IATSE Local 142 (Various)

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1398 (N.L.R.B. 2014)

1398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The International Alliance of Theatrical Stage Em-
ployees and Moving Picture Technicians, Artists
and Allied Crafts of the United States, its terri-
tories and Canada, AFL–CIO, CLC, Local 142
and Randall H. Finch and Jonathan W. Mudrich
and James P. Vacik. Cases 15–CB–005871, 15–
CB–005924, 15–CB–072526, 15–CB–005894, 15–
CB–070725
December 16, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On February 26, 2014, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The Na-
tional 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,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Beauford D. Pines, Esq., and Nairea K. Nelson, Esq., for the
General Counsel.
J. Cecil Gardner, Esq., Kimberly C. Walker, Esq., and David C.
Tufts, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Mobile, Alabama, on February 25 through
March 1, 2013. Randall H. Finch, an individual, filed the initial
charge in Case 15–CB–005871 on April 23, 2009. He amended
the charge twice, on September 25, 2009, and October 28,
2009. On September 25, 2009, Finch also filed his second
charge, in Case 15–CB–005924. Jonathan W. Mudrich, an in-
dividual, filed the charge in Case 15–CB–005894 on June 15,
2009, and amended it on September 25, 2009. Based on the
first two charges filed by Finch and the charge filed by
Mudrich, the General Counsel issued a consolidated complaint
against the Respondent, International Alliance of Stage Em-
1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance 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.
ployees and Moving Picture Technicians, Artists, and Allied
Crafts of the United States, Its Territories and Canada, AFL–
CIO, Local 142 (the Union or Local 142), on November 17,
2009.1 On December 14, 2011, while the case was pending a
hearing, James P. Vacik, an individual, filed the charge in Case
15–CB–070725, which he amended on October 30, 2012. Finch
filed his third charge in this matter, in Case 15–CB–072526, on
January 17, 2012, which he amended twice, on March 9 and
October 30, 2012. Based on these new charges, the General
Counsel issued a new consolidated complaint on October 31,
2012, incorporating the allegations of the initial complaint and
adding new ones.
The consolidated complaint alleges that the Respondent Un-
ion, since October 23, 2008, has violated Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act) through
the operation of a hiring hall serving various employers in the
Mobile, Alabama area. Specifically, the complaint alleges that
the Respondent failed and refused to refer the individual Charg-
ing Parties, as well as Jon P. Mudrich and others “whose names
are currently unknown to counsel for the Acting General Coun-
sel” for employment for arbitrary and/or discriminatory rea-
sons, or in bad faith, and to encourage membership in the Un-
ion; that it referred employees without using objective referral
criteria; and that it failed to follow hiring hall rules. The Re-
spondent’s conduct in operating the hiring hall is alleged to
have breached the Respondent’s fiduciary duty owed to em-
ployees it represents, and to have encouraged employers utiliz-
ing the hiring hall to discriminate against employees based on
their membership or nonmembership in the Union.
On November 15, 2012, the Respondent filed its answer to
the consolidated complaint, denying the unfair labor practice
allegations and asserting several affirmative defenses, including
that the allegations are not supported by a timely-filed charge
under Section 10(b) of the Act, that no unit employees suffered
any damage, loss, or injury as a result of the Respondent’s op-
eration of its hiring hall, and that any deviation from hiring hall
rules was inadvertent error or mistake. The Respondent also
specifically denied that it maintained an exclusive hiring hall
and that it had a collective-bargaining agreement with all of the
named employers.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
SMG Worldwide (SMG), one of the Employers identified as
having a collective-bargaining agreement with the Respondent,
is a limited liability company with an office and place of busi-
ness in Mobile, Alabama, where it is engaged in the business of
managing the operations at the Mobile Civic Center and the
Mobile Convention Center, and at other entertainment and con-
1 A settlement agreement was executed by the Respondent in about
March 2010. Although a hearing scheduled at the time was postponed
“pending settlement,” the settlement agreement was never approved by
the General Counsel’s office.
361 NLRB No. 156

