T.K. Productions

National Labor Relations Board - Board Decisions

Sep 18, 2000

332 N.L.R.B. 110 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
T.K. Productions, Inc. and Sean O. Walby. Case 28–
CA–15522
September 18, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On February 22, 2000, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief.1
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 exceptions and briefs and has decided to affirm
the judge’s rulings, findings,2 and conclusions3 and to
adopt the recommended Order.

nix.

1 The Respondent filed a request for leave to file a brief in response
to the General Counsel’s reply brief, or, in the alternative, a motion to
strike the General Counsel’s reply brief. The Associate Executive
Secretary denied the Respondent’s request for leave to file a response
brief, and the Respondent filed a special appeal of the Associate Execu-
tive Secretary’s decision. The special appeal of the decision of the
Associate Executive Secretary is denied because, as he stated, the
Board’s rules do not provide for such briefs. The motion to strike the
General Counsel’s reply brief is also denied. The General Counsel’s
reply brief is properly limited to matters raised in the Respondent’s
answering brief.
In addition, we deny the General Counsel’s motion to strike the at-
tachments to the Respondent’s answering brief. We have not, however,
considered information pertaining to the lawfulness of Local 104’s
hiring hall list, as that issue is not before us.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that Sean O. Walby exaggerated in
his testimony, and specifically when he testified that Swain recom-
mended him to Mary Courtney, and that Courtney, in turn, recom-
mended him to Tommy Tancharoen, we do not rely on the judge’s
further commentary regarding that testimony. We also do not rely on
the judge’s speculation that Swain informed Courtney that Walby was a
member of Teamsters Local 2.
We adopt the judge’s finding, based on credibility, that Brian Stea-
gal did not tell Walby that he could not hire him because it would cause
disharmony on the set. We do not rely on the judge’s speculation that
Walby’s presence on the set would not in fact have caused disharmony
among the employees.
We adopt the judge’s finding that Walby’s decision to travel to
Phoenix to obtain chiropractic treatment and to have work done on his
recreation vehicle does not demonstrate that Respondent had offered
him a job, but we do not find it necessary to rely on the judge’s
speculation as to Walby’s motivation in traveling to Phoe
We find merit in the General Counsel’s exception to the judge’s
finding that, “Local 104 stood behind the qualifications of the persons
on [its list], assuring that they were Arizona-experienced motion picture
industry drivers.” The record does not support such a finding.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Paul R. Irving and John T. Giannopoulos, Esqs., for the General
Counsel.
Steven Drapkin, Esq., of Los Angeles, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Phoenix, Arizona, on December 7–8, 1999. The
original charge was filed November 6, 1998,1 and amended on
January 28, 1999. The complaint was issued by the Regional
Director for Region 28 on January 29, 1999, and alleges that T.K.
Productions (Respondent) violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by withdrawing an offer
to hire Sean O. Walby (Walby) because he was not a member of
Teamsters Local 104. Connected to that allegation are additional
allegations that Respondent violated Section 8(a)(1) in several
ways, including coercive interrogation about Walby’s union af-
filiation and saying he would not be hired unless he was a mem-
ber of Local 104. Respondent denies that it ever offered a job to
the Charging Party and denies the 8(a)(1) allegations.
Issues
The principal issues here are twofold: The first is one of
credibility on at least three fronts. Did Respondent ever offer
employment to the Charging Party? If so, did it withdraw the
offer? If so, is Walby more credible than Respondent’s transpor-
tation captain, Brian Steagall, when Walby claims, and Steagall
denies, that Steagall said that hiring a nonmember of Local 104
could create friction among the drivers and it was for that reason
the offer had been withdrawn? The second issue is whether Re-
spondent did anything illegal by admittedly hiring only from a
list provided by Local 104 (which was not operating a hiring
hall), particularly in circumstances where the General Counsel
has not shown: (a) that Respondent was under any compulsion to
hire from that list or, (b) that the list was somehow discrimina-
tory. In addition, the General Counsel has alleged several viola-
tions of Section 8(a)(1), mostly interrogation.
The parties have filed briefs which have been carefully consid-
ered.2 In addition, I have determined inadmissible the material

3 We do not rely on the judge’s conclusion that even if the hiring hall
list was limited to Local 104 members and was part of an exclusive
hiring system, there would be no violation. Reading Anthracite Co.,
326 NLRB 1370 (1998); Cuneo Eastern Press of Pennsylvania, Inc.,
168 NLRB 523, 527–528 (1967); Wolf Trap Foundation, 287 NLRB
1040, 1041–1042 (1988).
In dismissing the allegation concerning an interrogation by Court-
ney, we rely only on the judge’s discrediting of Walby’s version of his
interview with Courtney.
1 All dates are 1998 unless otherwise indicated.
2 The General Counsel filed a motion to strike a portion of Respon-
dent’s brief, some correspondence between Respondent’s counsel and
the Regional Office dealing with possible remedies. The motion is
332 NLRB No. 14
T. K. PRODUCTIONS 111
set forth in Joint Exhibit 1, paragraph 3, and its subparagraphs, a
stipulation (in which admissibility had been reserved), dealing
with consolidated Cases 28–CA–15649, 28–CB–5077, and 28–
CB–5112.3
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation, headquartered in Los
Angeles where it is engaged in the motion picture production
business, specifically a motion picture entitled, “Three Kings.”
During the 12-month period ending November 6, 1998, it admits
that it purchased and received within California goods and mate-
rial from sources outside the State valued in excess of $50,000.
Accordingly, Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits and I find that Teamsters Local
104 is a labor organization within the meaning of Section 2(5) of
the Act.

denied as the material is harmless. Respondent filed a motion to strike
a portion of the General Counsel’s brief relating to alleged misconduct
by Local 104, which is not a party here. While I do not grant the mo-
tion, the material should not have been referenced as Local 104’s con-
duct is not before me. Indeed, Local 104’s counsel has written a letter
to me complaining of the General Counsel’s representations, considera-
tion of which the General Counsel opposes. The parties are advised
that the General Counsel’s assertions regarding Local 104’s conduct
have been disregarded. I have also disregarded any factual representa-
tions which are outside the record as made at the hearing. The General
Counsel’s motion to correct the record is granted.
3 There are several reasons for this conclusion. First, consolidated
Cases 28–CA–15649, 28–CB–5077, and 28–CB–5112 were settled,
apparently informally. There is no reason to conclude from a settled
case that any violation of law occurred. This is particularly so when a
party, here the General Counsel, seeks to use the settled conduct as
evidence that Respondent is likely to have behaved in the same manner.
Teamsters Local 70 (C & T Trucking Co.), 191 NLRB 11 (1971);
Tri-State Building & Construction Trades Council, 257 NLRB 295
(1981). Second, this usage runs afoul not only of the familiar prior bad
acts bar [Fed.R.Evid. 404(b)], but third, afoul of the rule prohibiting the
substantive use of character evidence. See Fed.R.Evid. 404(a) which
states: “Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on
a particular occasion, except[ions not pertinent here].” In this proffer
the General Counsel wishes to show by prior acts which he deems
illegal, that such acts demonstrate a corporate character which tends to
show that Respondent behaved similarly in the incidents set forth in the
complaint. That effort is specifically barred by the rule. Finally, there
is real doubt that the offer is relevant under Fed.R.Evid. 401. The
incident in consolidated Cases 28–CA–15649, 28–CB–5077, and 28–
CB–5112 involved a different division of the corporation, different
managers and supervisors and an unrelated labor union, the Interna-
tional Alliance of Theatrical and Stage Employees (IATSE), not the
Teamsters. It also involved different job applicants having different
backgrounds. Finally, it involved actual evidence of IATSE interfer-
ence in the job application process, a major factual difference from that
alleged and proven here. Relevance is problematical in that circum-
stance. Taking the matter as a whole, I have concluded that par. 3 of
the stipulation is inadmissible.
II. ALLEGED UNFAIR LABOR PRACTICES
Background; Undisputed Facts
Respondent, although not a member of the Alliance of Motion
Picture and Television Producers (AMTPT), a Hollywood mul-
tiemployer collective-bargaining organization, is nonetheless
bound by the AMPTP’s collective-bargaining contract with
Teamsters Local 399, the Transportation Drivers Union in Los
Angeles (the Hollywood Teamsters). That contract, known in the
industry as the “Black Book,” is in evidence here. It provides
that when a producer is filming in a distant location in the 11
western States it need not hire drivers from the Hollywood
Teamsters roster but may hire locally so long as it pays the
AMPTP contract wage rate or better. It does inferentially suggest
that the drivers be hired through sister Teamsters Locals having
jurisdiction where the work is being performed. See section V,
paragraph 30 (p. 116) of the Black Book. The Teamsters Local
in Arizona which can provide such drivers is Local 104.
Walby is a 38-year old Wyomingite who is trying to earn a liv-
ing in the motion picture industry as a driver, stagehand, and
service support person. His permanent residence is in Jackson,
Wyoming. At the time of the incidents involved here, Walby
was a member (on honorable withdrawal due to lack of work) of
Teamsters Local 2 of Butte, Montana, which apparently has ju-
risdiction in Wyoming. In addition to being a Teamster, Walby
also maintains membership in IATSE, Local 339 of Great Falls,
Montana. He has been a teamster since 1996 and an IATSE
member since 1997. His work in the industry precedes his union
memberships by several years. It is fair to say that Walby has no
Arizona experience. Most of his work was performed in Wyo-
ming and Montana. As a result, he was simply not known in
Arizona. In fact, his entire motion picture experience is quite
modest.4
4 His first job was a 3-week stint as a driver in 1991 for a film shot in
Jackson called “Lakota Moon.” His next job was in 1993. From 1993
until 1996, he had 10 jobs with employers who were filming commer-
cials and music videos in the Wyoming/Montana/Utah areas. This
work invariably lasted only 2–3 days. Only 1 of the 10 was as a driver.
In April 1996, Walby obtained employment as a scout driver for the
director of a Hollywood movie, “Starship Troopers,” shot in Wyoming
and South Dakota. It was this period of employment which led him to
become a member of the Teamsters. That production was bound to the
Hollywood Teamsters contract. He worked for about 3-1/2 months in
various capacities for that production company.
This was followed by employment on several Wyoming based non-
union commercials and a professional wrestling television show, none
of which involved driving. As before the commercials were only of
several days duration. In April 1997, he was hired by Walt Disney Co.,
to work as a fuel truckdriver for the film “The Horse Whisperer,” a job
which lasted about 4-1/2 months. This job, like “Starship Troopers,”
was one which was covered by the Hollywood Teamsters contract.
Walby’s employment was entirely in Montana.
That job was followed almost immediately by another Montana job
for a Hollywood production, “The Patriot.” Walby served as a driver
from September through November 1997, again under the Hollywood
Teamsters contract.
In 1998, he performed short-term work on two nonunion commer-
cials and one nonunion documentary film. One of the commercials was
in Phoenix, but on that job he worked for a food service vendor for 2-3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
Even so, he has been bitten by the motion picture bug and has
become very energetic in attempting to obtain work in the indus-
try. He keeps abreast of films which are to be shot throughout
the West and will take steps out of the ordinary to get hired.
Shortly after his 2-week “Touched by an Angel” job ended in
late August, Walby learned that Respondent was about to begin
hiring drivers for the Arizona portion of the film “Three Kings,”
which he had learned was connected to the Warner Bros. Studios
and which was in preproduction at the Warner Bros. lot in Bur-
bank, California. Portions of the film were to be shot at an
Asarco copper mine near Casa Grande.5 Temporary offices were
established there in September. Later, in early November, other
portions of the film were shot near El Centro, California, and in
northern Mexico.
According to Walby, sometime between September 10 and 28,
he called Warner Bros. in Burbank and was eventually connected
to Respondent’s transportation coordinator, Tommy Tancharoen.
He began by introducing himself as a teamster from Jackson
Hole with industry driving experience. At that point Tancharoen
was just beginning to determine what his transportation needs
would be in Arizona and he politely put Walby off, telling him
only to keep in touch. Indeed, Walby’s was just one of many
similar inquiries which Tancharoen had to field. Walby followed
up his call to Tancharoen by faxing a copy of his resumé to War-
ner Bros. The fax was eventually routed to Tancharoen.
Despite Tancharoen’s lack of encouragement, Walby decided
to go to Casa Grande to try to get hired, a road trip of a little over
1000 miles. He left Jackson in his motorhome on October 18,
arriving in Phoenix on October 21. He had made that decision
after a three-party telephone call with two of Local 104’s busi-
ness agents, Bob Shetler of the Phoenix office and another from
the Tucson office. During that conversation Walby asked to be
placed on Local 104’s driver/wrangler roster list. Both the Sep-
tember 30 and November 6 versions of that list are in evidence.
Either during that conversation or from other information avail-
able to him, Walby had learned correctly that Respondent was
going to use that list as its source for Arizona drivers. He says
Local 104 did not place him on that list immediately.6 According
to Walby, at 5:34 p.m. on October 30, Shetler advised him by a
telephone page that he’d been placed on the list. The November
6 version includes his name.
The list is an extracontractual document.7 It is maintained by
Local 104 for the convenience of any production company who

