Teamsters Local 727 (No Employer)

National Labor Relations Board - Board Decisions

Jul 13, 2012

358 N.L.R.B. 718 (N.L.R.B. 2012)

718
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 86
International Brotherhood of Teamsters, Local 727
and Ron Maxwell. Case 13–CB–060708
July 13, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On March 5, 2012, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Acting General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, 2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 1 in
the judge’s decision.

1 As no exceptions were filed to the judge’s dismissal of the unfair
labor practice allegations relating to the Respondent’s operation of its
referral service for movie-production work, we find it unnecessary to
pass on the Respondent’s exception to the finding that its movie-work
referral service constituted an exclusive hiring hall.
2 We adopt the judge’s findings, for the reasons stated in his deci-
sion, that the Respondent violated the Act in operating its exclusive
hiring hall for trade-show work by both failing to adequately notify
registrants of its new rule prohibiting employees from remaining in
“will call” status for more than 12 consecutive months and suspending
registrant Ron Maxwell from the referral list pursuant to that rule. We
clarify, contrary to the judge’s language suggesting otherwise, that both
actions violated both Sec. 8(b)(1)(A) and Sec. 8(b)(2). See Plumbers
Local 519 (Sam Bloom Plumbing), 306 NLRB 810, 810 fn. 1 (1992),
enfd. 15 F.3d 1160 (D.C. Cir. 1994); Plumbers Local 38 (Bechtel
Corp.), 306 NLRB 511, 511–512 (1992), enfd. mem. 17 F.3d 393 (9th
Cir. 1994).
We find it unnecessary to pass on the judge’s further finding that the
Respondent also suspended Maxwell from the trade-show referral list
in retaliation for Maxwell’s failing to help the Respondent organize a
company that he previously owned, as such a finding would not materi-
ally affect the remedy. We shall amend the judge’s conclusions of law
accordingly.
3 The Respondent argues that a make-whole remedy for Ron Max-
well is inappropriate because he would have remained in “will call”
status and therefore would not have been referred to any jobs. We
agree with the judge that awarding the standard make-whole remedy is
appropriate and that determining whether Maxwell actually suffered
any loss is properly left to the compliance stage of this proceeding. See
Plumbers Local 32 (Alaska Pipeline), 312 NLRB 1137, 1139 (1993),
enfd. 50 F.3d 29 (D.C. Cir. 1995), cert. denied 516 U.S. 974 (1995). At
that stage, the parties may litigate whether, even if the Respondent had
adequately and timely notified Maxwell of the rule change, he would
not have removed himself from “will call” or that, even if he had done
so, his position on the referral list would not have entitled him to a job.
We shall modify the judge’s recommended Order and substitute a
new notice to conform to the Board’s standard remedial language.
“1. By failing to adequately and timely notify everyone
on its trade-show referral list of its 12-month ‘will call’
rule and suspending Ron Maxwell and refusing to refer
him to any trade shows with signatory employers since
April 2011 because he allegedly violated the rule, Team-
sters Local 727 has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act.”
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Teamsters,
Local 727, Park Ridge, Illinois, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Failing to take reasonable steps to adequately and
timely notify all employees on its trade-show referral list
of its rules for using its exclusive hiring hall.
(b) Suspending anyone from its trade-show referral list
and/or refusing to refer them to any trade shows for vio-
lating its exclusive hiring hall rules before it has taken
reasonable steps to adequately and timely notify them of
the rules, or for other arbitrary or discriminatory reasons.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
Ron Maxwell’s suspension from the trade-show referral
list.
(b) Make Ron Maxwell whole for any loss of earnings
or benefits he suffered as a result of being suspended and
denied referrals to any trade shows since April 2011,
with interest, in the manner set forth in the remedy sec-
tion of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to Maxwell’s unlawful sus-
pension and, within 3 days thereafter, notify Maxwell in
writing that this has been done and that the suspension
will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all hiring hall and refer-
ral records, and any other records and documents, includ-
ing an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its office and hiring hall in Chicago, Illinois, copies of
TEAMSTERS LOCAL 727

719
the attached notice marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees and members are customarily posted. In addition to
physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with em-
ployees and members by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these pro-
ceedings, the Respondent has ceased operating the hiring
hall involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all individuals whose names appeared on the Re-
spondent’s hiring hall list at any time since April 2011.
(f) Within 14 days after service by the Region, sign
and return to the Regional Director for Region 13 suffi-
cient copies of the notice for posting by Global Experi-
ence Specialists (GES), Freeman, and other employers
signatory to the trade-show agreement, if willing, at all
places where notices to employees are customarily post-
ed in the Chicago metropolitan area.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES AND 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail to take reasonable steps to adequate-
ly and timely notify all employees on our trade-show
referral list of our rules for using our exclusive hiring
hall.
WE WILL NOT suspend anyone from our trade-show re-
ferral list or refuse to refer them to any trade shows for
violating our exclusive hiring hall rules before we have
taken reasonable steps to adequately and timely notify
them of the rules, or for other arbitrary or discriminatory
reasons.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind Ron Maxwell’s suspension from the trade-
show referral list.
WE WILL make Ron Maxwell whole for any loss of
earnings or benefits he suffered as a result of being sus-
pended and denied referrals to any trade shows since
April 2011, with interest, in the manner set forth in the
Board’s decision.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Maxwell’s
unlawful suspension and, within 3 days thereafter, notify
Maxwell in writing that this has been done and that we
will not use the suspension against him in any way.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 727

Kevin McCormick, Esq., for the General Counsel.
Stephanie Brinson, Esq., for the Respondent Union.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. The
complaint in this case alleges that Teamsters Local 727 has
operated exclusive hiring halls for trade show and movie pro-
duction work in the Chicago metropolitan area in an arbitrary
and discriminatory manner in violation of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act). Specifi-
cally, the General Counsel alleges that, since about April 2011,
the Union has unlawfully failed to timely inform workers that
they would be suspended from the trade show referral list if
they remained in “will call” (unavailable) status for 12 consecu-
tive months, and suspended and refused to refer the Charging
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

720
Party (Maxwell) to either trade shows or a particular movie
production (Autumn Frost) because he had been suspended
pursuant to its 12-month “will call” rule and/or for other arbi-
trary and discriminatory reasons.1
Local 727 denies the allegations in their entirety. Although
the Union admits that it maintains a referral list for trade show
work and a compilation or “book” of employment applications
for movie work, it denies that it has operated an exclusive hir-
ing hall for either type of work. It further denies that it violated
the Act in any respect even assuming that it does operate exclu-
sive hiring halls as defined by Board law.
Following a prehearing conference, the case was tried on
January 9 and 10, 2012. Thereafter, on February 14, the Gen-
eral Counsel and the Union filed posthearing briefs. Based on
the briefs and the entire record,2 for the reasons set forth below,
I find that a preponderance of the evidence supports all but the
last of the allegations that the Union unlawfully refused to refer
Maxwell to “Autumn Frost.”3
FINDINGS OF FACT
I. THE ALLEGED EXCLUSIVE HIRING HALLS
As indicated above, a threshold issue in this case is whether
Local 727 even operates exclusive hiring halls for trade show
and movie production work. As the General Counsel acknowl-
edges, under extant law a union owes a duty of fair representa-
tion (i.e., a duty to act fairly and impartially) in the operation of
a hiring hall only if it is the employer’s exclusive source of
labor. Thus, if Local 727 has not operated exclusive hiring
halls as alleged, it had no duty to provide adequate notice of its
referral criteria. Compare Electrical Workers Local 11 (Los
Angeles NECA), 270 NLRB 424, 426 (1984), enfd. 772 F.2d
571 (9th Cir. 1985) (exclusive hiring hall), with Carpenters
Local 537 (E. I. du Pont), 303 NLRB 419, 420 (1991) (nonex-
clusive hiring hall). However, for the reasons set forth below, I

