Stage Employees Local 545 IATSE (Greater Miami Opera Assn.)

National Labor Relations Board - Board Decisions

Mar 19, 1993

310 N.L.R.B. 763 (N.L.R.B. 1993)

763
310 NLRB No. 105
STAGE EMPLOYEES LOCAL 545 IATSE (GREATER MIAMI OPERA ASSN.)
1 The Respondent Union did not file exceptions to any of the
judge’s findings.
2 The pertinent complaint paragraphs read as follows:
8. On or about January 8, 1991, the Respondent departed from
the referral requirements of the collective-bargaining agreement
. . . in an arbitrary manner by refusing to refer all employees
requested by name by the Employer, and by failing to timely
and fully inform employee-users of its referral system of such
change in its referral procedures.
9. Since on or about January 8, 1991, Respondent, as a con-
sequence of its acts and conduct . . . has caused and attempted
to cause the Employer to discriminate against Wilson by failing
and refusing to refer her to the Employer.
3 The General Counsel, after filing limited exceptions to the
judge’s decision, has moved the Board to remand this proceeding to
the Regional Director for the purpose of obtaining compliance pursu-
ant to a settlement agreement between the General Counsel and the
Respondent over the objections of the Charging Party. The General
Counsel further requests that the Board retain jurisdiction over this
proceeding until full compliance is achieved, without prejudice to re-
instating the General Counsel’s exceptions, ‘‘in the event the Board
approves’’ the settlement. We note, however, that no settlement is
actually before the Board for approval. In these circumstances, we
shall deny counsel for the General Counsel’s motion at this time.
Miami Stage Employees Union, Local 545, Inter-
national Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of
the United States and Canada, AFL–CIO
(Greater Miami Opera Assn.) and Andrea Wil-
son. Case 12–CB–3445
March 19, 1993
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
DECISION AND ORDER
On October 28, 1992, Administrative Law Judge
William A. Pope II issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified below and to adopt the rec-
ommended Order as modified.
The judge found, inter alia, that the evidence estab-
lishes that the Respondent Union discriminated against
electrician Andrea Wilson by refusing to refer her to
the Greater Miami Opera Association’s second and
fifth operas of its 1990–1991 season. He concluded,
however, that the Respondent violated Section
8(b)(1)(A) and (2) only with respect to its refusal to
refer Wilson to the second opera in January 1991, es-
sentially because the fifth opera, which was staged in
April 1991, is not specified in the complaint. The Gen-
eral Counsel has excepted to the judge’s interpretation
of the complaint and urges the Board to find an addi-
tional violation based on the Respondent’s refusal to
refer Wilson to the fifth opera.
We find, in agreement with the General Counsel,
that the references in the complaint2 to the Respond-
ent’s refusal ‘‘to refer all employees requested by
name,’’ and to the consequences of its conduct ‘‘since
on or about January 8, 1991,’’ reveal that the com-
plaint is not limited solely to the second opera, the
only referral violation found by the judge. Rather, we
find that the complaint is sufficiently broad to encom-
pass other refusals to refer in addition to the second
opera production in January 1991. In these cir-
cumstances, including the judge’s own finding that the
Respondent’s refusal to refer Wilson for the fifth opera
was fully litigated and proven, we find that the Re-
spondent’s refusal to refer Wilson to the fifth opera
production separately violated Section 8(b)(1)(A) and
(2). We shall therefore amend the judge’s conclusions
of law, Order, and notice accordingly.3
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 4.
‘‘4. In January and April 1991, the Respondent vio-
lated Section 8(b)(1)(A) and (2) by failing and refusing
to refer Andrea Wilson, the Charging Party, to the Em-
ployer for work on operatic stage productions when
she was requested by the Employer by name, and by
failing to timely inform the users of the hiring hall re-
ferral system of a significant change in its referral sys-
tem.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of administrative law judge and or-
ders that the Respondent, Miami Stage Employees
Union, Local 545, International Alliance of Theatrical
Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada, AFL–CIO,
Miami, Florida, its officers, agents, and representatives,
shall take the action set forth in the Order as modified
below.
1. Substitute the following for paragraph 2(a).
‘‘(a) Make Andrea Wilson whole for any loss of
earnings suffered as a result of the discrimination
against her, occasioned by refusing to refer her to the
Greater Miami Opera Association when she was spe-
cifically requested by name, by payment to her of a
sum of money equal to that which she normally would
have earned from the dates of the discrimination prac-
ticed against her, i.e., from on or about January 9,
1991, and April 8, 1991, until completion of the sched-
uled performances of the second and fifth operas, re-
spectively, of the 1990–1991 season produced by the
Greater Miami Opera Association, plus interest, less
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
net earnings during such periods, in the manner set
forth in the remedy section of this decision.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT operate our exclusive hiring hall and
referral system for referral of employees to the Opera
Guild of Greater Miami, Inc., d/b/a the Greater Miami
Opera Association, in a discriminatory or arbitrary
manner, or in any way based on membership, rules and
regulations, or in any other manner not in accordance
with the terms and conditions of our collective-bar-
gaining agreement with the Greater Miami Opera As-
sociation, and WE WILL NOT fail to timely and fully in-
form all users of our hiring hall and referral system of
significant changes in the operating procedures and
rules of the hiring hall and referral system.
WE WILL NOT fail or refuse to honor requests made
by the Greater Miami Opera Association, pursuant to
our collective-bargaining agreement, for referral of
specific named individuals, if possible.
WE WILL NOT in any like or related manner restrain
or coerce employees, members, job applicants, or reg-
istrants in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL NOT make Andrea Wilson whole for any
loss of earnings suffered as a result of our discrimina-
tion against her by our refusal to refer her to the
Greater Miami Opera Association when she was spe-
cifically requested by name, by payment to her of a
sum of money equal to that which she normally would
have earned from the dates of the discrimination, on
or about January 9, 1991, and April 8, 1991, until
completion of the scheduled performances of the sec-
ond and fifth operas, respectively, of the 1990–1991
season produced by the Greater Miami Opera Associa-
tion, plus interest, less net earnings during such peri-
ods.
MIAMI STAGE EMPLOYEES UNION,
LOCAL 545, INTERNATIONAL ALLIANCE
OF THEATRICAL STAGE EMPLOYEES AND
MOVING PICTURE MACHINE OPERATORS
OF THE UNITED STATES AND CANADA,
AFL–CIO
Maria Kaduck-Perez, Esq., Eduardo Soto, Esq., for the Gen-
eral Counsel.
Joseph Kaplan, Esq., of Miami, Florida, for the Respondent
Miami Stage Employees Union, Local 545.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In the
complaint and notice of hearing, dated August 16, 1991, the
Regional Director Region 12 of the National Labor Relations
Board (the Board) charges that the Respondent Miami Stage
Employees Union, Local 545, International Alliance of The-
atrical Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada, AFL–CIO (Greater
Miami Opera Association) (Local 545 or the Union), violated
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act (the Act) by refusing to refer all employees requested by
name by the Opera Guild of Greater Miami, Inc., d/b/a the
Greater Miami Opera Association (Miami Opera Associa-
tion), by failing to timely inform the employee-users of the
Union’s referral system of such change in its referral proce-
dures, by discriminating against Andrea Wilson, the Charg-
ing Party, by failing and refusing to refer her to the Miami
Opera Association, and by causing or attempting to cause the
Miami Opera Association to discriminate against its employ-
ees in violation of Section 8(a)(3) of the Act. The charge in
this case was filed on January 17, 1991. Trial was held be-
fore Administrative Law Judge William A. Pope, II, in
Miami, Florida, on November 21 and 22, 1991, and January
21 and 22, 1992.