days. The documentary film work was in Wyoming and South Dakota,
an 8- or 9-day driving job.
In August 1998, he obtained 2 weeks work as a driver for Caroline
Productions which was shooting an episode of the television series,
“Touched by an Angel” in Salt Lake City. According to Walby it was a
nonunion job and he worked as a nonunion driver.
5 Casa Grande is located about 50 miles south-southeast of Phoenix,
roughly halfway to Tucson.
6 Walby says that during the call the business agents agreed to put
him on the list. Based on that, he says he telephoned Tancharoen in
Burbank to inform of that fact. He says Tancharoen told him, “Good,
because now I can call you off the list.” Tancharoen says he only
spoke once on the phone to Walby, describing the introductory Sep-
tember call, thereby denying the second call occurred.
7 In fact, Respondent does not have a direct collective-bargaining re-
lationship with Local 104. As noted above, its contract is with the
wishes to hire experienced motion picture industry drivers in
Arizona. Local 104 will provide that list to any Hollywood
AMPTP producer who asks, but the producer is not obligated to
use it. It is not, in any sense an exclusive hiring hall. Indeed, it
may fairly be argued that it is not a hiring hall at all. Even so,
counsel for the General Counsel asserts that the September 30 list
is somehow discriminatory, contending that it was limited to
Local 104 members only, and that Local 104 delayed amending
the list unfairly. Yet, whatever Local 104 did or did not do with
the list is not before me. That labor organization is not a respon-
dent here. Walby’s unfair labor practice charge against it, Case
28–CB–5048 was dismissed by the Regional Director. More-
over, there is no competent record evidence regarding the manner
in which Local 104 compiles or maintains the list.8 The one
thing which Respondent knew about the list was that Local 104
stood behind the qualifications of the persons on it, assuring that
they were Arizona-experienced motion picture industry drivers.9
In the meantime, in September, Tancharoen had hired two in-
dividuals to help him with the upcoming Arizona hires. The first
was Tom Whelpley, the transportation captain,10 with whom
Tancharoen had frequently worked. The second, on Whelpley’s
recommendation, was Brian Steagall who served as acting trans-
portation captain in Arizona during the period in question. Stea-
gall was highly experienced and knowledgeable about Arizona
industry-experienced drivers. He, like Whelpley, is a member of
the Hollywood Teamsters,11 but had lived in Arizona and previ-
ously been a member of Local 104.12 In hiring Whelpley and
Steagall, Tancharoen acquired a wealth of information about
Arizona drivers and vendors.
Tancharoen testified about the nature of the drivers he wanted
aboard: “In my work, [the] transportation department is sort of a
big department. I have a lot of responsibility for a lot of depart-
ment[s] and I need experienced people to make my job easier so
we don’t have to keep watching how everybody is doing. The
better group you hire, the better you are of operating your job.
So I was entertaining hiring everybody that had a good recom-
mendation and a good experience to work for me.”
When Steagall arrived in Arizona, he set about fulfilling
Tancharoen’s instructions. To those he added, “I needed people
that were very familiar with the area, the Phoenix and Casa
Grande areas.” He well knew that Local 104 maintained a list of

Hollywood Teamsters. Local 104 essentially serves as the Hollywood
Teamsters’ field agent. See the arrangement as it is described in GC
Exhs. 5, 6, and 7, correspondence between the producer and Local 104.
8 No witness who testified had first-hand knowledge of how Local
104 administered the list.
9 That Arizona can provide experienced motion picture industry em-
ployees in all crafts is beyond doubt. One of the nation’s oldest non-
Hollywood/New York sound stages, Old Tucson, is located about 15
miles west of Tucson. The Board has decided at least one case involv-
ing that theatrical venue. Old Tucson Corp., 269 NLRB 492 (1984).
10 Whelpley was carried on the payroll as a transportation coordina-
tor.
11 Tancharoen, too, is a member of the Hollywood Teamsters.
12 The parties have stipulated that Tancharoen and Steagall were su-
pervisors and agents as defined by the Act. Whelpley’s status under the
Act is immaterial to this case as he did not participate in the transac-
tions under scrutiny here. Even so, he was involved in hiring many of
the drivers and is no doubt a supervisor as well.
T. K. PRODUCTIONS 113
drivers with appropriate experience. Indeed, Steagall knew most,
if not all of the drivers on the list. In fact, the record, with one
possible exception, demonstrates that Tancharoen hired no Ari-
zona driver who had not been recommended by either Steagall or
Whelpley, unless Tancharoen had personal knowledge of his
own.
Tancharoen hired Steagall on October 16 or 17 and instructed
him to go to Casa Grande to oversee the driving jobs required
there. He arrived on October 18. He apparently had with him a
copy of Local 104’s September 30 driver’s list.13 Although he
could not be specific, he testified that he had only one conversa-
tion with Business Agent Shetler about the list. That, he says,
was to try to get current telephone numbers of some of the people
on it. The list, as written, contains no addresses or telephone
numbers for the persons on it. (Steagall maintains his own ad-
dress book which had most of that information, so was not much
handicapped by the list’s omissions.) He says Shetler told him he
would get the missing information but never did. Walby was not
discussed during this conversation.
Several Arizona drivers, Tim Edwards, Danny Edwards, Kip
Wolverton, and Fred Steagall (Brian’s father),14 had been hired
before Steagall arrived. These joined about 10 Hollywood
Teamsters who had previously been hired in Los Angeles. After
Brian Steagall arrived in Casa Grande he recommended the hire
of Robert Trout and Rick Currens whose first day was October
25. Fred Liberman came to work on October 26, presumably on
Whelpley’s advice. Monty Lira followed on October 27, based
on Steagall’s endorsement.
A review of General Counsel’s Exhibit 8, the employment run,
reveals that there were about 14 drivers on the production on
October 22, the first day Walby arrived at the site outside Casa
Grande. Almost immediately that number grew by 4, those
named above, for a total of 18. These drivers were engaged in a
variety of duties. Some were involved in building a temporary
road, some carried passengers, others were scouts, while yet
others hauled trailers of various types, no doubt performing the
necessary loading/unloading work.
Walby at Casa Grande
Upon his arrival in Phoenix on October 21, Walby went to Lo-
cal 104’s office and spoke to Business Agent Shetler, ostensibly
to thank Shetler for putting him on the driver’s list. He says
Shetler told him, however, that there was some delay and they
were still working on it.
The following day, Walby drove his RV to the Casa Grande
location. There, he hung around with the security personnel until
someone pointed Steagall out to him. He testified on direct re-
garding how he met Steagall and what happened:

A. (WITNESS WALBY): He [was] talking with some
of the other individuals and I then introduced myself to him.
Q. (MR. GIANNOPOULOS): And what did you tell
Mr. Steagall?

13 The September 30 version had been faxed to Tancharoen on Octo-
ber 13.
14 Walby, somehow, came to believe that Fred Steagall was the same
person as Red Steagall, the country and western recording artist.
A. I told him I was Sean Walby and I had been talking
to Tom Tancharoen, that I was a teamster with production
experience and that I was in the process of getting on the
motion picture driver’s list.
Q. Did you say anything else to him? Did you tell
him—I’m sorry, did you say anything else to him?
A. I said—yeah, we got talking about various individu-
als that we both had worked for in the industry, different
names of different people, different shows, that sort of thing
and he said that Mr. Tancharoen would be coming in the
following Wednesday, Wednesday, October 28th.
Q. Did Mr. Steagall say anything else to you regarding
your conversation then?
A. No, like I—again, to recant [sic], you know, I told
him I was in the process of getting on the list.

On cross, his testimony expanded:

Q. BY MR. DRAPKIN: Okay, so when you first met
Mr. Steagall did you tell him what you were most interested
in doing on the show was construction work?
A. Oh, absolutely not, sir. The extent of our conversa-
tion is in both those text[s]15 that you have and one does not
dispute the other.
Q. Okay, so if Mr. Steagall’s recollection is that you told
him you were most interested in getting a construction job,
would you dispute that?
A. Oh, most definitely, sir.
Q. Did you tell him in that meeting that you were a
Teamster from Montana?
A. Yeah, I’m probably sure I told him that I was a
Teamsters from Local 2.
Q. You volunteered that fact?
A. Yeah, I sure did.
Q. Because you thought being a union member would
help you get work, right?
A. That’s what I am, sir. Right, that’s what I am.
Q. So you were advertising that you were a union mem-
ber. That’s a correct characterization, right?
A. I was informing him that I was in the union, yes, sir.
Q. Okay, and he didn’t ask you if you were or weren’t in
the union.
A. Sir, on that particular I cannot remember.
Q. You can’t remember.
A. That’s right.
Q. Okay. In terms of his interest in you, he was ex-
tremely noncommittal, correct?
A. Well, no, I asked him—I asked him during a conver-
sation, “Are you going to be hiring some drivers”, and he
gave—Brian, if you know about him, he gave a big nod
with his head, “Lots of drivers.” He propped himself up,
big show. Big show, “We’re going to need lots and lots of
drivers.” That’s what he said to me and he told me—I told
him that I had talked—had been talking with Tommy
Tancharoen about going to work on the show and he told
15 Referring to the NLRB affidavit and the supplemental statement
which he wrote later.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
me that Mr. Tancharoen was coming in the following
Wednesday, which would have been a Wednesday the 28th.
Q. Is this the meeting where you said he said that he was
going to recommend you to Mr. Tancharoen?
A. Oh, certainly not, sir. This was a brief encounter, a
very brief encounter.

