Int'l Brotherhood of Teamsters, Local 25

National Labor Relations Board - Administrative Judge Opinions

Jun 7, 2010

01-CB-010882 (N.L.R.B. Jun. 7, 2010)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 25
and Case 1-CB-10882
DENISE AVALLON, An Individual
and
Parties to Contract1
Joe Griffin, Esq., and Karen E. Hickey, Esq.,
for the General Counsel.
Michael A. Feinberg, Esq., and
Renee J. Bushey, Esq., for the Respondent.
DECISION
Statement of the Case
MARK D. RUBIN, Administrative Law Judge. This case was tried in Boston,
Massachusetts, on January 26, 27, and 28, 2010, based on a charge and an amended charge
filed by Denise Avallon (Charging Party or Avallon) on April 29, 2008 (original) and March 9,
2009 (amended) against International Brotherhood of Teamsters, Local 25 (Union or
Respondent).
The Regional Director’s complaint and notice of hearing, dated July 31, 2009, alleges
that in the course of operating an exclusive hiring hall, the Union violated Section 8(b)(1)(A) of
the Act by making referrals of employees to employers without regard to published rules
governing the referral process, dated December 17, 2007, and without maintaining or making
available to employees records regarding the operations of its referral system. More specifically
in this regard, the complaint alleges that the Union failed to consistently inform its members of
unwritten criteria used by it for referrals, failed to refer individuals from the Union’s casual
referral list unless they were known to the Union’s transportation coordinators, failed to maintain
records of the operation of the referral system, failed to uniformly “limit the work of casual
drivers known to, and liked by, its transportation coordinators,” and failed and refused to refer

1 The Parties to Contract alleged in the complaint are: New Line Productions/Avery Pix, Inc.
(New Line); Surrogates Productions, Inc. (Disney); Proposal Productions, Inc. (Disney);
Columbia TriStar-Sony (Columbia); Utopia Planitia Productions (Utopia); Fox2000/Fox
Entertainment Group (Fox); Edge of Darkness LLC (Edge); Donny McKay LLC (Donny); MFX
USA LLC (MFX); Atlantic Film Production (Atlantic); and Summit Entertainment (Summit).
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the Charging Party for employment.2
The Respondent denies that it violated the Act as alleged in the complaint. More
specifically, the Respondent asserts that it followed its referral rules, that the rules were
reasonably calculated to allow it to efficiently operate its hiring hall, and that the failure of the
Charging Party to be referred to a job was a result either of the normal nondiscriminatory
operation of the hiring hall or because of Avallon’s asserted poor performance and work-related
incidents when she had been referred to work in earlier years.
At the trial, the parties were afforded a full opportunity to examine witnesses, to adduce
competent, relevant, and material evidence, to argue their positions orally, and to file post-trial
briefs. Based on the entire record, including my observation of witness demeanor, and after
considering the parties’ briefs, I make the following
Findings of Fact
I. Jurisdiction
The complaint pled, and the answer admits, that each of the Parties to Contract are
corporations engaged in the production of motion pictures, and that each, in the conduct of said
business operations, purchased and received goods or purchased services within the 12-month
period ending December 31, 2008, valued in excess of $50,000, at locations within the
Commonwealth of Massachusetts, directly from points outside the Commonwealth of
Massachusetts. I find, and the Respondent admits in its answer, that the Parties to Contract, at
all material times, have been engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. Labor Organization
I find, and the answer admits, that the Respondent, International Brotherhood of
Teamsters, Local 25, has been at all material times herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
Overview of the Union’s Referral Rules and Procedures
The complaint allegations arise from the Union’s operation of an exclusive hiring hall in
respect to providing drivers for various entities engaged in producing motion pictures, television
shows, and commercials within the jurisdiction of the Union, including all of New England,
except Connecticut and Rhode Island. The Union, by its president, Sean O’Brien (O’Brien), and
its secretary-treasurer, Mark Harrington, negotiates collective-bargaining agreements with
various production companies, including the Parties to Contract, generally covering a particular
production.
The Union’s rules controlling the referral procedure (referral rules) are dated December

2 During the course of the hearing, counsel for the General Counsel stipulated that the
General Counsel did not assert or maintain that any of the Union’s actions alleged in the
complaint were caused by, or related to, any hostility the Union may have maintained against
members of Avallon’s family and more specifically, against Avallon’s stepfather, Jimmy Flynn,
formerly an official of the Union.
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16, 2007, and provide for both a regular employee list (seniority list) and a casual employee list
(casual list). Seniority list drivers are listed in order of seniority, while casual drivers are listed in
the order in which they were placed on the list, although it is not required that they be referred in
that order.3 As discussed infra, drivers are chosen from the casual list only after the seniority
list has been exhausted.
The referral rules set forth the following requirements for inclusion on either list: “1.
Submit an accurate resume for distribution by Local 25 to potential employers. Such resume
must contain the applicant’s name, current residence address, telephone/pager numbers, job
history, criminal history, if any, authorization for CORI checks and current certification and
licenses; 2. Pay Local 25’s dues or service fee each month; 3. Agree, in writing, to abide by
the Teamsters Local 25 referral rules as they may be amended from time to time; 4. Not be
employed by an employer on a full-time and regular basis.”
The referral rules state that the seniority list “shall consist of all eligible and qualified
individuals who have a demonstrable record of relying on employment [in] the motion picture
and television production industries,” and mandate the following additional qualifications for
inclusion on the seniority list: “1. Possess a current commercial driver’s license (CDL); 2. Are
available for referral to employment in the industry; 3. Have a current DOT medical certificate,
and have passed a recent drug screen.” The rules further provide that the casual list drivers
shall consist of all other eligible and qualified individuals who meet the same requirements.4
Harrington oversees the administration of the driver resumes and driver information on the
casual list and the Union does not deny anyone the right to be placed on the casual list, nor
screen applicants.5
The referral procedure is initiated by the Union’s negotiation of a collective-bargaining
agreement containing an exclusive hiring hall provision with a production company intending to
film a production in the Union’s geographic area of jurisdiction. After the contract is executed,
either O’Brien or Harrington appoints a transportation coordinator (TC) to handle the hire/referral
of drivers to the production and assignment of the drivers to specific vehicles.6 The TCs decide
which drivers to call from the lists, utilizing the seniority list first and then the casual list, if the
seniority list has been exhausted. According to Harrington, the Union tries to have TCs keep
records on which drivers they call or don’t call on the casual list, but does not mandate that they
do such. He testified, “We try. Some guys are more proficient with computers, so . . . we
encourage them to do that . . . they have to have some discretion and I can’t oversee all that.”
Article V of the Union’s referral rules, the “Referral Procedures” “For Casual Employees,”
vests ultimate authority in the employer to decide which drivers to select from the Union’s casual
list, as follows: “The employer has the ultimate authority to decide who to hire from the list and
Local 25 does not have any right to insist that the employer hire any particular individual.” Yet,
the testimony of various Union TCs, detailed below, establishes that on virtually all occasions,
the Union-appointed TCs make the effective decision as to which individuals will be called to
work from the Union’s casual list. Article V also mandates that the Union “shall maintain written
records concerning all aspects of its referral service.”

3 Until the most recent list, which is alphabetized.
4 O’Brien, however, testified that, in fact, the Union did not require possession of a CDL for
inclusion on the casual list.
5 Credited testimony of Harrington.
6 The rules explicitly grant to the production company (employer) the ultimate right to
interview and select for employment drivers from the seniority list first, and then from the casual
list upon the exhaustion of the seniority list.
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While the TCs choose drivers from the casual list, both Harrington and O’Brien
sometimes have input on their selections. Thus, Harrington testified that TCs sometimes
consult with him when looking for casual list drivers qualified to drive specialized equipment.
And O’Brien testified as to two occasions in which he assisted drivers in gaining employment on
a movie production. On one occasion, he called a TC to secure employment for an out-of-work
Union member with no health insurance and a severe medical condition. On another occasion,
he called TC O’Brien, Sr., as to a Union member who had been fired during an organizing drive,
which call resulted in the driver being hired on a production.
Denise Avallon
The Charging Party, Denise Avallon, is a member of the Union, and has been since
1992. As such, she was employed by United Parcel Service until 1997. She was first employed
in the movie industry in 1997 as a production assistant on the movie, “In Dreams.”7 Eventually,
her stepfather, Jimmy Flynn, a TC for the Union on the movie, referred her to a driver’s job on
the movie, and she was hired. Avallon then worked, by referral, as a driver on a number of
movies until 2003. She drove a van while working on various movies, and she possessed a
non-CDL driver’s license.
Sometime in 2003, Avallon took a job outside the movie industry at a university in Rhode
Island. Avallon testified that at the time she believed she was removed from the Union’s
seniority list because she failed in her attempts to obtain a commercial driver’s license (CDL).
On February 6, 2008, Avallon spoke to Harrington by telephone about her interest in
returning to work driving in the movie industry.8 During the call, Harrington told Avallon that she
did not need to possess a CDL to work in the movies.9 Subsequently, about March 6, Avallon
filed a grievance or appeal to the Union, asserting that she had provided the Union with her
resume, as requested by Harrington, but that the Union has “refused me work by not putting my
name on the regular [seniority] employee list or the casual list.”
By letter dated 3 days later, O’Brien informed Avallon that the Union was in receipt of her
March 6 grievance, and of her resume, and had placed her on the casual list at number 145.
O’Brien also informed Avallon in the letter, that her name had been removed from the seniority
list on June 24, 2005 “by former Field Representative Lou DiGiampaolo,” that the Union had no
record of any grievance having been filed as to this action, and that any grievance now filed as
to such would be untimely. Thus, she was not being placed on the seniority list.
Avallon filed an appeal, dated March 19, 2008, of the Union’s decision keeping her off
the seniority list. In her appeal, Avallon asserted that she had no knowledge that she had been
removed from the seniority list in June 2005, and that she believed she was removed from the
list in August 2003, because she failed to provide the Union with a copy of her CDL, because

