Stage Employees Iatse Local 41 (Atlanta Ballet)

STAGE EMPLOYEES IATSE LOCAL 41 (ATLANTA BALLET) International Alliance of Theatrical Stage Employees Union, Local No. 41 (Atlanta Ballet) and Lewis Parham. Case 10-CB-4665 26 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 8 April 1986 Administrative Law Judge J. Pargen Robertson issued the attached decision. The General Counsel 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. i ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Alliance of Theatrical Stage Employees Union, Local 41, Atlanta, Georgia, its officers, agents, and representatives, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge.2 i The General Counsel's exceptions urge modification of the recom- mended Order to include a provision for a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Re- spondent under the Federal Rules of Civil Procedure under the supervi- sion of the United States Court of Appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause 2 We shall issue a new notice to conform more fully to the recom- mended Order APPENDIX NOTICE To EMPLOYEES AND 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 cause the discharge of, or fail and refuse to refer, employee Lewis Parham following specific request by Atlanta Ballet in violation of rights guaranteed employees by Section 7 of the Act. 1127 WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Lewis Parham whole, with inter- est, for the loss of employment he suffered by our unlawful action. WE WILL notify Lewis Parham that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. INTERNATIONAL ALLIANCE OF THE- ATRICAL STAGE EMPLOYEES UNION, LOCAL No. 41 Gaye Nell Hymon, Esq., for the General Counsel. William L. Hazleton, Esq. (Hazleton and Sweet), of Atlan- ta, Georgia, for the Respondent. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This matter was heard in Atlanta, Georgia, on 28 Febru- ary 1986 The complaint was filed on 23 December 1985 pursuant to a charge filed 5 November, and amended 11 December 1985. The complaint herein alleges that Respondent refused to refer employee Lewis Parham to an Atlanta Ballet job at the Civic Center in Atlanta since 3 November 1985. Respondent admitted that it is a labor organization. Respondent denied the commerce allegation of the complaint. However, the record proves that Atlanta Ballet is a Georgia corporation and an employer. During the calendar year ending 31 December 1985, Atlanta Ballet received gross revenues in excess of $1 million and purchased in excess of $25,000 in goods from suppliers outside the State of Georgia In view of that evidence, I find that Atlanta Ballet is an employer within the mean- ing of Section 2(6) and (7) of the National Labor Rela- tions Act. The facts in this matter reveal, without contest, that Lewis Parham and three other "department heads" were supplied Atlanta Ballet by Union Steward Gary Bonner on Friday, 1 November 1985. Bonner testified that he has held the position of union steward (also known as house steward) at the Atlanta Civic Center since 1980. During the week ending 1 November 1985, on Wednesday or Thursday, Bonner received a call from Atlanta Ballet for a crew "to pre-hang" the props for an upcoming ballet. The call was restricted to only depart- ment heads on Friday with the remainder of the crew scheduled to begin work on Monday, 4 November 1985. The requested department heads were all specifically re- quested by the Ballet, and included Bonner, head carpen- ter; Talmadge Westbrook, head electrician; Randy McGill, head sound; and Lewis Parham, head prop. Bonner received the request from Dena Kirkland, pro- duction manager at Atlanta Ballet. 280 NLRB No. 65 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Bonner and Dena Kirkland testified that it was normal procedure for the Ballet to fill its stage positions as it did in this instance.' On 1 November 1985 the department heads, including Lewis Parham, reported to work for Atlanta Ballet at the Civic Center to prehang the set. Late in the day on 1 November Respondent's business agent, A. W. Collins Jr., visited the set. Collins had become business agent only a few days before, around 8 or 15 October. Collins admitted visiting the set and Lewis Parham recalled that he saw Collins while he and the other department heads were working on 1 Novem- ber. As admitted by Respondent in its brief, "[a]t the end of the first day [1 November 1985], Parham was notified by Gary Bonner that A. W. Collins Jr., business agent, had removed him from the job." Subsequently, according to the testimony of Ballet Production Manager Dena Kirkland, she talked with Re- spondent's business agent Collins on Sunday, 3 Novem- ber 1985: A. Yes. I had called him because Gary Bonner had notified me that Collins