International Longshoremen's Association, Local 28 (Ceres Gulf Inc.)

National Labor Relations Board - Administrative Judge Opinions

Oct 23, 2018

16-CB-181716 (N.L.R.B. Oct. 23, 2018)

JD–70–18
Houston, Texas
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
International Longshoremen’s Association,
Local 28 (Ceres Gulf, Inc.)
Respondent
Cases 16-CB-181716
and 16-CB-194603
Donna Marie Mata, an Individual
Charging Party
Laurie Monahan Duggan, Esq.
for the General Counsel
Eric H. Nelson and Bruce Johnson, Esqs.
for Respondent
DECISION
STATEMENT OF THE CASE
Sharon Levinson Steckler, Administrative Law Judge. When the Board vacated a
previous administrative law judge’s decision, it remanded the case to Chief Administrative Law
Judge Robert Giannasi for reassignment, a de novo hearing and decision. International
Longshoremen’s Association, Local 28 (Ceres Gulf, Inc.), 366 NLRB No. 20 (February 20,
2018). The remanded case was assigned to me and heard in Houston, Texas on April 10 and
11, 2018.
Charging Party Donna Marie Mata, an Individual (Mata) filed the charge in Case 16-CB-
181716 on August 5, 2016 and the charge in Case 16-CB-194603 on March 8, 2017 against the
International Longshoremen’s Association, Local 28 (the Union). General Counsel issued
complaint and the consolidated complaint respectively on November 30, 2016 on March 22,
2017. Respondent filed timely answers.
On the entire record, including my observation of the demeanor of the witnesses, and
after carefully considering the briefs filed by General Counsel and the Union, I make the
following
JD–70–18
2
FINDINGS OF FACT1
I. JURISDICTION
5
Ceres Gulf, Inc., a corporation, engages in stevedoring, freights and cargo transport and
terminal operator work at numerous ports throughout the United States, including the Port of
Houston, Texas. In the past 12 months, Ceres Gulf has provided services in excess of $50,000
at ports outside the State of Texas. Ceres Gulf, Inc. is a member of the West Maritime Gulf
Association (WGMA), a multi-employer association. WGMA, a trade organization, represents 10
employer-members in negotiating and administering collective-bargaining agreements with labor
organizations, including the Union. It also keeps records and completed payroll for its member-
employers. I find Ceres Gulf is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.2
15
The Union is the exclusive representative of the warehouse workers and has entered
into agreements with WGMA on behalf of the bargaining unit. I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES20
The consolidated complaint alleges that, since about March 1, 2016, the Union violated
Section 8(b)(1)(A) by prohibiting Mata from being added to certification training lists and
receiving certification training due to an invidious reason of gender. Also alleged to violated
Section 8(b)(1)(A) is on about December 1, 2016, a union official solicited Mata to withdraw her 25
unfair labor practice charge in Case 16-CB-181716. The Union denies that it discriminated
against Mata or unlawfully solicited her withdrawal of the charge. To better understand these
events, I first discuss the Union’s hiring hall and training programs, and then proceed to the
allegations and analysis.
30

1 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather upon my
review and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, evidence presented, and logical inferences. The credibility analysis may rely upon a variety of
factors, including, but not limited to, the context of the witness testimony, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be
drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 303–305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not
likely to be an all-or-nothing determination and I may believe that a witness testified credibly regarding
one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed to the party, an adverse
inference may be drawn regarding any factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988).
This is particularly true where the witness is the Respondent’s agent. Roosevelt Memorial Medical
Center, 348 NLRB 1016, 1022 (2006).
2 The parties also stipulated that Houston Terminal, LLC, which is also an employer with ties to
WGMA, is an employer within the meaning of Section 2(2), (6) and (7) of the Act.
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A. The Union Operates a Hiring Hall and Training Program
The collective-bargaining agreement covers several types of employees: regular
employed workers; dedicated workers; and casual workers. Regular employed workers work
40-hour weeks and are subject to the employer’s call to work additional hours. Harris testified 5
that jobs are distributed by seniority and the individual coming to the Union hall for work scans
his or her card, which reflects seniority. Work orders are available on screens in the building so
that workers can see what jobs are available before they are dispatched. Those with higher
seniority are first selected from the seniority list. To accrue seniority, a worker has to work
1,000 hours per year, with the annual period ending in September. 10
Causals do not have seniority cards to scan upon entering the Union hall for work and
do not sign in. Casuals are not guaranteed work but must have certifications to work certain
jobs. If an individual does not have certifications, jobs such as clean up may be available. To
obtain a job as a casual, the casual goes to the Union hall and stands on the line for casuals, 15
known as the red line. Approximately 20 to 25 casuals are present on the red line. Casuals do
not have a list and the business agent selects the right person for a job and sometimes rotates
who is assigned jobs. A dedicated employee goes to hall each Monday morning and waits for
the name to be called and is assigned for a week to a specific employer. The assigned
dedicated worker is manually entered in the Union’s system if given a job. (Tr. 398.) 20
If jobs are still available, the Union official, such as Tim Harris, the business
agent/financial secretary, or Jesse San Miguel, Jr. (San Miguel Jr.), the business
agent/treasurer, offers positions to the casuals who have the certifications for the available jobs.
Michael Atwood testified that he had been a member of the Union for about 3 years. He was 25
able to testify that he had seniority and precisely knew his placement number. He defined
seniority, involving accruing hours that allowed a person to obtain “better jobs or take specific
jobs.” (Tr. 20.) Seniority permitted an individual to pick jobs. (Tr. 21.) He also knew what a
casual was---someone who did not have a seniority number and had to wait to be assigned a
job. 30
To become qualified and eligible for selection for a job, an individual must be trained,
usually with a classroom component and a practicum to operate the equipment. (Tr. 21.) The
individual usually asks to obtain the training. (Tr. 22.)
35
WGMA contracts with private vendors to provide the certification training for 16 unions,
including this Union, in the Gulf Coast region. At the time of these events, Patrick McKinney,
the president of the contractor, administered training. The number of classes offered through
WGMA for each skill may vary, depending upon demand for trained persons. Class size and
number of slots available to each union also varies, with ILA Local 24 (Local 24) usually having 40
the largest proportion of slots due to its size.
In order to obtain a certification, an individual usually has classroom training, practicum,
and pass a test. Since 2005, Harris coordinates training for the Union. On the Mondays
occurring approximately a week before the next month, Harris usually announces the next 45
month’s training, without announcing the specific classes, and ask for interested persons to see
him during hiring. If some training is available later in the next month and not all slots are taken,
he might announce training again as the time approaches.
