Laborers Local 806

National Labor Relations Board - Board Decisions

Jul 10, 1989

295 N.L.R.B. 941 (N.L.R.B. 1989)

LABORERS LOCAL 806
Local No. 806, Laborers' International Union of
North America, AFL-CIO, CLC and Ruben V.
Vivanco and Edward Garcia . Cases 21-CB-
8978, 21-CB-9532, and 21-CB-9220
July 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 9, 1987, Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions
and a supporting brief. The Respondent and the
General Counsel also filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products , 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In agreeing with the judge that complaint par. 6 (n), which alleged a
September 17, 1985 threat of loss of employment , was not time-barred,
we note that Sec. 10(b) of the Act "does not preclude the Board from
adding new [related] allegations to a complaint based on events that oc-
curred after a charge was filed even though no new charge has been filed
[emphasis in original] ." Davis Electrical Constructors, 291 NLRB 115 at
116 (1988) (citing NLRB P. Font Milling Ca , 360 U .S. 301 ( 1959)). We
find that par . 6(n), in fact , contained an allegation that was sufficiently
related to allegations in earlier timely filed charges and therefore it was
not 10(b)-barred
We note that in sec . III,C, par . 4, regarding the August 13, 1984 chal-
lenge to fight, the judge inadvertently found a violation of "Section
8(a)(1)(A)" rather than of Sec. 8(b)(1)(A).
8 We agree with the General Counsel 's contention that the judge erred
by restricting the scope of certain recommended cease-and-desist provi-
sions in his Order to "unprovoked" assaults and acts of physical violence
on employee-members because of their protected activities . See Boiler-
makers Local 686 (Boiler Tube), 267 NLRB 1056, 1057 ( 1983) (when an
employee engages in protected concerted activities and does nothing to
warrant removal of the Act's protection, a respondent union 's conduct
violates Sec . 8(b)(1)(A) where-irrespective of subjective intent, provoca-
tion , or actual effect-that conduct reasonably tends to coerce an em-
ployee in the exercise of Sec . 7 rights). Therefore, we shall modify pars.
1(a) and (d) of the judge 's Order and conform the notice accordingly.
The General Counsel also excepts to the judge 's failure to use the
broad general cease -and-desist language "in any other manner" in his rec-
ommended Order . Applying the standards set forth in Hickmott Foods,
242 NLRB 1357 (1979 ), we agree with the judge that the narrow cease-
and-desist language "in any like or related manner" is appropriate We
therefore deny the General Counsel 's request
941
"3. By engaging in physical contact with em-
ployee-members who engaged in dissident activities
on August 13, 1984, and March 17, 1986; by threat-
ening employee-members who engaged in dissident
activities with loss of employment opportunities
and with bodily harm ; and by engaging in a physi-
cal assault on an employee-member who engaged
in dissident activities , the Respondent coerced and
restrained its employee-members in the exercise of
their Section 7 rights and, thereby , engaged in con-
duct violative of Section 8(b)(1)(A) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Local No. 806, Laborers' International
Union of North America, AFL-CIO, CLC, its offi-
cers, agents, and representatives , shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Engaging in physical contact with its em-
ployee-members because they engage in activities
that are designed to protest, criticize , or question
the policies and practices of their bargaining repre-
sentative and its leaders."
2. Substitute the following for paragraph 1(d).
"(d) Engaging in physical assaults on employee-
members because they engage in activities that are
designed to protest, criticize , or question the poli-
cies and practices of their bargaining representative
and its leaders."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT engage in physical contact with
our employee-members because they engage in ac-
tivities that are designed to protest , criticize, or
question our policies and practices or those of our
leaders.
WE WILL NOT threaten our employee -members
with bodily harm because they engage in activities
that are designed to protest, criticize, or question
our policies and practices or those of our leaders.
WE WILL NOT threaten our employee-members
with loss of employment opportunities because
295 NLRB No. 102
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they engage in activities that are designed to pro-
test , criticize , or question our policies and practices
or those of our leaders.
WE WILL NOT engage in physical assaults on our
employee-members because they engage in activi-
ties that are designed to protest , criticize , or ques-
tion our policies and practices or those of our lead-
ers.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
LOCAL No. 806, LABORERS' INTER-
NATIONAL UNION OF NORTH AMER-
ICA, AFL-CIO, CLC
Alfredo Magallanes, Joel Martinez , and Frank M. Wagner
Jr., Esqs., for the General Counsel.
Alexander B. Cvitan , Esq. (Reich, Adell & Crost), of Los
Angeles, California, for the Respondent.
Frederico Castelan Sayre, Casimiro Tolentino, Hermez
Moreno, Gilbert Purcell, Michael Schillaci, Suzan Kar-
pati, and Anthony Haynes, Esqs. (Sayre , Moreno, Purcell
& Boucher), of Los Angeles, California, for the Charg-
ing Parties.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. A
second order consolidating cases and second consolidat-
ed amended complaint in the above-captioned matters
was issued by the Regional Director for Region 21 of
the National Labor Relations Board (the Board), on May
15, 1986, and based upon an original and a first amended
unfair labor practice charge in Case 21-CB-8978, filed
by Ruben V. Vivanco, an individual , on August 22 and
October 17, 1984 , respectively ; an unfair labor practice
charge in Case 21-CB-9220, filed by Edward Garcia, an
individual , on May 8, 1985; and an original and a first
amended unfair labor practice charge in Case 2-CB-
9532 , filed by Vivanco on March 18 and April 24, 1986,
respectively . The second consolidated amended com-
plaint alleges that Local No . 806, Laborers ' International
Union of North America, AFL-CIO, CLC (Respond-
ent), engaged in acts and conduct violative of Section
8(b)(1)(A) of the National Labor Relations Act (the
Act). Respondent filed a timely answer herein . The mat-
ters were set for trial and heard' by me in Los Angeles,
i At the hearing , counsel for the General Counsel sought and was
granted , over the objections of Respondent 's counsel , permission to
amend the instant second consolidated amended complaint , adding new
paragraphs, 6(n) and 7 (g). The former paragraph alleges that on or about
September 17, 1985 , Respondent threatened employee -members with loss
of employment , and Respondent 's counsel contended at the hearing that
such an allegation was beyond the Sec . 10(b) of the Act statute of limita-
tions period . I reserved ruling on that argument , and, having considered
it, find such to be without merit . Thus, when viewed in light of the entire
panoply of complaint allegations herein , it is clear that the above par.
6(n) allegation is "closely related " to them in substance and effect . There-
fore, notwithstanding that the events of said paragraphs occurred more
than 6 months prior to the latest of the unfair labor practice charges
California, on the following dates: July 15, 16, and 17;
August 11, 13, 14, and 15; October 6, 7, 8, 9, and 10; and
December 2 and 3, 1986. All parties were afforded the
opportunity to offer any relevant evidence , to examine
and cross-examine all witnesses , to argue their legal posi-
tions orally , and to file posthearing briefs . Such were
filed by respective counsel and have been carefully con-
sidered . Accordingly , based upon the entire record
herein , including my observation of the testimonial de-
meanor of the several witnesses2 herein, I make the fol-
lowing3
FINDINGS OF FACT
I. LABOR ORGANIZATION
Respondent admits that it is, and has been at all times
material herein , a labor organization within the meaning
of Section 2(5) of the Act.
II. ISSUES
The second consolidated amended complaint alleges
that Respondent engaged in several acts and conduct
violative of Section 8(b)(1)(A) of the Act. In chronologi-
cal order, these are as follows:
1. On or about August 13, 1984, Respondent , through
G. Leon, challenged employee-members to fight because
they were engaged in dissident union activities.
2. On or about May 3, 1985, Respondent, through J.
Leon, G. Leon, and M. Leon, condoned and ratified a
physical assault on an employee-member because he en-
gaged in dissident union activities.
3. On or about May 6, 1985 , Respondent , through J.
Leon, threatened employee-members with physical vio-
lence because they engaged in dissident union activities.
4. On or about May 8, 1985, Respondent, through J.
Leon and M . Leon, condoned and ratified an employee-
member's threat of physical violence against other em-
ployee-members because of their dissident union activi-
ties.
herein, the amendment was properly granted Pioneer Hotel & Gambling
Hall, 276 NLRB 694, 700-701 fn 17 (1985).
2 While more specific credibility resolutions and comments will be
made throughout this decision , it must be generally stated that few, if
any, of the 20 individuals who testified during this lengthy proceeding
impressed me as being entirely candid To the contrary , I am convinced
that several witnesses either embellished or wholly fabricated testimony
in order to bolster their respective party's legal position. Such is, of
course, a sad commentary in any event but more so herein when every-
one was well aware that the possible remedy would be a cease-and-desist
order and nothing more and when every witness understood that the pro-
longed and often contentious litigation could have nothing but an adverse
effect upon the labor organization to which all the witnesses , but three,
belonged . It is, of course, not uncommon and well within the discretion
of a trier of fact , such as myself, to credit portions of witnesses' testimo-
nies and to not believe other portions. Downtown Toyota, 276 NLRB 999,
1017 fn . 63 (1985)
8 Respondent admitted the jurisdictional allegations of the second con-
solidated amended complaint , in particular that the employer-members of
various multiemployer collective -bargaining associations , with which Re-
spondent engages in collective bargaining, meet the Board's jurisdictional
standards and are , and have been at all times material herein , employers
engaged in commerce and in a business affecting commerce within the
meaning of Sec. 2(6) and (7) of the Act
LABORERS LOCAL 806
5. On or about September 17, 1985, Respondent,
through J. Leon, threatened employee- members with
losses of employment because they engaged in dissident
union activities.
6. On or about October 17 , 1985, Respondent , through
J. Leon and G. Leon, condoned and ratified a physical
assault on an employee-member because he engaged in
dissident union activities.
7. In or about February 1986, Respondent, through G.
Leon and M. Leon, at the location of the office of the
Laborers ' International Union of North America, AFL-
CIO, CLC, threatened employee-members with physical
violence and death and challenged them to fight because
said employee -members engaged in dissident union ac-
tivities.
8. On or about February 3, 1986, Respondent, through
J. Leon and G. Leon, challenged employee-members to
fight because they engaged in dissident union activities.
9. On or about February 5, 1986, Respondent, through
G. Leon, threatened employee-members with physical
violence and physically assaulted employee-members be-
cause they engaged in dissident union activities.
10. In or about March 1986, Respondent , through J.
Leon and G. Leon, threatened physical violence against
and physically assaulted employee-members because they
engaged in dissident union activities.
11. On or about March 17, 1986, Respondent, through
J. Leon, challenged employee-members to fight because
they engaged in dissident union activities.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is an affiliated local union of the Laborers'
International Union of North America, AFL-CIO, CLC
(the International) and represents employee-members
who primarily work for employers engaged in the build-
ing and construction industry in southern California. Re-
spondent's headquarters facility is located on West
Second Street in Pomona , California, and comprises a
50-foot by 100-foot meeting hall , dispatch and business
offices, and executive offices . The International rents
office space in a building owned by the Carpenters
Southern California Administrative Corporation and lo-
cated at 520 South Virgil Avenue in Los Angeles. Re-
spondent4 is governed by an executive board, whose
members include the labor organization 's business
manager/secretary-treasurer, the president, the vice
president , the recording secretary , and the auditor. The
business manager/secretary-treasurer is Joe Leon. He has
held these positions for approximately 18 years and is, in
effect , the chief operating officer of Respondent , assum-
ing overall responsibility for the conduct of its affairs.
His two sons also hold officer positions in Respondent.5
Thus, Gabriel Leon has been the president of Respond-
ent for 6 years, and Michael Leon has been the record-
ing secretary for 4 years . In addition, both Gabriel and
Michael are field representatives for Respondent. The
4 Currently, Respondent has approximately 800 to 850 members.
5 Joe Leon's daughter also works for Respondent as an office secre-
tary.
943
auditor is Steve Martinez . Respondent admitted that Joe,
Gabriel, and Michael Leon are its agents.
The record establishes that dissident union activities,
engaged in by approximately 20 to 40 of Respondent's
members, are central to the matters herein and that the
genesis of said dissident movement was the 1983 election
campaign for the position of business manager/secretary-
treasurer between the incumbent , Joe Leon , and Eddie
Garcia, a former officer and longtime member . The Tat-
ter's main themes were opposition to Leon's management
policies and the asserted impropriety of Leon's two sons
and daughter working for Respondent .6 In turn, Leon
may have attacked Garcia for being under investigation
at that time for allegedly molesting a child , his niece.7
Campaign rhetoric dissolved into rancorous exchanges
between the candidates ' supporters, with much cursing
back and forth . Eventually , Leon won reelection that
June; however , rather than dissipating , the bitter cam-
paign feelings seemingly became exacerbated . Thus, ac-
cording to Joe Leon , after the election, Garcia 's support-
ers6 would congregate in the parking areas , which are
beside Respondent 's Pomona facility , and curse at him
whenever he was in the area . Also, one Garcia support-
er, Jose Rodriguez , spoke to Leon "on the sidewalk .. .
right at the edge of the parking lot" and "he challenged
me to a fight, and I didn 't pay any attention to him.... .
