The Administrative Law Judge (ALJ) dismissed a complaint alleging that the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, AFL–CIO, Local 127 (Local 127) violated the National Labor Relations Act (NLRA) by removing Aiden Whisenhunt from its exclusive hiring hall roster.

The complaint stemmed from Whisenhunt's removal from the roster following an incident at a concert loadout, where he allegedly made a disrespectful comment to an employer representative and then failed to follow proper procedures for addressing workplace issues. The General Counsel argued that Whisenhunt's comment constituted protected concerted activity and that the Union's subsequent removal of him from the hiring hall roster breached its duty of fair representation (DFR).

The ALJ first addressed whether Whisenhunt's conduct was protected concerted activity. The ALJ found that Whisenhunt's statement, "it wouldn’t be bullshit if y’all unionized," made in response to a question about his break, could be considered a clumsy attempt to enforce the break-time provision of the Union's contract with the employer, akin to seeking to enforce a collective-bargaining agreement. This falls within the broad definition of concerted activity under NLRB precedent, even as an individual action. However, the ALJ ultimately found that the employer, Upstage, would have removed Whisenhunt from the jobsite regardless of his protected activity. This conclusion was based on the ALJ's finding that Whisenhunt's conduct was gratuitously rude and hostile towards management, which directly contravened established workplace protocols and his own repeated warnings. The ALJ noted Whisenhunt's admission of not realizing the "social cue" to not repeat himself and the credible testimony from Union officials that Upstage insisted on his removal due to his rudeness and poor attitude. The ALJ concluded that Upstage's discharge of Whisenhunt did not violate the Act, as it was based on his conduct and not his protected activity.

Next, the ALJ examined whether Local 127's removal of Whisenhunt from its referral list breached its DFR. The ALJ acknowledged that removing an employee from an exclusive hiring hall roster creates a presumption of a DFR breach, as it can be seen as encouraging union membership by demonstrating the union's power over an individual's livelihood. However, the ALJ found that Local 127 successfully rebutted this presumption.

The ALJ identified two primary justifications for Local 127's actions:

1. Harm to Reputation and Employer Relationships: The Union presented substantial evidence of Whisenhunt's extensive and persistent behavioral issues, including nearly 30 reported transgressions, multiple employer and coworker complaints, and two "last chance agreements." These issues included aggressive and offensive behavior towards colleagues. The Union argued, and the ALJ agreed, that continuing to refer such an employee would irreparably harm its reputation with employers and undermine its ability to secure work for its members. The ALJ cited the loss of two employers, Gemini Lighting and Upstage, as direct consequences of Whisenhunt's conduct.

2. Risk of Future Liability: The Union also demonstrated that Whisenhunt's volatile and unpredictable behavior posed a risk of future altercations, potential endangerment to other employees, and the possibility of exposing the Union to liability. Given his history, the Union acted prudently to avoid such future harm.

The ALJ concluded that Whisenhunt's removal was a rational and legitimate exercise of the Union's hiring hall authority, driven by non-arbitrary, good-faith, and non-discriminatory reasons. The ALJ emphasized that Whisenhunt had been afforded numerous opportunities to correct his behavior and that the Union's actions were a necessary response to his continued misconduct, which threatened its operational integrity and employer relationships. The ALJ also noted the absence of any evidence of disparate treatment, highlighting that Whisenhunt's history of issues was unique within the Union.

Significant Cases Cited

• Meyers Industries (Meyers I), 268 NLRB 493 (1984): This case defined concerted activity as conduct engaged in with or on the authority of other employees, or to initiate, induce, or prepare for group action.
• Wright Line, 251 NLRB 1083 (1980): This case established the framework for analyzing employer conduct that may be motivated by both protected and unprotected reasons, requiring the General Counsel to show protected activity was a motivating factor and shifting the burden to the employer to prove the action would have been taken regardless.
• Vaca v. Sipes, 386 U.S. 171 (1967): This landmark Supreme Court case established the duty of fair representation (DFR) that unions owe to employees, stating that a breach occurs when a union's conduct is arbitrary, discriminatory, or in bad faith.
• NLRB v. City Disposal System, 465 U.S. 822 (1984): This Supreme Court decision held that an individual's action in seeking to enforce a collective-bargaining agreement, even if it only involves himself, is considered concerted activity because it promotes the enforcement of the collectively bargained contract.
• Air Line Pilots v. O'Neill, 499 U.S. 65 (1991): This Supreme Court case defined arbitrary conduct by a union as behavior that is so far outside a "wide range of reasonableness" as to be irrational, providing a standard for assessing DFR claims.

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