STAGE EMPLOYEES IATSE, LOCAL 142 1399
vention facilities in the area. SMG annually derived gross reve-
nues in excess of $500,000 from its business and purchased and
received at its Mobile facility goods valued in excess of $5000
directly from points outside the State of Alabama. The Re-
spondent admits, and I find, that SMG is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Respondent is a labor organization within
the meaning of Section 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
The undisputed evidence in the record establishes that Re-
spondent Local 142 did not have a formal hiring hall prior to
2008. In about February 2008, International Representative
Scott Haskill met with the Respondent’s officers, including
President Bud Cook and Business Representative Philip Tapia,
and suggested the local establish a hiring hall with a set of
rules, policies, and procedures. Haskill advised the local that, if
they did not, the International Union would not represent them
if they got into trouble over referrals. Haskill presented Re-
spondent with a set of rules it could use. Thereafter, the Re-
spondent submitted the rules to its membership for a vote and,
upon approval, the new hiring hall with its formal rules was
created, effective April 1, 2008. The Respondent then created
two rosters for use in making referrals. Roster A consisted of
union members, listed by date of membership. Roster B con-
sisted of nonmembers who had been referred to work by the
Union. There is no dispute that, in making referrals after April
2008, the Respondent referred its members on the A roster
before nonmembers on the B roster. This practice continued
until Finch filed his unfair labor practice charges in 2009. Ef-
fective October 1, 2009, the Respondent’s members approved
an amended set of hiring hall rules which, inter alia, eliminated
the A and B rosters. Now, the Respondent uses one seniority
list with names of all employees who had used or desire to use
the Union’s referral service to obtain work in the Mobile area,
listed by the date they first worked in the stagecraft industry,
without regard to membership status.
In addition to the seniority rosters, the Union has maintained
a First Hire list, as called for in the hiring hall rules, for each
venue it services. The First Hire list, by craft, identifies those
individuals with the highest skill and most seniority working at
a particular venue. The individuals on the First Hire crew are
supposed to be the first ones in their respective craft to be re-
ferred to the venue in question. As to all other venues or other
crafts, their referral would be based on their place on the sen-
iority list. There is no dispute that, from April 1, 2008, until
July 2009, the Respondent did not have any written First Hire
lists, even though it had first hire crews for several venues,
including the Mobile Civic Center and Convention Center. The
Respondent’s first written First Hire list was created on July 1,
2009. Charging Party Finch is listed as the first hire stagehand
2 The complaint alleges that five other named parties in interest are
also employers engaged in commerce within the meaning of the Act. At
the hearing, based on documents furnished pursuant to subpoena, the
parties were able to stipulate as to jurisdiction over these other entities.
It is unnecessary to make particular findings with respect to each as the
Board’s jurisdiction in this matter is established based on SMG’s status
as an employer within the meaning of the Act.
for the Convention Center and Charging Party Vacik is listed as
the first hire lighting technician at the Arena, part of the Mobile
Civic Center.3 Alleged discriminatee Jonathan P. Mudrich, is
the first hire audio technician at the Civic Center’s theatre.
Under the Respondent’s constitution and bylaws, the busi-
ness representative is responsible for the administration and
operation of the hiring hall. As noted above, Tapia was the
business representative when the hiring hall was established in
2008.4 He served in this capacity, an elected position, until
January 2011 when he was succeeded by Charging Party Vacik.
Charging Party Finch served as a job steward under Business
Representatives Mudrich and Vacik. Vacik stepped down as
business representative in August 2011. Tapia was appointed to
finish out his term, through December 2011. In January 2012,
Tapia became the Respondent’s president, succeeding Cook.
John Kenneth Brown was elected as business representative, a
position he still held at the time of the hearing.
During the period covered by the complaint, the Respondent
has had two collective-bargaining agreements with SMG cover-
ing work performed at the Mobile Civic Center and Convention
Center. The first was effective from October 1, 2006, through
September 30, 2009. This agreement was negotiated by Jona-
than P. Mudrich, who was the Union’s business representative
at the time and SMG General Manager Jay Hagerman. Both
men signed the agreement along with International Union Rep-
resentative Donald Gandolini. This agreement was succeeded
by the current contract, which is effective July 1, 2011, through
September 30, 2014. Charging Party Vacik negotiated the cur-
rent agreement while serving as the Respondent’s business
representative. Hagerman also represented SMG for the 2011
agreement. Vacik, Hagerman and Gandolini signed this agree-
ment. Both contracts contain almost identical provisions with
respect to recognition and the hiring of employees represented
by the Respondent.
Both agreements open with several “Whereas” paragraphs
recognizing the employer’s need from time to time for skilled
stagehands and other craftspeople to perform work related to
presentation of entertainment and theatrical events and the Re-
spondent having such individuals as members who are availa-
ble to perform the required work and expressing the mutual
desire of the parties to set forth the terms under which such
work will be performed. Article 1, “Scope of Work and Recog-
nition,” identical in both contracts, sets forth the arrangement
for hiring of personnel as follows:

