Teamsters Local 509 (ABC Studios)

National Labor Relations Board - Administrative Judge Opinions

Mar 9, 2011

11-CB-004020 (N.L.R.B. Mar. 9, 2011)

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Charleston, SC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 509 (TOUCHSTONE TELEVISION
PRODUCTIONS, LLC D/B/A ABC STUDIOS)
and Case 11–CB–4020
THOMAS TROY COGHILL, an Individual1
Rosetta B. Lane, Esq., for the General Counsel.
Justin P. Keating, Esq., for the Respondent.
W. James Young, Esq., for the Charging Party.
DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in
Charleston, South Carolina, on February 23-25, 2010. Thomas Troy Coghill, an individual, filed
the charge in Case 11-CB-4020 on February 9, 2009 and amended it on March 30, 2009. On
January 29, 2010, based upon this charge and the two charges that have been severed, the
General Counsel issued an amended consolidated complaint and compliance specification,
which was subsequently amended further on February 5, 2010. The amended consolidated
complaint, as it relates to Charging Party Coghill, alleges inter alia, that International
Brotherhood of Teamsters Local 509, the Respondent, violated Section 8(b)(1)(A) and 8(b)(2) of
the Act, in the operation of an exclusive hiring hall, by arbitrarily refusing to place applicants,
including Coghill, on its movie referral list, and by refusing to refer Coghill for employment with
Touchstone Television Productions, LLC d/b/a ABC Studios, an employer within the meaning of
the Act, since November 17, 2008.2 The compliance specification issued concurrently with the
complaint and consolidated for hearing alleges that the Respondent owes Coghill $55,467.62 in
net back pay, plus interest, as a remedy for its alleged unfair labor practices.
On February 18, 2010, the Respondent filed an amended answer to the consolidated

1 The General Counsel filed a motion with her brief to sever Case Nos. 11-CB-4009 and 11-
CB-4028 from the instant case based upon a pre-trial Order issued by the Regional Director on
February 19, 2010. The Order approved withdrawal requests from the individual charging
parties in those cases, and partially withdrew complaint allegations that were the subject of the
withdrawn charges, based on an informal settlement agreement and non-Board adjustment of
the dispute between the Respondent and those charging parties. Because General Counsel’s
motion to sever is unopposed, I shall grant it. Accordingly, the caption is amended to reflect only
the remaining unfair labor practice charge that is subject of the previously consolidated
complaint.
2 All dates herein are in 2008, unless otherwise indicated.
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complaint and compliance specification in which it denied, inter alia, that it operated an
exclusive hiring hall and that it arbitrarily refused to place applicants on its movie referral list.
Although the Respondent admitted that it failed and refused to place Coghill on its movie referral
list since November 17, 2008, and failed and refused to refer him for employment by the
Employer, ABC Studios, it denied violating the Act by doing so and further denied that it
operated its hiring hall in a discriminatory, arbitrary, and capricious manner. With respect to the
compliance specification, the Respondent denied that it owed any back pay to Coghill because
the Employer had the authority to hire Coghill despite his not being on the referral list. The
Respondent further asserts, in answer to the compliance specification, that the Employer was
planning not to hire Coghill for the production in question, even if his name was on the referral
list. The Respondent’s answer also raised issues with the formula used to calculate backpay
and with Coghill’s interim earnings and mitigation efforts.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following
Findings of Fact
I. Jurisdiction
Touchstone Television Productions, LLC, d/b/a ABC Studios, the Employer, is a
California corporation that has been engaged in the production of a television series titled, Army
Wives, at a facility in Charleston, South Carolina. The Employer annually purchases and
receives at its Charleston facility goods valued in excess of $50,000 directly from points outside
the state of South Carolina. The Respondent admits and I find that the Employer is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Facts
As noted above, the Employer produces the television series Army Wives in and around
Charleston, South Carolina. The pilot was filmed in August 2006. Season one was filmed in
2007, season two in 2008 and season three in 2009. Season four was in production at the time
of the hearing in early 2010. The dispute in this case concerns the Employer’s hiring of drivers
for season three.
Respondent Union represents drivers employed by UPS, Owens Corning, AGY, Pet
Dairy and other companies within its geographic jurisdiction. In addition, the Respondent
operates a referral service for individuals seeking employment as drivers in the television and
motion picture production industry within its territory. The Respondent’s geographic jurisdiction
encompasses all but the five northern counties of South Carolina. Because of incentives offered
by the State of South Carolina, there has been an increase in the number of production
companies using the state as the location for films, television programs and commercials. There
is no dispute that, as a result of this growth in the business, there have been occasions when
the Respondent has had an insufficient number of qualified drivers available for referral. There
is also no dispute that, at least when the dispute in this case arose, the referral list maintained
by the Respondent was a members-only list.
