Stage Hands Referral Service, LLC

National Labor Relations Board - Administrative Judge Opinions

Jan 7, 2009

34-CA-010971 (N.L.R.B. Jan. 7, 2009)

JD(NY)-01-09
Hartford, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
STAGE HANDS REFERRAL SERVICE, LLC
and Case No. 34-CA-10971
STEPHEN FOTI, An Individual
INTERNATIONAL ALLIANCE OF THEATRICAL &
STAGE EMPLOYEES & MOTION PICTURE
TECHNICIANS OF THE UNITED STATES &
CANADA, LOCAL 84, AFL-CIO
(Meadows Music Theatre)
and Case No. 34-CB-2774
STEPHEN FOTI, An Individual
Patrick Daly, Esq., Hartford, CT,
for the General Counsel.
Leon Rosenblatt, Esq., West Hartford, CT,
for the Respondents.
SUPPLEMENTAL DECISION
STEVEN DAVIS, Administrative Law Judge: On August 31, 2006, the National Labor
Relations Board issued a Decision and Order in 347 NLRB 1167 against Stagehands Referral
Service (SRS) and International Alliance of Theatrical & Stage Employees & Motion Picture
Technicians of the United States & Canada, Local 84, AFL-CIO (Union or with SRS,
Respondents), which directed the Respondents to jointly and severally make Stephen Foti (Foti)
whole for any “loss of wages and other benefits he may have suffered by reason of their
“discriminatory failure to refer him to employment after May 24, 2004.”1
A controversy having arisen over the amount of backpay due to Foti, the Regional
Director for Region 34 issued an Amended Compliance Specification and Notice of Hearing on
April 17, 2008. The Respondents’ answer to the Specification asserted certain affirmative
defenses which will be discussed below.
Before the hearing opened, the Acting Regional Director consolidated this case for
hearing with Case No. 34-CB-2876.2 That case involved issues arising from a complaint which
asserted that Respondent Local 84 operated its hiring hall unlawfully in violation of Section
8(b)(1)(A) and (2) of the Act.

1 Counsel for the Respondents advised that he has appealed the Board’s decision.
2 Prior to the opening of the hearing, the General Counsel filed a motion for summary
judgment with the Board and a partial motion for summary judgment with me. Both motions
were denied.
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On May 27-29, 2008, a consolidated hearing was held before me in Hartford,
Connecticut.3 Because the issues in each case, this compliance case and the unfair labor
practice case are different, involving dissimilar issues and different types of exceptions which
may be taken, I have severed them, and accordingly will write separate decisions.4
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondents, I make the
following findings and conclusions:
I. Analysis and Discussion
A. The Underlying Case
In the underlying case the Board found that Foti was unlawfully refused referrals by the
Union on May 24, 2004 following the Union’s denial of membership to him, and because of his
nonmembership in the Union. The Respondents were ordered to jointly and severally make Foti
whole for any “loss of wages and other benefits he may have suffered by reason of their
“discriminatory failure to refer him to employment after May 24, 2004.”
The Board found that following the Union’s rejection of Foti’s application for membership
on May 24, 2004, he was told by business agent Charles Buckland that the Union would not
refer him to jobs, and that SRS would not refer him to the Mohegan Sun Casino (Casino)
because his application for membership had been denied. Foti stated that he stopped seeking
referrals from Local 84 thereafter because he was told by Buckland that he would not be
referred. He received no work from Local 84 from late May, 2004 through November, 2004.
In November, 2004, upon learning that Foti had applied for unemployment insurance
compensation, business agent Charles Morris asked him why he filed the application since he
had not been calling in for work. Morris told Foti to call Buckland. He did so and was referred to
work in late November and worked until early December. Foti did not call Buckland again until
late March, 2005. 347 NLRB at 1168.
Foti obtained work from Local 84 by calling the Union and advising that he was available
for work, and also by being called by that union when work was available. Foti obtained work
from Local 84 and other area stagehands unions.
B. The Backpay Computation Process
The objective in determining the backpay amount is to approximate, as accurately as
possible, what earnings Foti would have had during the backpay period had he continued to be
referred. First, his earnings during an appropriate period of time prior to the discrimination,
called the base period, must be determined.

3 Following the close of the hearing, Respondents’ exhibits 2 and 4 were received pursuant
to the Respondents making available to the General Counsel the underlying documents which
formed the basis of the two exhibits.
