Stage Employees Iatse Local 41 (Theater Of Stars)

STAGE EMPLOYEES IATSE LOCAL-41 (THEATER OF STARS) International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #41 (Theater of the Stars; Andrews-Bartlett and Associates, Inc.), and Hilary Henkin and Samuel B. Glover. Cases 10-CB-4351 and 1,O-CB-4369 21 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 17 December 1984 Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The Respondent and the General Counsel each filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order. The Respondent operates an exclusive hiring hall for, inter alia, Theater of the Stars and Andrews- Bartlett and Associates, -Inc., It refers stagehands and theatrical production workers, among others. The Respondent makes referrals pursuant to a writ- ten procedure2 which includes four "job classifica- tions." Those seeking referrals must execute a form stating their work qualifications and employment status. The procedure provides that individuals shall not be removed from a job classification "unless they- have been afforded the opportunity to present ' any evidence on their behalf to the Execu- tive Board." To qualify for the top classification, the "A" list, one must, inter alia, have a certain level of skill and be "regularly available for referral to jobs,within the Union's geographical jurisdiction and . . . not otherwise employed on a regular basis ." The "B" list is for those with lesser qualifi- cations but who are also regularly, available., The "C" list is for those available for referrals on a reg- ular basis but who are, otherwise employed in or ' The Respondent has excepted to some of the judge's credibility find- ingt The Board's established policy is not to overrule an administrative law fudge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry W4711 Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2' The procedure, set forth as "Appendix B," was selected by employ- ees m' a court-authorized election arising out of an action under the Labor Management Reporting and Disclosure Act, alleging that the Union was discriminating against certain of its members in the operation of its referral system 89 out of the industry. The "D" list serves those studying or not regularly available for referrals. Hilary Henkin was not, a union member but, seeking to use • the hiring hall, she executed the qualification statement.- She asserted she was not regularly or currently employed at any job other than through hiring hall referrals. Based on her skills and availability, Henkin secured A-list status. After registering with the new referral system, Henkin subsequently obtained a job of limited du- ration with an employer that did not have a con- tract with the Respondent.'Because the Respondent had a labor dispute with that employer, . it estab- lished a picket line, which Henkin -crossed. The Re- spondent's business agent, John Deaton, saw Henkin and members of the Respondent working there; he removed their names from the. referral lists. The Respondent, however, did not notify Henkin that her name. had been removed. Two months later, when Henkin placed a telephone call to the Respondent's president, A. W. Collins Jr., he advised Henkin that her name was removed from the referral system and, unlike the other 44 non- members on the A list, the Respondent's members did not extend to Henkin an invitation to join the Union. Collins explained that the members found Henkin "detrimental to the Union" because she had crossed its picket line, - Samuel Glover was 'a union member who quali- fied for A-list referrals, based on his skills and an assertion that he was not regularly employed other than through the Union's referrals. Through an- other referral service, Glover later secured a tem- porary job with an employer not signatory to a union contract and did not advise the Respondent. Union Business Agent Walter' Commander, having seen Glover and' other union members on the non- union job, removed them from the A list and placed them on the C list (for those otherwise em- ployed). Glover was not provided 'the opportunity to present evidence-oh his own behalf before the Respondent effectuated this change in his, referral classification. As a form of internal union disci- pline, Glover was placed on probation for 12 months and returned to the A list after signing a new, qualification affidavit. At the hearing,' the General Counsel argued that the Respondent unlawfully removed Henkim and Glover from the A list because, there was nothing in the terms of the referral procedure, including the affidavit, which restricted referral applicants in any 'job classification from taking temporary employ- ment with nonunion employers outside the referral system. In this regard, the General Counsel' con- tended that the Respondent unlawfully changed the referral system by restricting its use to only those 278 NLRB No. 4 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who sought employment exclusively through the system. The Respondent argued that the referral system was correctly interpreted as restricting A- list referents from seeking employment outside the system, and that it properly removed the Charging Parties from the A list because they falsely stated in their affidavits that they were not regularly or currently employed at any other job than through referrals from the Respondent. The judge concluded that the Respondent's in- terpretation of the referral system did not consti- tute a change in the system and that the Respond- ent lawfully removed Henkin and Glover from the A list. He found that, although the written referral procedure did not expressly restrict the A list to persons who sought employment exclusively through the Union, the Union's restrictive interpre- tation was warranted by the absence of any provi- sion in the written procedure requiring those on the A list to notify the Respondent of outside em- ployment (and their resultant unavailability). Thus, the absence of such a provision suggests that no notification would be necessary because the Union would know all employment of persons on the A list by virtue of the referrals it would have made. Further, the C list gives lower priority to persons having other employment. Such a category as the C list would make no sense, he concluded, if the referral system contemplated allowing persons to remain on the A list even if they received work outside the referral system. With respect to Henkin, the judge found she was removed from the A list because she crossed the Respondent's picket line, an activity protected by Section 7 of the Act. Nevertheless, the Respondent established it would have removed Henkin's name from the A list, notwithstanding her protected ac- tivity, because she held a job outside the referral system while retaining her A-list status in contra- vention of the referral procedures. However, the judge found the Respondent violated Section 8(b)(1)(A) and (2) when it removed Henkin, a non- member, from the system altogether, while only lowering Glover, a member, from the A to C list for the same conduct. The judge found no violation regarding Glover because the Respondent merely lowered him from the A to the C list and disciplined him for securing employment outside the referral system in conflict with the Respondent's interpretation of the system. The judge recommended dismissing those parts of the complaint alleging violations of Section 8(b)(1)(A) and (2) for the Respondent's removal of Glover's name from the A list and its internal disci- pline. We disagree with the judge's analysis and con- clusions. The plain language of the referral system does not require any of its users to depend exclu- sively on the Respondent for referrals. Although it is clear that referral applicants must use the referral system exclusively when seeking employment with employers signatory to a contract with the Re- spondent, there is no similar written requirement concerning temporary employment with employers having no contract with the Respondent. The writ- ten procedure does not require users to inform the Respondent about changes in work status. As for availability, it simply requires that applicants assert whether they are regularly employed outside the referral system. When they registered, Henkin and Glover stated, as was true, that they were not cur- rently or regularly employed other than through the Respondent's referrals. That they later obtained employment outside the Respondent's referral system with nonsignatory employers does not affect the veracity of their earlier statements, par- ticularly in light of the temporary nature of the employment. Nor can we find their affidavits were false by reason of the Respondent's interpretation of the re- ferral system. Contrary to the judge, we find no convincing evidence that such a restrictive inter- pretation is warranted. Certainly, the absence of a notice requirement for A-list applicants who secure outside employment does not constitute such evi- dence, for the absence equally gives rise to the in- ference that the system requires no notification be- cause it is not concerned about, and therefore per- mits, outside employment. Further, we fmd nothing incongruous in provid- ing a C-list category in a system which allows those on the A list to receive temporary work out- side the referral procedures and still retain priority in referral. The two lists satisfy different needs. The A list serves applicants desiring frequent refer- rals whereas the C list serves those who have long- term employment but still desire the Respondent's occasional referrals, to permit them an opportunity to supplement their income or gain experience in the industry. By its definition, the C list is for those with some sort of regular employment; it does not contemplate the addition of those who have tempo- rary jobs and are regularly, available for referral.3 a We also disagree with the judge's conclusion that fundamental fair- ness dictates the Union's interpretation because those applicants who in the interests