International Brotherhood of Teamsters Local 492 (Fire & Ice Productions, Inc.)

National Labor Relations Board - Board Decisions

May 8, 2020

369 N.L.R.B. 75 (N.L.R.B. 2020)

369 NLRB No. 75
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 Brotherhood of Teamsters Local 492
(Fire and Ice Productions, Inc.) and Bill Kelman.
Cases 28–CB–207136
May 8, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 24, 2019, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answer, and the General Counsel filed a
reply. The Charging Party filed exceptions with support-
ing arguments.1 The Respondent filed cross-exceptions
and a supporting brief, the General Counsel filed an an-
swering brief, and the Respondent filed a reply.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 and to adopt the recommended Or-
der.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. May 8, 2020
______________________________________
John F. Ring, Chairman
1 The Charging Party also filed a motion for reconsideration, rehear-
ing, and reopening of the record. We deny this motion because the
Charging Party has not demonstrated extraordinary circumstances as re-
quired by Sec. 102.48(c) of the Board’s Rules and Regulations.
2 The Charging Party 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. 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 re-
versing the findings.
We also reject the Charging Party’s substantive arguments that are
beyond the scope of the General Counsel’s complaint. It is well settled
that a charging party cannot enlarge upon or change the General Coun-
sel’s theory of a case. Kimtruss Corp., 305 NLRB 710, 711 (1991).
3 In adopting the judge’s finding that “a[n] exclusive hiring hall may
be created by written or oral agreement or by practice,” we do not rely
on her citation to Carpenters Local 1507 (Perry Olsen Drywall), 358
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Rodolfo Martinez, Esq., for the General Counsel.
Shane Youtz, Esq., for the Respondent.
DECISION
INTRODUCTION
AMITA BAMAN TRACY, Administrative Law Judge. This case
involves allegations by the General Counsel for the National La-
bor Relations Board (the Board) that the International Brother-
hood of Teamsters Local 492 (the Union or Local 492 or Re-
spondent) operates a de facto exclusive hiring hall for its show
and movie production work in the state of New Mexico and
maintained and enforced a rule which has no representational
function. Furthermore, the General Counsel alleges that the Un-
ion failed to effectively inform member and nonmember hiring
hall users of this rule and the consequences of violating the rule.
This rule, known as the “double-roster rule,” states:
Any person on another Teamster roster in the industry is ineli-
gible to be placed or to maintain roster status in New Mexico.
As discussed herein, I find that the Union’s double-roster rule is
lawful. Furthermore, I find that the Union did not otherwise vi-
olate the National Labor Relations Act (the Act) as alleged.
STATEMENT OF THE CASE
Bill Kelman, an individual (Kelman or the Charging Party)
filed the original charge on September 29, 2017.1 The Regional
Director issued a complaint and notice of hearing on October 24,
2018.2 The Union filed a timely answer denying all material
NLRB 1 (2012), which was issued by a panel subsequently found invalid
by the Supreme Court in NLRB v. Noel Canning, 573 U.S. 513 (2014).
Instead, we rely on Plumbers Local 198 (Stone & Webster), 319 NLRB
609, 611–612 (1995).
1 All dates hereinafter are in 2017, unless otherwise noted.
2 General Counsel moved to amend complaint paragraphs 5(a) and
5(c) at the outset of the hearing (General Counsel’s Exhibit (GC Exh.)
2). The Union opposed the amendment of paragraph 5(a), alleging that
the General Counsel’s theory of the case had changed such that the Union
was identified as a de facto exclusive hiring hall rather than a non-exclu-
sive hiring hall as originally pled. At the hearing, I granted the General
Counsel’s motion to amend both paragraphs of the complaint. As I ex-
plained during the hearing, I determined that the Union had received
enough notice of the General Counsel’s intention to amend the complaint
(on January 16 and 25, 2019), and thus, permitted the amendment but
granted the Union additional time, if needed, to prepare its response to
the amendment, specifically the type of hiring hall at issue (Transcript
(Tr.) 10–11). The Union did not request any additional time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
allegations.3 A hearing was held on January 29, 2019, in Albu-
querque, New Mexico.
The amended complaint alleges the Union violated Section
8(b)(1)(A) of the Act on or about August 25, by enforcing an
unlawful rule, thereby removing Kelman from a group 2 senior-
ity roster and placing him on a group 6 seniority roster. Moreo-
ver, the complaint alleges the Union failed to effectively inform
its member and nonmember hiring hall users of its rule and the
consequences of violating the rule. The Union denies that it op-
erates a de facto exclusive hiring hall, but instead maintains a
referral list for show and movie production work. The Union
also denies it violated the Act in any respect even assuming it
operates a de facto exclusive hiring hall. On the entire record,4
including my observation of the demeanor of the witnesses,5 and
after considering the briefs filed by the General Counsel and Un-
ion,6 I make the following
FINDINGS OF FACTS
I. JURISDICTION
At all material times, Fire and Ice Productions, Inc. (the Em-
ployer) has been a corporation with offices and places of busi-
ness throughout the United States, including an office and place
of business in Park City, Utah, and has been engaged in film pro-
duction. During the 12-month period ending September 29, the
Employer, in conducting its business operations, purchased and
received at its facility goods valued in excess of $50,000 directly
from points outside the State of Utah. The Union admits, and I
find, that Fire and Ice Productions, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
3 The Union generally alleges in its answer that the complaint is un-
timely, but the Union set forth no specific allegations and did not litigate
this issue during the hearing. As such, I find that the Union has waived
this defense. See United Government Security Officers of America In-
ternational, 367 NLRB No. 5, slip op. at 1 fn. 1 (2018). Similarly, the
Union alleged in its answer that the allegations should be referred to the
Union’s internal dispute resolution procedure. However, the Union did
not set forth any arguments to support this claim, and thus, I will not
address this defense.
4 The transcripts in this case are generally accurate, but I make the
following corrections to the record: Tr. 5, Line (L.) 8: “Anita” should be
“Amita”; Tr. 54, L. 17: “it’s” should be “is.”
