Laborers Local 652 (Southern California Contractors' Assn.)

National Labor Relations Board - Board Decisions

Nov 22, 1995

319 N.L.R.B. 694 (N.L.R.B. 1995)

694
319 NLRB No. 92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 29, 1995, Administrative Law Judge Michael D. Steven-
son issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951).
3 Member Browning notes that the Respondent has not excepted to
the judge’s implicit conclusion that a violation of Sec. 8(b)(1)(A)
can be premised on a union’s imposition of internal union discipline
that does not affect the employment relationship, that is based on
conduct related solely to internal union affairs, and does not arise
from the employment relationship.
1 All dates refer to 1993 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct transcript is
granted.
Laborers’ International Union of North America,
Local 652, AFL–CIO (Southern California
Contractors’ Association) and Albert Castillo,
Guillermo Garibay, Antonio Lopez, Jose
Manuel Lopez, and Crispin Perez. Case 21–
CB–11718
November 22, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issue presented here is whether the judge cor-
rectly found that the Respondent violated Section
8(b)(1)(A) of the National Labor Relations Act by
discriminatorily filing and prosecuting internal discipli-
nary charges against employee-members in retaliation
for their intraunion opposition to the Respondent’s of-
ficials.1 The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions,3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laborers’ International
Union of North America, Local 652, AFL–CIO, Santa
Ana, California, its officers, agents, and representa-
tives, shall take the action set forth in the Order.
Salvador Sanders, Esq., for the General Counsel.
Julius Mel Reich, Esq., for the Respondent.
Francisca N. Araiza, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried in Los Angeles, California, on January 19,
1995.1 pursuant to a complaint issued by the Regional Direc-
tor for the National Labor Relations Board for Region 21 on
July 7, 1994, and which is based on charges filed by
Francisca N. Araiza (attorney for the Charging Parties) and
by the Charging Parties (first amended charge) on March 31
and on April 26, 1994, respectively. The complaint alleges
that Laborers’ International Union of North America, Local
652, AFL–CIO (Respondent) had engaged in certain viola-
tions of Section 8(b)(1)(A) of the National Labor Relations
Act (the Act).
Issues
Whether Respondent filed internal disciplinary charges
against the Charging Parties and subsequently prosecuted the
disciplinary charges against the Charging Parties at a hearing
before a ‘‘Special Hearings Panel’’ in retaliation for the
Charging Parties’ intraunion opposition to Respondent’s offi-
cials.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Charging Parties, and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. BOARD’S JURISDICTION
Respondent admits that for all times material to this case,
it was a party to a collective-bargaining agreement with the
Southern California Contractors’ Association, Inc., an asso-
ciation comprised of various employers, with principal of-
fices and places of business within the State of California,
which employer-members are engaged in the building and
construction industry in southern California.
Respondent further admits that the collective-bargaining
agreement referred to above covers employees of the em-
ployer-members of the Association, performing laborers’
craft work within the geographical jurisdiction of Respond-
ent.
Respondent further admits, and I find, that the Association
and its employer-members and each of them have been em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
1. Statement of the case
All agree that on September 2, as a result of certain al-
leged misconduct occurring at the Respondent’s regular
membership meeting held on August 25, Respondent’s presi-
695LABORERS LOCAL 652 (SOUTHERN CALIFORNIA CONTRACTORS’ ASSN.)
3 Prior to the June election and possibly at the February meeting,
Castillo was recognized by Sandoval during a portion of the meeting
called ‘‘good and welfare.’’ At this time, Castillo told the persons
attending the meeting about Laborers United, in part, explaining, that
the organization was formed a few years before for the purpose of
bringing justice and democracy to the labor union. Castillo also
passed out Laborers United business cards to Respondent’s members
who were present, including giving one to Sandoval. To all of this,
Castillo’s remarks and the passing out of the business cards,
Sandoval said nothing.
4 Respondent also holds monthly executive board meetings days
before the general membership. These meetings are limited to execu-
tive board members and are not in issue in this case.