of maintaining union standards voluntarily choose not to seek employment with nonsignatory employers would be "penalized" if others were free to do so. Even if true, support for union standards is clearly not a permissible basis on which a union operating an exclusive hiring hall may condition priority in referrals. STAGE EMPLOYEES IATSE LOCAL "41 (THEATER OF STARS) 91 For the reasons stated above, we reject the judge's conclusion that the Respondent's removal of Henkin and Glover from the A list was in accord with a permissible interpretation of the re- ferral procedure. Instead, we fmd that it constitut- ed a change in that procedure. It is well settled that a union operating an exclu- sive hiring hall breaches its duty of fair representa- tion when it departs from established referral pro- cedures so as to deny employment to applicants, unless the union demonstrates that its action is pur- suant to a valid union-security provision or is nec- essary to its effective performance of its representa- tive function. Operating Engineers Local 406 (Ford, Bacon & Davis), 262 NLRB 50 (1982), enfd. 701 F.2d 504 (5th Cir. 1983). The Respondent has made no such showing here. Additionally, it is clear that a union breaches its duty of fair representation to applicants for referral by failing to notify them of a significant change in referral procedures. Id. When the Respondent deleted Henkin's name from the system and changed Glover's job classification be- cause Henkin and Glover worked outside the refer ral system, it effectively, changed the system from one that did not prohibit external employment to one that did prohibit such employment. Further- more, the Respondent did not notify referral appli- cants of its change in the system .4 Accordingly, we find that the Respondent's modifications violated Section 8(a)(1)(A) and (2) of the Act. Further, when it applied the modified system to diminish Henkin's and Glover's job referral opportunities by removing them from the A list and when it disci- plined Glover, the Respondent violated Section 8(b)(1)(A) and (2).5 Accordingly, in addition to the relief the judge directed for Hilary Henkin, we shall modify the Order to provide relief'for the Re- spondent's' adverse effect on Samuel Glover's job opportunities,6 and to require the Respondent to expunge any references to the removal of Henkin 4 We disagree with the judge's findings that the Respondent gave notice of its interpretation of the referral system when one official told Heenkm that she could not seek further employment with a signatory em- ployer without going through the Union and when other officials told Glover he could not seek employment outside the Union . Even assuming these casual comments to individual users of the referral system constitut- ed proper notice, the comments appear to have been addressed to the prohibition against seeking employment with signatory employers outside the referral system. s We further fmd that the Respondent failed to rebut the General Counsel's initial showing that the Respondent also removed Henkin from the A list because she engaged in activity protected by Sec. 7 of the Act. 6 In addition, as we find the Respondent should not have removed Henkm from the A referral list at all , we shall'order the Respondent to make her whole for the job opportunities she otherwise would have se- cured by retaining her place on the A last as opposed to the C list the judge contemplated, and Glover from the referral lists and to Glover's discipline.' CONCLUSIONS OF LAW 1. Theater of the Stars and Andrews-Bartlett and Associates, Inc. are employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #41, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has been party to col- lective-bargaining agreements with employers in- cluding Theater of the Stars and Andrews-Bartlett and Associates, Inc. which recognize the Respond- ent as the sole and exclusive source of referral of employees for employment. 4. The Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by modifying its ex- clusive hiring hall system without notifying its users. 5. The Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by removing Hilary Henkin and Samuel Glover from the A referral list. 6. The Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by preferring charges against and disciplining Samuel Glover for employ- ment he obtained outside its own referral system. 7. The unfair labor practices set forth above in paragraphs 4, 5, and 6 affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, International Alliance of Theatri- cal Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #41, Atlanta, Georgia, its officers, agents, and rep- resentatives, assigns, shall 1. Cease,and desist from (a) Changing and operating its exclusive referral system in a manner inconsistent with the written procedures and without notifying all -users of the referral system. (b) Changing the job classifications of referral applicants from its exclusive referral system be- cause they obtain temporary employment other than through the Respondent's referral- system. 7 In view of our conclusion that the Respondent unlawfully removed Hilary Henkin from her position in the Respondent's referral system, we do not adopt his finding that the Respondent violated Sec 8(b)(1)(A) by failing to inform Henkin how she could be reinstated or restored to her previous position in the referral system. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preferring charges against and disciplining members because they obtain temporary employ- ment other than through the Respondent's referral system. (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Reinstate the written procedures of its exclu- sive referral system. (b) Reinstate Hilary Henkin and Samuel Glover to the A list. (c) Make whole Hilary Henkin and Samuel Glover, with interest, for any loss of earnings and other benefits suffered by them due to the Re- spondent's unfair labor practices. Any such loss of earnings is to be determined on the basis of avail- able referrals from the A list in which they would have been placed absent the improper removal of their names from that list. Backpay, less interim earnings, together with interest, shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).8 (d) Remove from its files any reference to the discrimination against Hilary Henkin and Samuel Glover, and notify each of them in writing that this has been done and that evidence of the unlawful discrimination will not be used as a basis for future action against them. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its hall, office, or facility in Atlanta, Georgia, copies of the attached notice marked "Appendix A."9 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees, members, and referral applicants are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure, that the notices are'not altered, defaced, or covered by any other material. (g) Sign and return to the Regional Director suf- ficient copies of the attached notice marked "Ap- pendix A" for, posting at the respective places of business of the employers party to the exclusive hiring agreement with the Union should they be willing, in conspicuous places, including all places where notices to employees are customarily ` posted. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT change or operate our exclusive referral system in a manner that is inconsistent with the written procedures and without notifying all users of the referral system. WE WILL NOT change the job classification of re- ferral applicants from our exclusive referral system because they obtain temporary employment other than through our referral system. WE WILL NOT prefer charges against and disci- pline members because they obtain temporary em- ployment other than through our referral system. WE WILL NOT in any like or related manner re- strain or coerce referral applicants in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL reinstate the written procedures of our exclusive referral system. WE WILL reinstate Hilary Henkin and Samuel Glover to the A list. WE WILL make Hilary Henkin and Samuel Glover whole, with interest, for any loss of earn- ings and benefits they may have suffered as result of our having improperly removed them from the A list. WE WILL remove from our files any reference to the discrimination against Hilary Henkin and Samuel Glover, and WE WILL notify them in writ- ing that this has been done and that evidence of the unlawful discrimination will not be used as a basis for future actions against them. 6 See generally Isis Plumbing Co., 138 NLRB 716 (1962) INTERNATIONAL ALLIANCE OF THE- 9 If this Order is enforced by a judgment of a United States court of ATRICAL STAGE EMPLOYEES AND appeals, the words in the notice reading "Posted by Order of the Nation- MOVING PICTURE MACHINE OPERA- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of TORS OF THE UNITED STATES AND the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CANADA, LOCAL #41 STAGE EMPLOYEES IATSE LOCAL 41 (THEATER OF STARS) 93 APPENDIX B PROPOSAL I 1 The work assignment procedure for all individuals re- ferred for work by Local 41 shall be governed by the applicable provisions of the International Constitution and By-Laws, the Constitution and By-Laws of Local 41, the terms of this work assignment procedure and any properly made amendments or modifications to the above documents. Any subject not covered in the above documents may be determined by the vote of the mem- bership. 