4 At the hearing, the parties were advised that I intended to issue two decisions. Tr. 83, 84.
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1. The Selection of the Backpay Formula
The base period used in the Specification was the one year period, June 1, 2003 to May
31, 2004, prior to the Respondents’ refusal to refer Foti. The backpay period was defined as the
period beginning June 1, 2004. The Respondents admit that the base period and the start of the
backpay period were appropriately set forth in the Specification.5
As set forth below, Compliance Officer Dina Emirzian used Compliance Manual Formula
One, Section 10540.2, to compute the backpay. That formula is a projection that Foti’s average
hours and earnings during the base period would be the same during the backpay period.6
Foti’s base period earnings were divided into two categories: “Local 84 work” and “non-
Local 84 work.” Both types of earnings were utilized in computing the backpay amount for the
base period and for the backpay period.
a. Local 84 Work
As set forth in the Specification, Foti’s income in the base period was comprised of all
referrals he received from the Union. The Compliance Officer accepted Foti’s representations,
supported by paystubs for work performed, concerning what constituted referrals “from the
Union.” The referrals which were included in these calculations included direct referrals where
the Union’s business agent directed Foti to report to employers with which the Union had a
collective-bargaining agreement.
Also included by the Compliance Officer in the category of Local 84 referrals were those
jobs to which Foti was sent by the Union’s business agent at the request of other unions. Those
jobs included those with employers with whom the Union had no contract or were outside the
jurisdiction of Local 84. The procedure followed by Local 84 was that Union Business Agent
Charles Buckland would call Foti and ask whether he was available to take a job in a certain
city. If he was, Buckland gave him the location of the job and the time to report. Foti saw a union
agent at the site, signed on and worked.
Buckland explained the procedure. He stated that he occasionally is asked by a
business agent of a different stagehands union for help in filling a job call in that other union’s
jurisdictional area. In such cases, Buckland supplies the names of people he believes are
available, and at the other agent’s request, Buckland calls the stagehand and says that there is
work in Bridgeport, for example, if he wants to go there. He denied that this constitutes a referral
by him to a job in another jurisdiction. However, it appears that Buckland routinely performs
these duties as part of his operation. Thus, he made referrals pursuant to calls he received from
Locals 11, 23, 52, 53, 74,109, and 133.
Buckland testified that in making such calls to Foti to jobs in other jurisdictions, he was
told by the business agent for the other union that they were one-day jobs. Occasionally the
business agent calls Buckland and reports that the job will be continuing for more days and asks
“do you mind if the guys [those originally referred] do that work?” Buckland agrees, and tells the

5 Brief, page 8, and Answer, page 2.
6 The Respondents challenge the use of Formula One and instead urge that Formula Two
or no formula at all should be used. This will be discussed below.
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agent to ask the workers if they want to continue working there. Buckland stated that in such
circumstances where the stagehands continued to work, he does not consider that to be part of
the initial referral.
The major source of disagreement between the parties is that the Respondents believe
that those latter jobs, in which Foti was referred by the Union’s business agent based upon calls
he received from other unions to jobs in those other unions’ jurisdictions and to employers not
having contracts with the Union, are not properly considered “Local 84 jobs or Local 84
referrals” and should not be included in the base period or the backpay period. The result of
including those jobs in the base period is obvious – Foti’s work in those jobs caused a marked
increase in his earnings which, when included in the base period, raised his pre-discrimination
income level.
Buckland explained that when a business agent from a different local asks him to supply
workers, he was not obligated to refer anyone. When he called the stagehand, the worker could
accept or refuse the assignment and was under no obligation to take the job, and if he did report
to the site, he had no obligation to continue to work there if the job continued after the first day.
Buckland stated that, in contrast, if he referred the stagehand to a job in Local 84’s jurisdiction
the employee would have an obligation to accept it.
The Respondents correctly argue that when Foti worked in such jobs, dues were paid by
Foti or by the employers involved to the other unions and not to Local 84. The Respondents
assert that only referrals to those organizations having contracts with Local 84 should be
considered in computing Foti’s gross backpay. However, the remedy ordered by the Board was
its standard remedy. The Respondents were ordered to make Foti whole for any loss of wages
and other benefits he may have suffered by reason of the Respondents’ failure to refer him to
employment after May 24, 2004. “A backpay remedy covering all lost employment opportunities
is appropriate for the violations found.” (emphasis in original). IATSE (AVW Audio Visual, Inc.),
352 NLRB No. 7, slip op. at 4 (2008), citing the underlying case here, 347 NLRB 1167, and
numerous other cases applying the same remedy.
Indeed, SRS, a corporation established by Local 84, referred stagehands to the Casino
because the Casino would not sign an agreement with the Union and would not accept referrals
from the Union. Such referrals were considered “Local 84 work” and the Board found that there
was an exclusive hiring hall arrangement between Local 84 and SRS. 347 NLRB at 1167, fn. 2.
Accordingly, even though there was no contractual arrangement between Local 84 and the
Casino employer, as was the case with the non-Local 84 jobs Foti was sent to, the work Foti
performed there was considered Local 84 work even by Local 84.7
The Respondents take issue with Compliance Officer Emirzian’s method of determining
whether a referral was properly attributed to Local 84. Emirzian testified hypothetically that if
Local 84’s agent told Foti that the Union had no work but that Local 53 was hiring and that he
should call that union, she classified that as Local 53 work because the actual job came from
Local 53 and the decision made to refer him to particular work was done by Local 53. However,
that analysis is consistent with Emirzian’s method used in computing the Specification’s
amounts. She stated that if the Local 84 agent called Foti and told him that he was asked by
Local 53, for example, to have an employee report to a specific job at a specific location, that
would be Local 84 work because Local 84 was the source of the referral. In the first instance,

7 See Respondents’ Exhibit 2, where SRS is listed as a venue to which Foti was referred.
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Local 84 was not referring Foti to a specific job but just suggesting that Foti call Local 53 to see
if a job was available.