An individual requests training from Harris or another business agent. Harris has a 50
notepad for tracking individuals requesting training, then sends the list of selected trainees to
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4
WGMA via email. If another business agent takes down a name for training, that business
agent usually gives Harris a sticky note. However, in the previous hearing, Harris testified that
he did not keep a running list of persons interested in training. (Tr. 321-322.) Harris testified
that the only reasons an individual would be denied training would occur would be if someone
did not have the prerequisites or did not qualify for some other reasons. If the class size already 5
reached capacity, Harris puts the person on for standby in case a training spot opens for that
class. If an individual is not included in the scheduled training for the upcoming month, Harris
does not keep a list of the rejected individuals and relies on making the announcements towards
the end of the next month. He later testified that the General Counsel’s question confused him
and he kept a list for the following month. (Tr. 362.) The regularly employed workers and 10
dedicated workers have priority for classes; seniority also plays a role. (Tr. 327-328.) Once
Harris receives confirmation from WGMA that the worker is scheduled for training, Harris
notifies the worker of time and place.
The training opportunities are also offered on the WGMA website. Mata, however,15
testified that the website was not always working properly, depending on phone service. The
training opportunities were not posted at the Union hall.
WGMA ensures the trainees have the necessary prerequisites before they are allowed
to take the class. An individual must pass both classroom and practicum portions of testing. 20
The classroom portion involves watching videos and taking a test. After passing the classroom
portion, the individual then is given a slip with the date and time for taking the hands-on portion
of the test. (Tr. 430.)
B. The Union Allegedly Prohibited Mata from Receiving Training and Being Added to 25
Certification Training Lists (Complaint ¶¶ 9-10)
The complaint allegations in this portion are two-fold:
1) From March 1, 2016 to August 1, 2016, the Union prohibited Mata from inclusion on 30
certification training lists; and,
2) From March 1 to about August 1, 2016, the Union prohibited Mata from receiving
certification training.
In examining the facts as presented, Mata’s work history and allegations of Harris 35
allegedly touching Mata unwantedly are discussed. Also included is her testimony about how
she attempted to obtain training. Mata’s eventual report of Harris’s alleged conduct to the Union
and the Union’s response also are detailed below.
1. Facts40
a. Charging Party Mata’s work history
Charging Party Donna Marie Mata (Mata) is a member of the Union. She was a casual
worker. Since 2001, she went to the union hall for jobs but did not work consistently through the 45
Union. The jobs she held included driving trucks, cleaning up and bracing. Bracing involves
loading and securing cargo. She also was a checker, who ensured the product was correct,
checked the measurement and ensured the items would be delivered correctly. The majority of
her work involved truck driving.
50
JD–70–18
5
Mata left in 2001 due to pregnancy and returned in 2002, then took more time off. In
2004, she began driving after receiving her commercial drivers’ license. In 2004 and 2005 she
found work through the hall was slow, so she obtained work as an over-the-road trucker instead.
In 2007, Mata worked in Iraq and stayed until 2010. Between 2007 and 2010, Mata 5
received leave every 4 months from her work in Iraq and came back to Texas. Leave was
usually 10 to 14 days. She testified that, during that time, she went to the Union hall to see if
she needed certificates and obtain jobs while she was there. However, Harris testified that
scheduling someone who came to the Union hall every four months for only 10 ten days would
be difficult to do for the following month. 10
In 2008, Mata obtained certification in lashing, which was good for the remainder of her
life. Most of Mata’s certifications expired between April 2010 and September 2010. These
certifications included yard tractor,3 forklift and trained worker. She recertified in hazardous
materials on April 1, 2010, which expired three years later. (R Exh. 2.) Mata’s work history 15
showed no work under the Union’s jurisdiction from 2007 until 2015.
When she returned from Iraq in June 2010, Mata testified she could not get work through
the Union hall. She said her certifications were expired and she asked Harris to get recertified.
Mata testified that, on one or two occasions per year, she approached Harris in his office with 20
the door shut, to obtain training. He would grab her on the breast. Each time she pushed him
off and said it was never going to happen, then leave the office quickly. At an unknown time
after June 2010, Mata instead obtained work for private trucking companies.
In 2012, Mata did not attempt to obtain work through the Union. In 2013 and 2014, she 25
testified that she needed certification and did not obtain them. Without the certifications, she
could perform clean-up jobs, but many of those positions were single-day assignments.
Mata later testified that she was injured in 2011 and was off from December 2011 to
2013. (Tr. 105.) She also testified that she was terminated from one trucking company for using 30
her personal telephone while driving, for which she received a ticket. The ticket was dismissed,
allegedly because she was not on the phone, but the trucking company did not take her back.
(Tr. 108.) When work was slow for the trucking companies, Mata testified that she perhaps
went to the Union hall for jobs about every couple of months; sometimes she would go for about
2 days in a row if she was off from the trucking company. She admitted that between June 35
2010 and March 2015 her efforts to obtain employment through the hall were “sporadic.”
b. In 2015 Mata returns to the Union hall for work and training
Mata could not recall when in 2015 she stopped driving for a private trucking company. 40
She stated she was available for work through the Union hall consistently in April and May
2015. Mata found she was not receiving enough work in bracing and driving, so she wanted to
obtain certifications for operation of forklifts, heavy lifts and top loaders. She then testified that
the third certification was to “roll on/roll off” vehicles.4 All three certifications involve moving
cargo. The heavy lift is similar to a forklift, bur larger and capable of carrying more weight. 45

3 A yard tractor is a smaller version of the over-the-road truck with automatic transmission and
required a commercial driver’s licenses. (Tr. 121.)
4 Harris testified that the Union does not have a contractual rate for roll on/roll off, which is referred
more frequently to Local 24. (Tr. 380.)
JD–70–18
6
Mata also testified “roll on/ roll off” involves driving vehicles (e.g., car, truck or van) off and on
ships and park them.
Mata further testified that she requested training from Harris in the Union hall’s open are
and in the office. She said she was in the hall “all the time” and then “just about every day.” 5
She arrived at about 5:30 to 5:45 a.m. because 6:00 a.m. was the time for hiring casuals, and
would stay until 2:30 p.m. to 4:30 p.m. in case a replacement was needed for a position.
Mata testified that, in 2015, Harris told her that her certifications were no longer valid.
She later corrected herself that her yard tractor certification had not expired. (Tr. 129.) For 10
June 2015, Mata recertified in longshore and was on standby for yard tractor training. (R. Exh.
13.) In early 2016, Mata held certifications in hazardous materials, longshore, and lashing, plus
she passed a Department of Transportation physical.5 Because she was certified in truck
driving as well, she also was certified to operate yard tractors. These certifications also were
prerequisites to obtaining further certifications. 15
Mata testified that, in 2010 and 2015, she went to Harris’ office to talk about certification
training. The door was shut and she and Harris were the only ones in the office. Harris testified
that he kept his blinds open in his office for natural light. However, no windows faced into the
offices.20
Mata said she requested certifications and Harris tried to engage in small talk about her
husband and family. She said she would tell Harris that they were fine but she was there to
discuss the certifications. Harris told her not to worry about it and he would take care of it, then
come around his desk and grab her, particularly on the breast. Mata pushed him away and 25
quickly got out of the office. (Tr. 51.) She then avoided going to the Union hall and obtained
driving jobs elsewhere instead. Mata testified that the last of these incidents occurred before
Easter 2015, which was April 5, 2015. (Tr. 131.)