7 Avallon’s stepfather, Jimmy Flynn, called her and told her there was such a job available.
At the time, Flynn was a transportation coordinator for the Union on the production.
8 Harrington testified she called him, while Avallon testified to the opposite. Who originated
the phone call is not germane to the issues here.
9 As noted above, Harrington testified that possession of a CDL was not mandatory for
inclusion on the casual list.
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she had no CDL. She further asserts in the letter that she understood possession of a CDL was
no longer necessary for employment in the movie industry and that she should be restored to
the seniority list.10
In a letter from O’Brien to Avallon dated April 24, 2008, the Union informed her that the
Union’s Executive Board met on April 18 to consider her appeal of being denied placement on
the seniority list. The letter continued, “Your appeal has been denied. However, as stated to
you in our letter of 3/11/08, your name has been placed on the Casual Referral List. The
decision of the Executive Board is final and binding.” Also, in a phone conversation on April 24,
Harrington told Avallon that her appeal had been denied by Executive Board, that he didn’t
choose who works [on the movies], but the TCs, captains, and production companies chose
who works, and that he didn’t need any van drivers at that time.11

On direct examination, counsel for the General Counsel asked O’Brien whether he had
asked any of the TCs to refer or hire Avallon for a movie job. O’Brien answered that during April
or May, 2008, “I . . . had a conversation with those guys. And . . . obviously one of the reasons
we’re here is they didn’t think she was a good candidate.” O’Brien testified that the TCs
complained to him about Avallon’s prior work performance in movies, including not being close
to her van when she was supposed to be, refusing a job assignment involving driving to New
York, smoking in her van, and stalking actor Kevin Costner. Harrington testified that the Union
never investigated, held a hearing as to, nor informed Avallon of, these allegations. Further the
Union maintained no records of any of these asserted complaints against Avallon or any written
complaints about her work performance.12 Avallon has not been referred by the Union to work
in the movie industry, since her February 6, 2008, conversation with Harrington or her
placement by the Union on its casual list.
Transportation Coordinator (TC) Witnesses
The bulk of the witnesses at the hearing consisted of certain Union TCs testifying as to
how they go about selecting drivers from the seniority and casual lists to work on a particular
production. In this regard, Kevin Kelleher, James Donahue, William O’Brien III (O’Brien III),
William O’Brien Senior (O’Brien Sr.), and Robert Carnes were called as witnesses by the
General Counsel under Section 611(c) of the Federal Rules, and Robert Wright by the Union,
and testified as to how they chose drivers from the lists or otherwise.13 Each of these witnesses
appears on the seniority list, and has been appointed by the Union as TC on various
productions. Each testified as to how they went about calling drivers for particular productions
on which they served as a TC, and all except Kelleher testified as to their reasons for not
choosing Avallon to work on a production and past experiences working with her on certain
productions or, in some cases, what they had been told by others as to asserted work incidents
involving Avallon. Synopses of their respective testimony follow.

10 Avallon admitted, during her testimony, that she had failed the CDL examination at least
once, and maybe twice.
11 Credited, and undisputed testimony of Avallon.
12 Credited testimony of Harrington.
13 The complaint pleaded, the answer admitted, and I find that all of these TCs, and O’Brien
and Harrington, have been agents of the Respondent within the meaning of Section 2(13) of the
Act.
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Kevin Kelleher
Kelleher has been a Union member since about 1994, is included on the seniority list,
and was chosen by O’Brien to be the Union’s TC for one movie, “Bride Wars,” which lasted 2
months beginning in February 2008. The Union also designated Kelleher as the TC for the
television production “Wheel of Fortune,” in 2009. Kelleher testified that he assumed that
nobody on the seniority list would be available for the movie because of the volume of ongoing
movie work at the time. He received the casual list from the Union in February, and was told by
O’Brien “you just follow the list as it runs down, and you call in that order.”
About April 1, 2008, Kelleher faxed a list of the drivers working on “Bride Wars” to the
Union, in order “to make sure that everybody was a member in good standing.” Even though he
was told to call in order down the list, when Kelleher actually began to call drivers from the
casual list, he began to call names on the second page rather than the first14 because “I did not
believe that I would be able to start at the top because a lot of these people were working. As I
started to call, maybe at the second sheet, every one I called was either working or had been
called or scheduled to work. So I basically just kept going until I found someone that was not
called.”
When asked by counsel for the Union, what qualifications he was looking for when
calling people from the casual list, Kelleher testified that he would first look for a CDL “A”
license. He testified that after license type, he would look for experience driving particular types
of vehicles used on the production.
In addition to using the four page casual list, Kelleher referred individuals for work on
“Bride Wars” based on Harrington telling him that these individuals were in the Union hall
looking for work or that they were “oilmen” who were out of work. These drivers included Robert
Sacco (no. 144 out of 152 on the casual list), who operated a van on “Bride Wars,” John Murphy
(no. 24 on the casual list), and Douglas Burks (no. 150 on the casual list). As to Avallon, no.
12815 on page four of the casual list, Kelleher had no specific recollection of calling her, but
believes he did, because he believes he called all the names on page four. Kelleher testified
that if he didn’t get an answer on his first call to a person on the casual list, he immediately
moved to the next name. When Kelleher exhausted the list, he spoke to Harrington, who told
Kelleher that there were “oilmen,” who had been laid off and were available for work.
Kelleher also referred drivers from a list he kept of “day players,” who were drivers who
made themselves available to be called at the last minute to “fill in.”16 Day players did not have
a full-time job elsewhere, but might have other part-time work. Kelleher referred/hired day
players Bill Owerka, Jim Bilack, and Mark Cavanaugh for the “Bride Wars” production, none of
whom are contained on the casual list. Kelleher also hired/referred other drivers to “Bride
Wars,” including the following drivers, none of whom appeared on the casual list: Chad White,
Pat Friel, and Billy Owerka. Kelleher also referred/hired the following drivers who appear on the

14 He also testified that as he went down the list, if he called somebody who was already
working, he assumed that everybody above on the list was also already working. Further, he
believed his first call was to no. 103 on the list, Greg Harris. Harris apparently was already
working as he did not work on “Bride Wars.”
15 For reasons not explained at trial, Avallon also appeared as no. 145 on page 4 of the
casual list. Kelleher testified that at the time he made the calls from the casual list, he didn’t
recognize that Avallon appeared twice on the list.
16 Kelleher’s day player list was a personal list kept by him, rather than an official list kept by
the Union.
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casual list: Frederick Donehy, Jr. (no. 132), Tom Goggin (no. 137), and Robert Turner (no.
131). Sacco and White drove vans on Bride Wars, which require non-CDL “D” licenses. White
alternated between driving a van, and driving actress Candice Bergen, one of the movie’s stars.
James Donahue
Donahue, a member of the Union since the early 1970’s, and included on the seniority
list at no.13, was appointed by O’Brien as the TC for the movie production “This Side of the
Truth,” which lasted from about March 24 through May 14, 2008. He testified that his duties as
TC included supplying drivers for the production and assigning drivers to particular vehicles, that
he was familiar with the Union’s referral rules, and that 99 percent of the time, he made the
hiring/referral decisions on his own.
Donahue testified that, he would call drivers from the seniority list first, in order of their
numbers on the list, assuming seniority list drivers were available, then go to the casual list.
When calling from the casual list, he looks for names that he is familiar with, that he has worked
with in the past, and had done a “good job.” He gives preference to drivers with a CDL “A”
license, because an A license allows drivers to drive any vehicle on the production from tractor-
trailers to vans, whereas a non-CDL “C” or “D” license would restrict drivers to driving vans.
Sometimes, Donahue calls other TCs to find out which drivers they are using and, hence, who
wouldn’t be available for him to call.
Donahue testified that he did not call Avallon when seeking drivers for productions in
which he was a TC during 2008 and 2009. He testified that he personally knew her, that he
worked with her during 1997 on the movie “In Dreams,” on the 1998 movie “Message in a
Bottle,” and on What’s the Worst That Can Happen,” and that based on his opinion of her
behavior on those jobs, he did not want to work with her, “ever again.”
Specifically, Donahue complained that during “In Dreams,” Avallon asked him what he
spoke about with the film’s director, when driving him. Donahue responded to her that he only
spoke to the director if the director spoke to him first, and otherwise just drove. According to
Donahue, he advised Avallon to do the same if she was in that position. Donahue also
complained that during “In Dreams,” Avallon spent time roaming around rather than waiting by
her van, and that other people on the set asked him where she was because she was either not
at her van or not answering the radio.
Donahue testified that while working with Avallon on “Message in a Bottle,” actor Kevin
Costner’s driver, “Mary,” asked Donahue if there was any way he could keep Avallon away from
Costner’s trailer, and told him that Avallon “was spending a lot of time around the trailer, looking
in the windows and making everybody uncomfortable.” But Avallon continued to work on the
movie.
Finally, Donahue testified that while working with her on “What’s the Worst That Can
Happen,” he was told by TC Robert Wright that while driving a van carrying the production’s
wardrobe employees, Avallon “ducked” her head down while driving under an overpass, and
that somebody else in the van had to grab the steering wheel. Donahue testified that he was
also told by Wright that on another occasion during the production, Avallon drove a costume
designer to a store, but failed to pickup the designer, forcing the designer to take a taxi back to
the set. Donahue was told about, but witnessed neither of, these asserted incidents.17

17 Respondent’s counsel stipulated that Donahue’s testimony as to what he was told by
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William O’Brien III
O’Brien, III, a member of the Union, has been working in the movie industry since 1991,
and is no. 6 on the seniority list. O’Brien, III was appointed by O’Brien as the TC for the movie
“Mall Cop,” in February 2008,18 and began calling drivers to work on the movie sometime in
mid-February. Work on the movie continued until the end of May.
On “Mall Cop,” O’Brien, III followed his usual practice of first calling drivers from the
seniority list, and then the casual list. O’Brien, III testified that he prefers drivers with CDL “A” or
“B” licenses, and then “I look for somebody that I might have worked with before, and if they did
a good job.” He further explained, “Well somebody that I worked with on a job, and I seen them
driving a truck and they did a good job, there was no accidents and they were always on time.”
O’Brien, III did not retain the casual list he used after the completion of the movie,19 but
that after calling all the drivers contained on the casual list, he still needed more drivers.20 He
contacted the Union and requested the names of drivers with a CDL “A” license, because he
needed drivers to drive trailers. Retired Union members John Chambers, John Crehan, and
Robert Ricciardi worked on the movie, but Crehan and Ricciardi are not included on any of the
February casual lists nor do their names appear on the seniority list. O’Brien, III testified that
he called Chambers, Crehan, and Ricciardi to work on “Mall Cop,” after he called drivers from
the casual list.
O’Brien, III was appointed by either Harrington or O’Brien in July 2008, as TC on the
movie “Edge of Darkness.”21 O’Brien, III began calling drivers from the seniority list, and then
utilized the July 29 casual list, which list he did not retain after completion of the movie. He also
called other working TCs to ascertain which drivers were available. O’Brien, III testified that he
went through the entire casual list of 257 drivers before calling drivers from other locals,22 and
that 3 drivers from other locals worked on the movie, driving specialized vehicles which were
rented from vendors.

