Ozark Constructors, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 4, 2009

14-CB-010424 (N.L.R.B. Sep. 4, 2009)

JD-41-09
St. Louis, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 513, AFL-CIO
and 14-CB-10424
OZARK CONSTRUCTORS, LLC, A FRED
WEBER – ASI JOINT VENTURE
Rotimi Solanke, Esq., for the General Counsel.
Jeffrey E. Hartnett, Esq. and James F. Faul, Esq. (Bartley Goffstein, LLC), of St. Louis,
Missouri, for the Respondent.
Russell Riggan, Esq. (Lewis, Rice & Fingersh, LLC), of St. Louis, Missouri, for
the Charging Party.
DECISION
Statement of the Case
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in St. Louis,
Missouri, on May 18, 2009. The charge was filed January 21, 2009, and the amended charge
was filed March 25, 2009. The complaint issued March 31, 2009. It alleges that the Respondent,
International Union of Operating Engineers, Local 513, AFL–CIO, violated Section 8(b)(1)(A) of
the National Labor Relations Act (the Act) by filing an internal union charge against employee
Mark Overton, and fining him $2500 because, in compliance with the collective-bargaining
agreement and safety policies in effect, he reported a safety violation by an employee to the
employer and thereby engaged in protected concerted activity within Section 7 of the Act.1
At the conclusion of the General Counsel’s case-in-chief, the Union moved to dismiss the
complaint on the basis that no prima facie case was presented. The Union presented no
evidence in its defense.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following
Findings of Fact
I. Jurisdiction
The Charging Party, a Missouri limited liability company with an office and place of
business in St. Louis, Missouri, has been engaged in the construction industry with a
construction jobsite at the Taum Sauk upper reservoir dam in Missouri. During the 12-month
period ending February, the Charging Party, in conducting its business operations at the Taum

1 All dates are from November 2008 to April 2009 unless otherwise indicated.
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Sauk upper reservoir dam jobsite, purchased and received goods valued in excess of $50,000
directly from points outside the State of Missouri. The Union admits and I find that it is a labor
organization within the meaning of Section 2(5) of the Act and that the Charging Party is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. Alleged Unfair Labor Practices
A. The Taum Sauk Reservoir Project
Fred Weber, Inc. (FWI), of St. Louis, Missouri, is a union-affiliated heavy and highway
construction company. ASI Constructors, Inc. (ASI), a nonunion dam construction company
from Pueblo, Colorado. In 2007, FWI and ASI entered into a joint venture (the Company) for the
purpose of reconstructing the Taum Sauk Reservoir in southeast Missouri (the project).
The Taum Sauk Reservoir is a hydroelectric facility containing five operating plants and
a large crushing plant.2 The Company serves as the project’s general contractor. The project
has, at times, employed up to 700 people. Roger Gagliano, of FWI, and Lee Schermerhorn, of
ASI, serve as the project’s construction managers. Gagliano generally handles the personnel
and collective-bargaining issues, while Schermerhorn oversees the day-to-day construction
operations. Andy Westbrook and Kevin Delo serve as the project’s two general superintendents.
The project’s general superintendents, safety manager, and engineering manager report to
Gagliano and Schermerhorn. Lead men, also known as working foremen, are embedded with
work crews on the project.3
The equipment at issue in this controversy involves the telebelt, a heavy piece of
construction equipment operated by the project’s operating engineers. An attached conveyer
belt, spanning approximately 130 feet, transfers materials such as roller-compacted concrete,
coarse aggregate, and other materials for the various parts of the project site. The telebelt sits
on a truck and is stabilized by four steel legs, called outriggers. The outriggers have to be fully
extended on level ground to prevent the telebelt from overturning.4
B. The National Maintenance Agreement
Since 1971, some form of a National Maintenance Agreement (NMA) has been utilized
by labor organizations, management, and owners on construction projects employing members
of the International Union of Operating Engineers. Effective April 2, 2007, the Union, the
Company and the project’s owners adopted the “Revised 1996” version of the NMA as the
general collective-bargaining agreement applicable to the operating engineers on the project.