5 Citations to the record are included to aid review, and not exhaustive
or exclusive. In making my findings regarding the credible evidence,
including the credibility of witnesses, I considered the testimonial de-
meanor of such witnesses, the content of the testimony and the inherent
probabilities based on the record as a whole. In certain instances, I may
have credited some but not all, of what the witnesses said. “Nothing is
more common in all kinds of judicial decisions than to believe some and
not all” of the testimony of a witness. Jerry Ryce Builders, 352 NLRB
1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (951). See
also J. Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007). This is
particularly the case where the credited portions of the witness’ testi-
mony are “consistent with the testimony of credited witnesses or with
documentary evidence,” constitute an admission against interest, or are
relied upon by the party against which a particular issue is being re-
solved. Upper Great Lakes Pilots, 311 NLRB 131, fn. 2 (1993). In
II. LABOR ORGANIZATION
During all material times, the Union admits, and I find, that it
is a labor organization within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Union’s Hiring Hall Procedures
The Union operates a hiring hall which makes available and
promotes a work force of drivers and wranglers who work on the
set of shows and movies for production companies filming in
New Mexico. These individuals are hired by production compa-
nies after the Union and production companies enter into Mem-
orandums of Agreement (MOA) per show or film. Thereafter,
the production company uses the Union’s Industry Experience
Roster, which is comprised of groupings of individuals based on
factors set forth in writing by the Union, to hire drivers and wran-
glers. In addition, to the MOAs and union procedures, the terms
and conditions of employment for those hired by the production
companies via the Union’s hiring hall are set forth in the collec-
tive-bargaining agreement (CBA), dated August 1, 2015, be-
tween Producer, a multiemployer bargaining group (which con-
sists of numerous production, entertainment and film companies)
and the Studio Transportation Drivers, Local #399 (Local 399)
(Jt. Exh. 1).7
1. The Union’s Industry Experience Roster
Melissa Malcom (Malcom) became the Union’s business
agent in January 2017 (Tr. 30, 118).8 Malcom’s duties include
ensuring the MOAs with the various production companies are
signed and the production companies are abiding by the MOAs.
She also ensures that the Union’s bylaws are followed along with
addition, I have carefully considered the testimony in contradiction to
my factual findings, but I have discredited such testimony, either as hav-
ing been in conflict with credited documentary or testimonial evidence,
or because it was in and of itself incredible and untrustworthy. My cred-
ibility findings are reflected within the Findings of Facts.
6 Additional abbreviations used in this decision are as follows: “R.
Exh.” for Respondent’s exhibit; “GC Br.” for the General Counsel’s
posthearing brief; and “R. Br.” for Respondent’s posthearing brief.
7 This CBA is also known as “the Black Book” (Tr. 14, 46). Para-
graph 30 of the CBA, titled “Distant Location Conditions and Wages”
states:
When unit working on distant locations in the thirteen (13) western
states (Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana,
Nevada, New Mexico, Oregon, Utah, Washington, Wyoming) and the
western Canadian provinces of British Columbia, Alberta and Sas-
katchewan [… .] The parties agree that the aggregate rate for wages
and fringes in the thirteen (13) western states shall equate to the aggre-
gate rate for wages and fringes as stated herein [… .] In hiring person-
nel at the location, the Producer will use its best efforts to notify the
business agent for the Local Union involved at least seventy-two (72)
hours in advance and will consult with said business agent regarding
the selection of qualified local hires provided the Producer will make
the final decision.
(Jt. Exh. 1.)
8 Respondent admits, and I find that during the relevant time period,
Malcom is an agent of Respondent within the meaning of Sec. 2(13) of
the Act.
TEAMSTERS LOCAL 492 (FIRE AND ICE PRODUCTIONS, INC.) 3
handling grievances and office work (Tr. 55, 116, 119–120, 123–
124). Malcom confirms that hiring hall users maintain current
and appropriate licenses, updates hiring hall users contact infor-
mation and handles all paperwork (Tr. 55–56, 119–120, 134).
Malcom testified that the Union maintains a referral list and be-
lieved that the Union is not a hiring hall since the production
companies make the final decision as to whom to hire (Tr. 60,
120–121, 133). 9
Effective January 1, 2016 (Jt. Exh. 2), the Union’s Industry
Experience Roster and out-of-work registration procedures set
forth the rules and qualification for individuals to register for
work with the Union, including the groupings of persons on the
hiring roster. These January 1, 2016 procedures were mailed to
all active hiring hall members on November 15, 2015, including
Charging Party Kelman (R. Exh. 2; Tr. 135–138, 183–184).
The Industry Experience Roster is created by grouping indi-
viduals into three categories: group 1, group 2 and group 3 (Jt.
Exh. 2; Tr. 60).10 To be in group 1, an individual need to have
been on the Industry Experience Roster as of January 1, 2007,
and did not need a commercial driver’s license (CDL) but needed
2000 hours worked (Tr. 61; Jt. Exh. 2). After 2007, to be in
group 1, the Union required the individual to have a CDL with
passenger endorsement, have a valid Department of Transporta-
tion (DOT) medical card, submit a copy of their motor vehicle
record (MVR), be a resident of New Mexico, and complete 5
years on the Industry Experience Roster (Jt. Exh. 2; Tr. 61). To
be in group 2, an individual must maintain a CDL with passenger
endorsement, have a valid DOT medical card, submit a copy of
their MVR, be a resident of New Mexico, and complete 2 years
on the Industry Experience Roster (Jt. Exh. 2; Tr. 62). To be in
group 3, an individual must maintain a CDL with passenger en-
dorsement, have a valid DOT medical card, submit a copy of
their MVR, and be a resident of New Mexico (Jt. Exh. 2; Tr. 62).
In addition, since the Union closed its “books” or stopped adding
individuals to its Industry Experience Roster in July 2015, to be
in group 3, an individual needed to be in that group prior to then
(Tr. 62, 64). Individuals advance to a higher group after a certain
number of years on the roster of the prior grouping as well as
working in the industry for at least 1 calendar day per year.
Within each grouping, each member has the same level of sen-
iority (Tr. 50).
In addition to groups 1, 2 and 3 comprising the Industry Ex-
perience Roster, the Union maintains a group 6 (also known as
the supplemental group) (Tr. 50, 60).11 Group 6 consists of in-
dividuals who have not met requirements to be placed on the
group 3 roster such as maintaining New Mexico residency, a
CDL, and/or obtaining a 30-day permit period12 (Tr. 63). The
Union also keeps an exhausted list which consists of “casuals”
who are referred when groups 1, 2, 3, and 6 are exhausted (Tr.
9 Malcom testified in a clear and logical manner, and I found her
overall testimony to be credible except on a few minor issues which I
will address. Malcom never wavered under cross-examination and tes-
tified consistently with corroboration from documentary evidence. Un-
like Kelman, Malcom provided specific details regarding her conversa-
tions with Kelman and her recollection of events in July and August
2017.
65). These “casuals” are nonmembers who pay a fee to the Un-
ion (Tr. 65).
As for the order of hiring, the procedures set forth in the Un-
ion’s Industry Experience Roster states,
The Local Union will inform those signatory Producers in-
volved in the production of motion pictures in the state of New
Mexico of the Industry Experience Roster and that referral will
be first from Group 1, then from Group 2, then from Group 3,
except that the Producer may request the Group 2 list if 5% or
less of Group 1 is available and may request the Group 3 list if
less than 5% or less of Group 2 is available. Additionally, the
Producer may request persons by name off the Industry Expe-
rience Roster because of their special experience, skill and
qualifications necessary to operate specialized equipment.
