Local 143, IATSE

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1245 (N.L.R.B. 1980)

LOCAL 143, IATSE 1245
Moving Picture and Projection Machine Operators
Union, Local No. 143, affiliated with the Inter-
national Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO (Various
Employers) and David Brueske. Case 14-CB-
4611
April 17, 1980
DECISION AND ORDER
By Chairman Fanning and Member Jenkins
and Penello
On January 7, 1980, Administrative Law Judge
Almira A. Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief'
and has decided to affirm the rulings, findings, 2
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Moving Picture
and Projection Machine Operators Union, Local
No. 143, affiliated with the International Alliance
of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada, AFL-CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order.
I Respondent has requested oral argument. This request is hereby
denied because the record, the exceptions, and the brief adequately pre-
sent the issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law
Judge: This case was heard in St. Louis, Missouri, Sep-
tember 25, 1979. The original charge was served on the
248 NLRB No. 174
Respondent July 19, 1979, and the amended charge was
served August 6, 1979. The complaint was issued August
9, 1979, and duly answered by the Respondent.
The issues are whether or not the Respondent Union
maintains a practice of operating an exclusive hiring hall
for referring moving-picture projection-machine opera-
tors to Wehrenberg Theatres, Inc., Mid-American The-
atres, Inc., and various other movie theater employers in
the St. Louis, Missouri, area; and whether or not the Re-
spondent Union has, since April 19, 1979, refused to reg-
ister for referral, or refer, David Brueske to those em-
ployers because he was not a member of the Respondent
Union and because the Respondent Union refused for
discriminatory reasons to enroll him in its training pro-
gram, in violation of Section 8(b)(1)(A) and (2).' I con-
clude that the Respondent has so violated the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. UNFAIR LABOR PRACTICES
A. Referral System
The Respondent Union has collective-bargaining
agreements with various theater owners and operators in
the St. Louis, Missouri, area of its jurisdiction including
Wehrenberg Theatres, Inc., which operates 42 to 45 the-
aters; Mid-American Theaters, Inc., which operates 15
theaters; and the Towne Theatre. All agreements contain
30-day union-security provisions, and require employers
to give the Union "sufficient advance notice" of job va-
cancies. 2
Herbert Butz, business representative of the Respon-
dent who bears primary responsibility for referrals, testi-
fied that the Respondent would not object to an employ-
er hiring a projectionist who had not been referred by
the Respondent, but it is the unanimous testimony of
Butz and the representatives of the three theater compa-
nies mentioned above that, in practice, none of the the-
aters has ever hired a projectionist who was not referred
by the Union.3 I find that this course of conduct, al-
though not required by the Union's collective-bargaining
agreements, in actual practice constitutes an exclusive
hiring arrangement which obligates the Respondent
l Respondent Union admits and I find that the Board has jurisdiction
in this matter based on Wehrenberg Theatres, Inc., and Mid-American
Theatres, Inc., being employers engaged in commerce within the mean-
ing of Sec. 2(2), (6), and (7) of the Act and meeting the Board's jurisdic-
tional standards. The Respondent also admits, and I find, that it is a labor
organization within the meaning of Sec. 2(5) of the Act,
2 All contracts also require employers to grant employment preference
to persons who have previously been employed within the Respondent
Union's jurisdiction. In addition, the Wehrenberg agreement requires the
Union to maintain a list of regular projector operators mutually agreed to
hby the parties to perform work on Fridays and Saturdays; the purpose of
this list is to assure this employer that the Union would refer persons
known to the employer to be competent in such work The legality of
these provisions is not challenged.