I just told him to get away . . . . And he called me `kiss
ass."' For his part, Leon did not reduce the level of bit-
terness, continuing to refer to his opponent Garcia as a
child molester.
That September , many of Respondent 's members were
dispatched for work at the Los Angeles County Fair in
Pomona . 9 Reacting to reports of continued complaints
regarding his management policies and practices and to
rumors that he was afraid to visit the fairgrounds and
speak to Respondent's employee-members, Leon and his
sons visited the jobsite on two or three occasions that
month . Ruben Vivanco testified to three visits by Leon
on consecutive Friday nights . On the first , Leon spoke to
a group of laborers and "started to call us sons of
bitches . You like to be working on three weeks here, but
when you return to the local . . . I 'm going to have you
going around in circles in the union hall." On the follow-
ing Friday, Joe Leon spoke to a group of workers, in-
cluding Vivanco, and ". . . he started to call us sons of
bitches . . . ." Turning to a member, Gilberto Rodri-
guez, Leon continued, saying "'I am your God , you son-
of-a-bitch . You're working because I want you to-
When I want to I'll fire you ." The following Friday, ac-
cording to Vivanco, he was again standing in a group of
6 During the campaign , Garcia asserted that it was illegal for Gabriel
Leon to work for Respondent inasmuch as he was a convicted felon.
Garcia protested Gabriel 's employment by Respondent to the Interna-
tional but such was deemed without merit.
Garcia could not recall whether or not Leon raised such allegations
during the campaign but admitted that Leon , on occasion , called him a
child molester subsequent to the election . Leon himself corroborated this
8 According to Leon , Garcia's supporters included the following mem-
bers: Art Cervantes, Jose Rodriguez, Ruben Vivanco , Jesus Nunez, Jose
Vivanco , Pablo Lopez, Felipe Perez, and others
9 Annually, this event is the primary source of employment for Re-
spondent's members.
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
members when Joe Leon arrived and again "called us
sons of bitches." Vivanco acknowledged that included in
the groups of members on each occasion were some for
and against Leon. The latter testified that he visited the
fairgrounds on two occasions . On the first, he told mem-
bers who had a "bitch" against him "to bring it out in
the open and confront me with it." On the second visit,
according to Leon, he did not address Respondent's
members but rather merely greeted them in the work
area. Both Vivanco and Leon recall that one member,
Jose Romero, spoke back to Leon on one occasion. Ac-
cording to Vivanco , Romero told "him not to treat us in
that manner...." Leon replied , "that he didn 't [give a
damn] that go fuck his mother ." Leon recalled Romero
calling him "a no good son-of-a-bitch and I didn't have
the right to go out to the fair."
Whatever was said by Leon during his visits to the
fairgrounds, his visits precipitated a series of meetings of
Respondent's members, including the supporters of
Garcia, who remained dissatisfied with the policies and
practices of Joe Leon. The record reveals that between
20 and 40 employee-members (including Garcia , himself,
Jose Rodriguez, Art Cervantes, Jose Vivanco, Philippe
Perez, Jorge Orosco, and others), attended the series of
meetings and that they discussed numerous perceived
grievances against the incumbent union leadership. These
complaints included perceived discrimination in the oper-
ation of the job dispatching procedure and the necessity
of monetary payments to Joe Leon in order to be dis-
patched, physical beatings of opponents of the Leon
family, nepotism , corruption, and others . Based upon his
fluency in both English and Spanish,' ° Eddie Garcia
was informally chosen as the nominal leader of the dissi-
dent members. Finally, they concluded that, inasmuch as
their opportunity for achieving reform internally within
Respondent 's electoral system was lost with Garcia's
election loss to Joe Leon , their only remaining option
was to bring outside pressure to bear upon Leon in order
to remedy the aforementioned complaints . Thus, the dis-
sidents decided to take their grievances to the Board and
to the International , to distribute petitions, to write let-
ters to employers who regularly utilized the services of
Respondent's members and relied upon its dispatching
procedures, and, in the words of Ruben Vivanco, "to do
a picket line" at Respondent 's Pomona facility.
The record further reveals that all these outside ave-
nues for publicizing the dissidents' complaints were ex-
plored . Thus, some sort of a petition was distributed for
signatures . Also, since July 1983, no less than 11 unfair
labor practice charges were filed with the Board , alleg-
ing discriminatory operation of Respondent 's hiring hall
and dispatching procedures ."' In addition , Jose Rodri-
10 Approximately 75 percent of Respondent 's membership are of Span-
ish descent , and Spanish is the predominant language spoken . In fact,
most of the conversations and comments set forth in the instant record
were in Spanish.
i i Each of said charges was either withdrawn by the Charging Party
or dismissed , usually based upon "insufficient evidence" to establish "that
the Union has been operating its hiring hall in a discriminatory and arbi-
trary manner " There is no record evidence as to the substance of the
evidence presented by the various Charging Parties , nor as to the extent
of their cooperation with the Board agents assigned to the cases
guez , who, as the record shows, emerged as a leader of
the dissident group, wrote a series of letters , to the Inter-
national 's president , complaining about "all the injustice
and abuses" perpetrated by Joe Leon and his family. As
a result of these, Roger Fisher, a representative of the
International , was assigned by the president to conduct a
hearing of the complaints, to investigate them, and to
issue a report . He did so in June 1985.12 Further, letters
were apparently sent to several companies , including
Libby Glass, complaining about the asserted abuses in
the operation of the hiring hall and dispatching proce-
dures by the Leon family.
The publicity and pressure tactic of greatest import
herein was the picketing engaged in by the dissident em-
ployee-members of Respondent . Implementing the deci-
sion to engage in such conduct, said individuals and
some of their wives and children commenced picketing
on the public sidewalk in front of Respondent 's Pomona
meeting hall and office facility 13 in early November
1983. As to this, approximately 20 to 25 individuals
would picket each day; they carried signs which set
forth the underlying reasons for the picketing , including
opposition to the "current officers"; and the picketing
was conducted 4 days a week from 7:30 until 10 a.m., the
i 2 The dissidents ' behavior during Fisher 's investigation casts doubt
upon their sincerity and created the impression that , rather than truly
remedying their perceived grievances , they were more intent upon
merely publicizing them . Thus, during the first 2 days of Fisher 's visit,
despite being given notice and having received an invitation from Fisher
to participate, the dissidents merely picketed outside the Pomona facility,
shouting obscenities and names at the Leons as was their custom. Only
on the afternoon of the third day did dissident members come inside and
present complaints about "discrimination in dispatching some members
above the others and-in other words, favoritism " pertaining to the out-of-
work list . According to Fisher, said grievances were "confused," and,
finding nothing concrete, he recommended that they be found without
merit
is On either side of Respondent 's large headquarters building are park-
ing areas in which members park their cars. There are two entrances into
the building-one from the sidewalk in front and one leading into the
meeting hall from the west side parking area. Inasmuch as there is no en-
trance into the building from the parking area on the other side, most
members park in the west side parking area . As the record establishes,
members normally congregate in this area in the early morning prior to
the opening of the hiring hall and dispatch area at approximately 7 a.m.
Although a chain-link fence and gate now separate the parking areas
from the sidewalk, no such fence had been erected at the time of the No-
vember 1983 picketing.
With regard to members congregating in the parking lot, Michael
Bouse , a former Pomona policeman who was hired by Respondent in Oc-
tober 1983 to observe and recommend changes in Respondent 's policy on
parking lot security , testified that, on Mondays , there would be between
80 and 120 members lingering in the parking lot with the numbers de-
creasing during the week . Also, there was much drinking and gambling
in several locations. He found stolen property offered for sale, with items
ranging from televisions to power tools sold Also , he "observed a lost
[sic] of members congregated around a particular tree and a brick wall
which was located on the west side of the parking lot " Openly, and
in clear view of passersby , including school children , the members would
regularly urinate on the tree and wall , "and these same people .. .
would leave . . . driving their vehicles while intoxicated ." Bouse named
no particular members as ones engaging in such conduct . Joe Leon, how-
ever, blamed "Eddie Garcia and his . . so-called group." as those en-
gaging in these activities but, later, conceded that other members were
involved.
Bouse eventually recommended changes in use of the parking area and
Respondent 's practices as to it , and these were implemented. Among
these were the removal of the tree , the installation of a gate and chain-
link fence, and the closing of the parking area in midmorning.
LABORERS LOCAL 806
time period during which members usually visited the fa-
cility . The conduct continued into 1984, but , with the
passage of time, the number of pickets declined as did
the amount of picketing-to 2 days per week. As the
picketing was directed at the Leons and their policies,
verbal confrontations between pickets and the Leons
were common . 14 Protesting members and , often, their
wives would curse at the Leons and call them names
such as dog, fag, clown , and prostitute . In turn, the three
Leons would retort : "Fuck your mother" or "Fuck you,
son of a bitch ." As between the dissidents and nonpro-
testing members who would congregate in the parking
lot during the early morning hours, the latter seemingly
understood the need for the picketing and no confronta-
tions resulted . However, all witnesses are corroborative
that, as the picketing continued , verbal confrontations,
including cursing , occurred between the two groups. Ac-
cording to Michael Bouse, such would occur when
larger groups of nonprotesters would be inside the park-
ing lot, and it would be the dissidents who provoked
what would result : They were "trying to get more and
more people to side with them on the picketing ." Also,
"They kept putting their signs down . They would con-
gregate at the tail end of the sidewalk and walk amongst
the people in the parking lot, which was causing a lot of
tension ." Further, protesters "would gather on the park-
ing lot before starting picketing ." Regarding what would
happen , Bouse stated , "There was name calling , facial
expressions , hand expressions [obscene gestures] . . . in
both directions ." He added that such reached a point
that "There was quite a bit of anger coming from the
parking lot membership towards some people in the
picket line . . . and that would , in turn , go back the
other way."
Early in 1984 with the level and incidences of picket-
ing having been significantly reduced at the Pomona fa-
cility of Respondent, the dissidents abruptly shifted the
location of said conduct to in front of the Carpenters
Southern California Administrative Corporation building,
in which the International had an office, at 520 South
Virgil Avenue in Los Angeles . Subsequent to this
change, the dissidents picketed only sporadically in
Pomona during 1984, for just 1 week in 1985, and for ap-
proximately 10 days in 1986 . Asked why they chose to
change the locus of the picketing , Ruben Vivanco said
that such was done "because we had the danger of some-
thing happening to us in Pomona ." Asked what, he re-
plied "that we were going to get beat up." 15 Contradict-
14 Eddie Garcia 's testimony was inconsistent as to the occurrence of
such confrontations . Initially , he conceded that such back and forth
name- calling and cursing occurred but only if the picketing dissidents
"got antagonized " by the Leons . Later, he denied ever hearing any pick-
ets curse at the Leons . Finally, he conceded that if he was on one end of
the picket line, he would be unable to hear what was said to the Leons or
by them at the other end.
15 Jose Romero , the individual who , in September , had engaged in a
verbal confrontation with Joe Leon at the Los Angeles County Fair, was
a member of the dissident group , engaged in picketing at the Pomona fa-
cility, and was a captain of the pickets. One day , in the first or second
week of picketing , Romero went inside the building in order to utilize the
bathroom . According to him "I went to the bathroom to [urinate] ... .
As I was urinating and I finished and I turned around , I saw this guy
there , he just grabbed me . and started hitting me " The assailant
was Viviano Perez, a nonprotesting member who was, at the time , living
945
ing his fellow dissident , Eddie Garcia, when asked the
same question , replied that the picketing had been moved
to Los Angeles "because we wanted to be heard and ob-
served by the International as to protesting against the
administration of the local union ." In any event, during
1984, picketing would occur every day in front of the In-
ternational 's office from 9 a.m. until 1 p .m., with approxi-
mately 20 dissidents participating . During 1985 and 1986,
said picketing continued there but declined to a Tuesday
through Friday schedule.
Notwithstanding the change in the locus of the picket-
ing, the passions and resentments engendered by that
conduct and the other methods utilized by the dissidents
to publicize their dispute with the Leon family and its
policies continued to result in confrontations between the
dissidents and the Leons, on one hand , and between the
dissidents and the nonprotesting members, on the other,
either inside the Pomona facility or in its parking lot.
According to Michael Leon, the different factions tended
to group Jose Romero, the individual who, in Septem-
ber, had engaged in a verbal together in the parking lot.