It is true, as argued by the Respondents, that Emirzian stated that “there has to be some
agreement between the union and whomever they’re getting work out to, I would assume. The
basis is the referral out.” She also noted that “it doesn’t matter to the region whether he was
referred out to work either through an exclusive arrangement or through a non-exclusive
arrangement.” However, this does not mean, as the Respondents argue, that a formal
arrangement must exist before a referral takes place. Such an agreement clearly took place in
another union’s business agent’s request that Buckland send a worker to a venue within that
other union’s jurisdiction. Emirzian plainly did not imply, as suggested by the Union, that in order
to be considered Local 84 work there must be a contractual agreement between the Union and
the employer. Obviously, such an admission would be the opposite of the Specification’s
premise – that work in other jurisdictions referred by Buckland pursuant to a request from
another union is Local 84 work.
The General Counsel argues that inasmuch as Local 84 made the initial calls to Foti
referring such jobs to him such jobs must be considered as Local 84 referrals even though
those calls were initiated by business agents from other unions seeking additional help to fill
their calls.
The General Counsel’s argument is sound and reasonable. Regardless of where the call
for the job originated, it was received by Foti from Local 84’s agent. The call was for a specific
referral to an identified, available job if he chose to accept it. He would not have received the job
referral but for the call from the Union. Acting on the call from the Union, Foti went to the job
location and performed work there. As set forth above, Local 84 business agent Buckland
believed that such jobs lasted one day at most, but, as to certain jobs, Foti was able to remain
on the job for several days or longer. The General Counsel correctly argues that whether the job
was for one day or whether it lasted longer, the job must be attributed to Local 84 since that
Union was the source of the call Foti received. Whether another local’s agent made the initial
call to Local 84 is irrelevant since the origin of the call to Foti was Local 84. Foti acted on the
call made to him from Local 84, not from any other union, and reported to a specific, available
job. Foti’s experience was that whenever he was given a referral by Buckland he got the job.
There was never an occasion where upon arriving at a job that Buckland referred him to he was
told there was no work.
Accordingly, I find, in agreement with the Specification, that Foti’s earnings from referrals
made by Local 84’s business agent in which he first asked Foti whether he was available for a
specific job and then, when he agreed, directed him to that location where Foti worked,
constitute Local 84 work and were properly includible in Foti’s base period and backpay period
even where those jobs worked were outside the Union’s jurisdiction and were performed for
employers with which the Union did not have a contract.
b. Non-Local 84 Work
Also included in Foti’s earnings during the base period and the backpay period were
those jobs he obtained on his own by “networking” – calling people in the industry and asking
about upcoming jobs and by checking the internet and media sources for shows coming into the
Hartford area. In such cases he obtained jobs directly from other stagehands unions and from
employers. All such jobs in this category were referred to as “non-Local 84 work” and were
included in the Specification as “supplemental earnings” as will be more fully described below.
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2. The Respondents’ Objections to Formula One
The Respondents argue, as set forth in the Compliance Manual, that Formula One is
applicable only when conditions that existed prior to the unlawful action would have continued
unchanged during the backpay period.
The Respondents urge that Formula Two, Compliance Manual Section 10540.3, should
have been used. That Formula is calculated on the basis of the earnings of another employee or
employees whose work, earnings and conditions of employment were comparable to those of
the discriminatee both before and after the unlawful action. Formula Two is applicable,
according to the Manual, when there have been significant changes in conditions during the
backpay period and when it can be concluded that the discriminatee’s earnings would have
changed in the same manner as did those of the comparable group.
The Respondents assert that conditions changed drastically because in April, 2006, SRS
stopped referring stagehands to the Casino. SRS is a corporation established by Local 84 which
was created for the sole purpose of supplying stagehands to the Casino because the Casino,
although willing to employ union members, was unwilling to sign contracts with unions. Thus,
although the Casino would not accept referrals of employees from the Union, it would take such
referrals from SRS. Accordingly, SRS referred workers to the Casino, sent an invoice to the
Casino which the Casino paid, and SRS issued paychecks to the referred employees.
Thus, according to the Respondents, the Specification is flawed since it is based on the
assumption that Foti would have been referred to the same extent as in the base period. They
argue that this assumption is not valid since referrals to Foti from the Casino through SRS were
no longer available following April, 2006, since SRS no longer made referrals to the Casino after
that date.
The General Counsel argues, however, that even with the loss of the Casino account,
Local 84 could have continued to have referred him to other venues. Compliance Officer
Emirzian stated that she did not take into account in computing the gross backpay that SRS no
longer referred workers to the Casino, and she did not change the gross backpay amount in that
regard. Emirzian stated that she did not know what proportion of the base period sum of
$29,757 was made up of SRS referrals to Foti.
