IATSE Local 8 (1. Elliott-Lewis Corp., 2. Freeman)

National Labor Relations Board - Board Decisions

Apr 29, 2020

369 N.L.R.B. 67 (N.L.R.B. 2020)

369 NLRB No. 67
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied
Crafts of the United States, its territories, and
Canada, Philadelphia Local No. 8 (Elliott Lewis
Convention Services, LLC) and Martin C. McIn-
tyre. Cases 04–CB–216541 and 04–CB–221871
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
The General Counsel’s cross-exceptions seek to correct the judge’s
misidentification of Martin McIntyre as “Michael” McIntyre. We cor-
rect this inadvertent mistake.
The Respondent excepts to the judge’s Conclusion of Law that,
among other things, it violated Sec. 8(b)(1)(A) by bringing an internal
union charge against Martin McIntyre on April 30, 2018, for soliciting
referral jobs without the use of the hiring hall procedures. The Respond-
ent, however, does not state, either in its exceptions or supporting brief,
any grounds on which the judge’s conclusion should be overturned.
Therefore, in accordance with Sec. 102.46(a)(1)(ii) of the Board’s Rules
and Regulations, we shall disregard this exception. See Natural Life,
Inc., d/b/a Heart and Weight Institute, 366 NLRB No. 53, slip op. at 1
fn. 3 (2018); Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1
(2005), enfd. 456 F.3d 265 (1st Cir. 2006).
We find merit to the Respondent’s contention that the judge’s decision
conflated the term “house crew” with the term “core workforce.” The
record establishes that McIntyre was removed from the house crew—the
Respondent’s preferred group for work at the Philadelphia Convention
Center—and placed on the hiring hall list established for the core work-
force. Nevertheless, the record also establishes that the house crew mem-
bers are generally called first for decorator and carpentry work, and thus
the Respondent’s removal of McIntyre from the house crew reduced his
opportunities for employment. In adopting the judge’s finding that the
Respondent violated Sec. 8(b)(1)(A), we rely only on his finding that the
Respondent breached its duty of fair representation owed to McIntyre
when it removed him from the house crew. See Stage Employees IATSE
Local 41 (Theater of Stars), 278 NLRB 89, 92 (1986) (finding that re-
spondent union breached its duty of fair representation in violation of
Sec. 8(b)(1)(A) when it departed from established referral procedures by
moving registrants from the preferred A list to the C list without estab-
lishing that its actions were pursuant to a valid union-security provision
or necessary to its effective performance of its representative function).
Contrary to our dissenting colleague, we find that the Respondent has
not established that McIntyre’s removal was necessary for the effective
performance of its representative function. The Respondent’s contention
that McIntyre was removed in part because he solicited work directly
from a contractor in violation of hiring hall rules was raised for the first
April 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On March 11, 2019, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief. The General Counsel also filed cross-excep-
tions.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions, cross-
exceptions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions and to adopt the recom-
mended Order as modified and set forth in full below.1
time at the hearing, almost a year after McIntyre’s removal. The only
evidence cited by the Respondent in support of its position is uncredited
hearsay. That is, Union President Michael Barnes testified that Steward
Axel Barnes called him and said that “he [Axel] got a call from [contrac-
tor] Rich Kelly, [and Axel] believe[d] that Rich Kelly was solicited by
McIntyre for the job.” Michael Barnes’ testimony as to what Axel
Barnes said was hearsay, and Michael Barnes’ testimony as to what Axel
Barnes said Rich Kelly said was double hearsay. As mentioned above,
we find no basis for reversing the judge's credibility findings. Even if
we were to consider this evidence, however, in light of conflicting evi-
dence in the record and in the absence of corroborating evidence from
the contractor, the Respondent’s uncredited hearsay evidence does not
support its contention that engaging in self-solicitation was one of the
reasons why McIntyre was removed. Compare Acklin Stamping Co., 355
NLRB 824, 826 (2010) (reversing the judge, the Board found, based in
part on the employer’s corroborating testimony regarding the employee’s
lack of qualifications, that the union did not violate Sec. 8(b)(1)(A) by
requesting the employee’s discharge); IATSE Local 150 (Mann Thea-
tres), 268 NLRB 1293, 1293–1295 (1984) (reversing the judge, the
Board found that based on four employers’ testimony regarding the em-
ployee’s poor work performance, the union did not violate Sec.