In June 2015, Mata obtained certification class assignments through Harris. On 30
redirect, she testified that she had to “hound” Harris to obtain these trainings. She further
testified that she continued to ask for roll on/roll off class, heavy lift class, and the forklift class,
which Harris stated he could not recall.
Harris recalled that Mata requested training after membership meetings. He specifically 35
recalled that, about October 7, 2015, when the quarterly membership meeting was completed,
Mata found him in the main office. Harris advised her that the classes for October were filled.
He recalled another incident, date unknown, when Mata came into the office with other officers
present, and asked for class. The class was scheduled for the same day and Harris told her
she could go to the training location to see if she could stand by for the course. 40
Mata opined that a female asking for certification classes would get the same treatment
she experienced. Mata testified that she observed that men who asked Harris for certification
training would obtain Harris’ assignment for class. Mata said she tried to go around Harris,
seeking out the Union president at the time, Larry Sopchak,6 or other Union officials such as 45
A.L. Williams, the assistant vice-president, or B.R. Williams, the vice-president; they directed
her to Harris. Mata said that she did not report it because others told her the Union would

5 Mata’s affidavit did not mention that she was certified in yard tractors or in hazardous materials.
However, she testified that she was operating yard tractors. (Tr. 125-127.)
6 Sopchak served several terms as president and left office in May 2017.
JD–70–18
7
“blackball” her. “Others” were not identified, nor was the time frame in which she was told not to
report it.7
In January 2016, Mata received a “dedicated” employee assignment through the Union
as a truck driver for Ceres Gulf. (Tr. 204.) Mata maintained that she requested training from 5
Harris every day she was in the Union hall, at least 10 times in March 2016, then shifted to 6 to
10 times after General Counsel re-asked the question. (Tr. 43.) She testified that Harris told
her classes were full or she would have to wait until the following month. However, she
answered the question about why she thought Harris was not putting her on the training list
because “He would tell me that he didn’t want me to get those classes. He told me himself that 10
he didn’t want me to do the forklift, he didn’t want me to do the heavy lift . . . because those are
dirty jobs, those are physical jobs, and that’s not what he wanted me to do.” (Tr. 43.)
Harris testified that, about March 2016, the WGMA employers had a high demand for
truck drivers. Mata was assigned as a dedicated driver. As a dedicated driver, she was 15
assigned for the entire week and not in the hall except on Mondays when the casuals received
the dedicated assignments. San Miguel Jr. testified generally that Mata was sporadic in
attendance at the hall, and would come in after hiring, or in the afternoons; if he had work, such
a truck driving, he would call her and direct her to go “straight to the job.” (Tr. 458.)
20
Atwood recalled that he had been at the Union hall every Monday, the same as Mata,
then testified he could not recall whether she was present at the hall with him between March
and August 2016. Suddenly Atwood could not recall events from one to three years prior and
blamed an accident that occurred before any of these events. He denied having job-related
issues. In response to a leading question, he did recall he was laid off about 3 weeks before he 25
testified in the previous hearing. (Tr. 24.) According to Harris, Atwood tested for a mechanic
position within the previous 3 years and he became a regular employee.
c. Mata reports to San Miguel Jr. about Harris’s alleged conduct and meets with
Union officers30
About the end of June 2016, after a health fair, Mata reported Harris’s conduct to her
relative8 and Union business agent/treasurer, Jesse San Miguel, Jr. Mata met San Miguel Jr.’s
wife at the health fair and they went to San Miguel Jr.’s home for lunch. San Miguel Jr. showed
up at the house and Mata told him that Harris assaulted her. San Miguel Jr. however, recalled 35
that Mata talked about the alleged assault, but mentioned nothing about training or going to the
EEOC. (Tr. 446.) San Miguel Jr. then asked Mata for permission to notify the appropriate
authority with the Union and Mata consented. San Miguel Jr. called Union President Sopchak
immediately, then reported to Mata that he, Sopchak and A.L. Williams would meet with her at
the Union hall.9 Due to Mata’s report, the Union determined that San Miguel Jr. should be40
Mata’s liaison at the Union hall.

7 Mata did not avail herself of the collective-bargaining agreement procedures to report sex
discrimination or sexual harassment through WGMA. (R. Exh. 22, p. 8. et seq.) A local union is
supposed to report any sexual harassment allegations to WGMA.
8 Mata testified that San Miguel Jr. was a cousin; he testified she was his stepmother’s niece.
9 San Miguel Jr.also testified that, on a later date, Mata mentioned that she might go to the EEOC, but
thought Mata “probably” told him she would seek help at the NLRB. (Tr. 448.) He recalled discussions
about the EEOC occurring in late July 2016 and Mata saying she did not want the Union sweeping things
under the rug. (Tr. 449.)
JD–70–18
8
On July 1, 2016, during the meeting at the Union hall, Mata told the Union officials that
Harris touched her inappropriately on multiple occasions and that she needed to obtain her
certifications, which she was having problems obtaining because Harris would not schedule her
for them. Sopchak testified that Mata left the meeting a few time to go to the restroom because
she said she had to vomit. He also observed that Mata was emotional and in tears several 5
times. Sopchak testified he informed Mata that he spoke with the Union attorney and he would
like to schedule a meeting with her. He also asked if Mata wanted to invoke the WGMA
facilitation process. Mata declined the facilitator but agreed to meet with the Union attorney.
(Tr. 476.) The meeting lasted between 1 ½ to 2 hours.
10
On July 6, Mata met with Sopchak, B.R. Williams and attorney Eric Nelson at the Union
hall. Mata repeated the information she previously shared. Nelson said he would get back with
her.10 On Thursday July 7, Mata was offered a forklift training class for the following day, but
declined to attend on short notice. (R. Exh. 21.)
15
About August 1, 2016, San Miguel Jr. and Sopchak each notified her about a training
schedule for her, beginning the following day.11 Mata’s testimony went back and forth about
when she learned about her assignment to classes. Mata first testified that she heard nothing
for about 3 weeks after the meeting that included Nelson and contacted the Board. She filed an
unfair labor practice charge against the Union. She testified that, before filing the charge, she 20
contacted San Miguel Jr. by text message, telling him she intended to speak with the Board
because she heard nothing. (Tr. 79.)
Mata’s testimony about when she was enrolled in upcoming classes was not consistent.
She testified that after she filed the charge, San Miguel Jr. notified her that she would be 25
enrolled in certification classes Mata was working on a job site when San Miguel Jr. notified her
she was enrolled in the certification classes and that it occurred before she filed the unfair labor
practice charge. (Tr. 151-152,162.) Mata then testified that she did not tell anyone at the Union
of her intent to file a charge before she did so. (Tr. 154.) She later testified that, before August
3, she told San Miguel Jr. that she filed an unfair labor practice charge, and more likely on 30
August 1. (Tr. 268.) She then testified she did not know whether she told San Miguel Jr. if she
filed a charge or just spoke with the Board. (Tr. 280.) However, after Mata was assigned, San
Miguel Jr. texted her about August 4 and asked whether she got her information straight at the
Board. (GC Exh. 4.) Because Mata’s testimony shifted, I find that the Union registered Mata in
the certification classes before she filed the unfair labor practice charge. 35
d. Mata’s training sessions in August 2016
Mata received a telephone call from Sopchak, who also advised that she would be
placed in the roll on/roll off, forklift and heavy lift classes. (Tr. 81.) Mata attended those classes 40
in August 2016. (Tr. 81.) She attended the first two of the three classroom portions on August 2
and 4, respectively. (Tr. 162.) She attended the hands-on portions of classes on August 8, 10
and 11, 2016. (Tr. 83; R. Exh. 2.)