I do not agree with the Respondent. First, no records were received in evidence which
show that the number of referrals made to Foti would have been less because of the loss of the
Casino account. Second, the records establish that, in fact, beginning in the fourth quarter of
2006, at a time when SRS no longer made referrals to the Casino, Local 84 referred Foti to a
substantially greater degree than it did from the beginning of the backpay period. Thus, for the
fourth quarter of 2006 and for the following five quarters, ending with the first quarter of 2008,
respectively, Foti earned the following amounts from referrals from Local 84: $5,291, $1,509,
$3395, $3512, $4917, and $2169.8
In contrast, the referrals to Foti by the Respondents including SRS in the eight quarters
covering the period June, 2004 through March, 2006 (the second quarter of 2004 through the
first quarter of 2006) when SRS was making referrals to the stagehands, were minimal: 0, 0,

8 G.C. Exhibit 3, the referrals of Foti to “Local 84 work.”
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$224, 0, $411, $535, $1010, and $81.9 Accordingly this shows that regardless of whether SRS
no longer made referrals to the Casino beginning in April, 2006, the Respondents were not
referring Foti at a level to that made during the base period even when they were making
referrals to the Casino. His quarterly earnings in that period of time were less than his quarterly
earnings during the base period, $7439.10
Both the Board and the courts have applied a broad standard of
reasonableness in assessing methods for calculating gross
backpay. Any formula that approximates the amount the
discriminatees would have earned absent the discrimination is
acceptable if not unreasonable or arbitrary under the
circumstances. The Board is required only to adopt a formula that
will reasonably approximate the amount due; it need not find the
exact amount. Painting Co., 351 NLRB No. 6, slip op. at 2 (2007).
The Board attempts to reconstruct as nearly as possible the
economic life of the discriminatee and place him in the same
financial condition he would have enjoyed in the absence of the
unlawful discrimination. The objective… is to reconstruct as
accurately as possible what employment and earnings the
discriminatee would have had during the backpay period, had
there not been an unlawful action. Contractor Services, 351 NLRB
No. 4, slip op. at 3 (2007).
Based on the above cases, the purpose of this proceeding is to make whole the
individual discriminated against – Foti. That is best done by approximating what he earned in
the base period and projecting that amount into the backpay period. Because of the individual
nature of stagehands’ work, Foti’s history and experience with respect to the jobs that he
actually had in the base period are the most appropriate and reliable sources of information as
to what he would have earned in the backpay period. I accordingly find that the use of Formula
One reasonably approximated what Foti would have earned in the backpay period.
3. The Formula Proposed by the Respondents
The Respondents’ suggestion that Formula Two be used – an examination of the work
records of comparable employees is rejected. Given the nature of the stagehands’ work, the
formula selected must be personalized and individualized to the employee who is to be made
whole. There are too many variables in a stagehand’s work experience to determine that a
discriminatee’s backpay should be decided upon the earnings of comparable employees during
the periods in question.
In support of the use of Formula Two, at the hearing, the Respondents produced a
document which identified four “comparable or representative” employees: William Graves,
Connor Philbin, John Shea, and John Tsimbidaros.11 Their dates of hire were December 8,

9 G.C. Exhibit 6.
10 That figure is computed as follows: $29,757 average earnings during the one year base
period divided by 52, equals $572.25 per week times 13 weeks to obtain the quarterly figure.
11 Respondent’s Exhibit 4.
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2001, December 8, 2001, February 9, 2002, and November 8, 2001, respectively. Foti’s date of
hire was May 10, 2002. Their seniority based on their date of hire is 161, 163, 169 and 158,
respectively. Foti’s seniority is 173.
The document listed the earnings of the five employees from 2002 through 2006 at six
venues only, those with which Local 84 has some relationship, either a collective-bargaining
agreement, an “agreement” as with Warner, and SRS. As I have found, above, limiting the
computation to those few venues is inappropriate. Accordingly, the fact that Foti received fewer
referrals than the other employees to those venues in the base period has little relevance.
Moreover, the seniority standings of those employees are irrelevant since, according to
Buckland’s testimony, during this period of time he referred people in order of seniority if he
“had the luxury of time,” adding that if he needed someone immediately he would call a worker
who he knew was located near the venue or who he believed would respond quickly. Further, a
showing that Foti received fewer referrals in the base period does not aid Local 84 since
Buckland admitted that during that period of time he unlawfully referred Union members before
the non-members such as Foti, and when additional referrals were made thereafter he went to
the top of the member list and began referring again from that point.
In addition, it does not appear that employees were referred by SRS to the Casino in
order of seniority. Thus, in the period prior to October 15, 2005 and thereafter, Foti was referred
to that venue 14 times, whereas 43 employees with lower seniority than him were referred to the
Casino more often.12 Accordingly, the Respondents’ claims that the employees selected were
comparable to Foti because their dates of hire were similar to Foti does not support their
argument since referrals apparently were not made in order of seniority.