had told him that I could not use Lewis Parham as my head of props. So I called up A. W. to ask him exactly what was his problem and why I couldn't do that. I explained to him that, you know, we had done it in the past. He told me that we had no agreement right now and therefore I was-I had no right to request him. And I went to a different scenario-what was to happen if I hired him directly. He said that if I was to hire him directly that, you know, that would cause even more problems and alluded to the fact that I didn't want those kinds of problems that I'd had previously two years ago on the Nutcracker. Q. Would you explain what happened two years ago on the Nutcracker? A. I hired a number of people directly-all mem- bers of Local 41, but I hired them directly, not through the hiring hall. And the employees that I had in the Fox Theatre at that time went out and picketed.2 i There was no evidence regarding specific occurrences that conflicted with Bonner and Kirkland's testimony that the I November 1985 job was staffed in accord with normal procedures Grady Rogers, a former busi- ness agent of Respondent, did testify that calls are never to be filled "di- rectly by house stewards." However, Rogers served only 4 months as business agent from the first week of June to the first week of October 1985 The ballet season runs from August through April, and Rogers ad- mitted that Lewis Parham worked a ballet job while Rogers was serving as business agent . Rogers testified that he did not recall referring Parham to that ballet job Rogers did not testify with specificity concerning how any of the ballet jobs had been filled Contrary to Rogers , Respondent called former Business Agent A W Collins Jr. who testified that "house crews" are always called by the steward Therefore, I credit the testimo- ny of Bonner and Kirkland regarding the normal referral procedure at the Ballet 2 A W Collins Jr denied that he talked with Kirkland on Sunday, 3 November, and he denied that he threatened her with problems similar to those "on the Nutcracker " Collins' testimony indicated confusion and an inability to fully recall the events of the removal of Lewis Parham Dena Kirkland illustrated good demeanor She demonstrated neither bias nor prejudice in this matter and appeared to testify impartially Therefore, I credit Kirkland's testimony. CONCLUSIONS There is no doubt that Lewis Parham was referred to the ballet job at the Civic Center by Respondent on 1 November 1985. Parham worked on that job throughout 1 November. The evidence was not contested that Atlanta Ballet, in accord with established procedure, requested four de- partment heads to begin work on 1 November. That re- quest was made to Respondent's job steward Gary Bonner. Bonner testified without dispute that he called the Local regarding the request. The evidence is also undisputed that it was normal procedure for the Ballet to handle job requests as it did around 1 November 1985, and in fact, Lewis Parham had been referred to an earlier ballet job in 1985 through the same procedure.3 Despite the contention of Respondent in its brief that Parham knowingly accepted an illegal referral, the record fails to show that Parham either knew of or par- ticipated in any way in the referral on or before 1 No- vember. The evidence shows an established policy of Atlanta Ballet making referral requests through the house stew- ard. Over a period of years, the steward demonstrated implicit authority to handle those arrangements. More- over, Respondent's business agent A. W. Collins Jr. ad- mitted that "house crews are always called in by the shop steward." By that testimony, Respondent admitted that Bonner had express authority to call in-house crews. Respondent admitted that all the department heads called on the 1 November ballet job, with the exception of Parham, were members of the house crew. On the basis of the record, I find that Gary Bonner in his role as house steward was an agent of Respondent. NLRB v. Electrical Workers IUE Local 745, 759 F.2d 533 (6th Cir. 1985); Tri-State Building Trades Council (Back- man Sheet Metal), 272 NLRB 8, 21 (1984). In view of Gary Bonner's status as Respondent's agent and in view of the referral being handled in accord with established practice with no showing of impropriety, I find that Lewis Parham was referred by Respondent to the Atlanta Ballet job on 1 November 1985. Lewis Parham was specifically requested by Atlanta Ballet to fill the position of head prop beginning on 1 November and continuing throughout the existence of the job. The parties do not dispute that specific referral requests were in accord with the terms of the collective- bargaining agreement between Respondent and Atlanta Ballet, which expired on 22 March 1983. The record shows that