3 The only exception referred to in the record was testimony by the
owner of Towne Theatre that the Union granted him permission to give
his sons projectionist training. All employers retain the right to reject or
to discharge anyone referred by the Union
LOCAL 143. IATSE 1245
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to comply with Section 8(b)(1)(A) and (2) of the
Act in making job referrals. 4
In operating its referral system, the Union maintains a
card file with a card for each theater in the St. Louis
area, each card noted with the name of each projection-
ist who has been referred by the Union to that theater
and the amount of time he spent working or training
there. The Union also maintains a list of projectionists
with the name of each theater to which he has been re-
ferred and the amount of time he has spent working or
training there. It is from these cards and this list that the
Union obtains information upon which its referrals to
permanent positions are made. All the projectionists
whose names are on the Union's cards and list are either
members of the Union or in the Union's training pro-
gram. The Union has no information, and keeps no re-
cords, of projectionists, if any, who are working or train-
ing in the St. Louis area who are neither union members
nor in its training program. Vacancies in permanent posi-
tions are posted at the union hall for 2 weeks; anyone
can bid; and the Union refers the bidder who has worked
the longest time at the most theaters and has the ability
to perform the particular job. All projectionists referred
to permanent positions have completed the Union's train-
ing program and are members of the Union.
Referrals to temporary jobs are made from an "extra
board," or list of projectionists, usually 30 to 40 in
number, all of whom are either out-of-work members of
the Union or in its training program. Only those who
have worked at the particular theater or have been as-
signed there through the training program are consid-
ered, and selection from the group for referral is based
on an attempt to equal out their yearly earnings.
With regard to the training program operated by the
Union, enrollment is necessary in order to be eligible for
referral or for membership in the Union. Anyone can
apply for training. Entrance into the program is con-
trolled by a committee of the Union, which reviews the
applications whenever there are "openings" and selects a
certain number for interview. 5 Those interviewed are
then evaluated. Committee members Butz and Howarth
testified that the criteria used in the evaluation are avail-
ability, reliability, and competence.
6 The committee rec-
4 United Brotherhood of Carpenters and Joiners of America. Local 1092.
AFL-CIO (C.F Braun and Company), 230 NLRB 1045, 1047 (1977);
3Marquetre Cement Manufacturing Company, 213 NLRB 182, 184 (1974);
International Union of Operating Engineers. Hoisting and Portable Local
No. 513. .4AFL-CIO (McFry Excavating and Demolition Co.), 197 NLRB
1046, 1048 (1972).
5 Committee Chairman Ron Howarth explained that the committee
gears the training program to a projected analysis of what the employ-
ment situation may be in the future and for that reason cannot accept all
of the many applications. In a letter to David Brueske dated July 19.
1979, as referred to below, Business Representative Butz attributed the
Union's refusal to admit Brueske to membership or to refer him to "cur-
rent economic conditions in the St. Louis theatre industry [which] do not
appear to be steady or available for someone in your situation since the
supply of operators far out-weigh the employer demands for referral rec-
ommendations "
6 Butz explained the criteria as follows: If an applicant is employed
from 8 a.m. to 5 p.m., he is not available for matinee work for which
"numerous personnel" are required. However, some of those presently in
the training program do have full-time jobs in other industries because
there is no income guarantee from the training program. Competence in-
cludes the applicant's experience in projectionist work and in electricity
and maintenance. Howarth said race is not a consideration in selecting
ommends its selections to the membership of the Union
which accepts or rejects the selections by majority vote.
The names of those rejected are kept on file for a year
and are subject to review at the discretion of the com-
mittee when the next group of trainees is selected. Those
accepted are assigned by Business Representative Butz to
various theaters where they work without pay for peri-
ods of I to 4 weeks until the projectionist on duty there
informs the Union they are capable of operating the
equipment on their own. Although such experience at 25
different theaters is required for completion of the train-
ing program, trainees are eligible for temporary employ-
ment at the theaters where they have qualified, as ex-
plained above. Upon completion of the training program,
a projectionist is asked, for the first time, if he is interest-
ed in. becoming a member of the Union.
As indicated, only members of the Union or its train-
ees are referred, and completion of the training program
is a prerequisite for membership in the Respondent
Union.
Respondent contends that its referral system is merely
a method by which area employers can express their def-
erence to the expertise of the Union in selecting and
training competent dependable projectionists to operate
their complex projectors, and that a significant propor-
tion of its referrals are not members of the Union. There
is no merit in these contentions.