Background
The Opera Guild of Greater Miami, Inc., d/b/a the Greater
Miami Opera Association is a nonprofit organization which
produces and performs operas and other musical productions
in Miami and Ft. Lauderdale, Florida. The Miami Opera As-
sociation is controlled by its board of directors composed of
community officials and private individuals. The Opera As-
sociation’s full-time administrative staff is headed by its gen-
eral director and its artistic director. Under them is a six-per-
son executive staff, one member of which is the assistant
general manager, who serves as the general director’s assist-
ant. At all times relevant to this proceeding, the assistant
general manager was Paul Lapinski. Under the assistant gen-
eral manager are the technical director and the production
tour coordinator, both of whom are full-time employees. At
765STAGE EMPLOYEES LOCAL 545 IATSE (GREATER MIAMI OPERA ASSN.)
1 Included is ‘‘work performed on or in connection with the main-
tenance, repair, upkeep, setting, striking, dismantling, operation,
placement, movement, handling, rigging and/or hanging of any
appurtenances or paraphernalia pertaining thereto.’’ The Union’s ju-
risdiction includes ‘‘all work performed in GMOA’s normal ‘Take-
in’, ‘Put-on’, and ‘‘Take-out including the removal and restoration
of house equipment.’’ The specific tasks under the Union’s work ju-
risdiction include ‘‘the handling of all stage or theatrical accessories,
scenery, projection equipment, drops, travelers, maskings, platforms,
risers, turntables, traps, hand trucks, dollies, lifts, rigging, stage
floors, railings, theatrical scaffolding and the like.’’
2 The hiring and referral system rules and regulations further de-
fines experience and steady job, as it uses the terms.
all times relevant to this proceeding, the technical director
was Max Newhart. Under the technical director are a sea-
sonal staff of people including department heads, stage man-
agers, and costume coordinators who are hired for the entire
opera season. Under the department heads are employees
such as electricians, carpenters, and other types of
stagehands, who are hired on a per-show basis.
Since at least 1972, the Miami Opera Association has ob-
tained stagehands for its musical productions in the Miami
area by referral from the Union, the Miami Stage Employees
Union, IATSE, Local 545. At all times relevant to this pro-
ceeding, the Miami Opera Association and the Union were
parties to a collective-bargaining agreement effective during
the period from January 1, 1989, through December 31,
1991, covering a wide variety of work related to the staging
of the Opera Association’s musical productions in the Dade
County Auditorium, the Jackie Gleason Theater of the Per-
forming Arts, and other professional facilities in the Greater
Miami, Florida area. Under the terms of the collective-bar-
gaining agreement, the Miami Opera Association agreed that
it will use qualified employees referred by the Union to per-
form stagehand work covered by the agreement. The broad
categories of work performed by employees referred by the
Union includes ‘‘all carpentry, electrical, property and related
work.’’1
Article II of the collective-bargaining agreement provides,
in pertinent part, that:
1. The GMOA [Greater Miami Opera Association]
agrees to contact the Union Business Agent for the pur-
poses of providing employees to work under the terms
of this AGREEMENT and the UNION agrees to honor
the GMOA’s request for specific named individuals, is
possible. It is further agreed that this hiring arrange-
ment shall be non-discriminatory and referral or hiring
of employees shall in no way be based upon union
membership, rules or regulations. The UNION agrees
that the GMOA and the employees may sign individual
agreements which bind the employees to work for the
GMOA during a specific period of time. Nothing in the
individual agreements shall supercede this basic agree-
ment.
2. The GMOA shall notify the UNION of its man-
power requirements and the Union shall not send nor
require GMOA to employ more stagehand employees
than it requested . . . .
. . . .
4. GMOA’s Heads of Departments have the right to
reject any employees referred by the Union, but deter-
mination that a man is unacceptable will be made by
the Head only on the basis of professional Knowledge
or after a reasonable trial period . . . .
5. GMOA Heads of Departments shall have the right
to name their own key persons subject to approval by
the GMOA Technical Director or Director of Produc-
tion.
Article III, section A, Opera Heads, grants the Opera As-
sociation the ‘‘sole authority and responsibility to name and
hire the Opera Heads of Departments and the Opera Heads
of Departments have total authority to direct the working
forces including the House Heads.’’ Article III defines
GMOA heads of departments as ‘‘persons hired by the
GMOA to be responsible to supervise the various department
crews to ‘Take-in’, ‘Put-on’, ‘Take-out’ during the opera sea-
son. Normally there will be a Head Carpenter, a Head Elec-
trician and a Head Propertyman.’’
At all times relevant to this proceeding, the department
heads were Gerald Len Howard, master electrician, Al
Suarez, master carpenter, and Joseph Sirpico, property man-
ager.
On May 4, 1986, the Union adopted ‘‘Hiring and Referral
System Rules and Regulations.’’ These rules and regulations
were in effect at all times relevant to this proceeding. Over-
sight for operation of the referral system is vested in a ‘‘per-
manent Referral Committee’’ made up of five members, four
of whom are appointed by the executive board of the Union,
two of whom are to be members of the executive board and
two are to be members of the Union but not the executive
board, and a fifth member, who is to be chairman, appointed
by the president of the Union. Responsibility for the daily
operation of the hiring and referral system is vested in the
Union’s business agent.
The rules and regulations of the Union’s referral system
establish three referral lists, an ‘‘A’’ list, a ‘‘B’’ list, and a
‘‘C’’ list, with different qualifications for each. To be on the
‘‘A’’ list, a person must have 3 years’ experience, have not
had a steady job in the last 30 days, and has to be registered
to vote in Dade, Collier, or Monroe Counties. If a person
qualified for the ‘‘A’’ list had worked a steady job within
the last 30 days, he was placed on the ‘‘B’’ list. A person
with less than 3 years’ experience and/or not registered to
vote in Dade, Collier, or Monroe Counties, qualified for the
‘‘C’’ list.2 In general, the rules and regulations provide that
referral of jobs will proceed in descending order according
to the date of registration on the ‘‘A’’ list, until the ‘‘A’’ list
is exhausted, then to the ‘‘B’’ list, and after it is exhausted,
to the ‘‘C’’ list.
Issues
a. Complaint. The complaint alleges that on or about Janu-
ary 8, 1991, the Union refused to refer all persons requested
by name by the Miami Opera Association, and failed to in-
form the employee-users of the Union’s referral system of
the change in procedures. The complaint further alleges that
as a consequence, the Union caused or attempted to cause
the Opera Association to discriminate against its employees
in violation of Section 8(a)(3). By its actions, the Union is
alleged to have violated Section 8(b)(1)(A) and Section (2).
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The opera call on January 9, 1991, was the ‘‘load-in call,’’ dur-
ing which the scenery and equipment needed for the opera produc-
tion is taken into the theater and the theater is set up for perform-
ance of the opera, a process which usually takes several days. There
is no separate production call. Stagehands for the run of the show,
or performances of the opera, are usually selected from the load-in
crew. The load-in and production of the opera usually lasts for about
2-1/2 weeks. After the show ends, the last call for stagehands is the
‘‘load-out call,’’ when the Opera Association’s sets, equipment, and
other property are removed from the theater. The ‘‘load-in call’’ is
preceded by a ‘‘warehouse call,’’ during which Opera’s scenery and
equipment are loaded onto semitrailers for transportation to the the-
ater where the opera will be performed. The warehouse call lasts
from 1 to 3 days. Andrea Wilson was not requested by the Opera
Association for the warehouse call for the January 1991 opera.
b. Answer. In its answer, as amended at trial, Respondent
admitted all of the allegations of the complaint, except those
contained in paragraphs 7 through 11, which allege that the
Respondent violated the Act by committing unfair labor
practices.