(Jt. Exh. 2.)
2. The MOAs between the Union and Production Companies
In addition to the Union’s procedures and applicable CBA, the
MOAs signed between the Union and production companies also
covers the terms and conditions of employment of drivers and
wranglers during each show for which the production company
seeks to hire (Jt. Exh. 4; Tr. 31, 46, 113–114).13 Generally, most
production companies sign MOAs with the Union when seeking
to employ drivers and wranglers in New Mexico for a show or
movie (Tr. 33). Through these MOAs, the production companies
agree to hire available drivers and wranglers from the Union’s
Industry Experience Roster, but it is agreed that the production
companies will make the final decision on who they wish to hire
(Jt. Exh. 4; Tr. 59, 122). The MOAs state:
1. The Company agrees to hire available drivers and wranglers
from Teamsters Local 492 Industry Experience Roster as fol-
lows:
(a) All drivers and wranglers, so long as qualified, will be hired
from the group 1 list on the Industry Experience Roster. When
95% of the group 1 drivers listed are employed/unavailable, or
there are no qualified drivers or wranglers then the Company
may hire from those drivers or wrangles listed in group 2.
(b) When 95% of the group 2 drivers listed are employed/un-
available, or there are no qualified drivers or wranglers then the
Company may hire from those drivers or wranglers listed in
group 3.
(c) In the event there are insufficient available, qualified per-
sons from such related job classifications grouping who are in
the respective Industry grouping 1, 2, 3, Supplemental (permit)
group, or Exhausted List to meet the employment requirements
of the Producer in such respective related job classifications
grouping, then the Producer may secure employees from any
source.
10 At the time of the hearing, 142 individuals were on the Union’s
group 1 roster, 45 individuals on the group 2 roster, and 8 individuals on
the group 3 roster (Tr. 166–167).
11 All individuals in groups 1, 2, 3, and 6 pay dues to the Union (Tr.
62, 64).
12 A 30-day permit period is when a member works for 30 days after
obtaining a CDL (Tr. 63).
13 The MOAs presented at the hearing were nearly identical except for
the names of the production companies and shows (Jt. Exh. 4).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(d) The Company agrees to notify the Union in advance or, at
the latest, at the time of hire of any Teamster hired in the fol-
lowing positions to ensure they are in good standing: Insert Car
Drivers and Animal Trainers/Handlers. This does not limit the
company from hiring who they wish to hire, only to let us know
that they are hiring them.
(e) The Union will refer, through its electronic call board, the
appropriate list of available drivers and wranglers, not individ-
uals. The Company retains the right to make final decisions as
to hiring any individual driver or wrangler from the respective
group List supplied by the Local Union in accordance with sub-
sections (a), (b) and (c) above.
(Jt. Exh. 4; Tr. 66-69, 121–122, 125).14 The production company
makes its request in written form for any lower grouping list such
as group 2 and 3 (Tr. 66–67). But on occasion members from
another Teamster union may work in New Mexico by paying
dobie dues (or service fee) only (Tr. 117, 121–122).15 Malcom
testified, in relevant part as follows,
Q. And isn't it true that under the memorandums of agreement
that the Union has with production companies, that production
companies cannot hire outside the grouping system unless the
driver they want to hire is driving special equipment, or driving
an above-the-line individual and has been requested by name?
A. Yes.
Q. And isn't it true that transportation captains can ask for peo-
ple by name all they want, but if you're not into that particular
grouping for that person, they can't hire that driver unless the
driver falls within either special equipment or personal driver
exceptions?
A. Yes.
Q. And the production companies are required to use the Un-
ion's grouping system if they sign a memorandum of agree-
ment, correct?
A. Yes.
(Tr. 68–69.)
Malcom also testified that companies may hire workers not on
the Union’s Industry Experience Roster but would then have to
pay a fee. Malcom testified,
Q. And is it in that experience true, like yourself, that
14 The Union maintains an electronic call board where any driver or
wrangler who wants to work makes themselves available through the
electronic call board (Tr. 60, 67). When a production company seeks to
hire, the Union gives the production company the ability to view the elec-
tronic system, see the groups by seniority available for work and the job
classifications (drivers, dispatchers, mechanics, and wranglers), and then
the production company picks who they want (Tr. 60, 66–68, 116).
15 Malcom defined dobie dues as “a service fee that a union mem-
ber would pay to another local jurisdiction if they went into their
jurisdiction to work” (Tr. 156–157). The union member is “visiting”
the jurisdiction, and not seeking to join that union by submitting qualifi-
cation forms for purposes of placement on a roster (Tr. 157).
16 Later, when testifying on direct examination, Malcom seemingly
contradicted her prior testimony by stating that companies could hire an-
yone regardless of the MOAs (Tr. 133). I do not credit this portion of
her testimony because it is not supported by a strict reading of the MOAs
where the company agrees to hire workers from the Union’s lists, and
only after exhausting such lists may the company hire from any “source”
sometimes they hire off the street or hire not using the referral
list?
A. Yes.
Q. Can you give us some examples?
A. I can. We have a low-budget agreement that says they can
hire—if they want to hire anybody that they want, then all that's
required is that they pay us a service fee during their time of
employment. They can seek employees by whatever means
they choose. We had a show that came in for about two weeks,
and they brought—they hired a dispatcher that was not one of
my members. We charged her a service fee. I can give you—
we had—there's a mechanic on a show. We didn't have any
mechanics. They hired him off the street. After he was hired,
we put him on our list, on our exhausted list.
(Tr. 121–122.)16 In addition, Walter Maestas (Maestas), the Un-
ion’s secretary treasurer, testified that the Union could file a
grievance and seek liquidated damages if a production company
who has a contract with the Union hires workers improperly (i.e.,
not through the Union’s lists) (Tr. 32–33).17 Maestas also testi-
fied that generally production companies do not circumvent the
Union when hiring drivers but there are instances where drivers
are “hired off the street” (Tr. 33).18
B. The Union’s Removal of Kelman from its Industry Experi-
ence Roster Group 2
The Union’s procedures, effective January 1, 2016, contain
the following rule (double-roster rule):
3) […] Any person on another Teamster roster in the industry
is ineligible to be placed or to maintain roster status in New
Mexico. […]
(Jt. Exh. 2.)19 This rule means that individuals on the Union’s
Industry Experience Roster may not be on the rosters of any
other Teamster local but those on the Union’s Industry Experi-
ence Roster may still work outside of New Mexico at other
Teamster locals by only paying dobie dues (Tr. 69). Also, this
rule means that Teamster members from other locals may not be
added to the Union’s Industry Experience Roster if they are ros-
tered with any other Teamster local.