The NMA incorporates by reference the local collective-bargaining agreement previously
entered into between FWI and the Union for a 5-year term commencing May 1, 2004. The local
collective-bargaining agreement covers work at various Missouri locations, including the project
site, and automatically renews for additional 1-year periods until such time as either party
provides 60-days prior notice of termination. Accordingly, union members working on the project

2 GC Exh. 3.
3 I found the General Counsel’s witnesses – Gagliano, Overton, and Westbrook – to be
credible witnesses and nearly all of their testimony went unrefuted. (Tr. 31–38, 40–42, 47–52,
62, 101–102.)
4 The testimony of Gagliano and Overton regarding the proper and safe set up of the telebelt
was not disputed. (GC Exh. 7(a), 7(b), and 10; Tr. 45–46, 58–60, 106–108, 125.)
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are governed by the NMA and local collective-bargaining agreement.5
The Union, one of four labor organizations on the project, represents the approximately
200 operating engineers employed there. Approximately 6 of those operating engineers are
members of operating engineers’ locals specializing in dam construction in other parts of the
country and work on the project pursuant a traveler permit. The issue of “travelers” has been a
sore topic with the Union, given the fact that travelers are being hired for the project in lieu of
unemployed union members.6
The NMA recognizes the applicability of the Company’s safety rules and regulations at
Article XVII: “The employees covered by the terms of this Agreement shall at all times while in
the employ of the Employer be bound by the safety rules and regulations as established by the
Owner, the Employer, this agreement, or by applicable Safety Laws.”7
C. The Company’s Safety Regulations
The Company’s Safety Orientation check-off sheet (safety orientation) contains a
comprehensive list of the safety topics discussed during employee orientation. The safety
orientation includes, in pertinent part, the following employee responsibilities:
32. Employees MUST report all accidents/incidents to their supervisor immediately, no
matter how slight. This allows us to provide prompt care, and investigate & eliminate
hazards that may cause others to be injured.
35. Employees are expected to learn and comply with all project safety rules, regulations
and policies applicable to their specific work tasks, as a condition of employment.
The last page of the safety orientation consists of a signed acknowledgement by the
employee that he or she participated in the safety orientation during which all of the safety
topics were discussed, fully understands all of the Company’s safety policies, rules and
regulations, and knows where to find the safety manual. Every operating engineer on the project
signed the safety orientation acknowledgment sheet. In addition, the Company holds daily
meetings onsite to discuss various safety issues. The failure to report a safety violation subjects
an employee to discipline.8
D. Overton is Issued a Traveler Permit
Mark Overton, a Colorado resident, has worked as an operating engineer for ASI on
dam construction projects in several states. He is a member of the International Union of

5 GC Exh. 4–5.
6 That the Company was able to employ travelers given the negative views of the Union
indicates that otherwise eligible, but unemployed, union members were not previously trained to
operate a telebelt. See art. XIX of the NMA and sec. 3.03(C) of the local collective-bargaining
agreement. (GC Exh. 4 at p. 11; GC Exh. 5 at p.15; Tr. 35–40, 67–68, 162.)
7 GC Exh. 4 at p. 11.
8 The safety orientation and the NMA both refer to the Company’s safety rules and
regulations, but no written proof of such rules or a disciplinary policy were offered in evidence.
Nevertheless, in the absence of testimony or evidence by the Union to refute the testimony of
the General Counsel’s witnesses that the Company had such rules in place, I find that they
existed. (GC Exh. 6, 11; Tr. 42–44, 60–61, 108–109, 151–154.)
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Operating Engineers, Local 953, AFL-CIO (Local 953), based in Albuquerque, New Mexico. In
December 2007, ASI hired Overton to work on the project as a telebelt operator and trainer. As
a telebelt operator, Overton receives directives from supervisors on the placement of telebelts
on the project site, coordinates the placement and operation of the project’s four telebelts, and
trains others in the operation of the telebelts.