Walby continued to hang around the site for several days and
on October 26, persuaded production coordinator Lisa Swain to
hire him for a 1-day job unloading a van, fixing a door jamb, and
placing some office furniture. This job was not considered to be
a Teamsters job (nor, apparently, an IATSE job). He says Swain
liked his work and told him she would recommend him to both
Mary Courtney, a production supervisor, and to Tancharoen. He
says that Swain told him the movie was a “union job”16 and
asked if he was a member of any union. He told her, he says, that
he was a member of both Teamsters Local 2 and IATSE. Neither
Swain nor Courtney had any responsibilities or authority with
respect to the transportation department. They worked in an
entirely different division, production. Walby, however, would
have taken a job with any of Respondent’s departments, if of-
fered.
Later that day, according to Walby, he had another conversa-
tion with Steagall. He testified:

Q. (BY MR. GIANNOPOULOS): And did you have
any other discussions with Mr. Steagall about working for
TK Productions that day?
A. Yeah, we talked about the motion picture industry,
the ins and outs and different things and he understood that
this is what I did for a living. That I’d worked on produc-
tions before, that I was a professional and that when Tom
Tancharoen came in he would understand this, that I need to
talk to Tom Tancharoen when he arrived in Casa Grande
and that he would recommend me for hire to Mr.
Tancharoen. [Emphasis added.]

On cross, Walby said that Steagall had told him sometime be-
tween October 27 and 28 that he would recommend him for hire
to Tancharoen. This claim that Steagall told Walby he would
recommend him to Tancharoen is omitted from both his NLRB
affidavit as well as a supplemental statement he put together
sometime later. Steagall denies that he ever told Walby that he
would recommend him to Tancharoen and further says he never
did so. Steagall only went so far as to observe to Tancharoen at
one point that Walby seemed like a nice guy who was looking for
work, hardly a recommendation for hire.
It is difficult to credit Walby here. At that time Walby had
never worked for the transportation department and only mo-
ments before had completed a 1-day laboring job for Swain’s
department. Steagall didn’t have any exposure to Walby’s work
at that point, and even if Swain told him she liked Walby, it
would not have impelled Steagall to tell Walby that he would

16 The General Counsel finds Swain’s description to be evidence of
Respondent’s discriminatory attitude. I cannot agree. As Respondent
was bound by at least two collective-bargaining contracts, Hollywood
Teamsters and IATSE, if not more, I find such a remark to simply be a
factually accurate description of the nature of the working conditions
extant there.
recommend him to anybody, much less Tancharoen. He didn’t
have sufficient knowledge to do so.
Having impressed Swain, and continuing his persistence,
Walby obtained an interview with Courtney on October 28. He
says he went to see her because, “Because Lisa Swain and her
entire production staff had recommended me to go see her.”
(Emphasis added.) I find his testimony here to be an example of
what is found throughout Walby’s testimony. He frequently
embellishes for his own advantage. It is not sufficient for him to
say that Swain suggested he see Courtney about employment; he
has to insist that it was the unanimous opinion of her entire staff.
Similarly, when being asked about his conversation with Court-
ney, he gave the following answer (which was unresponsive to
the question but which continues to make the point): “She said
that she had high praise for me about my abilities from Lisa
Swain and the entire production staff and she was going over to
recommend me, personally recommend me to Tom Tancharoen.”
(Emphasis added.) Here he wishes to leave the impression that
the staff was large and that it unanimously believed his 1-day
laboring job had been done so well that Courtney would recom-
mend him to Tancharoen in the transportation department.
Rather than helping his cause, such testimony only triggers skep-
ticism. Walby’s approach to factual presentation suggests that
objectivity is not available from him.
In any event, on October 28 Walby met with Courtney. As he
understood it, Swain had previously paved the way for him.
Swain, of course, knew he was a member of Teamsters Local 2
and the IATSE. Given Walby’s openness about that fact, it is
entirely probable that Swain had passed that information on to
Courtney. Apparently wanting to hear it for herself, according to
Walby, she asked him if he was a member of any union. From
that question, Walby concluded that Courtney did not know of
his union memberships prior to the interview. He answered,
again reciting both union memberships. Courtney also reviewed
his resumé. He says she also asked if he was on “any of the local
lists.” He replied that he had received inconsistent information
about Local 104’s list and that he was on the IATSE studio me-
chanics list.
As a result of that interview she offered Walby a job as a pro-
duction assistant. That job would have included driving the
movie’s star, George Clooney, whenever he was on the set as
well as performing other duties for Clooney. Walby thought it
over. He became concerned about two things. First, because
Clooney was not on the set full time, he considered it to be only a
part-time job. Second, he wanted to drive as a teamster and this
job was not within the Teamsters’ jurisdiction. He told Courtney
that he would take the job as an assistant but would not drive
unless it was as a Ttamster. He says she told him that she would
take the matter up with Tancharoen who had just come to the site
that day. He says she left the room for awhile and upon her re-
turn advised that such an arrangement could not be made.
Tancharoen seems to confirm that she asked him something of
that nature, but he declined due to line item budget considera-
tions. Tancharoen characterized the job described to him as the
personal assistant to Mr. Clooney, a job which his transportation
budget did not cover. Either way, Tancharoen had no job open-
ings at that time. He says Courtney simply asked if he could use
Walby, and he replied he could not. (“I don’t know. I don’t
T. K. PRODUCTIONS 115
know, he’s on the list but I don’t have anything to offer him right
now.”)
Walby did not accept the job. The reasons he gave were the
same concerns he expressed earlier; it was parttime and it was
nonunion.
Walby did not actually meet Tancharoen until a day or two
later. He, Steagall and Tancharoen even differ on the number of
their meetings. Walby says he had discussions with Tancharoen
on Friday, October 30, and Saturday, October 31, and Wednes-
day, November 4. Tancharoen agrees they spoke on October 30,
but says they didn’t talk again until November 4, a date they both
agree upon. Walby and Tancharoen also have differing recollec-
tions about their encounter. Walby testified about their first talk
on October 30:

Q. (BY MR. GIANNOPOULOS):
Did Mr. Tancharoen introduce himself to you?
A No, Brian Steagall introduced me to Mr. Tancharoen.
Q And what did you say to Mr. Tancharoen?
A Well, I introduced myself and he said that, “Mary has
raved to me about you”. And I said, “Sir, would you be
needing some drivers on the show”?
Q. And did he reply to you?
A. Yes.
Q. Yes, he did reply? What was his response?
A.I said would you be able to—I said—more specifi-
cally, I said to him, would you be able to use me on the
show”, and he said, “Yes.”
Q. Okay, did he—did you ask him when?
A. Yes, and the next thing that I said was, “When would
you be able to use me”, and he said, “Next week,” which
was the week of November 1st through the 7th.
Q. Did you say anything else to him?
A. Yes, I said I was having major problems getting on
the Arizona movie list and he said that he would talk to Bob
Shetler on my behalf.
Q. How did you leave your conversation with Mr.
Tancharoen that day, Mr. Walby?
A. That I would follow up with him on Tuesday, No-
vember 3rd.

Walby’s testimony on direct raises some questions. Why
would Tancharoen say Courtney had “raved” about Walby? She
had offered him a job, but he had turned it down. For
Tancharoen to quote Courtney as having described Walby in
such terms seems beyond likelihood. Second, why would
Tancharoen offer to help Walby get on Local 104’s list, i.e., “talk
to Bob Shetler” on his behalf? He didn’t know Walby or his
work and he was relying on Local 104’s superior knowledge
about those on the list to assist him with his hiring.
On redirect, Walby added:

Q. (By Mr. GIANNOPOULOS) When did you believe
you were offered a job in the transportation department?
A. When I first talked to Mr. Tancharoen Friday after-
noon, October 30th.

This latter testimony raises the question: If Tancharoen had of-
fered him a job on October 30, why would Tancharoen simulta-
neously offer to help him with Local 104? It would have been
entirely unnecessary. And, although Walby’s description of what
transpired on October 30 did not include it, when he began testi-
fying about what occurred the following day, October 31, he said
the purpose of that conversation was to follow up on
Tancharoen’s offer of El Centro, California work to inquire when
it might begin:

(WITNESS WALBY) I asked Mr. Tancharoen if he
knew when he wanted to send me to California, when I
might be going to California because I wanted to take my
RV there to California and then I would live in that RV.
JUDGE KENNEDY: Just what he said, what you said,
not the reasons behind it.
THE WITNESS: Okay. So he said, gave a probable
date or a maybe date of November 11th.
.
Walby never actually described what work Tancharoen’s “of-
fer” in California would entail. He also says that it was during
the October 31 conversation with Tancharoen that he mentioned
moving his RV to El Centro. (Both Tancharoen and Steagall say
the conversation regarding moving the motorhome occurred on
November 4.)
Tancharoen testified regarding their October 30 discussion:

(WITNESS TANCHAROEN): . . . We arrived to the of-
fice and I believe Mr. Walby, he’s walked over to me and
introduced himself. He said he was—wanted to introduce
himself face to face because we never seen each other be-
fore [ . . . ] prior to conversation on the phone.
And he said—he asked me if would I going to be need-
ing him any time soon. I believe I said, “As of right now, I
don’t believe I have anything yet but just keep checking
with me”. And I think I asked, “Are you on the list”, and he
said he wasn’t sure because he was tried to call the right
person at the union and keep missing the person.
Q. (BY MR. DRAPKIN) Did he tell you that he thought
he was getting on the list or something to that effect?
A. He said he was trying to get on the list.
Q. Okay. And do you recall anything else about your
first conversation with him?
A. No, I was quite busy. The conversation last, two,
three, four, five minutes, I’m not sure. We just briefly—I
just wanted—there was a lot of people in the parking lot and
just needed to get back in the office, do other business and
that was the length of our conversation.
Q. Do you have any recollection—do you have a recol-
lection of a subsequent meeting with him; is that correct?
[. . . ] A second and last meeting with him, you testified that
you met with him twice.
A. Yeah, that’s prior to for me leaving for El Centro, in
early November.
Q. Okay, if I told you that he stated that he had a meet-
ing with you and Brian Steagall on November 4th, would
that—do you have any reason to dispute that date?
A. No, no.
Q. Is the meeting you have in mind the meeting in
which Mr. Steagall was present?
A. Yes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
Q. And now, without asking you about the second meet-
ing, did you have any communications from Mr. Walby be-
tween the first meeting and the second meeting?
A. I can’t recall.
Q. Is it possible?
A. Could possible, but I can’t recall.
Q. Did you ever offer him a job between the first meet-
ing and the second meeting?
A. No, sir.
Q. Did you ever suggest that you had a job for him be-
tween the first meeting and the second meeting?
A. No.