1 The underlying charge was filed on June 29, 2011. The complaint
issued on October 14, 2011, and was subsequently amended at the
hearing on January 9, 2012. (GC Exh. 1; Tr. 17–18.)
2 Unless otherwise stated, cited evidence has been credited, to the
extent supportive, and contrary evidence discredited. In evaluating
witness credibility, all relevant and appropriate factors have been con-
sidered, including, not only the demeanor of the witnesses, but their
apparent interests, if any, in the proceeding, whether their testimony is
corroborated or consistent with the documentary evidence and/or the
established or admitted facts, “inherent probabilities, ‘and reasonable
inferences which may be drawn from the record as a whole’” (Daikichi
Corp., 335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir.
2003), mem. quoting Shen Automotive Dealership Group, 321 NLRB
586, 589 (1996)). See also NLRB v. Cutting, Inc., 701 F.2d 659, 663
(7th Cir. 1983).
3 Jurisdiction is uncontested. The Respondent Union admits, and I
find, that Third Act Pictures (the producer of “Autumn Frost”) is a
motion picture/video production company affiliated with Warner Bros.
Pictures; that it is party to an agreement with the Union; that it pur-
chased and received over $50,000 in goods, products, and services
directly from outside Illinois during the past year; and that it is an em-
ployer engaged in commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act. The Union also admits, and I find, that it is a labor
organization within the meaning of Sec. 2(5) of the Act. (GC Exhs. 1
and 8; Tr. 17–18.)
find that the General Counsel established that the Union has, in
fact, operated exclusive hiring halls for both types of work
during the relevant period.
A. Trade Shows
The relevant facts regarding trade show work are essentially
undisputed. Local 727 maintains so-called “outside” collec-
tive-bargaining agreements with various trade show and con-
vention production companies that recognize the Union as the
exclusive representative for all “referral employees” within its
jurisdiction. Two such production companies are Global Expe-
rience Specialists (GES) and Freeman.4 Consistent with the
standard Local 727 trade show agreement, the most recent
2009–2013 outside agreements with GES and Freeman set forth
the following provisions regarding the “referral system”:

ARTICLE 2–REFERRAL SYSTEM

2.1 The Union shall maintain a Referral System which
shall in all respects comply with all applicable provisions
of the law and the following provisions:
(a) The Company agrees that at least twenty-four (24)
hours prior to its commencement of a job (except in the
situations described in (c) below), it will notify the Union
of its numerical requirements of Referral Employees.
(b) To the extent the Union is able to make available to
the Company all or any part of such requested Referral
Employees (who are satisfactory to the Company), the
Company agrees to employ all such persons on the terms
and conditions hereinafter stated.
(c) The Union agrees to notify the Company as
promptly as possible but, in any event, within reasonable
hours following the Company's notification to the Union,
if it is unable to fill such requests in whole or in part,
whereupon the Company shall have the right to hire who-
ever is available and such persons shall not be subject to
this Agreement. Failure on the part of the Union to notify
the Company within twelve (12) hours of the Company's
notification to the Union shall be treated as if the Union
has notified the Company that no Referral Employees
could be furnished.
(d) The labor call, for the last day of the move out of a
show, shall be made by the Company as soon as practica-
ble, but no later than noon the day before the last day of
move out, absent extraordinary circumstances.
(e) The Company shall have the right to reject any Re-
ferral Employee referred by the Union.
(f) In situations in which the Company's needs cannot
be adequately predicted, the Company agrees to give the
Union such notice of its need for Referral Employees as is
reasonable and the Union agrees to respond to such re-
quests with the promptness required of the situation.
(g) Should a dispute arise out of the number of posi-
tions required for Stand-by-Labor, the Union and the
Company agree to meet immediately to resolve the issue

4 GES and Freeman also maintain “inside” agreements with the Un-
ion covering their regular full-time warehouse employees (Tr. 103, 108,
115–116).
TEAMSTERS LOCAL 727

721
or issues. The designated Union Representative and the
Show Site Freight Manager of the Company shall resolve
the issue or issues in a timely fashion without any work
stoppages, slow downs and/or lock outs. Union Steward,
Dock and Traffic personnel can be included in the number
of personnel called for Stand-by-Labor.
(h) All fork lift drivers referred by the Union shall be
trained and certified pursuant to OSHA standards as soon
as is practical.
(i) Anything herein to the contrary notwithstanding, it
is understood and agreed that the Company will continue
to employ on an irregular and temporary basis such casual
employees as it deems necessary, and that such employees
are not subject to this Agreement. The Company agrees
that it will endeavor to schedule its working force in such
manner as to insure that, in the absence of unusual circum-
stances, such casual employees will not be assigned to
work which falls within the definition of Referral Employ-
ees. However, no casual employees will be employed un-
der this Section unless the Union Referral List is exhaust-
ed.
(j) The Union agrees to make every reasonable effort
to meet the Contractors request (by name) for Dock, Traf-
fic and Leadmen Personnel. The Company agrees to rotate
these requests on a non-discriminatory basis among the
most senior referral employees who are qualified and will-
ing.