Clearly , the conduct of the Leons tended to exacerbate
the situation . Thus, sometime in 1984, Michael Leon
drafted and caused to be mailed to members a letter
(G.C. Exh . 11), announcing that the Board and the De-
partment of Labor had uncovered nothing unlawful in
Respondent 's hiring hall and dispatch procedures and
urging members as follows : "If you are satisfied with the
present dispatch system , please let these people (who
demonstrate outside the Local Union 's office) know how
you feel ." Also, at a monthly union meeting in 1985, ac-
cording to Eddie Garcia, Joe Leon complained that
Garcia and another dissident, Jesus Nunez, were
"making too many waves" because of the various unfair
labor practice charges filed with the Board and added
that "the picketing was hurting the union " and its mem-
bers. "And he told the union members to fight for their
rights." Matters reached a head during International
Representative Fisher's investigation in 1985 when, at
the conclusion of the hearing on the dissidents' griev-
ances, "We came close to some physical violence by
other members who were in the back of the [meeting
hall] who resented what was said ... a lot of profanity,
just a tremendous amount" such as "God damn son of a
with but not married to Joe Leon 's daughter . He struck Romero "about
ten times with his fist." The latter did not fall to the floor , but, as a
result of the attack , Romero suffered a cut on the forehead and lost five
upper front teeth . During the attack , Perez accused Romero of talking
about him and the Leon family; Romero said he denied that to Perez and
further testified that he had only seen Perez a "couple" of times at the
Pomona facility.
Someone telephoned the police , who arrived as Romero was receiving
assistance on the sidewalk from other dissidents After being questioned
by them, he resumed picketing . Romero filed no formal police charge
nor any internal union charges against Perez . Joe Leon , who learned of
the attack from Michael Bouse , took no action . He neither investigated to
ascertain who was to blame nor filed any internal union charges against
Perez. In general, Leon is reluctant to become involved in disputes be-
tween members or to instigate internal procedures in such cases . "I have
never filed against a member any charges because if I do . it's a show-
ing that I'm prejudiced , and the members themselves have their right to
do it " Nevertheless , Leon acknowledged that it is Respondent 's obliga-
tion to control what happens on its property.
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bitch , God damn piss ass, ass hole, and this type of
thing."
With regard to confrontations between the dissidents
and the Leons, the record unmistakably establishes a pat-
tern and practice on the part of the former group , either
demonstrative of frustration that their tactics were not
successful or an outgrowth of the tactics which they em-
ployed , of personal attacks against their primary
target/antagonist , Joe Leon , at any opportune moment.
Without burdening this decision with a turgid and graph-
ic description of each encounter , the record is replete
with instances of dissidents ' unprovoked name-calling,
cursing , goading, and general bickering at the business
manager/secretary-treasurer . Thus, Elpidio Couzman, a
member since 1980, testified that, one roll call dayla
morning inside the meeting hall, he heard Jose Rodri-
guez , "without any reason ," start to call Joe Leon names
as the latter stepped out of the dispatch office . Rodriguez
yelled , "Dog, you motherfucker ," and Leon replied that
Rodriguez was a "son of a motherfucker ." Another
member, Johnny Cortez, testified that he observed Ro-
driguez approach the dispatch office window , which is
located next to the dispatch office door, toward the front
of the meeting hall, and heard him to say to Leon, who
was sitting inside the office "there you are, you dumb as-
shole." Cortez also heard Rodriguez yell this epithet to
Michael Leon and Gabriel Leon in the parking lot one
day: Rodriguez yelled to them "there you are, you dumb
assholes ." Likewise, Steve Martinez , Respondent's audi-
tor and a member of the executive board, testified that
after he had made a dues payment one day early in 1985,
Rodriguez walked up to the dues window 17 and asked
Michael Leon , who was taking dues payments at the
time, where his father , "the stupid old man," was. Joe
Leon thereupon walked into the business office; Rodri-
guez spotted him, and started cursing at Joe, saying
"What are you doing back there , you son of a bitch?
Don't you have any balls . . . to come over here and tell
me-all you do is yell at me ." Based on the witnesses'
accounts, most of the name-calling and cursing occurred
while the dissidents stood together in line on roll call
days . Thus, Martinez was standing behind Rodriguez,
Art Cervantes, and another protester one morning and
heard Rodriguez yell to Joe Leon , who was standing in
the dispatch office, "Look at that old fucker, he's sitting
there by himself." One of the others added , "You better
not yell at him . . . he might have a heart attack and
16 Respondent 's members, who are out of work, must place their
names on its out-of-work list in order to be dispatched for work; dis-
patching is done from this list In order to be eligible for dispatch from
the list, members are required to sign their names in the roll call book on
the first and third Monday of each month . On these Mondays (the day of
the week that most of the members are at the Pomona facility), a podium,
with the roll call book on it, is placed in the doorway to the dispatch
office which is located at one end of the meeting hall. An officer, usually
one of the Leons , stands by the podium . The members stand in line, and,
one by one , each places his signature in the book. The officer ensures
that each signer places only his name in the book Any out-of-work
member who fails to sign his name has his name stricken from the out-of-
work list.
17 The front , or main, entrance to the facility opens to West Second
Street When one enters through the front door, he is in an entrance or
lobby area. A wall separates the lobby area from the business office area.
A window in the dividing wall is utilized for the payment of dues.
keel over ." On another occasion , according to Martinez,
a vendor was selling Mexican bread and tortillas in the
parking lot. Leon passed by Rodriguez and another dissi-
dent, Arellano Ramirez, on his way toward the vendor.
Rodriguez called to him , "Look at that old fucker, his
wife's too fucking lazy to make him tortillas so he's got
to buy them for her."
Likewise, the record contains several instances of ap-
parently unprovoked verbal snipping by Joe Leon at dis-
sidents . Thus, according to Eddie Garcia, Leon delighted
in calling him a child molester and did so regularly even
subsequent to the bitter 1983 election campaign. Leon
himself recounted an incident in the fall of 1985 when
Garcia confronted him in the parking lot and asked what
the latter thought of the dissidents ' picketing at the San
Gabriel Mission while Leon was inside receiving a labor
leader award . Leon denied that it bothered him, and
Garcia asked if it left a bitter taste in his mouth. Leon
said, no, and "A child molester doesn 't make me bitter."
Rubin Vivanco testified about two incidents in the spring
of 1984 . The first occurred in the parking lot as he stood
with Garcia and another member . Leon was standing by
the side entrance doorway and yelled to them , "You son
of a bitch , pigs, now you are leaving ." The other oc-
curred as Vivanco spoke to Leon about not removing his
name from the out-of-work list-"I asked him if he could
give me an excuse to go see the doctor. . . . He called
me a son of a bitch , that don't you know that we don't
give excuses here." Finally, Art Cervantes , testified that
Leon would always have comments for the dissidents
who are in the roll call lines-"several times he said to
me, 'Go and fuck your mother. Would you loan me your
wife?"' Jose Pineda corroborated this , denying that dissi-
dents ever initiated comments to Joe Leon. Rather, with-
out provocation , Joe Leon and Gabriel Leon have called
Art Cervantes "son of a bitch" on occasion.
Respondent excuses its alleged conduct herein and the
responses directed toward dissidents on grounds that the
Leons were responding to attacks which had become
personal in nature. Indeed , I commented at the hearing,
and reiterate now, that much of what was said by the
dissidents was, indeed , "personality-oriented" rather than
"issue-oriented ." Also, Michael Leon asserted , during
cross-examination , that the antagonism between the
Leons and dissidents Eddie Garcia, Jose Rodriguez, Jose
Pineda, and Ruben Vivanco "was a personal thing."
However, after exhaustive review of the instant record
and posthearing briefs, it is difficult to separate the
verbal comments of the dissidents from their picketing
and other such activities . The former seem to be an out-
growth of the latter. Likewise , while Respondent insists
that the Leons were motivated in their responses by the
"personal nature of the hostility between the parties,"
there is record evidence that the protesters ' dissident ac-
tivities were a source of irritation to them . Thus, Joe
Leon responded as follows during cross -examination:
Q. Do you think that Mr. Vivanco has a right to
criticize you as a Union officer?
A. No.
Q. Do you think Rodriguez has a right to criti-
cize you as a Union officer?
LABORERS LOCAL 806
A. No.
Q. And what about Mr. Garcia?
A. No.
Q. Why?
A. 'Cause I just don't think they do.
Q. You don't think they have a right under the
Constitution?
A. They have a right . I don't take that away
from them; they have a right.
Q. But you don 't think they should be doing that.
A. Yes.
Q. Why not?
A. I just don't think.19
Further reflective of Respondent 's attitude toward the
dissidents was Steven Martinez , Respondent 's auditor
and an executive board member , who, at one point in his
testimony , referred to Jose Rodriguez and Art Cervantes
as "a bunch of assholes" and who admitted that Joe
Leon was "upset" by the picketing by the dissidents on
September 14, 1985, outside the San Gabriel Mission19
while he was inside being presented with a labor leader
award . 20 Martinez expressed bitterness toward the dissi-
dents' picketing and other activities:
They don't even know what they're talking about.
That's what I 'm bitter about. . . . Why? Because
these people humiliate us. These people file griev-
ances, complaints . That's what pisses me off. .. .
They're hurting us, the members . . . . They're
crying , they're complaining-that's what hurts me.
In the context of the foregoing animosity between Re-
spondent 's members and its agents, the Leon family, on
one hand , and the dissidents , on the other, I turn to con-
sideration of the alleged unfair labor practices.
B. The Allegedly Unlawful Conduct
Paragraph 6(d) of the second consolidated amended
complaint concerns an incident which occurred on
August 13, 1984, in front of the Pomona facility. Ac-
cording to Ruben Vivanco, that morning, he and his
father-in-law, Jesus Nunez, were standing on the side-
walk in front of the main entrance to Respondent's
Pomona facility when Gabriel Leon, Michael Leon, and
Steve Martinez walked outside . Upon spotting Nunez,
Gabriel screamed at him , "there you go, you son of a
18 During redirect examination , Leon explained that the dissidents
"have a right to criticize me as an individual but not include my family "
That Leon 's rehabilitative comment may have been disingenuous is seen
from his comment at the October 16, 1985 monthly meeting that Garcia
and Jesus Nunez were "making too many waves" by the filing of NLRB
charges. He did not deny that comment . Also, Leon 's rehabilitative com-
ment makes no sense , given the positions of leadership in Respondent
which are held by his family
19 The record establishes that the dissidents picketed on the public
sidewalk outside the San Gabriel Mission during the award ceremony
and that they were shouting names and cursing at the Leona while
marching. Among the dissidents there were Art Cervantes, Jose Rodn-
guez, Jose Pineda and his family , Eddie Garcia, and Jesus Nunez.
20 According to Martinez , "[Joe Leon] was standing up there [on the
platform] trying to make a speech . . . . By looking at the man you could
tell how he felt . When he come down and he sat down there in our table
... that man just sat there. He just sat there . The picketers . . . [were]
there to embarrass, to humiliate Mr. Leon [and his family]...."
947
bitch ." Leon then looked toward Vivanco and yelled the
same words. Being then 10 feet away from Vivanco and
Nunez, Gabriel began walking toward them. Coming
close to Vivanco , Gabriel "said that he wanted to fight
with me . Then he put his feet between mine and he
pushed me on the stomach [with his stomach ] and then
he told me to hit him . I told him I did not want any
problems. . . . I told him who did he think he was and
he said he was president of the union ." Gabriel added
that Vivanco had been picketing for nearly a year "with-
out doing anything." Vivanco responded , ".. . we'll
see."2 t
Vivanco, during cross-examination , denied called Ga-
briel Leon "chicken-shit" or accusing him of hiding
behind women 's skirts . Jesus Nunez testified that he was
with Vivanco that morning "because I want to take
[Ruben] home with me, I give him a ride" and that the
incident occurred while Vivanco was "at the top" of the
steps leading to the front door and he was standing on
the sidewalk , close to the fence which separates the
parking lot from the sidewalk . Nunez initially testified
that he observed Gabriel Leon punch Vivanco in the
stomach once or twice and yell "Come on, hit me, hit
me" and that his son -in-law had fallen to the ground
from the blows . Moments later, Nunez changed his testi-
mony, stating that Leon actually used his own stomach
to push at Vivanco-"over the stomach with the stom-
ach."
Steve Martinez and both Leons testified regarding
what occurred that morning . All stated that they were
standing together and talking on the sidewalk when Vi-
vanco and Nunez came out the front door and walked
down the steps . According to Martinez , Ruben "kept
staring at Gabriel . . . . Gabe asked him what his prob-
lem was. . . . Ruben turned around and looked at him.
... They got real close to each other-maybe 12 inches.
... Gabe just asking him . . . `What's your problem?'
And Vivanco kept telling him, `You know-you know-
we're going to get you out of here ." Martinez denied
that there was any physical contact between Gabriel
Leon and Vivanco ; and stated that Nunez continued
walking past , Michael Leon stood 10-12 feet away, and
he was "a couple of feet away from Gabriel ." During
cross-examination , Martinez characterized Vivanco's
staring as "mad-dogging"22 at Gabriel. The latter asked
81 As was Eddie Garcia, Vivanco seemed most reluctant to concede
that the dissidents engaged in any name-calling or cursing. With regard
to incidents between the Leons and the dissidents , Vivanco said such oc-
curred "from time to time" but always were instigated by the Leons.
Thus, the latter would yell "have your dicks peeled" or "go fuck our
mothers" and the dissidents would shout back that the Leons were "dogs
and other words that I can 't remember " Vivanco conceded that other
members cursed at nonprotesting members and that he was one of those
who cursed at the Leons, mainly Gabriel and Joe As to the former, Vi-
vanco asserted that Gabriel "provoked" him into fighting on no less than
five occasions . As to both Gabriel and Joe, they always "stop whatever
they are doing and then come on to us to listen . . they try to put their
feet on top of ours ." Vivanco asserted that the protesters are "just
scared" of them , specifically "of getting beat up." He added that when-
ever Joe or Gabriel "tried to ... provoke us to fight with them" he
would "go home."