Walby testified, above (a) that he had been offered a job on
October 30 and (b) he and Tancharoen had left it for him to check
back on November 3. Yet he went on to describe an October 31
encounter, one which Tancharoen did not recall, but whose tes-
timony impressed me as denying it ever took place. Walby, as
noted above, says he spoke to Tancharoen that day to inquire
about a start date, learning that it might be November 11 in El
Centro.
Walby says as he left he gave Tancharoen his business card,
on which was written his Arizona pager number. Tancharoen
pinned the business card on an office bulletin board.
(Tancharoen testified that did not occur until November 4.)
Walby says he did not tell Tancharoen that he’d learned the night
before that he’d been placed on Local 104’s driver-wrangler list,
even though that had been a subject of their discussion the day
before. (In his affidavit, he says he did mention that fact to
Tancharoen.) In addition, he says he spoke to Courtney to tell
her he’d been hired.
He says, upon learning of that proposed start date he left Casa
Grande for Phoenix to get his motorhome overhauled in prepara-
tion for the trip to El Centro (about 235 miles west of Casa
Grande) and to undergo some chiropractic/acupuncture treatment
for a sore back 2 days later, both in preparation for the upcoming
job.
The General Counsel sees these preparations as inferential
support for Walby’s credibility. Why, they ask, would Walby
have done those things if he hadn’t been offered a job? Another,
and more reasonable, answer to that question easily presents
itself. If Walby was suffering from back pain, it seems likely that
he would seek immediate treatment whether or not he had a job
in the offing. In fact, if he was looking at a November 11 start
date as he says, and the acupuncture was to relieve the pain so he
could start work pain free, he wouldn’t have needed chiropractic
attention until closer to that date. Instead he sought it almost
immediately after October 31. That suggests his pain was suffi-
ciently unbearable as to require immediate attention, job or no
job. Similarly, if his RV was having mechanical problems, re-
quiring an “overhaul” as Walby said, it too would require near-
immediate attention. After all, he was over 1000 miles away
from his Wyoming home and needed to assure himself of the
vehicle’s reliability for the trip back. Depending on the problem,
it might even have needed attention for the Phoenix-Casa Grande
commute he was making. Accordingly, I reject the General
Counsel’s argument that these preparations support Walby’s
claim that Tancharoen offered him a job in El Centro. Those
were problems which needed attention no matter what.
During his stay in Phoenix, Walby spoke with Shetler who
confirmed the pager message of October 30 that he had been
placed on Local 104’s driver-wrangler list. The written version
of the modified list was not created until November 6 and did not
find its way to Respondent until shortly after that.
Walby says he returned to the Casa Grande office on the eve-
ning of November 3. According to Steagall, he and Walby spoke
that day about problems Walby was having getting on Local
104’s list. Walby knew the Union had told him he was on the
list, per the pager message and Shetler’s confirmation. Still, he
remained concerned because no copy of that list had actually
been sent to Respondent. Steagall testified:

Q. BY MR. DRAPKIN: Was there any discussion in
that meeting about the significance of the list?
A. Very briefly, I mean, the significance that it didn’t
matter to me if he was on the list or not. I mean—
Q. Did you explain why you didn’t think it was impor-
tant to you whether he was on the list or not?
A. My belief was because it was a right to work state,
you didn’t have to be on the list and that’s the way I always
approached it.
Q. And you discussed that with him in that meeting?
A. Yeah, I think so.
Q. Okay. Do you recall making comments to him about
Arizona being a right to work state?
A. Yes, I did.

Steagall says Walby then explained that he had been paying
hiring hall fees to Local 104 implying they should have put him
on the list.17
Walby at first denied that Steagall had ever spoken to him
about Arizona’s status as a right-to-work State. (“Oh, absolutely
and unequivocally no. I don’t believe him ever talking to me
about a right to work state.” “[Steagall] never made a comment
as far as I know about Arizona being a right to work state.”)
When confronted with his affidavit he made a concession, but
with a date limitation (“Oh, absolutely, I never—absolutely and
unequivocally never heard about—he never talked to me previ-
ous of November 4th about a right to work state, about union
dues, about this card, absolutely and unequivocally.”) In fact he
seems to deny that he had any discussion whatsoever with Stea-
gall on November 3.
Walby knew that in a right-to-work State an employee did not
need to be a union member to be hired or to work under a union
contract. He came from Wyoming where the same concepts
apply. Nonetheless, he believed it was important to stay on the
right side of the Union by either transferring his membership or
lodging his card with the Local (“dobying in” or paying whatever
fees they sought). He became somewhat obsessed with the fact
that he had paid money to Local 104 (explained to me as a hiring

17 Steagall: “I know that [Walby] kept telling me he was—he did
everything he had to do to be on the list, that he had paid his money and
he should be on there and I know he was telling me that he was talking
with them quite a bit in regard to how come I didn’t have a list with his
name on it.”
T. K. PRODUCTIONS 117
hall fee)18 and seemed to be getting nothing for it. He seems to
have talked about it to anyone who would listen.
In any event, between 6:30 and 7:30 a.m. the next day, No-
vember 4, Walby was again at Tancharoen’s Casa Grande office.
There he spoke with both Steagall and Tancharoen. The versions
of what was said are at wide variance.
Walby describes how it began: “[I]t was early in the morning
and I didn’t want to bother him. I stood at the doorway and Mr.
Tancharoen looked up, nodded at me, smiled and said, ‘We’re
getting close.’” Tancharoen denies using the phrase in such a
context, but Walby took it to mean Tancharoen was referencing
the job he says he believed he had been offered. Walby’s further
direct testimony:

Q. (BY MR. GIANNOPOULOS) Did anything happen
after Mr. Tancharoen made those comments?
A. Yes, they talked about not being—still not being on
the union list.
Q. Who is “they”?
A. I’m a little bit—I just have to take a deep breath here.
Okay, go ahead with your question.
Q. I’m sorry, you said “they talked about not being on
the union list”. Who is “they?”
A. He said—this was November 4th and he said—he
looked up to Brian Steagall as I was standing in the doorway
and there was a planter between the two desks and he started
discussing with Brian Steagall on when I would be brought
on. And they agreed that it would be November 7th.
Q. And did they—were they speaking to you?
A. They were speaking—
Q. I’m a little confused, Mr. Walby. Who is speaking to
you?
A. Mr. Tancharoen.
Q. Is speaking to you or to Mr. Steagall?
A. Yes, to Mr. Steagall at first and then he agreed with
Mr. Steagall and told me that I would be brought on the
show on November 7th, Saturday, November 7th.
Q. Did Mr. Tancharoen or–did Mr. Tancharoen tell you
what your duties were to be?
A Yes. He told me that I would be taking a five ton
truck loaded with office equipment and so forth, from the
production office to the headquarters in El Centro, Califor-
nia.
Q. And who—who told you that, I’m sorry?
A. Mr. Tancharoen.
Q. Did you say anything in response to that?
A. Yeah, I said, “I’m still having trouble getting on the
union list”, and he volunteered for the second time to talk to
Bob Shetler from which Steagall then came into the—then
made a statement that, “All you really need to”—I’m start-
ing to stutter a little bit here. All you needed to work on a
movie in Arizona, on a union show in Arizona was a copy
of your union dues and he went to—he pulled out of his
wallet a little receipt similar to this one that was brown and
white and said, “This is all you needed to have to work on a
union show in Arizona was”—

18 Hiring hall fees for nonmembers are generally lawful. J. J.
Haggerty, Inc., 153 NLRB 1375 (1965).
Q. Did you reply to that comment?
A. I did.
Q. What did you say?
A. I said, “I have one of these in my RV. I’ve been paid
since October 1st, I paid up three months in advance and—”
Q. Did you tell him to who you had paid this money?
A. Yeah, I had paid—I had paid it to the union and they
were hiring hall dues as I understood them to be.
JUDGE KENNEDY: Well, let me—to the union you
mean to Local 104?
THE WITNESS: Yes, sir.
Q. BY MR. GIANNOPOULOS: And did Mr.—did ei-
ther of them react to your comment or did they say anything
in response to your comment?
A. Yes. I continued with Steagall and I said, “As you
know these are hiring hall dues, since I am down here on
withdrawn from Local 2, Butte, Montana.” And
Tancharoen got very apprehensive and he flinched and he
looked up at me and said, “You mean you are not a member
of Local 104”.
Q. And did you reply to his comment, Mr. Walby?
A. I did. I went back and re-explained what I had just
explained to Mr. Steagall, I had just gone over with Mr.
Steagall, that I was a teamster from Local 2, Butte, Montana
on the Arizona movie list and I had paid my hiring hall dues
and the first day of the show I would either transfer in or
dobie in.
Q. Did they say anything in response to your comments?
A. Yeah, yeah. Mr. Tancharoen, like I say, he got very
apprehensive and he said to me, “You mean you’re not on
the 104—you’re not part of the 104 local.” And I said, “No,
I’m not.”

On cross, Walby repeated the phrase several times:
“[Tancharoen] was flinching and hedging and very unsettled
when I told him I was not 104. I believe I’d lost the job because I
was not in the 104, absolutely.” “I saw the way Mr. Tancharoen
acted as a man and say (sic) [saw] him flinch, be very unsettled,
and I talked to him about calling the international with all the
problems I had down here and he was unsettled very more, just
instincts. We have a third sense or a sixth sense, sir, and my
sixth sense was activated.” “I think I word (sic) [wrote] probably
in both text[s] that he flinched, in other words, like panic in his
eyes and I caught that. That’s what I felt.”
On further cross Walby added:

Q. (BY MR. DRAPKIN) As of November 4th, you
thought you were on the list and the only question is
whether or not these guys [Tancharoen and Steagall] had the
list, correct?
A. Well, no, Steagall told me, he said, “We need that
list.”
Q. When did he tell you that?
A. During the meeting of November 4th.
Q. You’re saying during the meeting of November 4th
Steagall said, “We need the list?”
A. “We need the list.” It’s in there, look.
Q. Did you tell him at that point, “Just call Shetler and
he’ll confirm it?”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
A. No, he told me to tell Shetler, which was crazy, out
of line. I’m just a humble laborer and I’m going to tell the
BA to send a list to these people in California who I hardly
know? Totally out of line. I just acknowledged, nodded my
head.
Q. You’re saying that in the meeting on November 6th
(sic) [November 4th] Steagall said, “We need the list.”
A. “We need the list,” he still hadn’t had an updated list.

Steagall testified that prior to the November 4 discussion, most
of his conversations with Walby did center around Local 104’s
movie list. Although Steagall was using the list to hire employ-
ees, he said that he knew he wasn’t obligated to do so. He also
says he knew he possessed a list which might be out of date. On
direct he said:

Q. BY MR. DRAPKIN: So was there some discussion
[with Walby] that you didn’t have a physical document that
had his name on it.
A. Exactly right, I did not have one, yes.
Q. Okay, but did you indicate to him that that was rele-
vant to you or irrelevant to you?
A. Yeah, I did. I mean, if—I mean, I certainly could
have picked up the phone and made the call to find out but it
did not—at that point it didn’t matter.
Q. Why?
A. Because I believed you didn’t have to be on the list to
be hired on the show.
Q. And did you have any interest at that point in time in
hiring him?
A. No, I didn’t.