8(b)(1)(A) for refusing to refer the employee).
Significantly, the Respondent only offered the alleged self-solicitation
as one of the bases for selecting McIntyre for removal because it alleg-
edly decided to reduce the size of the house crew. That is, Union Presi-
dent Barnes testified that the Union decided to reduce the house crew
from 18 to 15, and that McIntyre was selected as one of the three to be
dropped from the house crew because he solicited work from contractors.
But the judge discredited Barnes’ testimony that he decided to reduce the
size of the house crew from 18 to 15, and we have upheld the judge’s
credibility determinations. Since there was never a decision taken to re-
duce the size of the house crew, there was no reason for the judge to
address testimony concerning why McIntyre was selected for a house-
crew reduction as part of a decision that never happened. Having dis-
credited testimony regarding the former, the judge also implicitly dis-
credited testimony regarding the latter.
We amend the judge’s remedy and modify the recommended Order
in several respects. We shall order the Respondent to compensate McIn-
tyre for the adverse tax consequences, if any, associated with receiving a
lump-sum backpay award. Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014). In addition, in accordance with King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23
(D.C. Cir. 2017), the Respondent shall compensate McIntyre for his rea-
sonable search-for-work and interim employment expenses, if any,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board orders that the Re-
spondent, International Alliance of Theatrical Stage Em-
ployees, Moving Picture Technicians, Artists and Allied
Crafts of the United States, Its Territories, and Canada,
Philadelphia Local No. 8, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Removing employees from the Philadelphia Con-
vention Center house crew for arbitrary, discriminatory,
and/or bad faith reasons, including for objecting to the
way it operates its hiring hall.
(b) Filing internal union charges against its members
for filing an unfair labor practice charge with the National
Labor Relations Board.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to
restore Martin McIntyre to his former position on the
house crew at the Philadelphia Convention Center, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Martin McIntyre whole for any loss of earn-
ings and other benefits suffered as a result of his unlawful
removal from the house crew, in the manner set forth in
the remedy section of the judge’s decision as amended in
this decision.
(c) Compensate Martin McIntyre for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful removal of
Martin McIntyre from the house crew and the unlawful
union charges against him, and within 3 days thereafter,
notify Martin McIntyre in writing that this has been done
and that his removal from the house crew and union
charges will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
regardless of whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be calculated sepa-
rately from taxable net backpay, with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We
shall also modify the judge’s recommended Order to conform to the
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its Philadelphia, Pennsylvania facility copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its members by such means. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(g) Within 14 days after service by the Region, deliver
to the Regional Director for Region 4 signed copies of the
notice in sufficient number for posting by the Employer at
its Philadelphia, Pennsylvania facility, if it wishes, in all
places where notices to employees are customarily posted.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 4 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. April 29, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER EMANUEL, dissenting in part.
I agree with my colleagues that the Respondent violated
Section 8(b)(1)(A) by bringing internal union charges
Board’s standard remedial language, and we shall substitute a new notice
to conform to the Order as modified.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
STAGE EMPLOYEES PHILADELPHIA LOCAL 8 (ELLIOTT LEWIS CONVENTION SERVICES, LLC) 3
against Charging Party Martin “Chris” McIntyre because
he filed charges with the Board. However, I would find
that the Respondent did not violate Section 8(b)(1)(A)
when it moved McIntyre from the preferential “house
crew” and returned him to the Respondent’s normal hiring
hall list on March 6, 2018.
When a union refuses to refer an individual from its hir-
ing hall, and this refusal is not due to a failure to pay dues
or other fees, there arises a presumption that the refusal is
intended to coercively encourage union membership in vi-
olation of Section 8(b)(1)(A). International Longshore &
Warehouse Union (Pacific Maritime Assn.), 365 NLRB
No. 149, slip op. at 9 (2017), citing IATSE Local 838
(Freeman Decorating), 364 NLRB No. 81, slip op. at 4
(2016). However, this presumption can be rebutted by a
showing that the union did not violate its duty of fair rep-
resentation, and that its actions were necessary for the ef-
fective performance of its representative function. Id.