The Board has held that use of the comparable or representative employee formula is
“premised on a showing that the work, earnings, and other conditions of employment of the
allegedly representative employees were, in fact, comparable to those of the discriminatee both
before and after the unlawful action. Consistent with these principles, ‘the representative
employee formula may not be employed unless it is representative’ of the discriminatee.”
Contractor Services, above, citing NLRB v. Ironworkers Local 378, 532 F.2nd 1241, 1243-1244
(9th Cir. 1976).
In Contractor Services, the Board rejected the regional office’s use of a specification
based on the comparable employee formula because the employer’s workforce, including the
discriminatee Landers, worked intermittently whereas the allegedly comparable employees
“were those who worked most consistently for the Respondents during the backpay period” and
thus were not “representative” of the discriminatee. The Board noted that the allegedly
comparable employees placed no limits on the referrals they would accept and several
accepted referrals to distant states. Landers, in contrast, would not travel beyond the union’s
limited geographic jurisdiction in one state, would not travel to distant jobs, and did not look for
or accept employment outside the union’s geographic jurisdiction.
Here, we have the opposite situation. The allegedly comparable employees selected by
the Respondents worked less often while Foti was recognized by Buckland as someone who
would travel to distant sites at short notice and never refused a referral. Accordingly, the
“comparable” employees identified by the Respondents were not representative of Foti.

12 G.C. Exhibit 2.
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Therefore, I reject the Respondents’ assertion that a comparable employee formula is more
appropriate.
In Laborers Local 38 (Hancock-Northwest), 268 NLRB 167, 170 (1983), the Board
specifically approved the use of Formula One and not Formula Two reasoning that under
Formula Two the representative employees worked fewer hours during the backpay period. This
is particularly appropriate here where Foti was very successful in obtaining work during the
backpay period, while other, allegedly comparable employees may not have been as
industrious.
Compliance Officer Emirzian testified that the Respondents did not provide any
documents regarding the referrals it made at any time during the backpay period. She stated
that the Regional Office considered using Formula Two using comparable employees, but she
did not have full and complete records from the Union in order to track such employees’ work
records and to perform a Formula Two analysis. She conceded not having asked for such
records but correctly believed that it was the Respondents’ obligation to present such an
argument with supporting documentation. To do such an analysis she needed to have the Union
identify who the comparable employees were, their earnings during the base period, and an
explanation as to why they were comparable employees. Although boxes of information were
left at the Regional Office by the Respondents, she did not know what was contained therein.
Although she was the successor Compliance Officer, no information which would have
permitted a Formula Two analysis was contained in the file she inherited. Moreover, the
Respondents did not offer any documents to her in furtherance of Formula Two.
Buckland confirmed this, stating that the Union did not present to the Regional Office in
its investigation of this case Respondents’ Exhibit 4 – an analysis of the earnings of other
employees during the base period, which was limited to the venues with which Local 84 has
contracts. However, he did bring “boxes” of documents to the Regional Office during its
investigation which contained the information which was ultimately used in the preparation of
that exhibit. Buckland also conceded that he did not present to the Regional Office a formula
regarding the comparable employee method of calculation to establish gross backpay, for
example the replacement employee formula. See Reliable Electric Co., 330 NLRB 714, 723
(2000), where the “compliance officer was “particularly hampered in the calculation of the gross
backpay because no payroll records were furnished to aid in the computation… until shortly
before this hearing.”
Emirzian set forth her obligation as one to arrive at a “reasonable” calculation with a
reasonable factual basis. Accordingly, Formula One was decided upon. I find that Formula One
was the most appropriate formula to be applied here. The nature of the stagehands’ work
requires the application of Formula One in this case. Their work is not performed in a factory
where they report for a predictable and easily measured 40 hours per week. Rather, stagehands
obtain work from various sources including Local 84, other unions and directly from employers.
They sometimes work on two jobs per day and may stay on a job for extended periods of time.
Also, as was the case with Foti, while on one job he received referrals from Local 84 and
accepted those referrals. Based upon the evidence it is also clear that Foti was a very
industrious person, “networking” in order to obtain as much work as possible.
Accordingly, I find that the formula chosen by the Regional Office was reasonable and
appropriate.
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C. The Specification’s Calculations
1. The Base Period
In computing the base period earnings, the Compliance Officer added Foti’s paystubs for
work performed pursuant to referrals from Local 84 for the one-year base period, June 1, 2003
to May 31, 2004 and obtained a total of $29,757. Such work included referrals from the Union to
jobs within its jurisdictional area and those in which the Union called him pursuant to a request
of another union and directed him to report to work in that other union’s jurisdiction. Emirzian
divided that number by 52 to obtain a weekly gross amount of $572.25 and then multiplied that
amount by the 13 weeks in a quarter. Thus an average quarterly gross backpay amount in the
base period for work performed pursuant to referrals from Local 84 was $7,439.