“Mary” and by Wright is offered not for the truth of the matter asserted, but to demonstrate the
basis upon which the TC assertedly did not refer Avallon. Based on said stipulation, and for
said reason, I admitted said testimony over the General Counsel’s hearsay objection. The
testimony would be obvious hearsay if offered for the truth of the matter asserted.
18 O’Brien was elected president of the Union in 2006. O’Brien, III worked continuously as a
driver in movies from 1996 to 2008, when O’Brien appointed him as TC for “Mall Cop.” O’Brien,
III had previously been appointed a TC in 1995.
19 O’Brien III remembered that he acquired the casual list from the Union, but didn’t
remember the date of the list, other than it was in February. The Union published five different
casual lists on various dates in February.
20 O’Brien, III testified that he considers the casual list basically exhausted when all the CDL
“A” and “B” drivers are gone.
21 O’Brien III appears in the transcript as having testified to “2009.” Either he or the
transcript is incorrect.
22 In their brief, counsels for the General Counsel assert that O’Brien III “exhausted the
casual list for drivers with A and B licenses, but not for the non-CDL drivers.” In fact, he testified
that he exhausted the list for “all drivers.”
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O’Brien, III testified that among drivers he hired/referred for “Edge of Darkness” from the
casual list, he called Steve Coleman to drive a non-CDL van because he was “familiar with his
work” from working together on “Mall Cop,” called John McGonigle, who possessed a non-CDL
“D” license to drive a van because he was familiar with his “work ethic” from working together on
“Mall Cop,” called Dan Redmond, who possessed a non-CDL “C” or “D” license to drive a van
because he knew him from working together before, and called Chris Johnson because of his
knowledge of his “work ethic,” from working together on “Mall Cop.” About 36 drivers were
hired/referred by O’Brien, III to work on “Edge of Darkness.”
The Union also named O’Brien, III as TC for the movie “Wichita,” which was filmed
beginning about the end of August 2009 until the first week of December. O’Brien, III testified
that he used the seniority list and then the casual list to hire/refer all the drivers for this movie,
that he looked for CDL licenses when choosing drivers, that on a typical production day about
58 drivers were used by the production, and that he didn’t keep records of calls he made to
drivers to work on the movie.
As to Avallon, O’Brien, III testified that he was acquainted with her, had worked as a
driver on movies with her, and did not call her to work on movies on which he was a TC since
January 2008, based on what he asserted was his personal knowledge of her prior work
performance. He testified as to incidents on various movies that Avallon worked on.
O’Brien, III testified that in 1997 he worked on the movie “In Dreams” as a driver, that
Avallon also worked as a van driver on the movie, that she was called/hired by movie TC Jimmy
Flynn, Avallon’s stepfather, and that Robert Martini was the Union’s captain on the movie.
O’Brien, III further testified that during the production, Martini told Avallon that he was assigning
her to go to New York the next day for a pickup, that Avallon was upset over the assignment
and left, that shortly thereafter Flynn appeared on the set, that O’Brien, III then overheard an
argument between Flynn and Martini that involved swearing, and that Flynn took Martini’s radio
from him and told Martini that he, Flynn, was the boss and would assign who goes where.
O’Brien, III testified that he assumed another driver made the trip to New York because some
equipment had to be picked up, and Avallon did not make the trip.
He further testified as to two incidents that occurred in 1998 on the movie “Message in a
Bottle,” during which he and Avallon worked as drivers, and O’Brien Sr. was the TC. According
to O’Brien, III, he observed actor Kevin Costner playing catch with his son at the production’s
base camp, and saw Avallon walk over to the two of them and stand next to Costner.
According to O’Brien, III, Costner, thereupon, left the area, and walked back to his trailer with
his son. O’Brien, III testified that he then observed security guards escorting Avallon away from
the area. However, according to O’Brien, III, Avallon continued to work on the production.
O’Brien, III also testified as to other incidents during the “Message in a Bottle”
production. He said he observed, from a distance of about 50–75 feet, Avallon back her
assigned van into a pole in a restaurant parking lot, and then move the van to the back of the
lot. He also testified that he observed Avallon smoking in her van, a violation of the rules, and
burning incense in her van. He said he heard passengers complain about the incense.
He also testified to working with Avallon on the 2002 movie production of “What’s the
Worst That Can Happen?” According to O’Brien, III, a passenger in a van he was driving, told
him that while he was a passenger in a van driven by Avallon, and that while driving under a
bridge, Avallon ducked down and the passenger had to grab the steering wheel. O’Brien, III
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said that the passenger told him he would never get in a van with Avallon again.23 Finally,
O’Brien, III testified that he doesn’t dislike Avallon, but considers her an unsafe driver based on
backing her van into a pole in the restaurant parking lot, and riding in a van with her.24
William O’Brien Sr.
O’Brien, Sr. is a member of the Union, has been working in the movie industry since
1963, has been the shop steward of the Union’s movie division for about 5 years, and is no. 1
on the Union’s seniority list. O’Brien Sr. was appointed by O’Brien as the TC for various movie
and television productions in 2008 and 2009.
O’Brien, Sr. testified that when acting as a TC on a production, he, exclusively, picks out
the drivers that work on the project25 and assigns vehicles to them, and that in picking drivers
he first utilizes the seniority list, starting at the top of the list and going down,26 and then goes to
the casual list. In choosing from the casual list, O’Brien Sr. testified that he first looks at the
driver’s class of license, preferring the CDL “A” or “B” classes to the non-CDL “C” or “D” classes,
because the drivers with CDL licenses are permitted to drive most vehicles on the production,
while the non-CDL licensees are limited to vans. After considering the class of license, O’Brien,
Sr. looks to whether he has previously worked with the driver and, thus, is in a position to
evaluate how well they perform their work, or whether another TC has informed O’Brien, Sr.
about the driver’s work on a prior project.27
As the TC for the movie production “Ghosts of Girlfriends Past,” which lasted from
January to May 2008, O’Brien, Sr. first utilized the seniority list to hire/refer drivers, and then the
casual list dated February 11, 2008. The Union’s “call sheet” for the day of May 6, 2008, one of
the days during the movie’s production, discloses a total of 29 drivers referred by the Union,
working on the production. In answer to counsel for the General Counsel’s questions, O’Brien,
Sr. testified that he knew the following drivers named on the call sheet from previously working
with them on other productions: Steve McQuire, Dan Anderson, William Coyman, and Keith
Leahy. O’Brien, Sr. also testified that driver Mario Sanchez, whose name appears on call sheet,
and who possessed an “A” license, did not appear on either the seniority list or the casual list
and, hence, he obtained his name from the “Union hall.”

23 Testimony admitted over the General Counsel’s hearsay objection. Said testimony is
considered not for the truth of the matter asserted, but as an asserted basis for why O’Brien, Sr.
did not refer Avallon.
24 Counsel for the General Counsel, on cross-examination, challenged O’Brien III’s
testimony as to riding in a van with Avallon on the movie “In Dreams,” or perhaps another
movie, asserting that it was not mentioned in his investigatory affidavit. Without having the
affidavit to review and being able to analyze the context of the questions asked during the
course of the affidavit, I am unable to say that the absence of mention in the affidavit leads to a
doubt as to the credibility of O’Brien III’s testimony as to riding with Avallon. While O’Brien III’s
demeanor on the witness stand demonstrated he was unhappy with having to testify in court, he
also appeared willing to entertain questions of all counsel, and to answer in a, generally,
nonargumentative fashion that gave the appearance of credibility.
25 O’Brien testified that although the production companies have the right to interview
prospective drivers, they never have.
26 The names on the seniority list are in order of seniority.
27 In answer to counsel for the Union’s question, O’Brien, Sr. testified that it makes no
difference to him whether or not he “knows someone.”
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Following “Ghosts of Girlfriends Past,” O’Brien, Sr. was appointed in May 2008, as TC
for the movie production “Surrogates,” which lasted until about late August or early September.
As “Surrogates” had already begun production when O’Brien Sr. joined the crew, O’Brien, Sr.
testified that much of the hiring already had been performed by the “California coordinator.”
When asked which casual list the “California coordinator” had used, O’Brien, Sr. testified, “I
believe he may have gotten one from the Local. I don’t know.” O’Brien, Sr. testified that as to
drivers that he hired/referred on “Surrogates,” he followed the same basic hiring/calling
procedures he had utilized in “Ghosts of Girlfriends Past,”28 but also testified that he hired some
other drivers put out of work by the closure of their employer, a trucking company.
Immediately following “Surrogates,” O’Brien, Sr. was appointed TC for “Knowing,” a
production which lasted about 3 or 4 days. O’Brien, Sr. hired/referred 8 drivers to this
production, all from the casual list.29 Among the 8 drivers, Paul Moran, Michael Indelicato,
Charles Cronk,30 and Keith Leahy had worked for O’Brien in the past on productions on which
O’Brien, Sr. was a TC.31
In October 2008, O’Brien, Sr. was appointed TC for the television production, “Irish War,”
which lasted about 3 weeks. O’Brien, Sr. hired/referred about 18 drivers for this production,
using both the seniority and casual lists. Neither O’Brien, Sr., nor the Union, kept any records of
drivers called for, or referred to, “Irish War.” O’Brien, Sr. testified that for this production he
used the casual list dated July 29, 2008.
In February 2009, O’Brien, Sr. was appointed TC for the reality television production,
“The Phone.” Neither O’Brien, Sr. nor the Union kept records of which drivers O’Brien, Sr.
hired/referred for this production.32
In March 2009, O’Brien, Sr. was appointed TC for the movie production, “The Lake
House” a/k/a “Grown Ups” (“Grown Ups”), which was in production from around March 17,
2009, through about December 1, 2009. O’Brien, Sr. called and hired drivers from both the
seniority list, and the casual list dated December 23, 2008, and, at least on certain dates, as
many as 91 drivers worked on the production. Neither O’Brien, Sr., nor the Union, kept a record
of which drivers from the casual list O’Brien, Sr. actually called in his efforts to hire drivers for