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The Employer recognized the Respondent as the exclusive collective bargaining
representative of drivers to be employed on Army Wives before any drivers were hired.
Although the parties did not execute a collective bargaining agreement until after production of
the pilot episode was completed, there is no dispute that the Employer’s transportation
coordinator, Lee Siler, contacted the Respondent for a list of qualified drivers when he began
staffing the pilot. Siler is a member of Teamsters Local 399 in Los Angeles. He served as the
transportation coordinator for the pilot and all four seasons of Army Wives. On this production,
he reported to Unit Production Manager Barbara D’Alessandro. Both Siler and D’Alessandro
testified in this proceeding as witnesses for the General Counsel. I generally found them to be
credible witnesses.
The Respondent’s president and business agent, L.D. Fletcher, is responsible for
administering the Respondent’s movie referral service. He also is the union representative who
conducts negotiations with producers over the terms of collective bargaining agreements and
processes grievances that arise during production. The evidence indicates that the Respondent
utilizes essentially a standard agreement to cover movie and television productions that may be
modified to meet the needs of individual employers, which is what happened in this case. The
initial agreement negotiated between the Respondent and the Employer for Army Wives
contained the following referral language:
Article V
Employment
(a) The parties hereto recognize the conditions in this industry require frequent
hiring of drivers on a daily non-continuing basis. For this purpose, the Union
shall maintain, for the convenience of the Producer and the employee, a
referral service which shall in all respects comply with all applicable
provisions of law.
(b) The producer agrees to request referrals for all drivers required for work
covered by the Agreement, from the Union.
A side letter to the agreement negotiated before the start of production on season one, but after
completion of the pilot, contained the following language modifying Article V:
It is understood in Article V Employment, that the Producer retains the right to reject
any applicant referred from the Union.
Siler testified that, in hiring for the Army Wives pilot, and each succeeding season, he
requested a copy of the Respondent’s “movie referral list”, as required by the above contract
language. Siler hired Robert Gillis, a member of another local of the Teamsters, to be his
captain, running the day-to-day operations. Gillis was not on the Respondent’s list. Siler hired
two other employees who were not on the list to operate special equipment, i.e. the honey
wagon and the production van. He did this because the Respondent did not have drivers
qualified to operate this type of equipment. The Respondent did not object to these hiring
decisions. With respect to the rest of the crew, Siler testified that he hires 15-20 drivers each
day depending upon production needs, to move equipment and crew members to different
shooting sites. Siler testified further that, because he was not familiar with the drivers on the
Respondent’s list, he called each of them to ascertain their qualifications and experience.
According to Siler, he was able to put together a crew for the pilot from the list, notwithstanding
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limited availability of drivers due to other productions being filmed in the area at that time.
By the time season one started production in January 2007, the parties had completed
negotiation of the collective bargaining agreement with the language referred to above. Siler
testified that, due to the filming of a movie called Leatherheads in the Respondent’s jurisdiction
at the same time, many of the drivers on the Respondent’s list were not available. In order to fill
out his crew, Siler hired drivers from Teamsters Locals 71 and 391 to work on season one.
Coghill, a member of Local 391 in Wilmington, North Carolina, was one of these drivers.
Production of season two, originally scheduled to begin in January 2008, was delayed due to a
writer’s strike and did not get underway until March. The parties agreed to extend the collective
bargaining agreement to cover season two and, as required by the above language, Siler
contacted the Respondent for its movie referral list before hiring drivers. Again, because many
of the drivers on the Respondent’s list, including some who had worked for Siler on season one,
were already employed on other productions, Siler hired drivers from other Teamster locals to
work until those productions ended. Coghill was hired for season two. When one of the other
productions, a film called New Daughter, ended in April, drivers who were on the Respondent’s
list who had worked on season one returned to Army Wives, and the off-list drivers Siler had
hired left for other productions with one exception, i.e. Coghill. Coghill was the only non-member
of the Respondent, other than Captain Gillis and the honey wagon and production van drivers,
to work the remainder of season 2.
Two drivers who were on the Respondent’s referral list, Frankie Padgett and Jeff
Corbett, who had worked on season one and were coming off the job with New Daughter, were
not hired by Siler for full-time positions on season two. Instead, Siler offered them part-time day
player work, which they accepted. There is no dispute that Fletcher was not happy with this
arrangement and called Siler to complain that non-509 drivers were working full-time while his
members were part-time. According to Siler, at one point in the conversation, Fletcher
threatened to picket the production if Siler did not release all non-509 drivers. When Siler
refused to agree to this, Fletcher called the Employer’s labor attorney in Los Angeles, Laura
Legge, and made the same demand. Legge, who had negotiated the collective bargaining
agreement for the Employer, attempted to resolve this dispute by scheduling a meeting in
Charleston with Respondent.