5 ‘‘Good and Welfare’’ is an order of business where members can
bring concerns to the floor on any topic which the chair considers
relevant to the way the Local is functioning. This subject includes
criticism of the Local or of its members.
dent, Paul Sandoval, filed charges against Albert Castillo, et
al., here, alleging the parties violated certain provisions of
the constitution of the Laborers’ International Union of North
America, AFL–CIO (Jt. Exhs. 1, 2). All further agree that on
November 18, as a result of certain alleged misconduct oc-
curring at Respondent’s regular membership meeting held on
November 17, Sandoval filed additional charges against
Castillo, et al., again alleging violations of the International
constitution referred to above. (Jt. Exh. 3.)
Subsequent to the filing of these charges, all seven mem-
bers of Respondent’s executive board recused themselves
from participation in the discipline process. As a result, on
April 28, 1994, a special hearing panel, appointed by the
International Union was convened. Castillo, et al. and their
counsel, Francisco Araiza, were given notice, appeared, and
were afforded a full opportunity to contest the charges. At
the conclusion of the hearing, the special hearing panel
(Chuck Barnes, president of the International, possibly from
Washington State and John Serpico, third vice president of
International, possibly from Illinois) recommended that Al-
bert Castillo and Antonio Lopez be found guilty of certain
violations of the International constitution. Castillo was also
found not guilty of certain other charges. Remaining Charg-
ing Parties were found not guilty of all charges due to insuf-
ficient evidence. As punishment for Castillo and Antonio
Lopez, the panel recommended they be suspended from at-
tending the next local union meeting following receipt of this
decision.
On August 24, 1994, the general executive board of the
Laborers’ International Union of North America approved
and adapted the findings and recommendations of the special
hearings panels (Jt. Exh. 4).
Respondent contends first that I am legally bound to defer
to the decision of the special hearings panel, so long as there
is some evidence to support it and, second, that there is
ample evidence to support it. Alternatively, if I consider the
instant case on its merits, Respondent contends there is
ample evidence to support this report or to otherwise justify
dismissal, the General Counsel argues that I am not bound
by the panel report referred to above, but must consider the
evidence de novo, at least to the extent presented here. Be-
fore reaching these important legal issues, certain background
information will be helpful.
2. Respondent and its incumbent officials
Respondent labor organization has approximately 4000
members of which about 70 percent are Latinos. During Re-
spondent’s monthly general membership meetings only about
200–300 members are likely to attend. The attendance, how-
ever, doubles for the November and December meeting when
Respondent customarily distributes to those in attendance a
$25 gift certificate. For the November meeting, one of two
at issue in this case, Respondent did not distribute the $25
certificates due to financial considerations. For the same rea-
son no certificate was distributed at the December meeting
which wasn’t even held; instead its business was combined
with the January 1994 meeting.
Respondent’s sole witness was Paul Sandoval, a salaried
business agent for Respondent, and for the past 8 years, Re-
spondent’s elected president. Sandoval serves with and is a
member of Respondent’s executive board consisting of six
other elected officials. One of these persons is the business
manager, Marcelino Duarte, who despite playing a significant
role in the case did not testify. Sandoval and other incum-
bents were last elected in a contested election held in June.
3. Dissident faction
In the last election several competing slates ran unsuccess-
fully against the incumbents. One of these groups supporting
an opposing slate is a group called by one witness, testifying
through an interpreter as, ‘‘United Workers by Justice and
Democracy.’’ (Tr. 69.) Other witnesses referred to the group
as ‘‘Laborers United for Justice and Democracy.’’ (Tr. 82.)
I will refer to this group as Laborers United. The witnesses
called by the General Counsel in his case-in-chief and in re-
buttal belonged to Laborers United; in some cases, the wit-
nesses are officers. For example, Antonio Lopez is president,
and Albert Castillo is vice president. Approximately 50–60
members of Respondent belong to Laborers United. Besides
officers, Laborers United has business cards (G.C. Exh. 4),3
holds regular monthly meeting separate from Respondent’s
general membership meetings, ran a slate of candidates op-
posing the incumbents, and prepared and distributed cam-
paign material in support of its slate. As noted above, Labor-
ers United was not successful in the last election.
For the past several years since Laborers United was
founded, its members customarily sit on the right side of the
union hall, as one faces the stage where the incumbent offi-
cers are located. Supporters of the incumbents typically sit
on the left side and many other members of Respondent
choose to stand in the back of the hall. Between the two sec-
tions of seating is a floor microphone so that persons recog-
nized by Sandoval may speak and be heard. (See rough dia-
gram of union hall prepared by Castillo. G.C. Exh. 2.)