28 Citing O’Brien Sr.’s testimony, counsels for the General Counsel, in their brief, assert that
“O’Brien Sr. admitted that when he hired the drivers for this movie he did not follow the
procedure that he followed for the move “Ghosts of Girlfriends Past.” In fact, the transcript
quotes O’Brien, Sr., as testifying to the opposite.
29 O’Brien, Sr. testified that all of his hires for “Knowing” were from the casual list. He also
testified that he no longer had possession of the casual list he actually used, but believed it was
the casual list dated July 29, 2008.
30 Counsels for the General Counsel, in their brief, asserted that “Knowing” was the first
production on which Charles Cronk worked with O’Brien, Sr. In fact, O’Brien, Sr. testified that
he worked with Charles Cronk on the prior production, “Surrogates.”
31 Counsels for the General Counsel asserted, as a fact, in their brief that O’Brien, Sr.
selected Moran, Leahy, and Indelicato from the casual list “because he had worked with them in
the past.” In fact, O’Brien, III testified that all three had worked for him in the past. He did not
explicitly testify, however, that such was the reason he hired/referred them. Nevertheless, in
other testimony referred to supra, O’Brien, Sr. testified that working with him in the past was one
of his criteria for selecting drivers from the casual list to work on productions.
32 O’Brien, Sr. testified that he couldn’t recall if he kept records of whom he called or hired
for “The Phone.” Further, the Respondent produced no such records in response to the
General Counsel’s subpoena asking for same.
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the production, such as copies of the casual list he actually used. O’Brien, Sr. testified that in
using the casual list to hire for “Grown Ups,” he called drivers that he knew from prior jobs and
drivers whom other TCs recommended to him.
In October 2009, O’Brien, Sr. was appointed TC for the television pilot production, “The
Social Network,” which lasted about 2 weeks. O’Brien, Sr. initially hired about 10 drivers for this
production, using the October 9, 2009, casual list to hire 5 of them. O’Brien, Sr. testified that the
basis of his selection of the 5 drivers from the casual list was “’Cause they had probably worked
for me on “The Lake House” [“Grown Ups”].
Subsequently, when more drivers were needed for “The Social Network,” O’Brien, Sr.
hired certain casual list drivers on the basis that they had worked for him on “Grown Ups.”
O’Brien, Sr. testified that he hired these drivers without even referring to the casual list because
he knew they had “all the qualifications” and were “drug tested” because he had just worked
with them on “Grown Ups,” and because “The Social Network” and “Grown Ups” were produced
by the same company.
Finally, O’Brien, Sr. testified that he did not contact Avallon to work on any of the
productions for which he was the TC during 2008 or 2009. When asked by counsel for the
General Counsel why he never called her to work on the productions, O’Brien, Sr. answered,
“Cause I had some bad experiences in capability.” O’Brien, Sr. further testified that she was not
somebody he would allow to work on any of his movies.
As to his experiences with Avallon, O’Brien, Sr. testified that when he was TC for
“Message in a Bottle,”33 and Avallon was a van driver on the same movie, the movie’s producer
complained to him that Avallon was stalking actor Kevin Costner.34 O’Brien, Sr. testified that he
told the producer that he didn’t believe “it,” but then “I called the young lady aside and told her,
and she naturally denied it to me.” According to O’Brien, Sr., he told Avallon, “You got to be
careful and watch yourself.”
Also, on the same movie, O’Brien, Sr. testified that Avallon “lied right to my face.”
O’Brien testified that while he was sitting in a restaurant, he saw Avallon “smash into a pole,” in
the parking lot, while driving a van. According to O’Brien, Sr., Avallon then parked the van in
the back of the parking lot, came into the restaurant, and never mentioned the accident to
O’Brien, Sr.
O’Brien, Sr. testified that the next morning, Avallon told him that somebody had backed
into the van overnight. When O’Brien, Sr. pointed out the glass from the accident in a different
part of the parking lot, Avallon continued to deny her alleged role in the accident. O’Brien, Sr.
testified that he did not require Avallon to complete an accident report, but instead fixed the van
himself, and told Avallon to be careful with her driving. According to O’Brien, Sr., he helped
Avallon and took no action against her because she was a Union member, and he helped Union
members.
O’Brien, Sr. also testified as to other complaints he received about Avallon on “Message
in a Bottle,” including that “nobody wanted to ride with her,” because she “drives too slowly, she

33 O’Brien, Sr. testified he couldn’t remember when this movie was made. Other witnesses
testified that the movie was made in 1998.
34 Testimony admitted only to show an asserted basis for O’Brien, Sr.’s refusal to refer
Avallon, and not for the truth of the matter asserted.
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had beads hanging from inside the front windshield, [and] she had an incense candle burning,”
while she was driving. He testified that the complaint as to driving too slow came from “the big
star of the picture.”35
Finally, O’Brien, Sr. testified that while he was co-captain on the production “What’s the
Worst that Could Happen,” in 2002, and Avallon was a van driver on the movie, the wardrobe
supervisor complained to him that the wardrobe employees were not going to drive with Avallon
any more because she “put her hands over her eyes and ducked,” while driving a van.36
O’Brien, Sr. testified that upon the complaint he removed Avallon from driving the minivan, and
put her into a regular-size van with the production company, and told Avallon that he wasn’t “the
judge here” because he didn’t see the incident happen, but that “somebody’s complaining.”
According to O’Brien, Sr., Avallon denied the wardrobe supervisor’s allegation.
Robert Carnes
Robert Carnes is, and has been for 35 years, a member of the Union, is no. 14 on the
seniority list, and has been appointed by the Union as the TC for various productions since
1995, including five productions in 2008. Carnes testified that, as a TC, when deciding which
drivers to call to work on a production he first calls available drivers from the seniority, and then
the casual list. When calling from the casual list, he gives first priority to drivers with an “A” CDL
license, regardless of the type of vehicle to be driven on the production. Once the casual list is
exhausted of “A” license drivers, Carnes looks to “B” CDL licensed drivers, regardless of the
type of vehicles involved, and then to non-CDL casual list drivers.37
In respect to all of these groups, Carnes testified that he gives first priority to drivers he
knows from working with them on previous productions, because he is familiar with their work.
However, if his opinion of their past work is negative, he doesn’t hire/refer them for a job. When
asked by counsel for the General Counsel whether he would base his opinion on his own prior
experience with the driver, Carnes answered, “Yes.” Carnes testified that he keeps no records
memorializing the names of drivers he calls from the casual list.
In February 2008, the Union appointed Carnes as TC for the movie production “The
Proposal,” which began in February and lasted until June. Carnes hired/referred about 25
drivers for this production, not including two drivers who came from California: Steven
Dogherty, a DOT compliance officer, and Michael Ryan, the Los Angeles coordinator. Carnes
testified that he first called drivers from the seniority list, and then the casual list, but that rather
than exhausting the casual list, he only called drivers that he knew from prior jobs. He testified,
“I know how they work and I call them by their ability and how they worked with me before.” He
selected these drivers from the casual list dated February 1, 2008. In addition to the casual list,
Carnes also hired/referred drivers from Teamsters Local 251 in Providence, Rhode Island,
whose names were supplied to him by the Union.
In June 2008, the Union appointed Carnes as TC for the movie production, “Four Single
Fathers.” The production’s call sheet for July 16, 2008, lists 12 drivers working on the
production, including Carnes and captain Kevin Kelleher. In answer to questions posed by

35 See, fn. 34.
36 See, fn. 34.
37 Carnes estimated that about 90-95 percent of the driving positions on movies require CDL
licenses.
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counsel for the General Counsel, Carnes testified in detail as to how he came to hire/refer John
Fiddler for this production. Carnes testified that he used the June 25, 2008 casual list, and
chose Fiddler, no. 243 on the casual list. Fiddler is the only non-CDL license holder listed on
the call sheet,38 and was assigned by Carnes to drive a 12-passenger van, which only required
a non-CDL “C” or “D” license.
Carnes testified that he called Fiddler from the casual list because he mistakenly thought
he was a friend of his brother, who had a class “A” CDL license, but that when he interviewed
Fiddler he discovered it was a different person named Fiddler, and that this John Fiddler did not
have a tractor-trailer license. Carnes testified that he decided to hire Fiddler anyway, because
during the interview he discovered “how well he is around Boston and the area.” “He sounded
like a very intelligent gentleman so we—that’s why I hired him.”
About the beginning of August 2008, the Union appointed Carnes as TC on the
production, “Donny McKay,” which lasted about 3 weeks. Carnes hired 4 drivers to work on the
movie, all from the casual list dated July 29, 2008, but Carnes did not keep a copy of the list he
actually used to call the drivers.39 Carnes hired/referred driver Dan Redmond because he
worked with Carnes on the movie “21” and he liked the way Redmond performed his job.
Carnes also hired driver Jeffrey Vance to work on “Donny McKay,” and testified that he hired
Vance because they worked together on “Four Single Fathers,” and Carnes believed Vance had
done a good job.
The Union appointed Carnes as the second unit TC on the movie production of “Edge of
Darkness,” which lasted about 3 weeks in the months of September and October 2008. As TC,
Carnes hired/referred 18 drivers to this production, including 3 drivers from the seniority list.
Among the drivers Carnes hired/referred from the casual list, he previously had worked with
Dana Price, who maintained a non-CDL “D” license, on “The Proposal.”
Carnes also hired/referred casual list drivers Brian Hatch and Joe Fournier for “Edge of
Darkness.” Carnes testified that he hired Hatch because he worked with him on “The Proposal”
and liked his work, and because Hatch maintained a CDL “B” license. Carnes testified that he
hired Fournier because he had worked with him before on a production on which Fournier drove
a fuel truck, and because Fournier maintained a HAZMAT endorsement on his driver’s license.
The Union appointed Carnes as TC for the movie production “Hatteras.” which took
place in November and December 2008. A call sheet dated December 8, 2008, contains the
names of 12 drivers, including Carnes, who worked on this movie. Carnes testified that he
hired/referred for this production from the casual list Dana Price, who earlier worked with
Carnes on “The Proposal” and “Edge of Darkness,” and Joseph Travers and Jacob Hackett
because they worked with Carnes on previous productions, and he liked their work. Carnes
also testified that he called driver Ed King from the casual list to offer him a job, but King turned
down the offer. Carnes said he called King because he had previously worked with him.
The Union appointed Carnes as TC on the movie production “Zookeeper,” which began
in June 2009 and ended on November 20, 2009. Carnes testified that he mostly chose drivers
for this movie based on his prior experience working with them. He also testified that, “I called
drivers that were available coming off other shows and after speaking with them, make a