The parties met on May 13 at the Employer’s production office. D’Allessandro and Siler
were present for the employer and Fletcher and Business Agent James Todd represented the
Respondent. Fletcher again demanded that the Employer fire any drivers not on the list and
replace them with his members. Fletcher admitted at the hearing that he told Siler and
D’Alessandro that he “could shut you down, but I’m not going to shut you down.” D’Alessandro
recalled that Fletcher threatened to picket the production. Regardless of whether such a threat
was made, the Respondent never did picket or try to shut down the production and Coghill
continued to work the remainder of season two, which ended production in September. Siler
testified that he told Coghill, toward the end of production, that if Coghill wanted to work on
season three, he should move to South Carolina, establish residency, and join the Respondent.
Coghill has been working as a driver in the movie/television production industry since
1997. In fact, Coghill testified that it was Siler who got him started in the business. Coghill has
worked with Siler on a number of productions other than seasons one and two of Army Wives.
Coghill was first hired to work on Army Wives for season one and was assigned by Siler to drive
hair and make-up trailer. There is no dispute that this is not considered specialized equipment.
When first hired to work within the Respondent’s jurisdiction, Coghill signed an application for
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membership and check-off authorization as well as a document agreeing to pay two percent of
gross wages to the Respondent as a service fee.3
Coghill testified that, in November 2008, as advised by Siler, he contacted the
Respondent to find out how to go about transferring his membership to the Respondent.
According to Coghill, his calls were not returned. On November 14, he wrote to the Respondent
and his home local informing them of his intent to relocate to Charleston, South Carolina and
requesting an application to transfer his membership. On November 17, Coghill called the
Respondent’s office to confirm receipt of his letter. Peggy Chavis, a secretary in the
Respondent’s office confirmed that the letter had been received. According to Coghill, she told
him that someone would be contacting him. When he did not receive any response, Coghill
continued to call the Respondent’s office periodically from November until January, without
success. Coghill testified that he even made phone calls to the Respondent while he was
travelling in India. Only once was Coghill successful in reaching Fletcher. According to Coghill,
in response to his inquiries, Fletcher told him that the Respondent’s referral list was “closed”.
Fletcher asked Coghill if Siler had promised him a job on season three. Coghill replied that Siler
had told him that it would be easier to hire him if Coghill was a member of the Respondent.
Fletcher then told Coghill that he didn’t have to worry about Siler because Siler would not be
around much longer. When Coghill expressed that he could not understand why he couldn’t
transfer his membership since he was a member in good standing of Local 391 and had been
paying service fees to the Respondent while working in its jurisdiction, Fletcher replied that he
would send Coghill an application and put his name of the “B” list. Fletcher admitted at the
hearing that the Respondent did not maintain a “B” list.
Fletcher’s version of the telephone conversation with Coghill differs in significant
respects. According to Fletcher, he had made inquiries concerning Coghill’s transfer request
after first receiving a phone message that Coghill wanted to transfer into the local. Fletcher
testified that he was told by counsel that a member could only transfer from one local to another
if he was already working in the new local’s jurisdiction when the request was made. When
Fletcher finally spoke to Coghill on the phone, he relayed this information. Fletcher recalled that
Coghill then asked to be placed on the movie referral list. Fletcher admittedly told Coghill that
the list was closed and that the Respondent was not accepting any more applicants at that
time.4 Fletcher did not specifically deny referring to a B list or telling Coghill that his name would
be placed on such a list.
Coghill testified that he returned to the United States on January 3, 2009. A package
from the Respondent was waiting for him. The package contained an “Application and Notice”
and a memo regarding the Respondent’s service fee. A post-it noted was affixed with the
handwritten note: “You do not need to send any money now. When your name comes up on the
B list, I’ll contact you! Any questions, please call.” The note is not signed but Chavis
acknowledged in her testimony that she was the one who sent this package to Coghill. When
questioned about the “B” list referred to on the post-it note, Chavis was at a loss. As correctly
noted by General Counsel in her brief, Chavis offered no explanation for her reference to a list
that admittedly did not exist. Although she speculated that she might have been referring to a
wait list, she did not know when a wait list was created, how long it had been in existence,
where it was kept, how long employees had been on the list, what happened to employees

3 The service fee agreement signed by Coghill, which is used with all non-members working
in the movie industry, makes clear that the individual is not joining the Respondent by signing
the application for membership. Instead, he retains his membership in his home local.
4 The closure of the list will be discussed infra.
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whose names were on the list. She did not even know where the list was on the day she
testified.