For the roll on/roll off practice, Mata was ill that day and did not complete it. She testified 45
she did not complete the training because the practice car was “messed up.” McKinney sent

10 Mata believed this meeting took place in the second or third week of July. She later testified the
meeting took place at the end of July.
11 Mata later testified that the phone conversations regarding training assignments occurred on
August 2 and August 4. (Tr. 277.)
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9
her home, despite her protests, because she might have been contagious and if she failed the
hands on portion, she would have to retake the entire course no sooner than 60 days later. (Tr.
431.) For forklift, Pat McKinney instructed her; according to Mata, he became ill and told her
they would need to reschedule. For the heavy lift, McKinney told her not to show up and she
would be rescheduled. Mata also had two more “no show/excused” for the other two practice 5
classes and apparently had other things to do. (Tr. 434.) On August 10, Mata was again at the
practical portion and told McKinney she was feels effects of the heat. (R. Exh. 10). McKinney
rescheduled Mata’s practicum for the three classes for August 17, 2016. (Tr. 435; R. Exh. 10 at
p. 2.) About mid-August, San Miguel Jr. telephoned Mata with her rescheduled times for
training. (Tr. 272.) She performed roll on/roll off duties since that time. Mata apparently never 10
completed the practical portions of the forklift and heavy lift courses and did not obtain
certification. However, no evidence demonstrates that Mata requested to complete these two
courses at a later date or the Union prohibited her completion.
McKinney testified that no one from the Union asked or told him Mata should not 15
complete her August 2016 certifications. (Tr. 436.)
e. Additional witnesses called by General Counsel
1) Donna Kaminski20
Donna Kaminski, a truck driver who was a member of Longshoremen’s Local 24 (Local
24), previously was a member of the Union but had not been there in “a very long time.” (Tr. 55.)
On occasion, Kaminski saw Mata in Bayport, Texas, where both Local 24 and the Union shared
a breakroom. Mata also obtained jobs through Local 24. 25
Kaminski holds certifications in truck driving, heavy lift, forklift, roll on/roll off operations,
hazardous materials, and supervisory skills, all of which she received while working through
Local 24. Local 24 maintained a monthly calendar for certification training. She only went to the
Union in 2007-2008 and did not attempt to obtain certifications from it.30
2) Atwood
Atwood was called in General Counsel’s case in chief on the first day of hearing. I credit
Atwood simple explanations of how seniority works. However, his sudden forgetfulness 35
regarding his knowledge about Mata at the Union hall was too convenient. He introduced his
alleged memory failure by saying he was talking to his wife about it and his tone of voice shifted
to an attempted nonchalance. I found it difficult to believe that a person with his supposed
memory loss was able to work as a mechanic. General Counsel tried leading questions and
prodded, yet nothing worked. As General Counsel notes in her brief, Atwood’s refusal to 40
answer questions demonstrated hostility and possible coercion. The Union had an opportunity
to examine him. General Counsel excused him as a witness.
On the second day of hearing, the day after Atwood was excused and was no longer
present, General Counsel moved to include in the record the transcript of Atwood’s testimony 45
from the prior hearing involving both parties and the same issues. The Union objected. The
parties engaged in robust discussion, leading me to ask the parties to brief the matter. The
prior testimony, which I have reviewed, is contained in Rejected GC Exh. 1.
50
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(a) Parties’ positions regarding admitting prior testimony
General Counsel argues that Atwood’s prior testimony is admissible as an exhibit
pursuant to Fed.R.Evid. 801(d)(1)(A). General Counsel also argues that Atwood’s memory
failure makes him unavailable, as defined in Fed.R.Evid. 804(a)(3). Another rule of evidence, 5
Fed. R. Evid. 804(b)(1), also cited, should make the prior testimony admissible because it was
offered against the same party who was allowed to cross-examine the witness. General
Counsel also raises the possiblity of witness intimidation. See Conley Trucking, 349 NLRB 308,
312 (2007), enfd. 520 F.3d 629 (6th Cir. 2008). In her discussion General Counsel cites to
additional cases where affidavits were admitted when witnesses had claimed memory failures: 10
New Life Bakery, 301 NLRB 421, 426 (1991); Snaider Syrup Corp., 220 NLRB 238 fn. 1 (1975);
and Starlite Mfg. Co., 172 NLRB 68, 72 (1968).
The Union has three arguments against admission of Atwood’s prior testimony. First, it
contends that Fed.R.Evid. 801(d)(1) is not a rule of admissibility of a definition of evidence that 15
might be admissible if offered, particularly when a prior statement is inconsistent with the
testimony. Atwood’s testimony was not inconsistent because no portion of the prior testimony
was presented and therefore could not establish inconsistency. Secondly, regarding Fed.R.
Evid. 803(5), the predicate to admissibility was not satisfied that the testimony was made when
events were fresh in the witness’s mind and the witness must ascertain the authenticity and 20
truthfulness. Here the Union differentiates Three Sisters Sportswear, supra, Conley Trucking,
supra, and New Life Bakery, supra, because affidavits were admitted as substantive evidence
only after the judge found the testimony at hearing untrustworthy.12 Lastly, the transcript should
be rejected as unfairly prejudicial because the General Counsel should have offered the prior
testimony while Atwood was on the stand; as a result, the Union did not have an opportunity to 25
cross-examine Atwood about his prior testimony. (R Br. 31.)

12 In Three Sisters Sportswear Co., 312 NLRB at 865, the witness claimed she could not recall
providing an affidavit or any of the events that occurred. The administrative law judge discredited her lack
of memory as a ruse to refuse to answer question and found the witness, who was still employed by the
respondent employer, was too frightened to say she recalled anything. However, she did verify her
signature. Board representatives also credibly testified to introduce the affidavit. The administrative law
judge admitted the affidavit as a past recollection recorded exception to hearsay. Id. The judge in Three
Sisters Sportswear relied upon three cases in which affidavits were admitted into evidence: New Life
Bakery, 301 NLRB 421 (1991); Snaider Syrup Corp., 220 NLRB 238 fn. 1 (1975); and Starlite Mfg. Co.,
172 NLRB 68, 72 (1968).
The judge in New Life Bakery, supra, admitted the affidavit after the witness feigned memory loss
when examined by General Counsel but answered respondent employer’s questions. The judge ruled
the witness was unavailable to General Counsel by refusing to answer questions even after the judge so
ordered. The judge admitted the affidavits into evidence as an exception to hearsay (past recollection
recorded) and other grounds, which is now contained in Fed.R.Evid. 807. In Snaider Syrup Corp., 220
NLRB at 238 fn. 1 and 244-245, the Board affirmed the judge’s admission of affidavits when two of
General Counsel’s witnesses’s memories allegedly failed; the judge considered the affidavits as
affirmative evidence of what they previously knew and rejected some of the affidavit.