38 The production call sheet lists Fiddler as having a non-CDL “C” license. Carnes testified
that Fiddler had a “B” license.
39 Carnes testified, “We’re very, very sparse with paperwork.”
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decision if I was going to use them on my show or not.” A call sheet for the movie contained a
list of about 40 drivers working at some point during the production.
As to Avallon, Carnes testified that he did not call her to any movies on which he was TC
during 2008 or 2009 because of his opinion of her “as a former driver.” Carnes said he worked
on “In Dreams” with Avallon, that he observed Martini assign Avallon to go to New York, and
that Avallon replied, “I’m not going to New York” and “stormed off,” and that Avallon’s stepfather,
Flynn, thereupon relieved Martini of his duties.40
Carnes further testified that he worked with Avallon on the production “Message in a
Bottle” in 1998, that he observed security guards escort Avallon off the production’s base camp
in the area of actor Kevin Costner’s trailer, and that he was later told by Martini that the guards
asked Avallon to stay away from the set.41 Carnes said that on the same movie he served as
the driver for actor Paul Newman, that on one occasion Newman became impatient as Carnes
had slowed to a speed considerably below the speed limit because of a slow-moving van in
front of him which was travelling at about 20 miles per hour, that Newman commented, “that
shouldn’t be happening,” that as Carnes was passing the slow-moving van, he noticed that the
driver was Avallon, and that when Carnes asked Avallon about the incident the next day, she
told Carnes that she was tired because it had been a long day, and that Carnes should “mind
his own business.”
Robert Wright
Wright is a member of the Union, has worked as a driver in the movie industry since
about 1997, and is on the Union’s seniority list. He was appointed by the Union as TC for 4
movies in the period 2007−2009. Wright testified, that as TC, when hiring/referring drivers from
the casual list for a production, he first looks for drivers that possess a CDL “A” or “B” license,
as 95−97 percent of the driver positions on movies required a CDL license.
Wright further testified that if he cannot fulfill the production’s driver needs with CDL
drivers, he considers non-CDL casual list drivers based on their “prior work ethic and practice,”
and that he measures work ethic by “working with them before or maybe worked for me on a
prior production.” He testified that he wouldn’t “take a chance” on drivers he hadn’t worked with,
and if a sufficient number of drivers that he had previously worked with were not available, he
would seek driver recommendations from other TCs. He also testified that he would take into
consideration prior problems a driver experienced while working on a production, “if they’re
documented.” Wright kept no list of drivers that he called who were not available, made no
notations on the casual list he used as to drivers whom he called, kept records as to drivers who
worked on productions for about a year and a half, sends certain records to the Union to make
sure drivers are “up to date on their dues,” and does not send weekly records to the Union as to
ongoing jobs.
As to Avallon, Wright testified that when selecting drivers to work on movies, he saw
Avallon’s name on the casual list, but did not choose her to work on a movie. He said that he
didn’t choose her because of his prior experience working with her, and what he heard from

40 Carnes testified that he didn’t actually observe Flynn relieve Martini of his duties, but that
Martini told Carnes that Flynn took away his radio because Martini assigned Avallon to drive to
New York.
41 Testimony admitted only to show an asserted basis for Carnes’ refusal to refer Avallon,
and not for the truth of the matter asserted.
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other crew members about Avallon. Wright testified as to a number of incidents and
conversations about incidents involving Avallon, but also testified that none of these incidents
were “documented,” and that he never directly discussed with Avallon his asserted concerns
over her performance.
Wright testified that during 2002, he and Avallon worked as drivers on the movie “What’s
the Worst that can Happen,” and that an incident occurred involving Avallon’s performance as a
driver for the movie’s wardrobe manager James Kurland. According to Wright, Avallon drove
Kurland to a Boston department store to fetch clothing for an actor who was unhappy with his
costume, but Kurland was unable to locate Avallon after making the purchase, and had to hail a
taxi to travel back to the movie set, resulting in wasted time during the production. As a result of
the incident, Flynn reassigned Wright to drive Kurland, and Avallon was assigned to drive
Wright’s van. Wright testified that following the incident, he asked Avallon what happened, and
Avallon told him that she had parked on one side of the store and Kurland was waiting at the
other side, and that Avallon was afraid that if she left her vehicle to find Kurland, she would get
a parking ticket.42
Wright also testified, that during “What’s the Worst that can Happen,” Kurland told him
that as he was being driven by Avallon, and as they were proceeding to pass through a tunnel,
Avallon ducked her head down, causing Kurland to have to grab the wheel, in fear that there
would be an accident. Wright testified that on another occasion during the production, Kurland
told him that when he asked Avallon to take him to Macy’s or Filene’s, Avallon would respond by
asking him, “How do I get there?” Wright also testified that he noticed Avallon walking around
the set and leaving her van unattended, resulting in passengers having to wait for her return or
another van. Finally, Wright testified that while working with Avallon on the movie “Spartan,” he
observed that when the vans lined up to transport crew members, the crew would choose vans
other than Avallon’s. According to Wright, the crew members “said they were a little nervous
driving with her for a few reasons.” 43
Analysis and Conclusions
Allegations as to Union’s Operation of its Hiring Hall
The complaint alleges the Union violated Section 8(b)1)(A) of the Act by making referrals
of employees to employers via its hiring hall, without regard to its published rules, and without
maintaining or making available to employees records regarding the operation of its referral
system. The complaint then specifies these allegations as follows: that the Union failed to
“consistently inform its members of unwritten criteria used by it for referral”; that the Union
failed to refer individuals from the casual referral lists who are unknown to its transportation
coordinators”; that the Union “failed to maintain records of the operation of its referral system”;
and that the Union “failed to uniformly limit the work of casual drivers known to, and liked by, its
transportation coordinators.”
Regardless of the complaint pleadings, the proofs and the arguments of both parties in

42 Wright’s testimony as to the incidents occurring during “What’s the Worst that can
Happen,” is based on what was told him by Kurland. The Respondent stipulated that it was not
in for the truth of the matter asserted, but only to establish a basis for Wright’s decision not to
hire/refer Avallon. Said testimony has not been considered for the truth of the matter asserted.
43 Testimony not admitted for the truth of the matter asserted, but to show an asserted basis
for Wright’s refusal to refer Avallon.
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brief, and at trial, were, essentially, devoted to two issues: Whether the Union’s operation of its
hiring hall violated the Act by, assertedly, failing to apply objective criteria in making referrals
from the casual list, and failing to follow its written rules; and whether the Union violated the Act
by failing and refusing to refer Denise Avallon to a driver’s job.44
Counsels for the General Counsel argue in their brief, as to the Union’s operation of the
hiring hall, that the Union failed to follow its own written referral rules, and made referrals based
on subjective criteria. As to the Union’s written rules, counsels for the General Counsel point
out that nothing therein addresses the issue of substandard job performance as a basis for
nonreferral. As to subjective criteria, counsels for the General Counsel maintain that the Union
allowed the TCs “unfettered discretion” in making referrals based upon “their personal opinions
of the TCs, who they knew, who they previously worked with and were comfortable with, who
other people recommended, and who may have been in need of work.”
Contrariwise, the Union argues that the TCs, in fact, applied objective criteria in selecting
members for referral from the casual list. Further, citing Morrison-Knudsen Co., 291 NLRB 250
(1988), the Union maintains that the TCs’ use of drivers’ qualifications, experience, and
availability as a basis for choosing candidates, even where the written rules are silent as to such
or as to an objective basis to judge such, is permissible, and does not violate the Act. The Union
further argues that where, as here, the casual list drivers have not been otherwise vetted, the
Union would “undermine its own interests and ability to represent the drivers in the movie
industry if it was required to uncritically refer individuals from the casual list.” In respect to
Avallon, the Union, citing Stage Employees IATSE Local 150 (Mann Theatres), 268 NLRB 1292
(1984), maintains that “the totality of evidence shows that Ms. Avallon was not a qualified or
competent driver,” and that she did not possess a CDL license.
The Supreme Court has upheld the legality of hiring hall referral systems, acknowledging
that “the very existence of a hiring hall encourages union membership,” but holding that “the
only encouragement or discouragement of union membership banned by the Act is that which is
“accomplished by discrimination.”45 Teamsters Local 357 v. NLRB, 365 U.S. 667, 674–676
(1961) (quoting Radio Officers v. NLRB, 347 U.S. 17, 43 (1954). But, since a union has such
comprehensive authority vested in it when it acts as the exclusive agent of users of a hiring hall
and because the users must place such dependence on the union, there necessarily arises a
fiduciary duty on the part of the union not to conduct itself in an arbitrary, invidious, or
discriminatory manner when representing those who seek to be referred out for employment by
it. Iron Workers Local 111 (Steel Builders), 274 NLRB 742,746 (1985). No specific intent to
discriminate need be shown to support a finding of an unfair labor practice in the improper
operation of a hiring hall. Carpenters Local Union No. 25 v. N.L.R.B., 769 F.2d 574, 580 (9th
Cir. 1985).