Thus, even before the November 4 meeting, the witnesses are
in opposition. Walby claims a job had been offered to him on
October 30. Steagall says he had no interest in hiring him.
Walby says that during the November 4 meeting (and afterward)
Steagall told him they needed the list before he could be brought
aboard. Steagall says that the list didn’t matter to him as it was
not a bar to the hiring process, but even if it did, he knew the list
in his possession was a month old and he could check on any
updates simply by calling Local 104 to learn about them.
With respect to the November 4 meeting itself, both Steagall
and Tancharoen deny that Tancharoen ever told Walby that “we
are close” with respect to hiring him. Nor does Steagall recall
Tancharoen flinching when he learned (not for the first time) that
Walby wasn’t connected to Local 104.19
Both Steagall and Tancharoen agree with Walby that jobs
were discussed with Walby during that three-way meeting. One
was a possible drop load which involved driving an equipment
truck from Casa Grande to El Centro. The problem with that job
was that Walby would not have transportation back to Casa
Grande. Walby proposed taking his motorhome to El Centro,
leaving it, and finding his own back to pick up the drop-load.
Tancharoen discouraged that because there was no other job

19 Walby also described recounting for Tancharoen some conversa-
tions he had had with a Hollywood teamster and some International
Teamsters officials. Neither Steagall nor Tancharoen remembered that
as having occurred either.
awaiting Walby in El Centro and he didn’t like the idea of going
back and forth in the manner suggested.20
Tancharoen’s recollection is slightly different as well. His tes-
timony about the meeting:

Q. (BY MR. DRAPKIN): About what time of the day
did that meeting occur?
A. It’s early in the morning. I believe Brian Steagall al-
ready at the office. He’s inside the transportation office. I
drove into the parking lot and Mr. Walby was by the door to
come into the transportation office. I say hello to him and
he say hello to me back and he was asking if there was go-
ing to be anything for him yet and I said, “As of right now I
believe I don’t have anything”. And then I walked into the
transportation office and he followed me and stood by the
door of the transportation office.
And he said—and I think, I believe I said we might have
some construction going on in El Centro, but I don’t know
the exact date it’s going to happen. It maybe and maybe
not, it depended on the director decision because the particu-
lar set they were trying to build in El Centro, the producer
wanted the director to make a change and have it—bring it
to Arizona.
Q. Okay, so you told Mr. Walby that there might be
some construction work coming up in the future but it was
uncertain.
A. Uncertain.
Q. What did he say?
A. He said, well—he said, “I have a trailer”, a camping
trailer that he’s staying in. He said, “I can start moving that
to El Centro” and waiting for me there or waiting for some-
thing to happen. I said, “Well, don’t do anything yet. I
don’t want you to go through all the expense to take your
trailer there, rent the space to park it, because it may happen,
it may not happen.”

They also discussed the drop load job. Tancharoen said:

A. I believe I mentioned that we were going to have a
truck going to El Centro with the production office equip-
ment, furniture and fax machine and few odds and ends that
need to be set up in the production office in El Centro.
Q. And what did you say to him?
A. I believe I says, it would probably be a day just to do
the drop load, a day or two at the most.
Q. Okay. Did you offer him that job?
A. I said, “If you’re interested, it might be that but you
have to do a drop load and get transportation back to Ari-
zona.”
Q. That’s what you told him.
A. That’s what I did tell him.
20 Steagall: “Tommy and I and Sean, I think, discussed there might
be a drop load of office stuff out to El Centro but that wasn’t, you
know, it wasn’t a for sure job but it could happen. We discussed—I
think Sean at that point wanted to move his—when he heard that from
Tommy he was going to take his motor home—his RV out to El Centro
and park it there and I think I remember Tommy Tancharoen discour-
aging that because he wasn’t for sure if in fact he was going to be hired
on the show.”
T. K. PRODUCTIONS 119
Q. But at that time you said it was—did you tell him you
were offering him that or that that was a possibility?
A. It was a possibility. It wasn’t a major—I mean, like
an offer.
Q. And how did he respond to that?
A. He said that was fine.

Tancharoen says it was at that point that Walby handed him
his business card with his pager number on it, saying he was on
Local 104’s list now. He denies anything else occurred in the
meeting. Tancharoen denies there was any discussion of
Walby’s lack of membership in Local 104:

Q. (By Mr. DRAPKIN): Mr. Walby testified that you
reacted in surprise at some point when you said something
to the effect, “You mean you’re not a member of Local
104.” Do you recall that discussion?
A. I don’t recall that discussion.
Q. Do you believe that discussion did or didn’t take
place?
A. I don’t believe it took place. I mean if it took place
why would I be surprised because he introduced himself at
the first time when he make that telephone to me that he was
a Teamster from Jackson Hole, Wyoming.
Q. So as of the time of the meeting of November 4th,
did you have any understanding in your mind as to whether
Mr. Walby was or wasn’t a member of Local 104?
A. Could you repeat that question again?
Q. As of the meeting of November 4th, the meeting
we’re talking about, did you have an understanding that Mr.
Walby was or wasn’t a member of Local 104?
A. Well, when he handed me his business card and told
me that he’s on the list of 104, I mean, that’s—
Q. But in terms of being a member in terms of, you
know, who his card was with, did you have any understand-
ing as to whether he was or wasn’t a member of Local 104?
A. I don’t—I don’t think I really care whether he’s on[e]
or not. Basically when (sic) [what] he told me [is] he’s on
the list and that was basically was my understanding.

Tancharoen also denies there was any discussion about Ari-
zona being a right-to-work State or union dues or anything of that
nature.
Walby says the meeting concluded when he “agreed” to follow
up on November 6. He said he would do that even though, ac-
cording to his testimony on redirect, he believed he had already
lost the job. He believed it was lost even though he knew he was
on Local 104’s hiring list and Steagall had told him to tell Shetler
that Respondent needed an updated list.
This testimony is strange. First, there is the question of who
Walby was agreeing with when he says he “agreed” to return on
November 6. He believed, he says, that he had already lost the
job. If someone told him to check back on November 6, why
would he believe the job had been lost? Moreover, who actually
told him to return that day? Neither Tancharoen nor Steagall say
that they did so. Was Walby “agreeing” only with himself?
And, if one of those two did tell him to check back, why were
they doing that? To present a copy of the list with his name on
it? If the drop load was to take place on November 7, the date
Walby testified was given him on November 4, why would he
have to check back on November 6? They knew how to get him
by pager if the pickup’ time of day was an issue. Did they sug-
gest to him on November 4 that things were still unsettled and for
that reason he “agreed” that he would check back on November
6? It seems likely to me that he returned on November 6 because
he knew the offer remained uncertain. If that is true, what can be
made of Walby’s testimony about the purported offer of October
30? Can it be trusted? I do not think so.
The November 6 meeting occurred between 6:30 and 7:30
a.m. According to Walby, the only person in the Casa Grande
office was Steagall. Walby says he asked Steagall if things were
ready to go the next day. He says Steagall told him he had some
bad news, his hiring situation had changed. Walby’s testimony:
“He [Steagall] said that he had had a long chat with Tommy
Tancharoen after me being there at the office on November 4th
and that he thought that hiring me would cause disharmony on
the set and so forth and he helped persuade Tommy Tancharoen
not to hire me for the show.” On cross-examination, Walby
added that Steagall said the disharmony would be caused because
he wasn’t a member of Local 104.
Then, according to Walby, Steagall shifted gears: “[W]hat he
[Steagall] told me was that they didn’t think they’d need as many
drivers as they first thought. Then he made the statement that,
then again, they may need a lot of drivers because the production
and preproduction had been quite chaotic and if this chaos was
going to continue, perhaps it would be a runaway and they would
need lots of drivers.”
About then, Steagall’s telephone rang and stopped their con-
versation. The caller was Tancharoen and, according to Walby,
he walked outside to allow them privacy. A few minutes later
Steagall joined him on the lot and told him that Tancharoen had
instructed him to tell Walby that if he could find another job on
the show to take it.
Walby responded that he had other options and intended to file
unfair labor practices with the NLRB. (He had visited the
Board’s Regional Office in Phoenix the day before and had
learned about his rights.) He says Steagall told him that he didn’t
blame Walby if he filed charges, that there had been many prob-
lems with the unions in Arizona. Later that afternoon, Walby
filed against both Respondent and Local 104. As noted previ-
ously, the charge against Local 104 was dismissed by the Re-
gional Director.
Steagall recalls the November 6 meeting somewhat differently.
He was on the phone to Tancharoen at the time Walby entered
the office. He says: “Sean came to the office and it just so hap-
pened Tommy Tancharoen was on the phone and Sean was again
wondering why his name wasn’t on the list and I asked Tommy, I
said, “Look, if we’re going—is there going to be any work for
Sean on this show.” And at that point Tommy told me it didn’t
look like it.” As a result he told Walby that they weren’t going to
be hiring him. A short time later they met outside and spoke
again. He says they spoke of problems that movies had had with
the local union(s), specifically a local union in Kansas.21 At that

21 Steagall: “We had a discussion about different problems that the
local had. I think I told him about a show I did out in Kansas or some-
where that you know, we’d had problems with, you know, people com-
ing in from other locals and certainly not pertaining to this show.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
point Walby said he had another card to play and was going to
play it.
Steagall specifically denies saying anything to Walby during
that meeting regarding Walby’s presence on the job as being
likely to cause disharmony.
Tancharoen’s testimony seems to match Steagall’s insofar as
the telephone conversation is concerned. He had gone to El
Centro and was calling Steagall about something. He says: “We
were discussing several other matters and [Steagall] said—he had
mentioned that Mr. Walby is here again looking for employment
and I believe that I told him that—to tell him that we don’t have
anything right now and just if he have an offer with another pro-
duction, just go ahead and take it.”
The drop load was eventually carried out by one of the drivers
already on staff. No new hires were made until November 9, 3
days after Steagall had advised Walby that he should look for
work elsewhere. That individual was Randy Edwards. He was
hired to replace his brother Danny who suddenly transferred to
the special effects department. Randy Edwards was known by
both Tancharoen and Whelpley from previous employment. On
that same day, Respondent hired Chuck Henson. He had rented
his water truck to Respondent earlier, and also owned a trailer
that had been hauling live greenery for the outdoor sets. Because
of that connection Tancharoen offered him a direct hire job.
After that, on November 13, Respondent hired Doug Shetlar (no
relation to Business Agent Shetler; names are spelled differently)
to pick up some juvenile extras and their parents at the Phoenix
airport and transport them to El Centro. This was a decision made
by Tancharoen from El Centro.22 Then, on November 16,
Tancharoen, because Steagall knew him, hired John Schramm, an
El Centro resident to perform some construction driving there.
Three days later, Steagall recommended John Schramm’s brother
Ron. Steagall could not recall what type of driving Ron
Schramm did. All were on Local 104’s movie list. No further
hires were made until mid-December.
Steagall says that Walby was not considered for any of these
hires. The obvious reason is that he had been told to look else-
where on November 6. In addition, around about November 10,
the production had moved to El Centro and Walby was nowhere
around. In fact, he had taken back his business card with the
pager number. Respondent could not have reached him if it had
wanted to.
III. ANALYSIS
The General Counsel has several hurdles to clear in order to
sustain his multifaceted complaint. The first is whether Walby
was ever offered employment on the film. Connected to that
question is, if he had been offered a job, whether it had been
withdrawn. Finally there is the question of whether it was with-
drawn for reasons prohibited by the Act.