22 "Mad-dogging" seems to be akin to a child 's staring contest in
which the aim is to see "who can outstare each other or who's going to
do something."
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"What's your fucking problem?" They moved close to
each other, and Vivanco said that Gabriel knew what
the problem was; the latter said , "Well, tell me what it
is?" They continued staring at each other until Leon
broke it off, saying "All, get the hell out of here." Asked
why he left out of this account Vivanco saying "You
know we're going to get you out of here," Martinez re-
torted cryptically "No, it all came out at the same time
with the first time that he said the things that he said."
Michael Leon testified that Vivanco and Nunez
walked down the steps and past the Leons and Martinez,
with Vivanco continually staring at Gabriel. As the two
dissidents passed by , "Gabriel asked Ruben what was his
problem. . . . Ruben says 'You know what it is.' .. .
Gabriel said 'You've been saying things about my family
and myself among the other members that I've heard. If
you have a problem , tell me what it is .' Ruben would
say, 'You know what my problem is.' Gabe said, 'I do
not know . Tell me what the problem is."' Gabriel and
Vivanco suddenly became angry at each other; both
began cursing, calling each other "motherfucker, you son
of a bitch ." Eventually both turned and walked away;
Michael denied that any physical contact occurred.23
During cross -examination , Michael asserted that Nunez
had also been mad -dogging at Gabriel as he walked
down the steps; he denied that Vivanco said they would
remove Gabriel from office; and he said the confronta-
tion ended with Ruben Vivanco turning and walking
into the parking lot. Gabriel Leon stated that he first no-
ticed Vivanco and Nunez that morning as they left the
building. As Vivanco walked out the door, "I just could
feel he was glaring at me. . . . When he finally came
down to the bottom of the stairs and was right in front
of me, I just asked him what his problem was." Vivanco
replied , "that I knew what the problem was. . . . I told
him that I wasn't aware of the problem and . . . if he
could tell me. He just continued to say, 'You know, you
know , you know .' ... He said that I didn 't know any-
thing and then called me a couple of names, puppet of
my father's, clown." Gabriel added that Vivanco uttered
"the usual cuss words that continued to go back between
!is"; Leon denied cursing back at Vivanco or that any
physical contact occurred. Gabriel further testified that
the confrontation ended as "I just kind of threw up my
hands up in the air and walked away, just left it at that."
During cross-examination , Gabriel claimed that he was
not looking at the approaching Vivanco but rather at
"probably the glare off the front of the building," that
Vivanco's mad-dogging began at the moment he left the
building , and that, rather than walking away at the end,
he "just turned around."
paragraph 6(i) of the second consolidated amended
complaint concerns an incident which occurred in the
parking lot of Respondent 's Pomona facility on May 3,
1985. At approximately 8 a.m., Jose Rodriguez drove
into the parking area . Upon leaving his car, he observed
Viviano Perez, the same individual who, 18 months earli-
er had attacked dissident Joe Romero in a bathroom,
coming toward him carrying a letter . Perez, who appears
88 Michael described himself as being 10 feet from his brother and Vi-
vanco.
to be a rank-and-file member and not Respondent's
agent, approached Rodriguez and, according to the
latter, "asked if I had written the letter . . . and I told
him yes. And he said that the case of the pistol he had
won it in court, and to be able to get his job in Los An-
geles County Fair he had to straighten it out with me."
Rodriguez took the letter from Perez and was about to
explain why he had written it when "he began to hit me
on my face . He hit me about three or four times . . . at
the top of my head . . . with a fist," causing Rodriguez'
eyes and face to become puffy. Just after the attack, Ro-
driguez observed Michael Leon , standing by the side en-
trance into the building , and Joe Leon , standing behind a
partially open dispatch office window. Immediately after
the beating , Perez left the area and another member,
Lucio Elias , called the police. Officers arrived and lis-
tened to Rodriguez' account of the incident. Joe Leon
offered his assistance but such was refused . 24 The police
soon departed , and Perez returned to the parking lot.
Thereupon, in the presence of Rodriguez, Eddie Garcia,
who had come to the facility after hearing about the
attack, Michael Leon, and Perez, Joe Leon informed the
latter that Rodriguez was going to take him to court
over the beating . 25 Perez turned to Rodriguez and "said
I had been lucky because . . . the next time it was going
to be worse.... He was going to send me to Mexico in
a . . . coffin." Rodriguez neither filed internal union
charges nor criminal charges against Perez, and no inter-
nal union charges were filed against Perez by Respond-
ent's officers . In fact, there appears to have been no dis-
cipline of Viviano Perez by any entity.
There is no dispute that Perez attacked Rodriguez;
however, his motivation is at issue . As to this, Rodriguez
testified that the letter, held by Perez that morning, was
a copy of one, dated January 30, 1985, which he had
mailed to the International president and in which he
stated that "they arrested someone at the fair for carry-
ing a gun ."26 Rodriguez acknowledged that Perez ap-
peared to be quite upset, just before punching him. Eddie
Garcia testified that, after the police drove off, Perez
held a copy of the letter and said to him , "'Eddie, see
what this paper says .' And he showed me the paper.
And, it says here that somebody was arrested at the fair-
grounds for carrying a gun and says 'That 's referring to
me.' But there wasn't any names on the paper and he
says, 'That 's why I beat up on Joe Rodriguez."' Mo-
ments later , according to Garcia , Joe Leon walked over
to him and said , "see Eddie , [none] of this would happen
if you guys hadn't written letters to the fairgrounds."
During cross-examination, Garcia acknowledged having
been previously aware of the letter and the fact that, al-
though no names were so stated , the allegation involved
VivianQ Perez. Further, Garcia admitted that the letter
was "antagonistic" and "I didn 't like the letter in the first
24 Joe Leon asserted that he arrived at the facility subsequent to the
punches and learned of the attack from his son Michael.
as Leon denied the comment attributed to him by Rodriguez.
96 Rodriguez mentioned no names in the letter, but anyone who was
aware of the incident would know that Viviano Perez was the culprit.
Also, Rodriguez publicized the letter among Respondent's employee-
members in the parking lot
LABORERS LOCAL 806
place," that Viviano Perez possessed a reputation as a
hot-tempered individual , that the letter "may have been
antagonistic to Viviano," that May 6 "may have been"
the first time Perez became aware of the letter's con-
tents, and that showing it to him was tantamount to
waving a red flag at a bull.27
Paragraph 6(j) of the second consolidated amended
complaint concerns an alleged threat made 3 days later28
by Joe Leon. According to Jose Rodriguez , on May 6, a
group of dissidents, including himself, Art Cervantes,
Eddie Garcia, Ruben Vivanco, and Vivanco's brother
Jose, picketed at the Pomona facility. After approximate-
ly an hour, he and Cervantes were placing the picket
signs in the back of the latter's station wagon , which was
parked at the curb outside the parking lot, when Joe
Leon walked over to them after closing the parking lot
gate . 29 "Joe Leon told me, 'How do you like how I had
made your eyes?' Then I didn't answer anything and he
told Arturo Cervantes , 'You're going to be the next
one."130 Cervantes corroborated Rodriguez on this inci-
dent . According to him , they had engaged in picketing
that morning for approximately 2 hours and were on the
sidewalk having picked up the picket signs . Joe Leon
was nearby and "he said Rodriguez, see how I have
made your eyes ." Then, turning to Cervantes, Leon said,
"take him by the hand because you're going to be the
next one ." Cervantes was aware of Rodriguez' beating
the prior Friday and said the effects of same were evi-
dent still on Monday . Finally, Cervantes was certain that
just he and Rodriguez heard Leon's threat as no other
dissident member was with them and as all their compa-
triots "were out by the doorway to the hall ." Specifical-
ly, as to Ruben Vivanco, Cervantes said , "I did not
notice" where he may have been standing , but "no one"
else was close enough to have overheard. Notwithstand-
ing the disclaimers of both Rodriguez and Cervantes, Vi-
vanco claimed that he, also , was a witness to Leon's
comments . According to him , the three of them were
leaving the Pomona facility at approximately 9:15 that
morning when Joe Leon was "going out the gate in front
where the parking lot is and he said to Jose Rodriguez,
that what did he think . . . about the way his face was."
Leon then turned to Cervantes "and he told him that he
would be next . a t Joe Leon denied the comments attrib-
uted to him.
Paragraph 6(k) of the second consolidated amended
complaint refers to another alleged threat made 2 days
later , May 8 , 1985 . Jose Rodriguez testified that he was
in the parking lot "by the steps" speaking to Joe and Mi-
chael Leon. His assailant, Viviano Perez, arrived and
both Leons told him to ask Rodriguez if he still intended
to take Perez to court . "Then, Viviano came over and
... told me, 'Are you going to take me to court?' And I
27 Garcia thought that Perez had been working when the letter was
sent and up until the day of the attack , he did not know about it. Then,
"somehow or other he got a hold of this letter."
as The parties stipulated that this incident occurred on a Monday.
29 Rodriguez stated that no other protesters were nearby.
30 Rodriguez acknowledged failing to mention this alleged threat in af-
fidavits given to the Board on May 8 and 21, 1985.
31 Vivanco also failed to mention this incident in a pretrial affidavit
given to the Board.
949
said, 'The law is going to tell you .' And then he said he
had the law in his own hands " and gestured , raising his
arms and clenching his fists . Rodriguez said he did not
care, and the conversation ended . Joe Leon denied the
occurrence of the incident.
Paragraph 6(1) of the second consolidated amended
complaint involves an incident which occurred in Re-
spondent 's parking lot on October 17, 1985, between
Eddie Garcia and Paul Perez ,32 the brother of Viviano
Perez . That morning, Garcia drove into the parking lot;
parked his car; and , while remaining seated inside, began
reading, from a spiral notebook , his notes of a monthly
membership meeting which he attended the night
before . 33 Moments later Ruben Vivanco and Art Cer-
vantes came over to the car and stood by the driver's
side window while Garcia read to them from his notes of
the monthly meeting . As Garcia did this, Gabriel Leon,
who had observed Garcia reading from a notebook in his
car and who had been standing and conversing with a
group of nonprotesting members, including Steve Marti-
nez and Paul Perez, a short distance from Garcia's car,
left the group and walked over to the car "to speak to
[Garcia]" about what had been said at the monthly meet-
ing. After Leon joined them beside Garcia's car window,
Vivanco and Cervantes moved away, and Leon and
Garcia spoke about the meeting . After a few minutes,
Leon left Garcia and returned to the group of members
with whom he had been standing . One member asked
about his conversation with the dissidents ' leader and,
according to Martinez , Leon said that "Eddie had a
book from the meeting the night before and . . . Gabe
looked at it and . . . there was nothing written there."
Meanwhile , Garcia got out of his car and walked toward
a portable bathroom , which had been placed in the park-
ing lot . 34 Perez testified , "all this morning I'm watching
him. You know , he's just reading his tablet . . . by him-
self and then also with all the group there .... Well I
noticed him get up and go to the restroom . . . so I was
curious to what the book had to say . . . . So I just went
and got it out of his car and . . . I stood by his car."35
32 At the time of the incident , Garcia was approximately 6 feet tall and
weighed 300 pounds; while Perez was 5 feet 6 inches and weighed 150
pounds.
33 Garcia was the only dissident who attended the meeting, during
which Joe Leon accused Garcia and Jesus Nunez of "making too many
waves" by the filing of NLRB unfair labor practice charges ; complained
that "the picketing was hurting the union ", and exhorted "the union
members to fight for their rights."
94 During the months of September and October 1985, Respondent's
Pomona facility was undergoing extensive renovations . A trailer had
been placed in the parking lot, and such was utilized as Respondent's
office.
ss There is no evidence, and both Martinez and Leon denied, that
Leon asked Perez to take Garcia's notebook from his car and read it. The
matter of where Garcia left the notebook in his car seems to be of some
import herein According to Garcia , he wedged the notebook between
the front seat and the transmission hump , with it partially sticking out.
While, at first, insisting that one would not have known what the note-
book was unless he was specifically looking for it, Garcia conceded later,
"I could never tell you ... you couldn 't find that book unless you were
looking for it" and "I never even thought of trying to hide it from some-
body . „
Perez asserted that it was commonplace for members to take items,
such as books and magazines , from other members ' cars in the parking
lot. Leon contradicted him, saying it was not a habit of members to take
things from other members' cars without permission.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
While walking to the bathroom , Garcia observed
Perez "walk by my car" and "look in the window on the
passenger side," but was not concerned about it . Howev-
er, when he finished in the bathroom and opened the
door, Garcia saw Perez "leaning on my car . . . looking
at [the notebook]." There is no dispute that , at this point,
Garcia hurried back to his car ; there is much dispute as
to what then occurred . Garcia testified that, upon reach-
ing his vehicle , he "grabbed the tablet and tried to take it
away from [Perez] and he pulled it back . . . . Then I
took [the notebook ] from him and put it back in my car
where it was. . . . Then as I turned around to face him,
he hit me . . . in the left side . . . in the jaw . . . with
his [left] fist." Thereupon , Perez said, "No son-of-a-bitch
touches me, not even the police." During cross-examina-
tion, Garcia admitted that he grabbed Perez' wrist in the
midst of wresting the notebook from the latter. In any
event, the punch did not knock Garcia to the ground,
and "we stood up like roosters ready to fight," looking
at each other for "a minute or so." Thereafter , Perez left
the area as did Cervantes and Vivanco in Cervantes' car.