44 For example, this is exactly how the arguments were framed in counsels for the General
Counsel’s brief. Said brief allocates a single paragraph to arguing that while the Union’s
asserted failure to keep records would not constitute a per se violation, the record evidence as
to instances of the TC’s failure to maintain written records of their selection and referral methods
“lends considerable support to counsels for the General Counsel’s argument that the
Respondent has been, and continues to, violate the Act in the operation of its referral system.”
Neither the brief, nor counsels for the General Counsel’s arguments at trial, articulates the basis
of the complaint allegations as to failing to consistently inform its members of unwritten criteria
used by the Union for referral, or failing to uniformly limit the work of casual drivers known to,
and liked by, its transportation coordinators.
45 Stagehands Referral Service, 347 NLRB 1167 (2006).
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Such fiduciary duty requires a union to employ objective standards for the referral of
employees. Operating an exclusive hiring hall without reference to such is violative of Section
8(b)(1)(A) of the Act. Local 394, Laborers’ International Union of North America, AFL–CIO
(Building Contractors Association of New Jersey), 247 NLRB 97, fn. 2 (1980). Allowing union
officials, such as business agents, unfettered discretion in making referrals is a failure of the
Union’s fiduciary responsibility, and a violation of the Act. Plumbers Local 619, (Bechtel Corp.)
268 NLRB 766 (1984). But the mere facts that the referrals lacked written documentation or
that a union business agent utilized his own judgment in determining the skills and experience
of job applicants as a factor in job referral are not sufficient, in themselves, to prove an abuse of
fiduciary responsibility, although they may lend themselves to abuse. Morrison-Knudsen
Company, supra.
Here, the Union operates an exclusive hiring hall,46 and has vested authority to Union-
appointed TCs to choose drivers for hire/referral. While the Union maintains written rules
controlling job referral, I find, based on the testimony of the TCs, that they make decisions as to
the hire/referral of drivers in the following manner. First, they utilize the seniority list, going
down the list in order of seniority. After the seniority list is exhausted, the TCs choose drivers
from the casual list, giving first consideration to driver availability and drivers with “A” or “B” CDL
licenses. When choosing drivers from the casual list, the TCs take into consideration the “work
ethic” or work performance of the drivers, but only as measured by how the drivers performed,
in the TCs’ estimation, based on the TCs actual experience in working with the drivers on
previous jobs.47 If the TC has never previously worked with a casual list driver, then the TC
does not, generally, consider the driver for referral. In the absence of available casual list
drivers whom the TC had worked with previously, the TC seeks recommendations from other
TCs who worked with drivers who may be available.48
While the bulk of the TCs’ testimony indicates that their choices for drivers are generally
made from the lists, some of the TCs testified to occasions when non-listed drivers were
hired/referred for a production. Thus, O’Brien, Sr. has hired some drivers who were out of work,
and hired a driver from the Union hall. Carnes has hired drivers whose names were supplied by
the Union. Wright called Harrington for the names of out of work “oilmen.” Kelleher
hired/referred “day players.” O’Brien, III, called retired drivers and drivers from other unions
when the casual list was exhausted, but didn’t call Avallon, who was on the list. O’Brien, on one
occasion, called O’Brien, Sr. as to a Union member who had been discharged during an
organizing drive, and the driver was hired. On another occasion, O’Brien called a TC, and
obtained a movie job for an out-of-work Union member with a severe medical condition, who
lacked health insurance. Kelleher hired “day-players,” not on the Union’s lists.
Applying the law to these facts, I conclude that the Union has, in fact, allowed the TCs
unfettered discretion in making hiring decisions and, thus, violated Section 8(b)(1)(A) of the Act.
While the TCs generally take into account a driver’s past work performance, nothing in the
Union’s rules, written or otherwise, requires such. Further, even when the TCs take such into

46 The complaint so pleads and the answer so admits. Respondent’s counsel explicitly so
stated on the record.
47 While the TCs testified, generally, that they, generally, only chose or gave preference to
drivers whom they knew from working together on past jobs, there was no evidence that such
choices were based on friendship or familial relationships.
48 Findings based on the cumulative credited testimony of the TCs who testified, as is set
forth supra. Much of these findings were testified to by all the TCs. Some of the TCs testified to
all of these findings. None of the T.C.’s testified to the effect that any of these findings were
inaccurate.
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account, their judgment is based, almost exclusively, on the TC’s personal, anecdotal,
experiences in the past in working with the driver. There is no evidence that any of the TCs
utilize Union or any other records, other than a driver’s self-submitted resume, to check a
driver’s experience, background, or work performance. Such unfettered discretion lends itself to
various abuses, including TCs using friendship, personal or other enmities,49 familial
relationships, or other arbitrary bases in reaching hiring decisions. This is especially true where,
as here, the Union’s recordkeeping as to its referral process is, at best, minimal, and contrary to
its own rules.
In reaching said conclusion, I have taken into account the Board’s holding in Morrison-
Knudsen Company, supra, and the Respondent’s argument, in brief, to the effect that a
business agent’s use of subjective judgment in determining an applicant’s skills and experience
does not, in itself, prove a failure of the Union in respect to its fiduciary obligations. Morrison-
Knudsen is, however, inapposite on its facts. There, the Board relied on the following passage
in the Judge William N. Cates’ decision in reaching its conclusion that the union’s agent sought
in good faith to determine the qualifications of applicants: “Although the Union had no written
rules or objective criteria concerning experience and qualifications of the individuals utilizing the
referral hall, I find that the operation was not left to the unbridled discretion of Holloway or any
other union official. The determination . . . was objectively considered in that a record was
made of the individual’s qualifications as stated by the individual . . . in conjunction with . . .
[Holloway’s] own assessment . . . based on questions he had asked the individual, and . . . the
referral records, which indicated whether an individual had worked . . . on the waterway in the
past.” Morrison-Knudsen Company, supra at fn 6.
In the instant case, there is no evidence that the TCs attempted to check the Union’s
referral records as to an applicant’s past experience working on movie productions or that the
Union even kept such records. Instead, the evidence demonstrated that the TCs relied on their
own personal experience in previously working with applicants or sometimes anecdotal
evidence from other TCs. If a casual list applicant had not previously worked with a particular
TC, he/she likely wasn’t considered. See, Denver Theatrical Stage Employees’ Union No. 7
(Carole A. Miron), 339 NLRB 214, 219 (2003), where the Board found a union agent to have
exercised unfettered discretion, in violation of the Act, where he made subjective determinations
as to experience, skills, and ability, based on “observation or word of mouth from others.”
Further, as found, in some circumstances a TC utilized criteria other than work skills and
experience in selecting applicants for hire/referral, including conversations with higher Union
officials as to members who needed work because of personal situations.50 Under all of these

49 For example, while counsels for the General Counsel at trial waived any theory as to the
Union specifically retaliating against Avallon because of hostility to her stepfather’s past holding
of Union office and administration of the Union, and no evidence was introduced of such, the
T.C.’s unfettered discretion in hiring would make such an occurrence possible. Of course, in the
absence of evidence to support such occurrence here, I make no findings.
50 While the record indicates that some of these referrals were made for reasons that could
be broadly characterized as humanitarian, they are, nonetheless, a subjective basis for referral
and without support in the Union’s own referral rules. “Where . . . there is no evidence that
objective criteria have been utilized, the Board has found that a union’s reliance on an
applicant’s financial need is a factor which supports a finding that a hiring hall has been
unlawfully operated.” United Association of Plumbers and Pipefitters, Local 619, AFL–CIO
(Bechtel Power Corporation), 268 NLRB 766 (1984). There, the Board found the Union’s usage
of the following criteria for referral to be subjective, and evidence of illegal operation of a hiring
hall: “if he needs something bad enough and his family needs feeding and everything.”
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circumstances, I conclude that the Union violated Section 8(b)(1)(A) in the operation of its
exclusive hiring hall by allowing its TCs unfettered discretion in hiring/referral decisions, by
failing to maintain adequate records of its referral process,51 and by utilizing criteria for hiring
other than those set forth in and, hence, departing from its written rules.52

Avallon
The Union argues, as to Avallon, that she was not referred because of her past
performance problems, and that if it referred Avallon it would be risking its relationships with
employers it has contracted with, by referring a poorly performing employee. Counsels for the
General Counsel, argue in their brief, that there have never been any formal allegations made
against Avallon which she could defend against, that the reports of her alleged work-related
problems are mostly hearsay with some TCs simply relying on stories they were told by others
or, essentially, gossip, that the alleged problems occurred years ago, and that the Union
maintained no records of any problems associated with Avallon.
There is a rebuttable presumption that arises when a union interferes with an
employee’s employment status for reasons other than the failure to pay dues, initiation fees, or
other fees uniformly required, that the interference is intended to encourage union membership.
Local 18, Operating Engineers, 204 NLRB 681 (1973). A union bears the burden of
establishing that referrals are made pursuant to a valid hiring-hall provision, or that its conduct
was necessary for effective performance of its representational function. Stagehands Referral
Service, LLC, 347 NLRB 1167, 1170 (2006). The law does not require a showing of specific
intent to discriminate to support a finding of an unfair labor practice. Carpenters Local 25 v.
N.L.R.B., supra.
Inasmuch as I have found that the Union’s operation of its hiring hall violated the Act,
said operation applied to all employees utilizing its services, including Avallon. Denver
Theatrical Stage Employees Union No. 7 (Carole A. Miron), supra (2003). Accordingly, the
failure to refer Avallon violated Sections 8(b)(1)(A) and 8(b)(2) of the Act.53 In this regard, the
Union’s implied and stated arguments that there were insufficient jobs available to which Avallon
could be referred is unpersuasive. I found that drivers without CDL licenses were referred to
jobs, and that some drivers who were referred did not even appear on the Union’s lists. Further,
all but one of the TCs who testified, said that they would not refer Avallon.
Beyond my finding that the Union’s illegal operation of its hiring hall affected Avallon, I