The origins of the double-roster rule date back to 2015. In
2015 members of the Union’s film and movie unit raised
(Jt. Exh. 4). Her testimony is also refuted by Maestas who stated that
production companies must abide by the agreed upon MOAs or face a
grievance from the Union. In addition, Malcom’s definition of the term
“exclusive” is not supported by the law (Tr. 132–133). Much of her re-
sponses were premised on a misunderstanding of the term “exclusive”
hiring hall.
17 Respondent admits, and I find that during the relevant time period
Maestas is an agent of Respondent within the meaning of Section 2(13)
of the Act.
18 I find Maestas’ testimony to be credible as he testified honestly,
assertively, provided details to conversations he had with Kelman, and
had knowledge of the general hiring practices between the production
companies and the Union’s Industry Experience Roster. Moreover, his
testimony was not contradicted by any other evidence.
19 The term “roster,” although not defined but as used in this hiring
hall context, indicates that an individual is on a list based on certain qual-
ifications to be hired. The terms “roster” and “list” can be interchanged.
TEAMSTERS LOCAL 492 (FIRE AND ICE PRODUCTIONS, INC.) 5
concerns about not being hired for in-state work while Teamster
members from other states were coming to New Mexico for
work as well as continuing to work in their home states (Tr. 188).
The Union members found it unfair to lose work to those coming
from out-of-state while they were New Mexico residents who
had worked in the movie industry for many years (Tr. 188–189).
By being in group 1 on multiple Teamster’s rosters, individuals
from other states would come into New Mexico for work when
work was not available in their home state thereby leaving the
Union’s New Mexico residents without jobs (Tr. 189).
Warren (Trey) E. White III (White), the Union’s recording
secretary, was part of a committee established to address these
complaints.20 White testified that the Union “tighten[ed]” their
residency rules (Tr. 189). In addition, the Union sent its rules to
an attorney with Local 399 to get his advice (Tr. 182). Based on
the attorney’s advice, the Union added the double-roster rule (Tr.
139–140, 182–183). Local 399 suggested that the Union’s In-
dustry Experience Roster should be limited to motion picture
work in New Mexico, performed by New Mexico residents. Lo-
cal 399 also suggested that individuals be rostered and remain
rostered as long as they are not on another Teamster roster in the
industry which “demonstrates the individual’s commitment to
work exclusively in New Mexico” (R. Exh. 4).
In addition, Maestas and Malcom also testified that the dou-
ble-roster rule exists to protect work in New Mexico for New
Mexico residents (Tr. 49). Malcom explained that the double-
roster rule helps to keep an experienced, qualified work force in
New Mexico (Tr. 161). Maestas explained that if the Union did
not maintain its double-roster rule, drivers and wranglers from
all over the country could “flood” the grouping system such that
they could be on multiple group lists, and the Union’s members
would likely not be able to obtain work in New Mexico. Maes-
tas, Malcom and White stated that if Local 399 members were
permitted to roster with the Union’s members, the production
companies would hire Local 399 members because they would
be more familiar as having likely worked with them in the Los
Angeles area (Tr. 51–52, 161, 189–192). Malcom and White
20 I credit the entirety of White’s testimony as he was highly credible.
White testified in a conversational manner which resonated with authen-
ticity and truth. His testimony clearly was not scripted. What I found
most striking about White’s testimony was when he was asked about the
origination of the double-roster rule, White raised his voice with incre-
dulity when responding to this line of questioning. He noted the irony of
Kelman’s complaint considering the reasons the members wanted the
double-roster rule. This key portion of his testimony exemplified his
credibility.
21 I do not credit Kelman’s testimony for several reasons. Kelman
testified vaguely when responding to questions on both direct and cross-
examination. On cross-examination, Kelman became even more eva-
sive, defensive to the point of responding with an antagonistic rhetorical
question and was not forthcoming as to his knowledge of events. Despite
receiving the double-roster rule at least twice, Kelman claimed not to
know of the rule’s existence. Regarding his conversations with Malcom,
Kelman did not provide any specific details as to what occurred but in-
sisted, he informed her he planned to work in Utah and blamed Malcom
for not explained dobie dues and rostering. I credit Malcom’s testimony
that Kelman never told her he planned to work in Utah for another Team-
ster local in the industry. In all, Kelman’s testimony cannot be relied
upon.
also explained that if those on the Union’s Industry Experience
Roster are allowed to roster with other Teamster’s locals, the Un-
ion would need to permit other Teamster individuals to roster in
the Union’s jurisdiction (Tr. 164, 197). White testified that the
double-roster rule “completely” stopped out-of-state residents
from taking jobs from the members of the Union as the out-of-
state residents could no longer roster on the Union’s lists (Tr.
200–202).
Kelman, a New Mexico resident and film industry driver, has
been a member of the Union since 2012 when he was placed in
group 3 of the Industry Experience Roster (Tr. 78).21 In late
June, Kelman sought to advance from group 3 to group 2 with
the Union. Kelman completed the Union’s required paperwork
to support his move to group 2 and received from the Union its
January 2016 procedures which included the double-roster rule;
he had also received the notice of the double-roster rule in No-
vember 2015 (Tr. 93, 143–145; R. Exh. 5).22
Thereafter, Kelman came into the union office on or about
July 12 and spoke to Malcom (Tr. 147–148). Kelman told Mal-
com that he had worked in many facets of the film industry and
that he was offered work in another state and wanted to know
when he would be eligible to move to the next group in the Union
(Tr. 148). Malcom informed Kelman that he would be moved to
group 2 on August 3 (Tr. 148). Malcom testified that Kelman
never told her he planned to work in Utah or the type of work he
would be performing; he simply told her he was going out of the
state (Tr. 148).23
While he actively sought to move from group 3 to group 2 on
the Union’s Industry Experience Roster, Kelman sought industry
work with Teamsters Local 222 (Local 222) in Utah (Tr. 80–81).
Kelman looked for work in Utah because he had recently had hip
surgery and Malcom told him that it would be “very slow” for
hiring of any group other than group 1 (Tr. 82). Thus, when a
work opportunity arose through Local 222 in July 2017, Kelman
completed paperwork on July 18, participated in drug testing,
paid a $25 fee, and sent pay stubs to support his claimed work
experience (Tr. 81–82). In his paperwork for Local 222, Kelman
22 Kelman testified inconsistently and not credibly regarding his
knowledge of the Union’s grouping categories. For example, Kelman
testified that he was unaware of his grouping category with the Union as
“there was no clarity” and he simply received calls to work (Tr. 79). Kel-
man also testified that he did not know what the terms roster or its vari-
ations meant, or how the rostering process functioned with the Union (Tr.
108). Kelman testified that he could not recall receiving the union rules.
At the hearing, Kelman testified that he did not know about the Union’s
double-roster rule in July and August 2017 (Tr. 93). Later, however,
Kelman explained that in July 2017, he understood the double-roster rule
to forbid being a member of another Teamsters local (Tr. 94–95).