although the parties have not agreed to a new collective-bargaining agreement, both Respondent and Atlanta Ballet have continued negotiations since March 1983 without reaching an impasse. s Former Business Agent Grady Rogers testified that Parham was re- ferred to the October 1985 ballet job because there was a great demand for referrals during that time requiring the referral of all available em- ployees from the referral list Nevertheless, there was no evidence show- ing that Respondent ever questioned the Ballet's procedure for requesting referrals STAGE EMPLOYEES IATSE LOCAL 41 (ATLANTA BALLET) Nevertheless, Respondent argues that the Atlanta Bal- let's specific referral request for Lewis Parham in this in- stance was illegal because: (1) The collective-bargaining agreement between Respondent and Atlanta Ballet had expired; (2) Respondent was obligated to make referrals under an extant settlement agreement in a federal district lawsuit which forbids specific referral re- quests; and (3) The instant job was performed pursuant to a col- lective bargaining contract between Respondent and the Atlanta Civic Center which does not pro- vide for specific referral requests. I find that Respondent's arguments lack merit. Concern- ing its first argument, the record failed to show that Re- spondent and Atlanta Ballet have ceased applying rele- vant job-referral provisions of their expired collective- bargaining contract. In fact, the record proves that the opposite was true on 1 November 1985. The testimony of Gary Bonner and Dena Kirkland shows that Respond- ent's referral practice with Atlanta Ballet continued in the manner used before the expiration of the agreement between Respondent and the Ballet. Concerning the Federal lawsuit, the settlement agree- ment in that case, Joseph W. Pruitt v. IATSE, Case C81- 2267A, is in the record. Respondent argues that that agreement prohibits referrals pursuant to specific referral requests. At section 5, that agreement provides: Special request calls as provided for the existing contracts shall be strictly complied consistent with the terms of the applicable agreement. Any individ- ual referred 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 rota- tion for each special request taken. There was no showing that Respondent's 1 November referral of Lewis Parham was not in compliance with the above provision. Even though the written contract had expired in 1983, the record shows that Respondent had effectively extended its agreement by accepting referral requests, including specific request , from Atlanta Ballet up until 1 November 1985. Finally, concerning the agreement between Respond- ent and the Civic Center, the evidence does not show that the 1 November job involved that contract. The contract does contain provisions in "Exhibit B" for "wage scales, for the shows promoted other than for the Civic Center," and there was testimony that the Ballet's wages for the job beginning 1 November 1985 complied with the Civic Center's agreement. However, the con- tract provides by its terms that it is between Respondent and the Civic Center. Atlanta Ballet was not party to that contract. Therefore, I find that the evidence fails to show that the Civic Center's collective-bargaining agree- ment was applicable to the job at issue herein. In view of the above, I find there was nothing improp- er in Respondent's referral of Lewis Parham to the At- lanta Ballet job on 1 November 1985. 1129 Because Parham was properly referred, it logically fol- lows that he cannot be removed from that job by Re- spondent absent some legal reason for the removal. Re- spondent offered no evidence showing that Parham's re- moval was legal. In fact, Respondent argued only that Parham's removal was proper in view of the alleged ille- gal referral under the terms of the district court 's settle- ment and the Civic Center's collective-bargaining agree- ment. As shown above, I found that both of those argu- ments lack merit. The credited evidence shows that Respondent gave only one reason why it was removing Parham from the ballet job. During their phone conversation on 3 Novem- ber, A. W. Collins Jr . told Dena Kirkland that he was removing Parham because Respondent and Atlanta Ballet "had no [collective bargaining] agreement right now and-[Kirkland] had no right to request [Parham]." The record shows that Lewis Parham 's full-time em- ployment is as a supervisor at the Atlanta Civic Center. Concerning referrals, Parham is classified on Respond- ent's "C list," which provides for referrals, other than under specific request circumstances , after eligible em- ployees on the A and B list have all been referred. The C list includes, inter alia, employees otherwise employed either as a stage technician by the Union or any other