2 All individuals desiring referral by Local 41 shall com- plete a "work assignment" form similar to that attached as Exhibit A, which shall indicate their qualifications, employment status and other relevant information. _ (A) Each individual shall state their ability to do a par- ticular job on Exhibit A, indicating their ability as either: (1) Can complete a call in this area without assist- ance, or (2) Can complete a call in this area but would need to work with someone more qualified. An individual may update their qualifications at any time based on newly acquired job skills and experience. If a complaint is registered by an employer against an in- dividual with regard to their qualifications for a particu- lar job, that individual may be questioned by the business agent concerning their job qualifications. An individual may not be removed from a job classification unless they have been afforded the opportunity to present any evi- dence on their behalf to the Executive Board. Any ag- grieved party may appeal the determination of the Exec- utive Board pursuant to the appeal procedure set forth in the Constitution and By-Laws of Local 41 and I.A.T.S.E. In addition to providing the above information, each individual referred by Local 41 will sign an affidavit verifying under, oath the information concerning their qualifications and employment status as set forth above. The failure to provide the above information as re- quired, shall work as a forfeiture of an individual's right to rotate on the referral list until such time as the re- quired information is provided. In the event that ' the Business Representative deems the information insuffi- cient to place an individual on an appropriate referral list, said individual will be notified immediately by Certi- fied Mail of this fact in order to afford the opportunity to timely correct any errors or omissions in the referral form. Each individual will be allowed to provide three (3) telephone numbers at which they may be contacted for work referrals, for example, a home phone number, beeper number, and emergency or other number. If an individual has a beeper or voice pager, they will be paged twice in succession and then given fifteen (15) minutes within which to respond. An individual may update or change their telephone numbers at any time, however, no one shall be allowed more than three (3) numbers at any one time. 4 All persons who are available for referral to jobs within the geographical jurisdiction of Atlanta Stage Employees Local No. 41 (hereinafter the "Union"), shall be placed on the A, B, C, or D List as the case may be, and referred to available jobs in accordance with the fol- lowing procedure: A List (Journeymen): All persons who are regularly available for referral to jobs within the Union's geo- graphical jurisdiction and who are not, otherwise employed on a regular basis, either as a stage tech- nician, employee of the Union, or on any other job. Persons on this list must also meet the following re- quirements: 1. Five (5) years continuous residence in the geo- graphical jurisdiction of the Union. 2. Six (6) years experience as a stage technician con- sisting of the 250 hours of employment in the in- dustry for three (3) consecutive years followed by 500 hours of employment in the industry for three (3) consecutive years. 3. A passing grade on the Stage Technician Jour- neymen Qualification Test, or ten (10) years expe- rience as a stage technician. This will be arranged by number and persons will be re- ferred on a rotating basis. B.' List (Apprentices): All persons who are regularly available for referral to jobs in the Union's geographical jurisdiction and who are not otherwise employed on a regular basis either as a stage technician, employee of the Union, or on any other job. Persons on this list must also meet the following requirements: 1. Three (3) years continuous residence in the geographical jurisdiction of the Union. 2. Two hundred (200) hours of employment in the industry for three '(3) consecutive years. 3. All current A List stagehands except those em- ployed on a regular basis either as a stage techni- cian, employee of the Union or any other job will be entitled to placement on the A List. 4. All current B List stagehands, except those employed on a regular basis either as a stage technician, employee of the Union, or any other job, will be entitled to placement on the B List. 5. A passing grade on the sub-tests of the Em- ployee Aptitude Survey. 6. A passing grade on the Stage Technician Ap- prenticeship'Qualification Test. This list will be arranged by number and persons will be referred on a rotating basis. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. List: All persons who are available for referral to jobs within the Union's geographical jurisdiction on a regular basis who are otherwise employed either as a stage technician, by the Union or in any other employ- ment in or out of the industry. Persons on this list must also meet the following requirements: All new applicants will be placed on that list for which they are qualified i.e., they meet the requirements of such list. For the purpose of equity, continuity, incentive, and efficient administration of the referral system, all lists will rotate. 1. Three (3) years continuous residence in the geographical jurisdiction of the Union. 2. Two hundred (200) hours of employment in the industry for three (3) consecutive years. 3. A passing grade on the Sub-Test of the Em- ployee Aptitude Survey. Persons who meet the qualifications for the A or B List, shall be deemed to have met this requirement. This list will be arranged by number and persons will be referred on a rotating basis. Persons on this list who cease to be employed and who meet the requirements for placement on the A List or the B List, shall automatical- ly be placed on the A List or B List at the termination of such employment. D. List (Casuals): All persons who are pursuing a regu- lar course of study in a high school, vocational school, college or university, or who are not available for refer- ral to jobs within the Union's geographical jurisdiction. This list will be arranged by number and persons-will be referred on a rotating basis. The Executive Board of the Union may waive the re- quirement of consecutive years of employment in the in- dustry where it is shown to the Board's satisfaction that the employee has the requisite number of years of serv- ice and his failure to meet the requirements of consecu- tive years of employment is for good and sufficient reason, uniformly applied, such as illness, disability, serv- ice in the armed forces of the United States, or other similar reason. Employees who perform no work as a stage technician within the jurisdiction of the Union for one year or more except as a result of a disability or service in the armed forces of the United States shall be dropped from the re- ferral list on which their name appears. Such person may again be placed on the appropriate referral list but shall be considered as ,a new applicant; except that those em- ployees who have been employed for'more than ten (10) years as a stage technician within the Union's geographi- cal jurisdiction shall retain their place on the list for which they qualify: In filling all jobs, the Union will first go to the A List. If all jobs are not filled from available persons on the A List, the Union will go on the B List. If all jobs are not filled from the available persons on the B List, the Union will then go on to the C List. If all jobs are not filled from the available persons on the C List, the Union will then go to the D List. ' The only exception to the above will be where an em- ployer requests a person have a particular skill not pos- sessed by any person then available on any of the four (4) lists. In such case, the Union will refer the available person having the required skills. (Example: Employer requests- a sound technician capable of operating compli- cated sound equipment.) 5 Special request calls as provided for the existing con- tracts shall be strictly complied with consistent with the terms of the applicable agreement. Any individual re- ferred on a "Special Request" call will be counted as a referral and the individual's name will be tagged and the list must make one complete rotation for each special re- quest taken. 6 Each of the rotating referral lists shall rotate by means of a number system to insure proper referral of all indi- viduals. The numbers will be assigned by lot. 7 Any individual may voluntarily remove their name from the work list for any period of time by notifying the Business Agent in writing. 8 Any individual having cause to believe that any person being referred by Local 41 has falsely provided informa- tion concerning their employment status may be reported to the Executive Board for investigation. 9 This Agreement shall remain in effect until July 1, 1985. At that time, this referral procedure shall continue in effect unless altered or ended. This Agreement may only be altered after July 1, 1985, pursuant to the terms of Article XVII of the Constitution and By-Laws of Local 41. Persons already admitted to apprenticeship status will not be required to take either the Sub-Tests of the Em- ployee Aptitude Survey or the Stage Technician Ap- prenticeship Qualifications Test. Those'referrals currently on the B List shall be enti- tled to placement on the A List after accruing five hun- dred (500) hours work in the jurisdiction. 