(Jt. Exh. 1; GC Exhs. 1(c) and (e), 4, 10.)
Pursuant to the foregoing provisions, the companies obtain
all of their unit labor through Local 727, i.e. they do not adver-
tise for workers or hire “off the street.” Although the companies
have exercised their right under the agreement and employed
casuals if the union referral list was exhausted, this has oc-
curred only rarely.
With respect to the actual referral procedures, as permitted
by the agreement, the companies often request dock, traffic,
and lead workers by name from the union referral list (GC Exh.
11). Per the agreement, the companies attempt to rotate these
requests among the listed employees and Local 727 makes
every reasonable effort to refer those requested. With respect
to other unit personnel, such as forklift operators and checkers,
the companies simply request a specific number of workers.
The Union then selects the particular workers to refer from its
referral list, normally by seniority.
In either situation, Local 727 or the company may sometimes
reject the individual worker requested or selected for one rea-
son or another. For example, the Union may reject a request
because the company failed to rotate properly as required under
the agreement. And the company may reject a selection be-
cause the worker is not qualified. However, the company’s
requests are usually honored. (Tr. 87–89, 91–102, 114–124,
127–129, 246, 284–290, 319; see also GC Exhs. 13–22; and R.
Exh. 1 (November 2009 Local 727 Trade Show Referral Rules,
and January 2010 Local 727 Trade Show Referral Policy).)
Based on the foregoing, in agreement with the General
Counsel, I find that Local 727 operates an exclusive referral
system for trade show work. It is well established that an ex-
clusive hiring hall may be created by written or oral agreement
or by practice. See Southwest Regional Council of Carpenters
(Perry Olsen Drywall), 358 NLRB 1, 1 fn. 2 (2012), and cases
cited there. Here, as set forth above, the parties’ written
agreement and practice clearly indicate that applicants must go
through the Union to obtain work with the signatory compa-
nies, i.e., they cannot be hired directly by the company off the
street or through a referral from other sources. Although a
company may request or reject particular workers on the union
referral list, and hire casuals or other workers if the Union is
unable to fill a numerical request from the list, the Board has
repeatedly held that such provisions or limited exceptions do
not render an otherwise exclusive referral arrangement nonex-
clusive. See, e.g., Theatrical Wardrobe Local 769 (Broadway
in Chicago), 349 NLRB 71, 72–73 (2007) (employer hired
outside the union list on a few occasions when the list was ex-
hausted); Pipefitters Local 247 (Inland Industrial Contractors,
Inc.), 332 NLRB 1029, 1031–1032 (2000) (employer had right
to request up to 50 percent of employees by name and to hire
from other sources if union failed to furnish workers within 48
hours); Ironworkers Local 843 (Norglass, Inc.), 327 NLRB 29,
31 (1998) (employer had right to request 50 percent of employ-
ees by name, to reject any applicant referred by the union, and
to employ applicants directly at jobsite if union was unable to
fill the employer’s requisition with 24 hours); and Operating
Engineers Local 513, 197 NLRB 1046, 1047–1048 (1972)
(employer had right to request by name an unlimited number of
registrants who had worked for at least 30 days during the pre-
ceding 12-month period, to also request by name other regis-
trants up to 50 percent of its work force, and to refuse to hire
any applicant referred from the union).
The Union’s posthearing brief fails to address any of the
foregoing precedent. Further, the only case it cites, Kvaener
Songer, Inc., 343 NLRB 1343 (2004), enfd. sub nom. NLRB v.
Laborers Local 334, 481 F.3d 875 (6th Cir. 2007), does not
support its position. Although the Board found that the hiring
hall in that case was nonexclusive, contrary to the Union’s sug-
gestion the Board did not do so because the agreement permit-
ted the employers to make direct hires if the union failed to fill
a labor call within 48 hours (a finding that obviously would
have been inconsistent with the precedent cited above). Rather,
the Board found that the hall was nonexclusive because the
agreement required hiring “in accordance with the hiring pro-
cedure existing in the territory” where the work is performed,
and the evidence established that employees in the local territo-
ry regularly sought and secured employment without going
through the union. See 343 NLRB at 1345; and 481 F.3d at
881. As indicated above, there is no such evidence here; indeed,
the evidence indicates the opposite.
B. Movie Productions (Autumn Frost)
Local 727 has also entered into collective-bargaining agree-
ments with movie and television production companies. One
such agreement, executed July 2011, was with Third Act Pic-
tures, an affiliate of Warner Bros. Pictures, for a movie tenta-
tively titled “Autumn Frost” (also known as “Superman”),
which began around the same time. (See GC Exh. 8 (stipula-
tion of facts).) The agreement generally covered “all employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

722
ees hired within the jurisdiction of Teamsters Local 727” and
set forth the following provisions regarding “employment”:

ARTICLE 6–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 main-
tain, 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. This provision is subject to the following con-
ditions:
1. Chauffeurs will be referred to the Producer from the
Union on a non-discriminatory basis, and such referrals
will in no way be affected by membership or any aspect
thereof.
2. The Producer retains the right to reject any applicant
referred from the Union. [GC Exh. 3.]

Local 727 and Third Act also executed a sideletter addendum
the same day, which repeated the first sentence in article 6,
paragraph (a) and added the following:

For this purpose, the Union shall provide a referral list to the
Transportation Coordinator for use during the production
which shall, in all respects, comply with the applicable provi-
sions of law on a non-discriminatory basis and such referral
shall in no way be affected by union membership. [GC Exh.
2.]

Although not formally part of the “Autumn Frost” agreement
with Third Act, Local 727 has also adopted certain rules for
movie work. In relevant part, these rules state as follows:

All referrals will be made by Producer’s choice and in ac-
cordance with these rules. Upon request, Local 727 will pro-
vide the employer or the employer’s designated agent with ei-
ther paper or electronic copies of applications and accompa-
nying documentation for all Movie Referral Employees. The
employer or the employer’s designated agent will notify the
Union of the Movie Referral Employees it selects. Such se-
lection must be made on a non-discriminatory basis. The em-
ployer or the employer’s designated agent will contact the
Movie Referral Employees directly. [R. Exh. 1, “Supplement
to the Local 727 Trade Show Referral Rules for Movie
Work.”]

It is undisputed that these rules were adopted by Local 727 in
December 2009, and have applied to all movie work within its
jurisdiction since that time. (See GC Exh. 8 (stipulation of
facts); and R. Exh. 7 (minutes of union board and membership
meetings adopting or approving supplemental rules).) It is
likewise undisputed that, consistent with the rules, the Union
has maintained a “Movie Book” of alphabetized “Applica-
tion[s] for Referral―Movie,” which is provided to the transpor-
tation coordinator for hiring (GC Exh. 24; Tr. 248; R. Br. 5).
Finally, the parties herein also stipulated that there was no
advertising for Chicago drivers, and that no drivers were hired
“off the street” or outside the union list, for “Autumn Frost” or
any other production by a Warner Bros.-affiliated company in
the Chicago metropolitan area. If someone who was not on the
union list was interested in working as a driver, they were re-
ferred to Local 727 to put their name on the list. (See GC Exh.
8 (stipulation of facts).)
Based on the foregoing, in agreement with the General
Counsel, I find that Local 727 operated an exclusive referral
system for “Autumn Frost” during the relevant period. In argu-
ing to the contrary, the Union relies primarily on the testimony
of William Hogan III, a referral employee on the trade show list
(and cousin of Maxwell), who is frequently hired as a movie
transportation coordinator and was hired by Third Act as its
transportation coordinator to select and hire the crew for “Au-
tumn Frost.” 5 Specifically, the Union cites Hogan’s testimony
that he does not actually use the movie book very often when
serving as a transportation coordinator, did not use the book in
hiring on “Autumn Frost,” and could “hire guys off the street”
if he wanted to (Tr. 254). However, Hogan acknowledged that
he uses mostly the same workers over and over on each produc-
tion (which would explain why he does not need to reference
the book very often), and that they all have to be “associated”
with the Union. Further, consistent with the parties’ stipula-
tion, he acknowledged that if he is going to hire someone “off
the street” he will “send them down” to the Union to fill out an
application (Tr. 254–255). See also his testimony (Tr. 269–
271) (although he talked to and/or “decided” to hire three par-
ticular workers for “Autumn Frost” or other productions before
they had “been through” the union hall application process, he
did not actually hire them until after they had done so); and the
Union’s December 2009 supplemental rules (R. Exh. 1)
(providing that any individual who was already on the Local
727 trade show referral list would remain eligible to also per-
form movie work, even without a CDL, but that “any new indi-
viduals applying for movie work must have a current CDL and
must provide a copy of said CDL, including any and all en-
dorsements, to Local 727”). Indeed, Hogan admitted that he
did not hire Maxwell for “Autumn Frost” because Maxwell told
him that he had been “suspended” by the Union (Tr. 262–263).
Local 727 also contends that there was no exclusive hiring
hall for “Autumn Frost” because Hogan had complete discre-
tion in choosing who to hire. However, as indicated above, the
record indicates that Hogan could only hire workers who had
provided an application and any required licenses and docu-
ments to the Union and were included or added to its list/book.
Thus, as with trade show work, the Union was the gatekeeper,
i.e., it determined whether or which workers could be consid-
ered or hired by Hogan. Accordingly, as discussed above, it
had a duty to operate the gate fairly and impartially.6 See also