Here, the Respondent presented evidence from multiple
witnesses establishing that the determining factor for re-
moving McIntyre was his circumvention of the hiring hall
process by soliciting jobs directly from a contractor. On
March 5, the Respondent’s president received word that
McIntyre was attempting to solicit a job placement from
Rich Kelly, a contractor for Freeman Decorating Com-
pany. This self-solicitation of work was in direct violation
the Respondent’s Constitution, which provided that a
member who solicits referral jobs or fills referral jobs
without the use of the hiring hall procedure could be sus-
pended from using the hiring hall entirely. Accordingly,
McIntyre was removed from his job assignment scheduled
for the following day and was informed via email on
March 6 that he was being removed from the house crew.
The Board has found on numerous occasions that a Re-
spondent meets its rebuttal burden of establishing that it
did not violate its duty of fair representation and that its
actions were necessary for the effective performance of its
representative function when it refuses to refer an em-
ployee from its hiring hall because that employee’s con-
duct impacted the integrity of its job-referral system. Boil-
ermakers Local Lodge No. 40 (Envirotech Corp.), 266
NLRB 432, 433–434 (1983) (rebuttal burden met where
employee had solicited work directly from employers in
violation of hiring hall rules); accord United Brotherhood
1 Specifically, the Respondent’s principal decisionmaker behind
McIntyre’s removal, President Michael Barnes, testified that “one of the
factors that was the determining factor was that I believed that Mr. McIn-
tyre was approaching the employers to solicit foreman's positions at the
Convention Center, which was in violation of policy that we clearly es-
tablished.” This testimony was corroborated by an additional witness,
Steward Axel Barnes, who testified that he had spoken to contractor Rich
Kelly on March 5 and confirmed that Kelly had never requested McIn-
tyre by name, despite McIntyre’s insistence that Kelly had requested him
of Painters, Decorators & Paperhangers of America, Lo-
cal Union No. 487 (American Coatings, Inc.), 226 NLRB
299, 301 (1976). Here, the Respondent exercised its dis-
cretion not to suspend McIntyre, or even to remove him
from the hiring hall entirely, but instead to move him from
the preferential house crew to the regular hiring hall as a
consequence for his conduct.
This legitimate, nondiscriminatory reason for McIn-
tyre’s removal from the house crew is inexplicably absent
from the judge’s decision, with the judge failing to either
credit or discredit the testimony presented above.1 More-
over, the judge’s chronology of events does not comport
with the timeline established by the record evidence. In
effect, the judge’s finding of a violation puts the prover-
bial cart before the horse. The judge determined that
McIntyre was removed from the house crew on March 6
in retaliation for his complaints about his removal from a
job placement via texts sent on March 5 and an email sent
on March 6. However, this chronology of events is under-
cut by McIntyre’s own statements; specifically, the text
messages that form the crux of the judge’s erroneous un-
fair labor practice finding. In his initial texts, sent at
roughly 5:16 p.m. on March 5, McIntyre states, “Tomor-
row is the show and after being on the flower show and
getting kick (sic) off the job Rich [Kelly] went back to
New York and I got cut.” Simple causality thus neces-
sarily requires that McIntyre sent these texts only after he
checked his schedule in the evening of March 5 and saw
that he “got cut” and had been removed from his job place-
ment scheduled for the following day. And why was he
removed from this job placement? Because, as estab-
lished by the Respondent, he had been caught soliciting
work directly from a contractor earlier that day, in viola-
tion of the Respondent’s Constitution and the effective op-
eration of its hiring hall.
In sum, I would find that the Respondent did not violate
Section 8(b)(1)(A) when, on March 6, it removed McIn-
tyre from its preferential house crew for his direct solici-
tation of work the day prior.
Dated, Washington, D.C. April 29, 2020
______________________________________
William J. Emanuel, Member
for a position. This testimony was left entirely unaddressed by the judge.
Instead, the judge’s sole credibility finding regarding McIntyre’s re-
moval from the house crew found that the one of the Respondent’s prof-
fered reasons for removing McIntyre, President Michael Barnes’ ex-
pressed desire to reduce the house crew from 18 to 15 members, was
pretextual. However, the judge neither credited nor discredited Barnes’
other testimony regarding motive, and entirely failed to address the ad-
ditional evidence presented above regarding the March 5 incident.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT remove you from the Philadelphia Con-
vention Center house crew for arbitrary, discriminatory,
and/or bad faith reasons, including for objecting to the
way we operate our hiring hall.