employment in or out of the industry. By successfully forcing Parham's discharge and preventing use of specif- ic referral requests to Atlanta Ballet because Atlanta Ballet had not entered into a new collective -bargaining contract with Respondent. Respondent was attempting to give preference to the journeymen and apprentices on its "A" and "B" referral lists . The Supreme Court has prohibited unions to take such actions . See Radio Officers v. NLRB, 347 U.S. 17, 40 (1954), in which the Court stressed: The policy of the Act is to insulate employees' jobs from their organizational rights . Thus Sections 8(a)(3) and 8(b)(2) were designed to allow employ- ees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their liveli- hood. Section 8(b)(2) of the National Labor Labor Relations Act provides that it is unlawful for a labor organization "to cause or attempt to cause the employer to discrimi- nate against an employee in violation of subsection (a)(3) f> I am convinced that Respondent caused Lewis Parham to be removed from the Atlanta Ballet job on 1 Novem- ber for grounds, which constitute a violation of Section 8(a)(3) of the Act. By that action, Respondent violated Section 8(b)(2). Stage Employees IATSE Local 646 (Parker Playhouse), 270 NLRB 1425 ( 1984). The Union is also prohibited, under the National Labor Relations Act, from restraining or coercing em- ployees in the exercise of rights guaranteed employees in Section 7 of the Act. See Section 8(b)(1)(A). If the matter before me only involved a question of whether Respondent could nondiscriminatorily deny a specific referral request under certain circumstances, the 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer may be a positive one. However, here, the ques- tion becomes one of whether Respondent may lawfully remove Lewis Parham from a job he was occupying pur- suant to legitimate action by an employer. I have found above that Parham's original assignment to the ballet job on 1 November did not violate the out- standing court order. Therefore, the question becomes, may Respondent force the discharge of an employee for reasons unauthorized by the terms of the National Labor Relations Act. The answer to that question is no. More- over, Respondent told the Employer that it was demand- ing Parham's removal because it and the Employer had not agreed to a new collective-bargaining agreement.4 Therefore, by forcing the discriminatory discharge of Lewis Parham, Respondent violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act. ADDITIONAL CONCLUSIONS OF LAW Respondent, by causing the discharge of Lewis Parham on 1 November 1985 and by refusing thereafter to refer Parham for employment with Atlanta Ballet, has violated its duty of fair representation in running an ex- clusive hiring hall and violated Section 8(b)(1)(A) and (2) of the Act. THE REMEDY Having found that Respondent committed unfair labor practices, I recommend that it be ordered to cease that action and to take certain actions to remedy the viola- tions in order to effectuate the purposes of the Act. Respondent must cease its refusal to refer Lewis Parham for employment with Atlanta Ballet and make him whole for earnings lost because of Respondent's dis- criminatory action. The moneys due Parham shall be computed on a quarterly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), from 1 November 1985 and thereafter, plus interest, as computed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, International Alliance of Theatrical Stage Employees Union, Local No. 41, Atlanta, Georgia, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing the discharge and refusing to refer Lewis Parham for employment. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Properly refer Lewis Parham for employment pur- suant to specific request by Atlanta Ballet and make Parham whole for any loss of earnings he suffered as a result of Respondent's discriminatory action in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to its action against Parham and give Parham written notice of its ac- tions in that regard. (d) Post at its hall or facility in Atlanta, Georgia, copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by Respond- ent's authorized representative, shall be posted by Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 4 Even though Business Agent Collins may have believed that an ex- pired contract precluded use of the special request provision of the dis- trict court settlement (see above), the effect of his action was unlawful Collins forced, by his threat to Kirkland , the discharge of an employee because the Employer had not agreed to renew its collective-bargaining agreement 5 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 pur- poses 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."