Coghill testified that, upon receiving the above package from the Respondent, he
completed the “Application and Notice”, reflecting his new address in South Carolina, and
returned it to the Respondent with a copy of his commercial driver’s license and a completed
Movie Referral Request seeking placement on the list. Coghill also enclosed a check to cover
the $100.00 initiation fee and the first month’s administrative fee to maintain his name on the
movie referral list. On January 30, 2009, Coghill received a letter from the Respondent’s
Secretary Treasurer, Powell Caldwell, which stated:
Teamsters Local 509 is in receipt of your request to be placed on the Movie Referral
List. At this time, no additional names are being added to the list. Therefore, we are
unable to transfer your membership to Local 509. I am returning all of your
paperwork and the check you sent.
It is undisputed that the Respondent, through Fletcher and Caldwell, told Coghill that his
name could not be placed on the list. These statements to Coghill were based on action that
had been taken by the Respondent’s Executive Board on June 14, 2008, while production on
season two was in progress. The minutes of that meeting reflect that Fletcher discussed with
the board “the number of people needed to have a sufficient movie referral list.” After that
discussion, a member of the board, trustee James Todd, moved to “add only those that had
been on the list if they became current in dues or administrative fees.” The motion passed.
Fletcher testified that he asked the executive board to cap the list at that time in order to
preserve work for members already on the list. According to Fletcher, work in the movie industry
had slowed since the beginning of season two. Fletcher testified further that he instructed
Chavis, after this motion was passed, to keep track of people who called in wanting to be placed
on the list. He acknowledged that he did not specifically refer to this as a “wait list” in talking to
Chavis. Although Chavis referred to a “waiting list” in her testimony, she did not corroborate
Fletcher’s testimony regarding its genesis. In fact, as noted above, she was clueless regarding
the creation of the list and other matters one would expect her to know about.5
While Coghill was attempting to transfer his membership or get his name on the movie
referral list, the Employer was gearing up for the production of season three, scheduled to start
in January 2009. In December, 2008, Legge contacted Fletcher to begin negotiations for a
collective bargaining agreement to cover season three. She suggested that the parties apply the
season two contract until a new agreement could be reached. In accordance with the terms of
that agreement, the Employer requested and, on January 2, 2009, was provided a copy of the
Respondent’s movie referral list. Coghill’s name was not on the list. Siler testified that he was
under instructions to only hire drivers from this list. As in past seasons, the captain and the two
specialty equipment drivers who were hired were not on the list. The other drivers hired were on
the Respondent’s list. Coghill was not hired for season three. Both Siler and D’Alessandro
testified that they would have hired Coghill if his name was on the list.
The parties had one face-to-face collective bargaining negotiation session on January
21, 2009. Legge attended this meeting with D’Alessandro, Siler and Executive Producer Harry
Bring for the Employer. Fletcher and International Representative Ron Schwab were there for

5 In her brief, counsel for the General Counsel moved to amend the complaint to allege that
the Respondent’s closing of the movie referral list in June 2008 violated Section 8(b)(1)(A). I will
rule on this motion later in this decision.
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the Respondent. During the meeting, Fletcher held up the movie referral list and said, “this is the
list you are hiring from.” It is not clear from the record when the parties reached final agreement
on a new collective bargaining agreement. Correspondence in May 2009 shows that an
agreement was in place by then. The new agreement, to cover seasons three and four,
contained new language in Article V:
(a) The parties hereto recognize the conditions in this industry require frequent
hiring of drivers on a daily non-continuing basis. For this purpose, the Union
shall prepare and maintain, for the convenience of the Producer and the
employee, Referral Lists which the Union represents and warrants are
prepared and maintained in compliance with all applicable provisions of law.
A copy of the updated Local 509 Referral List is attached hereto as Exhibit
A.
(b) The Producer agrees to request referrals for all drivers required for work
covered by the Agreement, from the Union.
(c) The Producer agrees that it will offer employment to qualified drivers on the
Local 509 Referral Lists before Producer offers employment to persons who
are not on the Local 509 Referral Lists. The Producer has the right to hire
whomever it chooses from the Referral Lists. If the Referral List (attached as
Exhibit A) is exhausted, the Producer shall request from the Local Union, a
supplemental Referral List.
D’Alessandro testified that the Employer chose to film Army Wives in South Carolina
because of incentives offered by the State of South Carolina to encourage this type of business.
Although the tax and other incentives are not contingent upon the Employer hiring only
residents of the State, there is evidence in the record that State officials were pressuring the
Employer and other producers to hire more residents for political reasons. Legge admitted in her
testimony that the Employer feared that South Caroline might change or even repeal the
incentives in response to concerns that the State was subsidizing the hiring of non-residents
through tax dollars. E-mail correspondence in evidence shows that the Employer made a
concerted effort before season 3 to increase the proportion of South Carolina residents working
on the production. An October 1, 2008 e-mail from D’Alessandro to her superiors in Los Angeles
reveals that she specifically discussed Coghill’s situation, advising them that transportation,
presumably Siler, had agreed that only Siler, transportation captain Gillis and honey wagon
driver Stevens would be “distant hires”. Although the Respondent argues that this is a reference
to hiring of South Carolina residents, “distant hires” also refers to individuals hired from outside
the Respondent’s geographic jurisdiction. Significantly, this statement from D’Alessandro’s e-
mail is in the context of her noting that “LD”, i.e. Fletcher, “is still making life hell for lee [Siler].