The affidavit in Starlite Mfg. Co., 172 NLRB at 72 was admitted pursuant to the California evidence
code regarding prior statements of witnesses. Because the declarant was available for confrontation and
cross-examination, the affidavit was admitted “as substantive evidence.” Id. at 73.
JD–70–18
11
(b) Analysis
I find that the rules of evidence and judicial prerogative allow admission of the affidavit.
Fed.R.Evid. 801(d)(1)(A) identifies statements that are not hearsay when a declarant witness
made a prior statement. Initially, as defined in Fed.R.Evid. 801(d)(1), the declarant testifies and 5
is subject to cross-examination. More specifically in Fed.R.Evid. 801(d)(1)(A), the statement
given “is inconsistent with the declarant’s testimony and was given under penalty of perjury at a
trial, hearing or other proceedings or in a deposition . . . .” In Conley Trucking, 349 NLRB at
310-311, the judge gave a detailed discussion of why pretrial affidavits could be admitted. First,
the judge has authority to admit substantive admission of such affidavits because the judge 10
applies the rules of evidence as far as practicable, following the legislative history of the Taft-
Hartley Act. Secondly, Fed.R.Evid. 801(d)(1)(A) permitted admission of the affidavit when the
witness was in court and subject to cross-examination about the pre-hearing statement, or at
least close enough to a deposition to be admitted. Id. The administrative law judge also
warned not to confused admissibility with the sufficiency of the evidence and “consider[] the 15
assertions against and with the record evidence as a whole . . . .” Id. at 312.
Fed.R.Evid. 804 applies when a declarant is not available as a witness. The applicable
definition of unavailable is provided in Fed.R.Evid. 804(a)(3): “testifies to not remembering the
subject matter . . . .” Fed.R.Evid. 804(b)(1) identifies that prior sworn testimony given at hearing 20
is an exception to the hearsay rule and can be offered against a party who had an opportunity
and similar motive to develop it by “direct, cross- or redirect examination.”
Accepting that Atwood lost his memory for whatever reason, he was not available as a
witness in this case and earlier testimony was subject to the Union’s examination in the same 25
factual case. In re Panoceanic Tankers Corp., 54 F.R.D. 284 (S.D.N.Y. 1971). He also was
available to cross-examination in the present hearing. I find that the Union suffers no prejudice
with admission of the prior testimony as the Union had the opportunity to examine Atwood at the
prior hearing.
30
Despite this finding, the prior testimony, although not hearsay or subject to a hearsay
exception, is not admitted reflexively. “Admission of a sworn statement by a ‘turncoat witness’”
is an appropriate application” of the catchall provisions. Balogh’s of Coral Gables, Inc. v. Getz,
798 F.2d 1356 (11th Cir. 1986).13 Application of Fed.R.Evid. 807 is fact-specific and the
testimony offered should be viewed in context. U.S. v. Prevezon Holdings, Ltd., 319 F.R.D. 35
459, 465 (S.D.N.Y. 2017). Pursuant to the catchall exception, if applied, the testimony still must
have “probative value” and balanced against unfair prejudice as required in Fed.R.Evid. 403.
U.S. v. Carneglia, 256 F.R.D. 366, 372-373 (E.D.N.Y. 2009). Not only must this statement have
probative value, the statement must meet 4 criteria:
40
(1) The statement has equivalent circumstantial guarantees of trustworthiness;
(2) It is offered as evidence of a material fact;
(3) It is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts; and
(4) Admitting it will best serve the purposes of these rules and the interests of 45
justice.
Fed.R.Evid. 807(a).

13 Balogh’s, supra, arose under Fed.R.Evid. 803(24), which is contained now in Fed.R.Evid. 807.
JD–70–18
12
The statement is sworn testimony given at a prior hearing, which provides significant
guarantees of trustworthiness. General Counsel is offering the prior testimony for material facts
concerning Mata’s attendance at the Union hall, discrimination against women in general and
Mata’s attempts to obtain training. As above, the information provided is supposed to
corroborate Mata’s testimony and is not the only source of information. I therefore admit what is 5
currently marked as General Counsel’s Rejected Exh. 1, Atwood’s prior testimony.
(c) Atwood’s testimony from the previous hearing
At the time of the prior hearing, Atwood had been a member of the member for 1 ½ 10
years, working as a driver and mechanic. He had seniority at the time but previously worked as
a casual. Between March 2016 and August 2016, Atwood had been at the hall with Mata and
spoke with her. He testified that Mata told him that she requested training, which was denied.
He observed that Harris “usually” awarded training to men rather than Mata. He suggested to
other women who could not obtain training to seek training from other local unions; two took his 15
advice and obtained training “immediately.”
On cross-examination, Atwood testified that one man obtained training before Mata,
although she was more experienced and more qualified. The man in question, whose name
Atwood could not recall, supposedly received truck driving jobs faster than Mata. He also 20
admitted Mata was a truck driver. He admitted he was a fulltime regular during the period in
question and would not have to come to the hiring hall except usually on Monday mornings.
However, he also claimed he was at the hall to help out his son in finding a job, but in response
to whether he attended on Mondays, Atwood said he was present, “Almost every day we could.”
25
Atwood was laid off as a regular for “a couple of weeks” because his regular employer
had cutbacks. He had been at the hiring hall about twice during that time, but did not go more
frequently because he had issues at home. He then testified that he was at the hall and saw
Mata about “a couple of dozen times” from January 1, 2016 forward.
30
Atwood did not obtain his certifications through the Union but ILA Local 20-Galveston,
because he was unable to obtain training through the Union in June and/or July 2015. He also
testified that, while he was a casual, others received jobs he wanted possibly due to seniority,
experience and training. He further admitted that it was not unusual that Harris and the Union
dispatched women to jobs through the hiring hall. 35
Regarding training opportunities, Atwood did not know whether the training slots were
allocated between the local unions. He then testified that he talked with Mata twice outside of
work in 2016, about trying to obtain training through the Union hall.
40
2. Credibility
Kaminski, while credible, provided little evidence of what occurred at the Union in recent
history. She provided information about Local 24, where she has worked in recent history.
45
Atwood, based upon his testimony from the prior hearing, contradicted himself. Much of
his testimony was intended to bolster General Counsel’s case but instead undermined it. He
was not consistent about the times he saw Mata. He admitted that he too had to seek training
elsewhere and he was not familiar with all elements in assignments of training.