c. General Counsel’s Position. General Counsel argues
that the Greater Miami Opera Association had a contractual
right under the collective-bargaining agreement to request
stagehands by name through the Union’s referral system, and
that Respondent Union violated Section 8(b)(1)(A) and (2)
by refusing to honor the Opera Association request for refer-
ral of Andrea Wilson, an employee whom the Opera Asso-
ciation had requested by name for its second and fifth operas
of the 1990–1991 season. Alternatively, General Counsel as-
serts that even if Respondent did not breach the collective-
bargaining agreement, the evidence establishes that it was the
Union’s past practice to honor requests for individuals by
name from the Opera Association, and, therefore, it breached
its duty of fair representation by failing to notify users of its
hiring hall of changes in its referral procedures, also in viola-
tion of Section 8(b)(1)(A) and (2).
d. Respondent’s Position. Respondent contends that the
language in the collective-bargaining agreement relied upon
by the General Counsel to support his argument that the
Opera Association had a contractual right to request any and
all employees by name does not, in fact, grant such a right
to the Opera Association. The Union asserts that its contrac-
tual agreement to honor the Opera Association requests for
specific named individuals is modified by the words ‘‘if pos-
sible,’’ and that its reasonable interpretation of the contrac-
tual language has always been that specific requests would
be honored only in accordance with the Union’s referral pro-
cedures. Respondent contends that it has consistently inter-
preted the contractual language to the effect that no ‘‘C’’ list
people will be referred until the ‘‘A’’ list has been ex-
hausted, and that the Opera Association never challenged the
Union’s interpretation through the grievance procedure or
otherwise. The Union contends that the evidence, in fact,
shows that it did not deviate from established past practices,
as General Counsel contends, but instead consistently ad-
hered to established past practices.
I.
Andrea Wilson, the Charging Party, was referred by the
Union to the Miami Opera Association as a member of the
electrical crew, under the direction of Len Howard, during
the 1988–1989, 1989–1990, and 1990–1991 opera seasons.
She testified that during that period of time she worked all
but four of the Opera Association’s productions. During the
1990–1991 opera season, she was referred as part of the Op-
era’s electrical crew for the first opera, held in November
1990, and the third and fourth operas. She was not referred
by the Union for the call for the second opera on January
9, 1991, nor the call for the fifth opera in April 1991.
As was customary before each opera production, on the
first Wednesday in January 1991, which the parties stipulated
was January 2, 1991, Max Newhart, the technical director for
the Miami Opera Association, held a production meeting
with his department heads to determine the stagehand man-
power requirements for the January 1991 opera production,
which was to be the second opera production of the 1990–
1991 season. Among others attending the meeting were Paul
Lapinski, the assistant general manager, Len Howard, the
head electrician, and Al Suarez, the head carpenter. At that
meeting, the number of employees needed on each of the
stagehand crews was set. Len Howard, in undisputed testi-
mony, stated that during the meeting, he set the number he
needed for the electrical crew and named the individual em-
ployees he wanted to make up the crew. After discussion, his
request was approved by Max Newhart. Included on the ap-
proved electrical crew list were Andrea Wilson and J. D.
Coates. Howard testified that Wilson had started working on
the electrical crew 3 years before, and had worked on the
crew for the first opera of the 1990–1991 season.
The next day, January 3, 1991, Howard placed a telephone
call to the Union’s business agent, Daniel Bonfiglio, and told
him the names of the people he wanted for the electrical
crew for the opera call on January 9, 1991.3 Bonfiglio re-
plied that he would not send either Wilson or Coates. Ac-
cording to Howard, he reported his conversation with
Bonfiglio to Max Newhart. After conferring with Assistant
General Manager Lapinski, and at Lapinski’s direction,
Newhart wrote a letter, which was also signed by Howard
and Suarez, the head electrician, listing by name the car-
penter and electrical crews needed by the Miami Opera start-
ing January 9, 1991, for its production of the opera ‘‘Cosi
Fan Tutti.’’ Newhart said that he had the letter delivered to
the Union by messenger. Daniel Bonfiglio testified that the
letter was slipped under his office door and he received it
on January 8, 1991.
On January 9, 1991, Bonfiglio had the first of several dis-
cussions with Assistant General Manager Lapinski con-
cerning whether or not the Opera Association had the right
to specifically request referral of employees by name, as
maintained by Lapinski, and disputed by Business Agent
Bonfiglio. According to the credible testimony of Paul
Lapinski, during these conversations Bonfiglio stated his
feeling that Wilson was not physically qualified for the work,
and that she had been offered another call for work during
the period, which she had turned down. Bonfiglio stated that
Wilson could not pick and choose her calls. Bonfiglio said
that Wilson was not on the ‘‘A’’ list, which had to be ex-
hausted before people, such as Andrea Wilson, who were on
the ‘‘C’’ list could be referred. Bonfiglio asserted that the
Opera Association could not request people from the ‘‘C’’
list.
In subsequent conversations between Bob Huer, the Op-
era’s general director, and Mike McCarthy, the Union’s
president, an agreement was reached that the Opera Associa-
767STAGE EMPLOYEES LOCAL 545 IATSE (GREATER MIAMI OPERA ASSN.)
4 Business Agent Bonfiglio stated that Wilson was not at the top
of the ‘‘C’’ list and perhaps he could have sent her to another the-
ater. He said that because she had worked on operas, he put her on
the opera call for the third opera to accommodate the Opera and her.
5 Newhart said he would not be surprised if the Union’s records
show that the load-in call for the fifth opera was on April 11, 1991.
tion would stop writing letters concerning the dispute and the
issue would be left for resolution in on-going contract nego-
tiations. Paul Lapinski credibly testified that he instructed his
staff to continue making verbal requests for individuals they
wanted on their crews. Lapinski said that Wilson was not
sent by the Union as a member of the electrical crew for the
second and fifth operas of the 1990–1991 opera season, as
specifically requested by name, but that she was sent for the
third and fourth operas.
Daniel Bonfiglio, the Union’s business agent, testified that
on December 26 or 27, 1990, he received a telephone call
from Max Newhart, the Opera Association’s technical direc-
tor, during which Newhart informed him how many
stagehands would be required for the next opera. Bonfiglio
stated that he filled all of the crews needed for the Opera’s
January 1991 production from the ‘‘A’’ list by January 2 or
January 3, 1991. On January 4, 1991, Bonfiglio said, he
called Andrea Wilson and offered her employment on Janu-
ary 7 and 8, 1991, at the Miami Beach Theater of the Per-
forming Arts. He recalled that she asked him why he was not
putting her on the opera crew, and he replied that the opera
call for January 9, 1991, had been filled from the ‘‘A’’ list.
Andrea Wilson testified that on or about January 4, 1991,
she received a telephone call from Daniel Bonfiglio, the new
business agent of the Union, asking her if she was available
for work the next week. She replied in the affirmative, and
Bonfiglio offered her work at the Theater of the Performing
Arts on January 7 and 8. In response to her inquiry about
the Opera call on January 9, 1991, Bonfiglio told her that it
was filled. She said that she did not report for the work of-
fered by Bonfiglio because she was ill. According to Wil-
son’s undisputed testimony, Bonfiglio called again, offering
her work on January 13, 1991.
Len Howard, the Opera Association’s head of the elec-
trical department for the 1990–1991 season, and a member
of Miami Stage Employees Union, Local 545, credibly testi-
fied that after the January 1991 opera production, he was
called before the Union’s executive board, and was told not
to sign any letters originating from the Opera, and that he
could only request his key assistant by name. As a result, he
said, he did not specifically request anyone by name for the
third and fourth operas. He further testified that he did spe-
cifically request Wilson from Dan Bonfiglio for the fifth
opera, because she had been referred for the fourth opera and
he thought there was no longer any problem with requesting
her. When he communicated his request to Business Agent
Bonfiglio, the latter responded that he was ‘‘going to send
who he was going to send.’’ It is undisputed that Wilson was
not referred by the Union for the fifth opera. Howard testi-
fied that he did not recall that Bonfiglio gave him any reason
for not referring Wilson.