Upon arriving at the project, Overton applied for union membership by attempting to
transfer his membership from Local 953. Given his position on the employment of
nonbargaining unit members on the project, Stephen Gunter, the Union’s business
representative, denied Overton’s application on the ground that the hall was “overfull,” but
issued him a traveler permit to work as an operating engineer at the project site pursuant to the
terms of the local collective-bargaining agreement. As such, Overton is paid by Ozark as an
hourly employee in accordance with the pay scale set forth in the local collective-bargaining
agreement.9
E. Overton Becomes a Working Foreman
In September 2008, Overton was promoted to the job classification of a working
foreman. In that capacity, he leads a crew of about 9 operating engineers and laborers who
work with telebelts and pump trucks. Although he has training duties and reports directly to the
superintendents, Andy Westbrook and Kevin Delo, Overton does not have supervisory functions
or responsibilities, as he does not have the authority to hire, fire, or discipline employees. As
such, he remained part of the collective-bargaining unit. In fact, working foreman have filed
grievances against the Company and have been represented by the Union in that regard.10
Prior to November 20, Overton’s performance as a working foreman had been relatively
uneventful. There were two instances during the summer of 2008 when Pat Kammer, a shop
steward and foreman, complained to Overton that laborers were performing the bargaining unit
work of operating engineers. However, neither Kammer, nor anyone else, ever complained to
the Company about Overton’s treatment of bargaining unit members.11 Gunter would have had
an opportunity to express such concerns during his weekly meetings with Gagliano and
Westbrook, as well as the monthly tripartite meetings with them and the project’s owners to
discuss work, safety, and personnel matters. Yet, he never did at any time prior to March
2009.12 On the other hand, Overton’s status on the project as a traveler has evoked criticism by

9 Overton’s testimony regarding his background and communication with the Union was also
credible and unrefuted. (Tr. 98–122.)
10 I considered, but did not end up giving much weight to Gagliano’s reference to Overton as
a “working supervisor” in his protestation letter to the Union, dated December 11. Consistent
with an evaluation as to an employee’s potential supervisory status in these cases, I considered
all of the actual functions served by Overton on the project. (GC Exh. 9; Tr. 41–42, 47–48, 52,
74–76, 97, 100–102, 116, 158–159.)
11 Westbrook credibly testified that, except for one comment about how Overton was leading
his crew, he never received a complaint about Overton’s treatment of bargaining unit members.
While the General Counsel offered two exhibits containing vague statements about Overton’s
allegedly abusive behavior, the record contains no specific examples of any abusive conduct by
Overton. (GC Exh. 8B and 17; Tr. 63–64, 157, 165–166.) In fact, it was not until March 2009,
well after the unfair labor practice charges were filed, that Gunter complained at a tripartite
meeting about the alleged mistreatment of bargaining unit members by Overton. (Tr. 66–67,
155–157.)
12 Despite no mention of problems with Overton, Gunter has filed several grievances and
Continued
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Gunter and other union representatives and members.13
F. The Allison Safety Violation
As he arrived at the project site during the morning of November 20, Overton observed a
telebelt with an outrigger that was not fully extended. As a shortened outrigger could cause the
telebelt to become unstable and overturn, resulting in serious personal injury or property
damage, this condition constituted a safety violation.14
Being required to report the incident, as explained during safety orientation, Overton
immediately went to the office of Jim Andrews, the Company’s safety officer. Overton and
Andrews then proceeded to the telebelt and measured the outriggers. They found that the fully
extended outrigger measured 64 inches, while the shortened outrigger measured only 30
inches. After confirming the safety violation, Overton sought to determine who operated that
telebelt. Overton called Steve Newton, a union steward, who reported that Ryan Allison, an
operating engineer and union member, was the last one to operate the telebelt. Overton also
spoke with Dwayne Wehner, another operating engineer and union member, who reported that
he helped Allison set up the telebelt that night.15
On the same day, Overton reported the safety violation to Westbrook. Westbrook then
directed Overton to prepare an incident report, as employees were instructed to do during safety
orientation. The failure to report the incident would have subjected Overton to discipline.16
After confirming the incident with the safety department, Westbrook issued a letter,
dated November 20, suspending Allison for 3 days on the following ground:
During the set up of the equipment, you failed to follow established safety instructions by
not having the outriggers of the equipment fully extended. It is the responsibility of each
operator to operate his or her equipment in a safe and conscientious manner. Your
failure to follow established protocols could have resulted in serious injury to one of your
coworkers as well as extensive damage to the equipment.
The suspension letter was copied to Gagliano and Kemmer, and faxed to Gunter on
November 21. Allison did not grieve the discipline and served a 3-day suspension from
November 21 to 23.17
_________________________
raised other issues with Gagliano. (Tr. 61–66).