4. Format of monthly union meetings
On the third Wednesday of each month (except for No-
vember and December when the time may be changed due
to the holidays) at 7:30 p.m., Respondent holds its monthly
meetings for the general membership.4 Sandoval, as presi-
dent, presides. The order of business begins with a roll call
of officers, reading of minutes from the prior meeting (sub-
ject to members claiming they never said what was attributed
to them); there follows communications and bills, executive
board report, unfinished business and new business, business
manager’s report, financial report, and good and welfare.5
For every order of business, someone must make a motion
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Billamar was never called as a witness.
to approve, someone else must second, then a period is open
to the floor for questions or for people to speak for or
against the issue.
During some meetings, all does not proceed smoothly. A
member may speak without being recognized or, if recog-
nized, may speak on a topic irrelevant to the order of busi-
ness for which recognized. On other occasions, members
might interrupt a speaker, make cat-calls, or otherwise cause
disruption or disorder. A meeting may also be disrupted by
a member speaking in Spanish when someone else is speak-
ing in English. In any event, it is up to Sandoval, as chair,
to attempt to restore order. While the General Counsel’s wit-
nesses did not agree that it works this way for everyone, ac-
cording to Sandoval, he just explains to a disorderly person
what the problem is, then he rules the person out of order
and tells the person to take his seat. If these repeated warn-
ings to a particular individual do not work, Sandoval tells the
offender to leave the hall, before the meeting can resume.
For particularly obstinate cases, Sandoval might call on the
sergeant-at-arms, Lew Jenkins, who did not testify, but who
is described as 6 feet 4 inches and 240 pounds. Jenkins’ job
is to persuade the member to leave without any physical
touching, so as to avoid a confrontation. As a last resort, the
meeting is adjourned and police are called.
5. Prior disruptions
As already noted, two union meetings are in direct issue
in this case, August 25 and November 17, and I will turn
to them below. The conflicts in testimony about the events
during those meetings, however, must be considered in light
of certain background information presented by Respondent.
With respect to Albert Castillo, the General Counsel’s wit-
ness here, the evidence shows that on April 29, 1990,
Sandoval filed charges against Castillo accusing him of dis-
rupting a monthly meeting. As is true in the instant case, a
local union trial board was impaneled to hear evidence with
respect to these charges and sustained Sandoval’s charges.
Thereafter, Castillo appealed the decision to the general ex-
ecutive board of the Laborers’ International Union which ul-
timately approved the findings and recommendation of the
western hearing panel. As punishment Castillo was fined $25
and suspended from attending four consecutive membership
meetings. (R. Exh. 2.)
My attention is also directed to the case of Duarte v.
Castillo, Case 705402, an action filed in the Superior Court
of Orange County, California, and resulting in an order after
hearing on petition for injunction prohibiting harassment. In
this order, Castillo was ordered by the state court judge to,
inter alia, stay at least 200 yards away from Duarte, Duarte’s
residence, Duarte’s children’s school and stay at least 10
yards away from Duarte’s place of work, with an exception
for any NLRB hearing. The court order is dated March 10,
and is to remain in effect for 3 years. (R. Exh. 3.) In his
testimony, Castillo complained that the court order was
issued because Castillo lacked legal counsel at hearing and
that both the Union’s finding against him and the court order
resulted from events where Duarte assaulted Castillo. I place
little credence in any of this testimony.
Castillo, however, provided other testimony which I note
was not completely rebutted by Respondent with respect to
Sandoval’s alleged practice of condoning violations of the
Union’s constitution during membership meetings when the
perpetrator was a member of Sandoval’s faction. According
to Castillo, at a January or February meeting, Castillo had
been duly recognized by Sandoval and was contending that
the June election should require voters to walk in rather than
mail in ballots on the grounds that only an election where
a voter who walks in and shows his union ID card as a pre-
requisite to voting would be an election free of fraud. As
Castillo was speaking, a member named Tony Billamar who
had been appointed by Sandoval to be union auditor inter-
rupted Castillo, and told him to ‘‘shut up and sit down
stupid!’’ According to Castillo, Sandoval never ruled
Billamar out of order, nor asked him to leave the meeting.