51 Failure to adequately maintain written records of the referral process is not a per se
violation, but where combined with allowing union agents unfettered discretion in hiring, may be
a violation. Local 394, Laborer’s International Union of North America, AFL–CIO (Building
Contractors Association of New Jersey), 247 NLRB 97, fn.2.
52 Here, the Union maintains written rules for referrals, but said rules do not mention criteria
used by the TCs including a de facto rule that, essentially, gives priority to drivers who have
worked with a TC in the past.
53 There is no dispute that Avallon has not been referred by the Union since March 8, 2008.
All of the TCs, except Kelleher, admitted that they had not called Avallon during this period.
Kelleher testified that he had no specific recollection of calling Avallon, but believed he called
her because he went down the list name by name. Because of the uncertainty of his testimony,
and in view of the testimony of the other TCs, I make no finding as to whether or not Kelleher
actually called Avallon. By this, I do not conclude that Keller was not a credible witness, but that
he was uncertain as to the specific testimony in respect to Avallon.
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also find that the Union violated Sections 8(b)(1)(A) and 8(b)(2) specifically by its failure and
refusal to refer Avallon. I begin here by agreeing with the Union’s argument that actions taken
by it to protect its representational status, “may overcome the inference that its refusal to refer
an individual was to encourage union membership by showing that the union refused to refer
the applicant based upon a history of misconduct.”54 The Respondent’s counsels’ brief
accurately cites Stage Employees IATSE Local 150 (Mann Theatres), supra (1984), for the
proposition that a union’s referrals of an employee, under the circumstances therein, “would
jeopardize its position as the exclusive representative . . .”
But the Board, in said case, principally relied on a factor not present herein. In Stage
Employees IATSE Local 150 (Mann Theatres), id, the Board found, and relied on, the fact that
employers who were party to the hiring hall, explicitly informed the union that they did not want
the employee referred to work for them for performance reasons. The Board concluded, that to
do otherwise would jeopardize the union’s relationship with those and other employers. Indeed,
in differentiating a later decision, Stagehands Referral Service, supra at 1171, the Board
referred to its decisions in Stage Employees IATSE Local 150 (Mann Theatres), supra, and
Plasterers Local 299 (Wyoming Contractors Association) 257 NLRB 1386 (1981) as cases
where the “unions’ decisions not to refer were objectively based on employer complaints.”
Here, the record is devoid of employer written or other formal complaints about Avallon.
There is no evidence that any employer requested that Avallon not be referred to, or removed
from, a production. There is testimony from some of the TCs that were witness to some
asserted incidents of Avallon’s or had heard stories of her alleged misconduct, but there is no
evidence that in any of those alleged incidents an employer excluded Avallon from work,
requested the Union not to refer her, or formally, in writing or otherwise, complained to the
Union.
The record is, thus, devoid of evidence that any contracting employer ever filed any
written complaint with the Union as to Avallon. The Union never put Avallon on notice of any
complaints against her, or informed her that the asserted reason for its failure/refusal to refer
her was related to alleged problems with her job performance. As stated by Judge Lawrence
W. Cullen under partially analogous circumstances, in a decision adopted by the Board, Stage
Employees IATSE Local 412 (Asolo Center), 308 NLRB 1084, 1088 (1992), “If the Union had
legitimate problems with . . . past conduct on the job . . . it had available to it, its own internal
procedures for bringing charges . . . However it did not do so, but rather treated him as having
been charged and found guilty by imposing economic sanctions by refusing to refer him for
employment.”
Here, with no notice to Avallon, this is exactly what the Union did. On the one hand, the
Union claims its TCs refused to refer Avallon because of her job performance. On the other
hand, nobody from the Union ever notified Avallon that there was a problem with her work, or
even bothered to inform her that she was not being referred for that reason.55 The Union, thus,

54 From the Respondent’s counsels’ brief.
55 Harrington testified that at the time he placed Avallon’s name on the casual list he had
spoken to various TCs, including some who did not testify herein. According to Harrington, he
was told by the TCs that they were not referring Avallon because they thought “she was a bad
employee.” Further, according to Harrington, the TCs specific complaints about Avallon were
“not being around her van when she was supposed to be, not going to New York when she was
asked to go, smoking in her van, stalking Kevin Costner.” The Union was, thus, well aware of
the asserted reasons why Avallon was not being referred. Harrington was asked by counsel for
the General Counsel as follows: “With respect to those specific allegations, did you call up Ms.
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never gave her an opportunity to contest or respond to the allegations.
More specifically as to the asserted complaints about Avallon, I have no doubt that the
TCs testified to the best of their recollections as to incidents they observed or as to what they
were told by others. Avallon was also a credible witness, displaying composure on the witness
stand, answering pointed questions on cross-examination without evasion, and generally
demonstrating the demeanor of a credible, forthright witness. Because all of these events took
place a number of years ago and seemed like relatively minor events at the time, the
recollections of all the witnesses are not as strong as they would be as to more recent events. 56
I, thus, conclude that it’s well-neigh impossible to accurately reconstruct the events
based on the testimony herein.57 I can conclude, however, that based on the testimonial
demeanor of the TCs, they honestly believed the events occurred as they testified to.
Nevertheless, no employer ever filed a written complaint against Avallon, or asked that she be
dismissed from a job, or not referred to a job. Further, the Union never informed Avallon as to
why she wasn’t being referred or as to the allegations against her, or sought her side of the
story.
Indeed, much of the TC’s testimony as to work-related contretemps involving Avallon,
was hearsay, and explicitly admitted as an asserted basis for not referring Avallon, but not for
the truth of the matter asserted. Even had I fully credited the TCs who testified as to events
involving Avallon that they actually observed, such would not have changed the outcome herein
because on none of these occasions did an employer formally or in writing complain to the
Union or Avallon, remove Avallon from a job, or request that the Union no longer refer Avallon,
nor did the Union inform Avallon as to, or keep records of the, asserted problems.
Under these circumstances, I conclude that the Union has not successfully
demonstrated that referring Avallon would have jeopardized its relationships with contracting

Avallon and say to her we have a problem with your work performance 1997-2003?” Harrington
answered, “No.”
56 From my close observation, all of the TCs who testified displayed the demeanor of
witnesses striving to accurately and honestly recollect incidents which occurred many years
ago. While some of the TCs grew testy while on the stand, in my judgment this simply reflected
frustration from testifying over long periods of time, and from trying to recall events, most of
which occurred many years ago. Nevertheless, I note that a portion of their testimony was not
based on personal observation, but reflected accounts relayed to them by third parties who
were asserted witnesses to the events. Avallon was also a generally credible witness, and this
was displayed by her calm reaction to pointed questions asked on cross-examination, and her
largely consistent answers given during a considerable amount of time spent on the witness
stand. While she denied or otherwise explained much of the occurrences testified to by the
TCs, I have no doubt that the TCs believed the events occurred. I observe that all of these
incidents occurred some years ago, and that memories become hazy over such a period of
time. Part of the problem here is caused because none of these events were ever recorded in
the Union’s records, or in writing by any of the employers involved, or their employees.
57 In her testimony, Avallon said she simply retrieved the wayward ball that Kevin Costner
and his son were playing with and never stalked Costner, explained that she understood the
New York assignment to be a joke being played on her, which caused her stepfather, Flynn, to
become angry and, thus, the incident arose as a result of a misunderstanding, and denied the
van parking lot accident or that she ducked her head while driving passengers in a van. As
noted, she was not removed from any of the involved productions.
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employers, because there simply is insufficient evidence to bear this out.58 Accordingly, I find
that the Union violated Sections 8(b)(1)(A) and 2 of the Act by its refusal and failure to refer
Avallon to a job as alleged in the complaint.
Other Allegations
The complaint alleges as a violation of Sections 8(b)(1)(A and 8(b)(2) that the Union
failed to uniformly limit the work of casual drivers known to, and liked by, its transportation
coordinators. While counsels for the General Counsel’s brief argues that the Union’s hiring hall
operation violated the Act in that it utilized subjective criteria in choosing drivers for referral, it
makes no mention of this specific allegation nor any argument as to how the Act was so
violated. Inasmuch as I have already concluded that the Union violated the Act in the operation
of its hiring hall and will recommend an appropriate remedy therefor, and as the General
Counsel does not appear to be pursuing this allegation either in proofs or argument, I shall
dismiss this allegation. In doing so, I note that the proclivity of TCs to give priority to drivers
they had previously worked with, sometimes to the point of not even considering other drivers
on the casual list, was considered as one of the bases of concluding that the Union violated the
Act.
The complaint also alleges as a violation of Sections 8(b)(1)(A and 8(b)(2) that the Union
failed to refer individuals from the casual lists who were unknown to the TCs. Again, here, the
brief of counsels for the General Counsel does not directly address this allegation, but argues
that the Union’s hiring hall referrals were based on subjective criteria as follows: “ . . . the
evidence establishes that the Respondent, through the TCs, used unfettered discretion in
making referrals based upon the personal opinions of the TCs, who they knew, who they
previously worked with and were comfortable with, who other people recommended, and who
may have been in need of work.”
Nevertheless, the facts, as found, support this complaint allegation. Each of the TCs
testified to utilizing said criteria, sometimes to the exclusion of other considerations and
sometimes to the extent that they wouldn’t consider referring drivers they hadn’t worked with
before. The Union argues, in its counsels’ brief, that since experience is an objective factor,
using such as a criteria for referral does not violate the Act.
While I agree with the Union’s argument that experience is an objective factor, the
testimony of the TCs demonstrates that rather than simply considering experience, the TCs
looked to whether they had previously worked with a listed driver, and gave preference in calling
drivers to those they had worked with and whose work they liked. There was no testimony that
they utilized the Union’s or other records in ascertaining a driver’s experience and deciding
which drivers to initially call. Based on the testimony of the TCs, it would appear that even the
most inexperienced casual list driver would be considered before a more experienced driver, if