10 The Court shall retain jurisdiction for the life, of this Agreement Steven K. Leibel, Esq., for the General Counsel: William L. Hazelton, Esq. (Hazelton & Sweet, P.C.), of Atlanta, Georgia, for the Respondent. STAGE EMPLOYEES IATSE LOCAL 41 (THEATER OF STARS) 95 DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This matter was heard at Atlanta, Georgia, on October 2 and 3, 1984. The charge in, Case 10-CB-4351 was filed June 26, 1984,1 and amended August 14, by Hilary Henkin, an individual (Henkin), while the charge in Case 10-CB-4369 was filed July 25 by Samuel B. Glover, an individual (Glover), and amended on August 28. A com- plaint initially issued in Case 10-CB-4351 on August 20, and an order consolidating cases, amended consolidated complaint, and notice of hearing consolidating both charges for trial issued September 5. The consolidated` complaint, as amended, alleges that International Alli- ance of Theatrical Stage'Employees and Moving Picture Machine Operators of the United States and Canada, Local #41 (Respondent or the Union), violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act (the Act), by orally instituting a referral procedure with- out notice to its members and other individuals, which referral procedure precluded its members and other indi- viduals from referrals if they obtained employment in any manner other than through Respondent's referral system, and in keeping with such procedure, removed re- ferral applicants Henkin and Glover from its priority re- ferral list. Respondent filed a timely answer in which it denied the commission -of the unfair labor practices al- leged. The primary issue presented is whether or not Re- spondent, in the operation of an exclusive referral system, discriminatorily removed Henkin and Glover from its priority referal list and denied them referral in violation of'Section 8(b)(1)(A) and (2) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the oral argument of the parties at the hearing and the briefs filed by the General Counsel and Respondent, I make- the following FINDINGS OF FACT 1. JURISDICTION Theater of the Stars and Andrews-Bartlett and Associ- ates, Inc. are both corporations with whom the Union admittedly operates an exclusive referral system. Theater of the Stars is a Georgia corporation while Andrews- Bartlett is an Ohio corporation, but both concerns have offices and places of business in Atlanta, Georgia, where Theater-of the Stars is engaged in the theatrical produc- tion business while Andrews-Bartlett is engaged in the convention services business. The complaint alleges, and Respondent at the hearing stipulated, that Theater of the Stars and Andrews-Bartlett, during the calendar year preceding issuance of the complaint, each purchased and received at their respective Atlanta, Georgia places of business goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of Georgia. Respondent stipulated at the hearing, as the complaint alleges, and I find, that Theater of the ' All dates are in 1984 unless otherwise stated Stars and Andrews-Bartlett have been at all times materi- al herein employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admitted, and I fmd, as alleged in the con- solidated complaint, that it is, and has been at all material times herein, a labor organization within the meaning of Section 2(5) of the Act. - II. BACKGROUND A. The Referral System This case finds its genesis in the exclusive hiring hall operated by the Union and established pursuant to an order of the Federal District Court for the Northern District of Georgia arising out of an action under the Labor Management Reporting and Disclosure Act (LMRA), 29 U.S.C. §§ 411 and 412, captioned Joseph W. Pruitt, et al. v. International Alliance of Theatrical Stage Employees, Civil Action No. C-81-2267A, and filed on December 4, 1981. Basic to the court action was a con- tention that the Union was discriminating against certain of its members in the operation of a referral system. Ulti- mately, the court authorized an election to be held among members of the Union to ascertain their choice between certain proposed referral systems. That election was held November 20, 1983, and the court issued an order dated December 22, 1983, effectuating the selected system referred to as "proposals no. 1." The court order specifically stated that it,retained "jurisdiction of this action until further order of the court." "Proposal no. 1" was actually put into effect beginning December 1, 1983. It provided that the work assignment procedure for all individuals referred for work by the Union was to be governed by the International and Local Union's constitution and bylaws and the terms of the work assignment procedure, More specifically, it re- quired that "all individuals desiring referral by Local 41 shall complete a `work assignment' form . . . which shall indicate their qualifications, employment status, and other relevant information." Qualifications could be up- dated at any time, but each individual using the system was required to "sign an affidavit verifying under oath the information concerning their qualifications and em- ployment status." The failure to provide information re- garding qualifications and employment status, under the system, operated "as a forfeiture of an individual's right to rotate on the referral list until such time as required information is provided." The system adds, however: In the event that the business representative deems the information insufficient to place an individual on an appropriate referral list, said individual will be notified immediately by certified mail of this fact in order to afford the opportunity to timely correct any errors or omissions in the referral form. Referrals under the system were made in accordance with location of an individual's name on one of four lists, A, B, C, and D. The A list, which had the greatest prior- ity in referrals, was composed of individuals "who are regularly available for referral to jobs within the Union's geographical jurisdiction and who are not otherwise em- 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployed on a regular basis, either as a= stage technician, employee of the Union, or any other job," and who oth- erwise met certain , residence and experience require- ments. The B list was composed of individuals likewise regularly available for referral and who met somewhat lesser residence and experience qualifications. The C list was composed of persons "who are available for referral jobs within the Union's geographical jurisdiction on a regular basis who are otherwise employed either as a stage technician, by the Union, or in any other employ- ment in or out of the industry," and who met residence and experience qualifications similar to those on the B list. The D list, in the descending order of priority and referral, was ,composed of "all persons who are` pursuing a regular course of studying in a high school, vocational school, college, or university, or who are not available for referral to jobs within the Union's geographical juris-- diction." Referrals from any list were to be made on the basis of rotation in accordance with a number system, the numbers being assigned by lot. The system operated thusly: upon referral, an individ- ual's name was removed from the list and reinstated to the assigned numerical slot or position on the list, on no- tification to the Union that the job to which the individ- ual had been assigned was terminated. ` It is undisputed that at all material times herein, Thea- ter of the Stars and Andrews-Bartlett and Associates, Inc., had exclusive hiring arrangements with the Union under which these employers obtained all their employ- ees by referrals from the Union. The General Counsel does not attack the hiring system as being unlawful in itself. Rather, the General Counsel contends that in Janu- ary Respondent instituted a -procedure which precluded nonmembers, specifically Henkin, from being listed on any of its referral lists if they obtained employment in any manner other than through Respondent's referral system. The General Counsel further contends that the Union again, on June 30, instituted a procedure under , its referral system precluding members, specifically Glover, from being listed on its A referral list if they obtained employment in any manner other than through Respond- ent's referral system. These changes, according to the General Counsel and as alleged in the complaint, were accomplished without notice to the Union's members or' referral applicants and in contravention of the referral system. These actions, and specifically the alleged re- moval of Henkin from the refferal system and the remov- al of Glover from the A referral list, along with the insti- tution of internal union charges against Glover, are al- leged in the complaint to be violations of Section 8(b)(1)(A) and (2) of the Act. The determination of the violation alleged requires close examination of the facts involving Henkin and Glover. It also requires resolution of the Union's affirmative defense raised initially in its answer and again at the hearing that the continuing dis- trict court proceeding in the LMRDA action preempts the Board's jurisdiction in this case. B. The Removal of Henkin from the Referral System Although she was not a member of the Union, Henkin first sought referrals from the Union in June 1983 under the then-existing referral system. She was subsequently name of Henkin from lists was accomplished. referred to jobs by the Union. On December 2, 1983, consistent with the requirements of the new court-ap- proved referral system. Henkin completed a qualification statement submitting it, along with an affidavit to the Union stating that "I am not regularly and/or currently employed at any other job than through referrals from Local 41." According to Henkin, she received no inter- pretations of the referrals procedure at the time she filed her affidavit and sought referral by the Union, nor did she receive a copy of the referral system itself. She did inquire of the Union's secretary about various job cate- gories listed in the qualifications portion of the affidavit. Following filing of the affidavit , it is undisputed that Henkin was accorded a position on the A list. On December 6, 1983, Henkin, through her own initia- tive, obtained a position with "Bear Productions" in con- nection with the shooting of a motion picture film. That employment lasted through the end of January. Henkin did not advise the Union of her employment. John Deaton, business agent for the Union- from June 6, 1983, to the following February 5, testified that the Union had a dispute with Bear Productions, based on the Union's belief that that Company was reneging on an earlier commitment made to the Union to hire people re- ferred by the Union. Accordingly, the Union established an informational picket line at the Bear ,Productions film sites including one at Agnes Scott College- in Decatur, Georgia, where Henkin was working. Henkin admitted in her testimony that she observed such a picket line about December 20, 1983. In an effort to' resolve the dispute with Bear