1.1 Subject to the limitations set forth in the remainder of
this Article or elsewhere in this Agreement, the Employer
recognizes the Union as the sole and exclusive bargaining
agent for all Personnel employed by the Employer in the Mo-
bile Civic Center. The Union has submitted proof and the
Employer is satisfied that the Union has been designated or
3 Vacik is qualified for lighting and audio. He testified that he elect-
ed to be first hire for lighting because every event requires lighting
while there is not always sound for an event.
4 Jonathan P. Mudrich, the father of Charging Party Mudrich and a
named discriminatee himself, was the business representative from
2005 until Tapia was elected in 2008.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1400
selected for the purposes of collective bargaining by the ma-
jority of employees in a unit appropriate for such purposes.

1.2 (a) When requested by the Employer, Personnel repre-
sented by the Union shall perform work required by the Mo-
bile Civic Center in connection with the stage-related aspects
of the Mobile Civic Center’s presentation of entertainment
and theatrical events, and sports competitions and exhibitions.

(b) With respect to entertainment and theatrical events,
the work of Personnel may include, but shall not be limited to,
truck and car loading and unloading, the “Move-In”, “Per-
formance”, and “Move-Out” of shows and attractions, the
staging of theatrical equipment, and the wardrobe require-
ments in connection therewith.

(c) With respect to entertainment and theatrical events,
and sports competitions and exhibitions, the work of Person-
nel also may include stage lighting; slide projection; filming,
taping, photographing, or broadcasting, or support thereof;
and sound amplification, provided, however, that (i) individu-
al(s) designated by and traveling with the Show, who pos-
sesses the specialized skill, ability and knowledge of the
Show, may be permitted by the Employer to direct or coordi-
nate Personnel in the performance of any such duties, and (ii)
any such duties may be performed by persons other than Per-
sonnel covered by this Agreement, including but not limited to
the Employer’s stage manager and/or Assistant Stage Man-
ager, the Employer’s contractor, or the Show or its contrac-
tor.

(d) The Union acknowledges that the setup and tear
down of meeting rooms, including seating, risers, and other
house equipment, in connection with entertainment, theatrical
events, sports competitions and exhibitions, or with trade and
industrial shows, flat shows, or conventions, whether in the
Arena, Theater, or Expo Hall, will be performed by employ-
ees other than Personnel covered by this Agreement, unless
Personnel are directed to do so by the Employer on a case-
by-case basis, in which event they shall be compensated in
accordance with this Agreement.

(e) It is expressly understood that all Personnel are sub-
ject to the assignment, engagement, selection, direction, and
control of the Mobile Civic Center’s General Manager, Stage
Manager (or Assistant Stage Manager), and/or Director of
Operations, or their respective designee(s), who will coordi-
nate the respective needs of the Show and the Mobile Civic
Center.

1.3 The Union agrees to provide Personnel skilled and expe-
rienced in performing the aforementioned work, as and when
requested by the Employer, and the Employer agrees to give
the Union Steward, or in his absence the Union Business
Agent, as much advance notice of such Personnel needs, or
the scheduling thereof, as is reasonably possible.