5 Notwithstanding his familial relationship to Maxwell, Hogan was
called and questioned by the General Counsel as an adverse witness
under FRE 611(c) without objection from the Union. (Tr. 231.)
6 For reasons fully discussed infra, contrary to the General Counsel’s
contention, I find that Hogan acted solely as the agent of Third Act and
not the Union when selecting and hiring referral employees for “Au-
tumn Frost.” Nevertheless, the fact that the actual selection and hiring
of movie referral employees was done solely by a company agent does
not absolve the Union of its duty to act fairly and impartially in deter-
TEAMSTERS LOCAL 727

723
Denver Stage Employees IASTE Union No. 7, 339 NLRB 214,
216 (2003) (finding exclusive hiring hall where the agreement
required that, should a stagehand be directly hired by the em-
ployer, the employee “must obtain a registered referral slip
from the Union before going to work” and the employers had a
practice of using the union as the exclusive source for hiring
stagehands); Morrison-Knudsen Co., 291 NLRB 250, 258–259
(1988) (finding exclusive hiring hall even though company
interviewed and made commitment to employ, and in some
infrequent or special circumstances actually employed, individ-
uals before they were sent to the union hall for a referral slip);
Plumbers Local 17 (FSM Mechanical Contractor, Inc.), 224
NLRB 1262, 1263 (1976), enfd. 575 F.2d 585 (6th Cir. 1978)
(finding exclusive hiring hall even though employers had sole
right to determine who was hired and selected the employees
from the union’s list, as the employers would not employ the
individuals until they were cleared by the union); and Operat-
ing Engineers Local 513, 197 NLRB at 1049 (finding exclusive
hiring hall even though employer selected individuals for hire,
as the employer sent them to the union hall for clearance before
permitting them to go to work).7
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Trade Show Referrals
1. Failing to notify workers of 12-month “will call” rule
As indicated above, the first alleged violation is that the Un-
ion failed to adequately notify workers that they could be sus-
pended from its exclusive trade show referral list if they re-
mained on “will call” for 12 months. For the reasons set forth
below, I find that this allegation is supported by a preponder-
ance of the evidence.
As described by several witnesses, the “will call” procedure
applies when workers are not going to be available for trade
show assignments for an indefinite period of time, either be-

mining whether or which workers may be considered or hired by the
company.
7 Again, the Union’s posthearing brief fails to address any of these
Board decisions. Moreover, the only decision it cites―a recent, Febru-
ary 2, 2012 ALJ decision in Big Moose, LLC, Case 15–CA–019735 (JD
(ATL)–04–12)―is clearly distinguishable. Indeed, the parties in that
case stipulated that the union (Theatrical Stage Employees Local 478)
did not operate an exclusive hiring hall. See JD. at 2. In any event, the
judge’s decision has no precedential value as it has not yet been re-
viewed by the Board. See generally Carpenters Local 370 (Eastern
Contractors Assn.), 332 NLRB 174, 175 fn. 2 (2000), and cases cited
there. For similar reasons, I have also given no weight to Teamsters
Local 509 (ABC Studios), 357 NLRB 1668 138 (2011), the primary
case cited in the General Counsel’s posthearing brief. The Board spe-
cifically noted (fn. 1) that no exceptions had been filed to the judge’s
finding in that case that the movie referral list constituted an exclusive
hiring hall arrangement. I have likewise placed no reliance on Labor-
ers Local 334 (Kvaerner Songer, Inc.), 335 NLRB 597, 599 (2001),
also cited by the General Counsel, in evaluating the exclusivity issue.
See fn. 2 of the Board’s decision (noting that no exceptions had been
filed to the judge’s finding that the union did not violate Sec.
8(b)(1)(A) and (2) of the Act by refusing to refer an applicant through
its hiring hall). See also fn. 9 of the Board’s decision in the subsequent
case involving the same parties, Laborers Local 334 (Kvaerner Songer,
Inc.), 343 NLRB 1343 (2004), discussed supra.
cause they have been hired to do movie production work or for
some other reason such as another temporary or secondary job
(e.g., policeman or fireman), a vacation, or illness. In such
circumstances, the workers will notify the union office (Gate 5
at McCormick Place), either by phone or in writing, that they
will be unavailable, and they “will call” the Union when they
again become available for assignment.
The “will call” procedure has been in effect at the union hall
for at least 30 years, well before Local 727 took over the hall
from its predecessor (Local 714) around early 2009. Although
the procedure is not set forth or posted anywhere in writing, the
record indicates that the referral employees are familiar with it.8
Indeed, Maxwell himself acknowledged that, when he was first
added to the trade show referral list in May 2010, the union
steward (Patrick Nallon) told him that he would be put in “will
call” status while he was working on movies (which Maxwell
notified Nallon he was doing at the time).9 (Tr. 23–24, 28–32,
34–45, 47, 50, 75–80, 145–150, 260, 267, 289, 296, 305–309,
318, 336, 340.)
The record is less clear when the alleged 12-month rule was
adopted or became effective. However, it appears to be of
more recent vintage. Thus, the Union contends that the rule is
derived from a referral rule of conduct that the Union’s execu-
tive board formally adopted in November 2009 requiring indi-
viduals on the list to make themselves available for work (Tr.
13; Br. 1). Further, Michael McManus, who has been the Un-
ion’s director of trade show referrals since October 2009, testi-
fied that he first began reviewing the trade show referral list to
determine if any workers had violated the rule in “the early part
of 2011,” approximately a year after the list was initially ranked
in February 2010 pursuant to the new referral rules. He testi-
fied that, as a result, Maxwell―who as indicated above had
initially been placed on “will call” in May 2010 because he was
doing movie work―and four other individuals were subse-
quently suspended from the trade show referral list by the ex-
ecutive board.10 This is confirmed by the minutes of an execu-

8 But see the testimony of employees Thomas Hogan (Tr. 34) and
Anthony Pomonis (Tr. 58–63, 70–72), which appears to confuse or
conflate “will call” with “on call.” While “will call” means the em-
ployees call the Union, “on call” means that the Union calls the em-
ployees, i.e., the employees are available, but there is no immediate
assignment for them, and the Union calls them when assignments arise.
9 Nallon, like William Hogan III, is Maxwell’s cousin (Tr. 219).
10 Maxwell had submitted his application for movie work in March
2010, which Local 727 added to the movie book. See Tr. 145 and GC
Exh. 24. Maxwell testified, and payroll records confirm, that although
he was subsequently added to the trade show list in May, he continued
working on movies or television series back-to-back for the next 6–7
months, through the end of November 2010. Maxwell testified that he
did not call the union office to make himself available for trade show
referrals thereafter because: (1) he was out of town the first 2 weeks of
December; (2) he knew there was little or no trade show work in Janu-
ary and February and he was near the bottom (#274) on the list; and (4)
he anticipated that he would go back to work on one of the pilots he
had been working on in the spring (Chicago Code) if it was picked up.
In addition, he performed some other trade show or convention work
(obtained outside the hiring hall) in March and May 2011 as a freight
manager/supervisor for a company owned by his brother-in-law. (Tr.
145–148, 151–153, 156, 205–214, 221–222, 226; GC Exh. 23.) As for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

