Stagehands Referral Service, (2009)

Docket Number:34-CA-10971
 
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Stagehands Referral Service, LLC and Stephen Foti

International Alliance of Theatrical & Stage Employees & Motion Picture Technicians of the United States & Canada, Local 84, AFL–CIO (Meadows Music Theatre) and Stephen Foti. Cases 34–CA–10971 and 34–CB–2774

April 29, 2009

SUPPLEMENTAL DECISION AND ORDER

By Chairman Liebman and Member Schaumber

On January 7, 2009, Administrative Law Judge Steven Davis issued the attached supplemental decision.1 The Respondents filed exceptions, and the General Counsel filed an answering brief.

The National Labor Relations Board2 has considered the supplemental decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,3 and conclusions, and to adopt the recommended supplemental Order.

Although the Respondents’ exceptions refer to their posthearing brief, the Respondents did not submit a supporting brief or refile their posthearing brief as a supporting document. The posthearing brief is not itself part of the record before the Board as defined in Section 102.45(b) of the Board’s Rules and Regulations. See CPS Chemical Co., 324 NLRB 1018, 1018 fn. 2 (1997). Therefore, our review of the Respondents’ arguments is limited to the exceptions document and any citation of authorities and supporting argument contained therein. See Board’s Rules and Regulations Section 102.46(b)(1). These exceptions fail to demonstrate a basis for overturning the judge’s findings. We therefore adopt the judge’s decision. See James Troutman & Associates, 299 NLRB 120 (1990), affd. NLRB v. James Troutman & Associates, 935 F.2d 275 (9th Cir. 1991) (unpublished table decision).

ORDER

The National Labor Relations Board adopts the recommended supplemental Order of the administrative law judge and orders that the Respondents, International Alliance of Theatrical & Stage Employees & Motion Picture Technicians of the United States & Canada, Local 84, AFL–CIO, its officers, agents, and representatives; and Stage Hands Referral Service, LLC, Hartford, Connecticut, its officers, agents, successors, and assigns, jointly and severally, shall make Stephen Foti whole by paying to him the total backpay amount of $77,455, plus interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of payment, minus tax withholdings required by Federal and State law.

Dated, Washington, D.C. April 29, 2009

______________________________________

Wilma B. Liebman, Chairman

______________________________________

Peter C. Schaumber, Member

(seal) National Labor Relations Board

Patrick Daly, Esq., for the General Counsel.

Leon Rosenblatt, Esq., of West Hartford, Connecticut, for the Respondents.

SUPPLEMENTAL DECISION

Steven Davis, Administrative Law Judge. On August 31, 2006, the National Labor Relations Board issued a Decision and Order in 347 NLRB 1167 against Stagehands Referral Service (SRS) and International Alliance of Theatrical & Stage Employees & Motion Picture Technicians of the United States & Canada, Local 84, AFL–CIO (Union or with SRS, Respondents), which directed the Respondents to jointly and severally make Stephen Foti (Foti) whole for any “loss of wages and other benefits he may have suffered by reason of their “discriminatory failure to refer him to employment after May 24, 2004.”1

A controversy having arisen over the amount of backpay due to Foti, the Regional Director for Region 34 issued an amended compliance specification and notice of hearing on April 17, 2008. The Respondents’ answer to the specification asserted certain affirmative defenses which will be discussed below.

Before the hearing opened, the Acting Regional Director consolidated this case for hearing with Case 34–CB–2876.2 That case involved issues arising from a complaint which asserted that Respondent Local 84 operated its hiring hall unlawfully in violation of Section 8(b)(1)(A) and (2) of the Act.

On May 27–29, 2008, a consolidated hearing was held before me in Hartford, Connecticut.3 Because the issues in each case, this compliance case and the unfair labor practice case are different, involving dissimilar issues and different types of exceptions which may be taken, I have severed them, and accordingly will write separate decisions.4

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondents, I make the following findings and conclusions

i. analysis and discussion

A. The Underlying Case

In the underlying case the Board found that Foti was unlawfully refused referrals by the Union on May 24, 2004, following the Union’s denial of membership to him, and because of his nonmembership in the Union. The Respondents were ordered to jointly and severally make Foti whole for any “loss of wages and other benefits he may have suffered by reason of their “discriminatory failure to refer him to employment after May 24, 2004.”