The referral system may well be acceptable to the area
employers because of its convenience as a source of
qualified projectionists, but acceptability to employers
does not absolve a union from its obligation to operate
its hiring hall in a way which does not discriminate
against applicants for employment. And in my opinion,
the record establishes that this hiring hall is operated so
as to prevent employment by anyone except the Union's
members. All theaters in St. Louis hire their projection-
ists through the Union, and it refers only its members to
fill permanent positions, and only those who are mem-
bers or in the Union's training program to temporary po-
sitions. Further, the only way a projectionist can become
a member of the Union, and eligible for a permanent job,
or for a temporary job, is through the Union's training
program. Moreover, access to the training program is
within the complete discretion of the Union. Thus,
anyone who is not a member of the Union or selected
for its training program cannot obtain referral regardless
of his qualifications. Accordingly, although the Union
claims that its only criteria are availability, reliability,
and competence, the real criteria are membership and ac-
ceptability as members within the discretion of the union
trainees but the committee seeks a representative group of women, mi-
nority, and nonminority people. An applicant has to be able to communi-
cate with people, he added Howarth said in its aim for reliable and re-
sponsible people, the committee gives favorable consideration to those
who have served in the armed forces because it knows they can take dir-
ectives and have proven their ability to arrive punctually at a location at
a specific time. The committee tries to weed out those it feels cannot
handle administrative work, including keeping accurate time records, and
tries to select those with the academic background to master highly tech-
nical equipment. According to Howarth, there is no residency require-
ment but residing close to the St. Louis area, as opposed to residency in
Illinois, is a factor in the selection process.
LOCAL 143, IATSE 1247
committee and its membership. Denial of referral based
on such criteria is proscribed by Section 8(b)(2). 7
B. David Brueske
Brueske, a resident of East St. Louis, Illinois, trained
and worked as a projectionist in New York City from
1971 until 1975. He attended the Banner (Bangor in the
transcript) Technical School where he was given 200
hours' instruction in operating projector equipment,
theory, electronics, electricity, wiring, fuses, city laws,
fire laws, safety requirements, and general theater main-
tenance. Upon graduation, he took and passed a city-ad-
ministered licensing examination and received a motion
picture operator's license. Thereafter, he became a
member of Local No. 306 of IATSE and worked the so-
called unemployed, or temporary, list in about 25 differ-
ent New York movie theaters operating various types of
projection systems, and in addition visited other theaters
on his own to familiarize himself with their equipment.
After some unsuccessful attempts to find employment as
a projectionist outside New York City, Brueske decided
to withdraw from Local No. 306 and returned full time
to Southern Illinois University. While enrolled there
from late 1975 until early 1979, Brueske had student em-
ployment at the University audiovisual department oper-
ating and making minor repairs on various types of
movie and slide projectors, microphones, and video tape
equipment.
On April 19, Brueske went to St. Louis for a confer-
ence with Local 143 Business Representative Butz about
the possibility of obtaining work in that area as a projec-
tionist.8 Brueske reviewed his training and experience,
and showed Butz his withdrawal card from Local No.
306. Butz explained the referral system. Brueske asked
whether he could apply for work directly to a theater,
but Butz responded, "No, you cannot. They are under
contract and I supply their men .... "9 Thereafter,
Brueske filed an application for admission into the
Union's training program. On May 10, 1979, Brueske
7 See United Association of Journeymen Apprentices of the Plumbing and
Pipe Fitting Industry of the United Stares and Canada, Local 633, AFL-
CIO (Ragnar Benson Inc.), 178 NLRB 398 (1969). There is no contention,
and no evidence, that the employers serviced by the Union's hiring hall
are members of a single multiemployer unit. Cf. New York Typographical
Union No. 6 (Royal Composing Room, Inc.), 242 NLRB No. 54 (1979)
8 Brueske credibly testified he had visited Butz on a previous occasion
in the spring of 1973 At that time he gave Butz a rough account of his
training and experience in New York City, and told Butz he was having
difficulty adjusting to life in New York City, and wished to work closer
to his home in Illinois. Butz encouraged Brueske to return in the summer
when Butz would be shorthanded Although Brueske returned to St.