724
tive board meeting held on May 31, 2011. The minutes indi-
cate that the board had previously agreed, during an April 28
“phone poll,” to suspend Maxwell from the referral list “for his
failure to take calls in the referral system,” and that it voted at
the May 31 meeting to suspend the four other individuals for
the same reason. (Tr. 209–214, 292, 308–312, 331, 338–341; R.
Exh. 5.)11
Like the “will call” procedure itself, the 12-month rule was
not specifically set forth or posted anywhere in writing. In-
deed, the November 2009 referral rule of conduct cited by the
Union as the written source of the 12-month rule does not even
generally state that individuals on the list must make them-
selves available for work. Rather, the rule more narrowly
states, “By agreeing to take a call, those referred must . . . [n]ot
refuse the type of work to which you have registered to per-
form” (R. Exh. 1, p. 2, par. (c)). Contrary to the Union’s con-
tention, this rule on its face appears to be directed to individuals
who have indicated that they are available to take a call and
have actually been referred to a job, not to individuals, like
Maxwell, who have indicated they are unavailable.12
Further, unlike the “will call” procedure, the 12-month rule
was not otherwise widely disseminated by the Union or known
or understood by the referral employees. Thus, there is no rec-
ord evidence that the Union ever told any referral employees
directly that the rule prohibited them from remaining on “will
call” due to movie or other work for 12 months or more. Nor is
there any evidence that employees learned this from any other
source. Although McManus, the Union’s referral director,
testified that it was “general knowledge” among employees on
the list that they were required to make themselves available to
work at least some trade shows even if they were doing movie
work (Tr. 310, 313), neither Maxwell nor any of the five em-
ployee witnesses called by the Union testified that they had
ever heard of such a requirement. Indeed, only two employee
witnesses (Leonard Casey Jr. and Vincent Renella,) testified
that they had heard even generally of a 12-month rule prohibit-
ing them from being on “will call” or “gone” for more than a

the other four individuals, the referral list indicates that three were
likewise listed as “will call” prior to being suspended by the executive
board. See GC Exhs. 13–15a (Simone [#202], Knesek [#205], Brocato
[#216], and Hustad/Husead [#180]). However, the record does not
reveal why they were on “will call.”
11 Contrary to the Union’s posthearing brief (p. 12), the minutes do
not indicate that the executive board “adopted” the previous, April 28
phone poll or took any other additional action at the May 31 meeting
regarding Maxwell’s suspension. No such motion is recorded.
12 The Union’s posthearing brief (p. 5) also quotes from the Local
727 Trade Show Referral Enforcement Policy, which was also ap-
proved by the union executive board on May 31, 2011 (R. Exh. 5, p. 2).
However, the policy is not in evidence. (Although the Union’s brief
cites to R. Exh. 7, p. 6, the cited reference is not the May 31, 2011
policy, but a copy of the minutes of an earlier December 20, 2009 gen-
eral membership meeting.) In any event, the quoted section of the
policy only generally describes the director of referrals’ duty to monitor
and investigate violations of the trade show referral rules and policy,
and the secretary-treasurer’s discretionary authority to recommend that
the executive board suspend individuals from the trade show referral
list for any violation of or deviation from the rules or policy.
year. (See Tr. 56 and 81 (testifying that they had heard of such
a rule by “word of mouth” from coworkers).)
Moreover, William Hogan III―who as noted above fre-
quently works as a movie transportation coordinator―testified
that, while he recalled actually seeing a rule at some point stat-
ing that employees could be suspended for being on “will call,”
the rule did not apply when employees were placed on “will
call” due to movie work (Tr. 260–261). Although it is unclear
where Hogan would have seen any such rule (as discussed
above, no such rule was written down anywhere), he certainly
had good reason to believe that the rule would not apply when
employees were doing movie work. Thus, he testified that he
had himself worked on movies back-to-back from the spring of
2010 until November or December 2011 (well over a year)
without being suspended from the trade show list. (Tr. 267–
268; see also the April 1–December 31, 2011 trade-show refer-
ral lists, GC Exh. 13–22, which list him [# 45 or #49] as either
on a specific movie, “N/A” [not available], or “W/C” [will call]
during that period.) Finally, he and four of the Union’s five
employee witnesses testified that they had never heard of any-
one (not even Maxwell) being disciplined or suspended from
the trade show list for being on “will call” too long (Tr. 31, 55,
69, 80, 260). (The fifth employee witness, Thomas Hogan, was
never asked.)
In sum, a preponderance of the evidence indicates that: (1)
the Union failed to take reasonable steps to directly notify all
workers on the trade show referral list of the 12-month “will
call” rule, relying instead on word of mouth, and (2) relatively
few if any referral employees actually knew about the rule or
how it was being interpreted and applied by McManus and the
Local 727 executive board during the relevant period. The
Board in similar circumstances has held that unions have failed
to satisfy their duty of fair representation. See Plumbers Local
230, 293 NLRB 315, 316 (1989) (finding violation where union
relied heavily on “word of mouth” and otherwise took a “slip-
shod” approach to notifying applicants, and a number of em-
ployees did not learn of the change in a timely fashion). Ac-
cord: Plumbers Local 38 (Mechanical Contractors of Northern
California), 306 NLRB 511, 532 (1992), enfd. in relevant part
mem. 17 F.3d 393 (9th Cir. 1994). See also Sheet Metal Work-
ers Local 19, 321 NLRB 1147 (1996); Electrical Workers Lo-
cal 11 (Los Angeles NECA), 270 NLRB at 426; and Boilermak-
ers Local 667 (Union Boiler Co.), 242 NLRB 1153, 1155
(1979).13 Accordingly, in agreement with the General Counsel,
I find that Local 727 violated Section 8(b)(1)(A) of the Act by
failing to adequately notify workers of the rule.
2. Suspending and refusing to refer Maxwell
to any trade shows
As indicated above, the General Counsel also alleges that
Local 727 violated Section 8(b)(2) of the Act by actually im-
plementing the 12-month “will call” rule and suspending and
refusing to refer Maxwell to any trade shows before giving
adequate notice of the new rule or how it would be applied. As
discussed above, this allegation is well supported by the evi-

13 Again, the Union’s posthearing brief fails to address any of this
precedent or cite any contrary precedent.
TEAMSTERS LOCAL 727