13 Although it was conceded that Overton had a “gruff” nature, the lack of union testimony
leaves me to rely solely on the testimony of Overton and Westbrook that there were no
complaints by the Union or other employees of abusive conduct prior to the filing of the
Company’s unfair labor practice charge. (Tr. 122–123, 142, 144, 156–157; GC Exh. 10.)
14 Overton’s description of the positioning of the outriggers was not disputed. (Tr. 110–
111,147, 152; GC Exh. 10, 14)
15 Wehner’s role in helping Allison set-up the telebelt was never clarified. However, coupled
with the information he received from both Wehner and Newton, I find that Overton reasonably
concluded that Allison was primarily responsible for the telebelt set-up. (Tr. 60, 111–116.).
16 The testimony of Overton and Westbrook that any employee would have been required to
report the safety violation was credible, corroborated by item 32 of the safety orientation and not
refuted by any other evidence. (Tr. 60–61, 115–116, 151–152).
17 Since Allison did not grieve his suspension, I find it irrelevant that he did not otherwise
complain about his suspension. (GC Exh. 14; Tr. 59, 66, 68, 116, 150–155.)
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G. The Union Retaliates Against Overton
Upon receiving the suspension letter on November 21, Kemmer faxed a copy of it to
Gunter. The next business day, November 24, Gunter filed internal union charges against
Overton for “violation of Article XXI, Section 21:01, subdivision (F) Gross disloyalty or conduct
unbecoming a member”. The charge further stated, in pertinent part:
Mark Overton wrote up Ryan Alliso for failing to have an outrigger fully extended on the
telebelt, when he had already been informed that Duane Wehner was the operator who
had failed to fully extend the outrigger.
The above isn’t the first incident of Mark Overton being adversarial with Local 513
operators. There has been an ongoing problem with him screaming at and speaking in
an abusive manner to his brother operators, which he has been warned about
repeatedly. Also, numerous operators have run the telebelt for an extended period of
time and he eventually finds a way to get rid of them.
It appears that Mark Overton has been dissatisfied with working in Local 513’s
jurisdiction ever since he was informed, some months ago, that he wouldn’t ne allowed
to bring his buddies in from other states to run the telebelts, but instead he would have
to train Local 513 operators on them. This is no way justifies Mark Overton’s misconduct
and behavior.18
By letter dated the same day, Dan McNamee, the Union’s recording secretary, provided
Overton with a copy of the union charges and informed Overton of his right to respond in writing
to the charges within 3 weeks of receipt of the letter. McNamee’s letter further informed Overton
of the Union’s procedural process:
You will be required to appear before the Executive Board, at a later date, at which time
a pre-trial hearing will be held to determine if the charges have merit, and in hopes that
the charges may be resolved at this pre-trial hearing.
You will be notified of the time and place of when the next Executive Board meeting will
be held.
Failure to appear at this pre-trial hearing or to notify us in time of a reason why cannot
appear on the scheduled date may convince the Board of your guilt, and will obligate the
Board to forward the charges to the membership for consideration and a vote as to your
guilt [or] innocence of the charges.19
Overton provided Gagliano with a copy of the Union’s charges. Gagliano responded with
a letter to McNamee, dated December 11, with copies to Dick Dickens, the Union’s president,
and Gunter. In his letter, Gagliano disputed the charges by questioning why the Union did not

18 GC Exh. 8B.
19 Again, while Overton learned that Wehner had a role in helping Allison set up the telebelt,
Allison did not grieve his suspension and, as such, took full responsibility for the safety violation.
Given that documentary background, Overton’s credible testimony and the lack of any testimony
by Allison or Wehner, I find that Overton reasonably believed that Allison either had primary or
sole responsibility for setting up the telebelt. (GC Exh. 8A; Tr. 116–117.)
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comply with the NMA’s dispute resolution procedures or file a grievance challenging the
discipline. He also noted that the Union made no previous mention of abusive treatment of its
members by Overton at any project meetings, suggested that the union charges were an
attempt to intimidate the working foremen on the project, and demanded the Union withdraw the
charges.20
The Union did not respond to Gagliano’s letter. Instead, McNamee sent Overton a letter,
dated January 6, 2009, informing him that the Union would proceed to the next step at its
January 20 executive board meeting:
You are requested to appear before this meeting at which time the charges that have
been filed against you will be reviewed and a pretrial held, so that we may determine if
the charge has merit to present to the entire membership at the next regular meeting.