23 In contrast to Malcom’s testimony, Kelman stated that he had not
told anyone in the Union that he planned to work in Utah until July when
he spoke to Malcom (Tr. 80–81). According to Kelman, he told Malcom
while speaking to her on the phone in July that he was “thinking about
leaving town to go work in Utah” (Tr. 81–82). Kelman stated that he
could not recall what Malcom said in response (Tr. 81). Malcom denied
Kelman told her that he planned to work for the Teamster local in Utah.
Based on my overall credibility determination, I credit Malcom’s testi-
mony over Kelman’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
wrote that he was not registered anywhere else (R. Exh. 1). Kel-
man testified that after he worked 40 hours, he would pay them
dobie dues which are the service fees (Tr. 82). Local 222 placed
Kelman in their highest experience roster level due to his work
experience, as proven by his pay stubs (Tr. 86–90, 152).24 Kel-
man would then pay working dues, rather than dobie dues or the
service fee (Tr. 158–159).
On or about August 17, Malcom learned from Kelman that he
had been working for Local 222 (Tr. 71–72, 148, 170). When
Malcom learned that Kelman was on Local 222’s roster, Malcom
told Kelman he could not be on two rosters (Tr. 148–149, 156).
Kelman disagreed with Malcom, claiming that he was not ros-
tered with Local 222 (Tr. 150). Malcom told Kelman she needed
to verify with Local 222’s business agent that he was not rostered
in Utah (Tr. 150).25 Based on documents Malcom received from
Local 222, she concluded that Kelman had been rostered with
Local 222 while also being rostered with the Union (Tr. 152153).
As a result, Malcom removed Kelman from the Union’s In-
dustry Experience Roster group 2, and placed him on the supple-
mental or group 6 roster (Tr. 72, 84).26 The members who are
on the group 6 list are not eligible to be rostered with the Union
for various reasons such as lacking a commercial driver’s license
or are non-residents. On August 21, Kelman emailed Malcom
regarding their recent phone conversation (Jt. Exh. 5). Kelman
stated that he did not roster with Local 222 in Utah in July but
only paid dobie dues to qualify for work there. Malcom re-
sponded the next day, writing that the problem was that he was
on two rosters thereby violating the Union’s double-roster rule
which states that “any person on another Teamster roster in the
industry is ineligible to be placed or to maintain roster status in
New Mexico” (citing to Jt. Exh. 2). Malcom confirmed that Kel-
man had been rostered or listed on Local 222’s group A list.
Malcom wrote, “We, however, can never allow one of our
grouped members to take work away from other rostered movie
workers in another [u]nion. I am sure if you were here and found
out we let someone from Utah come here and immediately get
on the group 1 list and take a job, you would not appreciate that
one bit. We don’t have a problem with you paying dobie dues to
other locals, the issue is you were ROSTERED AS A GROUP
A in Utah, who then dispatched you to Montana” (Jt. Exh. 5,
emphasis in original). Malcom explained that Kelman falsely
24 Malcom testified about her conversation with the business agent of
Local 222 regarding Kelman’s roster status with the Utah Teamster’s lo-
cal (Tr. 151). These conversations were hearsay, uncorroborated and not
relevant to the issues to be resolved in this complaint. See, e.g., Auto
Workers Local 651 (General Motors), 331 NLRB 479, 481 (2000) (un-
corroborated testimony properly rejected as unreliable hearsay).
25 Malcom testified that she told Kelman he could retain his group 2
status if he removed himself from the roster with Local 222, but that he
refused, stating he needed to work (Tr. 150). Kelman does not recall
Malcom offering this to him (Tr. 102). Regarding whether Malcom of-
fered to permit Kelman to retain his group 2 roster status, I do not credit
Malcom’s testimony since proximate evidence as well as Maestas’ testi-
mony does not support her hearing testimony. Malcom’s November 13
affidavit to the Board agent for this proceeding does not mention such an
offer to Kelman and neither does Malcom’s November 3 position state-
ment during this investigation (Tr. 174–175). In addition, Maestas testi-
fied that Malcom had been brought in as the business agent, in part, be-
cause the prior business agent was criticized by members for not
informed Local 222 that he was not registered with another
Teamsters local and provided 7 years of payroll documentation
to be placed on Local 222’s group A list (See R. Exh. 1).27 Mal-
com stated that the work rules must be enforced and that he had
lost his group 2 roster position with the Union. The Union later
sent Malcom’s response to Kelman via certified letter on its let-
terhead (Jt. Exh. 6).
Kelman also spoke to Maestas about his removal from group
2, but Maestas told him his only recourse was to appeal the de-
cision to the Union’s executive board (Tr. 83–84). Maestas tes-
tified that he also explained to Kelman on August 29 that the
prior business agent Moises Ortega (Ortega) had been criticized
by the members for being “lenient” regarding the Union’s rules,
and thus, the Union hired Malcom as the Union’s business agent
who has movie industry experience and enforces the rules strictly
(Tr. 39).
Thereafter in late August, Kelman sought to appeal Malcom’s
decision (Tr. 84). First Kelman explained to Malcom in an email
that he mistakenly marked that he was not on any other roster
which he thought referred to another union’s roster, other than
the Union. In addition, Kelman wrote that he paid dobie dues
and only provided additional information to prove his experience
to meet Local 222’s experience requirement. Kelman wrote, “I
mentioned to you I was going to try to work out of state and you
said I had to pay [d]obie dues” (Jt. Exh. 7). Malcom responded,
“As I have explained numerous times, this is not about “dobie
dues.” This is about roster placement” (Jt. Exh. 7).
Malcom responded by offering several possibilities to Kel-
man. She offered to waive certain fees if he wanted to transfer
his membership to Local 222, and he could be on the Union’s
exhausted list. Malcom also offered that if Kelman did not want
to transfer his membership, he could be on the Union’s group 6
list while he is rostered with Local 222 (R. Exh. 7).
On September 7, Kelman appealed the decision to remove him
from the Union’s group 2 roster to the Union’s executive board
(Jt. Exh. 8). On September 15, Malcom responded via written
form to Kelman’s appeal to the Union’s executive board; Mal-
com clarified that Kelman always remained a member in good
standing with the Union but had violated the double-roster rule
(R. Exh. 7).28 On September 16, the executive board met and
discussed Kelman’s appeal (Tr. 40). On September 29, the
consistently enforcing the rules. Considering such context, it does not
seem likely that Malcom offered to resolve Kelman’s double-rostering
violation. Thus, Malcom’s claim that she offered Kelman to retain his
group 2 roster status cannot be credited.
26 Kelman claims he was removed from the “film department” and
made a “member in bad standing” in August 2017 (Tr. 83). The evidence
does not support Kelman’s claim (R. Exh. 3).