called him this am with lots of cursing and outrageous demands, etc.” (sic) It also should be
noted that the transportation department was not one of the departments that historically had a
disproportionate number of non-residents of South Carolina. In a January 5, 2009 e-mail,
D’Alessandro reported to her superiors that the Employer had increased the ratio of residents to
non-residents on the entire crew from 90:65 to 94:61. One of the changes noted from previous
e-mails on the subject was to change a slot that had been designated for Coghill in September
to “TBD”, with his position switched from non-resident to resident.
As previously noted, season 4 of Army Wives was filming during the hearing. Coghill
was hired to work season four because his name had been placed on the Respondent’s movie
referral list in June 2009, after the charge had been filed and complaint issued in this case.
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B. Analysis
1. The Respondent’s Exclusive Hiring Hall
An exclusive hiring hall is an arrangement that requires an employer who is signatory to
a collective bargaining agreement with a union to obtain referrals for employees needed to fill
bargaining unit positions from the union. The fact that there are exceptions that allow an
employer to hire from outside the hall under certain circumstances does not negate a finding of
exclusivity. Longshoremen Local 1408, 258 NLRB 132 (1981), enfd. 705 F.2d 1549, 1552 (11th
Cir. 1983); Theatrical Wardrobe Union Local 769 (Broadway in Chicago), 349 NLRB 71 (2007).
See also Carpenters Local 608 (Various Employers), 279 NLRB 747, 754 (1986), enfd. 811
F.2d 149 (2d Cir. 1987); Laborers’ Local 394, 247 NLRB 97, 101 (1980). Similarly, an
employer’s retention of the right to reject applicants referred by the Union does not disprove the
existence of an exclusive hiring hall arrangement. Morrison-Knudsen, 291 NLRB 250, 258
(1988); Plumbers Local 17 (FSM Mechanical Contractor), 224 NLRB 1262, 1263 (1976), enfd.
575 F.2d 583 (6th Cir. 1976). As the Respondent correctly points out, the burden is on the party
asserting the existence of an exclusive hiring hall to prove it. Carpenters Local 537 (E. I.
DuPont), 303 NLRB 419 (1991) and cases cited therein.
A finding of exclusivity is significant because the Board has long held that a union that
operates an exclusive hiring hall violates Section 8(b)(1(A) and (2) if it refuses to refer
applicants for employment because they are not members of the the union. International
Longshoremen Association, Local 1423, 306 NLRB 942, 946 (1992). A union that operates a
non-exclusive hiring hall owes no duty to assist nonmembers in seeking employment because,
presumably, they can solicit work directly from signatory employers. Carpenters Local 537, 303
NLRB supra at 420; Teamsters Local 460 (Superior Asphalt Co.), 300 NLRB 441 (1990).6
Applying precedent to the credible evidence in the record, I find that General Counsel
has met the burden of proving the existence of an exclusive hiring hall arrangement in this case.
The language in the collective bargaining agreement negotiated for season 2, which applied to
the hiring for season three at the time Siler began hiring for that season, clearly stated that the
Employer was required to request referrals from the Union for all drivers to be covered under
the contract. Although the Employer negotiated a modification to retain the right to reject any
referral, what the Respondent describes as “producer’s choice”, it was clearly expected that the
Union would be the first source of employees. The contract negotiated for season three made
this even more explicit, requiring the Employer to offer employment to persons on the list before
offering employment to persons not on the list, and requiring the employer to contact the Union
for additional names if it exhausted the first list of referrals. Significantly, nothing in either
contract explicitly gave the Employer the right to hire drivers directly off the street. The fact that
the Employer hired a captain, a couple of specialty drivers, and other non-list individuals to fill
positions when there were an insufficient number of available qualified drivers on the referral
list, does not negate the exclusive nature of the arrangement, as found by the Board in the
cases cited above. Moreover, Fletcher’s communications with the Employer, his actions in filing
grievances during his dispute with Siler over Coghill’s employment, and his testimony at the
hearing, made clear his intention and understanding of the contract as requiring employers to
hire drivers off the movie referral list before giving work to other applicants.

6 A union with a non-exclusive hiring hall may still be found to have violated Section
8(b)(1)(A) if it refuses to assist members of the union in finding work in retaliation for the
exercise of protected concerted activities. Carpenters Local 537, supra.