1.4 In the event an electrician is needed to perform general
maintenance or repair work in the entertainment and theatrical
areas, the Employer may subcontract such work or may as-
sign a qualified, regular employee of the Mobile Civic Center
to perform the necessary work, as in the past. If the Employer
assigns an electrician who is a regular full-time or regular
part-time employee of the Mobile Civic Center, such employ-
ee shall be paid in accordance with the terms and conditions
of employment normally applicable to such full-time or part-
time employee.

1.5 The Employer and the Union will honor all Yellow Card
attractions, provided, however, that union members of touring
companies permitted to work a live theatrical production in
the Mobile Civic Center never will outnumber the Personnel
assigned under this Agreement to work that production. There
are no fixed manning requirements or provisions applicable
to the Mobile Civic Center, subject to the Yellow Card re-
quirements described herein. The Employer will not invoke
this provision for the purpose of depriving Personnel of legit-
imate work assignments, and will notify the Union Business
Representative of any events to which Personnel may be as-
signed under this Agreement.

1.6 In the event the parties hereto disagree as to who shall do
certain work at the Mobile Civic Center, the Employer shall
attempt to resolve any such work dispute by meeting with the
Union and any other party to the dispute. In the event a mutu-
ally satisfactory solution cannot be reached at such meeting,
the Employer will make the final decision with respect there-
to, subject to the union’s right to grieve.

[Emphasis added.] Yellow Card attractions, referred to in sec-
tion 1.5, are travelling shows that operate under a collective-
bargaining agreement with the International Union.
The two contracts between the Respondent and SMG also
included an “Addendum A” which “outlines the agreement
between [the Respondent] and SMG relating to the services or
personnel at the Mobile Convention Center” which provides as
follows:

It is agreed between the parties that when requested by SMG,
personnel represented by IATSE shall perform the designated
work at the Mobile Convention Center Exhibit Hall. The
work, conditions, safety, management rights, visitation, and
assignment shall be governed by the provisions in that agree-
ment entered into between SMG and IATSE on or about [date
of agreement]. [Emphasis added.]