WE WILL NOT file internal union charges against you for
filing an unfair labor practice charge with the National La-
bor Relations Board.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer to restore Martin McIntyre to his former po-
sition on the house crew at the Philadelphia Convention
Center, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Martin McIntyre whole for any loss of
earnings and other benefits resulting from his unlawful re-
moval from the house crew, less any net interim earnings,
plus interest, and WE WILL also make him whole for rea-
sonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL compensate Martin McIntyre for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Martin
McIntyre’s unlawful removal from the house crew and the
filing of unlawful union charges against him, and WE
WILL, within 3 days thereafter, notify him in writing that
we have done so and that we will not use his removal from
the house crew or the union charges we filed against him
in any way.
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EEMPLOYEES, MOVING PICTURE
TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF
THE UNITED STATES, ITS TERRITORIES, AND
CANADA, PHILADELPHIA LOCAL NO. 8 (ELLIOTT
LEWIS CONVENTION SERVICES, LLC
The Board’s decision can be found at www.nlrb.gov/case/04-
CB-216541 or by using the QR code below. Alternatively, you
can obtain a copy of the decision from the Executive Secretary,
National Labor Relations Board, 1015 Half Street, S.E., Wash-
ington, D.C. 20570, or by calling (202) 273–1940.
David Rodriguez, Esq., for the General Counsel.
Regina C. Hertzig, Esq. (Cleary, Josem & Trigiani), of Philadel-
phia, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on January 31, 2019.
Michael C. McIntyre (aka Chris McIntyre) filed the charges giv-
ing rise to this case on March 14, and June 12, 2019. The Gen-
eral Counsel issued the complaint on September 25, 2018.
The General Counsel alleges that Respondent, IATSE Local
8, violated Section 8(b)(2) in in causing an employer, Elliott-
Lewis Convention Services, LLC, to remove Michael McIntyre
from the house crew or core workforce at the Philadelphia Con-
vention Center on March 6, 2018. He also alleges the Union
violated Section 8(b)(1)(A) in bringing internal union charges
against McIntyre on April 30, and June 6, 2018.
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 Charged Party Union, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
The Respondent Union, IATSE Local 8, is a labor organiza-
tion within the meaning of Section 2(5) of the Act. It represents
employees who work at the Philadelphia Convention Center
(PCC). These employees’ nominal employer, Elliott-Lewis
Convention Services, LLC, and Freeman Decorating Company,
for whom the Charging Party performed services at the PCC, are
employers engaged in commerce with the meaning of Section
2(2), (6), and (7) of the Act. Elliott-Lewis, has an office in
STAGE EMPLOYEES PHILADELPHIA LOCAL 8 (ELLIOTT LEWIS CONVENTION SERVICES, LLC) 5
Pennsylvania and purchases and receives goods valued in excess
of $50,000 directly from points outside of Pennsylvania. Free-
man has an office in New Jersey and has performed services val-
ued in excess of $50,000 outside of New Jersey.
II. ALLEGED UNFAIR LABOR PRACTICES
IATSE Local 8 began providing labor for employers at the
PCC in 2003. Initially, these employees performed only audio-
visual work. In 2014, however, the Union began supplying labor
for many other functions at the PCC, such as trade shows. Its
members began doing such work as laying carpeting, hanging
signs and installing and dismantling trade show booths.
The Union has a “Customer Satisfaction Agreement” with El-
liott-Lewis, which is essentially a staffing agency for contractors
working the Convention Center. Contractors request labor at the
PCC by submitting a labor order form to Elliott-Lewis, which
then procures the labor from IATSE Local 8. Pursuant to its
agreement with Elliott-Lewis, the Union is allowed to designate
a number of employees as a core workforce or “house crew.”
These employees have priority in getting work at the PCC over
other union members. If more employees are needed at the PCC
than are on the house crew, the Union refers them via its exclu-
sive hiring hall.
In 2014, the house crew initially consisted of 15 union mem-
bers plus Axel Barnes, the general foreman and union steward.
Due to injuries to some of its members the crew increased to 18
members, plus Barnes, by 2016. The Charging Party, Michael
“Chris” McIntyre, was the last person added to the house crew
in September 2016. The crew did not have any new members
until March 2018.