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The Respondent offered evidence to show that a large number of drivers who were not
on the list were employed during the period at issue by this employer and other producers in the
movie industry working within its geographic jurisdiction to prove the non-exclusive nature of the
arrangement. I find that evidence with regard to the hiring of drivers by employers other than
this Employer is irrelevant to the decision in this case. The only issue before me is whether this
Employer had an exclusive hiring hall arrangement with the Respondent and whether the
Respondent violated the Act in the operation of its referral system vis a vis this Employer.
Moreover, the evidence in the record shows that, for much of the time that Army Wives was
filming seasons one through three in the Charleston area, it was competing with other
employers for the same types of workers. Under these circumstances, where there was more
work than the number of qualified applicants on the referral list, the fact that people were hired
who were not on the list would not be surprising, nor a deviation from the exclusivity of the
Respondent’s referral service.7
In sum, I conclude in agreement with General Counsel and the Charging Party that the
Respondent’s movie referral list constituted an exclusive hiring hall arrangement. However, I do
not find that the Respondent’s arbitrary closing of the list in June 2008 violated the Act because
counsel for the General Counsel’s motion to amend the complaint to allege such a violation was
untimely. Although General Counsel was aware during the investigation that the list had been
“closed”, no allegation was included in the initial complaint or any subsequent amendments.
Even when the issue came up in testimony at the hearing, counsel failed to advise the
Respondent that its actions in June 2008 were being challenged as unlawful. Had the
Respondent been so notified, it might have called additional witnesses or presented other
evidence to justify the decision to close the list. In addition, the Respondent would presumably
have addressed the issue in its brief had it known of the amendment. Only after the hearing was
closed and briefs were filed did the Respondent get notice of this potential additional violation.
Under these circumstances, I find that the issue was not “fully and fairly litigated” and that
Respondent was denied due process by the post-hearing attempt to amend the complaint.
2. The Respondent’s Treatment of Coghill
There is essentially no dispute that the Respondent refused to place Coghill’s name on
its movie referral list in November 2008 and, as a result, failed and refused to refer him to
employment for season three of Army Wives. There is also no dispute that Coghill was not a
member of the Respondent and his request to join the Respondent by transferring his
membership from Local 391 was rejected by the Respondent. Because the Respondent’s movie
referral list was a members-only list at the time, this prevented Coghill from getting on the list,
which the Employer was contractually required to use as a source for employees. General
Counsel alleges that these actions by the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of
the Act. The Respondent contends that it’s actions were not unlawful because Coghill was not
prevented from seeking employment on his own. The Respondent’s argument is predicated
upon a finding that the movie referral list was not an exclusive hiring hall arrangement, a claim I
have rejected. The evidence in the record shows clearly that the Respondent, through Fletcher,
demanded that the Employer only hire from the list for season three and specifically that the
Employer not hire Coghill. I credit the testimony of Siler and D’Alessandro that, were it not for
these demands, Coghill would have been hired for season three based upon its practice of
trying to retain the same crew members season to season. I find that General Counsel has met
the burden of proof here and that the Respondent’s treatment of Coghill was arbitrary and

7 Respondent in effect created this situation by limiting its referral list to its own members,
thus limiting the supply of eligible employees to refer.
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discriminatory, and a breach of its duty of fair representation. I find further that this conduct
caused the Employer not to hire Coghill for Season three.
The Respondent attempted to avoid such a finding by submitting evidence to show that
Coghill’s loss of employment was not caused by the action of its agents but by the State of
South Carolina’s efforts to encourage the employment of its residents by producers receiving
tax incentives for filming in the State. I am not persuaded by this evidence. As counsel for
General Counsel points out in her brief, had the Respondent placed Coghill’s name on the list,
or allowed him to transfer his membership as he requested in November, he would have moved
to South Carolina and become a resident before anyone was hired for season three. Similarly,
the October memo from D’Alessandro referring to “distant hires” would not have applied to
Coghill because he would not be a distant hire if he was a member of the Respondent or had
been placed on the list. Finally, the January 2009 e-mail in which Coghill’s slot was changed
from a non-resident hire to a resident hire “to be determined” would not have prevented Coghill
being hired if the Respondent had allowed him to join the local or placed his name on the list
because he would have become a resident by that time.
Accordingly, I conclude based on the above and the record as a whole that the
Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act by its actions toward Coghill.8
III. Compliance Specification
In a typical unfair labor practice proceeding, my decision would end here with
conclusions of law, a recommended remedy and proposed order. Any issues arising with regard
to back pay would be handled in a separate compliance proceeding only after the Board had
ruled on any exceptions filed to my unfair labor practice decision. In this case, the General
Counsel has chosen to consolidate the compliance proceeding with the unfair labor practice
case so I must address back pay issues raised by the Respondent’s answer to the compliance
specification.