Hagerman was subpoenaed to testify by the Respondent. He
has been the general manager at the Civic Center and Conven-
tion Center for SMG since 1994. As noted above, he negotiated
and signed both collective-bargaining agreements for SMG.
Hagerman testified that neither agreement requires SMG to hire
stagehands exclusively through the Union’s hiring hall. SMG
can and has utilized its own employees, employees of subcon-
tractors and crews traveling with a show or exhibition to do
work covered by the Agreement. Hagerman acknowledged that,
in most case, it will utilize the hiring hall as a convenient
source of skilled employees. In all cases, SMG has the final say
as to the source of labor.
The General Counsel initially alleged in the complaint that
five other employers in the Mobile area who utilize stagehands
from time to time have collective-bargaining agreements that
required the Respondent to be the exclusive source of referrals
of employees to perform work within the Respondent’s trade
STAGE EMPLOYEES IATSE, LOCAL 142 1401
jurisdiction. However, at the hearing, no such collective-
bargaining agreements were offered into evidence. Philip Tapia
served as the Respondent’s business representative from Janu-
ary 2008 through December 2010 and again from October
through December 2011, when he was elected president of the
Union, the position he held when testifying at the hearing. As
business representative, Tapia was in charge of administering
the hiring hall. He testified without dispute that the Respondent
did not have a collective-bargaining agreement with any of
these employers.5 Representatives of several of these employ-
ers, who were subpoenaed by the Respondent, appeared at the
hearing and testified that they had no agreement with the Union
requiring them to use the Respondent’s hiring hall as the exclu-
sive source of labor. The testimony of these employer repre-
sentatives revealed that each had, from time to time, utilized the
Respondent as a source of employees because it was convenient
to do so, not because they were under any contractual obliga-
tion. All testified consistently that they had hired stagehands,
including union members, directly without contacting the Re-
spondent or utilizing the hiring hall. Faced with this evidence,
counsel for the General Counsel amended the complaint at the
hearing to allege that by contract “or practice,” the Respondent
has been the exclusive source of referrals of employees within
its trade jurisdiction.
The General Counsel’s theory of the case rests upon a find-
ing that the Respondent operated an exclusive hiring hall for
jobs in the stagehand craft in the Mobile area. Under the Act, a
union that operates an exclusive hiring hall may not discrimi-
nate against and among employees in the way it refers employ-
ees for employment. Laborers Local 334 (Kvaerner Songer),
335 NLRB 597 (2001). A union that operates a nonexclusive
hiring hall is not obliged to follow a nondiscriminatory referral
system because, in such cases, the union lacks the power to put
jobs out of reach of employees. Carpenters Local 537 (E. I.
duPont), 303 NLRB 419 (1991). It is well established that the
party asserting the existence of an exclusive hiring hall has the
burden of proof. Id. at 420.
The evidence described above fails to establish that, by con-
tract or “practice,” the Union operated an exclusive hiring hall
with respect to any of the employers named in the complaint.
SMG is the only employer with whom the Respondent had a
collective-bargaining agreement and that agreement, on its face,
does not create an exclusive referral system. Rather, it provides
that the employer may utilize the Union as a source of employ-
ees when it deems it necessary. The collective-bargaining
agreement established the wages, hours, and terms and condi-
tions of employment of employees referred to the Civic Center
and its venues only when the Union referred such employees. It