Removal of McIntyre from the House Crew
McIntyre, a union member since 2002, has had disagreements
with the union leadership. Some of these involved the staffing
at the PCC, which he considers the most desirable job in the Un-
ion’s jurisdiction. In September 2017, McIntyre complained to
Pete Tzorgatos, a union member who serves as a general foreman
at the PCC, about the house crew assignments. These complaints
included concerns as to which members received overtime work.
This prompted Michael Barnes, the President of Local 8, to send
the following email to McIntyre on September 19, 2017:
Dear Brother McIntyre,
Please be informed the seniority for the House Crew at the con-
vention center is based on building seniority not industry sen-
iority. This was explained to you when the job was offered.
You may recall the job was offered to you on the condition you
did not disrupt the stability of the crew. If this issue persist
(sic), you will be replaced on the house crew.
On March 5, 2018, McIntyre apparently believed that another
IATSE employee was doing work that should have been as-
signed to him. He sent a text message complaining about this to
two members of the Union’s Executive Board.
In response, Union President Michael Barnes sent McIntyre
the following email on March 6:
On September 19, 2017 you were sent the attached email.
Based on additional information reported to this office after this
email was sent, you are being removed from the house crew at
the convention center.
On March 17, 2018, 11 days after removing McIntyre from
the house crew, the Union added Joseph McAlee, a union mem-
ber with far less seniority than McIntyre, to the house crew. The
Union contends this was done to replace member Tim Yowler,
who stopped working in February due to illness. However, when
Yowler returned to work in August 2018, McAlee remained on
the house crew.
Despite this “smoking gun” establishing that McIntyre was re-
moved from the house crew for complaining about losing work
to another member. Respondent has proffered a non-credible
pretextual explanation for McIntyre’s removal from the house
crew.
Union President Michael Barnes testified that the reason that
he removed McIntyre from the house crew was that the Union
decided to reduce the number of members on the PCC house
crew from 18 to 15. There are a number of reasons why I decline
to credit this testimony. First, Barnes’ March 6 email does not
give any such reason for McIntyre’s removal.
Secondly, there is no documentary corroboration for Barnes’
testimony in this regard. There is also no documentation that 2
other employees were removed from the house crew at the same
time. In fact, Barnes’ testimony appears to establish that Jim
Gilroy and Vince Messina were removed from the house crew at
times unspecified for reasons other than a non-discriminatory de-
cision to reduce the size of the house crew. At Transcript 198
Barnes testified that Gilroy was removed from the house crew
because he regularly wanted to work elsewhere. Moreover, Gil-
roy was still on the house crew when McAlee joined it on March
17. Barnes’s testimony also indicates that Gilroy may have been
removed in part to objecting to the addition of McAlee to the
house crew (Tr. 206). Barnes testified that Messina was re-
moved due to disciplinary problems and challenging the basis of
adverse incident reports.
Moreover, Barnes admitted that McIntrye’s questioning of job
assignments was a factor in his decision to remove McIntyre
from the house crew (Tr. 198).
The Filing of Internal Union Charges
On April 30, 2018, Local 8 President Michael Barnes filed 2
internal union charges against McIntyre alleging that he violated
the Constitution and By-Laws of the Union by (1) failing to ex-
haust internal remedies to resolve a decision by a local officer
and (2) soliciting referral jobs using the Union’s hiring hall pro-
cedure.
As to the first charge, McIntrye’s union personnel file de-
scribes the offense as “filed charges with the NLRB before ex-
hausting internal remedies.” I find that Barnes would not have
filed either charge had McIntrye not filed his unfair labor prac-
tice charge on March 14, 2018.
The Union dropped both charges without explaining the rea-
son(s) to McIntyre.
On June 6, 2018, Joseph Baliski, the Union’s recording secre-
tary, filed another internal union charge against McIntyre, accus-
ing him of leaving work at the PCC 50 minutes early on May 2,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
2018, without the consent of his steward or head of his depart-
ment. On May 3, Union President Michael Barnes told McIntyre
that he would have to appear before the Union’s Executive Board
as a result of the May 2 incident because he already had union
charges pending against him. Barnes told another employee,
who was also accused of leaving work early, that he had nothing
to worry about since it was his first violation of union rules. Re-
cording Secretary Baliski confirmed at this hearing that whether
a member is brought up on internal union charges depends of
their prior history and that McIntyre was brought up on charges
on June 6, at least in part due to the charges that were subse-
quently withdrawn (Tr. 166–167).1
Analysis
Removal from the House Crew
Since the Respondent Union operates an exclusive hiring hall,
it owes a duty of fair representation to its members. Once the
General Counsel establishes union interference with a member’s
employment status, the union bears the burden of establishing
the such interference was made pursuant to a valid hiring-hall
provision, or that its conduct was necessary for effective perfor-
mance of its representational function, IATSE Local 151 (SMG
and the Freeman Cos., d/b/a Freeman Decorating Services), 364
NLRB No. 89, slip op at p. 2 (2016).2
A union’s duty of fair representation applies to all union ac-
tivity. A union may not treat a unit employee in a manner that is
arbitrary, discriminatory or in bad faith, Vaca v. Sipes, 386 U.S.