50
JD–70–18
13
I find that some of Mata’s discussions about her certifications were misleading. Her
statements about needing recertification before 2010 were not accurate compared to the
Union’s computerized records. Mata switched what was the third certification she sought in
2016 from top lift to roll on/roll off. (Tr. 31-33.) She first claimed she was in the Union hall “all
the time” and then shifted to “just about every day.” (Tr. 34.) Regarding employment during the 5
early 2010s, Mata testified first that she did not work in the hall at all and seemed to imply that it
was because of inability to obtain further certifications. Mata also testified that she was denied
opportunities to train while she was in Iraq and when she returned. However, her training
history indicates she recertified in lashing and hazardous materials during that time. She
subsequently recertified in yard tractor in June 2015. She admitted that the training calendars 10
were available to her through a website, but apparently relied upon the announcements as she
did not testify whether limited access to the website was due to her computer system or
WGMA’s.
Mata’s testimony about her work history was not exactly forthcoming either. Mata 15
worked part-time for other trucking firms during the time between 2010 and 2015, plus had
slightly more than 12 months off due to an injury in December 2011. (Tr. 105-106.) Mata once
was terminated for having her personal phone out; despite the police dismissing the ticket, Mata
apparently does not understand why a trucking company would not want her to bobble the
personal phone in the truck cab. 20
I find it inherently improbable that Mata requested training 6 times in March 2016. First,
Mata testified that she requested training 6 to 10 times, then quickly changed her answer. She
was a dedicated worker most of this time and would have been more likely to be in the hall only
on Mondays, when she picked up her assignment. A 2016 calendar shows March 2016 only 25
had 4 Mondays. Mata does not place where in the month she requested training; as
demonstrated by Harris’s testimony about Mata’s earlier request after a union meeting, she may
have made requests at a time when the training calendar was not available or already filled for
the month.
30
San Miguel Jr. generally is credited here. However, I do not credit his testimony that he
learned of the charge in December as his text to Mata places it in early August, but after Mata
was assigned to classes.
I found Sopchak credible. He testified under less than ideal circumstances --- the lights 35
in the courtroom went dark and he testified by computer light and telephone light. His answers
were not evasive. His testimony was bolstered by his documentary evidence. See R. Exh. 21.
Harris was credible regarding how training is assigned and how the Union assigns work.
Mata and Harris were diametrically opposed about whether he engaged in unwanted 40
touching over the years. Sopchak’s report of his initial meeting with Mata is compelling. I found
neither Mata nor Harris particularly credible here. Mata was confused about a number of details
in her other testimony; although she certainly believed these events occurred, she had so many
issues that I cannot see clear to credit her fully. Although the criminal charges were dropped
against Harris, I am not examining these versions at a criminal law standard of “beyond a 45
reasonable doubt.” In a civil procedure, such as before a regulatory agency, the standard is
“more likely than not.” Harris, in addition to his discussion of the criminal investigation, generally
denied doing so but sounded weak. Because of the nature of the allegations, I will presume
that Harris engaged in such conduct. Additionally, and for similar reasons, I do not credit that
Harris made statements to Mata about her work assignments and training, such as keeping her 50
off of dirty jobs, until San Miguel Jr. took over assignments to Mata.
JD–70–18
14
Regarding assignments to training and completing training, Patrick McKinney was
subpoenaed to testify and no longer administers training for WGMA. I credit his testimony as
much of it was based upon his extensive experience in training and supported with documentary
evidence. He had clear recollection of the events involving Mata. Further, Mata was not 5
penalized for failing to take the complete courses and was permitted to complete the roll on/roll
off class undermines the implication that the Union later blocked her from completing the
courses. Mata did not testify that she requested to complete those courses and I find that she
did not do so.
10
3. Analysis
General Counsel puts forth two theories: The Union’s actions were based upon
invidious reasons; and, The Union’s actions are based upon discriminatory treatment.
15
a. Invidious reasons
A union violates its duty of fair representation towards employees it represents when it
engages in conduct affecting those employees’ employment conditions and the union’s conduct
is arbitrary, discriminatory or done in bad faith. Vaca v. Sipes, 336 U.S. 171 (1967). To show
that the bargaining agent violated the Act “requires credible proof that demonstrates, with 20
reasonable preciseness, that a statutory bargaining agent has crossed the line of rationality and
acted to the detriment of a member or members of the bargaining unit for reasons that are
‘arbitrary, discriminatory or in bad faith.’” Int’l Brotherhood of Teamsters, Local 101, AFL-CIO
(Allied Signal Corp.), 308 NLRB 140, 143-144 (1992), citing Vaca v. Sipes, 336 U.S. at 190.
Sex has long been held as an irrelevant, invidious and unfair consideration in operation of a 25
hirng hall. See, e.g.: In re Pacific Maritime Ass’n, 209 NLRB 519 (1974); In re Olympic S.S.
Co., 233 NLRB 1178 (1977) (sex-based seniority system).
An example occurs when an employee requests a civil rights complaint over harassment
for union activity and the union fails to do so because the employee opposed union leadership 30
and supported other candidates. Delphi/Delco East Local 651 (General Motors Corp.), 331
NLRB 479, 479-480 (2000).
General Counsel suggests the Union had two issues of sexual discrimination as the
basis for denying Mata training opportunities: First, the Union discriminates against women in 35
general; secondly Mata spurned Harris’s unwanted advances, which caused him to deny her
training opportunities.
Regarding the first grounds, that the Union discriminates against women, testimony was
generalized and does not support a conclusion that the Union discriminates against female 40
workers. Kaminski’s testimony was dated and therefore could not assist with events from 2015
forward. Mata made unsupported conclusory assertions. Atwood’s testimony also revealed
only one to two anecdotal incidents and he admitted that he too had been passed over for
training. Based upon this lack of evidence, I cannot find that the Union generally discriminates
against women. Dispatch Printing Co., 306 NLRB 9, 13-14 (1992) (general accusations do not 45
prove that union had animus towards female gender). General Counsel makes much of the lack
of documentation of requests for training; however, General Counsel never presented the
number of women working through the Union in the first place.
JD–70–18
15
Regarding the second grounds, although I give General Counsel the benefit of the doubt
about Harris likely engaging in unwanted touching, I find insufficient intent to discriminate and
deny training upon this reason based upon credited evidence. Dispatch Printing Co., 306 NLRB
at 11. First, from March 2016 forward, Mata received assignments as a dedicated driver. She
was a casual worker and did not have priority, plus Harris testified credibly that he was required 5
to distribute assignments. Atwood’s testimony also revealed that he had little idea about this
requirement. Secondly, the alleged touching had stopped in the previous year and was
increasingly remote. Thirdly, I did not credit that Mata made all timely requests that she
claimed. She testified more about March 2016 only than the entire period afterwards.
10
b. Discriminatory treatment
For General Counsel’s second theory, in cases where a union is accused of action
based upon unlawful discrimination or motivation, the appropriate analysis falls under Wright
Line.14 Plasterers Local 121, 264 NLRB 192 (1982). General Counsel must establish three 15
elements: 1. The union member was engaged in protected activity; 2. The Union knew of the
activity; and, 3. Animus and/or hostility towards the activity was a motivating factors in the
union’s determination to take adverse action in question against the union member. Teamsters
General Local Union No. 200, 357 NLRB 1884, 1852 (2011), affd. 723 F.3d 778 (7th Cir. 2013).