Failure to appear before the meeting may convince the boar of your guilt, and will then
recommend that the charges be presented to the entire membership to vote and decide
you’re your guilt or innocence.21
Overton did not attend the Union’s executive board meeting on January 20. The minutes
reflect that “[m]erit was found in charges and a fine of $2,500 was recommended if he wishes to
not go to trial by the membership”.22 However, McNamee’s letter on behalf of the Union, dated
January 26, indicated, in pertinent part, that it was more than a recommendation:
This letter is to inform you that merit was found in the charges of November 24, 2008
and a fine of $2,500.00 was levied against you.
If you wish not to accept this fine, you also have a right to trial at the next Local Union
Meeting. Please notify me immediately so I know whether to set up a trial at the next
Local Meeting.
It is also my duty to inform you that you have a right to file an appeal with the General
Executive Board in Washington, D.C., but before you may appeal, you must first have
paid the fine, in accordance with Article XXIV, Subdivision 7, Section (f) of the
International Constitution . . .23
On January 21, 2009, the Company responded by filing an unfair labor practice charge
against the Union. The Company’s amended charge, GC Exh. 1(d) alleged the Union
[R]estrained and coerced employees of Ozark Constructors, LLC in the exercise of rights
guaranteed to them in Section 7 of the Act, as amended by filing internal union charges
and assessing a $2,500 fine against employee Mark R. Overton in retaliation for
reporting to his employer a violation of safety standards.24
In its March 2 position statement responding the charges, the Union insisted that its
internal charges against Overton were not related to the Allison discipline. It states, in pertinent

20 GC Exh. 9.
21 GC Exh. 12.
22 GC Exh. 16.
23 GC Exh. 13; Tr. 119–121.
24 GC Exh. 1(a), 1(d).
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part:
[T]he charges against Mr. Overton were based upon his abusive treatment of fellow
members. The Board refused to consider matters relating to safety. Overton was found
guilty of verbal abuse of fellow members, conduct of which the company had been made
aware on numerous occasions by several individuals.
As to Ryan Allison, Overton was told by another member at the time of the incident that
it was that member, not Allison, who committed the purported safety violation. Overton
told the member that he was going to charge the violation to Allison anyway. This was
simply another incident of Mr. Overton being abusive to fellow members. His conduct
toward Allison is not “employment” related, but an abuse of a fellow member.25
Legal Analysis and Discussion
Section 8(b)(1)(A) of the Act recognizes the right of a labor organization to “prescribe its
own rules with respect to the acquisition or retention of membership therein." In that regard, the
Board has consistently held that a union has a legitimate interest in promoting harmony within
its ranks and may lawfully seek to protect this interest by imposing internal union discipline
pursuant to a properly adopted rule prohibiting members from reporting misconduct by fellow
members to their employer. Communications Workers Local 5795 (Western Electric Co.), 192
NLRB 556 (1971); National Association of Letter Carriers, Local 3825, 333 NLRB 343, 345 fn. 4
(2001); Letter Carriers (Postal Service), 316 NLRB 1294, 1303–1304 (1995); Electrical
Workers IBEW Local 1547 (Redi Electric), 300 NLRB 604, 607 (1990).
Such a right is limited, however, to the extent that the discipline affects a member’s
employment status. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967). In Scofield
v. NLRB, 394 U.S. 423, 430 (1969), the Supreme Court subsequently refined that test to a
determination as to whether the union discipline or rule: (1) is geared to a legitimate union
interest; (2) impairs no policy imbedded in the labor laws; and (3) is reasonably enforced against
a union member who is free to leave the union. In both cases, employees had been fined by a
union when they engaged in concerted activities.
More recently, in Office Employees Local 251 (Sandia National Laboratories), 331 NLRB
1417, 1418–1419 (2000), the Board articulated its latest approach for reviewing the propriety of
union discipline under Section 8(b)(1)(A):
[W]e find that Section 8(b)(1)(A)'s proper scope, in union discipline cases, is to proscribe
union conduct against union members that impacts on the employment relationship,
impairs access to the Board's processes, pertain to unacceptable methods of union
coercion, such as physical violence in organizational or strike contexts, or otherwise
impairs policies imbedded in the Act.