171 (1967); Steelworkers v. Rawson, 495 U.S. 362 (1992); Air
Line Pilots Assn. v. O’Neil, 499 U.S. 65 (1991). The Union’s
conduct with regard to Chris McIntyre was arbitrary, discrimi-
natory and in bad faith. It is not necessary for the Union to ef-
fectively perform its representative functions to punish McIntrye
for complaining about his assignments or questioning whether
the Union is operating its hiring hall fairly.
There is no question but that McIntyre was removed from the
house crew for questioning whether the Union was treating him
fairly with regard to work assignments. Union President Mi-
chael Barnes admitted this was at least a factor in removing
McIntrye. Thus, the Union violated the Act in removing McIn-
tyre from the house crew. Contrary to the assertions of Respond-
ent in its brief at page 17, it violated its duty of fair representation
regardless of whether McIntyre’s complaints concerned only his
personal situation, Operating Engineers Local 627, 359 NLRB
758, 766 (2013); 361 NLRB 908 (2014), enfd. 635 Fed. Appx.
480 (10th Cir. 2015); Teamsters Local 657 (Texia Productions,
Inc.), 342 NLRB 637 (2004); Plasterer’s Local 21, 264 NLRB
192 (1982).
The Board will not seek to quantitatively analyze the effect of
the unlawful cause once it has been found. “It is enough that the
1 Respondent has the burden of showing that Barnes was referring to
charges other than those filed illegally, if that was the case. It did not do
so. As the General Counsel points out, Baliski’s contention that he was
unaware that McIntyre had filed a ULP charge is not credible.
2 Although this cited case deals with referrals, the principle logically
applies to removal of a union member from his job as well.
3 The General Counsel alleges that Respondent violated Sec. 8(b)(2)
in causing Elliott Lewis to remove McIntyre from the house crew.
employees' protected activities are causally related to the em-
ployer action which is the basis of the complaint. Whether that
‘cause’ was the straw that broke the camel's back or a bullet be-
tween the eyes, if it were enough to determine events, it is
enough to come within the proscription of the Act.” Wright Line,
251 NLRB 1083, at 1089 fn. 14; accord: Bronco Wine Co., 256
NLRB 53, at 54 fn. 8 (1981).
Filing Internal Union Charges Against Michael McIntyre
It is a violation of Section 8(b)(1)(A) for a Union to file inter-
nal charges against a member for filing an unfair labor practice
charge, IBEW Local 34, 208 NLRB 639, 641–642 (1974). This
is so even if the member has failed to exhaust internal union pro-
cedures, Western Exterminator Co., 223 NLRB 1270, 1282
(1976). This record makes it clear that the Union would not have
filed the charges against McIntyre or brought him up before the
Executive Board but for the fact that he had filed the initial
charge in this case. Therefore, the April 30, 2018 and the June
6, 2018 charges were filed and pursued in violation of the Act.
CONCLUSIONS OF LAW
Respondent IATSE Local No.8 violated Sections 8(b)(1)(A)
of the Act in removing Michael “Chris” McIntyre from the house
crew at the Philadelphia Convention Center and effectively re-
ducing his employment opportunities at that location.3
Respondent IATSE Local 8 violated Section 8(b)(1)(A) by fil-
ing 2 internal union charges on April 30, 2018, and another
charge on June 6, 2018, against Michael McIntyre because he
filed an unfair labor practice charge over his removal from PCC
house crew.