Louis in June 1973, and contacted Butz several times, he was never re-
ferred, and he went back to New York City. I do not credit Butz that he
called Brueske but could not reach him twice during this period with the
intent of referring him for Iraining in accord with Butz' alleged practice
of using members of sister locals whenever possible. Based on testimony
of Butz and others, set forth above, as to how he operates the referral
system, I do not believe he ever had any such practice or ever called
Brueske for training assignment.
9 Based on Brueske's credited testimony which conforms with the facts
found above I do not credit Brueske, however, that Bulz also said.
among other things, that 5200 of the $400 Local 143 initiation fee "sas
payable upon admission to the training program, as that testimony ssas
denied, was uncorroborated, and Brueske conceded that such an initial
payment may apply to only those entering upon an apprenticeship pro-
gram which the Respondent Union apparently does not have.
telephoned Butz and asked whether the committee had
met to consider his application. Butz told him no, and
added, "We don't take in everyone. A lot of men we
don't accept. We won't let an out-of-towner take away
work from our men and I have thirty-five men presently
[un]employed." When Brueske asked if his prior experi-
ence would help him with the committee, Butz respond-
ed, "No, it will not. We just take men upon need." ' 0
On June 24, 1979, Brueske received a phone call from
Ron Howarth, chairman of the union manpower commit-
tee, who said the committee was meeting to consider
Brueske's application. After Brueske outlined his experi-
ence as a projectionist at Howarth's request, Howarth
asked whether Brueske had ever worked nonunion.
Brueske told him he had done some work as a permit
man before becoming a member of Local No. 306, and
Howarth advised him to "Tell the union committee, no,
you have never worked non-union." l
Brueske was interviewed by the committee 2 or 3 days
later. Brueske testified that his experience and training
were discussed, but Howarth testified there was no
review of Brueske's qualification on the equipment listed
in his application. Butz testified he never read Brueske's
application; although he admitted that a person who had
worked at 25 or 30 theaters would have less difficulty
learning to operate new equipment than one who had
not, he also conceded he had no idea of Brueske's quali-
fications and did not know "whether he can do a job or
not."
Having received no word from the committee,
Brueske wrote a letter to Butz on July 10, 1979, inquir-
ing about the status of his application and offering to do
whatever was appropriate to qualify for work. Butz re-
sponded' in a letter dated July 19, 1979, referred to
above, which, among other things, denied that the Union
operates a hiring hall; said it appreciated Brueske's re-
quest to join the Union but declared that membership
would not help him gain employment; and pointed out
that current economic conditions in the St. Louis theater
industry were not "steady or available for someone in
your situation since the supply of operators far out-
weigh the employer demands for referral recommenda-
tions."
There were 11 other applicants selected by the com-
mittee and approved by the membership; 2 have subse-
quently dropped out of the training program. Brueske
was not selected and has never been referred by the
Union.
In view of my conclusion that the Respondent's exclu-
sive referral system was operated in an unlawful manner
because referrals were based on union membership con-
siderations, its refusal to refer Brueske through that
system was at least presumptively discriminatory. 2
While admitting that experience as broad as that which
Brueske possessed would be an advantage, the Respon-
dent did not know and did not care what Brueske's
qualifications were. The only reason given for blocking
]' Based on Brueske's uncontroverted testimony. swhich conforms with
statements made in the letter Butz subsequently wrote ito Brueske
x Based on Brueske's undenied testimony.