Business Agent Bonfiglio testified that he filled the calls
for the third and fourth operas of the 1990–1991 season from
the ‘‘A’’ list first, and after it was exhausted, from the ‘‘C’’
list. He said that he knew Len Howard liked Andrea Wilson,
and since he could accommodate Howard in this regard, he
sent Wilson to make things as smooth as possible.4 He said
that the Opera Association did not request anyone by name
for either the third or fourth operas.
Business Agent Bonfiglio stated that he received the num-
ber of stagehands needed for the fifth opera from Max
Newhart, and filled the crews from the ‘‘A’’ list and with
apprentices. Since the ‘‘A’’ list was not exhausted, he could
not send people from the ‘‘C’’ list. He acknowledged that he
received a telephone call from Andrea Wilson asking why
she was not being referred for the fifth opera. He said he
told her that the past practice was to fill opera calls with ap-
prentices and from the ‘‘A’’ list first. Bonfiglio said that
after he had filled the crews for the fifth opera, and at most
3 days before the call for the opera, he received a message
from Len Howard on his answering machine requesting An-
drea Wilson. He added that there was nothing he could do
because he had filled the call with ‘‘A’’ list people and ap-
prentices. While the fifth opera was in production, he had a
conversation with Max Newhart in which he asked Newhart
why the Opera Association had requested Wilson after word
had come down that there would be no more requests.
Newhart replied that there could still be verbal requests, just
no written requests.
Technical Director Newhart credibly testified that he
learned from Len Howard that the Union was not going to
refer Wilson for the fifth opera, as Howard had requested.
Newhart said that he spoke to Business Agent Bonfiglio be-
fore April 9, 1991,5 and Bonfiglio said that he was not going
to send Wilson because he did not feel she was qualified to
do the work.
Andrea Wilson, in credible and undisputed testimony, stat-
ed that on April 8 or 9, 1991, she received a message from
Business Agent Bonfiglio offering her work at IBM on April
13 and 14. She said the load-in call for the fifth opera was
at about that time and the job offered to her would have pre-
cluded her from working on the fifth opera. She said she
then had conversations with Paul Lapinski and Len Howard,
during which she was told that she had been requested by
name for the fifth opera in April 1991. Subsequently, she re-
ceived another message on her answering machine from
Bonfiglio, during which he berated her for speaking to opera
management, and said that she would get her calls through
the hiring hall and him personally. In a subsequent conversa-
tion with Bonfiglio, he told her that he had to follow certain
work lists, and she was only on the ‘‘C’’ list and he had put
others who were ahead of her on the list on the opera call.
The evidence of record shows that Andrea Wilson was
regularly referred to the Opera Association from the 1988–
1989 season and succeeding seasons until January 1991, at
the specific request of the Opera Association, with the excep-
tion of several shows, for which no reason is given. In any
event, there is no evidence that at any time prior to January
1991, the Union refused to refer Wilson claiming that she
was on the ‘‘C’’ list and could not be reached because the
‘‘A’’ list was not exhausted.
Although the Union’s newly appointed business agent,
Daniel Bonfiglio, claimed that he could not refer Wilson to
the Opera Association in January 1991 and again in April
1991 because the ‘‘A’’ list was not exhausted, that claim ap-
pears to be contrived and pretextual. Both in January 1991,
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I do not credit Daniel Bonfiglio’s testimony regarding the timing
of the Opera Association’s requests and his actions. I find his
version of the sequence of events to be contrary to the evidence. He
said that he received a telephone call from Max Newhart on Decem-
ber 26 or 27, 1990, during which he learned from Newhart the num-
ber of stagehands which would be required for the January show,
and that he finished filling the call by January 2 or January 3, 1991.
Max Newhart’s credible testimony shows, however, that the number
of stagehands needed for the January show was not determined until
the Opera Association’s production meeting on January 2, 1991, and
it was after that meeting that Newhart spoke to Bonfiglio. Len How-
ard credibly testified that he spoke to Bonfiglio on January 3, and
specifically requested Wilson and another stagehand named J. D.
Coates. One day later, on January 4, Bonfiglio offered Wilson other
employment on January 7 and 8.
7 It appears that Bonfiglio, according to his own testimony, exer-
cised considerable discretion in determining who to refer for calls,
based on his own idea of who was most suitable, wanted the work,
and was available. He said that he did not have to refer Wilson for
the third and fourth shows, but since he could reach her on the list,
he referred her as an accommodation to the Opera Association. The
clear implication here is that he did not refer her necessarily because
she was at the top of the list, numerically, but instead, exercised dis-
cretion and referred her even though he was not compelled to do so.
for the second opera of the season, and in April 1991, for
the fifth opera of the season, while claiming he could not
refer her for work at the opera because the ‘‘A’’ list had not
been exhausted, in fact, Bonfiglio offered her referrals at
about the same time to other shows. The opera call for the
second show was on January 9. On January 4, 1991,
Bonfiglio, while claiming that he had filled the opera call for
January 9 from the ‘‘A’’ list by January 2 or January 3,6 of-
fered her work on January 7 and 8 on another show. The
clear implication here is that Bonfiglio could have referred
her to the opera, as he was requested to do, and referred
someone else for the January 7 and 8 calls, if he had chosen
to do so.7 The dates are less precisely established concerning
the April 1991 opera call and other contemporaneous work
offered to Wilson, but the same conclusion appears equally
warranted. I find this to be strong evidence that whatever
Bonfiglio’s reasons may have been for departing from past
practice concerning honoring the Opera Association’s spe-
cific requests for Andrea Wilson, it was not because he had
no alternative since she was on the ‘‘C’’ list and the ‘‘A’’
list, which had preference, in the Union’s view, was not ex-
hausted.
II.
General Counsel contends that it was the parties’ past
practice for the Union to refer all employees requested by
name by the Opera Association if the employee was avail-
able, and that the Union violated the Act by changing its past
practice without timely notice to the users of the hiring hall
of the change in referral procedures. The Union, for its part,
denies that the General Counsel has accurately stated the par-
ties’ past practice. Instead, asserts the Union, the parties’ past
practice was that the Union would honor the Opera Associa-
tion’s requests by name for people on the ‘‘C’’ list only
when the ‘‘A’’ list was exhausted. The Opera Association’s
requests by name in the past had been honored only because
the requested employee was on the ‘‘A’’ list. The Union ac-
knowledges that departures from established hiring hall pro-
cedures which result in a denial of employment inherently
encourages union membership, and constitutes a discrimina-
tory practice in violation of Section 8(b)(1)(A) and (2). How-
ever, there was no discrimination in this case, because, con-
sistent with past practice, the Union had referred out Andrea
Wilson, who was on the ‘‘C’’ list, whenever the ‘‘A’’ list
had been exhausted and she had not been referred when it
was not.
The collective-bargaining agreement requires the Opera
Association to contact the Union’s business agent for its
stagehand manpower requirements, and the Union to send the
number of stagehands requested. Paul Lapinski, the Opera
Association’s assistant general manager, whom I find to be
a credible witness, began his employment in July 1989 as the
director of production. He stated that he was, and still is, re-
sponsible for the physical production of the Opera Associa-
tion’s musical productions. The practice followed by the
Opera Association since he has been there is that the director
of production and the technical director, with the director of
production having the greater authority, have the responsi-
bility for contacting the Union to obtain needed stagehands.
At the time Lapinski was hired, the position of technical di-
rector was vacant, and it remained vacant until Max Newhart
was hired as technical director in September 1990.