The Board found that following the Union’s rejection of Foti’s application for membership on May 24, 2004, he was told by Business Agent Charles Buckland that the Union would not refer him to jobs, and that SRS would not refer him to the Mohegan Sun Casino (Casino) because his application for membership had been denied. Foti stated that he stopped seeking referrals from Local 84 thereafter because he was told by Buckland that he would not be referred. He received no work from Local 84 from late May through November 2004.

In November 2004, upon learning that Foti had applied for unemployment insurance compensation, Business Agent Charles Morris asked him why he filed the application since he had not been calling in for work. Morris told Foti to call Buckland. He did so and was referred to work in late November and worked until early December. Foti did not call Buckland again until late March 2005. 347 NLRB at 1168.

Foti obtained work from Local 84 by calling the Union and advising that he was available for work, and also by being called by that Union when work was available. Foti obtained work from Local 84 and other area Stagehands Unions.

B. The Backpay Computation Process

The objective in determining the backpay amount is to approximate, as accurately as possible, what earnings Foti would have had during the backpay period had he continued to be referred. First, his earnings during an appropriate period of time prior to the discrimination, called the base period, must be determined.

1. The selection of the backpay formula

The base period used in the specification was the 1-year period, June 1, 2003 to May 31, 2004, prior to the Respondents’ refusal to refer Foti. The backpay period was defined as the period beginning June 1, 2004. The Respondents admit that the base period and the start of the backpay period were appropriately set forth in the specification.5

As set forth below, Compliance Officer Dina Emirzian used Compliance Manual Formula One, Section 10540.2, to compute the backpay. That formula is a projection that Foti’s average hours and earnings during the base period would be the same during the backpay period.6

Foti’s base period earnings were divided into two categories: “Local 84 work” and “non-Local 84 work.” Both types of earnings were utilized in computing the backpay amount for the base period and for the backpay period.

a. Local 84 work

As set forth in the specification, Foti’s income in the base period was comprised of all referrals he received from the Union. The compliance officer accepted Foti’s representations, supported by paystubs for work performed, concerning what constituted referrals “from the Union.” The referrals which were included in these calculations included direct referrals where the Union’s business agent directed Foti to report to employers with which the Union had a collective-bargaining agreement.

Also included by the compliance officer in the category of Local 84 referrals were those jobs to which Foti was sent by the Union’s business agent at the request of other unions. Those jobs included those with employers with whom the Union had no contract or were outside the jurisdiction of Local 84. The procedure followed by Local 84 was that Union Business Agent Charles Buckland would call Foti and ask whether he was available to take a job in a certain city. If he was, Buckland gave him the location of the job and the time to report. Foti saw a union agent at the site, signed on and worked.

Buckland explained the procedure. He stated that he occasionally is asked by a business agent of a different Stagehands Union for help in filling a job call in that other union’s jurisdictional area. In such cases, Buckland supplies the names of people he believes are available, and at the other agent’s request, Buckland calls the stagehand and says that there is work in Bridgeport, for example, if he wants to go there. He denied that this constitutes a referral by him to a job in another jurisdiction. However, it appears that Buckland routinely performs these duties as part of his operation. Thus, he made referrals pursuant to calls he received from Locals 11, 23, 52, 53, 74,109, and 133.

Buckland testified that in making such calls to Foti to jobs in other jurisdictions, he was told by the business agent for the other union that they were 1-day jobs. Occasionally the business agent calls Buckland and reports that the job will be continuing for more days and asks “do you mind if the guys [those originally referred] do that work?” Buckland agrees, and tells the agent to ask the workers if they want to continue working there. Buckland stated that in such circumstances where the stagehands continued to work, he does not consider that to...

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