As set forth above, the Respondents object to the Specification’s inclusion of work that
Foti performed pursuant to requests he received from Local 84 to perform work pursuant to calls
the Local 84 agent received from other unions. In support of this argument, the Respondents
assert that the only referrals that should be included in the base period were those to which
Local 84 referred him for work in its jurisdictional area and with which the Union has a contract,
specifically, The Bushnell Theater, The Meadows, Madison Square Garden, Theatrical Stage
Employees and SRS. The amounts of earnings for such referrals total $13,078.46, less than half
the amount that the Specification assigns to “Local 84 work.” I have rejected this argument, as
set forth above.
Foti also worked during the base period in jobs he obtained on his own and not as a
result of referrals from the Union. Earnings from those jobs were called supplemental earnings.
He received a total of $20,560 from those jobs during the base period. That sum was divided by
four quarters yielding an average quarterly “supplemental earnings” of $5,140. The Specification
stated that the supplemental earnings were deducted from gross backpay only to the extent that
they exceeded $5,140. When such earnings exceeded $5,140, they were deducted from gross
backpay as interim earnings.
Emirzian correctly and appropriately reasoned that supplemental earnings were in effect
earnings received from a “second job” which, according to Board policy, should not be deducted
from gross backpay as interim earnings because such earnings were received during the base
period before the discrimination began. Thus, it could be presumed that absent the
discrimination, Foti would have continued to work on such other jobs even after he was refused
referral by the Union. However, any increase of supplemental earnings beyond that earned in
the base period was included as interim earnings and deducted from gross backpay.
The Specification appropriately sets forth the gross backpay from the second quarter of
2004 through the first quarter of 2008, listing Foti’s gross backpay according to the above
formula, his interim earnings which consisted of referrals by Local 84 and supplemental
earnings. Also set forth were Foti’s interim expenses consisting of mileage fees.
2. The Backpay Period
As set forth above, the Specification, using Formula One, projects Foti’s earnings during
the base period, the one year period prior to the discrimination, as the amount he would have
earned during the backpay period. Thus, the gross backpay consists of Foti’s earnings from
“Local 84 work” which includes referrals from Local 84 to work at venues within its jurisdictional
area, and referrals from Local 84 pursuant to requests from other unions to perform work in their
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jurisdictions. There has been no evidence that Local 84’s practice of referring employees
pursuant to requests from other unions has not continued into the backpay period. Indeed, it
would seem, based upon Buckland’s testimony that such referrals were made routinely, that
such a practice continued thereafter.
Foti’s gross backpay also includes “non-Local 84 work” which is work he obtained on his
own during the base period reduced by his earnings in work provided by Local 84 in each
quarter, and also reduced by his supplemental earnings, the work he obtained on his own to the
extent that such work exceeded the supplemental earnings base of $5,140 (the amount he
earned in non-Local 84 work during the base period) less interim expenses. Such sums which
exceeded $5,140 are interim earnings.
It is undisputed that the backpay period begins on June 1, 2004. The Specification
asserts, and the evidence establishes, that the backpay period has not ended since Foti has not
received referrals from the Union following May 24, 2004 to the extent that he had received
them in the one year base period prior to May 24. The Specification further states, and the
evidence further establishes that in none of the calendar quarters following May 24 did referrals
from the Union rise to the level of referrals Foti received in the one year base period.
The Respondents make several arguments. First, they contend that the close of the
backpay period chosen by the General Counsel is incorrect. They assert that the backpay
period should end when Foti was first referred for employment after their unlawful refusal to
refer him on May 24, 2004. Thus, they contend that the backpay period terminated at their first
referral to Foti in December, 2004. That referral was for two days. Foti was not referred again
until April 13, 2005.
The Act is remedial. Its intent is to restore the discriminatee to that which would have
been the case had the violation not occurred. The purpose of backpay is to make the
discriminatee whole and compensate him as if the unlawful action had not occurred. The
Board’s remedial order here is clear and broad. It did not state that Foti would be considered as
having been made whole upon his first referral after the Union’s May 24 refusal to refer him.
Rather, the Respondents were ordered to make him whole for “any loss of wages and other
benefits he may have suffered by reason of their discriminatory failure to refer him to
employment after May 24, 2004.” Accordingly, the remedial purposes of the Act will be satisfied
when the Respondents restore the status quo ante - compensate Foti to the same extent
following the discrimination as he enjoyed prior thereto. “A backpay remedy covering all lost
employment opportunities is appropriate for the violations found.” AVW Audio Visual, above,
Accordingly, tolling the make whole order in December, 2004 when he was first referred
following the May 24, 2004 refusal to refer him would not further the remedial purposes of the
Act. Moreover, that December referral was part of the underlying case, and the Board,
notwithstanding that that referral was made, nevertheless ordered that Foti be made whole for
the period following May, 2004.