Lapinski said that the practice he followed was to give the
business agent the numbers of various types of stagehands
required by the Opera Association for a particular produc-
tion, for example electricians or carpenters, and then the de-
partments heads conferred with the business agent, in person
or by telephone, and through a cooperative process selected
from the manpower pool available the people they wanted on
their crews. Lapinski stated that the department heads re-
quested stagehands by name, and that on occasion the depart-
ment heads reported to him that certain men were on other
jobs and were unavailable. He said that no problems requir-
ing action in writing were reported to him through December
1990; however, there was an indication of a problem in No-
vember 1990, involving manning of a warehouse call, as re-
ported to him by Max Newhart.
Max Newhart, whose testimony I also find to be credible,
testified that after the Opera Association’s manpower re-
quirements for a show were established, he called the
Union’s business agent and let him know the number. After
that the department heads either called or spoke to the busi-
ness agent in person concerning the make up of the crews.
The procedure was slightly different if it was determined that
additional stagehands were needed after an opera was in pro-
duction. Then, Newhart said, requests for employees were
made through the shop steward.
Newhart testified that a problem arose in November 1990,
with a request made through the shop steward for a ware-
house call. Newhart said that he requested individuals by
name, and gave the shop steward a piece of paper upon
which he had written the names of the individuals he wanted.
The shop steward to whom he gave the paper was Sal
Bonfiglio, who is Business Agent Daniel Bonfiglio’s father.
The Union did not honor the request in full. It sent sub-
stitutes for two of those requested by name. One of the sub-
stitutes was Daniel Bonfiglio.
The only department head to testify was Len Howard, who
has been hired by the Opera Association as head electrician
for each opera season since 1982. I find Howard to be a
forthright and convincing witness. Howard is a union mem-
769STAGE EMPLOYEES LOCAL 545 IATSE (GREATER MIAMI OPERA ASSN.)
8 Howard said that his first show as head electrician was in 1982,
and Business Agent McCarthy had picked his crew for him, because
he had been hired late for the first production. After that show, he
said, he started changing the crewmembers for subsequent shows.
9 Mike McCarthy, now president of the Union, testified that he
was business agent from 1972 through December 1986 or 1987. He
said his replacement was Arnie Shupnick. Shupnick was replaced as
business agent by Daniel Bonfiglio in December 1990.
10 Respondent offered testimony that they were either apprentices
or on the ‘‘A’’ list.
ber. His employment by the Opera Association as head elec-
trician is seasonal, lasting only part of the year. He has a
yearly contract with the Opera Association, which may or
may not be renewed at the start of the next opera season. He
depends upon the Union’s hiring hall for work referrals, ei-
ther to supplement or replace his work for the Opera Asso-
ciation. Considering his dependence upon the Union’s hiring
hall for work, I find that he has no motive to testifying un-
truthfully.
He stated that after the size of his crew was approved by
the Opera Association’s technical director, he spoke with the
Union’s business agent, either by telephone or in person,
concerning the make up of his crew. He said that he spent
the most time with the business agent in selecting the crew
for the first show each season, since he was basically setting
up the crew for the year. Usually, the business agent showed
him a list, or told him verbally, who was available, and he
indicated those he wanted and those he did not want.8 He
said he sometimes requested people who he knew were avail-
able, but were not included on the business agent’s list. He
said that his requests for individuals by name were always
honored by the Union while its business agents were Mike
McCarthy and his successor, Arnie Shupnick,9 although on
occasion he would be informed by the business agent that a
particular person he requested was committed for another
show and was not really available. He said his requests for
Andrea Wilson were always honored until the second opera
of the 1990–1991 season in January 1991, when the business
agent was Daniel Bonfiglio.
When pressed for names of specific individuals he had re-
quested since 1982, Howard named five, in addition to An-
drea Wilson. He said there could have been more than four,
and probably were, but he did not recall them. He said that
he had been involved as a union member in establishing the
‘‘A,’’ ‘‘B,’’ and ‘‘C’’ list referral system adopted by the
Union in 1986, but he was never presented ‘‘A,’’ ‘‘B,’’ or
‘‘C’’ lists by the business agents, and he could not say
whether the four he specifically requested were on the ‘‘A’’
list when he requested them.10
Howard said that Business Agent McCarthy would usually
show him a list, but not a list designated as ‘‘A,’’ ‘‘B,’’ or
‘‘C,’’ of not more than 20 names written on a piece of paper,
and would tell him that they were the ones available. He said
that when people he wanted were on the list, there was no
problem. If people he wanted were not on the list given to
him by McCarthy, he asked for them, and if they were avail-
able and not committed to another show, received them.
Mike McCarthy testified that while he was the Union’s
business agent, he had meetings, in person or by telephone,
with the department heads, from whom he obtained the num-
ber of stagehands needed by the Opera Association for a par-
ticular opera. He said that he referred people to the Opera
Association by going down his ‘‘A’’ list, and rarely referred
people from the ‘‘B’’ or ‘‘C’’ list. He said that the Opera
Association frequently requested apprentices, who were re-
ferred under a different system, but that never in his experi-
ence did they request someone from the ‘‘C’’ list. He said
he never received a list from the Opera Association of people
they wanted by name. He said the only people the Opera As-
sociation requested by name were apprentices and key assist-
ants, who the heads of departments had the right under the
collective-bargaining agreement to choose. He said the peo-
ple Howard requested were on the ‘‘A’’ list.
Arnold Shupnick was unavailable as a witness because of
ill health, and the parties agreed to a stipulation of his ex-
pected testimony. In his stipulated testimony, Shupnick, who
said that he was the Union’s business agent from 1987 to
1990, said that it was his practice to refer ‘‘A’’ list people
to the Opera and to go to the ‘‘C’’ list only if the ‘‘A’’ list
was exhausted. Shupnick said that the Opera Association did
not regularly request people by specific name, but that Len
Howard wanted to use Andrea Wilson, and he was able to
send her from November 1987 through November 1990, be-
cause the ‘‘A’’ list was exhausted and he was able to go the
‘‘C’’ list. Before the start of the 1990–1991 opera season, ac-
cording to Shupnick’s stipulated testimony, he told Andrea
Wilson that he might not be able to send her to the opera
because the ‘‘A’’ list had been increased by out-of-work
stagehands from another theater, but for the first show, in
November 1990, the ‘‘A’’ list was exhausted and he was
able to refer her to the opera from the ‘‘C’’ list.
I find that the preponderance of the evidence shows that
from at least 1982 to November 1990, when Daniel
Bonfiglio assumed the position of the Union’s business
agent, the system under which the Union supplied stagehands
to the Opera Association worked smoothly, apparently to the
satisfaction of both parties. In practice, for the first opera of
each season, the Opera Association obtained the basic crews
who remained in tact for the rest of the shows of the season.
There were additions to and subtractions from the crews for
various reasons, including addition of people with particular
skills requested by name by the Opera Association to fill its
need for someone with those skills for a particular opera.
Usually, after the number of stagehands needed for an
opera had been communicated to the business agent, the
business agent showed lists of people available from which
Head Electrician Howard made his selections. The lists were
never identified by the business agent as ‘‘A,’’ ‘‘B,’’ or ‘‘C’’
lists. From time to time, Len Howard, as the head electrician,
requested people by name from the Union, and if those peo-
ple were available, in the sense that they were not already
committed to another job, the Union sent them. One of those
requested by name by Howard was Andrea Wilson, who was
part of the electrical crew referred for each show from No-
vember 1987 through November 1990, with two or three ex-
ceptions. There is no evidence that the Union, through its
business agent at the time, Arnie Shupnick, ever refused to
refer Wilson, or anyone else, because he or she was on the
‘‘C’’ list and the ‘‘A’’ list, which had preference, was not
exhausted.