22 The Shetlar hire appears to have been somewhat of an emergency.
The producer did not notify Tancharoen of the need until very late.
Shetlar was hired on very short notice at 5 p.m. that day by telephone.
He had to find a passenger van, rent it and meet the plane with the
juveniles and their parents. Tancharoen says he believes he accepted
him based on the recommendation of Lisa Swain. If so, that is the only
hire based on a recommendation from someone outside the transporta-
tion department.
I have carefully studied the contentions made in both briefs. I
find, after doing so, that both counsel are guilty to some extent of
conflating the issues, particularly as it concerns Local 104 and its
movie list. That entity is not a respondent and to some extent the
General Counsel may reasonably be accused of seeking to estab-
lish facts in this case which might be used against that labor or-
ganization through the use of offensive collateral estoppel princi-
ples. The General Counsel may not actually be doing so, but I
must mention this issue so that readers of the record are not con-
fused by some of the contentions. It is certainly a reasonable
concern, for part of the factual matrix which the General Counsel
seeks to use is one in which Local 104 has supposedly created an
atmosphere in which film producers feel obligated to hire only
Local 104 members. Or, perhaps, even bigger than that, an at-
mosphere created by entertainment unions generally, one which
obligates film makers to hire only entertainment union members,
or their non-Hollywood stand-ins, such as Local 104 or other
IATSE locals.
The problem with that argument, found throughout the Gen-
eral Counsel’s brief, is that it assumes, without proof, that Local
104 (or in consolidated Cases 28–CA–15649, 28–CB–5077, and
28–CB–5112, the Arizona IATSE Locals) has that kind of power.
The assumption manifests itself in the brief by the assertion that
Respondent is under some sort of compulsion to hire only Local
104 members, because it deems itself either obligated to do so by
contract or by industry practice. Moreover, the General Counsel
even sets forth a second assumption throughout its brief, that
Respondent offered Walby a job on October 30.
Neither of those assumptions is really supported in the record.
As will become clear, based not only on credibility finding, but
also on business practice probabilities, I find that the evidence
fails to support that Walby was ever offered a job by the “Three
Kings” transportation department, much less that it withdrew
such an offer. In addition, I find the General Counsel is off the
mark with regard to having demonstrated that an atmosphere
exists which obligates Respondent to prefer Local 104 members
over any other Teamster member or over anyone else, for that
matter.
No offer of employment was extended
Walby’s credibility is subject to severe doubt. I have observed
above that he is not to be trusted with respect to presenting facts
in an objective manner. But there is more. There are places in
the record where he seems to be more interested in the texts of
his NLRB affidavit and his supplemental statement than he is in
his oral presentation. Those statements seem to have become his
recollection, not his own memory. His 17-page typewritten
NLRB affidavit took several days to prepare. Yet it did not sat-
isfy him. He describes how the 18-page supplemental statement
came to be prepared: “It was prepared after the affidavit in Du-
bois, Wyoming between the dates of the 1st of December to the
14th of December in front of witnesses at the Absorka Western
Designs business that’s located two miles east of the town of
Dubois because they were friends of mine and they had a word
processor which I don’t have. So I hitchhiked over to Dubois and
used their word processor to better articulate my position on this
case, sir.” Oddly, he did not promptly submit it to the Regional
Office investigators, but held it until shortly before the hearing.
T. K. PRODUCTIONS 121
I have quoted Walby here and extensively elsewhere. The
purpose of these quotations, aside from the literal answers to the
posed questions, was to allow Walby’s nuances to become clear.
In nearly all of the quotes, and in much of his testimony not
quoted, an element of buttressing, exaggeration, or re-emphasis
can be found. Yet when it came to describing the words which
Tancharoen used to offer him a job, Walby is either silent, vague
or conclusory. He never actually quotes Tancharoen using such
words.
Indeed, Walby is more than simply an exaggerator. He is able
to create detail, sometimes befogging detail, to support his claim
of mistreatment. A principal example is his description of what
Steagall supposedly said to him on November 6. At one point he
says Steagall said the decision had been made not to hire him
because his presence might cause disharmony with the Local 104
members who were on the set. He adds that Steagall told him he
had spoken to Tancharoen on the point and had convinced
Tancharoen not to hire him. Then, he asserts that Steagall at the
same moment told him that maybe there was an office job which
he might be able to perform, suggesting that Steagall really
wanted to hire him, but that Steagall (who Walby says needed
Tancharoen’s approval) quickly changed his mind about that as
well. Frankly, Steagall did not impress me as being so disorgan-
ized in his thought processes. Walby, on the other hand, simply
jumped into every nook and cranny he could think of.
In contrast, both Tancharoen and Steagall made what appeared
to me honest efforts to describe what happened as best they could
remember. Tancharoen’s candor was particularly impressive.
He readily admitted that he believed he was obligated by contract
to use Local 104’s hiring list and that is why he did so.23 By the
time he testified he had come to believe that it might be an ad-
mission against the interest of Respondent, but did so anyway.
He even did it knowing that there was a possible risk to future
hiring by Warner Bros. connected production companies. (In
fact, however, it turned out not to be an admission of any wrong-
doing because the General Counsel’s assessment of the list as
being illegal is incorrect.)
Walby’s evidence regarding the offer(s) of a job are mainly
conclusions. On October 30, for example, he says that after he
introduced himself to Tancharoen, apparently in the parking lot,
Tancharoen replied that Courtney had been “raving” about
Walby. I have already expressed my doubt about the validity of
that remark, but whatever Tancharoen said, Walby says he im-
mediately asked if Tancharoen would be needing some drivers
for the show. Walby says he asked when, and then asked “when
would you be able to use me?” to which Tancharoen said “next

23 Had this not been a distant location, but a Hollywood hire,
Tancharoen would have been contractually obligated to use either the
studio seniority roster or Local 399’s industry experience roster. The
latter roster is similar to, but not the same as a hiring hall. A producer
bound by that contract must hire from that roster, but it does not operate
serially as in a traditional hiring hall. See the “Black Book,” sec. VI,
par. 62 (pp. 132–147). In Los Angeles Tancharoen no doubt hires from
that roster on a regular basis when serving as a transportation coordina-
tor. His mistaken belief is understandable. He believes such lists pro-
vide experienced, skilled and reliable employees. On its face, the Los
Angeles roster is not based on union membership. Why would he think
Local 104’s list was?
week.” This was followed up by a discussion about Walby’s
attempts to be placed on Local 104’s list.
Contrary to Walby’s belief, this conversation did not amount
to a job offer. It is merely an inquiry by Walby followed by
Tancharoen’s answer, which while encouraging, was still indefi-
nite. He did not tell Walby to fill out a job application form or
fill out the tax or immigration forms, nor did he discuss the na-
ture of the work. Walby had asked about drivers, but there is a
myriad of driving jobs on films and he does not say Tancharoen
told him what type of driving he had in mind. No reporting date,
time, or place was mentioned. In fact Tancharoen did not even
have Walby’s resumé with him at that moment. This entire con-
versation was entirely too informal and incomplete for an offer of
employment to have been made.
Walby seems to have recognized that, for even though he in-
sists that the offer was made, he nonetheless says he needed to
follow it up on November 3. Not waiting that long, he claims to
have had another conversation with Tancharoen the next day,
October 31. Tancharoen denies it. In this next conversation,
Walby describes the first conversation as involving a job offer in
El Centro, something he left out of his earlier description of the
October 30 conversation. Moreover it meant that Walby would
have to travel to El Centro for the work.
Assuming, for the moment that Tancharoen on October 30 had
mentioned El Centro to Walby, why was there no mention of the
nature of the work under either of Walby’s versions? “Driving”
is a vague concept in the circumstances.
Once again, however, Walby’s testimony about what was said
on October 31 falls short of an offer. He says he went back to
inquire when he might be going to California because he thought
he would drive his motorhome over and wait for the job. He
concedes Tancharoen gave him a “maybe” or “probable” date,
November 11. The vagueness of such an answer only empha-
sizes the tentative nature of the transaction. Even under Walby’s
own words it is not yet an offer of employment. It is only a
statement of possibility.
It should also be observed that neither of Tancharoen’s two as-
sistants, Steagall and Whelpley, was engaged in this matter.
Whelpley was not present at all, while Walby says Steagall sim-
ply introduced him to Tancharoen. He does not say that he heard
Steagall actually recommend him to Tancharoen for hire. He
only says that Steagall told him he would do so. Steagall, of
course denies Walby’s testimony in its entirety, but even Walby’s
claim that Steagall told him he would recommend him to
Tancharoen is most unlikely. There is no credible evidence that
Walby ever had the backing of Steagall (or Whelpley), the two
upon whom Tancharoen relied for the hire of everyone else.
The evidence requires me to conclude that Walby’s testimony
that Tancharoen offered him a job on October 30 and 31 is only
his own conclusion and that his conclusion is not supported by
any evidence.
The result is the same with respect to the November 4 offer.
Again, relying only on Walby for the moment, he says he ap-
peared at the office early in the morning and presented himself in
the transportation office doorway. He claims Tancharoen looked
up, saw him and said, “We’re getting close.” He says
Tancharoen then looked to Steagall and the two had a discussion
which Walby could not recount. At the end of the discussion
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
Walby says “they agreed” that it would be November 7. Then he
says they told him he would be driving a truck with office
equipment to the El Centro location office. Oddly, he does not
say he asked the next question, “what time do I report?” Instead
at that point, extrapolating somewhat from Walby’s somewhat
fragmented testimony, a discussion began about the Local 104
list. Walby claims Steagall demanded it at one point in his testi-
mony. At another Walby seems to say that he brought up the list
himself. (In response to Tancharoen telling him he was to take
the truck to El Centro, he replied, unhelpful to his cause: “I’m
still having trouble getting on the union list.”)
He says they then got into a discussion about the list and was
told that he should speak to Local 104 to about it. For the only
time in his job hunt, the loquacious Walby fell silent. He didn’t
give the expected response: “Shetler says I’m on the list. Let’s
call him and confirm it.” This failing occurs, he says, despite the
fact that on two earlier occasions Tancharoen had offered to help
him get on the list.
This was the drop-load job. It was a one-way drive to El
Centro. It meant that he would have no way to get back to Casa
Grande. He would have to arrange his own way back, for Re-
spondent was not going to provide return transportation to him.
He insists, however, that this problem was not discussed with
him on that day. (He says had been discussed earlier.) I find it
hard to believe that his way back would not have come up during
the November 4 conversation, if only to confirm that he had
made appropriate arrangements.
Frankly, I have great trouble accepting Walby’s testimony
here. I don’t reject it totally, because Tancharoen gives some
testimony which is partially consistent.24 In fact, the closest thing
to an offer of employment was described by Tancharoen, not
Walby. Yet, taken as a whole, I am not confident any actual
offer of employment was made. If Walby’s testimony leaves the
matter in a state of uncertainty, Tancharoen’s makes that doubt-
fulness certain. No job offer can be found here.
Finally, On November 6, Walby says Steagall told him that his
hiring situation had changed, they weren’t going to hire him after
all, giving two reasons. The first was that they believed Walby’s
presence, since he was not a member of Local 104, would cause
“disharmony on the set.” The second was because they had de-
termined that they didn’t need any more drivers, and the drop
load could be handled by existing staff.
The “disharmony” remark, if credited, would constitute an il-
legal preference. However, it presents itself in a way which does
not allow for it to be credited. The job which Walby was sup-
posedly going to perform was a one-time drop load. He was
going to pick it up in the office area in Casa Grande and deliver it
to the office area in El Centro. One day’s work at most. So far
as has been shown, he was to be the only driver. In that context,
with whom would he be interacting? With whom would he have
the opportunity to cause disharmony? If he was working alone,
how could that be a concern? If he was being hired for a one-