Produc- tions, Deaton testified that he met with officials of that company at the Agnes Scott College site. While there, Deaton testified that he observed Henkin working for Bear Productions, along with several other union mem- bers including Jerry Lyles, Barbara Lyles, Sarah Lyles, Keith Scherer, Rober Arnold, and Rober Kempf. One other nonunion member who had utilized the union hall, Joyce Fain, was observed by Deaton. Upon returning to the union hall from the Agnes Scott College site, Deaton removed the names of all those individuals he had seen working on the Bear Productions job from the referral list.2 Deaton testified that the basis for this action was his conviction that they had all falsified their affidavits in that they had claimed therein that they had no other em- ployment other than through Local 41. In addition to re- moval of the individuals from the A list and the referral system, internal charges against those who were union members were filed by A. W. Collins Jr., president of the Union, on January 11. According .to Deaton's testi- mony, undisputed in this regard, many of those who were removed from the referral list filed new applica- tions for the system and were ultimately reinstated. Three union members did not, nor did Henkin nor Joyce Fain, and they were never reinstated. It appears that Henkin was not advised, that her name had been removed from the referral system until Febru- ary 10 when, as she testified, she called Collins and- asked 2 The record does not reflect the exact date when the removal of the STAGE EMPLOYEES IATSE LOCAL 41 (THEATER OF STARS) 97 him how the new referral system was working and how she needed to fit into it. Collins, according to Henkin, re- sponded that at the January 7 membership meeting, Henkin had been voted detrimental to the Union, her name removed from the work list, and that the invitation extended to 44 other nonmembers working from the A list to join the Union was not extended to Henkin.3 Henkin further testified that she inquired of Collins how she could appeal the Union's action, and he suggested that she needed to send a letter to the Union's executive board asking for a vote by the general membership at the next meeting. With respect to the Union's conclusion that she was detrimental to it, Henkin testified, without specific contradiction, that Collins explained it was be- cause she had crossed the picket line at Bear Produc- tions. On February 25, Henkin wrote the Union's executive board referring to the conversation she had with Collins, noting that her name had been removed from the A list and referring to the Union's determination not to extend to her an invitation being extended to 44 other non- members working on the A list to join the Union. She requested that the Union's decision be appealed through the next scheduled membership meeting where it could be discussed and revoted upon . Noting that the next scheduled membership meeting should take place about March 4, Henkin requested in her letter that if there were procedures she needed to be aware of in conjunc- tion with this "appeal," she should be advised of them in adequate time for her to follow them. Henkin received no reply to this letter. Henkin testified that on - March 19 , she telephoned Deborah Henderson, secretary-treasurer of the Union, and asked the status of Henkin's "appeal." Henderson stated she did not know, but the following day she told Henkin that her letter had not been read at the March membership meeting but that it would be at the April meeting. On April 6 Henkin talked to Walter Command- er who had become the Union's business agent after Feb- ruary 5. She inquired about the status of her appeal but Commander was unfamiliar with it and suggested that she get back with him later. She did so on April 10 and Commander advised her that her letter had not been read. On April 24, she inquired of Commander again about the status of her appeal and he told her first that the executive board had to read it and'decide if it should go to the general membership meeting and that the exec- utive board would try to decide it before the next mem- bership meeting . Moreover, Commander said that she needed to take the matter up with Collins because Com- mander was not sure that Henkin had any appeal rights as a nonmember. Commander said that he would get back to Henkin but she did not hear any further from him. On June 21 Henkin called Henderson and told her she understood that the matter had been resolved by her at- torney and that she, "Henkin, was back on the work list. 3 Collins, in his testimony for Respondent, acknowledged Henkin's call but claimed that she indicated she had already heard of the Union's ded- sion not to extend a membership invitation to her He did not deny that he told her she had been removed from the referral lists Henderson acknowledged no such understanding, and the Union in fact never placed Henkin 's name on any of the referral lists. ~Henkin testified that she encountered John Deaton on August 7 outside a local bar. Deaton commented about her working on another nonunion movie. Henkin replied that the Union would not have her and she had to do something to which Deaton , who was no longer business agent at the time, remarked that she should not have crossed the picket lines. Henkin replied that that was not the problem and Deaton responded , "Oh, but that was the problem . You shouldn't have crossed the picket line." Deaton, in his testimony for the Union, denied the remark attributed to him by_ Henkin, although he ac- knowledged the August 7 encounter with Henkin. He testified that he remarked that he saw she was again working on a scab movie to which 'Henkin had replied that she did not get any referrals from Local 41. Dea- ton's response was only, "I wonder why." As a witness, Henkin was articulate, candid, and precise. She testified with conviction and apparently good recall. I found Deaton less persuasive, somewhat , ill at ease, and defen- sive. Accordingly, I credit Henkin where her testimony contradicts that of Deaton. C. The Institution of Union Charges Against Glover and His Removalfrom the A List to the C List Glover became a member of the Union in April. How- ever, he had received referrals by the Union to jobs under the prior referral system beginning about Septem- ber 1980. Glover testified that he was familiar with the new referral system which was instituted on December 1, 1983 . Like Henkin, Glover executed a' qualification statement when the new system became effective, along with an affidavit to the effect that he was not then regu- larly and/or currently employed at any other job. Based on his qualification statement and his 'affidavit, Glover was qualified for, and in fact was placed on, the A list. According to Glover, he was made aware of no changes in the operation or interpretation of the new referral system but acknowledged that he received a notice to all 'referral applicants about March 26 notifying them that the referral system had been established pursuant to a court order and that some referrals were violating or conspiring to violate the order by soliciting and/or ac- cepting employment with companies that were signatory to agreements with the Union. The notice stated that this practice violated the Union's constitution and bylaws and constituted conduct unbecoming a member. Further, the notice stated that the Union considered ' that any member or referral from the Union who continued in such activi- ty was in violation of the court order and/or the Union's constitution and bylaws and that the Union intended to bring either contempt of court charges' against the refer- ral or company violating the court order and/or the con- stitution and bylaws of the Union and that grievances would be filed against each company engaged in such ac- tivity and charges would also be preferred against the re- ferrals. Glover testified that he subsequently inquired of union secretary-treasurer Deborah Henderson about the 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of the March 26 notice and Henderson informed him that it had to do with certain "C listers who were obtaining their work directly from companies." According to Glover, on June 22 he became employed by Cassandra Henning Studios, an employer who was not signatory to a contract with the Union. Glover ad- mittedly received such employment through Entertain- ment Technicians, Inc. (ETI), a labor referral service op- erated by former Union Business Agent Robert Segars. While Glover related that he did not execute a specific or exclusive agreement with ETI , he did pay ETI a re- ferral fee equivalent to that which he would have paid the Union for a referral. It is undisputed that Glover did not advise the Union when he obtained the employment with Cassandra Hen- ning Studios. It is likewise undisputed that about June 25, Business Agent Walter Commander observed Glover and certain other union members working on the Cassan- dra Henning job. As a result, Commander returned to the Union's office where he removed Glover and the other union members he had observed from the A list and put them on the C list, the part-timer list. In addi- tion, on June 30, Commander filed internal union charges against Glover contending that he breached the Union's constitution and bylaws by making payments to and ren- dering services for an antiunion employment agency, ETI. The hearing on the internal union charges was held on July 26 and a decision rendered on that date by the executive board of the Union concluding that Glover had interfered with the "collective bargaining rights of Local 41 by his actions in working through ETI." The executive committee therefore recommended that he be placed on probation for 12 months and returned to the A list. The record reflects that Glover returned to the A list on September 5.4 The record shows that the Cassandra Henning job on which Glover had worked ended the latter part of June and that Glover resubmitted a new affidavit to the Union around mid-July. D. Arguments of the Parties