In determining whether an internal union rule is geared to a legitimate union interest or
affects a member’s employment status, the Board must determine whether enforcement of the
rule has an external effect and, thus, tends to restrain or coerce employees in the exercise of
their Section 7 rights. Circumstances of union discipline that have an unlawful external effect fall
into two areas. The first includes instances where union members make statements pursuant to
the grievance process. Cement Workers D-357 (Southwestern Portland Cement), 288 NLRB

25 The Union essentially reiterated this position at trial. (GC Exh. 17; Tr. 89.)
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1156 (1988). The other instance, applicable here, is where an employee is required by his
employer to report certain information that contravenes the interests of the union or its
members. Oil Workers Local 7-103 (DAP, Inc.), 269 NLRB 129, 130–131 (1984). The reason
that union discipline would unlawfully coerce or restrain in the latter instance is because it would
affect the union member’s employment status. See Scofield v. NLRB, supra at 428 (1969);
NLRB v. Allis-Chalmers Mfg. Co., supra at 195. Accordingly, the Board has typically held that a
union commits an unfair labor practice if it disciplines a member who reports a work rule
infraction by a co-employee to his employer when that member is required to do so by his
employer. See, Industrial Union of Marine and Shipbuilding Workers of America, Local No. 9,
279 NLRB 617 (1986); San Diego County Dist. Council of Carpenters, 272 NLRB 584 (1984);
Local 604, Int'l Chem Workers, 233 NLRB 1239 (1977), enfd. 588 F.2d 838 (7th Cir. 1978).
It is undisputed that Overton reported a safety violation by another employee-member,
which he was required to do pursuant to the Company’s safety rules and the NMA that
incorporated them as part of employees’ terms and conditions of employment. Overton’s failure
to report the incident could have resulted in his discipline and, thus, affected the employer
relationship. Moreover, it is reasonable to expect that Overton’s failure to act on a safety
violation, which could have resulted in serious personal injury or death, would have contravened
the NMA, as well as numerous Federal and State labor laws involving worker safety. Lastly,
Overton was faced with the classic Hobson’s choice, since he was required by the NMA to be a
member of the Union — albeit under the status of a permitted “traveler” — and, thus, was not
reasonably free to simply “leave” the Union and remain employed on the project.
Overton’s Section 7 Activities
The Union contends that Overton was not engaged in concerted activity because he
acted alone in reporting Allison’s safety violation. The Union’s strict construction of the statute is
certainly consistent with the Supreme Court’s decision in Meyers Industries, 268 NLRB 493, 497
(1984), which clarified that, generally, “concerted” activity consisted of an employee's activity
engaged with or on the authority of other employees, and not solely by and on behalf of the
employee. Such interpretation, however, does not reflect the evolution of court and Board
decisions providing Section 8(b)(1)(A) with a much broader scope than those analyzed under
Section 8(a)(1). See, International Union of Elevator Constructors (Otis Elevator Co.), 349
NLRB 583, 596–597 (2007) (employee-member’s conduct in following supervisor's direction to
stand aside while subcontractor's employee performed bargaining unit work considered Section
7 activity); Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997), enfd. 175
F.3d 1173 (9th Cir. 1999) (newly-appointed leadman-member engaged in concerted activity by
reporting, as required, nonperformance of fellow union member); Chemical Workers Local 604
(Essex International), 233 NLRB 1239 (1977); enfd. mem. 97 LRRM 1115 (7th Cir. 1978)
(employee-member engaged in concerted activity by reporting, as required, fellow member’s
work rule violation). Communications Workers Local 13000 (Verizon Communications), 340
NLRB 18 (2003) (potential disobedience by an employee-member of union rule requiring
members to refuse “mandatory” overtime).
An employee who complies with an employer’s rule to report coemployee misconduct is
deemed to engage in concerted activity within the context of Section 8(b)(1)(A) because Section
7 also gives employees “the right to refrain from any or all such activities” by refusing to join with
other employees who wished to ignore the employer's outstanding orders. Even where
nonsupervisory leadmen act alone, the Board has broadly interpreted Section 8(b)(1)(A) if
compliance with the Union’s actions or mandate would affected the employee-member’s
employment status. See Teamsters Local 439, supra at fn.1 and Carpenters District Council of
San Diego (Hopeman Bros.), 272 LRB 584 (1984). Under the circumstances, Overton was
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engaged in Section 7 activity when he reported, as required, Allison’s safety violation.