20
General Counsel argues that Mata, as a member of a protected class, was subject to
discrimination, and the Union demonstrated animus against Mata because of her protected
class. Regarding alleged denial of training opportunities, to complete training, even after Mata
reported the alleged inappropriate sexual conduct, General Counsel contends that Harris was in
touch with McKinney, who denied Mata her opportunity to complete her training. 25
General Counsel argues that the first prong of the test permits analysis permits a
protected status for females. However, the cited case does not support that inference. See
Consolidated Bus Transit, 350 NLRB 1064-1066 (2007), enfd. 577 F.3d 467 (2d Cir. 2009).
Board cases are replete with examples of what protected activity is, and gender alone is not one 30
of them. Although General Counsel analogizes Wright Line to discriminatory conduct, the case
cited is a Title VII equal employment opportunity case, not one occurring under the Act.15 For
example, dissident union activity fits into the Act’s category. Reporting alleged discrimination by
a union official to the Union, however, should be considered protected activity. Yet Mata only
reported the activity on about June 30. Therefore, Mata could not have engaged in protected 35
activity between March 1 and June 30 of that year.
Taking General Counsel’s theory to the next step, the Union knew of Mata’s report. It is
at the third step, requiring animus and/or hostility towards Mata and causing an adverse action
where this theory particularly fails. First, between June 30 and August 2016, I find no evidence 40
of animus against Mata’s reports that deprived her of training opportunities and retesting.
Instead, the Union took appropriate actions and immediately offered Mata a training opportunity
in July, one that she declined. She was scheduled for training in August before she filed unfair
labor practice charges. The credited evidence does not demonstrate that the Union, and Harris
in particular, harbored ill will towards her. Compare The Kroger Co., 312 NLRB 7, 12-13 (1993). 45

14 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).
15 Employees may state a cause of action against the Union for both Title VII and Section 8(b)(1)(A)
of the Act in the same complaint. Golleher v. Aerospace District Lodge 837, IAM, 122 F.Supp.2d 1053
(E.D.Mo. 2000). However, the Title VII cause of action alone cannot be enforced through the Board.
Additionally, the Board is not the only venue for cases against unions regarding hiring hall practices. See
Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989).
JD–70–18
16
She was not penalized for not completing certain practicums and I discredited her rationale
particularly on the roll on/roll off driving tests. Lastly, I found that Mata made no effort to
complete her training and an inference that McKinney, who was a contractor to WGMA, was
influenced by Harris when Mata attempted to train is a big leap that is more based on faith than
fact. General Counsel has not proven its prima facie case. 5
I therefore find that the credited evidence does not prove that the Union discriminated
against Mata regarding assignment to training or in completing her training. I shall recommend
that both allegations be dismissed.
10
C. The Union Allegedly Solicited Mata to Withdraw Her Unfair Labor Practice Charge
(Complaint ¶11)
The Complaint alleges that the Union, by San Miguel Jr., solicited Mata to withdraw her
unfair labor practice charge in violation of Section 8(b)(1)(A). 15
1. Facts
As noted above, about August 3, 2016, San Miguel Jr. texted Mata about getting things
straight with the Board. San Miguel also testified that he was confused about whether Mata was 20
seeking assistance from the Equal Employment Opportunity Commission or the Board, and that
he believed that they were one entity. I find San Miguel Jr.’s testimony here not credible based
upon his text and his longevity as a business agent.
At some time in December, the Board agent notified Mata that the Union wanted to settle 25
the first charge. About December 6, 2016, San Miguel Jr. while attending a Union staff dinner,
claimed he learned that Mata filed an unfair labor practice with the Board. (Tr. 460-461.)
However, his email in August 2016 to Mata reflects otherwise. Sopchack testified that, in early
December, the Union’s Executive Board discussed settlement, which he personally favored, but
the Executive Board did not reach consensus to do so. (Tr. 484-485.) 30
On Tuesday, December 8, 2016, Mata was at the Union hall, trying to obtain a job. San
Miguel Jr. contacted Mata by text message, asking if she had left the Union hall yet. She
indicated she had not and he asked that she meet him outside the building. Once outside, San
Miguel Jr. asked Mata about the Board charges. Mata testified that San Miguel Jr. asked her to 35
drop the charge and “to see if he could get me to drop the charges.” (Tr. 88-89.) Mata then
testified that she told San Miguel that she was going to file charges but had not heard back from
the Board. She testified that she wanted the Board to know that the Union repeatedly asked her
to drop the charges. (Tr. 90.) She testified that she told San Miguel Jr. that right is right and
wrong is wrong, so “this has to stop.” The conversation lasted no longer than 5 to 10 minutes. 40
About December 12, 2016, the Board agent advised Mata that the Union had not
responded to the settlement offer. Mata had not seen a copy of a settlement. At some point in
December, Mata told San Miguel Jr. that she was considering withdrawing the unfair labor
practice charge. She gave San Miguel Jr. no explanation why she was considering the 45
withdrawal. (Tr. 290-291.) During General Counsel’s efforts to rehabilitate Mata, Mata’s
testimony indicates she told San Miguel Jr. she was “not sure how far she wanted to take [the
charge].” (Tr. 293.)
On the morning of Thursday, December 15, San Miguel Jr. again sent to Mata a text 50
message, this time saying, “Hey, have you gone down to withdraw the charges at the labor
JD–70–18
17
board?” At some point Mata told San Miguel Jr. she was trying to reach the Board, but
unsuccessfully. No text message follows regarding San Miguel Jr.’s question. Mata testified
that San Miguel Jr. continued to ask about her withdrawing the charge. San Miguel Jr. never
indicated to her that any consequences would occur if she failed to withdraw the charge. (Tr.
295.) 5
By January 2017, Mata received a few complaints about her work from her dedicated
employer, Ceres Gulf. She was brought before the JPRC meeting on January 25, 2017. The
disciplinary actions were for safety issues. However, the Joint Productivity Review Committee
found Mata was careless, caused damage while operating the truck, and had low productivity. 10
The resulting punishment was a one-week non-referral for certain jobs and the requirement that
she take a refresher course before she could be referred again as a truck driver. (R. Exh. 11.)
Apparently she received the necessary training as she continued to work elsewhere as a
driver.16
15
Mata testified that, in February 2017, San Miguel Jr. asked her to come to his office after
she received a job. She told him she had to pick up her job ticket, which she did, and then went
to his office. San Miguel Jr. asked whether he had spoken to the Board. Mata said she had left
messages but had not been able to reach the Board. San Miguel Jr. suggested she leave at
that time. Mata protested that she needed an appointment. Although only the two of them were 20
in the office, Mata testified that San Miguel Jr. took her ticket and gave it to Harris,17 saying
“Cancel her ticket. Give the job to someone else. Go ahead and sit at the NLRB until
somebody talks to you.” Mata stated she tried to call the Board office, and receiving no answer,
drove to the Board office. (Tr. 94-95.) She later testified that San Miguel Jr. stated that she
should wait at the Board office until someone spoke to her and she should withdraw the 25
charges. (Tr. 191.) She also failed to include in her affidavit that San Miguel Jr. took her work
ticket out of her hands. (Tr. 193.)