As I understand the General Counsel's oral argument at hearing, the Union violated Section 8(b)(1)(A) and (2) of the Act with respect to Henkin and Glover by chang- ing their status on the A list. Because the Union's action with respect to them was not based on any specific pro- visions set forth in the terms of the hiring hall system, the Union's basis for its action, according to the General Counsel, was premised on the whim and discretion of the Union's business agents, Deaton and Commander. There was nothing within the terms of the hiring hall proce- dure, including the affidavit, executed by referral appli- cants which restricted their temporary employment with nonunion employers outside the hiring hall system which would justify the Union's actions. Nor were Henkin and Glover advised regarding steps to be taken should they encounter a change of their availability status on the re- ferral lists if they obtained such employment. They were 4 Although internal union charges were filed against the other persons found working on the Cassandra Henning job, the record does not reflect what the disposition of those charges was. only required to indicate on the hiring system affidavits that they were not currently employed or regularly em- ployed at the time they applied for referrals. The Gener- al Counsel points out that even Collins in his testimony admitted that "regularly employed" within the meaning of the affidavit for the referral system does not include limited duration jobs which are normally the type the Union refers applicants to. Further, there was nothing in the terms of the referral system which restricted status on the A list only to persons who relied exclusively on the hiring hall for employment . Only employment by employers signatory to exclusive referral agreement could be restricted, the General Counsel asserts . In short, by engrafting its restrictive interpretations on the hiring hall without advising referral applicants beforehand, the Union violated Section 8 (b)(1)(A) and (2), the General Counsel contends. Moreover, with respect to Henkin, the General Coun- sel argues that she was stricken from the A list solely be- cause she worked behind the Union 's- picket line at the Bear Productions' site. But even assuming that Henkin was not removed from the A list for this reason, the General Counsel further argues that her removal was nevertheless discriminatory because some union members working on the same job had appeal rights and were re- turned to the A list while Henkin had no such rights and was never returned to the A list or advised of how she might again be restored to the list. Henkin's removal was further discriminatory when contrasted with Glover's sit- uation. Glover, a union member, was only transferred to the C list for working with an employer not signatory to the Union's referral system while Glover was still seek- ing referral through the system. Such disparate treat- ment, it is argued, was inherently discriminatory. In connection with Glover, the General Counsel argues that the Union discriminated against him by taking him off the A list without notice or without an investigation or an opportunity to contest his removal as required under the referral procedures . Further, he was never advised that execution of a new affidavit was nec- essary for his return to the A list, and he was not imme- diately returned to the A list in any event after he belat- edly completed a new affidavit . The treatment of Glover violated Section 8(b)(1)(A) and (2) of the Act, the Gen- eral Counsel argues. The Union asserted at the hearing that the Board's ju- risdiction in this cas e had been preempted by the Federal district court action and the court 's retention of jurisdic- tion of the hiring procedures. Even assuming that the Board's jurisdiction was not preempted by the court's action, the Union argues that the matter should neverthe- less be deferred to the district court because, ' under court procedures, a party aggrieved by the operation of the re- ferral system can file a petition for contempt and have his rights adjudicated through the court. With respect to the merits of the complaint allegations, the Union argues that the Union had a legitimate purpose in enforcing a work referral system that guaranteed that those people on the A list were not seeking employment outside the system. The ostensible purpose was to ensure equal distribution of work opportunities to all persons STAGE EMPLOYEES IATSE LOCAL 41 (THEATER OF STARS) utilizing the referral system. The Union disclaims any ar- bitrary or discriminatory treatment of referral applicants. To the extent that different business agents followed dif- ferent paths in removing people from the A list, the Union argues that under the Union's constitution and bylaws, the business agent was entitled to some discre- tion in the operation of the Union's business and the Union's hiring hall. More specifically, with respect to Glover and Henkin, the Union argues that both were removed from the A list because of,their violation of conditions under which they were placed on a list, i.e., the absence of current or regular employment. According to the Union, the re- quirements of the A list and referral were always consist- ently and fairly enforced. Further, the Union argues in Henkin's case that al- though she was removed from the A list after 'she was observed working behind, the picket line, such removal was a consequence of the work she solicited on her own and not the fact that she crossed the picket line. As evi- dence of lack of disparate treatment of Henkin, the Union cites its actions against union members who worked on the same job and who, as a result, were re- moved from the A list and were subjected` to internal union charges. In this regard, the Union also cites the fact that Glover was removed from the A list when it was learned that he obtained his own employment out- side the referral system. It is also argued by the Union that its actions with re- spect to Glover were lawful because Glover was aware that the Union interpreted the referral procedure to -pro- hibit referral applicants from securing employment out- side the system. `In this regard; Glover admitted in his testimony that he had been told by Deaton or Collins in December 1983 that he had to be working through the Union and no one else to utilize the referral system. Glover admittedly understood that "you better not let anybody catch you if you got work [outside the referral system]." E. Conclusions Consideration of the issue of the Board's jurisdiction in this proceeding, in light of the pending LMRDA -suit, must begin with the Supreme' Court's decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), in which it was held ° that claims which even ar- guably constitute unfair labor practices under the Act are subject to the jurisdiction of the Board and Federal and state courts must decline jurisdiction in favor of the Board. The purpose of the Board's preemption - of the Federal courts in this area was in furtherance of the con- gressional aim of ensuring a national labor policy. See Connell v. U.S. Steel Corp., 516 F.2d 401 (5th Cir. 1975). The enactment of the LMRDA of 1959, Section 101 et seq., 29 U.S.C. § 411 et seq. conveyed upon Federal courts specific jurisdiction for enforcement of 'union members' "bill of rights" found in Section 411 of the LMRDA. It has been held that this specific grant of ju- risdiction by Congress gives Federal courts jurisdiction under the LMRDA which has precedence over applica- tion of the primary jurisdiction rule set forth in Garmon. See Boilermakers v. Braswell, 388 F.2d 193 (5th Cir. 99 1968); Boilermakers v. Hardeman, 401 U.S. 233 (5th Cir. 1971); Vandeventer v. Operating Engineers Local 513, 579 F.2d 1373 (8th Cir. 1978). However, the LMRDA does not provide persons' who are not members of a labor or- ganization with a cause of action for violations of Sec- tion 411. See MacKenzie v. Operating Engineers Local 624, 472 F. Supp. 1025 (N.D. Miss. 1979). In the instant case, it is clear that Henkin was not a member of the Union and could have no cause of action under the pending dis- trict court proceeding, notwithstanding the fact that the referral procedure was established under the court's su- pervision and with its approval. Henkin's complaint amounts to a routine allegation of an unlawful refusal to refer out of a hiring hall in violation of the Act. As was said in Barunica v. United Hatters Local 55, 321 F.2d 764, 766 (8th Cir. 1963), "[I]t is the kind of controversy with respect to which it has been historically held that the Board has exclusive jurisdiction to afford primary relief." Accordingly, I conclude, contrary to Respondent 's argu- ments, that the district court proceedings did not pre- empt the Board's jurisdiction in the case of Henkin. I reach a similar conclusion with respect to Glover's situation. Glover's membership in the Union and the issue of the legality of the Union's discipline of him may arguably raise issues cognizable under the LMRDA and subject to the court's jurisdiction. However, Section 413 of the LMRDA specifically provides that: Nothing contained in this title shall limit the rights and remedies of any member of a labor organization under any state or federal law or before any court or other tribunal or under the constitution of bylaws of any labor organization. And- the LMRDA Section 603(b), 29 U.S.C. § 523(b) provides that "Nothing contained in Titles I, II, III, IV, V, or VI of this Act shall be construed to . . . affect the rights of any person under the National Labor Relations Act." Glover was not a member of the Union when the hiring hall system was established by the court, and he has not sought to invoke the district court's jurisdiction with regard to his complaint against the Union. Instead, he opted to exercise those rights under the National Labor Relations Act which were specifically not pre- cluded or affected by the LMRDA action over which the district court retains jurisdiction. Accordingly, and also because there appears to be little likelihood of a con- flict between the court's establishment of the hiring hall and the Board's consideration of this case in light of the General Counsel's concession that the terms of the hiring hall,,as approved by the court, are not being attacked in this proceeding, I find and conclude that the Board's ju- risdiction in the case of Glover has not been preempted by the district court proceeding. 