As noted above, the Respondent denied that any back pay was due based on its claim
that Coghill would not have been hired for season three even assuming the Respondent was
innocent of any unfair labor practice. I have already rejected that claim in making my
determination above. In its answer, the Respondent also challenged some of the General
Counsel’s back pay computations to arrive at gross back pay. At the hearing, the Respondent
stipulated that, if an unfair labor practice were found, the amount of gross back pay computed
and the General Counsel’s method of calculating it by using the earnings of a comparable
employee was accurate. The only issue remaining for determination then is whether Coghill
satisfied his duty to mitigate damages. As to these issues, the burden is on the Respondent.
See Pope Concrete Products, Inc., 312 NLRB 1171 (1993), enfd. 67 F.3d 300 (6th Cir. 1995).
The compliance specification alleges and the Respondent has agreed that the back pay
period in this case begins on November 17, 2008, the date the Respondent refused to include
Coghill’s name on the movie referral list and ended sometime in December 2009 when the
Respondent included Coghill’s name on the referral list used by the Employer to hire drivers for
season 4. As noted, the Respondent stipulated that the General Counsel’s use of a comparable

8 In view of my findings above, I need not address counsel for the General Counsel’s
alternative argument that Respondent’s conduct would be unlawful even if the Respondent
operated a non-exclusive hiring hall, an allegation not raised in the amended consolidated
complaint.
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employee’s earnings to calculate what Coghill would have earned during this period was
accurate. Using employee Joey Ricker’s earnings resulted in a gross back pay calculation of
$66,500.19, which the Respondent has stipulated was accurate. General Counsel has reported
that Coghill had interim earnings in every quarter of the back pay period totaling $11,032.57.
When the interim earnings are deducted from gross back pay on a quarterly basis, they result in
net back pay of $55,467.62, which is the remedy General Counsel seeks for the unfair labor
practice found above.
Coghill testified at the hearing about his efforts to mitigate back pay in response to
questions from the Respondent’s counsel. The Respondent also had available records kept by
Coghill regarding his search for work, including the quarterly Claimant’s Expense, Search for
Work and Interim Earnings Reports that he had submitted to the Region. At the hearing and in
brief, the Respondent narrowed its mitigation defense to a claim that Coghill should be denied
back pay for the period May 10 through July 7, 2009, relying on a statement contained in one of
the reports he filed with the Region. In the report for the second quarter of 2009, Coghill wrote
the following:
I was unemployed and looking for work as directed by Va. Employment
Commission. Work with MKC became unavailable and I lived off my savings and tax
return as my unemployment was frozen. My records of the job search are too
sketchy to document for these proceedings, so I will not try. (sic)
(Emphasis added). Although counsel for the General Counsel solicited testimony from Coghill
regarding his efforts to find work during this period and put in evidence telephone records
showing calls made to contacts Coghill had in the movie industry, former employers and other
prospects, Respondent argues that the statement on the form show be credited as proof that he
failed to look for work during this approximately two month period. The Respondent seeks to
reduce Coghill’s back pay award by $9,667.70 to reflect this period.
The Board and the courts have consistently held that a discriminatee is only required to
make reasonable efforts to mitigate damages and that they are not held to the highest standard
of diligence. The burden is not onerous and the fact that an employee was unsuccessful in
finding interim employment for part of the back pay period is not fatal. Pope Concrete Products,
Inc., Supra, at 1172 and cases cited therein. See also Phelps Dodge v. NLRB, 313 U.S. 177,
199-200 (1941); NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175 (2nd Cir. 1965), cert. denied
384 U.S. 972 (1966). In addition, an individual’s efforts to find other work during the entire back
pay period, rather than in any particular quarter, must be considered in determining whether his
efforts were reasonable. Black Magic Resources, Inc., 317 NLRB 721 (1995); Rainbow
Coaches, 280 NLRB 166, 179-180 (1986). The Board has also held that an employee’s faulty
recollection, poor recordkeeping, or exaggeration with respect to his job search efforts is
ordinarily not enough to prove lack of reasonable diligence in seeking other work. Laredo
Packing Co., 271 NLRB 553, 556 (1984); Arduini Mfg. Co., 162 NLRB 972, 975 (1967), enfd.
395 F.2d 420 (1st Cir. 1968).
Having considered the testimony and other evidence, I find that the Respondent has not
met its burden of showing that Coghill did not make reasonable efforts to mitigate damages
during the back pay period, notwithstanding the above statement contained on the form he
previously submitted to the Region. His testimony at the hearing, supported by the interim
earnings he did receive and the phone records in evidence, show that Coghill made reasonable
efforts to seek employment and was not idle during any part of the back pay period. The fact
that he had a two month period when his efforts were not successful does not negate the
evidence of his successful efforts before and after this period.