REMEDY
Having found that the Respondent, IATSE Local 8 has en-
gaged in certain unfair labor practices, I shall order it to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. It shall make Michael
McIntyre whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from March 6, 2018, to the date McIn-
tyre is restored to house crew, less any net interim earnings, as
prescribed in F.W. Woolworth, 90 NLRB 289 (1950), plus inter-
est as computed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
Respondent, IATSE Local Union 8, Philadelphia, Pennsylva-
nia its officers, agents, and representatives, shall
1. Cease and desist from
(a) Removing employees from the Philadelphia Convention
However, the Union, not Elliott Lewis removed him. The facts, which
were fully litigated establish a violation of 8(b)(1)(A), Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F. 3d 130 (2d Cir. 1990).
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
STAGE EMPLOYEES PHILADELPHIA LOCAL 8 (ELLIOTT LEWIS CONVENTION SERVICES, LLC) 7
Center house crew for arbitrary, discriminatory and/or bad faith
reasons, including their objections or criticisms as to how the
Union operates its hiring hall.
(b) Bringing internal union charges against any employee or
member because he or she has filed an unfair labor practice
charge against it.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Respondent IATSE Local 8shall take the following affirm-
ative action necessary to effectuate the policies of the Act.
(a) Respondent IATSE Local 8 shall restore Michael McIn-
tyre to the PCC house crew without prejudice to his seniority or
other rights or privileges previously enjoyed within 14 days of
this Order and shall notify Elliott Lewis Convention Services and
Freeman Decorating in writing that it is doing so.
(b) Respondent IATSE Local 8 shall make Michael McIntyre
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth
in the remedy section of the decision.
(c) Respondent IATSE Local 8 shall compensate Michael
McIntyre for any search-for-work and interim employment ex-
penses regardless of whether those expenses exceed his interim
earnings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with in-
terest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Med-
ical Center, 356 NLRB 6 (2010).
(d) Respondent shall within 14 days of this Order remove
from its files any reference to the unlawful removal from the
house crew and unlawful union charges, and within 3 days there-
after, notify Michael McIntyre, in writing that this has been done
and that the reasons for his removal from the house crew, the
removal from the house crew, his filing of an unfair labor prac-
tice charge and the illegal internal union charges will not be used
against him in any way.
(e) Within 14 days after service by the Region, Local 8 shall
post its offices and hiring hall in Philadelphia, Pennsylvania cop-
ies of the attached notices marked “Appendix”5 Copies of the
notice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees and members are customarily
posted. In addition to physical posting of paper notices, the no-
tices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its employees
and/or members by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has gone out
of business or closed the office involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
copy of the notice to all members and other persons who have
signed up at the hiring hall at any time since March 6, 2018.
(f) Respondent Local 8 shall preserve and, within 14 days of
a request, or such additional time as the Regional Director may
allow for good cause shown, provide at a reasonable place des-
ignated by the Board or its agents, all payroll records, social se-
curity payment records, timecards, personnel records and re-
ports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Within 21 days after service by the Region, Respondent
Local 8 shall file with the Regional Director a sworn certification
of a responsible official on a form provided by the Region attest-
ing to the steps that the Respondents have taken to comply.
Dated, Washington, D.C. March 11, 2019
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT remove you from the Philadelphia Convention
Center house crew or otherwise discriminate against you for ob-
jecting or complaining about the manner in which we operate our
exclusive hiring hall.
WE WILL NOT bring internal union charges against you for fil-
ing an unfair labor practice charge against IATSE Local 8.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Michael McIntyre whole for any loss of earn-
ings and other benefits resulting from his removal from the PCC
house crew, less any net interim earnings, plus interest com-
pounded daily.
WE WILL remove from our files any reference to our unlawful
removal of Michael McIntyre from the house crew and the un-
lawful internal union charges filed against him, and within 3 days
thereafter, WE WILL notify Michael McIntyre, in writing that this
has been done and that the reasons for his removal from the
house crew, the removal from the house crew, his filing of an
unfair labor practice charge and the illegal internal union charges
will not be used against him in any way.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL compensate Michael McIntyre for any search for
work expenses regardless of whether those expenses exceed his
interim earnings.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Michael McIntyre the adverse tax con-
sequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year.
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES, MOVING PICTURE
TECHNICIANS,ARTISTS, ANDALLIEDCRAFTS
OF THE UNITED STATES, ITS TERRITORIES,
AND CANADA, PHILADELPHIA LOCAL NO. 8,
AFL-CIO
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/04-CB-216541 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.