Both the latter two dissidents essentially corroborate
Garcia as to the circumstances of the punch . According
to Cervantes , Garcia "pulled [the notebook] away" from
Perez and "put [it] inside the car, then when he turned
around [Paul] hit him on the jaw ." Vivanco testified that,
upon reaching his car, "I saw that Eddie pulled back the
book, grabbed the book and put it back inside the car.
... Then after he put it back , he straightened up and as
he turned Paul hit him on the face . . . with his fist."
Both witnesses agree that Garcia did not fall from the
punch, that he did not retaliate, and that they (Cervantes
and Vivanco) immediately left the scene in order to tele-
phone the police . Both then immediately returned to the
parking lot.
Respondent 's witnesses testified to a different version
of the punch . According to Perez, who is a member and
who clearly is not an agent of Respondent , Garcia fin-
ished in the bathroom and noticed him reading the note-
book . "So then , he walks up to me and he grabs me... .
All I know is I had [the book in my left hand ] and one
hand was free. . . . And when he . . . touched me I hit
him. . . . And he backed up." Perez continued , saying
that, after striking Garcia, he told the dissident , "All you
had to do was ask me for the book . Do not put your
hands on me . Nobody puts their hands on me . Nobody. I
don't care who it is . Cop. Anybody." Perez added that
the incident lasted no longer than the snap of a finger;
denied that he pulled the book back to keep it from
Garcia; and stated that, after the punch , Garcia "just
stood there . We both just stood there and looked at each
other." Finally, he testified that Garcia was neither hurt
nor bleeding and, as to whether Garcia was crying, "I
don't remember that . I don't know."36 Steve Martinez
96 Perez conceded that he would have noticed tears coming from Gar-
cia's eyes.
After punching Garcia, Perez left the parking lot and drove to the
Pomona police station "to see . if any charges could be brought
against me for what I did " He spoke to a desk officer , who said there
could be no charges , and Perez returned to the parking lot.
testified that Garcia hurried back to his car upon notic-
ing Perez with the notebook and attempted to grab the
book from Perez with both hands . However, as he did
so, Perez "pulled the book back ." Then, Garcia "lunged
at Paul" with both hands, "but Paul turned and [Garcia]
grabbed him by the shoulder ." Thereupon , Perez "hit
him in the face . . . with his right hand ." Garcia ap-
peared "stunned" and "he started crying." Perez then
said to him, "Nobody touches me." During cross-exami-
nation, Martinez stated that Garcia approached Perez
and yelled "Hey, give me my book"; that Perez looked
up and then as Eddie tried to make a grab for the book,
Paul pulled it away; that Garcia never touched the note-
book ; and that 10-20 seconds elapsed between Garcia's
grab for the notebook and Perez ' punch . Whatever the
sequence , according to Martinez , when Garcia began
crying "everybody started laughing" as "here's this
kid-a hundred and twenty , a hundred and thirty pounds
and hit this man here that weighs a quarter of a ton and
the man starts crying." During cross-examination , Marti-
nez initially stated that Gabriel Leon "just stood there,"
laughing as did all the others for "maybe five minutes."
Later, Martinez changed his testimony , asserting that
Gabriel laughed only "for a second , yeah, and that's
about it" and that, rather than general laughter for 5
minutes, "we were just smiling" and "I mean not actual-
ly laughing , you know . . . smiling . . . at what hap-
pened ." Gabriel Leon testified that Garcia walked "very
fast" from the bathroom toward his car. When he got
there, Perez had both hands on the notebook . Garcia
grabbed Perez' right shoulder with his right hand and
reached for the tablet with his left . Thereupon , Perez hit
Garcia with one punch to the side of his face . Notwith-
standing the foregoing , Leon admitted that his view of
the incident was obscured by Garcia's back and, during
cross-examination , conceded that he could not really see
what happened . He further testified that, along with ev-
eryone else, he laughed at what happened-prompted by
the sight of a smaller man punching a larger one.
A few minutes later, the police arrived at the parking
lot. While they questioned Garcia and Perez, according
to Vivanco , Joe Leon37 moved close to him, "and he
asked me if I did not know how to read . . . . He asked
me why I had called the police, son of a bitch , you're
not a man."38 Neither Joe nor Gabriel Leon offered to
assist the police in their investigation , and neither offered
an explanation for his failure to do so . 39 Eddie Garcia
filed no internal union charges against Paul Perez , assert-
ing that the Leons' presence on any trial board would
mean certain defeat . Likewise, neither Joe Leon nor Ga-
briel Leon took any internal action against Perez . Gabri-
el admitted "I didn 't do anything" about settling the situ-
sr Joe Leon admitted that he was present in the parking lot at the time
of the incident but, as his back was turned, did not observe what oc-
curred According to him, he turned upon hearing everyone laughing
and saw "Eddie Garcia standing in front of Paul Perez. That' s all."
38 Joe Leon did not deny this comment
as Joe Leon testified that he stood by the office trailer when the police
arrived. He said that Cervantes was nearby and said to him "'Don't go
inside, you kiss ass. Come here.' . I asked him what he wanted. . .
And he just stared at me and laughed. I walked away." Cervantes did not
deny this comment.
LABORERS LOCAL 806 951
ation notwithstanding his conceded responsibility for
maintaining order in the parking lot. Asked why he
failed to act, Gabriel averred , "I can 't see where it was
my place to do something." Further, Respondent cannot
act "without the member requesting something ," and no
one did .40 Paul Perez was not disciplined , in any way,
for his conduct that day.
Paragraph 6(n) of the second consolidated complaint,
pursuant to amendment at the hearing, concerns an al-
leged incident which occurred on September 17, 1985, 3
days after the dissidents ' disruptive picketing during the
award dinner for Joe Leon. On this day, Jesus Nunez
and Jose Vivanco arrived at Respondent 's parking lot at
approximately 7:30 in the morning . According to both, a
member approached Vivanco and said that his name had
been called for work the day before and that, as Vivanco
had not been present, his name had been dropped from
the out-of-work list. This was especially troubling to Vi-
vanco as the Los Angeles County Fair was about to
begin , and he now would be unable to work . As a result,
according to Vivanco, he entered the temporary office
trailer in order to ascertain what he could do to have his
name restored to the out -of-work list . Joe Leon and his
two sons were inside . Michael and Gabriel immediately
left, closing and locking the door as they did. Joe Leon
spoke to Vivanco, saying "What have you done to me?
.. . You have peeled off our balls." Vivanco did not
reply, and Leon said "`You son of a motherfucker.' Then
I told him, `You see Leon, when I used to pay you, you
were honey with me, and now when I quit paying, you
change very much."' Leon responded, referring to Eddie
Garcia, Jesus Nunez, and himself, "by the law of my
balls, you won 't work." He cursed again at Vivanco and
asked "Now you're happy, yes?" Vivanco replied that
they could beat Leon , that it might take a long time but
that they would beat him. Vivanco turned, unlocked the
trailer door, and stepped outside . According to Vivanco,
Michael and Gabriel were standing outside the door,
and, as he walked past, Gabriel yelled, "You mother-
fucker." He continued , stating that he and Nunez re-
mained in the parking lot, talking to Eddie Garcia. Ap-
proximately 10 to 15 minutes later, Joe Leon walked
toward them , pointed , and said , "they will not get a
job."
Nunez testified that, after Vivanco entered the office
trailer, Michael Leon and Gabriel Leon came outside,
shut the door, and "they stayed by the top of the stairs
by the door." After 10 or 20 minutes , Vivanco came out.
Joe Leon followed, came down the stairs and over to
where Nunez was standing, and, in a soft voice, said
"You son of a motherfucker." Joe Leon, Gabriel Leon,
and Michael Leon each denied the occurrence of such an
incident.
Paragraph 7(a) of the second consolidated amended
complaint concerns an incident , or incidents , which oc-
curred in January, February, or March 1986 while the
dissidents picketed at 520 South Virgil Avenue in Los
40 Contrary to Gabriel Leon's statement , art. XII of the International's
constitution provides that "an officer or member in good standing may
prefer charges against any other officer or member of a local union " Joe
Leon conceded this but claimed that his need to be impartial precludes
him from filing charges against members
Angeles, the site of a carpenters' building4 t in which the
International has an office . As set forth in exhaustive
detail, the record evidence is, to say the least , extremely
confused and muddled as to exactly what transpired. At
the outset , it is clear that an incident occurred. Thus,
both Michael Leon and Gabriel Leon concede driving
past the picketing dissidents at the above location on two
separate occasions in 1986 (once in January and once in
March) while on union business and engaging in con-
frontations with the dissidents both times . 42 With regard
to the first such confrontation'43 Jose Vivanco testified
that, one morning in February at approximately 10:15,
along with Art Cervantes, Cervantes' wife Socorro, and
an unidentified "little old man ," he was picketing at 520
South Virgil when a brown Bronco in which Gabriel
and Michael Leon were riding with the former driving,
turned into one of the building 's driveways , stopped,
backed out into the street , and was driven into the other
driveway, which was closer to where the pickets were
walking. The vehicle came to a stop, Gabriel Leon got
out, and he faced Art Cervantes . Leon made an obscene
gesture (placing his arms and clenched fists in front of
him) and said "You see how you peeled it off."44 Then,
Leon turned to the entire group , saying "You 're going to
pay for it" and to Mrs. Cervantes , saying something
which Vivanco did not hear. Thereupon, Gabriel re-
turned to the Bronco; made another gesture with his
arms and hips ; started the car ; and, as it pulled away,
yelled to Mrs. Cervantes, "You . . . whore, mother-
fucker." According to Vivanco, as Leon yelled the latter
epithets , "that's when Mr. Whitey came out" of the
building. Vivanco added that there was no lunch truck
nearby, that he did not observe Michael Leon do or say
anything , and that he left the building by 11:30 a .m. that
day.45 During cross -examination, Vivanco appeared con-
fused as to when the incident occurred ("I think it was
January.... Perhaps, maybe not.") and identified "Mr.
Whitey" as an individual who worked for the Carpenters
Union Trust Funds. He added that, while facing each
41 The Carpenters Southern California Administrative Corporation
building is set back from the street and separated from the sidewalk by a
planted area . On either side are driveways, which lead to a parking lot.
42 Par. 7(e), which refers to a March 1986 incident at 520 South Virgil
was amended out of the complaint . Accordingly, while evidence was ad-
duced on that incident, I shall make no findings regarding it.
49 The Leona were riding in a brown and beige Ford Bronco, with
Gabriel driving and Michael seated in the front passenger seat, on both
occasions . They conceded that they could view the pickets from the
nearby cross streets (Fifth Street and Sixth Street), that on neither occa-
sion was there a need to turn onto Virgil , and that, by turning, they were
going out of their way . When asked why they would turn onto Virgil, as
they had done several times in the past, Michael responded , "We went
by just to see if there was anything going on there . We do not get down
to L.A. very often.... We cannot believe that they 've been picketing
for three years. So we're curious to see."
Michael testified that he and his brother drove past the scene of the
picketing five or six times in 1985 but never stopped . On each occasion,
the pickets noticed them and began gesturing forward and shouting at
them.
44 The meaning of this obscenity apparently concerns removing the
grotesque hair from the sex organs
45 Counsel for the General Counsel sought to impeach the witness
with his pretrial affidavit wherein Vivanco described another visit by the
Leons that day. Vivanco said about this , "I really did not pay attention
to them "
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other, Gabriel and Art Cervantes were separated by 8
feet.
Art Cervantes testified that, between 9:30 and 9:45 one
morning in February , he, his wife, Jose Vivanco, and an-
other supporter arrived at 520 South Virgil in order to
picket . Shortly thereafter, as the dissidents were "doing
their rounds on the sidewalk," Gabriel Leon and Michael
Leon , riding in a brown Bronco with Gabriel driving,
went past them , and the vehicle turned into the drive-
way on the side of the building where the pickets were
standing . The Bronco stopped , and "Gabriel Leon
climbed out, Michael opened the door, put his foot out
and put it on the sidewalk . . . . Gabriel . . . said to us,
you all look like whores-male whores and then he
walked towards me. You 've been with me two years and
what have you done for me, you sons of a fucked
mother . . . . I asked him why he was mistreating us
there?" Gabriel looked at Cervantes and Vivanco and
said "When we go to the Union , he was gonna fuck us
up." Before Cervantes could respond , his wife urged him
to be silent . Nevertheless , he and Gabriel moved within
4 to 5 feet of each other, but Leon turned and walked
back to the Bronco . Both Leons closed the car doors,
and Gabriel backed the Bronco into the street . "When he
was in the street, he told my wife she was a whore."