Overton’s Discipline
The Union contends that the General Counsel failed to establish a prima facie case by
offering testimony that a fine was actually imposed on Overton. It also argues that, without such
testimony, the documentary evidence merely establishes that a fine was merely recommended
and not imposed. This defense is unfounded in two respects.
First, the actual imposition of union discipline is not required in order to find a violation of
Section 8(b)(1)(A). A union's mere threat of internal discipline violates an employee-member’s
Section 7 rights where: (1) it reasonably tends to restrain or coerce members from exercising
their Section 7 rights to complain concertedly to management about safety violations, including
those committed by a fellow member; or (2) reasonably would compel union members to act in
contravention of a collective-bargaining agreement. See Anheuser-Busch, Inc., 339 NLRB 769
(2003); Stationary Engineers Local 39, 240 NLRB 1122 (1979). Clearly, the internal Union
charges served on Overton conveyed the message that any he needed to refrain from
exercising his Section 7 rights in the future by not reporting, as required, coworker safety
violations. Moreover, by failing or refusing to report the safety violation in contravention of the
Company’s safety rules, he would have been violating the provisions of the applicable labor
agreements.
In any event, notwithstanding counsel’s contentions, the record evidence demonstrates
that Overton was tried and issued a fine on January 20 because he reported a safety violation
by another union member. While I indeed sustained a form objection when Overton was asked
about the fine,26 the undisputed record evidence reveals that, on January 20, the Union’s
executive board pronounced that “merit was found in the charges and a fine of $2,500 was
levied against [Overton].”27 It is true that the fine was merely a recommendation, but the
testimony of Overton establishes that he took no further action to appeal the action. By its
terms, the letter clearly indicated that the “levied” fine certainly did not go away.

The Position Statement
The General Counsel’s offered the position statement as evidence of the Union’s reason
for engaging in conduct violative of Section 8(b)(1)(A). The Union objected that it was irrelevant
and merely sets forth the Union’s generalized statement of position. I overruled the objection
and received the position statement in evidence in accordance with longstanding Board law.
The Union, having lost that argument, advances the novel argument that, based upon its
position statement, “standing without comment, and supported by the record in the General
Counsel’s case, the General Counsel has failed to carry its burden. The charge must be
dismissed.”28
Position statements are frequently received as evidence in Board cases as admissions
against interest if those assertions conflict with the party's current litigation position or the
testimony of the party's witness. Union-Tribune Publishing Co., 353 NLRB No. 2 slip op at 13
(2008); Jerry Ryce Builders, Inc., 352 NLRB 1262 fn.6 (2008); Evergreen America Corp., 348
NLRB 178, 187–188 (2006); Harris Roger's Corp., 344 NLRB 60 (2005); United Scrap Metal,

26 Tr. 121.
27 GC Exh. 16.
28 Union Brief at 17.
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344 NLRB 467, 468 (2005); Smucker Co., 341 NLRB 35, 40 (2004); Tarmac America, Inc., 342
NLRB 1049 at fn. 2 (2004); Navigator Communications Systems, LLC, 331 NLRB 1056, 1058 fn
10 (2000); McKenzie Engineering Co., 326 NLRB 473, 485 fn. 6 (1998).
The fact that the Union did not call any witnesses, while the position statement was
offered on the General Counsel’s case, presents an interesting issue. The position statement
alleges, in essence, that the Union brought charges against Overton because of his abusive
conduct toward fellow union members and that the safety violation report was the last straw in
that sequence of events. The General Counsel offers as relevant evidence only that portion of
the position statement that asserts that the Union charges Overton because he reported Allison.
The Union, on the other hand, suggests that the portion of the position statement alleging
abusive behavior by Overton is somehow fatal to the General Counsel’s prima facie case.