725
dence, including Referral Director McManus’ testimony and
the minutes of the May 31, 2011 union executive board meet-
ing. Indeed, Local 727 admits that it suspended Maxwell from
the trade show list pursuant to the rule (Tr. 13–14; and R. Br. 1,
17–22). Accordingly, I find that the Union’s actions in this
respect violated the Act as alleged. See, e.g., Plumbers Local
230, above. See also Plumbers Local 519 (Sam Bloom Plumb-
ing), 306 NLRB 810, 810 fn. 1 (1992).
This is not the end of the matter, however; as noted above,
the General Counsel also alleges that the Union suspended and
refused to refer Maxwell to any trade shows for discriminatory
reasons.14 Specifically, the General Counsel contends that the
Union suspended and refused to refer Maxwell because it be-
lieved that he had an ownership interest in Convention Cartage
Systems (CCS), a company it was attempting to organize, and
was not helping the organizing effort. The General Counsel
further contends that the Union actually suspended Maxwell for
this reason in March 2011, approximately 1–2 months before
the executive board’s reported April 28 vote by “phone poll” to
suspend him pursuant to the new 12-month “will call” rule.
Thus, the allegation is at least arguably noncumulative.15
I find that this allegation is supported by a preponderance of
the evidence as well. First, the record indicates that Maxwell
did, in fact, have a connection with CCS. Indeed, Maxwell
started CCS in 1994 and was an original owner and president of
the company. The company eventually encountered difficulties
and, in 2000 or 2001, Maxwell sold the company (then operat-
ing under the name Maxwell Inc. d/b/a CCS) to his brother-in-
law. However, he has continued to perform freight-supervisor
work for the company (now operating under the name Tractor
Company d/b/a CCS) on an intermittent or occasional basis.
He charges CCS a flat rate of $1000/week for such intermittent
or occasional work, which he bills or invoices through another
company (Empties, Inc.), which is owned by several other indi-
viduals, and for which he serves as president. (Tr. 140–143,
205–208, 221, 225–230.)
Second, Maxwell first heard a rumor that he was suspended
in March, while he was working for CCS (see fn. 10, supra) and
well before either the executive board’s reported April 28
“phone poll” vote or his 12-month “will call” anniversary in
May.16 Maxwell called the union office to inquire about the

14 Unlike the previous allegations, this allegation does not require a
finding that Local 727’s trade show referral list was the exclusive
source of labor for signatory employers. See generally Newspaper &
Mail Deliverers’ Union (City & Suburban Delivery System), 332 NLRB
870 fn. 1 (2000), and cases cited there (union’s refusal to refer an indi-
vidual through a nonexclusive hiring hall may violate the Act if the
refusal is in retaliation for the individual’s protected activity).
15 But see fn. 20, infra. Although the current record is insufficient to
determine if Maxwell (who as previously noted had a very low number
on the referral list) would have been referred to any trade shows absent
his suspension, such a showing is not required to find a violation. The
determination whether Maxwell was actually denied any jobs, and is
therefore entitled to backpay, is properly left to the compliance pro-
ceeding. See Bricklayers Local 1 (Denton’s Tuckpointing, Inc.), 308
NLRB 350, 353 (1992), and cases cited there.
16 Maxwell testified that Robert Voss, the chief union steward (and,
like William Hogan III and Patrick Nallon, one of his cousins), con-
firmed the rumor when he ran into Voss one morning at McCormick
matter in early April, and left a couple of messages asking to
speak to John Colli Jr. or Sr., the union president and secre-
tary/treasurer, respectively. Although neither ever responded,
Michael Jain, a union business agent,17 eventually called Max-
well back. Jain told Maxwell that he had been suspended from
the list “because we believe you have ownership in CCS.”
Maxwell responded that he did not have any ownership interest
in the company. However, Jain replied that the Union had
“seven lawyers that can prove otherwise.” Maxwell challenged
Jain to produce the evidence, but Jain said that it was up to
Maxwell to produce a document showing that he did not have
any ownership in CCS. Accordingly, Maxwell stated that he
would submit an affidavit to that effect. (Tr. 152–155, 159–
160, 177.)18
Third, Maxwell did, in fact, subsequently mail a “sworn
statement” to the Union by certified letter dated April 28. The
statement stated:

I Ronald E. Maxwell Jr. duly swear that I do not and never
have had any ownership in “A Tractor Co. DBA-CCS Truck-
ing.” I occasionally work as an independent contractor hired
by said company when the need arises.

The letter also requested “any and all correspondence” regard-
ing his suspension, noting that he had not to date received any
“written official suspension notification, nor any documentation
as to the reason for this suspension.” Although the Union re-
ceived the letter on May 2, and Maxwell requested a “swift”
response “as lost wages have already [begun] to accumulate,”
the Union never responded. (GC Exh. 6; Tr. 161–162.)19

Place (where the union office is located and CCS was working a trade
show). However, in response to the Union’s hearsay objection, the
General Counsel represented that Maxwell’s testimony was being of-
fered solely to show when Maxwell learned that he was suspended, and
not as proof that he was suspended. Further, in apparent reliance on the
General Counsel’s representation, the Union ultimately decided not to
call Voss to testify about either his duties as chief steward (i.e., whether
he was a union agent) or the alleged conversation. See Tr. 153–155.
Accordingly, I have not relied on this testimony as evidence that Max-
well was actually suspended in March 2011.
17 The Union admits that Jain is its agent within the meaning of Sec.
2(13) of the Act.
18 Jain also testified about this phone conversation, and denied that
he ever told Maxwell that he was suspended because he had an owner-
ship interest in CCS. Indeed, he denied that Maxwell’s suspension
even came up during the conversation. However, Jain otherwise con-
firmed much of Maxwell’s testimony. Thus, Jain admitted that Max-
well had left a phone message at the office in February or March 2011;
that he called Maxwell back; that the Union was attempting to organize
the CCS drivers at the time; that he initially asked Maxwell during their
conversation about his ownership interest in CCS; that they then had a
“back and forth” discussion about the issue; that Maxwell mentioned
going to court over the matter; and that he responded that the Union
had a lot of attorneys. (Tr. 276–277.) Further, Jain never offered any
alternative reason why Maxwell had called the Union. Finally, as dis-
cussed infra, Maxwell’s version of the conversation is consistent, not
only with his own subsequent actions, but with other substantial evi-
dence. On balance, therefore, I find that Maxwell’s testimony is more
worthy of belief.
19 Maxwell testified that he thereafter tried again to reach one of the
Collis by phone to find out the status of the situation. However, as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