Cervantes added that, prior to this last epithet , Gabriel
yelled that they would return, and his wife had been ges-
turing and yelling "go ahead go" and that he saw no
hand gestures by the Leons. Art Cervantes further testi-
fied that the dissidents continued picketing that day, and,
at approximately 12 noon, the Leons returned to 520
South Virgil, with Gabriel turning the Bronco into a
driveway46 and stopping . The vehicle remained there
for 3 minutes during which time Gabriel was "giving the
finger" to the protesters and speaking in English. Mi-
chael Leon just sat in the passenger seat, doing nothing.
After finishing his gestures , Gabriel drove off. On this
second visit, Cervantes did not hear Gabriel utter the
Spanish word for whore . During cross-examination, Cer-
vantes was not sure whether the incident occurred in
January or February and said the pickets, during the first
visit by the Leons that morning, said absolutely nothing
to Gabriel "because we're scared of them ." Also, Gabriel
Leon sat on top of the Bronco for awhile . Cervantes
conceded that he could have avoided Gabriel ("I could
have turned around and go the other way.") and admit-
ted that he walked toward Leon "to protect my wife."
As to the second visit, Cervantes stated that he and his
wife were resting at the time , that they were 50 to 60
feet from the Bronco , and that he could not hear what
was said.
Socorro Cervantes testified that this incident occurred
one morning in either January or February . Her hus-
band , Jose Vivanco, another man, and she were picket-
ing at 520 South Virgil when a light brown Bronco, in
which the Leon brothers were riding, drove by, turned
in the opposite direction , and was driven into a drive-
46 In order to drive into the driveway , Gabnel had to avoid a food
truck , which was parked in the street by the driveway and around which
many people were congregated . Among the customers was Menl Smith,
a white-haired Carpenters' Trust Funds employee
way. "They stopped the truck, then Gabriel came out,
Michael opened the right door, and put one foot out.
Then Gabriel turned around . . . to meet with Arturo
and he was hollering. . . . He said, `you son of a whore,
you sons of whores, you look so pretty. . . . You have
now been here for two years, and you haven't done any-
thing for me. I have money to fuck you over.... I'm
going to fuck you over. You and that ass . . . Jose Vi-
vanco ."' The Leons climbed back into the Bronco and
"started to reverse the truck . . . they came back .. .
around then he hollered '. . . I'll come back after
awhile.' And [I] said, yes, we'll wait for you here. And
then once he was leaving he hollered '. . . You also shut
up whore ."' She added that the "sons of whores" com-
ment was directed "to all of us" and that Gabriel hol-
lered he would be back as the Bronco started forward on
Virgil. During cross-examination , Mrs. Cervantes stated
that she urged her husband , during the confrontation, to
be calm and to not pay attention to the Leons . 47 During
further cross-examination , Socorro Cervantes corroborat-
ed her husband that the Leon brothers returned to the
dissidents ' picket line at between 11:30 and 12 noon "in
the same car." On this occasion, Gabriel stopped the car
in front of the building next to the curb . Nine or ten
pickets were walking at the time, but Mrs. Cervantes
..was sitting down with my sign . I was resting . . ." to
the right of the front entrance. The Bronco was stopped
for 2 to 3 minutes during which time "Gabriel was .. .
gesturing me with his fingers and he was gesturing" by
shaking his fists in the air . Also, he said some things in
English "but I could not understand ." Then , Gabriel
started the car; moved forward ; turned into the same
driveway into which he turned earlier that morning; and,
with the car moving slowly , "was giving us the finger"
and raising his fist. Michael Leon did nothing on this oc-
casion , and she did not hear Gabriel utter the word,
whore.48
Meril Smith , a white-haired individual who is em-
ployed by the Carpenters Southern California Adminis-
trative Corporation as the assistant manager, testified that
he walked out of the building in "mid-morning" in order
to go to an adjacent building, owned by the Carpenters
Union . He turned right on the sidewalk and the pickets,
who, he knew , were members of Respondent , protesting
against the labor organization's leadership, were, as
usual , in front of the building . "I noticed a . . . Bronco
type truck pull up into the driveway across the sidewalk.
I heard shouting coming out of the truck and offensive
language . I heard them holler at a lady . . . [calling her
a whore] . . . and I heard them say '. . . and you' to the
other picketers '. . . you dumb son of a bitches.' I think
one of them said dumb fucking asshole or something like
47 Her husband had been yelling back at Gabriel "to come over" to
where the pickets were standing.
Mrs. Cervantes denied that Meril Smith, whom she knows, was present
on the street during this incident and added that Eddie Garcia joined the
picketing later that day.
48 Mrs. Cervantes stated that , at the time of the Leons ' second visit to
the picket line that day, Meril Smith "was just outside the door ." She got
the impression that Smith did not know who the people in the Bronco
were as "I think that he asked me . who they were . He asked this as
the Bronco turned into the driveway."
LABORERS LOCAL 806 953
that ." Smith added that the men in the Bronco yelled
... and we're going to get you ' and they were holler
ing out of the truck and the guys on the picket line were
trying to respond ." Smith continued , saying "The truck
took off and they were shoving their fingers up at them
out of the window and hollering `we'll get you. We're
going to get you' as the truck drove off through our
parking lot." Smith further testified that two men were
in the Bronco, and he identified them as Gabriel and Mi-
chael Leon , individuals he had seen previously. During
cross-examination , Smith stated that, while the Leons
shouted at the pickets, "they were talking, but they were
... defending . . . themselves."49 Further, he recalled
that only one of the car's occupants was shouting at the
pickets, that the pickets were shouting and cursing at the
car's occupants as it moved away, and that the driver
was the one who gave the middle finger sign and "the
passenger was shaking his fist at " the pickets . Finally,
Smith recalled that one picket, "the big guy with the
mustache," asked if he had heard what had been said.
On this latter point , Socorro Cervantes said that Eddie
Garcia had not yet arrived when the Leons came to the
picket line the first time that day. Garcia himself testified
that the incident occurred on January 17; that he arrived
at 520 South Virgil at 10 a .m.; that Art Cervantes, So-
corro Cervantes, Jose Vivanco, and another were al-
ready there ; and that he learned from Art Cervantes that
the Leons had driven by the picket line earlier that
morning . Later that morning, a lunch truck arrived and
parked near one of the driveways ; moments after, Garcia
observed the Leons' Bronco, with Gabriel driving, drive
past the building and stop "partially on the sidewalk and
partially in the parking lot." His brother Michael was in
the passenger seat, and Gabriel began to "make vulgar
gestures," with his arms moving up and down and both
fists clenched . To Garcia, this signified "we're fuckin'
you." Garcia continued, saying he was 25 to 30 feet from
the Bronco , and "I couldn't distinguish any of the words
but [Gabriel] was saying something. . . . Michael was
just sittin ' there ." As to Mr. & Mrs. Cervantes , Gabriel
placed Art Cervantes sitting on a planter in front of the
building. Regarding his wife, Gabriel said , "I did not see
her." As to Meril Smith , Garcia saw and spoke to him
"right in front of the lunch truck ." He was there when
Gabriel made his gestures , and asked Garcia who the
car's occupants were and why had they acted as they
did.so
As stated earlier, Michael Leon and Gabriel Leon both
admitted driving past the picket line in January 1986.
According to Michael , he and his brother were on their
way to a Laborers ' District Council meeting , which was
scheduled for 10 a .m. That morning, Gabriel turned the
49 Smith was "not sure" of the color of the Bronco but thought it was
a "two tone" and it might have been blue and white.
50 Jose Rodriguez testified regarding a picketing incident during Feb-
ruary. No other witness placed him on the picket line that day . Accord-
ing to him , that afternoon Gabriel Leon and Michael Leon drove up to
the building in their Bronco and pulled into a driveway . "I saw Gabriel
had raised his both arms and said , 'That's all that you have done to me in
all the time that you have been picketing ."' Moments later , Rodriguez
testified that whle he observed some gesturing, "I didn 't hear because I
was far away " He claimed , however , that Michael was laughing at what
his brother did.
Bronco onto Virgil and as they passed by the Carpen-
ters' building, he could see Art Cervantes , his wife, and
Jose Vivanco picketing . Suddenly, Art Cervantes began
raising and lowering his picket sign , motioning with his
hand , and yelling for Gabriel to stop . Gabriel pulled into
a driveway , and "we heard cursing from Arturo Cervan-
tes to us." He yelled "We're going to fuck you" and
"We got you . We're going to get you out now" in Span-
ish. Thereupon , Gabriel got out of the Bronco , walked
up to Cervantes, "and asked Arturo what his problem
was." They were 8 to 10 feet apart . Cervantes did not
reply, and his wife approached Gabriel and gestured
with her fist, clenching it with the thumb sticking out be-
tween the index and middle fingers . She was no more
than 2 feet from Gabriel , and he "told her it was none of
her business and to leave, calling her a [prostitute]." She
did not respond , and her husband moved toward Gabri-
el. Michael then got out of the Bronco, walked over to
Gabriel, and beckoned him to leave . They then did so
with Art Cervantes yelling, "I 'm going to fuck you." Mi-
chael Leon denied that either made gestures toward the
pickets, threatened the pickets , or returned later that day.
Gabriel Leon essentially corroborated his brother , stating
that "the regular people" were picketing that day, that
he does not recall which dissident motioned for him to
stop , and that he pulled into a driveway and stopped.
Art Cervantes spoke to him and said he would put Ga-
briel in jail . Gabriel asked for what, and , before Cervan-
tes could answer, his wife interrupted, calling Gabriel
names and making obscene gestures . He was about to re-
spond when Michael restrained him. Gabriel denied
making any gestures and denied saying they would
return or get them . During cross-examination , Gabriel
denied calling Mrs. Cervantes a whore6' at that time but
admitted driving slowly enough that Cervantes could
motion for him to stop.
Paragraph 7(b) of the second consolidated amended
complaint concerns an alleged incident which occurred
on February 3, 1986, at Respondent 's Pomona facility.
At the outset , there is no dispute that this was a Monday
and a roll call day. As stated above, in order to remain
eligible for dispatch to jobs off Respondent's out-of-work
list, members must sign a roll call book on the first and
third Monday of each month . Rubin Vivanco testified
that, on February 3, he arrived at the Pomona facility at
7:15 a.m., and Joe Leon informed him that his name had
been removed from the out -of-work list . Accordingly,
Vivanco placed himself in a line of members who were
waiting to sign the out-of-work book, which is placed
near the dispatch office . Waiting on line with him were
his brother Jose and Art Cervantes . The latter two were
ahead of him . 52 When his turn arrived , Vivanco walked
up to the dispatch window and handed his union card to
Leon . "At that moment while I was at the window, Ga-
briel Leon came out and pushed me with his shoulder
51 Gabriel admitted calling Socorro Cervantes a whore during the
picketing at the San Gabriel Mission during the award dinner for Joe
Leon.
52 Vivanco asserts that when each stepped up to sign his name, he (Vi-
vanco) overheard Joe Leon tell each "go screw their mothers."
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
... against the wall."53 As he passed by, "I turned
around to look then he started to laugh ." During cross-
examination , Vivanco appeared to describe the roll call
procedure as what occurred on this day. He added that
there would "sometimes" be cursing from dissidents to
the union official behind the dispatch window.
Jose Vivanco stated that his brother , Cervantes, and
he were, in fact, at the Pomona facility that morning in
order to sign the roll call book and that they stood in the
roll call line "one behind the other," with Ruben first,
then Jose , and Cervantes behind them . According to
him, "Mr . Gabriel came out and pushed . . . Ruben .. .
with his shoulder as he passed by ." He added that Leon
struck his brother with his right shoulder and that Leon
"did it on purpose" as there was room on either side of
Ruben for Gabriel to walk past . Continuing and contra-
dicting his brother, Jose Vivanco stated that he saw no
other Leons in the area and "if they were, they must
have been in the office because [Gabriel] came from
inside" and that he did not hear Gabriel utter any sort of
sound subsequent to the impact ("Why one has to lie,
no?"). During cross-examination , Jose stated that Ruben
had just signed his name and was pushed by Leon as he
"stood on the side ." Further, Jose did not actually see
Gabriel strike Ruben as "I was . . . wanting to sign"
when Gabriel walked past . Thus, when Jose turned to
look, Leon had already hit Ruben . Art Cervantes initial-
ly testified that the Vivanco brothers stood in front of
him in the roll call line that morning, but later that
Ruben signed the roll call book first , then himself, and
Jose last. He added that Joe Leon "was in the front .. .
taking care of the signatures of the signing in." Ruben
Vivanco signed the roll call book and moved off to the
side . "Gabriel came out and . . . passed by near me and
pushed [Ruben] as he went by . . . with his shoulder."54
During cross-examination , Cervantes stated that he first
noticed Gabriel Leon when "he was on my side .. .
watching me," 5 feet to his left ; that Gabriel walked di-
rectly toward Ruben who moved to avoid Gabriel; that
he (Cervantes) observed Gabriel pushing Vivanco with
his upper right chest area ; and that he did not see what
happened to Ruben as "I turned immediately to see Joe
Leon." Asked why he would do this, Cervantes replied,
"because we were afraid that he might beat us."