27 In response to the following question on Local 222’s registration
for employment form, “Are you registered elsewhere?”, Kelman wrote,
‘No” (R. Exh. 1; Tr. 90). Kelman claimed that Local 222’s business
agent knew he was a member of the Union in New Mexico, and so Kel-
man assumed the question asked if he was registered anywhere else other
than the Union (Tr. 90–91).
28 Malcom wrote, “The intent of the 492 ‘one roster’ rules (399 has
these same rules) is to prevent someone from being able to cherry pick
work in jurisdictions all over the country causing true “local members”
to lose out on work in their home jurisdiction” (R. Exh. 7).
TEAMSTERS LOCAL 492 (FIRE AND ICE PRODUCTIONS, INC.) 7
Union responded to Kelman’s appeal by sending a letter to all
union members (Jt. Exh. 9; Tr. 73). The Union reaffirmed its
rule that no rostered or grouped persons may be placed on an-
other Teamster roster, and that this rule is also found in the Black
Book at Section VI, Paragraph 62(a)(1).29 Individuals may be
on rosters with other labor organizations, but not with other
Teamster locals. The Union wrote, “This has nothing to do with
paying “dobie dues” to another Teamster union or intention to
transfer to another union. This language means that you may not
go to another jurisdiction and be placed on their [r]oster. Many
locals will allow members from other jurisdictions to work in
their jurisdiction and pay a service fee, which is also known as
“dobie dues,” and Local 492 is fine with that as long as they do
not roster you.” (Jt. Exh. 9 (emphasis in original)). The Union
also writes,
In late 2014/early 2015 the 492 movie members were in an up-
roar over the local not enforcing the grouping system and the
roster rules. Now those complaints have all but gone away and
the rule breakers are now crying foul as we enforcing those
rules without exception as the members demanded. We all
need to just hang in there as these violators kick and scream
because eventually they are going to realize that we are protect-
ing the welfare of the Movie membership as a whole when we
treat everybody the same and enforce the rules.
(Jt. Exh. 9.)
Malcom testified that if Kelman wanted to reclaim his spot on
the Union’s group 2 roster, he needed to remove his name from
Local 222’s roster, rejoin the Union and wait the 30-day permit
period before he could go back to group 3 and complete 2 years
on the Industry Experience Roster to return to group 2 (Tr. 73).
DISCUSSION
A. The Alleged De Facto Exclusive Hiring Hall
A threshold issue in this matter is whether during the relevant
time, the Union operated a de facto exclusive hiring hall whereby
the Union referred its members and nonmembers to jobs as driv-
ers and wranglers on film productions in New Mexico. The Gen-
eral Counsel’s allegations rely upon the premise that the Union
operates an exclusive hiring hall. The Union argues it only main-
tains referral lists and cannot be an exclusive hiring hall since the
production companies make the decision on whom to hire.
A union owes a duty of fair representation in the operation of
a hiring hall only if it is the employer’s exclusive source of labor.
However, a union that operates a nonexclusive hiring hall owes
no such obligation. Cf. Electrical Workers IBEW Local 11 (Los
Angeles NECA), 270 NLRB 424, 426 (1984), enfd. 772 F.2d 571
(9th Cir. 1985) (exclusive hiring hall), with Carpenters Local
537 (E.I. du Pont), 303 NLRB 419, 420 (1991). The term “ex-
clusive” as defined by the Supreme Court regarding a union’s
job referral system is the degree to which hiring is reserved to
the union hiring hall. Breininger v. Sheet Metal Workers Inter-
national Association Local Union No. 6, 493 U.S. 67, 71 fn. 1,
29 This par. states, “One Roster Only: No person who is registered on
any one grouping Seniority Roster as above provided shall be eligible for
any other grouping Seniority Roster, and no person who is registered on
110 S.Ct. 424, 428 (1989). The party asserting the existence of
an exclusive hiring hall bears the burden of proof. Carpenters
Local 537 (E.I. du Pont), supra at 420. The Board examines “the
totality of the circumstances.” Local Union No. 174, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent (Totem Beverages, Inc.),
226 NLRB 690, 690 (1976).
An exclusive hiring hall may be created by written or oral
agreement or by practice. See Carpenters Local 1507, 358
NLRB 1, fn. 2 (2012). Furthermore, a union’s hiring hall is ex-
clusive if it is an employer’s initial or primary source for em-
ployees. International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of the
United States, its Territories and Canada, Local 720, AFL–CIO,
CLC (Tropicana Las Vegas, Inc.), 363 NLRB No. 148 (2016),
citing Staging Employees IATSE, Local 720 (AVW Audio Visu-
als, Inc.), 341 NLRB 1267 (2004), enfd. 718 Fed.Appx. 512 (9th
Cir. 2012). But simply because an employer has the final deci-
sion on the selection of a worker does not render the hiring hall
as non-exclusive. See, e.g., Theatrical Wardrobe Union Local
769 (Broadway in Chicago), 349 NLRB 71, 72–73 (2007) (em-
ployer hired outside the union list on a few occasions when the
list was exhausted).
Here, the record shows that the combined effect of the CBA
between Local 399 and the various production, entertainment
and film companies, the MOAs between the Union and the vari-
ous production companies, and the practices of the Union and
production companies created a de facto exclusive hiring hall at
the Union. The CBA sets forth the terms and conditions of em-
ployment and includes informing the local business agent of the
need to hire personnel with at least 72-hours’ notice. Further-
more, the MOAs between the Union and the various production
companies explains that the production companies agree to hire
from the Union’s Industry Experience Roster. While it is true
that the production companies make the final decision on hiring
from the Industry Experience Roster, the totality of the circum-
stances shows that the Union is the primary and initial source for
drivers and wranglers when a MOA exists between the Union
and the production company. Only after the production com-
pany has exhausted the Union’s Industry Experience Roster may
the production company hire “off the street” which has occurred
rarely. Malcom offered examples of when a production com-
pany may not hire from the Union’s Industry Experience Roster,
but it is apparent that the bulk of drivers and wranglers come
from the Union’s list. Furthermore, Maestas testified that nearly
all production companies enter MOAs with the Union which re-
quires the production companies to hire from the Industry Expe-
rience Roster before hiring elsewhere. If a production company
violates the MOA, the Union has monetary recourse via the
grievance process.
The Union cites Laborers Local 334 (Kvaerner Songer, Inc.),
335 NLRB 597, 599 (2001), in evaluating the issue of whether
the union was an exclusive hiring hall (R. Br. at 9–10). The Un-
ion argues that the contract language in Laborers Local 334
any other Motion Picture Producer’s “Seniority Roster,” as herein de-
fined, shall be eligible for any other “Seniority Roster” hereunder.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
(Kvaerner Songer, Inc.) is similar to language in its MOAs.
