Respondent provide the financial information Lucas requested.
CGC argues that Respondent’s LM-2 forms provided to Lucas
on May 31, 2006, were insufficient for him to make an intelli-
gent objection to the amount of referral fees paid by nonmem-
ber users of the hiring hall since there was no breakdown of
expenses for operation of the hiring hall and expenses related to
the operation of Respondent as an institution.
Under Section 8(b)(1)(A) of the Act a union, as operator of
an exclusive hiring hall, owes users of the exclusive hiring hall
a duty of fair representation by not operating the hiring hall in a
manner that is arbitrary or unfair. Radio Electronics Officers
Union, 306 NLRB 43 fn. 2 (1992), enf. granted in part and
denied in part 16 F.3d. 1280 (D.C. Cir. 1994) Concomitant
with that obligation of fair representation is the requirement
that the union provide users of an exclusive hiring hall with
information sufficient to intelligently challenge the hiring hall
fee structure. Cf. California Saw & Knife, supra. Certainly
Ritzer’s December 1, 2005 letter was insufficient to provide
Lucas with sufficient information to make an intelligent deci-
sion whether to object to the hiring hall fee structure. However,
when Respondent provided Lucas with the 2005 LM-2 reports
on May 31, 2006, as soon as the reports where prepared, Lucas
had sufficient information, even under the Beck and California
Saw & Knife rules to make an informed decision to challenge
the hiring hall fees. Teamsters Local 443 (Connecticut Limou-
sine Service), 324 NLRB 633 (1997). I find Respondent did
not violate Section 8(b)(1)(A) of the Act by failing to provide
sufficient information to Lucas.

9 GC Exh. 11.
10 GC Exh. 13.
11 GC Exh. 14.
12 GC Exh. 15.
C. Work Rules Violations
1. The facts
Michael Serwe has been a member of Respondent since 2004
and has utilized Respondent’s referral system. In December
2006, Respondent dispatched Serwe to a job pursuant to request
of AVW-Telav. Serwe worked for about 10 days for AVW.
On the last day of work about 20–30 minutes after he finished
his work but while he remained at AVW’s worksite waiting to
speak with a union steward, Serwe had a conversation with an
AVW employee named Victor. Serwe told Victor that he
looked forward to working with him again. Victor replied, “The
next time you work for me are you going to take a phone call
while you’re on my job?” Serwe said, “I’m not your nigger.
I’m paid labor and the only reason I take a call, and I very sel-
dom do on a job, is if it’s somebody calling me to see if I’m
available for work. However, I always do my amount of work
on a job. You can ask anybody that I work with and they will
tell you that.”
After making this statement, Serwe saw Michael Jeffrey, an
African-American AVW supervisor behind him. Serwe told
Jeffrey, “You know I’m not prejudiced.” Jeffrey replied he
heard what he heard.
In late December 2006, Serwe called Respondent to see if
there was work for him. He was told that he was suspended.
On January 5, 2007, Respondent sent Serwe a letter advising
that:13
In accordance with Article VIII of Work Rules and Proce-
dures for Referents,14 which we have included for your refer-
ence, you are in violation of Article VIII, Section 1B(iv):
Verbal assault against or threatening harm to any referent,
Union employee, Job Steward, Union official, or Employer
representative while at work, or in connection with work.
This includes threatening or abusive language to the employ-
ees at the Union office.
The letter added that Serwe was being fined $1000 and
would be suspended from the dispatch list until he paid the fine.
Serwe was further advised that the fine and suspension would
be held in abeyance if he appealed the fine.
Serwe appealed the fine and suspension. On February 21,
2007, Respondent denied the appeal15 and advised that if Serwe
failed to pay the fine within 35 days he would be removed from
the referral system until the fine was paid. On April 5, 2007,
Serwe learned that he had been suspended from the referral
system effective April 2, 2007. Serwe remained suspended
until July 16, 2007, when he entered into an agreement to make
installment payments on the fine.
Respondent’s work rules and procedures for referents pro-
vides in pertinent part at article VII, section 2:

13 GC Exh. 3.
14 GC Exh. 4.
15 GC Exh. 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
Failure to pay the fine in the allowed period of time as per Ar-
ticle VIII, Section 3, will result in automatic suspension from
the Local 720 referral system until such fine is paid in full. In
case of appeal, no penalty shall be imposed until the appeal
procedure has been completed.
2. The analysis
CGC contends that Respondent violated Section 8(b)(1)(A)
and (2) of the Act by refusing to refer Serwe because he failed
to pay a union fine and for maintaining a rule in its 2006 work
rules providing that failure to pay a fine will result in Respon-
dent’s refusal to refer.16
Respondent argues that Serwe was properly suspended for
work rules violations, citing Boilermakers Local 40 (Envirotech
Corp.), 266 NLRB 432 (1983).
Radio Electronics Officers Union, supra, held that when a
union prevents an employee from being hired it compels an
inference that its action is to encourage union membership and
may be overcome only by showing that it is acting pursuant to a
valid union security clause or by showing its action is necessary
to performing its representative function. Stagehands Referral
Service, 347 NLRB 1167, 1169 (2006).
The Board has held that the inference is overcome where a
union refused to refer an individual who was not qualified to
perform the job; Plasterers Local 299 (Wyoming Contractors
Assn.), 257 NLRB 1386 (1981), where a union suspended an
applicant for violating work referral rules; Boilermakers Local
40, supra; where the union refused to refer an applicant for his
long history of misconduct and where the majority of employ-
ers using the hiring hall for referents requested the employee
not be referred; Stage Employees IATSE Local 150 (Mann
Theaters), 268 NLRB 1292 (1984), where the union refused to
refer an employee who had caused a wildcat strike; Long-
shoremen Local 341 (West Gulf Maritime Assn.), 254 NLRB
334 (1981); and where the union refused to refer an employee
with a 15-year history of misconduct toward fellow employees,
employers using the hiring hall and employers’ clients; Stage
Employees IATSE Local 720 (AVW Audio Visual), 332 NLRB 1
(2000), revd. 333 F.3d 927 (9th Cir. (2003). In each of the
above cases the Board found that the union’s action taken was
necessary to performing its representative function.
The Board has found the union did not overcome the infer-
ence where it removed an employee for non payment of a fine
and non payment of dues without proper notice; Radio Elec-
tronics Officers Union, supra; and where an employee was
removed from the referral list without adequate showing that he
had performance problems; Stagehands Referral Service, supra.
In this case, Serwe was removed from Respondent’s referral
system after failing to pay a fine pursuant to work rule article
VIII, section 1B(iv) for use of a racial epithet on a jobsite.
There is no dispute that Respondent has prevented Serwe from
being hired. Likewise, it is undisputed that the action taken
against Serwe was not pursuant to a valid union-security clause.
Thus, Respondent can overcome the inference that its action