Respondent asserts that the incident never happened.
Thus, the three Leons deny any such bumping of Ruben
Vivanco occurred during a roll call day . Further, Re-
spondent offered as its Exhibit 5 a copy of a page, dated
February 3, 1986 , from its roll call book . It bears the sig-
natures of Ruben Vivanco , Jose Vivanco, and Art Cer-
vantes, but Jose Vivanco's signature appears first, Cer-
vantes' appears next five names below Jose 's signature,
and Ruben 's signature appears two names below Cervan-
tes'. Further, Johnny Cortez, whose signature is beneath
that of Ruben Vivanco and who, therefore, must have
been standing behind him in the roll call line, could not
ss Vivanco stated that Gabriel struck him in the back of the right
shoulder with his right shoulder.
54 Cervantes added that Gabriel's contact clearly was deliberate as
"there was plenty of space that he could have gone out. He had no need
to go and pass."
recall the occurrence of an incident such as described by
the General Counsel's witnesses.
Paragraph 7(c) of the second consolidated amended
complaint concerns a fight between Jose Pineda and Ga-
briel Leon at Respondent 's Pomona facility on February
5, 1986 . Counsel for the General Counsel contends that
what occurred that day had its genesis in the dissident
activities of some of its members , including Pineda who,
along with his wife, was one of those who picketed at
the 1985 labor award dinner in honor of Joe Leon.
Pineda testified that, on this date , he arrived at the
Pomona facility at 7:30 a .m. in order to sign the out-of-
work book . 55 He parked his car and , while speaking to a
friend, observed Gabriel Leon, standing by the parking
lot entrance door, "just looking at me." A few minutes
later, Pineda walked over to that door and tried to enter
the building . By then , Gabriel was standing "in the
middle of the door," and , as Pineda attempted to pass by,
"he hit in . . . my left shoulder with his . . . left shoul-
der." According to Pineda , he kept on walking inside the
union hall and over to the dispatch office, with Gabriel
following him . Michael Leon and another member were
already in the office . Gabriel moved from behind Pineda
to a position in front of him in the dispatch office door-
way, "and pushed me with his two hands ," saying "Get
out of here you motherfucker ." Then , Gabriel stepped
on "my left foot with his right foot" and said "Bring me
your wife to fuck her." Reacting , Pineda repeated the
scatological comment back to Leon, and the latter
cursed , "Damn whore" and told Pineda that he stood by
his wife because he was scared of Gabriel. Thereupon,
Gabriel "put his stomach back and then forward against
my stomach and my lower parts ." From this, according
to Pineda, he "had a lot of pain . . . in my stomach and
my testicles." Retaliating , Pineda "hit him in the right
cheek with my right fist ." Then , "he hit me twice in my
stomach with his left and right fists," and "I fell . . . on
my back ." Gabriel yelled at Pineda to stand and fight but
the latter was in pain and couldn 't stand . "So I just
throw a kick in his legs with my left foot."
Meanwhile Gabriel Leon had turned and walked back
into the dispatch office . Pineda got up from the floor,
walked over to the dispatch window, and spoke to Mi-
chael Leon . The latter "told me he couldn 't put my
name . . . on the out-of-work list . He told me to ask Ga-
briel to do that." Gabriel was on the telephone, and,
when he finished , Pineda asked to be placed on the list.
Gabriel asked for Pineda's out-of-work card . Pineda said
he did not have one . Gabriel gave him a new card and
asked Pineda to come into the office . As he did so, Ga-
briel Leon said, "You motherfucker, let's fight again."
Pineda asked if Leon had not had enough, and the latter
replied , "You damn whore, let's fight again." Pineda did
not reply and left the office.
Rather than leaving the facility, Pineda remained in
the parking lot. Eddie Garcia walked out of the building
and over to him, and , moments later, Michael Leon and
Gabriel Leon approached them , both called Garcia "a
child molester." Pineda moved away, but Gabriel kept
55 Pineda had been working for several months
LABORERS LOCAL 806 955
staring at him. Tired of that, Pineda asked him if he was
tired of looking for a fight . Gabriel replied that he just
wanted to know what Garcia was saying to him, and he
continued , "that . . . I start all this . . . a year ago, that
I push him from behind ." Pineda denied it and accused
the Leon family of imitating the family of Ferdinand
Marcos . Leon denied that, and Pineda said that the
Leons "would be out sooner or later, they going to be
out." Gabriel retorted , "Never." Pineda responded that
they would be out and that "there was a lot of corrup-
tion at Local 806 ." Gabriel replied that there was cor-
ruption all over the country , including in the White
House, and said that they should go someplace to contin-
ue their fight . Pineda agreed , but Leon said , "Shit, I'm
not going ." Finally, during cross-examination , Pineda
denied ever doing anything personally to Gabriel Leon
to provoke him to act as he did that day; rather , "he was
angry at me . . . because I been picketing and I been
against . . . their rules."
Contrary to Pineda , Respondent argues that this fight
"was the result of years of personal antagonism between
these two individuals which first arose . . . sometime in
1984." Placing what occurred in late 1983, Gabriel Leon
testified that the origin of the hosility between Pineda
and himself was an argument in the parking lot between
his father and Jose Rodriguez. During it , the latter
placed his hand on Joe Leon's shoulder , and Gabriel in-
tervened , asking Rodriguez to remove it. "And Mr.
Pineda came from behind without my knowledge and
just pushed me square in the back." He then ran away
before Gabriel56 could do or say anything . 57 Gabriel
Leon further testified that, approximately 20 minutes
later, Pineda's wife drove to the Pomona facililty and re-
quested to speak to him.58 He went to meet her on the
68 According to Gabriel, his father told him not to chase after Pineda
81 Joe Leon recalled that one day , in the early days of the picketing,
he and Jose Rodriguez were arguing about whether Respondent wsa ille-
gally dispatching workers. At some point , Rodriguez placed his hand on
Leon's shoulder . Seeing that, Gabriel came "hurrying up toward me." As
he did so, "his back was to Jose Pineda . . and I saw . Pineda come
and push him and Gabe 's head went back , and he turned and tried to
take off after [Pineda] . I got ahold of his arm , and I said, 'No, leave him
go." As Pineda ran, Leon heard him yell, "telling [Gabriel] not to hide
behind my skirts."
Pineda recalled such an incident, although he recalled that it involved
Art Cervantes and Rodriguez. Pineda testified , "I was in the parking lot
at Local 806 . . when I saw Joe Leon cussing Arturo Cervantes." The
latter had just asked Leon about his chances of finding work . "A member
said to Leon that that was no way to treat a fellow member ." Thereupon,
"Gabriel came from inside the building . and pushed Jose Rodriguez
. in the chest with his two hands ." According to Pineda , Rodriguez
did not say or do anything to incur such treatment . Thereupon, Pineda
tried to stop Gabriel by pushing him "from the front with my two
hands ." Pineda denied that Rodriguez had instigated the incident by
pushing Joe Leon and asserted he was just trying to protect Rodriguez
58 Teresa Pineda confirmed that she drove to Respondent 's facility
after some sort of a confrontation between her husband and Gabriel
Leon . Asked why , she said , "I understood that day he had a fight with
Gabriel so . . I went to talk with Gabriel Leon ." Her husband did not
tell her to do so During cross-examination , she stated that her husband
did not even tell her what had happened, but she overheard a conversa-
tion between him and his brother. She did state that her husband arrived
home "feeling upset ," and she believed Gabriel had struck him "because
they always insult the union members." Finally , she conceded , "I don't
know why I went there."
Jose Pineda testified that his wife did go to see Gabriel that day but
that such resulted from the Leon brothers having stopped across the
street from 520 South Virgil Avenue and taken pictures of the picketing
sidewalk, and "she started screaming and yelling that I'd
better not touch her husband ..' . or she would kill me.
I told her I hadn't touched her husband , that her
husband had pushed me . She said no , no he hadn't
pushed me , that I had pushed him . So I just dropped it
at that."59 Subsequently , according to Gabriel, "just
about everytime he comes down to the hall," Pineda
made comments about Gabriel's failure to retaliate, tell-
ing the latter "that I'm afraid of him , I'm a chickenshit, I
hide behind my father ."60 As evidence of this blatant an-
imosity between the Pinedas and Gabriel Leon, Re-
spondent points to a confrontation at the San Gabriel
Mission prior to the award dinner , in September 1985, in
honor of Joe Leon . He testified that the dissidents were
demonstrating outside, "and when I arrived at the dinner
[Mrs.] and Mr . Pineda approached me, and she started in
again that I'd better not to [sic ] anything to them . . . or
she would kill me. . . . At that time she said she had the
gun in her purse ." During cross-examination , Gabriel
stated that he and Steve Martinez met his parents upon
their arrival prior to the dinner . At the same time, four
demonstrators (Jose Pineda and Teresa Pineda and Art
Cervantes and Socorro Cervantes) confronted them.
"Mrs. Pineda says that my dad doesn't deserve to be get-
ting the award ." Also, Jose Pineda continued "to threat-
en me . . . that he was going to kick my ass." Gabriel
told him to try it, and Mrs. Pineda "said she would kill
me." Gabriel replied that this was not the place for a
fight, and Teresa Pineda began calling him a puppet and
a clown . Gabriel responded by calling her a whore.61
Steve Martinez corroborated Gabriel Leon that a con-
frontation with the Pinedas occurred that day. Accord-
ing to him, Jose and Teresa Pineda walked up to them,
and Jose Pineda and Leon engaged in back and forth
cursing and threats . Eventually , Mrs. Pineda "intervened
and said that if Gabriel laid a hand on [her husband], she
had a gun in her purse and she'd blow him away."62
there. She had been picketing at the time and one of the Leons told her
to come to the union hall if she had anything to say about it
sa Michael Leon and Joseph Leon allegedly witnessed what Mrs
Pineda said and corroborated Gabriel 's account . They both testified that
Joe Leon intervened in the conversation, tried to calm Mrs. Pineda, and
invited her into his office to discuss the matter . Mrs. Pineda reiterated
that she would kill Gabriel and refused the invitation.
Teresa Pineda stated that she spoke to Gabriel . "I told him why did he
beat my husband.... And he told me that my husband struck him on
the back ." She continued , saying to Gabriel , "not to mingle with my hus-
band.... Gabriel answered me, 'Next time I'm going to hit your hus-
band ' I told him not to beat my husband . At that moment his father
arrived . He came close , and he began to laugh very loudly . . . about
me." Mrs Pineda left at that point She denied threatening to kill Gabri-
el. She further admitted being angry when she went to see Gabriel.
60 Contrary to Gabriel Leon, Pineda denied that any overt hostility ex-
isted between Gabriel and him subsequent to the pushing incident except
that "he was just staring at me when I go to the Union." He added that
the opportunity for confrontation was small as "I was working" and
would see Gabriel just "once in awhile "
s 'According to Gabriel Leon , he also called Socorro Cervantes a
whore because "they were all interjecting their two cents, and I threw
my two cents out too "
62 Teresa Pineda testified that she and her husband picketed that night
and had their four children , aged 1 year to II years old , with them.
While walking, Gabriel Leon and Steve Martinez constantly stared at
them. Then, Gabriel "started to say things to my husband," cursing in
Spanish. By this time , Joe Leon arrived. Jose Pineda taunted him to
Continued
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent would have the events of February 5,
1986, considered in light of the foregoing "personal an-
tagonism ." As to the fight with Jose Pineda, Gabriel
Leon testified that he (Gabriel ) was standing in the dis-
patch office doorway and his brother was inside the
office when Pineda entered the building and walked into
the dispatch office past him. Gabriel asked if he could do
something for Pineda ; the latter asked to be placed on
the out-of-work list . Gabriel asked him for his out-of-
work card ; Pineda did not have one and asked Gabriel to
prepare one . The latter began doing so, and "he asked
me where my queer father was at and if he was there to
take care of me and was I going to be hiding from him
behind my dad again. . . . I asked him where did he get
off saying that my father was queer and . . . did he have
to hide behind his wife's skirts for his wife to threaten.
He said he didn't have to hide behind his wife's
skirts."as Gabriel arose and moved closer to Pineda.
Suddenly, Pineda drew his right arm back and struck
Gabriel with his right hand on the former's cheek.
Pineda drew his left arm back as if to strike again, but "I
pushed him off me with my left and hit him with a right,
and he fell to the ground . . . . He was trying to kick me,
and I was just standing over him telling him, 'Well,
that's it . No more . Just stay away ."' Leon turned and
walked back into the dispatch office with Pineda yelling
after him, did he want more . Pineda arose, walked into
the dispatch office, and "he asked me again if I wanted
some more." During cross-examination , Gabriel changed
his testimony regarding the fight , agreeing that he actual-
ly kneed Pineda in the stomach but not "till he hit me."
Gabriel used his knees to "keep [Pineda] off of me,
pushed him down to the ground ." After the knee to the
stomach, "He fell on his back."