The evidence of record indicates that when Howard re-
quested someone by name, from either Business Agent
McCarthy or Business Agent Shupnick, they tried to accom-
modate the requests, and only when the requested person was
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 R. Exh. 6, ‘‘Hiring and Referral System Rules and Regula-
tions,’’ adopted May 4, 1986.
12 Id.
13 Id.
already committed to another show was a request not hon-
ored. There is no specific evidence of record concerning
whether or not other department heads also requested referral
of stagehands by name, but the Opera Association’s assistant
general manager, Paul Lapinski said that under the collec-
tive-bargaining agreement they had that authority, and no one
reported difficulties, other than that a requested person was
already committed elsewhere, to him.
I find the testimony of the General Counsel’s witnesses
concerning the practice followed by the Opera Association
and the Union in referring stagehands from 1982 to Novem-
ber 1990 to be more reliable and credible than the testimony
of Respondent’s witnesses.
Former Business Agent McCarthy’s testimony concerning
practices he followed prior to 1987, a period of time which
is relatively remote to the time of the controversy at issue
here, does not rebut the testimony, principally by Head Elec-
trician Howard, concerning referrals before 1987. It is pos-
sible that, as he testified, McCarthy followed the Union’s in-
ternal procedure of referring ‘‘A’’ list people before ‘‘C’’ list
people, but if he did, it was not done by agreement with the
Opera Association, or, even with the Opera Association’s
knowledge. There is no evidence that former Business Agent
McCarthy ever informed the Opera Association that he made
referrals from the ‘‘A’’ list until it was exhausted, and only
then from the ‘‘C’’ list. There is, in short, no credible evi-
dence that the Opera Association knew what specific method
the Union was using to refer stagehands, let alone that it
agreed to acquiesced in giving preference to ‘‘A’’ list people
over the Opera Association’s requests for specific named in-
dividuals. Although McCarthy testified that he did not recall
that the Opera Association requested people by name, he
seems to have acknowledged that practice when he testified
that the people Howard requested were on the ‘‘A’’ list.
More relevant, because it occurred more recently, to the
question of the parties’ past practice is the testimony, by
stipulation, of Former Business Agent Shupnick, relating to
the period from 1987 to November 1990, the 3-year period
immediately preceding the refusal of newly appointed Busi-
ness Agent Daniel Bonfiglio to refer Wilson and one other
person requested by name by the Opera Association for its
January 1991 opera production. Whatever may have been
Shupnick’s practice with respect to the use of giving pref-
erence in making referrals to people on the Union’s ‘‘A’’
list, over people on its ‘‘B’’ and ‘‘C’’ lists, he did not say
that the Opera Association agreed or acquiesced, or even
knew what his practice might have been. He did not dispute
that the Opera Association sometimes requested people by
name, and he said that he was able to comply with Head
Electrician Howard’s specific request for Andrea Wilson,
who was on the ‘‘C’’ list for every show, with two or three
exceptions for which no reason is given, from November
1987 to November 1990. Thus, if the question of lists was
a factor in his referrals, it apparently never arose as a prob-
lem for the Union in making referrals to the opera, and was
never a subject of discussion with the Opera Association’s
management.
On this record, I find that it was the Opera Association’s
past practice to request referral of stagehands by name from
time to time. The evidence is unconvincing that it was the
parties’ practice to limit the Union’s contractual obligation to
honor such requests by the Union’s internal and unilaterally
adopted procedures for establishing preferential hiring lists.
Until November 1990, when the Opera Association requested
referral of stagehands by name, it was the Union’s practice
to honor such requests, unless the individual requested was
already committed to work on another show.
III.
The collective-bargaining agreement in effect between the
Opera Association and the Union at the time relevant to this
proceeding contains explicit language granting the Opera As-
sociation the right to request referral of specific named indi-
viduals, and requiring the Union to honor the Opera Associa-
tion’s specific by name requests, if possible. The collective-
bargaining agreement further provides that referral will not
be based upon union membership, rules, or regulations. The
Opera Association agreed that work covered by the collec-
tive-bargaining agreement will be performed by qualified
employees referred by the Union, but reserved the right to
contract with employees individually to work for the Opera
Association for a specified period of time. The Union is obli-
gated under the collective-bargaining agreement to endeavor
to refer employees who will work both rehearsals and per-
formances.
The collective-bargaining agreement does not define quali-
fications for referral, and the Opera Association has the right
to reject any employee referred by the Union, upon a deter-
mination by the head of department, based upon prior profes-
sional knowledge or a reasonable trial period, that the em-
ployee is unacceptable. Nothing in the collective-bargaining
agreement requires the Union to establish a referral system
based upon seniority status of employees, as determined by
placement of them by the Union on ‘‘A,’’ ‘‘B,’’ and ‘‘C,’’
or other lists prepared and maintained by the Union, based
upon qualifications determined by the Union on such factors
as years of experience (based upon ‘‘at least 1200 hours of
work in the past twelve (12) months in the industry in Dade,
Collier or Monroe Counties’’),11 whether or not the em-
ployee had a ‘‘steady job’’ within the last 30 days,12 or
where the employee is registered to vote.13 The contents of
the ‘‘Hiring and Referral System Rules and Regulations’’
which the Union unilaterally adopted in 1986, in fact, are not
based upon anything contained in the collective-bargaining
agreement, and there is no evidence that the Opera Associa-
tion ever agreed to be bound by them.
In Teamsters Local 357 v. NLRB, 365 U.S. 667 (1961), the
Supreme Court held that hiring halls are not banned in any
provision of the Act. Section 8(a)(3) of the Act prohibits dis-
crimination in hiring which encourages or discourages mem-
bership in a labor organization. The Court said at 365 U.S.
666-667, that ‘‘the hiring hall, under the law as it stands, is
a matter of negotiation between the parties . . . . [The
Board’s] power, so far as relevant, is restricted to the elimi-
nation of discrimination.’’ Since there was a prohibition in
the collective-bargaining agreement at issue in that case, pro-
hibiting discrimination based upon union membership, the
Court held that ‘‘the Board is confined to determining
771STAGE EMPLOYEES LOCAL 545 IATSE (GREATER MIAMI OPERA ASSN.)
14 Unlike the collective-bargaining in the instant case, the collec-
tive-bargaining agreement in the case before the Supreme Court pro-
vided that casual employees would be employed in the industry only
on a seniority basis from seniority lists kept by, the unions, with
service determined upon a minimum of 3 months’ service in the in-
dustry, ‘‘irrespective of whether such employee is or is not a mem-
ber of the union.’’ 365 U.S. at 668. While the collective-bargaining
agreement in the instant case prohibits referral by the Union based
upon union membership, it does not otherwise require the Union to
use any specific referral system, such as the seniority system adopted
unilaterally by the Union, and it specifically allows the Opera Asso-
ciation to request referral of employees by name, and requires the
Union to honor the requests, if possible.
whether discrimination has in fact been practiced.’’ 365 U.S.
at 667.14
The Board has held that a union operating a hiring hall
violates Section 8(b)(1)(A) and (2) if it fails to follow clear
and unambiguous standards set out in a collective-bargaining
agreement. In Cell-Crete Corp., 288 NLRB 262, 264 (1988),
the Board held that:
A union which operates a hiring hall must represent
all individuals seeking to utilize that hall in a fair and
impartial manner. In this regard, the Board has held that
notwithstanding the absence of specific discriminatory
intent, ‘‘any departure from established exclusive hiring
hall procedures which results in a denial of employment
to an applicant . . . inherently encourages union mem-
bership, breaches the duty of fair representation owed
to all hiring hall users, and violates Section 8(b)(1)(A)
and (b)(2),’’ absent demonstration of a legitimate jus-
tification. In addition the failure to give timely notice
of a significant change in referral procedures is a
breach of a union’s duty to represent job applicants
fairly.