Sandoval testified that after Billamar had been appointed
auditor, Castillo was recognized during the good and welfare
and referred to Billamar as a ‘‘Coward’’ and an ‘‘ignorant
fool’’ because he didn’t know how to read and write, and
that he was a ‘‘disgrace to the local union.’’ To all of this,
Billamar, who was seated on the stage next to Sandoval, said
only ‘‘sit down.’’ Sandoval responded that Billamar was not
in order, as he had spoken without being recognized.6
Antonio Lopez testified that between January and August,
certain union members spoke at meetings without being rec-
ognized, but were never told they were out of order. (Tr. 59.)
No specific names, however, were given.
6. August 25 meeting
Toward the beginning of the meeting, Sandoval called for
a motion to approve the minutes of the past meeting. At this
point, Crispin Perez, a member of Laborers United and rebut-
tal witness for the General Counsel, rose to raise a question
regarding why a member of Respondent’s executive board
named Leroy Woodard, who did not testify, had been ex-
cused from attending Respondent’s executive board and
membership meetings and regarding whether Respondent was
paying disability benefits to Woodard. According to San-
doval, he responded to Perez’ inquiry by saying that he
should bring the matter up during good and welfare where
Sandoval would rule whether it was a proper inquiry. As
Perez was returning to his seat, Antonio Lopez shouted in
Spanish from the floor, ‘‘Answer the Man’s question.’’ To
this, Sandoval replied either, ‘‘who said that,’’ or ‘‘what did
you say.’’ Lopez identified himself as the person who made
the remark and Sandoval directed him to take his seat as he
was out of order. According to Lopez, Sandoval immediately
called Jenkins who directed Lopez to be removed from the
hall. At this point, some persons at the meeting, apparently
from the right side, began yelling, ‘‘Why does he have to
leave?’’ Castillo stood up, and said, that he challenged the
decision of the chair. Sandoval recalled that Castillo stood up
and directly challenged him by saying, ‘‘Why don’t you
throw me out too?’’ Moments later, according to Sandoval,
Castillo added, ‘‘You are going to have to get us out of here
physically.’’ In rebuttal, Castillo was called back by the Gen-
eral Counsel to deny making the remarks attributed to him
by Sandoval.
After reviewing the transcript of the intraunion hearing,
(R. Exh. 4) and comparing the testimony there to that given
in the instant case, I credit Sandoval in part as to the remarks
made by Lopez and Castillo. On the other hand, I do not be-
697LABORERS LOCAL 652 (SOUTHERN CALIFORNIA CONTRACTORS’ ASSN.)
7 Respondent relies on NLRB v. United Mine Workers Local 1058,
957 F.2d 149 (4th Cir. 1992), which refused to enforce the Board’s
decision cited above. As an administrative law judge, I am bound
by the Broad’s decision unless and until such decision is reversed
by the U.S. Supreme Court. Iowa Beef Packers, 144 NLRB 615,
616–617 (1963).
lieve Sandoval that he gave a series of warnings and admoni-
tions before ordering ejectment of Lopez.
All agree that neither Lopez nor Castillo left the meeting
and consistent with Sandoval’s policy, Jenkins did not at-
tempt to force them to leave. Instead, Sandoval directed that
the police be called which was done. After several minutes,
while the meeting was suspended, Sandoval directed that the
police be called a second time. This time it was reported that
the police had been there and found nothing amiss. There
was a question as to whether the police were willing to re-
turn. At this point, Sandoval adjourned the meeting.
7. November 17 meeting
As reported above, the executive board did not recommend
prior to this meeting that the $25 gift certificates be distrib-
uted to the 600 or more members in attendance. Duarte, the
business manager, was giving his report where apparently for
the first time, the membership learned that the gift certifi-
cates would not be distributed.
According to the General Counsel’s witnesses, Duarte had
added to his formal report, words to the effect that the oppo-
sition has caused him trouble, taking up his time so he was
unable to attend to his business. At this time Castillo rose
to make a point of order, saying, according to Sandoval,
‘‘You’re politicking. We are opposed to your backdoor poli-
cies.’’ According to Castillo, he spoke to Sandoval saying,
‘‘You are allowing the business manager to get political
which isn’t right.’’ Both Castillo and Sandoval agree that
Castillo was ruled out of order, and asked to leave the hall.