San Miguel Jr. denied ever taking a ticket away from anyone and stated he told her to sit
in the office until the Board agent talked to her. (Tr. 444, 449.) He testified he placed no 30
conditions upon her withdrawal of the charge. San Miguel Jr. testified that he and Mata had a
long conversation about her decision, including “everything that was a stake, and that the
demands that were met at that time.” (Tr. 462.) He testified that Mata said she did not want this
to happen and asked what is the next best thing. San Miguel Jr. told Mata, “We got everything
we came out to accomplish. You know we did.” (Tr. 463.) At some later point, San Miguel Jr. 35
testified that Mata, in a phone conversation, told him that she was not withdrawing the Board
charge and filing a criminal charge against Harris.

16 Mata testified that she had no disciplinary issues until she filed charges. Mata later testified that
she believed that she received the disciplinary actions because she wrote up the trucks for safety issues.
The documentation from Ceres Gulf instead reflects that Mata used the incorrect means to report her
safety concerns after instruction on how to do so correctly. Mata again was required to appear before the
Joint Productivity Review Committee about this issue and incompetence occurring during February 2017.
Because of the discipline, about March 1, 2017, Mata’s dedicated employment with Ceres Gulf ended and
she could not be referred to Ceres as a mule driver. (Tr. 207; R. Exh. 11.) Mata filed a grievance over
one of the non-referrals but could not recall which one and she was aware that union officials other than
Harris represented her in the grievance process. (Tr. 212.) Since summer 2017, Mata worked a
dedicated employee for CPA Bayport. (Tr. 212.)
17 Mata later testified that Harris was in the front office and San Miguel Jr. left his office to hand the
work ticket to Harris. (Tr. 191.)
JD–70–18
18
Sopchak’s testimony is credited. He discussed frankly that he was interested in settling
the matter despite the rest of the Executive Board’s lack of agreement. I also credit that he did
not instruct anyone to tell Mata to withdraw the charge and knew of no one else who did instruct
San Miguel Jr. to pressure Mata for a withdrawal. However, this testimony does not exclude the
possibility that someone else, unknown to Sopchak, instructed San Miguel Jr. to contact Mata 5
about withdrawing the charge.
Regarding her December 8, 2016 conversation with San Miguel Jr., Mata’s testimony
does not seem correct: This conversation appears to be, at most, the second discussion with
San Miguel Jr. about the charge, but Mata talks about repeated attempts by this time. (Tr. 89-10
90.) As the Union’s Executive Board meeting met in early December and discussed the
possibility of settling the matter, it is unlikely that San Miguel Jr. asked Mata about withdrawal
before December 7, 2016. I also find it unlikely that Mata, a charging party with a merit case
possibly going to complaint, repeatedly called the Board agent without any response. More
likely, Mata was torn about withdrawal, as demonstrated by her testimony, or she was unable to 15
talk to the Board agent when the Board agent returned the calls. She was either not sure about
what to do or she was not interested in withdrawing the charge. Mata instead told him that she
could not reach the Board agent.
The crux is whether I credit Mata or San Miguel Jr. regarding whether San Miguel Jr. 20
took a work ticket from Mata. Mata’s repeated statements that she could not reach the Board
agent certainly contributed to continued questioning from San Miguel Jr. about what Mata’s
intentions were for her charge. Here, I credit San Miguel Jr. He admitted he asked Mata about
her charge and what he told her in more specific detail from December forward. In addition,
Mata again was not quite forthcoming on her disciplinary record and she omitted from her 25
affidavit that San Miguel Jr. took the work ticket on the day she went to the Board. I therefore
credit that San Miguel did not take a work ticket from Mata.
A union acts in derogation of Section 8(b)(1)(A) of the Act if it threatens to restrain or
coerce an employee from her right to access Board processes. In re Int’l Brotherhood of 30
Teamsters, Local 391, 357 NLRB 2330, 2330 (2012), discussing NLRB v. Marine & Shipbuilding
Workers Local 22, 391 U.S. 418, 424 (1968). The concept of “coercion” is rooted in the
legislative history of Section 8(b)(1)(A): It was modeled after Section 8(a)(1), making it unlawful
to coerce in employees’ Section 7 rights. NLRB v. Construction and General Laborers’ Union
Local No. 534, 778 F.2d 284, 291 (6th Cir. 1985), denying enf. in rel. part, 272 NLRB 926 (1984). 35
The terms “interfere with” were deleted from the proposed 8(b)(1)(A), and the Supreme Court
interpreted the deletion as limiting action to act upon “’reprehensible’” acts, but not “’peaceful
persuasion.’” Id. at 291, quoting NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639,
362 U.S. 274 (1960). Filing a charge with the Board is considered a protected act. Sheet Metal
Workers’ Int’l Ass’n v. NLRB, 716 F.2d 1249, 1259-1260 (9th Cir. 1983), enfg. 254 NLRB 773 40
(1981).
A union that coerces an employee about filing a Board charge has violated an
employee’s Section 7 rights. Id. The appropriate test for these remarks is “whether the remark
can reasonably be interpreted by the employee as a threat.” Consolidated Bus Transit, 350 45
NLRB at 1066 (internal quotes omitted). The statements are assessed objectively. Id.
General Counsel relies upon Mata’s testimony that San Miguel Jr. took her work ticket
and told her to go sit at the Board until she spoke with a Board agent as evidence of the
JD–70–18
19
coercive nature of statements about withdrawal. 18Because I find San Miguel Jr. denial more
credible than Mata’s testimony about the work ticket, I find no violation on this point.
Nor do I find a violation on any other times when San Miguel Jr. asked about the status
of her charge and withdrawal. Mata admitted none of San Miguel Jr.’s additional conversations 5
were marked with promises or threats. See Construction and General Laborers’ Union 534,
supra (peaceful persuasion). Therefore I recommend dismissal of this allegation.
III. CONCLUSIONS OF LAW
10
1. Ceres Gulf, Inc. is an employer within the meaning of Section 2(2), (6) and (7) of the Act.
2. Respondent International Longshoremen’s Association, Local 28 is a labor organization
within the meaning of Section 2(5) of the Act.
15
3. The parties stipulated, and I find, the following are agents of the Union within the
meaning of Section 2(13) of the Act:
a. Tim Harris Business Agent/Financial Secretary
b. Jesse San Miguel, Jr. Business Agent/Treasurer
20
4. Respondent admits, and I find, that the following were agents of Respondent within the
meaning of Section 2(13):
a. Larry Sopchak President (until May 2017)
b. B.R. Williams, Sr. Executive Vice President
c. A.L. Williams Vice President25
5. Respondent did not violate the Act in any manner alleged in the consolidated complaint.
Accordingly, based upon the foregoing findings of fact and conclusions of law, I issue the
following recommended1930
ORDER
The complaint is dismissed.
35
Dated, Washington D.C. October 23, 2018
40
___________________________________
Sharon Levinson Steckler
Administrative Law Judge

18 General Counsel did not plead the removal of the work ticket as a violation of Section 8(b)(2) and I
do not reach that issue.
19 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.
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