In Operating Engineers Local 406 (Ford, Davis & Bacon
Construction), 262 NLRB 50, 51 (1982), citing Plumbers
Local 392 (Kaiser Engineers), 252 NLRB 417, 418 (1980),
the Board said:
The Board has held that any departure from estab-
lished exclusive hiring hall procedures which results in
a denial of employment to an applicant falls within that
class of discrimination which inherently encourages
union membership, breaches the duty of fair representa-
tion owed to all hiring hall users, and violates Section
8(b)(1)(A) and (2), unless the union demonstrates that
its interference with employment was pursuant to a
valid union-security clause or was necessary to the ef-
fective performance of its representative function.
In his concurring opinion in Plumbers Local 392, supra, 252
NLRB at 418, Chairman Fanning said that:
[W]here referral under an exclusive hiring hall agree-
ment is conditioned upon clear and unambiguous stand-
ards set forth in that agreement, the refusal to refer an
employee who qualifies for referral under such stand-
ards, without more, suffices to establish, prima facie, a
violation of Section 8(b)(1)(A) and (2) of the Act.
Thus, under an exclusive hiring hall arrangement a
labor organization is under a duty to conform with and
apply lawful contractual standards in administering reg-
istry, preference, and referrals, and any departure there-
from resulting in a denial of employment to a member
falls within that class of discrimination which inher-
ently encourages union membership.
The Board has applied the principle that a union violates
Section 8(b)(1)(A) and (2) when it fails to refer an employee
or applicant for employment, in accordance with the terms
of an exclusive hiring hall referral system, to situations in
which a union refuses to honor a specific name request made
by an employer pursuant to a collective-bargaining agree-
ment allowing for such requests. In Painters Local 1555
(Alaska Constructors), 241 NLRB 741, 742 (1979), the
Board said:
The Board has consistently held that a union violates
Section 8(b)(1)(A) and 8(b)(2) when it discriminatorily
refuses to refer an employee or applicant for employ-
ment pursuant to the terms of an exclusive referral sys-
tem. In the instant case, it is clear that on July 20,
1977, ACI made a specific name request at Respond-
ent’s hiring hall for Strickland’s dispatch and that, pur-
suant to its collective-bargaining agreement with ACI,
Respondent was obligated to dispatch Strickland unless
its actions were necessary for the effective performance
of its functions as bargaining representative.
In that case the Board found that the union’s explanations for
refusing to refer the individual who had been requested by
name by the employer pursuant to the collective-bargaining
agreement were belated and changing and in fact were
pretextual, and that the union had discriminatorily refused to
dispatch the individual ‘‘for arbitrary and capricious reasons
in violation of Section 8(b)(1)(A) and (2) of the Act.’’ Paint-
ers Local 1555, supra, 241 NLRB at 743.
In the instant case, the Union, in operating an exclusive
hiring hall under its collective-bargaining agreement with the
Miami Opera Association, is required by the clear and unam-
biguous language in that agreement to honor the Opera Asso-
ciation’s requests for referral of specific named individuals,
if possible. In the context of the agreement, ‘‘possible’’ must
be given its usual meaning of something which can be done.
Nothing in the agreement suggests that the word ‘‘possible’’
as used in the agreement is a synonym for ‘‘permissible,’’
as in if permissible under the Union’s internal rules gov-
erning how it unilaterally chooses to operate the hiring hall.
Clearly, under the terms of the collective-bargaining agree-
ment if a specific named individual is ready, willing, and
available to work for the Opera Association and it is within
the Union’s ability to refer him, it must do so.
The evidence in this case unequivocally affirms that An-
drea Wilson was ready, willing, and available for referral for
employment on the electrical crew for the Opera Associa-
tion’s second and fifth operas of the 1990–1991 season. She
was registered with the hiring hall operated by the Union and
advised the Union of her willingness to be referred. The
Union had agreed in the collective-bargaining agreement that
referral would ‘‘in no way be based upon union membership,
rules or regulations.’’ The Union cannot take refuge behind
union rules and regulations which it unilaterally created to
escape its contractual obligations under the collective-bar-
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Respondent contends that the rules and regulations which were
established for the referral system operated by the Union under the
collective-bargaining agreement, in fact, were not rules or regula-
tions of the Union. I find that to be a specious argument. The refer-
ral system which the Union established was created by the Union,
approved by the Union’s membership, and operated on a day-to-day
basis by the Union’s business agent from the Union’s headquarters.
A substantial majority of the individuals who registered for referral
were union members. It had no separate existence apart from the
Union. What the Union and its members created, the Union and its
members could just as easily terminate. The referral system was an
alter ego of the Union in every respect. The weight of the evidence
firmly establishes that the rules and regulations of the referral system
which the Union operated were union rules and regulations.
16 During the hearing Respondent presented witness testimony to
the effect that the Union’s business agent did not dispatch Wilson
at the Opera Association’s by name request, in part, because she was
unqualified, or less qualified than others on the referral lists, for the
work. It is apparent from the record, however, that the Opera Asso-
ciation considered Wilson to be qualified, and nothing in the collec-
tive-bargaining agreement gives the Union the right to override the
Opera Association’s judgment on that point and superimpose its own
determination of who is or is not qualified. Accordingly, I find that
to the extent it may have done so in this case, the Union’s refusal
to refer Wilson on the ground that she was unqualified or less quali-
fied was discriminatory, arbitrary, and capricious, and violated Sec.
8(b)(1)(A) and (2) of the Act.
17 The failure of the Union to refer Wilson for the fifth opera of
the 1990–1991 season, in April 1991, was also established, but that
failure is not alleged as violation of the Act in the complaint.
18 I find it to be an unreasonable stretch of the evidence, and an
unnecessary one to the disposition of this case, to find that the
Union caused or attempted to cause the Opera Association to dis-
criminate against employees in violation of Sec. 8(a)(3). It was the
Opera Association’s choice whether or not it requested Andrea Wil-
son by name, and it can hardly be argued to have violated Sec.
8(a)(3) if for some reason beyond its control it was unable to obtain
her after requesting her.
gaining agreement.15 It clearly was possible for the Union to
refer her, as requested by the Opera Association. Its failure
to do so is a prima facie violation of Section 8(b)(1)(A) and
(2) of the Act.
Citing Teamsters Local 525 (Nelson Construction), 193
NLRB 724 (1971), and quoting from the Board’s opinion in
Iron Workers Local 229 (Bethlehem Steel), 183 NLRB 271
(1970), the Union asserts that a union does not violate the
Act ‘‘when it fails to refer an employee specifically re-
quested by an employer when the union acts pursuant to a
good faith, nondiscriminatory interpretation of a contractual
hiring hall provision.’’ Iron Workers Local 229, supra, how-
ever is factually distinguishable from the instant case. In that
case, it appears that the collective-bargaining agreement,
itself, required the union to maintain ‘‘A’’ and ‘‘B’’ lists and
to accord individuals on the ‘‘A’’ list priority in referral over
individuals on the ‘‘B’’ list. As previously noted, in the in-
stant case the collective-bargaining agreement is completely
silent as to how the Union is to run the referral system, other
than specifying that the Union must honor the Opera Asso-
ciation’s requests for referral of specific named individuals,
if possible, and that the ‘‘hiring arrangement shall be non-
discriminatory and referral or hiring of employees shall in no
way be based upon union membership, rules or regulations.’’
There is nothing in the collective-bargaining agreement con-
cerning according preference to people on one list over peo-
ple on another list. Thus, in the instant case there is no issue
concerning ‘‘a good faith, non-discriminatory interpretation
of a contractual hiring hall provision.’’