When Castillo refused to leave, Sandoval adjourned the
meeting.
The members of the executive board then went into a side
office. Castillo and Jose Lopez followed the group there and
talked to Billamar who was part of the gathering in the of-
fice. Then Castillo was referred to Sandoval in a smaller of-
fice. The latter told Castillo that he adjourned the meeting
because Castillo had been out of line and Sandoval asked
him again to leave the hall.
B. Analysis and Conclusions
1. Adverse inferences
At page 33 of his brief, the General Counsel urges me to
draw an adverse inference from Respondent’s failure to call
Durate as a witness. An adverse inference is properly drawn
regarding any matter about which a witness is likely to have
knowledge, if a party fails to call that witness to support its
position and if the witness may reasonably be assumed to be
favorably disposed to the party. Grimway Farms, 314 NLRB
73 fn. 2 (1994). By this standard, I find that Respondent’s
failure to call not only Duarte, its business manager, but also
Billamar, its appointed auditor, permits me to draw adverse
inferences which I do and weigh against Respondent in this
case.
2. Respondent as proper party
At pages 2 and 3 of its brief, Respondent contends that
Sandoval, acting in his individual capacity, rather than as
president of Respondent, filed the charges. Accordingly, Re-
spondent contends that it should not be held responsible for
Sandoval’s conduct. I reject this contention. In Mine Workers
Local 1058 (Beth Energy), 299 NLRB 389, 389–390 (1990),
the Board stated,7
The Board regularly finds elected or appointed offi-
cers of an organization to be agents of that organiza-
tion. Although the holding of elective office does not
mandate a finding of agency per se, it is persuasive and
substantial evidence that will be decisive in the absence
of compelling contrary evidence. [Citation omitted.] We
find no compelling contrary evidence here.
At footnote 7, page 390, the Board added, whether their
members had actually authorized the officers’ action is not
determinative for Section 2(13) of the Act provides: ‘‘In de-
termining whether any person acted as agent . . . the ques-
tion of whether the specific acts performed were actually au-
thorized or subsequently ratified shall not be controlling.’’
In the instant case, I note that on November 18, Armando
Exparza, ‘‘Recording Secretary,’’ wrote a letter to Arthur A.
Coia, general president of the Laborers’ International which
reads in pertinent part,
Please be advised that I am filing additional charges
against the above listed member [Ruben Gomez] under
Article VII, Meetings, Section 6 of the Uniform Local
Union Constitution.
. . . .
/s/ Armando ‘‘Mando’’ Esparza
Recording Secretary
[Jt. Exh. 3.]
The original charges for both the August 25 and the Novem-
ber 17 meetings were filed by ‘‘Paul C. Sandoval President
of Laborers Local 652’’ and signed by him in that capacity.
(Jt. Exhs. 2 and 3.) Based on this evidence and the lack of
‘‘compelling contrary evidence offered by Respondent, I find
that Sandoval was acting as agent of Respondent when he
filed the charges against Castillo, et al.
3. Respondent’s legal defense
Respondent initially took the position in this case that it
should be exonerated of all charges as a matter of law. In
support of this claim, Respondent filed a prehearing brief.
(R. Exh. 1.) I took the issue under advisement and, there-
after, as the hearing progressed, Respondent carefully pre-
served its record, making certain that no claim of waiver
could reasonably be made. In its posthearing brief, Respond-
ent again raises the same issue which is now squarely pre-
sented for decision and I turn to do just that.
Based on certain authorities, such as Boilermakers v.
Hardeman, 401 U.S. 233, 246 (1971), and Ritz v. O’Donnell,
566 F.2d 731, 736–737 (D.C. Cir. 1977), Respondent con-
tends that a union trial body’s decision on intraunion charges
will be upheld by the counts so long as there is ‘‘some evi-
dence’’ to support the decision. Both of these cases were de-
cided pursuant to the Labor-Management Reporting and Dis-
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Respondent also cited the case of Steelworkers (Stran Steel), 239
NLRB 374 (1978), in support of its bar contention. I find that case
may be distinguished on its facts. As proof of discriminatory motiva-
tion, the General Counsel in that case relied on procedural errors oc-
curring in the union’s processing of the alleged discriminatees appeal
and the lack of merit in the charges. (239 NLRB at 380.) Thus the
General Counsel placed the merit of the charges in direct issue. This
is a far cry from Respondent’s argument that the merit of the
charges are automatically in issue by operation of law, a contention
I reject. See Operating Engineers Local 139 (AGC of Wisconsin),
273 NLRB 992 fn. 2 (1984), enfd. 796 F.2d 985 (7th Cir. 1986),
where the Union’s International executive board sustained the ap-
peal, but the Board nevertheless affirmed the violations.