does not govern the terms and conditions of SMG’s own em-
ployees, who perform some of the work that stagehands do, and
it doesn’t govern the terms and conditions of contractor em-
ployees who are utilized from time to time. I credit the testimo-
ny of Hagerman over any contradictory testimony offered by
5 The five employers, named as parties in interest in the complaint,
are: AIG Baker Wharf Inn, LLC (the Wharf); BayFest, Inc.; Dorsett
Productions Unlimited (DPU); Gulf Coast Exploreum Science Center
(Exploreum); and Alabama Power Company.
the Charging Parties that would suggest that an exclusive hiring
hall arrangement existed in practice.
The General Counsel’s case is even more unsustainable as to
the other named employers. None ever recognized the Union as
the 9(a) representative of its employees. None ever signed a
collective-bargaining agreement with the Union. None ever
signed any agreement with the Union that would require them
to use the Union as the exclusive source of employees in the
craft. Moreover, credible testimony from representatives of
these noncontract employers shows the nonexclusive nature of
the Respondent’s referral service. The fact that these employ-
ers, from time to time, elected to obtain through the Union the
services of skilled stagehands for specific functions, by itself,
does not create an exclusive hiring hall by any stretch of the
imagination.
A union’s duty to act fairly and impartially drives from its
status as exclusive collective-bargaining representative of em-
ployees in a specified unit. Vaca v. Sipes, 386 U.S. 171 (1967);
Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 326 F.2d
172 (2d Cir. 1963). In this case, the Union had never been rec-
ognized by Alabama Power, the Wharf, BayFest, the Ex-
ploreum, or DPU as exclusive representative of any unit of
employees. Thus, the Union owed no duty to assist its members
or others in finding employment with these employers who
could and did hire individuals directly. The General Counsel’s
reliance on those cases where the Board found a “de facto”
exclusive hiring hall are not apposite to the situation here, with
the exception of SMG. In those cases, there was at least recog-
nition of the union, a bargaining relationship and a collective-
bargaining agreement between the union and the employer. See
Teamsters Local 200 (Bechtel Construction), 357 NLRB 1844
(2011); Teamsters Local 293 (Beverage Distributors), 302
NLRB 403 (1991); Teamsters Local 328 (Blount Bros.), 274
NLRB 1053, 1057 (1985); Laborers Local 135 (Bechtel Corp.),
271 NLRB 777 (1984); Teamsters Local 174 (Totem Beverag-
es), 226 NLRB 690 (1976).
Because SMG had a collective-bargaining agreement with
the Union which contained referral language, those cases relied
on by the General Counsel are relevant. However, I find that
they are distinguishable from the facts here which show, as
described above, that SMG retained discretion to determine
when and whether to use the Union’s referral service. Accord-
ingly, I find that even as to SMG, the Union did not operate a
“de facto” exclusive hiring hall.
Without this predicate finding of an exclusive hiring hall,
much of the General Counsel’s case falls apart. Thus, any alle-
gations that the Union violated the Act with respect to referrals
to employers other than SMG must fall because the Union
owed no statutory duty to the potential or actual employees of
these employers who had not recognized it as the 9(a) repre-
sentative of their employees. Even as to SMG, because the
Respondent operated a nonexclusive hiring hall, it was not
required to make referrals in a nondiscriminatory manner nor
was the Union required to follow objective criteria in the opera-
tion of the hiring hall. See Carpenters Local 370 (Eastern Con-
tractors Assn.), 332 NLRB 174 (2000); Carpenters Local 537
(E. I. DuPont), supra; Development Consultants, 300 NLRB
479 (1990). Accordingly, I shall recommend dismissal of those