58 I further note in this regard that the Union did refer driver James Dolan, whom Harrington
had known for over 30 years, to the movie “Ashcliffe,” which lasted “a couple of months,” to the
movie “Surrogates,” which lasted “about a month,” and to the television production “Extreme
Makeover.” These referrals occurred despite the fact that Dolan “couldn’t find his way across
the street…,” according to Harrington. Harrington also testified that the Union stopped using
Dolan, but then testified that he “didn’t think he’s worked since [“Surrogates”]. The latter
testimony indicates that Harrington isn’t certain whether, in fact, the Union has stopped calling
Dolan.
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the less experienced driver had previously worked with the selecting TC. Thus, to the extent
that experience is an objective factor, weighing that experience only as it pertains to the
particular TC selecting drivers, is not. Accordingly, I conclude here, that the Union violated
Sections 8(b)(1)(A) and 8(b)(2) of the Act, as alleged.
The complaint further alleges that the Union failed and refused to refer Avallon for the
further reason that she “was known to, and disliked by, the transportation coordinators who had
worked with her in the past.” The clear sense of this allegation is that the TCs were motivated in
their decisions not to call Avallon for referral by their personal dislike of her. While there is
evidence that many of the TCs who testified knew and had worked with Avallon, and most of the
TCs testified to and complained of work performance incidents involving Avallon, there is no
evidence in this record to support a finding that Avallon was personally disliked by any of the
coordinators. Accordingly, I shall dismiss this allegation.
Finally the complaint alleges that the Union violated Sections 8(b)(1)(A) and 8(b)(2) by
failing to “consistently inform its members of unwritten criteria used by it for referrals to jobs in
the television, motion picture, and commercial industry.” Here, counsels for the General
Counsel make no mention of this allegation in any arguments set forth in their brief or in said
brief’s remedy section, nor is said allegation mentioned in the conclusion section of the brief
where they summarize the various ways in which they assert the Act was violated.
Apparently, this allegation refers to the Respondent’s admitted failure to inform Avallon
as to the asserted performance based reasons for which she was not being referred and/or the
failure of the Union to inform hiring hall users of the TCs’ usage of working with drivers in the
past as a criterion for referring drivers to jobs. Inasmuch as the General Counsel does not
appear to be pursuing this allegation, and as I am recommending remedies both as to the
operation of the hiring hall and the nonreferral of Avallon, I shall dismiss this allegation.
CONCLUSIONS OF LAW
1. The Parties to Contract are engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent has been at all material times hereto a labor organization within the
meaning of Section 2(2), (6), and (7) of the Act.
3. By the following actions, on about the dates set forth below, the Respondent, in the
operation of its exclusive hiring hall, has caused the respective employers, Parties to
Contract, to encourage their employees to join or assist the Union, has been
restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act, and has been
attempting to cause and causing employers to discriminate against their employees
in violation of Section 8(a)(3) of the Act, in violation of Section 8(b)(2) of the Act:
(a) Since January 1, 2008, making referrals of employees without regard to
published rules, dated December 17, 2007, governing that process, and
without maintaining records regarding the operation of its referral system.
(b) Since January 1, 2008, making referrals of employees without using objective
criteria, and by using subjective criteria to favor certain users of its exclusive
hiring hall.
(c) Since March 8, 2008, failing and refusing to refer the Charging Party, Denise
Avallon, an employee within the meaning of Section 2(3) of the Act, to
employment with the Parties to Contract, for reasons other than the failure to
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tender the periodic dues and the initiation fees uniformly required for
membership in the Respondent.
4. The unfair labor practices found above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The Respondent did not violate the Act in any manner other than that specifically
found herein.
THE REMEDY
Counsels for the General Counsel, in their brief, argue that the following remedy would
be appropriate herein. A cease and desist order requiring the Respondent to cease: refusing to
refer Avallon for arbitrary and invidious reasons; departing from its written rules governing the
referral of drivers; applying subjective criteria as the basis for referrals; and failing to refer
members or nonmembers to work for arbitrary and invidious reasons. Additionally, the General
Counsel seeks an affirmative order requiring the Respondent to make the Charging Party,
Denise Avallon whole, with interest compounded on a quarterly basis for the Respondent’s
refusal to refer her to employment after March 8, 2008, and to post an appropriate notice.
While, counsels for the General Counsel, argue that the Respondent should be ordered to make
the Charging Party whole, they do not argue that a make whole remedy should be extended to
anybody else.
The Respondent, in its counsels’ brief, argues that even if the Respondent is found to
have violated the Act vis-à-vis Avallon, as alleged in the complaint, no make whole or backpay
remedy should be ordered. In this respect, the Respondent argues that its current written
referral rules, in effect since 2007, require a driver to possess a CDL (commercial driver’s
license) to be included on the casual list, and that Avallon, admittedly, did not possess such a
license. In this respect, the Respondent concedes that it allowed Avallon, and others,
placement on the casual list, even without a CDL, but that these exceptions were informal in
nature, and not codified by the Union’s rules. Thus, the Respondent argues, any backpay order
to Avallon would force the Union to violate its own referral rules.
In the circumstances herein, make whole orders have been repeatedly imposed as the
appropriate remedy by the Board. Indeed, as stated by the Board in IATSE (AVW Audio Visual,
Inc.), 352 NLRB 29, 32 (2008), “Almost without exception, the remedy ordered by the Board for
unlawful refusals to refer employees from exclusive hiring halls has been, and is, that “the union
shall make [the employee] whole for any loss of earnings and benefits sustained by him as a
result of the union’s failure and refusal to refer him for employment.” (citation omitted). The
purpose of a make whole remedy is, to the extent possible, to put the victim of the unfair labor
practice in the same position he/she would have been in if the unfair labor practice had never
have occurred. Contractor Services, Inc., 351 NLRB 33, 35 (2007).
Here, the Union was allowing drivers without CDL licenses placement on the casual lists.
Further, as found, even drivers not included on any of the Union’s lists were referred by TCs to
jobs. By its failure to refer Avallon, in violation of the law, the Union deprived Avallon of income
and benefits she would have earned but for the Union’s transgressions. As set forth above, in
such situations, almost without exception, the Board imposes its traditional make whole remedy.
Said remedy does not require that the Union violate its rules, but simply takes into
account the Union’s violation of the Act, and the real world impact such had on the Charging
Party. Simply put, if the Union had not violated the Act as found herein, Avallon would have
been referred to jobs, and would have earned wages and benefits. I, thus, find the Union’s
argument here, to the effect that since it was violating its own rules at the time of the unfair labor
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practices, such violation insulates the Union from an otherwise appropriate make whole remedy,
to be unpersuasive.
Under these circumstances, I find that the Board’s traditional make whole remedy in
such cases is appropriate. I, thus, recommend that the Union shall make Denise Avallon whole
for any loss of earnings and benefits sustained by her as a result of the Union's failure and
refusal to refer her for employment. See F. W. Woolworth Co., 90 NLRB 289 (1950). Backpay
and benefits shall be with interest as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Inasmuch as there is no evidence that any individual, other than Avallon, was
affected by the Union’s violations, as no other individual was named in the complaint, and as the
counsels for the General Counsel mentioned no other individuals at trial or in brief, and do not
argue in brief or otherwise that a make whole remedy should extend beyond Avallon,59 I shall
limit said remedy to the Charging Party.
I further conclude that the balance of the remedy sought by the General Counsel, with
one exception, is the traditional Board-imposed remedy for violations such as those found
herein, and will so order. However, as to the General Counsel’s argument seeking interest
compounded on a quarterly basis as part of the remedy, I decline to so order. In several recent
cases, the Board has declined to change its current method of calculating interest, and I am
bound by Board precedent. See, Transportation Solutions, Inc., 355 NLRB No. 22 (2010), fn. 6.
On these findings and conclusions of law, and on the entire record, I issue the following
recommended60
ORDER
The Respondent, International Brotherhood of Teamsters, Local 25, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
a. Failing to refer members, including Denise Avallon, or nonmembers to work
in the motion picture, television, and commercial production industry for
unfair, arbitrary, or invidious reasons.
b. Utilizing subjective criteria as a basis for referrals in the motion picture,
television, and commercial production industry.
c. Departing from its written rules governing the referral of drivers for work in the
motion picture, television, and commercial production industry, including by
allowing its referral agents to choose drivers for referral based on whether
drivers have previously worked with or are personally known to the referral
agent.
d. Failing to keep adequate records of its referral system.
e. In any like or related manner, interfering with, restraining, or coercing
members/employees in the exercise of rights guaranteed them by Section 7
of the Act.
f. In any like or related manner attempting to cause or causing employers to

59 Indeed, in the remedy section of their brief, counsels for the General Counsel, in arguing
for a make whole remedy for Avallon, do not argue for a make whole remedy beyond Avallon.
60 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the Board shall, as provided in Sec. 102.48 of the Rules, adopt the findings,
conclusions, and recommended Order and all objections to them shall be deemed waived for all
purposes.
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discriminate against their employees in violation of Section 8(a)(3), in
violation of Section 8(b)(2) of the Act.
2. Take the following affirmative action necessary to effectuate the purposes of the Act:
a. Make Denise Avallon whole for any loss of earnings and other benefits she
may have suffered as a result of its failure and refusal to refer her, with
interest, as set forth in the remedy section of this decision.
b. Refer Denise Avallon for jobs in the motion picture, television, and
commercial production industry, based on objective criteria and standards,
and nondiscriminatory operation of its rules.
c. Operate its exclusive hiring hall for job referral in the motion picture,
television, and commercial production industry in a nonarbitrary and
nondiscriminatory manner, utilizing only neutral and objective criteria as a
basis for referral.
d. Maintain records of the operations of its referral system sufficient to establish
that said system in being operated in accordance with the Union’s rules.
e. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board, or its agents, all referral records and reports,
and all such other records, including an electronic copy of such records, if
stored in electronic form, necessary to determine the amount of backpay due
under the terms of this Order.
f. Within 14 days after service by the Region, post at its office, hiring hall, or
other facilities copies of the attached notice marked “Appendix.”61 Copies of
the notice, on forms provided by the Regional Director for Region 1, after
being signed by the Union's authorized representative, shall be posted by the
Union immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Union to ensure
that the notices are not altered, defaced, or covered by any other material.
g. Mail a copy of said signed notice to Denise Avallon.
h. Forward to the Regional Director for Region 1, signed copies of the notice,
sufficient in number, for the Parties to Contract, if willing, to post at their
facilities within the area served by the Respondent.
i. Within 21 days after service by the Region, file with the Regional Director for
Region 1, a sworn statement of a responsible official on a form provided by
the Region, attesting to the steps the Respondent has taken to comply.
Dated, Washington D.C. June 7, 2010
_________________
Mark D. Rubin
Administrative Law Judge

61 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.”
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APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain on your behalf.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these activities.
WE WILL NOT fail to refer members, including Denise Avallon, or nonmembers, to work
in the motion picture, television, and commercial production industry for unfair, arbitrary, or
invidious reasons.
WE WILL NOT utilize subjective criteria as a basis for referrals in the motion picture,
television, and commercial production industry.
WE WILL NOT depart from our written rules governing the referral of drivers for work in
the motion picture, television, and commercial production industry, including by allowing
transportation coordinators to choose drivers for referral based on whether drivers have
previously worked with or are personally known to the transportation coordinator.
WE WILL NOT fail to keep adequate records of our referral system.
WE WILL NOT In any like or related manner, interfere with, restrain, or coerce you in the
exercise of rights guaranteed to your by Section 7 of the Act.
WE WILL NOT in any like or related manner attempt to cause or cause employers to
discriminate against there employees.
WE WILL Make Denise Avallon whole for any loss of earnings and other benefits she
may have suffered as a result of our failure and refusal to refer her, with interest.
WE WILL refer Denise Avallon for jobs in the motion picture, television, and commercial
production industry, based on objective criteria and standards, and nondiscriminatory operation
of our rules.
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WE WILL operate our hiring hall for job referral in the motion picture, television, and
commercial production industry in a nonarbitrary and nondiscriminatory manner, utilizing only
neutral and objective criteria as basis for referral.
WE WILL maintain records of the operations of our referral system sufficient to establish
that said system in being operated in accordance with our rules.
International Brotherhood of Teamsters, Local 25
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, O’Neill Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.