closure Act (LMRDA) which provides in relevant part that
a union member who charges that his union violated his
rights under Title 1 of the Act may bring a civil action
against the union in a U.S. district court. The critical issue
presented by the complaint in Hardeman was whether the
union disciplinary proceedings had denied him a full and fair
hearing within the meaning of Section 101(a)(5)(c), 29
U.S.C. § 411 (a)(5). The Court held in the case that the cause
of action was not within the exclusive competence of the
NLRB. (401 U.S. at 238.) The Court also held that the guar-
antee provided union members by LMRDA requires the
charging party at the union disciplinary proceeding to pro-
vide ‘‘some evidence’’ at the disciplinary hearing to support
the charges made. (401 U.S. at 246.)
Professor Gorman, Basic Text on Labor Law, 684–685
(1976), explains the proper role of the LMRDA in a Board
proceeding:
The Landrum-Griffin Act, or the Labor-Management
Reporting and Disclosure Act of 1959, declares that all
union members are to have the right to vote and be eli-
gible for office in union elections, to meet and freely
express views with other members and to speak out on
issues before the union at formal meetings. (29
U.S.C.A. §§ 411, 412, 481.) It is unlawful under these
sections for a union to discipline a member for speak-
ing against union policies, Cole v. Hall [462 F.2d 777]
(2d Cir. 1972), affd. on other issues [412 U.S. 1] (U.S.
1973), or against particular candidates for union office,
Retail Clerks Local 648 v. Retail Clerks Int’l Ass’n.
[299 F.Supp 1012] (D.D.C. 1969). Although these
Landrum-Griffin policies are not directly enforceable by
the National Labor Relations Board, the Board has re-
cently held that it would take them into account and
strike down as in violation of section 8(b)(1)(A) a fine
which was imposed on a member who sought to com-
pete against an incumbent union official in running for
the position of delegate to the international convention.
In Carpenters Local 22 (Graziano Constr. Co.), [195
NLRB 1] [1972], the Board stated [p. 2]
[T]he Board is charged with considering the full pan-
oply of congressional labor policies in determining the
legality of a union fine. Here the Union, in the guise
of enforcing internal discipline, has sought to deprive
its members of the right, as guaranteed by the Labor-
Management Reporting and Disclosure Act, to partici-
pate fully and freely in the internal affairs of his own
union. A fine for that purpose not only in our opinion
fails to reflect a legitimate union interest but rather in
fact impairs a policy that Congress has imbedded in the
labor laws.
The Board held that in spite of the differentiation be-
tween its own jurisdiction and the powers of the Labor
Department to enforce the LMRDA union-election pro-
vision, it was obligated, in determining legitimacy of
union interests, to look not just to the NLRB but to
‘‘take into account all Federal policies.’’
Based on the above-cited authority, I find no threshold bar
to the charges here, but instead find support for the General
Counsel’s prima facie case based on provision of the
LMRDA.8
4. The General Counsel’s prima facie case
Respondent is charged with violating Section 8(b)(1)(A) of
the Act which provides:
(b) It shall be an unfair labor practice for a labor or-
ganization or its agents—
(1) to restrain or coerce (A) employees in the exer-
cise of the rights guaranteed in section 7 [section 157
of this title]: Provided, That this paragraph shall not
impair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention of
membership therein . . . .
Section 7 (Sec. 157) reads as follows:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from
any or all such activities except to the extent that such
right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of em-
ployment as authorized in section 8(a)(3) [section
158(a)(3) of this title].