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402
allegations in the complaint that are based on alleged discrimi-
nation in making referrals based on an applicant’s nonmember-
ship in the Union or based upon the Union’s failure to follow
its hiring hall rules or other objective criteria in making refer-
rals to SMG.
A union that operates a nonexclusive hiring hall still owes its
members a duty not to retaliate against them for exercising their
Section 7 rights and may be found to violate Section 8(b)(1)(A)
where it discriminates against members in retaliation for their
protected activities. Teamsters Local 17 (Universal Studios),
251 NLRB 1248, 1257 (1980), cited with approval by the
Board in Carpenters Local 537 (E. I. DuPont), 303 NLRB at
420. Accord: Teamsters Local 460 (Superior Asphalt), 300
NLRB 441, 441 fn. 1 (1990); Development Consultants, 300
NLRB 479, 480 (1990). In this case, the General Counsel alleg-
es that the Respondent discriminated against Charging Parties
Finch and Vacik in making referrals based on their protected
activity.
Finch has worked in the industry for over 20 years and has
been a member of the Respondent Union since October 9,
2006. He served as steward when Jonathan P. Mudrich was
business representative, in 2006–2007. Finch more recently
served as the elected secretary-treasurer, from January to June
2012. He is listed on the first hire crew for the Convention Cen-
ter as the first hire stagehand, which means he should be the
first stagehand referred when the convention center requests a
referral. Finch has experience in all aspects of stagehand work,
including lighting and rigging, although he admitted that pre-
fers not to work certain freestyle up-rigging jobs that require a
rigger to work on open beams. Finch also has a history of filing
charges against the Respondent, including three of the charges
involved in this case.
There is no dispute that, on March 1, 2008, Mary Gordon
Forde, SMG’s event services manager for the Convention Cen-
ter, informed Cook, the Respondent’s president at the time, that
the producer of the Gulf Coast Boat Show had requested that
Finch no longer work on any boat shows due to his slow re-
sponse and poor quality of work. Finch admitted that he has not
worked a boat show at the Convention Center since then.
Around the same time, Hagerman sent a letter to the Respond-
ent, dated April 16, 2008, stating that SMG would no longer
allow Finch to work as part of a stagehand call at the Civic
Center because he was perceived to be slowing down work and
had exhibited a bad attitude toward SMG management and
employees. Finch has not been referred to work any events at
the Civic Center since April 2008.
There is some evidence in the record that some officials of
the Respondent bore animus toward Finch. On September 28,
2009, 3 days after Finch had filed his second charge against the
Union and amended his first charge, Tapia sent an email to then
Secretary-Treasurer Helen Megginson in which he referred to
Finch as “Rat Fink.” On December 20, 2010, while Finch’s
charges were awaiting a hearing in this case, someone posted a
sarcastic comment on the Respondent’s webpage identifying
Finch as the Respondent’s new webmaster and directing mem-
bers to “address all concerns to him.” There is no dispute that
Finch never served as the Respondent’s webmaster. It is also
undisputed that only Business Representative Tapia and Secre-
tary-Treasurer Megginson had access to and the authority to
post information on the Respondent’s webpage.
The General Counsel cites a number of specific instances
where it is claimed Finch should have been referred to a job
instead of someone else on the list. The first incident cited by
the General Counsel was the Order of Venus event at the Con-
vention Center on February 16, 2009. Finch was referred to
work the load-in and load-out for this Mardi Gras related event,
but he was not referred to work the performance phase. Accord-
ing to Finch, when he questioned Tapia about this, Tapia told
him that Finch had not been at a recent union meeting and an-
other member who was at the meeting requested to work the
event. The General Counsel also cites a number of events at the
Convention Center where it is claimed that someone was re-
ferred to a job ahead of Finch even though Finch was the First
Hire Stagehand for that venue. The first such event was the
annual Nutcracker Ball in December 2010. Finch had worked
this event every year. According to Finch, he was watching the
evening news on December 21 and saw a report about the event
and saw other stagehands working at the Convention Center in
preparation for it. Finch had not been called by Tapia for this
job. Finch testified that he checked the Respondent’s webpage
to see if the event was listed and that is when he discovered the
sarcastic comment about him being the new webmaster. After
Finch submitted a written complaint about this to Tapia and the
Respondent’s hiring hall board, he was referred to the event on
December 23.
Other events at the Convention Center, to which the General
Counsel claims others were referred ahead of Finch despite his
being on the First Hire crew for that venue are: Alfa Showbiz
on December 1, 2011; a December 29, 2011 event for Church
of His Presence (CHP) at the Convention Center for DPU; the
Gulf States Horticulture show on January 14–17 (Finch was
referred for the first day and not the remainder of the show);
another DPU event for CHP on January 28, 2012; and Jam Fest
Nationals, a dance competition, on February 23, 2012. The
General Counsel also cites an incident on January 2, 2012,
involving an event for Dauphin Way Baptist Church. There is
no dispute that employees other than Finch were referred to
perform rigging and stagehand work. Tapia claimed that the
call for employees came in to the Union at 6 p.m. for a job that
started at 8:30 p.m., less than 2 hours away. Tapia testified that
he referred two employees who were present at the Civic Cen-
ter when he received the call rather than using the seniority
roster. Finally, the General Counsel cites a referral to the Ex-
ploreum to help with setting up and taking down a travelling
dinosaur exhibit.6 Finch and Charging Party Vacik were re-
ferred for 2 days to do the load-in. The complaint is that they
did not work the next 2 days (January24 and 25, 2012). John
Kenneth Brown was the business representative at the time,
having succeeded Tapia after Tapia was elected president.
Brown testified that he recalled that Finch and Vacik had an-
other job on January 24 and 25.
As already found, the Respondent Union did not operate an
exclusive hiring hall with respect to work at the Mobile Con-
6 The Exploreum is one of the employers with whom the Union had
no contract.