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Although the Board, more recently, has accepted pre-hearing unsworn statements
contained in agency reports as proof of lack of diligence when contradicted by sworn testimony
at the compliance hearing, that is not the case here. Domsey Trading Corp., 351 NLRB 824,
836 (2007). In Domsey, the discriminatee had earlier reported he was physically unable to work
but testified at the hearing to the contrary. Coghill’s statement on the form was simply that his
records were too “sketchy” to document his job search during this particular period, not that he
didn’t make such efforts. I find that his testimony was not inconsistent with the earlier statement
and that, as a whole, Coghill made reasonable efforts to mitigate damages.
Accordingly, based on the above, I find that the net back pay calculated by the General
Counsel is the correct amount owed to Coghill as a result of the Respondent’s unlawful conduct.
Conclusions of Law
1. By failing and refusing to place the name of Thomas Troy Coghill on its movie referral
list, for arbitrary, discriminatory and invidious reasons, on and after November 17, 2008, and by
failing and refusing to refer him to employment on Army Wives season three, the Respondent
has breached its duty of fair representation owed to Coghill and has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7)
of the Act.
2. By the above conduct, the Respondent caused the Employer, Touchstone Television
Productions, LLC, d/b/a ABC Studios, to discriminate against Coghill by not hiring him to work
on Army Wives season three because he was not a member of the Respondent, and has
engaged in unfair labor practices affecting commerce in violation of Section 8(b)(2) and Section
2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Because the Respondent has already placed Coghill’s name
on the movie referral list and referred him to employment with the Employer for Army Wives
season 4, I shall not recommend an affirmative order requiring the Respondent to place him on
the list or refer him for employment. However, I shall recommend that the Respondent be
ordered to cease and desist denying non-members access to its movie referral list and the
employment opportunities that entails. I shall also recommend that the Respondent be ordered
to make whole Coghill for the loss he incurred as a result of the Respondent’s unlawful conduct
toward him by paying him back pay in the amount of $55,467.62, with interest to be computed
daily in accordance with the Board’s recent decision in Kentucky River Medical Center, 356
NLRB No. 8, slip op. at pp.4-5 (October 22, 2010). Finally, in accordance with the Board’s
decision in J. Piccini Flooring, 356 NLRB No. 9, slip op. at pp. 5-6 (October 22, 2010), I shall
recommend that the Respondent be required to distribute the attached notice to members and
employees electronically, if it is customary for the Respondent to communicate with employees
and members in that manner. Also in accordance with that decision, the question as to whether
a particular type of electronic notice is appropriate should be resolved at the compliance stage.
Id, slip op. at p. 3.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
The Respondent, International Brotherhood of Teamsters, Local 509, Cayce, South
Carolina, its officers, agents, and representatives, shall
1. Cease and desist from
(a) failing and refusing to place Thomas Troy Coghill, or any other individual seeking
employment in the movie industry, on its movie referral list for arbitrary, discriminatory or
invidious reasons.
(b) Causing or attempting to cause Touchstone Television Productions, LLC, d/b/a ABC
Studios, or any other employer that is signatory to its “Movie Agreement”, to refuse to hire
Coghill or any other applicant because they are not a member of the Respondent.
(c) 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. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Coghill whole for any loss of earnings and benefits suffered as a result of the
Respondent’s unlawful refusal to place his name on the movie referral list and refer him to
employment on Army Wives season three by paying to him $55,467.62, with interest computed
in accordance with Kentucky River Medical Center, 356 NLRB No. 8 (2010).
(b) Within 14 days after service by the Region, post at its union office in Cayce, South
Carolina, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 11, after 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 and
members are customarily posted. In addition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily communicates with employees and
members 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.
(c) Sign and return to the Regional Director sufficient copies of the Notice for posting by
Touchstone Television Productions, LLC d/b/a ABC Studios, if willing, at all places at the
Employer’s Charleston, South Carolina facility where notices to employees are customarily

9 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.
10 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.”
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posted.
(d) 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 has taken to comply.
Dated, Washington, D.C. , March 9, 2011.
____________________
Michael A. Marcionese
Administrative Law Judge
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain 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 activities.
WE WILL NOT fail and refuse to place Thomas Troy Coghill, or any other individual seeking
employment in the movie industry, on our movie referral list for arbitrary, discriminatory or
invidious reasons.
WE WILL NOT cause or attempt to cause Touchstone Television Productions, LLC, d/b/a ABC
Studios, or any other employer that is signatory to our “Movie Agreement”, to refuse to hire
Coghill or any other applicant because they are not a member of this Union.
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 Coghill whole for any loss of earnings and other benefits resulting from our
unlawful conduct toward him, less any net interim earnings, plus interest, as set forth in the
Board’s order.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 509
(Labor Organization)
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.
4035 University Parkway, Republic Square, Suite 200
Winston-Salem, North Carolina 27106-3323
Hours: 8 a.m. to 4:30 p.m.
336-631-5201.
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, 336-631-5244.