The Charging Parties were charged by the Respond-
ent with violations of its constitution. (Jt. Exh. 1.) To
explain the limitations of Section 8(b)(1)(A) on a
union’s enforcement of its constitution, I turn to I Har-
din, The Developing Labor Law 176 (3d ed. 1992).
d. Discipline for Intraunion Activity . . . . Although
section 8(b)(1)(A) ‘‘leaves a union free to enforce a
properly adopted rule which reflects a legitimate union
interest and impairs no policy Congress has imbedded
in the labor laws,’’ it does not permit enforcement by
fine or expulsion of a rule that invades or frustrates an
overriding policy of the labor laws.603 A union may
not, under the guise of enforcing internal discipline, de-
prive its members of the right to participate fully and
freely in the internal affairs of their own union604 Thus,
a union fine levied on a member because of his
intraunion activities in opposition to incumbent union
officials was held to be a violation of section
8(b)(1)(A).605 In another case, a local union that
699LABORERS LOCAL 652 (SOUTHERN CALIFORNIA CONTRACTORS’ ASSN.)
9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 489 (1982).
10 Duarte’s absence as a witness is particularly damaging to Re-
spondent’s case since he attended both meetings and it was he at the
November 17 meeting who was allegedly interrupted just as he was
attempting to link Respondent’s serious political problems at not
having the $25 gift certificates to conduct by the opposition.
brought charges against and fined a member who cir-
culated a newsletter critical of the local’s leadership
was found to have violated the Act notwithstanding that
the union’s international executive board reversed the
conviction and fine.606 The internal union charge was
held to be an element in a pattern of harassment of a
union dissident that continued after the appeal to the
international was sustained.
603 See text at supra note 571.
604 Carpenters Local 22 (Graziano Constr. Co.), 195 NLRB 1, 79
LRRM 1194 (1972).
605 Id. See also Helton v. NLRB, 656 F.2d 883, 107 LRRM 2819
(CA DC, 1981), granting review to 248 NLRB 83, 103 LRRM 1318
(1980).
606 Operating Eng’rs. Local 139 (Associated Gen. Contractors of
Am., Wisconsin Chapter), 273 NLRB 992, 118 LRRM 1396 (1984), en-
forced, 796 F.2d 985, 123 LRRM 2021 (CA, 1986); see also Machinists
Dist. 91, Local Lodge 707 (United Technologies Corp., Pratt & Whit-
ney Div.), 278 NLRB 39, 122 LRRM 1336 (1986), enforced, 817 F.2d
235, 125 LRRM 2335 (CA 2, 1987).
Based on the above authorities, I find that the General
Counsel has established a prima facie case. That is, Castillo,
et al., constitute a portion of a dissident group working
against the interests of the incumbent administration. The
dissident group’s activities were protected not only by Sec-
tion 7 of the Act, but also under Tite 1 of the LMRDA, the
‘‘Bill of Rights’’ for union members.’’ ‘‘Section 101(a)(2) of
that statute, 29 U.S.C. § 411(a)(2) (1976), provides that
‘[e]very member of any labor organization shall have the
right to meet and assemble freely with other members; and
to express any views, arguments or opinions[.]’ Congress in-
tended this free speech right to parallel the rights conferred
under the First Amendment; it hoped to secure union democ-
racy by establishing a right to express dissenting views with-
out fear of discipline. The LMRDA was in part ‘designed to
protect the rights of union members to discuss freely and [to]
criticize the management of their unions and conduct of their
officers.’’’ ‘‘[T]he right of free speech has been described as
‘almost absolute.’’’ Helton v. NLRB, supra, 656 F.2d at 895–
896.
5. Wright Line analyses
It is appropriate for cases alleging conduct in violation of
Section 8(b)(1)(A) to turn to a Wright Line9 analysis. Letter
Carriers (Postal Service), 315 NLRB 1176, 1177 fn. 7
(1994). This is particularly true where, as here, it is asserted
that there was a legitimate basis for union discipline. Sheet
Metal Workers Local 104 (Brisco Sheet Metal), 311 NLRB
99, 105 (1993). In sum, the issue is whether or not Respond-
ent acted with discriminatory motivation. For the reasons
stated below, I find that Respondent did discriminate against
Castillo, et al. and therefore violated the Act as alleged.
First, I weigh the adverse inferences found above by Re-
spondent’s failure to call Duarte and Billamar as witnesses.10
Next, I note the unrebutted evidence of the General Coun-
sel’s witnesses that other persons who were not members of
United Laborers were permitted to speak out of turn, to inter-
rupt and insult other witnesses, and to otherwise cause dis-
turbances during general membership meetings with impu-
nity.