STAGE EMPLOYEES IATSE, LOCAL 142 1403
vention Center and had no contractual or statutory obligation to
fairly represent employees of the other employers named in the
complaint, such as DPU and the Exploreum. Thus, to establish
a violation of the Act regarding these nonreferrals for Finch, the
General Counsel must prove that the Respondent, in failing to
make a referral, was motivated by protected activity engaged in
by Finch. While there is no question that Finch’s charge-filing
activity was protected, and although there is some evidence that
there was no love lost between Finch and Tapia, I find that the
General Counsel has not met his burden of proving causation
between Finch’s protected activity and the nonreferrals. The
Respondent’s witnesses, Tapia and Brown, provided an expla-
nation for the nonreferrals which was not unreasonable. Finch’s
testimony was not entirely credible because he tended to exag-
gerate his rigging skills and experience in the face of contradic-
tory testimony from the Respondent’s witnesses. I also note
that, during his testimony, Finch took an unusually long time to
answer some questions, even when posed by counsel for the
General Counsel, suggesting that he was contemplating the
consequences of whatever answer he gave. I also note that
SMG management, which operates the Convention Center, had
already expressed their displeasure with Finch’s work perfor-
mance. Finally, the record shows that, despite these incidents
when Finch was allegedly denied a referral by the Respondent,
he received multiple other referrals to the Convention Center
and other venues during the period of time after he filed charg-
es against the Union. This evidence tends to belie any claim
that the Respondent was intent on retaliating against Finch for
unlawful reasons.
Charging Party Vacik has worked in the industry since 1994
and has been a member of the Respondent since November 13,
2006. As noted above, Vacik is on the First Hire crew for the
Arena at the Civic Center as Head Lighting. Vacik also has
substantial audio experience and has worked as a stagehand and
rigger. As noted previously, Vacik also served as the Respond-
ent’s business representative, in charge of making referrals,
from January to August 2011. He filed one of the charges in
this case, on December 14, 2011. There is no evidence of any
specific animus towards Vacik over the exercise of any protect-
ed activity.
The General Counsel does not allege that Vacik was passed
over for referrals to the Arena where he was on the First Hire
crew. Rather, the General Counsel cites a number of events
between October 4, 2011, and February 5, 2012, where records
kept by the Respondent show that employees with less seniority
than Vacik were referred to jobs at other venues. Three of the
events occurred around the same time: an Alabama Power
Company business meeting held at the Grand Hotel in Point
Clear, Alabama, on October 4, 5, and 7, 2011; The BayFest
Miller Stage on October 5, 6, 7, 8, and 9, 2011 (Vacik usually
works this event every year and in fact worked the event on
October 7 and 8 and declined to work on October 9); and the
load out of the Space Shuttle exhibit at the Exploreum on Octo-
ber 5. 2011. All of these events were presented by employers
who did not have a contractual relationship with the Union.
Thus, there was no obligation for the Respondent to follow
objective criteria or act fairly in making these referrals. The
only thing the Respondent was prohibited from doing was
denying a referral because of a members protected activity. As
with the allegations regarding Finch, the General Counsel has
the burden of proving an unlawful motivation. I find that, in
this instance, he has not met his burden. Vacik in fact was re-
ferred and worked one of these events during this period. If the
Respondent were intent on retaliating against Vacik, why
would they have referred him for 3 days at the BayFest job?
Vacik declined 1 of the 3 days he was offered work. It’s possi-
ble that he also declined work on October 5, a day all three
events shared.
The other events which Vacik was allegedly passed over for
discriminatory reasons involve primarily audio work. There
was disagreement in the testimony over the extent of Vacik’s
skill and qualifications for this work. I note that Vacik’s testi-
mony about work he performed at a venue not named in the
complaint (the Saenger Theater), was not corroborated by the
production manager at that facility, Mitch Teeple, who testified
that another individual actually performed the work that Vacik
claimed to have done. In light of Vacik’s questionable credibil-
ity regarding his expertise and experience, I cannot say that the
testimony of the Respondent’s witnesses as to the reasons
Vacik was not referred to these jobs was pretextual.
Having found that the General Counsel has not met his bur-
den of proving that the Respondent discriminated against Finch
and Vacik in making referrals because they had engaged in
protected activity, I shall recommend that these allegations in
the complaint be dismissed as well. Carpenters Local 537 (E. I.
DuPont), supra.
CONCLUSIONS OF LAW
1. The Respondent Union did not operate an exclusive hiring
hall with respect to referral of employees to the Mobile Civic
Center and Mobile Convention Center under its collective-
bargaining agreement with SMG Worldwide.
2. The Respondent was not the 9(a) representative of and
owed no statutory duty to employees of Alabama Power Com-
pany, AIG Baker Wharf Inn, LLC, BayFest, Inc., Dorsett Pro-
ductions Unlimited, and Gulf Coast Exploreum Science Center.
3. The Respondent did not violate Section 8(b)(1)(A) and (2)
of the Act through the operation of its nonexclusive hiring hall.
4. The Respondent did not violate Section 8(b)(1)(A) of the
Act by discriminating in making referrals against Randy Finch
and James Vacik because they engaged in activity protected by
the Act.
5. The Respondent has not violated the Act in any other
manner alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The complaint is dismissed.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.