However, in that matter, no exceptions had been filed to the
judge’s finding that the union operated a nonexclusive hiring
hall. Id. at 599, fn. 2 (no exceptions filed to the judge’s finding
that the union did not violate Sections 8(b)(1)(A) and (2) of the
Act). As such, that decision has no precedential value regarding
the issue of exclusivity.
Based on the practices of the Union and production compa-
nies, I find that the Union operates an exclusive referral system
for show and movie production work.
B. The Double-Roster Rule
1. Did the Union enforce an unlawful rule against Kelman?
Section 8(b)(1)(A) of the Act makes it an unfair labor practice
for a labor organization “to restrain or coerce employees in the
exercise of the rights guaranteed them in Section 7 of the Act,
provided that this paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to the acqui-
sition or retention of membership therein.” When a union oper-
ates an exclusive hiring hall, it has a duty of fair representation
to all applicants using the hall, whether members or nonmem-
bers. See Breininger, supra. The union must operate the exclu-
sive hiring hall “in a fair and impartial manner. [ . . .] any referral
rules [. . .] cannot be discriminatory or arbitrary.” Boilermakers
Local 374 (Combustion Engineering), 284 NLRB 1382, 1383
(1987), enfd. 852 F.2d 1353 (D.C. Cir. 1988). Contractual rules
and referral rules must be followed, and objective criteria uti-
lized. Operating Engineers Local 406 (Ford, Bacon & Davis
Construction), 262 NLRB 50 (1982). The Board states,
When a union prevents an employee from being hired or causes
an employee’s discharge, it has demonstrated its influence over
the employee and its power to affect his livelihood in so dra-
matic a way that we will infer-or, if you please, adopt a pre-
sumption that-the effect of its action is to encourage union
membership on the part of all employees who have perceived
that exercise of power. But the inference may be overcome, or
the presumption rebutted, not only when the interference with
employment was pursuant to a valid union-security clause, but
also in the instance where the facts show that the union action
was necessary to the effective performance of its function of
representing its constituency.
International Union of Operating Engineers, Local 18, AFL–
CIO (Ohio Contractors Assn.), 204 NLRB 681 (1973), reversed
on other grounds 496 F.2d 1308 (6th Cir. 1974), enfd denied 555
F.2d 552 (6th Cir. 1977). Unions have been able to rebut this
presumption when they are able to show that the conduct of an
individual interfered with the integrity of the referral system.
See e.g., Boilermakers Local 40 (Envirotech Corp.), 266 NLRB
432, 433–434 (1983) (union suspended an individual for violat-
ing referral rules by applying for work directly with employers).
The Union’s double-roster rule prohibits anyone on another
Teamster roster in the industry from being placed on or main-
taining roster status in New Mexico. As the rule affects
30 In contrast, in Fisher Theater, 240 NLRB 678 (1979), the Board
found that the rule requiring payment of fines applied to only nonmem-
bers, and as such the union did not overcome the presumption.
individuals’ employment status, the General Counsel established
a rebuttable presumption that the double-roster rule encourages
union membership. See Operating Engineers Local 18 (Ohio
Contractors Assn.), supra. Since hiring by production compa-
nies occurs by group, a member being in group 1 and 2 has an
advantage over lower seniority grouping, and more likely will
obtain employment than will not.
Nonetheless, I find that the Union rebutted the presumption.
As for whether the double-roster rule is consistent with the Un-
ion’s duty of fair representation, the General Counsel must show
that the Union acted “so far outside a ‘wide range of reasonable-
ness’ as to be irrational.” Air Line Pilots Assn. v. O’Neill, 499
U.S. 65, 67 (1991) (quoting Ford Motor Co. v. Huffman, 345
U.S. 330, 338 (1953)). Here, the Union’s policy is not arbitrary,
discriminatory or applied in bad faith. Cf. Stagehands Referral
Service, 347 NLRB 1167, 1170-1171 (2006), enfd. 315
Fed.Appx. 318 (2d Cir. 2009) (union failed to refer a hiring hall
member for arbitrary and invidious reasons when union failed to
refer a member for performance problems while treating other
members differently). The Union’s double-roster rule is reason-
ably designed to ensure the effective operation of its hiring hall
for members and nonmembers,30 is based on objective criteria,
has not be discriminatorily applied, and is clearly stated. See
IATSE Local 838 (Freeman Decorating Co.), 364 NLRB No. 81,
slip op. at 4 (2016) (union’s hiring hall attendance rules were
lawful because they addressed legitimate concerns regarding the
hall’s operation). As for applicability to members and nonmem-
bers, the applicability of the double-roster rule shows that these
two groups of individuals are treated the same as demonstrated
by Kelman’s circumstances. Kelman, a union member, could
not join another Teamster roster without losing his group 2 status
on the Union’s Industry Experience Roster. Moreover, an indi-
vidual on a Teamster roster could not join the Union’s Industry
Experience Roster if he is rostered with another Teamsters local.
The General Counsel argues that the term “roster” was undefined
and unclear to Kelman. I reject this claim, however. The term
roster is clearly discerned by its applicability in the context of
the Union’s Industry Experience Roster. In addition, I do not
credit Kelman’s claim that he did not know the term roster as he
was familiar with the term in the summer of 2017 when he sought
to join Local 222’s hiring lists (after stating he was not registered
anywhere else) and sought to move up in on the Union’s Industry
Experience Roster.
As for whether the rule is necessary to the Union’s effective
performance of its function of representing its constituency, the
Board gives a union deference when deciding what conduct is
reasonable to ensure the effective performance of its representa-
tive role. See United Brotherhood of Painters, Local Union No.
487, 226 NLRB 299, 301 (1976) (citing Ford Motor Co. v. Huff-
man, 345 U.S. 330, 338 (1953) (statutory bargaining representa-
tive must be able to exercise a “wide range of reasonableness and
discretion, subject to good faith, when serving its unit)). Fur-
thermore, the Board does not require the union to show that it
was “the best or only means available.” IATSE Local 838
TEAMSTERS LOCAL 492 (FIRE AND ICE PRODUCTIONS, INC.) 9
(Freeman Decorating Co.), supra at slip op. 4 (citing Mill-
wrights’ Local 1102 (Planet Corp.), 144 NLRB 798, 801-802
(1963)); United Brotherhood of Painters, Decorators & Paper-
hangers of America, Local Union No. 487 (American Coatings,
Inc.), 226 NLRB 299, 301 (1976).
Applying Board precedent, I find that the Union’s double-ros-
ter rule is reasonably designed to serve its objective of preserving
work for its hiring hall users. As explained by the Union’s wit-
nesses, the Union created the double-roster rule, in part, to ad-
dress concerns by members that Teamsters from other locals
were taking work in New Mexico from the Union’s members
who lived in New Mexico. Based on the credited evidence, the
Union established the double-roster rule to retain job opportuni-
ties for its members in the state of New Mexico. After imple-
menting the double-roster rule in 2016, the double-roster rule
“completely” stopped Teamsters from other locals from taking
work from the Union’s Industry Experience Roster persons.