24 Tancharoen: “I believe I says (sic) [said], it would probably be a
day just to do the drop load, a day or two at the most.” “I said, ‘If
you’re interested, it might be that but you have to do a drop load and
get transportation back to Arizona.’” “It was a possibility. It wasn’t a
major—I mean, like an offer.”
time job which never even went on the set, how could he be dis-
ruptive of it? Steagall, of course, denies that he ever said such a
thing.
Here Steagall’s denial makes much more sense. In fact Stea-
gall’s testimony in general makes much more sense.
Tancharoen’s does, too. Tancharoen credibly testified that he
would hire someone from the list. If Local 104 put a person on
the list that was enough for him. With that in mind, why would
he care if Walby was a member of another Local? Being on the
list was enough. Moreover, if Walby did come off the list, how
would that cause disharmony? He would have the same Local
104 imprimatur that other people on the list would also have had.
If Tancharoen had wanted to hire Walby he would have called
Shetler to see if Walby had been added to the list as Walby
claimed. He didn’t do so, and the reason he never did was be-
cause he had never offered Walby a job. He didn’t really have
one to offer. The drop-load job was only a possibility, one which
he would more naturally assign to a current employee if schedul-
ing permitted. Why hire a new person if you already have
enough people?
Moreover, there is a remarkable absence of expected hiring
procedures which employers are obligated to follow, or usually
follow, upon offering employment. There is no evidence that
Walby was told to fill out any application form, provide a W-4
form, fill out an I-9 form or was offered a film industry employ-
ment contract known as a “deal memo.” This notable absence is
perfectly consistent with Tancharoen’s and Steagall’s testimony
that they never offered him employment. At least some of those
steps would have been taken had they offered him a job. None
were. Moreover, the subject of what wage he was to receive
would also have been touched upon, even if only to say it was
union scale. In fact, the Hollywood Teamsters contract specifi-
cally requires that fringe benefit payments be made in cash to
local hires, so that subject would have needed some more specific
discussion. There is no evidence that such a conversation oc-
curred with Walby. That is a void of significant proportion.
I suppose it could be said that Tancharoen and Steagall took
advantage of Walby’s hanging around in the sense that they
spoke of possibilities at various times, thereby keeping Walby on
the string until November 6. Yet, to say that an offer of employ-
ment had been extended to him would be saying too much.
Keeping him on the string would be the expected thing to do if
they were hiring from Local 104’s list and Walby had told them
he was on it and they ran into scheduling difficulties. They
wouldn’t have had to go far to find a qualified employee.
In addition, aside from Walby’s testimony, there is no evi-
dence whatsoever of improper favoritism toward Local 104.
Respondent was obligated under its contract with the Hollywood
Teamsters to utilize the assistance of the Local Union where the
production was occurring. The governing language is found in
section V, paragraph 30 of the contract (p. 117). It says only, “In
hiring personnel at the [distant] location, the Producer will use its
best efforts to notify the business agent for the Local Union in-
volved at least 72 hours in advance and will consult with said
business agent regarding the selection of qualified local hires
provided that the producer will make the final decision.”
This paragraph certainly does not create a contractual obliga-
tion of favoritism. In the final analysis it allows the producer to
T. K. PRODUCTIONS 123
hire whomever he wants. All he has to do is consult with the
business agent before making his decision. Local 104 has made
the consultation process quite easy by creating the hiring list. If
one is hired from that list the consultation obligation is satisfied.
But hiring can clearly be done without using the list, once the
consultation has occurred and the producer concludes he wishes
to hire someone else. All it does is provide the Local Union with
the opportunity to give the producer names of persons that the
Local believes are qualified.
Moreover, Walby’s testimony about membership favoritism is
most odd. He had, for reasons of his brotherhood with Local
104, chosen to pay that Local’s hiring hall fees. He then de-
scribes a conversation with Steagall regarding dues payments in
which Steagall allegedly tells him, in explaining that Respondent
doesn’t have to hire from Local 104’s list, that all one needs to do
to be hired in Arizona is to show a dues receipt, supposedly wav-
ing his in front of Walby. That testimony amounts to a garble.
On the one hand, it is Walby’s admission that his presence or
absence on the list was immaterial to Respondent and on the
other it suggests that one had to be a paid up union member in
order to be hired. Moreover, by the time of this conversation
(Nov. 4), he was on the list (though an updated copy had yet to
be forwarded). Either way, he had met the requirements, as he
perceived them, of both Local 104’s and Respondent’s approval.
He was on the list and had paid the preliminary fees he thought
he should. None of this, of course has anything to do with how
Respondent perceived him. It is certainly not evidence of illegal
evidence of favoritism. It is only Walby whirling around in a
world of his own making.
Once again, Steagall’s testimony is the one which makes
sense: “[He] came by the office and it all was about this list and
he was asking me again if he had been on the list. He said he was
on the list at that point, that he’d, I think paid his dues or had paid
the union some money to get on the list and that he’s fine to be
hired.” Moreover, Steagall clearly denied that he ever told
Walby that all he needed to get hired was a copy of his dues re-
ceipt. I find the denial to be credible.
Credible evidence of Respondent’s favoritism toward Local
104 members is not present in this record.
At this point, one really needs to go no further. Clearly the ba-
sic elements of this type of violation are the existence of a job
opening, together with an application for the job by a prospective
employee, the employer’s offer to hire, followed by a refusal to
hire. But the Act requires more. “The refusal must be grounded
in a reason which is prohibited by the statute, discrimination
resulting in . . . the encouragement or discouragement union
membership, i.e., a desire to compel applicants to be members of
a specific union.” That element is the obverse of union animus,
the component which is always essential in the ordinary refusal
to hire case. See Big E’s Foodland, 242 NLRB 963, 968 (1979).
The foregoing analysis demonstrates that two of the required
elements are missing. First, no job offer was made or withdrawn
and even if that had occurred, second, there is no evidence of an
illegal motive for having done so. Even the existence of a job for
Walby is open to question. It is true that there was a task which
needed to be done, the drop load for El Centro. But it is quite
clear that Tancharoen’s preference was for an employee already
on staff to do that. He just didn’t know if he had anybody avail-
able. When he determined that he did have someone, the job
evaporated, even though the task remained. Accordingly, the
complaint must fall.
However, something does need to be said about the General
Counsel’s theory that Local 104’s movie list is illegal and Re-
spondent’s reliance on it poisoned its hiring practices. This the-
ory is based on a presumption arising out of the fact that to the
General Counsel all of the people on the list seem to be Local
104 members. Before exploring that presumption some record
facts need iteration.
The first and most important observation to be made about the
list is that nowhere is there any obligation for a movie producer
to use it. It is entirely optional. It is not even a hiring hall in the
recognized use of that terminology. Local 104 does not refer
anyone from the list. It was obviously created by Local 104 as a
convenience. It is convenient for itself, because it allows the
Hollywood Teamsters contract’s requirement that the business
agent to be consulted prior to hires be met without any great ef-
fort on the business agent’s part. It is convenient to the producer
for the same reason and because he is relatively assured that the
persons on the list are qualified. The producer is usually from
outside the area and has limited knowledge about potential em-
ployees. At the very least the Local Union can vouch for those
on the list. And, it is convenient to Local 104’s constituency.
Their names are placed on a list which is made available to em-
ployers in circumstances where the Local vouches for them as
experienced potential employees.
The one thing which the General Counsel abhors about the list
is that it appears to contain the names of only union members.
First, I do not believe the record actually establishes that to be the
case. No union official testified and the only testimony about the
list came from people without first-hand knowledge. Therefore
the competency of those witnesses to know that fact is nonexis-
tent. Second, even though Walby says he had difficulty being
placed on the list, eventually his name appeared, on October 30.
He was not a member of Local 104, but was a fellow Teamsters.
That placement occurred a week before he filed any NLRB
charges against Local 104. Therefore, we know at the very least,
that traveling Teamsters are able to get on the list, thereby un-
dermining any contention that the list is limited to Local 104
members.25 But assuming it is true, the practice is still not
unlawful.

25 Walby claims he first sought to be placed on the list as early as
mid-October. He did not arrive in Phoenix until October 21. It was at
that point, he says, that he began to get a runaround from either busi-
ness agent Shetler or the Tucson agent. Even so, he was actually
placed on the list only 9 days later. He says he paid Local 104 a hiring
hall fee, but it is not clear when he did so. If it took Walby some time
to make the payment, that may well explain the delay. It is also possi-
ble that the delay is attributable to something else, maybe a need to
contact Local 2 or the International to verify Walby’s credentials. The
only way to find out is to have someone from Local 104 testify about it.
That didn’t occur, and since the General Counsel is the one making the
contention, it was his burden to call such a witness. Since he did not, I
cannot make findings about the delay, even if there was one. Certainly
I am unable to take the next step and conclude that the delay was some-
how pernicious on Local 104’s part or the following step, that Local
104 somehow poisoned Walby’s chances of getting hired by Respon-
dent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
Beyond the record is some law contrary to the General Coun-
sel’s position. The statute itself only prohibits discrimination
which tends to encourage or discourage union membership. The
language of Section 8(a)(3) reads in pertinent part: “It shall be an
unfair labor practice for an employer—by discrimination in re-
gard to hire or tenure of employment or any term and condition
of employment to encourage or discourage union membership in
any labor organization.”
That language was discussed in detail with respect to its appli-
cation to hiring halls by the Supreme Court 39 years ago. Team-
sters Local 357 v. NLRB, 365 U.S. 667 (1961). It said at 674 ff.:

There being no express ban of hiring halls in any provisions
of the Act, those who add one, whether it be the Board or
the courts, engage in a legislative act. The Act deals with
discrimination either by the employers or unions that en-
courages or discourages union membership. [Fn. Omitted.]
As respects §8(a)(3) we said in Radio Officers, etc., v. Na-
tional Labor Relations Board, 347 U.S. 17, 42–43, 74 S.Ct.
323, 337, 98 L.Ed. 455:
“The language of §8(a)(3) is not ambiguous. The unfair
labor practice is for an employer to encourage or discourage
membership by means of discrimination. Thus this section
does not outlaw all encouragement or discouragement of
membership in labor organizations; only such as is accom-
plished by discrimination is prohibited. Nor does this sec-
tion outlaw discrimination in employment as such; only
such discrimination as encourages or discourages member-
ship in a labor organization is proscribed.”
It is the “true purpose” or “real motive” in hiring or fir-
ing that constitutes the test. Id., 347 U.S. 43, 74 S.Ct. 337.
Some conduct may by its very nature contain the implica-
tions of the required intent; the natural foreseeable conse-
quences of certain action may warrant the inference. Id.,
347 U.S. 45, 74 S.Ct. 338. And see Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The
existence of discrimination may at times be inferred by the
Board, for “it is permissible to draw on experience in factual
inquiries.” Radio Officers v. NLRB, supra, 347 U.S. 49, 74
S.Ct. 340.
But surely discrimination cannot be inferred from the
face of the instrument when the instrument specifically pro-
vides that there will be no discrimination against “casual
employees” because of the presence or absence of union
membership.[26] The only complaint in the case was by Sla-
ter, a union member, who sought to circumvent the hiring-
hall agreement. When an employer and the union enforce
the agreement against union members, we cannot say with-
out more that either indulges in the kind of discrimination to
which the Act is addressed.
It may be that the very existence of the hiring hall en-
courages union membership. We may assume that it does.
The very existence of the union has the same influence.
When a union engages in collective bargaining and obtains
increased wages and improved working conditions, its pres-
tige doubtless rises and, one may assume, more workers are

26 The Hollywood Teamsters’ contract contains just such a clause.
sec. VI. par. 57, p. 129.
drawn to it. When a union negotiates collective bargaining
agreements that include arbitration clauses and supervises
the functioning of those provisions so as to get equitable ad-
justments of grievances, union membership may also be en-
couraged. The truth is that the union is a service agency that
probably encourages membership whenever it does its job
well. But, as we said in Radio Officers v. National Labor
Relations Board, supra, the only encouragement or discour-
agement of union membership banned by the Act is that
which is “accomplished by discrimination.” 347 U.S. at
page 43, 74 S.Ct. at page 337.