The Respondents further contend that inasmuch as Foti was a person who had strong
“networking” skills and actively sought and received referrals from sources other than the
Respondents and found work on his own from other unions and even non-union venues, the
Respondents’ obligation ended. They note Foti’s testimony that he did not apply for full-time
work at the Casino because he believed that such work, involving only 40 hours per week,
would take him “out of the loop” preventing him from accepting higher paying jobs elsewhere.
Foti concedes telling Buckland that he did not want to work full time for the Casino because he
did “very well freelancing.”
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Foti admitted the obvious – he could not accept two jobs at the same time. But he added
that he has worked two jobs in one day, and has done so about 20 to 30 times in the past four
years. For example, he did set up work in the morning at one venue, and did “overnights” at
another location. In fact, he stated that Buckland has asked him to do two shows on the same
day. However, Compliance Officer Emirzian stated that the question before her was whether
Foti was being referred by Local 84, not whether if he was working elsewhere he could accept
Local 84 referrals. Emirzian explained that backpay is not tolled because the employee is
working elsewhere. His work elsewhere is deducted from gross backpay as interim earnings as
was done here. Emirzian stated that her focus was whether Foti received referrals from Local 84
during the backpay period and if he did not, backpay continues to run and his work elsewhere
was considered as interim earnings if they were over the threshold that Foti had made in the
base period. Emirzian stated that the fact that Foti worked for a particular employer does not
necessarily mean that he was unavailable for work from Local 84. For example during the base
period he accepted work from Local 84 and from other sources in the same quarter.
After being rejected for membership and told that he would not be referred because he
was not a member, Foti was obligated, due to financial need and due to his duty to search for
work and to find work wherever he could. Accordingly, the fact that he was working in non Local
84 jobs or referrals does not diminish the Respondents’ obligation to refer him. In addition,
Buckland conceded that Foti had the right to call an employer or another local union directly for
work unless the employer had an exclusive hiring hall arrangement with the Union. In such a
case, Foti would have had to be referred by the Local 84.
The Respondent argues that in 2005 and 2006 Foti was “mostly not available for Local
84 or SRS” work because he was working with Local 538, Aventek and other employers, and
that he used his “extensive network to pick and choose the most favorable jobs.” Brief, p. 23.
However, this overlooks the fact that Foti gave uncontradicted testimony that he never refused a
Local 84 referral when made, and Buckland’s testimony that he did not call him because he
assumed that he was not available. However, I credit Foti’s testimony that regardless of any
work that he was doing at the time, if Local 84 called he would “reprioritize” and accept that
work. Accordingly, the Respondents’ argument that Foti’s non-Local 84 work interfered with his
Local 84 work because he could not work at two jobs at the same time, is misplaced. He
credibly testified without contradiction that whenever he received a referral from Local 84 he
accepted that work.
Foti worked extensively for Local 538 whose business agent and president are Rob
Francis and Mike Hughes, respectively. In about April, 2006 they formed an independent private
company called Crew 538 or Stage Production Services, for the purpose of making referrals to
the Casino, replacing SRS. After that time, no stagehands were referred to the Casino by SRS.
Foti received referrals from Crew 538 to that venue. In July, 2006, Foti became a member of
Local 538. About one month later, the International Union directed Local 538 to be merged into
Local 84, and at that time, Foti became a member of Local 84.
Upon becoming a member of Local 84 in August, 2006, Foti and other members were
told by Buckland that they should not accept work from Crew 538. As a result, Foti did not
accept work from Crew 538 for about nine or ten months. However, in about mid 2007, due to
financial necessity, he began taking calls from Crew 538 and performing work for that union.
Buckland testified that Local 84 was unhappy with the Casino and with Crew 538
because he considered it a nonunion workforce which took work from it in Local 84’s jurisdiction.
Buckland did not support Crew 538, hoped that it would fail, and told his membership not to
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accept work from Crew 538. Buckland became aware that Foti was working for Crew 538, and
had worked at the Casino. He was “disappointed and unhappy” that he was working for Crew
538, telling Foti that he “crossed the line,” had a “scab mentality”, and that many members were
unhappy about him taking that work because the Union’s position is that Local 84 members
would not work for Crew 538. Foti explained that he was not able to survive financially and
needed to take the work. Buckland advised him to do what he believed he had to do. Thus,
although Foti had an obligation to search for and obtain work, Local 84 sought to limit his
opportunity to do so with Crew 538.
The Respondents argue that inasmuch as Foti became a member of Local 84 in July,
2006 he could not, thereafter, be discriminated against for being a nonmember. The General
Counsel’s response, which I agree with, is that the liability phase of this case has been
concluded with a finding that discrimination against Foti has occurred, and this case involves the
remedy to be applied to make him whole because of that discrimination, specifically that
backpay continues to run until Foti’s referrals are restored to the amount he enjoyed prior to the
discrimination against him. Therefore, backpay appropriately continued to run after Foti became
a Union member because has not yet been referred to the extent that he had been during the
base, one year period before his discrimination.