In some cases, Sandoval was less than certain that Castillo
had caused the disruption in issue. For example as to the Au-
gust 25 meeting, Sandoval ‘‘assumed’’ it was Castillo who
yelled, ‘‘you’re going to have to get us out of here phys-
ically.’’ (Tr. 236.)
Finally, I credit the General Counsel’s witnesses who testi-
fied that with respect to United Laborers, Sandoval failed to
give repeated warnings to alleged offenders before ordering
that they be ejected from the hall and before Sandoval filed
the charges at issue in this case. Sandoval’s failure to follow
the policies and practices of progressive warnings where it
was members of United Laborers allegedly causing disrup-
tion is telling indeed.
In light of the above, I find Respondent violated the Act
as alleged. See Pacific Mountain Express Co., 215 NLRB
588, 599 (1974); Wenner Ford Tractor Rentals, 315 NLRB
964, 964–965 (1994). In sum, Respondent has failed to dem-
onstrate that Sandoval would have brought charges against
Castillo, et al. absent their concerted activities protected by
Section 7 of the Act, that is, their right not only to support
a dissident slate of candidates, but to question and oppose
the incumbent officers at Respondent’s monthly membership
meetings.
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. By filing intraunion changes against members Albert
Castillo, Guillermo Garibay, Antonio Lopez, Jose Manuel
Lopez, and Crispin Perez because they were members of a
dissident faction which opposed incumbent union officials in
an internal union election and which questions and opposes
policies of the incumbent officials, Respondent has violated
Section 8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and(7) of the Act.
REMEDY
Having found that the Respondent Local has engaged in
unfair labor practices in violation of Section 8(b)(1)(A) of
the Act, I shall recommend that it be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act. I shall further recommend
that Respondent Local be ordered to notify Laborers’ Inter-
national Union of North America that the local is withdraw-
ing the charges that it filed against Albert Castillo, Guillermo
Garibay, Antonio Lopez, Jose Manuel Lopez, and Crispin
Perez and is removing from its files any records that it may
have of the charges and will notify Castillo, Caribay, A.
Lopes, J. Lopez, and Perez in writing that this action has
been taken.
I shall also recommend that Respondent be ordered to pre-
pare the personal notices to Castillo, et al. and to post appro-
priate notices in both English and Spanish.
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 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
National 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issued the following recommended11
ORDER
The Respondent, Laborers’ International Union of North
America, Local 652, AFL–CIO, Santa Ana, California, its of-
ficers, agents, and representatives, shall
1. Cease and desist from
(a) Filing intraunion charges against members because
they are a member of a dissident faction which opposed in-
cumbent union officials in an internal union election and
which questions and opposes policies of the incumbent offi-
cials.
(b) In any like or related manner restraining or coercing
members in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately notify Laborers’ International Union of
North American, AFL–CIO that it has withdrawn charges
filed against Albert Castillo, Guillermo Garibay, Antonio
Lopez, Jose Manuel Lopez, and Crispin Perez with respect
to events occurring at the general membership meetings of
August 25 and November 17, 1993.
(b) Remove from its files all records of the charges and
rescind all disciplinary findings against Albert Castillo, Guil-
lermo Garibay, Antonio Lopez, Jose Manuel Lopez, and
Crispin Perez with respect to events occurring at the general
membership meetings of August 25 and November 17 and
notify them in writing in English and Spanish that this action
has been taken.
(c) Post at its business offices and other places where no-
tices to its members are customarily posted, copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by Regional Director for Region 21 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 members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT file intraunion charges against members be-
cause they are a member of a dissident faction which op-
posed incumbent union officials in an internal union election
and because they question and oppose policies of the incum-
bent officials.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL notify Laborers’ International Union of North
America AFL–CIO that we have withdrawn the charges filed
against Albert Castillo, Guillermo Garibay, Antonio Lopez,
Jose Manuel Lopez, and Crispin Perez.
WE WILL remove from our files all records of the charges
and rescind all disciplinary findings made against Albert
Castillo, Guillermo Garibay, Antonio Lopez, Jose Manuel
Lopez, and Crispin Perez with respect to events occurring at
the general membership meetings of August 23 and Novem-
ber 17, 1993.
LABORERS’ INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 652, AFL–CIO