If, as the Supreme Court held here, exclusive hiring halls are
not discriminatory on their face, how can a nonexclusive list be
discriminatory? The simple answer is that it cannot. Thus, even
if Local 104’s list was limited to union members, an employer
would not violate Section 8(a)(3). Nonexclusive hiring halls are
not unlawful even if operated solely for the benefit of the union’s
members. Penzel Construction Co., 185 NLRB 544 (1970). If it
is nonexclusive, the union has no power over the employee and
there is nothing which requires the employer to use it. Teamsters
Local 460 (Superior Asphalt Co.), 300 NLRB 441 (1990). This
has been the law since Ohio Valley District Council of Carpen-
ters, 131 NLRB 1130 (1961).
Even if the list was actually limited to Local 104 members and
it was part of an exclusive hiring system, it is not the law that a
union violates Section 8(b)(2) or an employer Section 8(a)(3)
simply based on its use. It might be a very suspicious program
but suspicion does not even raise a presumption of illegality,
much less proof. In a case where the union had the sole authority
to determine which employees were to be selected for layoff,
Trial Examiner Stanley Ohlbaum made a comment with the
Board’s approval which resonates here: “While, to be sure, suspi-
cion may exist as to the real motivations and reasons which un-
derlie the layoffs in question, suspicion breeds and feeds upon
itself, and it may not form the core for inference nor serve as
substitute for the substantial credible proof that the law requires.”
Laborers Local 282 (Elzinga-Lakin), 226 NLRB 958, 959
(1976). Absent proof that the union’s choices for layoff were
discriminatory even when directed at nonmembers, the practice
was approved even though it may have encouraged union mem-
bership, though not in a prohibited way. See also John L. Klug
Corp., 245 NLRB 977 (1979), a case where an employer volun-
tarily chose (with the union’s consent) to utilize an exclusive
union hiring hall. Again, proof of discriminatory motive was
required but found lacking; presumption of illegal motive was not
enough. Also, C. Solari & Sons, 264 NLRB 282 (1982). (“Thus,
Respondent’s decision, after the merger, to utilize Local 971’s
hiring hall cannot be found to be violative of the Act, absent
evidence of discrimination.” “[Dickson] would have been re-
ferred had he simply registered with the hiring hall. There is no
evidence that Dickson would have been required to join Local
971.”) (Emphasis added.) Clearly presumptions of illegality
may not be used. Actual proof is required.
This raises the question of what the Board found in its decision
against Local 104 on April 29, 1998, a decision entitled Team-
sters Local 104 (Blue Rodeo), 325 NLRB No. 121 (not reported
in Board volumes). At first blush, the case seems to pose some
T. K. PRODUCTIONS 125
problems here. Among other things the Board found that the
wrangler/driver list was part of an exclusive referral system as
operated beginning March 28, 1996. In that case Local 104
chose to withdraw its answer to the complaint on December 16,
1997, and permitted a summary judgment (default judgment) to
be entered by the Board. That occurred, as noted, in April 1998.
I first observe that the conduct under scrutiny here occurred 6
months after the entry of that order (and about a year after the
complaint issued).
Certainly Local 104 had ample time to render the list nonex-
clusive before the transaction under scrutiny here. Second, it was
operating as an agent for the Hollywood Teamsters whose con-
tract by its terms establishes a nonexclusive means of hiring driv-
ers at distant locations. Finally, no matter what Local 104 did or
didn’t do with respect to allowing persons on the list, there is no
reason to conclude that Respondent did anything unlawful when
it chose to use the list as its source of Arizona drivers. It was
looking for geographically local hires;27 it was looking for em-
ployees with movie experience; and it was looking for reliable
drivers. To Respondent the list appeared to provide such indi-
viduals. In that circumstance the only encouragement of union
membership was in the nature described by the Supreme Court in
Teamsters Local 357 as permissible. Local 104 was simply do-
ing its job well. It was certainly not poisoning the hiring process.
That discussion actually brings the entire Walby matter full
circle. Assuming arguendo that Walby was telling the truth about
everything, except for his contention that Steagall had told him
that they had decided not to hire him because his presence could
bring disharmony, and Respondent had offered a job to Walby
(not on the list) but later changed its mind in order to take some-
one else from the list, there would still be no violation. Choosing
someone whose workmanship has been vouched for in a nonex-
clusive hiring context simply does not violate the Act, even if one
of the effects is to hire a union member over a nonmember.
Membership preference, according to the Court, would not have
been a motivating factor behind the decision and therefore any
other purpose qualifies as a purpose which does not encourage or
discourage union membership in a prohibited manner. Walby
was not from Arizona, his workmanship and reliability were
unknown and he had no one to vouch for him. The others did.
Those factors are not prohibited by the Act. The 8(a)(3) portion
of the complaint should be dismissed.
The 8(a)(1) allegations
Remaining for consideration are five allegations, involving
three transactions, asserting that Respondent independently vio-
lated Section 8(a)(1) of the Act. They are, by date: (a) a claim
that on October 28 production department supervisor Mary
Courtney coercively interrogated Walby about his union mem-
berships in the course of a job interview; (b) on November 4,
Tancharoen first interrogated Walby regarding his union mem-
berships and then impliedly threatened Walby by telling him he
would not be hired unless he was a member of Local 104; that
during the same conversation Steagall promised to hire employ-
ees who were members of Local 104; and (c) that on November

27 Geographical preferences are lawful. See Electrical Workers Lo-
cal 8 (Romanoff Electric), 221 NLRB 1131 (1975). (With respect to
overtime.)
6, Steagall threatened Walby with reprisal by telling him he could
not hire him and that he wanted to avoid disharmony on the job
because Walby was not a member of Local 104.
The only allegations which require much further thought are
the interrogation allegations against Courtney and Tancharoen,
particularly since Courtney did not testify. The others have es-
sentially been dealt with in the discussion concerning the refusal
to hire Walby. With respect to that, I have found that the inci-
dents did not occur as described by Walby. Those findings were
based on my assessment of Walby’s lack of credibility and the
connected 8(a)(1) allegations should all be dismissed.
The interrogations
Insofar as the interrogations are concerned, the allegations
again depend on Walby’s credibility. I do not accept Walby’s
version, but beyond that, am compelled to ask why they are even
in the complaint. In the very first telephone call Walby made to
Tancharoen in September, Walby told Tancharoen he was a
Teamster from Wyoming, a member of Local 2 of Butte, Mon-
tana. Tancharoen never forgot that and Walby repeated his status
to anyone who spoke to him. In fact, his first meeting with Stea-
gall typifies his general approach. He thought volunteering that
he was a Teamster would assist him in getting hired:

Q. [Y]ou thought being a union member would help you
get work, right?
A. . . . . Right, that’s what I am.

He also told Lisa Swain he was a Teamster from Butte, adding
that he was an IATSE member. It was certainly no concern to
her. She found him a day’s work and her response confirmed
that his theory worked. He must have thought: If you tell them
you are a union member, they are more likely to hire you.
By the time he got to Courtney, not only was the word out, but
it had become his byword. He confidently testified that Courtney
did not know his union affiliations when she interviewed him on
October 28, but I have previously rejected his conclusion. Even
if he had not volunteered it to her, which I think he did, for it had
become a habit with him, it would have been an easy way for her
to put him at ease during the interview—open a subject she al-
ready knew (from Swain at the very least) he was eager to talk
about.
The general rule is that to constitute a violation of the Act, an
interrogation must be coercive and have the object or result of
causing an employee to abandon rights guaranteed under Section
7 of the Act. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
This was far from coercive. In fact Walby actually invited peo-
ple to ask about his Montana Teamsters film experience. He
believed he was with fellow union brothers and sisters and such
revelations would put him in a positive light. He was right.
Courtney offered him a job driving Clooney; he turned it down.
He can hardly complain if a prospective employer did what he
asked her to do.
Moreover, if the employee’s union views or sentiments are
well known, such as might be displayed by an ardent union sup-
porter, the Board has held questions about that view are generally
lawful, for they will not dissuade the individual from such views.
Rossmore House, 269 NLRB 1176 (1984). Here, while the sur-
rounding circumstances do include the fact that Courtney was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
conducting a job interview, they also include the fact that the
atmosphere was gentle and that Walby knew from the outset
Courtney was trying to find him work, no doubt in theatrical
crafts at which he was skilled. The nature of his IATSE mem-
bership was the most efficient path to her goal, as that labor or-
ganization is subdivided along craft lines. In fact he was on the
IATSE’s list of theatrical mechanics, one of the skills/crafts he
was pursuing.

A. (WALBY) . . . . She asked me what my union affilia-
tion was and then I told her.
Q. (MR. DRAPKIN): And did she ask you that like she
was trying to find work for you?
A. Oh, yes . . . .

He went into that interview believing, correctly, that Courtney
was going to try to find him a job. He essentially had invited her
to ask. She certainly took no steps to force him to abandon any
Section 7 right. She only wanted more precisely to find out what
his demonstrated skills were. On a factual basis, there is simply
no warrant to find the questions to have been coercive.
Likewise the allegation of interrogation by Tancharoen falls as
well. First, there was no reason for Tancharoen to ask about
Walby’s union membership. To repeat, Walby had told him
what it was from the outset. He had recited it to every one else as
well. Therefore, even if the question had been asked, the allega-
tion founders under a Rossmore House analysis. Second, I have
discredited Walby’s version anyway. I have found above that his
version of the November 4 conversation cannot be accepted.
The General Counsel’s allegations of unlawful interrogations
never held water from the outset. Quite simply, neither
Tancharoen nor Courtney was seeking to interfere with, restrain,
or coerce him in any way into revealing his union affiliations and
he knew it. His affiliations were worn as a proud badge and he
wanted to talk about them. A common test to be applied in de-
termining the lawfulness of interrogation is whether, under all the
circumstances, the interrogation reasonably tends to restrain or
interfere with the employees in the exercise of rights guaranteed
by the Act. Under that test, the General Counsel’s evidence falls
short.
The General Counsel’s citation of cases holding that such
questions are inherently coercive28 when asked during a pre-hire
interview must take a back seat to the facts as they developed
here. In this factual context, applying the Board’s “inherently

28 E.g., Bendix-Westinghouse Automotive Air Brake Co., 161 NLRB
789, 791–792 (1966); Service Master, 267 NLRB 875 (1983); United
L-N Glass, 297 NLRB 329 fn. 1 (1989); and Adco Electric, 307 NLRB
1113 (1992), among others.
destructive” analysis simply demonstrates how fragile “per se”
logic can be. Applying it here would be to apply a rule which
does not fit the facts. Its use would be wooden and without
common sense. The General Counsel also wants an adverse
inference drawn against Respondent because Courtney did not
testify.29 I find that to be unwarranted given Walby’s own words.
The interrogation allegations have not been sustained by
credible evidence nor does the putative evidence meet the
Board’s test for being coercive. Accordingly, they should be
dismissed as well.
Based on the foregoing findings of fact and analysis, and the
record as a whole, I issue the following
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. Teamsters Union Local No. 104, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove by credible evi-
dence that Respondent violated Section 8(a)(3) and (1) of the
Act.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended 30
ORDER
The complaint is dismissed in its entirety.
Any outstanding motions which have not been ruled on are
denied.
29 The adverse inference issue became the subject of one of the mo-
tions to strike portions of the briefs. Respondent directed me to some-
thing which occurred in the prehearing telephone conference; the Gen-
eral Counsel wants to strike it so he can take advantage of the fact that
the request was not repeated for the record. Suffice it to say that
Walby’s own words are sufficient to deal with the issue of credibility.
Adverse inferences, while common, are often overcome by record
evidence. That is the case here.
30 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.