726
Maxwell has not been called by the Union for any trade shows,
and he continues to be listed as “suspended” on the trade show
referral list. (Tr. 179; GC Exhs. 14–22.)
Fourth, the Union’s own trade show referral records confirm
that Maxwell was suspended prior to either the executive
board’s reported April 28 “phone poll” vote or his 12-month
“will call” anniversary in May. (See GC Exh. 14 (#271)),
which lists him as “suspended” on the April 21 trade show list.
The Union failed to offer any testimony or evidence to explain
this apparent inconsistency.20 It also failed to explain why the
Board voted to suspend Maxwell by “phone poll” on April 28
(which, contrary to the Union’s contention [Br. 17, 20, 22], was
likewise before an “entire year” or “over a year” had elapsed),
rather than voting on the matter at the May 31 meeting as it did
with respect to the other four individuals who were suspend-
ed.21 Nor has it offered any explanation why it treated Maxwell
differently than Hogan, who as indicated above was not sus-
pended even though he also performed movie work while on
“will call” for an extended period. Although Hogan worked on
movies back-to-back the entire time, while Maxwell did so for
just the first 6–7 months (see fn. 10, supra), Referral Director
McManus testified that such distinctions are irrelevant, i.e., that
even if individuals work on movies the entire year that they are
on “will call,” they would probably be suspended from the
trade show list (Tr. 309–310).
Finally, the Union does not dispute that suspending and re-
fusing to refer from its hiring hall an individual who performs
work for a company that the Union is attempting to organize,
because of the individual’s perceived ownership interest in the
company and failure to support the organizing effort, would

before, they never returned his call. Further, although Jain eventually
called him back in early June, Jain told him that the Union was still
waiting to get a letter from CCS itself stating that he had no ownership
in the company. Again, I credit Maxwell’s testimony. Jain admitted
that he had a second phone conversation with Maxwell (which he said
occurred in April or May). He also admitted that Maxwell asked about
his suspension during this second conversation. Nevertheless, accord-
ing to Jain, he responded that he was “not in a position to discuss it,”
and Maxwell would have to speak with somebody else. (Tr. 276–277.)
(Although the Union’s posthearing brief [p. 13] describes Jain’s testi-
mony regarding the phone calls with Maxwell differently, the descrip-
tion is incorrect and incomplete, and, like the brief’s discussion of the
trade show referral enforcement policy [see fn. 12, supra], unsupported
by record evidence.) For essentially the same reasons set forth above, I
find that Maxwell’s version of the conversation is more credible.
20 Although Maxwell was still listed as “will call” on the April 1 list
(GC Exh. 13), this could have been due to administrative delay. In any
event, the record indicates (Tr. 205), and the General Counsel appears
to concede (Br. 25), that Maxwell continued working for CCS through
the end of March, and therefore remained unavailable to take trade
show assignments off the list until at least April 1.
21 It is also noteworthy that, unlike Maxwell, there is no record evi-
dence that the other four individuals whom the executive board voted to
suspend on May 31 were actually listed as “suspended” on the trade
show referral list until after the executive board’s actions were adopted
by the general membership on September 25, 2011. (See R. Exh. 6
(minutes of general membership meeting), and GC Exhs. 17 (Septem-
ber 28 referral list, ##169 and 200) and 18 (Sept. 29 referral list, ##189
and 192).) (The referral lists, if any, between May 30 and September
28, were not introduced into the record by either party.)
have a reasonable tendency to coerce employees in the exercise
of their rights under Section 7 of the Act and cause or attempt
to cause an employer to discriminate against the individual in
violation of Section 8(a)(3) of the Act. See generally Newspa-
per & Mail Deliverers’ Union (City & Suburban Delivery Sys-
tem),, 332 NLRB 870 (2000). See also Plumbers Local 420
(Carrier Corp.), 347 NLRB 563, 564 (2006); and New Mexico
District Council of Carpenters (A. S. Horner, Inc.), 176 NLRB
797, 799 (1969), enfd. 454 F.2d 1116, 1119 (10th Cir. 1972).
Accordingly, I find that the Union violated Section
8(b)(1)(A) and (2) of the Act as alleged.
B. Movie Referrals (“Autumn Frost”)
As indicated above, the General Counsel alleges that Local
727 unlawfully refused to refer Maxwell to “Autumn Frost” for
essentially the same reasons, i.e. because he had been suspend-
ed for violating the 12-month “will call” rule and/or because of
his perceived ownership of CCS and failure to support the un-
ion organizing campaign. However, I find that the General
Counsel has failed to prove this additional allegation by a pre-
ponderance of the evidence. There is no record evidence that
Local 727 has removed Maxwell’s application from the movie
book (GC Exh. 24). Nor is there any admissible evidence that
the Union told Hogan, Third Act’s transportation coordinator,
that he could not hire Maxwell for “Autumn Frost.” Although
Maxwell testified, pursuant to the General Counsel’s offer of
proof, that Hogan told him during a May 2011 phone conversa-
tion that he had received a text message from Local 727 stating
that he should not hire Maxwell, I rejected this testimony, to the
extent it was offered as substantive evidence that Hogan had
actually received such a text message from the Union, on the
ground that it was both hearsay, since Hogan was an agent of
Third Act (a nonparty) and not the Union, and uncorroborat-
ed.22 (Tr. 168, 177, 196–204.)
The General Counsel challenges this evidentiary ruling, ar-
guing that Hogan was, in fact, an agent of the Union under
Section 2(13) of the Act.23 However, the record fails to support
the General Counsel’s argument. Hogan was selected and hired
directly by Third Act, is not a union official or steward, and is
actually prohibited by union rules from even being a member of
the Union while serving as transportation coordinator or 12

22 See, e.g., Auto Workers Local 651 (General Motors), 331 NLRB
479, 481 (2000) (uncorroborated testimony properly rejected as unreli-
able hearsay). Hogan had not, at that point, been called to testify.
Further, when subsequently called by the General Counsel as an ad-
verse witness, Hogan denied that he ever received such a text message.
Indeed, as mentioned above, Hogan testified that the only person who
told him Maxwell had been suspended was Maxwell himself (Tr. 262–
264). And no other evidence of the text message was offered into
evidence.
23 GC Br. 13–15, 24. The General Counsel does not contend that
Maxwell’s testimony is admissible under the hearsay rules even if
Hogan is not an agent of the Union; that there is independent evidence
to corroborate Maxwell’s testimony; or that Maxwell’s testimony can
be effectively corroborated or converted into substantive or affirmative
evidence merely by discrediting Hogan. Thus, given my finding that
Hogan is not a union agent, it is unnecessary to make credibility deter-
minations regarding his or Maxwell’s testimony about their conversa-
tion. See generally Brooks v. U.S., 309 F.2d 580, 582 (10th Cir. 1962).
TEAMSTERS LOCAL 727

727
months thereafter. (See GC Exhs. 8 (stipulation of facts) and 9
(Third Act’s May 10, 2011 “Deal Memo” with Hogan); R.
Exhs. 1 (Local 727 supplemental movie rules) and 8 (Hogan’s
dues record); and Tr. 139, 234–236, 241–242, 252, 255–256,
258, 268, 297, 314.)
Further, while Hogan was presumably required to comply
with the parties’ collective-bargaining agreement, there is no
evidence that his duties and responsibilities as the transporta-
tion coordinator were jointly determined and regulated by both
Third Act and the Union. Indeed, the transportation coordina-
tor position is only briefly mentioned in the agreement. (See
GC Exh. 3, p. 2 (“The Transportation Captain shall be the first
person hired after the local Transportation Coordinator”), and
GC Exh. 2 (sideletter addendum), p. 1 (“the Union shall pro-
vide a referral list to the Transportation Coordinator for use
during the production”).) Cf. Electrical Workers Local 6 (San
Francisco Elec. Contractors Assn.), 318 NLRB 109, 126–127
(1995), enfd. mem. 139 F.3d 906 (9th Cir. 1998) (finding that
three-member referral appeal committee, which was created by
the parties’ contract and included one member appointed by the
union, was an agent of union).
Finally, there is insufficient evidence that the Union mani-
fested to referral employees that Hogan was its agent. On the
contrary, the relevant provisions of the Union’s December 2009
supplemental rules for movie work (quoted in full in part I,B,
above) clearly state that the individual who will make the selec-
tion and contact the referral employees directly is “the employ-
er’s designated agent” (R. Exh. 1).24
The General Counsel also cites Maxwell’s testimony, pursu-
ant to the same offer of proof, that Hogan subsequently told
him, during a June 2011 telephone conversation, that Secretary-
Treasurer Colli told him that the Union would reinstate Max-
well if Maxwell would get the CCS drivers to sign Local 727
cards (Tr. 196–197). However, I rejected this testimony for the
same reasons.25 In any event, even assuming arguendo that this
testimony is both admissible and credible, it does not establish
that the Union had suspended Maxwell from the movie book as
well as the trade show list. Maxwell’s testimony indicates that
Hogan and Colli spoke about Maxwell’s suspension only in
general terms. Further, as noted above, Hogan was not only
Third Act’s transportation coordinator for “Autumn Frost,” he
was also Maxwell’s cousin. Thus, Colli might reasonably have
assumed that Hogan was inquiring about Maxwell in his per-
sonal rather than professional capacity, i.e. was inquiring only
about how Maxwell could get reinstated on the trade show list
(the only list the documentary evidence indicates the executive
board formally voted to suspend him from), and not about how
Maxwell could be hired for “Autumn Frost.”