Buckland testified that Foti was “not as available as normal” in 2006 and did not call in
for one month prior to becoming a member of Local 84 in August, 2006, but then he began
calling in on a weekly basis, adding that Foti was “getting his lion’s share of work through Local
538 … and other places.” However, Foti did receive referrals from the Respondents prior to
May, 2004 without calling in. In fact, Foti stated that his referrals were so numerous in the base
period that he did not have to call in. Indeed, Foti credibly testified that from late May, 2004 until
August, 2006 he had no obligation to call the Union in order to receive referrals. Moreover, even
assuming that Foti failed to call in, he had been told by Buckland in May, 2004 that the
Respondents would no longer refer him because of his nonmembership. The evidence further
shows that notwithstanding the “unofficial requirement” that workers call in, Buckland
nevertheless referred them to work.
In this regard, Buckland testified that he did not refer Foti because Foti did not advise the
Union of his availability for a number of months, and Buckland, being aware of his strong
networking contacts, assumed that he was working elsewhere. However, I note that Foti
testified without contradiction that he always accepted a referral when asked by Local 84.
Indeed, Buckland stated that Foti was highly regarded as his “go-to guy” who he “always” called
when he needed a worker on short notice even to distant locations. Moreover, employees were
not required to so inform the Union, but nevertheless Foti did so diligently, as discussed
below.13
Foti conceded receiving eight calls and accepting 12 referrals in 2005 from SRS for work
at the Casino. Buckland testified that Foti called for work about 12 times between January and
March, 2006, but did not call from March to August, 2006.

13 In this regard, Respondents’ Exhibit 5, a list of about 70 jobs that Buckland testified that
Foti would have been referred to in the period May 28, 2004 to December 3, 2004 if he called in,
is given little weight inasmuch as Buckland told Foti in May, 2004 that he would not be referred
for work. Accordingly, Foti’s calling in would be an exercise in futility. Moreover, he was not
required to call in at that time.
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Buckland testified that according to Foti’s work records, he received 200 and 170
referrals to non Local 84 locations in 2005 and 2006, respectively. He received such work by
“networking” – getting the jobs on his own. Buckland concluded that those jobs are more
lucrative than those that Local 84 could provide, and assumes that Foti could not have accepted
such Local 84 referrals because he was not available for them in those two years. Buckland
surmised that if Foti did not call in for six months he obviously was working elsewhere,
assuming that he was not available because he did not call the office. Nevertheless, Buckland
noted that he did not attempt to call Foti during that period of time to offer him work, and stated
that Foti has never been denied work.
Buckland testified that in 2005 and 2006 it was an “unofficial” requirement that
employees call in for work, but conceded that those employees who did not call in would
probably be referred anyway because of the need to provide employees for work requests.
Buckland conceded that after Foti became a member of Local 84 he called in on a weekly basis.
Later Buckland stated that during the period January 12, 2005 to February 27, 2006, there was
a requirement, disseminated by word of mouth, that workers call in to advise of their availability
to take calls. This is doubtful in that the Union’s hiring hall rules making calling in a requirement
were not adopted until May, 2007.
Buckland testified that after referring Foti to the Casino on December 3, 2004, whenever
Foti called for work if Buckland had work to refer him to he was referred. It must be noted that
apparently Buckland waited for Foti to call him and ask for work, notwithstanding that 75% of the
membership was not calling in on a weekly basis. However, Foti stated that he called in weekly
even though others did not. Buckland stated that Foti should have known that he should call in
to make his availability known when he returned from a work referral. However, this testimony
must be contrasted with Buckland’s other testimony that, prior to May, 2004, Foti was his “go-to”
person who he could rely on to take a call on short notice. Accordingly, Buckland’s interest in
calling Foti for referrals drastically declined after the discrimination against him. Further,
Buckland’s testimony that there were many occasions when work was not available and he so
advised Foti this leads to the conclusion that Foti did call in when he wanted work and was told
that none was available.
Finally, there was some evidence that Foti was assaulted by Local 84’s members,
apparently introduced to show that Foti was uncomfortable working with that Union’s members
and perhaps did not seek referrals for that reason. Nevertheless, Foti continued to receive
referrals from Local 84 and continued to accept them.
Conclusion
I find that the calculations as set forth in the Compliance Specification were appropriately
made and approximate the amount Foti would have earned absent the discrimination, and that
they are not unreasonable or arbitrary under the circumstances. Based upon the above, I issue
the following recommended14

14 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Stagehands Referral Service (SRS) and International Alliance of
Theatrical & Stage Employees & Motion Picture Technicians of the United States & Canada,
Local 84, AFL-CIO, shall make Stephen Foti whole by paying to him the sums set forth in
attached Appendix - Backpay Calculation column entitled Total Backpay and Interest, such
interest being computed in accordance with New Horizons for the Retarded, 283 NLRB 1173
(1987), minus tax withholdings required by Federal and State laws.15
Dated, Washington, D.C., January 7, 2009.
____________________
Steven Davis
Administrative Law Judge

15 Emirzian testified that she became aware of and corrected certain errors made in the
computations. Those corrections are set forth in the attached Compliance Specification.
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