12 International Union of Operating Engineers. Local .No. I8. 4-CIO
(William F Murphy). 204 NLRB 681 (1973).
committee and its membership. Denial of referral based
LOCALv 143 IA S 1247
- S -
-
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brueske from membership, training, and any employment
at his craft within the Union's jurisdiction was that set
forth in Butz' letter, that members and trainees scheduled
for membership in the Union were unemployed. I con-
clude that the Respondent's refusal to refer Brueske, and
thereby preventing him from obtaining work, for that
reason was violative of Section 8(b)(2) and ()(A) of the
Act. 3
II. REMEDY
Having found that the Respondent Union has violated
Section 8(b)(2) and (1) (A) of the Act, I recommend that
it be ordered to cease and desist therefrom and from in-
terfering in any like or related manner with employees'
exercise of their rights under Section 7 of the Act.
The record shows that the Respondent has barred
David Brueske from employment in the St. Louis area
since April 19, 1979. I therefore recommend that the Re-
spondent be ordered to register Brueske for referral,
refer him for employment on a nondiscriminatory basis,
and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
Backpay is to be computed in accord with F. W. Wool-
worth, 90 NLRB 289 (1950), with interest as provided in
Florida Steel Corporation, 231 NLRB 651 (1977), and Isis
Plumbing & Heating Company, 138 NLRB 716 (1962).
On the basis of the foregoing findings of fact and con-
clusions of law and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER 4
The Respondent Moving Picture and Projection Ma-
chine Operators Union, Local No. 143, affiliated with the
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada, AFL-CIO, St. Louis, Missouri, it of-
ficers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to register for referral or refer David
Brueske, or any other applicant, for employment by the-
aters in the St. Louis, Missouri, area, for discriminatory
reasons.
(b) Maintaining, enforcing, or otherwise giving effect
to an exclusive hiring arrangement or practice with any
employer pursuant to which union members receive pref-
erence in hiring or referral over nonmembers.
(c) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effect the policies of the Act:
(a) Register David Brueske for referral, refer him for
employment on a nondiscriminatory basis, and make him
whole for any loss of earnings he may have suffered
" orman Promme, an individual d/b/a Vorman Fromme Masonry
Contractor, 183 NLRB 670 (1970). AL.R.B. v Vews Syndicate Company,
Inc., 365 US. 395 (1961), Atlas Plastering, Inc., 223 NLRB 1447 (1976),
and other cases where membership in a union was not a consideration in
making job referrals, to which the Respondent had directed my attention.
are distinguishable on their facts.
1 'In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
from the discrimination against him, with interest, in the
manner set forth in the Remedy section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords, pertaining to employment through its hiring hall
and all other records relevant and necessary to the com-
putation of the monetary loss, if any, sustained by David
Brueske by reason of the Respondent's discrimination
against him.
(c) Post in conspicuous places in Local No. 143's busi-
ness offices, meeting halls, and places where notices to
its members are customarily posted, copies of the at-
tached notice Marked "Appendix."' Copies of said
notice, on forms provided by the Rcgional Director for
Region 14, after being duly signed by an authorized rep-
resentative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
'5 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to register for referral, or to
refer, David Brueske, or any other applicant, for
employment by theaters in the St. Louis, Missouri,
area, for discriminatory reasons.
WE WILL NOT maintain, enforce, or otherwise
give effect to an exclusive hiring arrangement or
practice with any employer pursuant to which
Union members receive preference in hiring or re-
ferral over nonmembers.
WE WILL NOT in any like or related manner in-
terfere with, coerce, or restrain employees in the
exercise of their rights under Section 7 of the Na-
tional Labor Relations Act.
WE WILL register David Brueske for referral,
refer him for employment on a nondiscriminatory
basis, and make him whole for any loss of earnings
he may have suffered from the discrimination
against him, with interest.
MOVING PICTURE AND PROJECTION MA-
CHINE OPERATORS UNION, LOCAL No. 143,
AFFILIATED WITH THE INTERNATIONAL
ALLIANCE OF THEATRICAL STAGE EM-
PLOYEES AND MOVING PICTURE MACHINE
OPERATORS OF THE UNITED STATES AND
CANADA, AFL-CIO