24 The circumstances of this case are therefore clearly distinguisha-
ble from Teamsters Local 25, 358 NLRB 54 (2012), where the trans-
portation coordinators were appointed by the union and the union ad-
mitted that they were its agents within the meaning of Sec. 2(13) of the
Act. See supra at 57–58 and fn. 13.
25 On subsequent examination by the General Counsel, Hogan
acknowledged that he tried to have a phone conversation with Colli in
the spring of 2011, but Colli told him he did not want to talk to him
about it (Tr. 263).
The General Counsel also cites Maxwell’s testimony (Tr.
183–185) that the Union stopped sending him dues notices and
refused to accept his dues in June 2011. However, there is no
substantial record evidence that the Union requires workers to
be members in order to be included in the movie book.26 Alt-
hough Maxwell testified that all referral employees doing mov-
ie work are members (Tr. 163, 165), the basis for his
knowledge of other employees’ membership status was never
established. Indeed, both he and other employee witnesses
testified that they assumed or believed that the transportation
coordinator also must be or is a union member (Tr. 67, 76, 162,
166), even though, as discussed above, the record shows the
opposite.
Further, as noted by the Union, the relevant provisions of the
sideletter addendum to its agreement with Third Act (also quot-
ed in full in part I.B above) specifically state that referrals
“shall in no way be affected by union membership” (GC Exh.
2). Contrary to the General Counsel’s posthearing brief (pp. 2–
3, 11), nothing in the parties’ stipulation of facts (GC Exh. 8) or
the movie book (GC Exh. 24) indicates that the parties have not
complied with these provisions or otherwise required member-
ship as a condition of being included in the book or hired. Nor
does Hogan’s testimony support such a conclusion. Hogan
testified that he did not hire Maxwell on “Autumn Frost” be-
cause Maxwell told him that he was “suspended” from the list,
not that he was no longer a union member (Tr. 262–263). This
is consistent with Maxwell’s testimony that Jain had previously
assured him during their first conversation that he was “just
suspended off the list,” and not “out of the Union,” and that his
subsequent conversation with Hogan occurred in May, before
he found out that the Union would no longer accept his dues
(Tr. 159, 167). Moreover, Hogan testified that he did not know
if referral employees have to be members of Local 727, and
that he “never really thought about” it. Although he testified
that he has “always just hired union members,” he explained
that by “members” he meant “guys that were . . . associated
with . . . the Union somehow,” and that he did not know wheth-
er the individuals in the movie book were actually dues-paying
union members in good standing. (Tr. 250–251.)
Finally, the General Counsel cites Maxwell’s testimony (Tr.
178–179) that he has not been hired for any movies since his
suspension. However, as discussed above, it is the movie pro-
duction company (through its transportation coordinator), and
not the Union, that selects and hires the crew for movie work.
Further, Hogan testified that he did not hire Maxwell on “Au-
tumn Frost” because Maxwell himself told him he was sus-
pended, not because the Union told him Maxwell was suspend-
ed or ineligible for movie work. And no evidence whatsoever
was introduced by the General Counsel regarding the reasons
Maxwell was not selected or hired for any other movie or tele-
vision productions.

26 Nor is there any such unfair labor practice allegation in this case.
Cf. Boilermakers Local 154 (Western Pennsylvania Service Contrac-
tors Assn.), 253 NLRB 747 (1980), enfd. mem. 676 F.2d 687 (3d Cir.
1982) (union’s systemic discrimination against nonmembers in the
operation of hiring hall violated Sec. 8(b)(1)(A) and (2) of the Act).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

728
Accordingly, for all the foregoing reasons, this last allegation
is dismissed in its entirety.27
CONCLUSIONS OF LAW
1. By failing to adequately and timely notify everyone on its
trade show referral list of its 12-month “will call” rule and sus-
pending Ron Maxwell and refusing to refer him to any trade
shows with signatory employers since April 2011 because he
allegedly violated the rule and/or for discriminatory reasons,
Teamsters Local 727 has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(b)(1)(A)
and (2) and Section 2(6) and (7) of the Act.
2. The Union did not otherwise violate the Act as alleged in
the complaint.

27 The complaint also includes a general allegation that Local 727
failed to apply objective criteria in making referrals to “Autumn Frost”
(GC Exh. 1(c), par. IX(b); GC Exh. 1(e); and Tr. 17–18). The General
Counsel, however, failed to offer any substantial evidence in support of
this allegation, i.e., there is no substantial record evidence that the
Union failed to use objective criteria in deciding who was eligible to be
included in the movie book that was provided to Hogan. Indeed, the
General Counsel’s posthearing brief does not even address the allega-
tion. Accordingly, this allegation is dismissed as well.
REMEDY
The appropriate remedy for Local 727’s unlawful conduct is
an order requiring the Union to cease and desist and to take
certain affirmative action. Specifically, the Union will be re-
quired to rescind Maxwell’s suspension and to make him whole
for any loss of earnings and other benefits that may have result-
ed from its unlawful conduct.28 Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest compounded daily as prescribed in New Horizons,
283 NLRB 1173 (1987), and Kentucky River Medical Center,
356 NLRB 6 (2010), enf. denied on other grounds sub. nom.
Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir.
2011). The Union shall also be required to remove from its
files any reference to Maxwell’s suspension from the trade
show referral list, and to notify Maxwell in writing that this has
been done and that the suspension will not be used against him
in any way. In addition, the Union will be required to post a
notice in accordance with J. Picini Flooring, 356 NLRB 11
(2010). See, e.g., Teamsters Local 25, 358 NLRB 54 (2012).
[Recommended Order omitted from publication.]

28 As indicated above, the record indicates that the Union also sus-
pended four other individuals on May 31 for their “failure to take calls
in the referral system.” However, both the charge and the complaint are
narrowly drafted and there are no unfair labor practices alleged or af-
firmative remedies sought with respect to anyone but Maxwell.