'I likewise reject the Union's argument that the Board should, in effect- defer the instant complaints of Henkin and Glover to the district court where review of the Union's action can- be obtained through a petition for comtempt. The Union cited no authority for its argument in this regard. Although the Board in -the past has adopt- ed a policy of deferring complaints arising under Section 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(l) and (3) and Section 8(b)(1)(A) and (2) of the Act to existing grievance and arbitration provisions found in collective-bargaining agreements between employers and unions, United Technologies Corp., 268 NLRB 557 (1984), Collyer Insulated Wire, 192 NLRB 837 (1971), it has never adopted a policy of deferring 8(b)(1)(A) and (2) cases to a union's internal grievance machinery. Operat- ing Engineers Local 400 (Hilde Construction Co.), 225 NLRB 596 (1976). Nor has it deferred resolution of such cases to other tribunals. Such deferral here would consti- tute an abdication, of the Board's responsibilities and would render ineffective and meaningless the rights ex- tended in the provisions of the LMRDA quoted, supra, particularly where the charging parties, as here, indicat- ed no willingness to have their complaint so deferred. Accordingly, I find and conclude that deferral to the court proceedings in this matter is inappropriate and un- warranted. Turning to the merits of this case, the principles un- derlying violations of the Act in connection with oper- ations of hiring halls are well settled. Unions may oper- ate exclusive hiring hall systems but may not use such systems to discriminate on the basis of union membership in violation of Sections 8(a)(3) or 8(b)(2). Plumbers Local 17 (FSM Mechanical Contractor), 224 NLRB 1262 (1976). On the other hand, if a hiring hall system is not an exclu- sive one, it is not unlawful even if operated solely for the benefit of the union's members. Penzel Construction Co., 185 NLRB 544 (1970). The Union nevertheless violates Section 8(b)(1)(A) and (2) if it discriminates against its members in the operation of even an nonexclusive hiring hall system. Operating Engineers Local 4 (Carlson Corp.), 189 NLRB 366 (1971); Laborers Local 135 (Bechtel Corp.), 271 NLRB 777 (1984). A union may protect the integrity of the hiring system by refusing to refer individ- uals who breach the rules of hiring hall operations. It may even enforce adherence to the system by lawfully demanding the discharge of an employee hired in breach of the system. Painters Local 487 (American Coatings), 226 NLRB 299 (1976). Defense by a union of discrimination charges in the operation of a hiring hall must be predicated on the showing that the individual charging discrimination failed to comply with nondiscriminatory hiring hall or that the union's conduct with respect to the individual charging discrimination was based on "a legitimate con- cern for the other unit employees . . . [and] that its action in taking its position was not arbitrary, irrelevant, or invidious." Machinists Local 68 (West Winds, Ina), 205 NLRB 132, 133 (1973). Any departure from established procedures in the operation of a hiring hall resulting in a denial of employment constitutes discrimination which inherently encourages' union membership. Operating En- gineers Local 825 (Building Contractors), 272 NLRB 186 (1984). With respect to the General Counsel's claim that the Union removed Henkin from the referral system and thereafter refused to refer her because she crossed the picket line to work at' Bear Production, Henkin's uncon- tradicted testimony established that she was told by Col- lins in her conversation with him on February 10 that she was denied membership in the Union because she had crossed the picket line. Because he also advised her that she had been removed from the Union's referral list, the implication remained that such removal was for the same reason. Similarly, Henkin's testimony regarding the comment to her by Deaton in August reflects the Union's concern with her having crossed the picket line. And the Union's displeasure generally with those who crossed the picket line at Bear Productions was further revealed by its filing of internal charges against its own members for working on the Bear Productions job. The General Counsel, based on this evidence, has, I conclude, established a clear prima facie case that Henkin's remov- al from the referral system resulted from her involve- ment of protected activity, i.e., the right to refrain from engaging in union activity. Accordingly, the Union must demonstrate that it would have taken the same action against Henkin even if there had been no picket line and thus not protected by Henkin. The Union has attempted to satisfy this burden, in effect, by showing that Henkin would have been removed from the referral system be- cause she "falsified" her affidavit regarding her availabil- ity for employment. This falsification argument is largely techincal and turns upon the interpretation of the referral system by the Union that the A list was restricted to per- sons who sought employment exclusively through the Union. The General Counsel counters this position by as- serting that such interpretation of the referral procedure in actuality constitutes a significant change in the referral procedure imposed by the Union on the referral appli- cants and members without notice to them and was therefore in itself violative of Section 8(b)(1)(A). See Op- erating Engineers Local 406 (Ford,-Bacon & Davies), 262 NLRB 50, 51 (1982), enfd. 701 F.2d 504 (5th Cir..1983). Contrary to the General Counsel, I find that the Union's restrictive interpretation of the referral system did not constitute the creation of a change in the referral procedure. It was evident from the beginning that the Union viewed the A list as being limited to those referral applicants who were relying on the Union as their sole source of employment referrals. Not only was it clear initially that the Union was taking this position, but it ap- pears that both Henkin and Glover were, informed of it either shortly after or before the time the new referral system was inaugurated. Thus, Joseph Pruitt, vice presi- dent- of the Union, testified, without specific contradic- tion from Henkin that he talked to Henkin in November 1983 about the new referral system while the two were working together on the "Rock-and-Roll Alien" film after learning that Henkin had solicited further employ- ment from that employer for subsequent jobs. According to Pruitt, whose testimony is credited in this regard, he told Henkin that she was on the job on referral from the Union, that the Union was under contract with the em- ployer as exclusive bargaining agent, and that she could not tell the employer not to go through the Union but to call her directly for further work. When Henkin replied that she would get her job any way she wanted, Pruitt responded that the Union was going into a full-time re- ferral system in December, and that once that system was in place, she would not be able to secure her own work. Pruitt's comments to Henkin clearly reflect that STAGE EMPLOYEES IATSE LOCAL 41 (THEATER OF STARS) the Union contemplated that priority in referral in its new system would be restricted to those who were not securing employment outside the hall. Similarly, Glover in his testimony, admitted that in December, about the time he signed his affidavit as re- quired under the new hiring hall system, he was told by Deaton and Collins that he could not have another job or go to shcool and be on the A list. More specifically, he was told he had better not be caught with another job. The Union's restrictive interpretation limiting the A list to people relying exclusively on the Union for em- ployment referrals receives support from the fact that there is no provision in the referral procedure for notifi- cation to the Union of employment outside the referral system by those on the A list. The absence of such pro- vision clearly suggests that the system contemplated that there would be no notification necessary because the Union would have knowledge of all employment of A listers by virtue of their referrals. Furthermore, by estab- lishing the C list, the system specifically accords lower priority in referral to persons having other employment. It would be incongruous to provide such a category if the system contemplated that those on the A list could also receive work, even of a temporary nature, outside the referral system and still retain priority in referral. Accordingly, I find no institution of a new rule or' a change of the referral procedure without notice of the referral applicants as involved in Operating Engineers Local 406, cited by the General Counsel. I, therefore, find no violation of Section 8(b)(1)(A) of the Act in this regard. I also reject the General Counsel 's apparent position that the Union's restrictive interpretation of the hiring is unlawful in itself because it has no legitimate purpose and is premised upon arbitrary , irrelevant, and invidious considerations. The Union maintains an obvious interest in operating a hiring hall system which provides an equi- table opportunity for jobs for all who seek to use the system. It is apparent that those who seek employment outside the system, while at the same time maintaining a priority referral position within the system , have a dis- tinct advantage over those who rely solely upon the system for employment. There is no evidence in this case that the Union re- ferred individuals to employers who were not signatory to a bargaining agreement