The Union in the instant case principally relies upon the
explanation that it was unable to refer Andrea Wilson at the
Opera Association’s specific by name request for the second
and fifth operas of the 1991–1992 season, because it was re-
quired under its internal rules (that is, its unilaterally adopted
‘‘Hiring and Referral system Rules and Regulations’’ gov-
erning its referral system) to first dispatch other employees
on its ‘‘A’’ and ‘‘B’’ lists before it could dispatch someone
like Wilson who was on the ‘‘C’’ list.16 The Union’s refusal
contravened the clear and unambiguous language of the col-
lective-bargaining agreement requiring the Union to honor
the Opera Association’s requests for specific named individ-
uals. The evidence unequivocally shows that Andrea Wilson
was registered with the Union’s referral system, and that she
was ready, willing, and available for referral to the Opera
Association. It was clearly possible for the Union to dispatch
her, and under the terms of the collective-bargaining agree-
ment, there is no other exception to the Union’s obligation
to honor the Opera Association’s requests for specific named
individuals.
The Union has not demonstrated that its interference with
employment was pursuant to a valid union-security clause or
was necessary to the effective performance of its representa-
tive function. Neither has it shown that the clear language of
the collective-bargaining agreement had been modified by
the parties’ past practice. The clause requiring the Union to
honor the Opera Association’s request for specific named in-
dividuals, if possible, was not a ‘‘use it or lose it’’ propo-
sition for the Opera Association. In any event, while the
Opera Association may not have chosen to frequently request
specific individuals over the years it obtained stagehands
through the Union’s hiring hall (that took place under a num-
ber of collective-bargaining agreements preceding the collec-
tive-bargaining agreement in effect at the time of the inci-
dents giving rise to this case which was actually effective for
only a 2-year period, January 1, 1989, through December 31,
1991), it did so from time to time, and when it did, the
Union honored the requests, except when the requested indi-
viduals were unavailable because they were committed to
other shows.
Therefore, I find that the Union’s deviation from estab-
lished hiring hall procedures by its refusal to refer or dis-
patch Andrea Wilson for the second opera17 of the Greater
Miami Opera Association’s 1990–1991 season was discrimi-
natory, inherently encouraged union membership, and
breached the Union’s duty of fair representation owed to all
hiring hall users, in violation of Section 8(b)(1)(A) and (2)
of the Act. I further find that the Union breached its duty
to represent job applicants fairly because it did not give the
users of its referral system timely notice of this significant
change in referral procedures, in violation of Section
8(b)(1)(A). Cell-Crete Corp., supra; Operating Engineers
Local 406, supra.18
IV.
A hotly contested issue arose during the hearing of this
case concerning the General Counsel’s contention that there
was personal animosity between Business Agent Daniel
773STAGE EMPLOYEES LOCAL 545 IATSE (GREATER MIAMI OPERA ASSN.)
19 In accordance with the Board’s decision in New Horizons for
the Retarded, supra, interest on and after January 1, 1987, shall be
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendments to 26 U.S.C. § 622.
20 If no exceptions are filed as provided by Sec. 102.446 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
Bonfiglio’s father, Sal Bonfiglio, who was the union steward
for many years for the operas put on by the Greater Miami
Opera Association, and Andrea Wilson, and further, there
was animosity by Sal Bonfiglio towards the Opera Associa-
tion, itself, for what he considered to be age discrimination.
The Union strongly objected to the testimony on these issues,
contending that such evidence is irrelevant, and denied that
animosity existed, let alone was a factor in its actions. The
relevance of this animosity is argued to be the possibility that
it may tend to establish that Business Agent Bonfiglio’s ac-
tions concerning Andrea Wilson and the broader issue of the
Union’s duty to honor the Opera Association’s requests for
referral of specific individuals may, in fact, have been pre-
mised on his father’s animosity towards Andrea Wilson and
the Opera Association.
I find it unnecessary to reach the issue of animosity, be-
cause I find that this issue is irrelevant to the determination
of whether or not the Union’s actions violated the Act, as al-
leged in the complaint. My finding that the Union violated
the Act even if it took the disputed actions because it be-
lieved that it had a contractual right to do so, as it claims,
makes it unnecessary to consider whether the Union was ac-
tually motivated by some other, less defensible reasons,
which, if they could be established, would be patently dis-
criminatory. In view of this finding, I make no findings con-
cerning the issue of animosity.
CONCLUSIONS OF LAW
1. Respondent Miami Stage Employees Union, Local 545
is a labor organization within the meaning of Section 2(5) of
the Act.
2. The Employer, the Greater Miami Opera Association, is
an employer engaged in commerce within the meaning of
Section 2(2),(6) and (7) of the Act.
3. At all times material herein, the Respondent and the
Employer were parties to a collective-bargaining agreement,
which provides that the Respondent shall be the sole and ex-
clusive source of referrals for employment by the Employer
for performance of stagehand work, as more particularly de-
fined in article A of the the collective-bargaining agreement.
4. Between on or about January 2 and January 9, 1991,
Respondent violated Section 8(b)(1)(A) and (2) by failing
and refusing to refer Andrea Wilson, the Charging Party, to
the Employer for work on an operatic stage production when
she was requested by the Employer by name, and by failing
to timely inform the users of its hiring hall referral system
of a significant change in its referral system.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union engaged in cer-
tain unfair labor practices, I recommend that the Respondent
be ordered to cease and desist and to take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent unlawfully caused Andrea
Wilson to be denied referral work by the Greater Miami
Opera Association from on and after January 9, 1991, Re-
spondent shall be ordered to make her whole for any loss of
earning suffered as a result of the discrimination against her
by payment to her of a sum of money equal to that which
she normally would have earned from the date of the dis-
crimination until completion of the scheduled performances
of the second opera of the 1990–1991 season produced by
the Greater Miami Opera Association, less net earnings dur-
ing such period. Loss of earnings shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1978).19
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Miami Stage Employees Union, Local
545, International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United States
and Canada, Miami, Florida, AFL–CIO, its officers, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Operating an exclusive hiring hall and referral system
for referral of employees to the Opera Guild of Greater
Miami, Inc., d/b/a the Greater Miami Opera Association, in
a discriminatory or arbitrary manner, or in any way based
upon union membership, rules or regulations, or in any other
manner not in accordance with the terms and conditions of
its collective-bargaining agreement with the Greater Miami
Opera Association.
(b) Failing or refusing to honor requests by the Greater
Miami Opera Association for referral of specific named indi-
viduals, if possible.
(c) Failing to timely and fully inform all users of the hir-
ing hall and referral system of significant changes in the op-
erating procedures and rules of the said hiring hall and refer-
ral system.
(d) In any like or related manner restraining or coercing
employees, members, job applicants, or registrants in the ex-
ercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Andrea Wilson whole for any loss of earnings
suffered as a result of the discrimination against her, occa-
sioned by refusing to refer her to the Greater Miami Opera
Association when she was specifically requested by name, by
payment to her of a sum of money equal to that which she
normally would have earned from the date of the discrimina-
tion, on or about January 9, 1991, until completion of the
scheduled performances of the second opera of the 1990–
1991 season produced by the Greater Miami Opera Associa-
tion, plus interest, less net earnings during such period, in the
manner set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all hiring hall
records, dispatch lists, referral lists, and other documents
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 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.’’
necessary to compute the amount of backpay due to Andrea
Wilson under the terms of this Order.
(c) Post at its business office in Miami, Florida, and its
meeting places for members, registrants, or applicants for re-
ferral, copies of the attached notice, marked ‘‘Appendix.’’21
Copies of the notice, on forms provided by the Regional Di-
rector of Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to members, registrants, and applicants for employment are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.