16 This is the only remaining portion of Charging Party Michael
Young’s charge that has been alleged as a violation of the Act in the
instant complaint.
was to encourage or discourage union membership by showing
that it took the action because it was necessary to performing its
representative function.
Unlike the employees in Stage Employees IATSE Local 150
(Mann Theaters), 268 NLRB 1292 (1984); Stage Employees
IATSE Local 720 (AVW Audio Visual), 332 NLRB 1 (2000),
here, Serwe had no long history of misconduct or poor per-
formance. Serwe’s misconduct was limited to one employer.
Since there is no evidence that other employers have refused to
accept Serwe as a referent, his isolated conduct would not pre-
clude his referral to other employers. Likewise, there is no
evidence that Serwe is not unqualified to perform jobs to which
he may be referred and he did not attempt to undermine the
referral system like the referents in Plasterers Local 299
(Wyoming Contractors Assn.), 257 NLRB 1386 (1981), or Boil-
ermakers Local 40, supra. Finally, Serwe’s conduct was not so
eggregious as to affect the entire bargaining unit like the em-
ployee in Longshoremen Local 341 (West Gulf Maritime
Assn.), 254 NLRB 334 (1981). I conclude that Respondent has
not overcome the inference that it took the action against Serwe
in order to encourage or discourage union membership in viola-
tion of Section 8(b)(1)(A) and (2) of the Act in suspending
Serwe from the referral system for failure to pay a fine.
The mandatory language of Respondent’s work rule article
VIII, section 1B(iv) is subject to the same test set forth above.
The rule prevents an employee from being hired and raises the
inference that the rule encourages or discourages union mem-
bership that can be overcome only by showing that the rule is
necessary to the Union’s performance of its representative
function. Nonpayment of a fine, per se, has nothing to do with
the union’s representative function. It is the reason for impos-
ing the fine that must be scrutinized. As the cases above have
demonstrated there may be legitimate and unlawful reasons for
imposing fines that result in removal from a referral system.
These cases must be scrutinized on a case-by-case basis.
In Radio Electronics Officers Union, 306 NLRB 43 fn. 2
(1992), the union was found to have violated the Act for sus-
pending an employee from its referral system for nonpayment
of dues where the employee was not given adequate notice of
his delinquency before removal. Likewise, the Board found
that the rule requiring removal from the referral list for non-
payment of dues was unlawful as it required removal prior to
notice to the delinquent referent.
Here, after Serwe’s appeal was denied he was given notice
that he had 35 days to pay the fine or face suspension from the
referral system. In this case, adequate notice is provided in
Respondent’s work rules before an employee may be sus-
pended for nonpayment of a fine. I find there is nothing in the
work rule itself that violates the Act but that in cases where an
individual is suspended for nonpayment of a fine, the Respon-
dent’s rationale for imposing the fine must be examined under
the Radio Electronics Officers Union test. I find that Respon-
dent’s work rules and procedures for referents, article VII, sec-
tion 2 does not violate Section 8(b)(1)(A) and (2) of the Act.
STAGE EMPLOYEES IATSE LOCAL 720 (PRODUCTION SUPPORT SERVICES) 1087
CONCLUSIONS OF LAW
1. AVW and PSS have been employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union has been a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) and (2) of the
Act since April 2, 2007, by refusing to allow Michael Serwe to
register for referral from its exclusive hiring hall because of his
failure to pay a fine levied against him by the Union.
4. Respondent did not otherwise violate Section 8(b)(1)(A)
or (2) of the Act and the remaining portions of the complaint
are dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent unlawfully refused to al-
low Serwe to register for referral, I shall recommend it be or-
dered to list Serwe on its referral register and, on request from
him, list him on any appropriate referral register that he re-
quests to be listed on. I further recommend that Respondent be
ordered to make Serwe whole for any loss of wages and bene-
fits he may have suffered as a result of the Respondent’s refus-
ing to allow him to register on its referral list on and after April
2, 2007.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, International Alliance of Theatrical &
Stage Employees & Moving Picture Technicians, Artists, and
Allied Crafts of the United States, its Territories and Canada,
Local 720, AFL–CIO, CLC, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Refusing to refer Michael Serwe for employment for ar-
bitrary, invidious, or capricious reasons.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
(2) Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Michael Serwe whole, with interest, for any loss of
wages and other benefits he may have suffered by reason of the
Respondent Union's discriminatory failure to refer him to em-
ployment after April 2, 2007.

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections shall be waived for all pur-
poses.
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, 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.
(c) Within 14 days after service by the Region, post at its
union hall or facility, copies of the attached notice marked “Ap-
pendix”18 Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed by an author-
ized representative of the Respondent Union, shall be posted by
the Respondent Union and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted.
(d) Reasonable steps shall be taken by the Respondent Un-
ion to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent Union has taken to comply.
IT IS FURTHER ORDERED that the second consolidated com-
plaint is dismissed insofar as it alleges violations of the Act not
specifically found.
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
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

18 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
WE WILL NOT refuse to refer Michael Serwe for employment
for arbitrary, invidious or capricious reasons.
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 make Michael Serwe whole, with interest, for any
loss of wages and other benefits he may have suffered by rea-
son of our discriminatory failure to refer him to employment
after April 2, 2007.
INTERNATIONAL ALLIANCE OF THEATRICAL & STAGE
EMPLOYEES, MOVING PICTURE TECHNICIANS,
ARTISTS, AND ALLIED CRAFTS OF THE UNITED
STATES, ITS TERRITORIES AND CANADA, LOCAL 720,
AFL–CIO, CLC