with the Union or who did not maintain union standards with respect to working conditions. Therefore, those individuals relying exclu- sively on the Union's referral system for employment would be penalized , in effect, for relying on the referral system to ensure union standards in employment if other users of the system could , with impunity, obtain employ- ment outside the system while remaining eligible for pri- ority referral through the system. The General Counsel argues that no unfairness could exist in such a system be- cause those accepting employment outside the system would not be available for referral within the system during such employment. This argument presumes the unlikely proposition that those working outside the system would not quit such employment to accept a re- ferral within the system to a job under possibly higher 101 standards and rates of pay. Clearly the Union has no way of policing employment outside the system. Further- more, allowing an individual to retain priority status on thee A list while being employed outside the system ren- ders meaningless the C list which accords a lower refer- ral priority to those who have such other employment. Accordingly, I find the Union's restrictive interpretation of its hiring system was not inherently discriminatory nor was it based on arbitrary, irrelevant, or invidious considerations. In view of the' above, I find that, notwithstanding my conclusion that the Union's removal of Henkin from the referral system was based, in part, on her activity in crossing the picket line at Bear Productions, she would have, in any event, been removed from the A list by the Union because she had obtained employment outside the system. I therefore find no violation of Section 8(b)(1)(A) or (2) of the Act in this regard. On the other hand, I concur in the argument of the General Counsel that Henkin was the object of disparate treatment when the Union removed her from the referral system altogether. In this ' regard, the evidence shows that Glover, a union member, was not altogether re- moved from the referral system when it was discovered that he, had engaged in the same conduct for which Henkin had been removed from the system . Although Glover was removed from the A list, he was put on the C list. The Union's only explanation for this disparate treatment was that it was due to the reaction of two dif- ferent business agents whom the Union appears to claim must be allowed some discretion . The Act does not allow the exercise of such discretion which has the clear effect of encouraging union membership for employees who have perceived the exercise of such discretion. The only basis for the distinction here between the treatment accorded to Glover and Henkin is Henkin's lack of union membership. Such discrimination in the operation of an exclusive hiring hall clearly encourages union member- ship in violation of Section 8(b)(1) and (2). See Operating Engineers Local 825, supra. Moreover, the record reflects that the union members who worked with Henkin at Bear Productions outside the referral system were returned to the A list although the record does not show exactly when.5 Again, the only distinction between the treatment accorded the union members who were returned to the A list and that accorded to Henkin who was never returned to the A list was Henkin's lack of union membership . In view of this disparate treatment, the Union's actions with respect to Henkin, in removing her from the system completely, must be concluded to be violative of Section 8(b)(1)(A) and (2) of the Act. I also find that the Union independently breached its duty of fair representation to Henkin by not establishing a procedure whereby she might be restored to the A list and otherwise by failing and refusing to explain to her 5 Although the record reflects that not all individuals working on the Bear Productions job who were removed from the referral system by the Union were not returned to the A list, the record does not reflect that such individuals ever sought to be returned to such list or to any position in the referral procedure 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how she might regain status in the Union's referral system. Although it may be argued that Henkin's com- munications with the Union on March 10 and thereafter were directed primarily to her effort to join the Union, it is clear that she perceived union membership as the only basis for her restoration to the referral system. Indeed, in her latter to the Union's executive board on February 25, she- stated that she had learned from Collins that the membership meeting had voted to remove her from the A list and exclude her from an invitation extended to other nonmembers working from the A list to join the Union. Thus, it is clear that Henkin viewed the removal from the list as coupled with her membership rejection. The Union made no effort to dissuade her from that point of view or otherwise to advise her how she may be restored to the referral system. Because no established procedures existed for restoring an individual to the re- ferral system, the Union did not and could not keep those seeking referral through the system informed about matters critical to their employment status as it was obliged to do under its duty of fair representation of all users of the exclusive referral system. See Plumbers Local 198 (JacobslWiese), 2168 NLRB 1312 (1984). Accordingly, I find that it breached its duty of fair representation to Henkin and, in that respect, violated Section 8(b)(1)(A) of the Act. Turning to the Union's treatment of Glover, I have al- ready observed that Glover was told at an early date that he would not be entitled to have other employment and remain on the A list. In spite of that, he obtained employment through an independent employment refer- ral system in June. Because he obtained employment,- I conclude the Union did not act arbitrary or discrimina- torily when it sought to maintain the integrity of its re- ferral system by dropping Glover to the C list and by disciplining him through internal union charges. As a result of such - charges, he was put on probation for 12 months by the Union's executive board. Although the ex- ecutive board concluded that Glover should be returned to the A list, he was not returned to such list until Sep- tember 5, and the record contains no explanation for the delay in reinstating Glover. Thus, Glover was effectively denied access to the A list between mid-July when he signed a new affidavit for the system indicating his avail- ability and desire for referral September 5. Although his preclusion from the A list for this period of time as a dis- ciplinary measure appears unduly harsh, the degree of harshness is not a matter of Board concern so long as the basis for the discipline is not discriminatory or otherwise based on unlawful considerations. See Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432 -(1983); Longshore- men ILA Local 1838 (Ryan Stevedoring Co.), 179 NLRB 425 (1969). No such considerations having been found herein, I.conclude that the Union did not violate Section 8(b)(1)(A) or (2) of the Act in preparing charges against or disciplining Glover or by removing him from the A list. CONCLUSIONS OF LAW 1, Theater of the Stars and Andrews-Bartlett and As- sociates, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Respondent Union, International Alliance of Theat- rical Stage Employees and Moving Picture Machine Op- erators of the United States and Canada, Local #41, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act by discrimina- torily removing Hilary Henkin from its referral system because of her lack of membership in the Union and thereafter failing and refusing to reinstate her to such system in the same, manner as union members similarly situated. 4. Respondent Union violated Section 8(b)(1)(A) of the Act by failing and refusing to inform Hilary Henkin how she could be reinstated or restored, to her previous posi- tion in the Union's exclusive referral system. 5. Respondent Union did not violate Section 8(b)(1)(A) and (2) of the Act in removing Samuel Glover from his position on the A referral list or in preparing internal charges against him and disciplining him. 6. Respondent Union did not violate Section 8(b)(1)(A) or (2) of the Act in any other manner alleged in the complaint. 7. The unfair labor practice set forth above in para- graphs 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found the, Union has engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom. I shall also recommend that it take certain affirmative action necessary to effectuate the policies of the Act to include the posting of the usual notice to members. Having found that the Union violated Section 8(b)(1)(A) and (2) of the Act by discriminatorily remov- ing Hilary Henkin from its exclusive referral system, thereby precluding her referral through the system, I recommend that the Union be required to make Henkin whole for any loss of earnings and other benefits she may have suffered by reason of the discrimination against her from the time she was removed from the re- ferral system to the time she is reinstated. Any such loss of earnings is to be determined on the basis of available referrals from the respective referral classifications in which she would have been placed absent her discrimi- natory removal from the referral system.6 Backpay, less interim earnings, together with interest shall be comput- ed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).' [Recommended Order omitted from publication.] 6 This provision contemplates that absent her discrmmnatory removal from the system, Henkin would have been reduced to the C list upon dis- covery of her work at Bear Productions in the same manner , as the Union had acted upon discovery of Glover's employment outside the system and reinstated to the A list at the same time the first union member dis- covered working at Bear Productions was reinstated to such list See generally Isis Plumbing Co, 138 NLRB 716 (1962)