Thus, the double-roster rule reasonably served its purpose to re-
tain work for its hiring hall users and is necessary to the Union’s
function of representing its constituency.31
Because of violating the double-roster rule, the Union re-
moved Kelman from its Industry Experience Roster, group 2,
and placed him in group 6. However, the severity of the penalty
does not render the Union’s actions invalid. NLRB v. Boeing
Co., et al., 412 U.S. 67 (1973) (severity of the penalty is irrele-
vant if the action is ordered for legitimate, nondiscriminatory
purposes). The General Counsel cites to Fisher Theater, supra,
and Pacific Maritime Assn., 228 NLRB 1383 (1977), for the
proposition that the rules and consequences for violating the
rules were only punitive and not for the proper maintenance of
the hiring hall (GC Br. at 12–14). I disagree with the General
Counsel’s interpretation of these decisions. In both matters, the
unions sought to impose fines on members unrelated to the hiring
halls. Here, the Union’s removal of Kelman from their roster,
due to his rostering with Local 222, goes directly to the effective
administration of the hiring hall. By moving Kelman to group 6,
the Union removed him from the Industry Experience Roster,
and placed him in the roster grouping that is specifically for hir-
ing hall users who have not met the qualifications to be on the
Industry Experience Roster. Kelman can cure his double-roster
violation by meeting the requirements for group 3 which in-
cludes not being double-rostered. Moreover, unlike Fisher The-
ater and Pacific Maritime, the double-roster rule applies to both
members and nonmembers.
Based on the above analysis, the Union’s double-roster rule
does not violate Section 8(b)(1)(A) of the Act as alleged.
2. Did the Union inform hiring hall users of the double-roster
rule and the consequences for violating it?
The General Counsel also alleges that the Union did not in-
form all hiring hall users of the double-roster rule as well as the
consequences for violating the rule. The Union merely argues
31 It should be noted, although it has no bearing on this decision, that
Local 399 has a similar double-roster rule in the Black Book.
32 Laborers Local 394, 247 NLRB 97 (1980), affd. 659 F.2d 252 (D.C.
Cir. 1981).
that Kelman knew of the double-roster rule, and the conse-
quences of violating the rule (R. Br. at 13–14).
The Board does not require hiring hall rules and procedures to
be written32 nor do referral rules, absent contractual agreement,
need to be posted or incorporated into a contract.33 But these
contractual and referral rules must be followed, and objective
criteria utilized. Operating Engineers Local 406 (Ford, Bacon
& Davis Construction), 262 NLRB 50 (1982). In addition, if a
hiring hall changes its rules, it must keep hiring hall users noti-
fied, and a failure to do so is arbitrary and a breach in the union’s
duty to inform its users and represent them fairly. See Electrical
Workers IBEW Local 11 (Los Angeles NECA), 270 NLRB 424
(1984), enfd. 772 F.2d 571 (9th Cir. 1985); Electrical Workers
IBEW Local 164 (NECA), 190 NLRB 196 (1971),review denied
sub nom. Bleier v. NLRB, 457 F.2d 871 (3d Cir. 1972).
Here, a preponderance of the evidence indicates that the Un-
ion took reasonable steps to directly notify its hiring hall users of
the double-roster rule, including Kelman. The Union sent notice
of the double-roster rule via the procedures for the Industry Ex-
perience Roster to all active members of the hiring hall in No-
vember 2015. Thereafter, the Union again provided Kelman
with a copy of the double-roster rule in June 2017 when he
sought to move from group 3 to group 2. There was no evidence
presented at the hearing that the Union was negligent in ensuring
all users of the hiring hall were informed of the hiring hall’s dou-
ble-roster rule. Thus, the Union gave timely notice of the dou-
ble-roster rule prior to its implementation in January 2016, and
the Union did not violate the Act.
Furthermore, the General Counsel alleges that Respondent
failed to notify hiring hall users of the consequences of violating
the double-roster rule. In this instance, the Union removed Kel-
man from its Industry Experience Roster since Kelman rostered
with Local 222 in Utah in violation of the double-roster rule. As
such, the Union placed Kelman on its group 6 or supplemental
roster which is the group for members who do not yet meet the
criteria to be placed on the Union’s Industry Experience Roster
including residency or CDL requirements. In accordance with
the double-roster rule, Kelman could not be on the Industry Ex-
perience Roster, and needed to be removed as such. The Union
then offered Kelman options on how he could proceed. Alt-
hough these “consequences” are not specifically set forth in the
double-roster rules, I do not find that the union acted in an arbi-
trary manner.
Moreover, none of the cases cited by the General Counsel sup-
port the proposition that a union must inform hiring hall users of
the consequences for violating a rule. The General Counsel
claims that the test is a “simple relevancy’ test as to whether the
information is necessary for hiring hall users “for an intelligent
utilization of the hiring hall” (GC Br. at 19, citing International
Brotherhood of Electrical Workers, Local 6, AFL–CIO (The San
Francisco Electrical Contractors Assn: Butcher Electric), 318
NLRB 109, 134)).34 However, this “relevancy test” has no
33 Iron Workers Local 505 (Snelson-Anvil), 275 NLRB 1113 (1985),
enfd. 794 F.2d 1474 (9thCir. 1986).
34 The additional cases cited by the General Counsel address the issue
of whether the union is obligated to comply with an employee’s request
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
precedential value as the Board specifically passed on the
judge’s finding. Id. at 109. The General Counsel also cites to
two other decisions Plumbers Local 519 (Sam Bloom Plumbing),
306 NLRB 810, 810 fn. 1 (1992), enfd. 15 F.3d 1160 (D.C. Cir.
1994); Plumbers Local 38 (Bechtel Corp.), 306 NLRB 511, 511–
512 (1992), enfd. mem. 17 F.3d 393 (9th Cir. 1994), to support
its argument. However, these cases address violations and rem-
edies of the Act when changes to hiring hall rules are unlawful
only to the extent the union failed to give adequate notice. Ac-
cordingly, I find that the Union did not violate the Act as alleged.
CONCLUSIONS OF LAW
1. International Brotherhood Union of Teamsters Local 492
(Union or Respondent) is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the Act.
2. Fire and Ice Productions, Inc. (Employer) is, and has been
at all times material, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. The Union did not violate the Act in any manner alleged in
the complaint.
On the basis of the foregoing findings of fact, conclusions of
law, and the entire record, I issue the following recommended35
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 24, 2019.
for information (GC Br. at 19). Here, there is no allegation that the Union
refused to provide information requested by Kelman.
35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.