I tend to agree with the General Counsel on this point. The position statement contained
an admission by the Union that, at least in part, explains that its motivation for charging Overton
was due to his reporting Allison’s safety violation. Such an allegation corroborates the testimony
of the General Counsel’s witnesses. While it also contains allegations that the General Counsel
denies, the fact is that the General Counsel did not offer the document for that purpose. The
position statement thus contains a mixed bag of allegations — some favorable to the General
Counsel and some not. Contrary to the Union’s assertions, however, the portions of the position
statement that are unfavorable to the General Counsel’s case did not go undenied,
uncontradicted, or unimpeached. The record contains credible and unrefuted testimony by
Overton, Gagliano, and Westbrook that there were no complaints by the Union or other
employee-members about abusive treatment by Overton. Accordingly, I disagree with the
Union’s contention that its position statement defeats the General Counsel’s prima facie case.
Under the circumstances, the Company’s actions constituted a violation of Section 8(b)(1)(A).
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
3. At all material times, the Union was the exclusive bargaining representative within the
meaning of Section 9(a) of the Act of the Company’s employees, including the operating
engineers.
4. By the fine levied against him on or about January 20, 2009, the Union restrained and
coerced Mark Overton and other similarly situated employees within the meaning of
Section 8(b)(1)(A) of the Act.
Remedy
Having found the Union engaged in certain unfair labor practices, I recommend that it be
ordered to cease and desist therefrom and take the following affirmative action designed to
effectuate the purposes of the Act. Thus, my recommended Order requires that the Union
rescind the fine it levied against Mark Overton on January 20, 2009. Moreover, the Union is
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required to remove from its records any reference to the internal proceedings against Overton
which are the subject of this case and notify Overton in writing that this action has been taken
and that this matter will not be considered in any future proceedings. The Union is also required
to request that the International Union of Operating Engineers purge its records of this matter
and furnish Overton with a copy of that request. Finally, the Union is required to post official
notices to members concerning this matter and to provide signed copies of that notice to the
Company for posting if it so desires.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended29
ORDER
The Union, International Union of Operating Engineers, Local 513, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Imposing a fine on any employee because he or she reports another employee-member to
his or her employer for work rule infractions, at a time when it is part of the work duties of the
employee who makes the report to do so.
(b) In any like or related manner restraining or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind in full the fine levied against Mark Overton on or about January 20, 2009,
(b) Within 14 days from the date of this Order, remove from its files any and all references to the
internal union proceedings against Mark Overton in connection with the fine levied against him
on or about January 20, 2009, and within 3 days thereafter notify Overton in writing that it has
done so and that it will not use this matter against him in any way.
(c) Within 14 days from the date of this Order, request that the International Union of Operating
Engineers purge its records of the proceedings brought against Mark Overton in connection with
the fine levied against him on or about January 20, 2009, and concurrently furnish Overton with
a copy of this request.
(d) Within 14 days after service by the Region, post at its office in St. Louis, Missouri, and other
places where notices to its members are customarily posted copies of the attached notice
marked ‘‘Appendix.’’30 Copies of the notice, on forms provided by the Regional Director for

29 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 purposes.
30 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
Continued
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Region 14, after being signed by the Union’s authorized representative, shall be posted by the
Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Union to ensure that the notices are not altered, defaced, or covered by any
other material.
(e) Sign and return to the Regional Director sufficient copies of the notice for posting by the
Company, if willing, at all places where its notices to employees are customarily
posted.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Union has taken to comply.
Dated, Washington, D.C. September 4, 2009
____________________
Michael A. Rosas
Administrative Law Judge
_________________________
National Labor Relations Board.”
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APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain on your behalf with your employer.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these protected activities.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL NOT impose a fine against an employee-member because he or she reports another
employee-member to his or her employer for work rule infractions, at a time when the
employee-member’s work duties require such reports.
WE WILL fully rescind the fine levied against Mark Overton on or about January 20, 2009.
WE WILL, within 14 days from the date of this Order, remove from our files any, and ask the
Company to remove from the Company’s files, all references to the internal union proceedings
against Mark Overton in connection with the fine levied against him on or about January 20,
2009, and within 3 days thereafter notify the employee it has been done.
WE WILL, within 14 days from the date of this Order, request that the International Union of
Operating Engineers purge its records of the proceedings brought against Mark Overton in
connection with the fine levied against him on or about January 20, 2009, and WE WILL furnish
Overton with a copy of this request.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 513, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
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1222 Spruce Street, Room 8.302
Saint Louis, Missouri 63103-2829
Hours: 8 a.m. to 4:30 p.m.
314-539-7770.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 314-539-7780.