Michael Leon essentially corroborated his brother's
version of what occurred. Thus, according to him, while
Gabriel was making out an out-of-work card for Pineda
that morning, the latter asked, "Where is your corrupt
father?" There was no response , and Pineda asked if Ga-
briel was continuing to hide behind him . Gabriel retort-
ed, asking if Pineda would continue to hide behind his
wife's skirts . Thereupon, the two began arguing in low
voices, cursing and threatening each other . Suddenly,
Pineda punched Gabriel in the face . Before Pineda could
throw a second punch , Gabriel "grabbed Jose Luis Pine-
da's shoulder , pushed him back and kneed him once in
the stomach . While [Gabriel] was pushing him back,
[Gabriel] hit him in the chest , and Jose Luis Pineda fell
to his back ." Contrary to his brother, who stated that,
after knocking Pineda down , he turned and walked into
the dispatch office, Michael stated that he grabbed Ga-
briel and dragged him back into the dispatch office.
come closer, and Joe Leon, in turn, taunted Jose Pineda not to hide
behind his wife 's skirts . Then , Gabriel and Martinez moved close to her
husband ; "then Gabriel started to say a lot of things to my husband."
Pineda answered back . Both men used curse words. Steve Martinez
began cursing at both Pinedas , and he said "he was going to get my hus-
band to one side.... And I told him not to get into it."
The confrontation ended as the Leons and Martinez went inside.
Teresa Pineda denied owning or having a gun with her that night
63 Jose Pineda admitted that , dung the fight, he accused Leon of
backing down and running off a year before. Further , Pmeda admitted
believing such was the case.
Paragraph 7(d) of the second consolidated amended
complaint concerns an incident which allegedly occurred
on March 17 , 1986, in the front lobby of Respondent's
facility . On this day, according to Ruben Vivanco, Art
Cervantes asked Vivanco to accompany him while he
(Cervantes) paid his monthly union dues . Both Michael
Leon and Joe Leon were at the dues window , with Vi-
vanco behind him . Cervantes attempted to hand his pay-
ment to the secretary , but Joe Leon "said not . . . to
accept it . That to have [Michael] accept it ." A moment
later, "Joe Leon opened the door and then came to me
and pushed . . . against my body." During cross-exami-
nation, Vivanco stated that Leon said nothing ("He just
pushed me . . . with his shoulder "); that the contact was
in his right shoulder area ; that it was the same sort of
bump done in February by Gabriel Leon ; that Joe Leon
"went in front of me"; and that there was enough room
for Joe Leon to pass by without striking him. Cervantes
corroborated that Leon "pushed Ruben Vivanco .. .
with his shoulder"; however, he admitted having his
back turned at the time. He stated that he was aware of
the contact, for "he managed to push me also." Cervan-
tes claims that he avoided being struck by moving to one
side . During cross-examination, Cervantes stated that he
did not actually see what happened but that "I heard the
sound when [Leon] pushed him.... And I felt the man-
euverings that they did to do that ." He added that when
he did turn around , Vivanco "was still moving from
being pushed ." Cervantes admitted stating on "assump-
tion" in his pretrial affidavit that Leon hit Vivanco with
his shoulder , for Joe Leon has a habit of engaging in this
type of conduct ("That's why I don 't come near him.").
Joe Leon specifically denied having engaged in the al-
leged conduct or that the incident ever occurred-64
Paragraph 7(g) of the second consolidated amended
complaint, as added at the hearing, concerns an incident
in Respondent's parking lot which occurred in March
1986. What is significant about this is that the testimony
of the asserted victim , Jose Rodriguez , is at variance
with all the other witnesses, including that of the Gener-
al Counsel . Rodriguez testified that, when he arrived at
the Pomona facility that morning, he observed Eddie
Garcia standing by a truck, in which magazines were
piled in the back , and reading . Rodriguez joined him
and, while doing so, observed the three Leons walk out-
side from the building to the parking lot . The Leons
walked toward them , and Rodriguez heard Joe Leon say
to Gabriel , "'Don't back up your word from these son of
a bitches....' When you insult them , insult them. Don't
feel sorry about it ." Apparently following his father's
advice, Gabriel Leon began calling Garcia a "child mo-
lester." According to Rodriguez , he did not want to
become involved and decided to leave. He walked to his
car, got in, and started the engine . As he did so, Joe
Leon yelled "that he was going to get me," and the
three Leons and Paul Perez moved in front of Rodri-
guez' car . Gabriel then threatened "that he was going to
do what he did to Jose Luis Pineda, that he was going to
64 Joe Leon asserted that Cervantes is always trying to bump into him
and that such has occurred 8 to 10 times "whenever there was an oppor-
tunity that I walk close by him "
LABORERS LOCAL 806 957
get rid of the few teeth that I still had." Joe Leon, at
that point , reached inside the vehicle "and threw me a
strike on the face" with his right hand . Rodriguez
averred that no one overheard what was said as "they
told it to me on a low voice ." Eddie Garcia recalled that
he and Rodriguez were reading "cardiology" magazines
by a pickup truck when Joe Leon approached and asked
what he was reading . By this time, Rodriguez was in his
car, preparing to leave the parking lot. Leon left Garcia,
walked over to Rodriguez ' car and began speaking in a
voice too low for Garcia to hear . Garcia testified that
the car was "right in front of the ramp going out of the
union hall" and that he could not hear but observed "the
window going up and down on Jose Rodriguez ' car and
one time I saw Joe Leon stick . . . his right hand into
the [driver 's side] window ." Then , Rodriguez drove off.
During cross-examination , Garcia admitted seeing no
contact and not mentioning the incident in any subse-
quent NLRB affidavit.
Respondent 's witnesses, Joe Leon and Steve Martinez,
confirmed that an incident did occur that morning. Ac-
cording to Joe Leon , he first observed Rodriguez stand-
ing near a pickup truck and "looking at some books."
Rodriguez started walking toward his car, spotted Leon
standing near the building side entrance , and yelled "I'm
leaving now, you idiot ." Leon did not reply, and Rodri-
guez got into and started his car. He manuevered it close
to Leon , rolled the driver 's side window down , and said,
"What are you looking at, dog?" Leon responded that he
was looking at him , and Rodriguez said , "Well, well, I
am here." Then , he rolled the window up, drove for-
ward a short distance , stopped the car, rolled the
window down , and yelled at Leon "You pig, you dog,
stupid ." Leon walked toward Rodriguez ' car, and, as he
did so, Rodriguez rolled up the window and began
moving toward the entrance to the parking lot. As he
did so, Leon shouted at him, "to get the hell out of
there . I waved with my hand ." Leon denied striking Ro-
driguez or doing anything to provoke the incident. He
does, however, admit staring at Rodriguez as the latter
looked at the books by the pickup truck . During cross-
examination , Leon said that Rodriguez drove by him in
the normal course of leaving and that Rodriguez first
told him to go back inside "stupid ," to which Leon re-
plied , "go screw your mother ." He added that there was
cursing back and forth , and "he would call me a name,
and then . . . I'd call him a name . . . . He was just will-
ing . . . and call me something . Then I'd call him some-
thing, and then he would go forward, and then I would
yell something , and he would yell somethng at me
back." While they spoke back and forth , Rodriguez
moved his car toward the exit, and Leon walked after it.
Leon concluded , stating he never came closer than
"within probably about three feet" of Rodriguez ' car.65
C. Legal Analysis
There exists no dispute as to the applicable legal prin-
ciples herein . Thus, as the Supreme Court has ruled that,
in its capacity as an exclusive bargaining representative,
a labor organization , such as Respondent , has a "statuto-
ry duty" to "fairly" represent all employees in a bargain-
ing unit and that such "includes a statutory obligation to
serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with
complete good faith and honesty , and to avoid arbitrary
conduct ." Vaca v. Sipes, 386 U.S. 171, 177 (1967). Like-
wise, the Board has long held that Section 7 of the Act
"gives employees the right to be free from unfair or ir-
relevant or invidious treatment by their exclusive bar-
gaining agent ." Miranda Fuel Co., 140 NLRB 181, 185
(1962). In this regard , a labor organization engages in
conduct violative of Section 8(b)(1)(A) of the Act when
it coerces or restrains employees in the exercise of their
rights which are guaranteed by the aforementioned Sec-
tion 7. Electrical Workers Local 453 (National Electrical
Contractors Assn.), 258 NLRB 1427 (1981). Among the
rights, which are guaranteed by the latter section of the
Act to employee-members vis -a-vis their representative
labor organizations , is the "privilege to protest and to
question the wisdom of their bargaining representative
and to persuade others or take such steps as they deem
necessary to align their union with their position" and
such so-called dissident activities have long been so held
by the Board . East Texas Motor Freight, 262 NLRB 868
(1982); Teamsters Local 745 (Transcon Lines), 240 NLRB
537 (1979); Roadway Express, 108 NLRB 874, 875 at fn. 3
(1954). Of course, a labor organization violates Section
8(b)(1)(A) of the Act if it interferes with said statutory
privilege . East Texas Motor Freight, supra; Teamsters
Local 745, supra; Roadway Express, supra . Analysis of the
numerous Board decisions , cited by counsel for the Gen-
eral Counsel and by counsel for Respondent, which in-
volve alleged labor organization unlawful interference
with dissident activities , discloses that, as herein, the
common defense to the assertedly unlawful conduct is
that such was motivated by personal animosity or was
the result of an emotional reaction to some sort of prov-
ocation rather than being intimately related to the privi-
leged dissident activities. In Teamsters Local 729 (Penn-
truck Co.), 189 NLRB 696 (1971), the Board grappled
with similar conduct to what is involved herein and con-
sidered whether the agent of the respondent labor orga-
nization was "primarily motivated" by personal resent-
ment or by the dissidents' protected concerted activities.
Id. at 697. The Board utilized such a "test" in analyzing
the peculiar facts of that case , and such shall, likewise,
be my guide in considering whether Respondent acted
unlawfully in these circumstances.
65 Steve Martinez testified that he was in the parking lot that morning
and witnessed what occurred . His account corroborates that of Joe Leon
As to what occurred after Rodriguez got into his car and drove by Leon,
Martinez stated that "Mr. Rodriguez told Mr Leon-'I'm going, you son
of a bitch ' and . . Mr . Leon looked at him and said, Well go on' And
. Rodriguez kept saying , 'Fuck you-Fuck you,' and . . Mr Leon
walked to the car and Mr. Rodriguez would raise up the window .. .
take off two feet , stop , put the window down , yell at Joe-same things-
Joe would walk up there , he'd roll up the window-he did that three or
four times . . Finally [Leon ] just looked at him and said, 'Get the hell
out of there you son of a bitch ' And Rodriguez left." Martinez denied
that Leon reached inside the car and hit Rodriguez. During cross -exami-
nation, Martinez admitted that Leon , at one point , came as close as 6 to
10 inches from Rodriguez ' window and that they were whispering ("1
don't know what they were whispering about.").
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Initially, the record is clear that certain employee-
members of Respondent have engaged in internal politi-
cal and continuing dissident activities since, at least, June
1983. These individuals-Eddie Garcia, Ruben Vivanco,
Art Cervantes, Jose Rodriguez, Jesus Nunez, Jose
Pineda, Jose Vivanco, and others-opposed the policies
of Respondent's officers , the Leon family, and engaged
in an election campaign and a subsequent campaign of
protest and attempted persuasion of other employee-
members of Respondent . Their tactics have included
continuous picketing (initially at Respondent 's Pomona
facility and subsequently at the Los Angeles building in
which the International maintains an office ), the filing of
unfair labor practice charges with the Board , letters to
employers with whom Respondent has collective-bar-
gaining agreements , and complaints to the International's
president . There can be no doubt, based upon the above-
cited Board principles , that the foregoing activities were
privileged under Section 7 of the Act. Boilermakers Local
686 (Boiler Tube Co.), 267 NLRB 1056 (1983); East Texas
Motor Freight, supra . Counsel for Respondent concedes
that the dissidents may have had legitimate complaints at
the outset but contends that, over the years , what at one
time may have been protected conduct has degenerated
into a personal hostility toward the Leons , characterized
by vulgarities , insults, and slurs, an antagonism which
"has nothing to do with the exercise of members' rights
to voice complaints ." While it is certainly true that dissi-
dents have engaged in personal and, at times , vitriolic at-
tacks on Joe Leon, Gabriel Leon, and Michael Leon, I
believe that such were , and are, intimately related to the
focus of the dissident activities , Respondent 's leadership,
which is personalized in the Leon family and intertwined
with them so as not to "warrant removal of the Act's
protection ." Boilermakers Local 686, supra at 1057. In
this regard , while Joe Leon asserted that dissidents had
no right to attack his family , the fact is that his sons hold
both appointed and elected management positions in Re-
spondent and that, along with their father, they are in-
volved in establishing , coordinating , and implementing
policy.
As to Respondent's attitude , in general , and that of its
agents', the Leons, in particular , toward the dissidents,
the record warrants the conclusion which I reach, that
such was, and is, to an important degree, influenced by
the dissidents ' activities . Thus, the Leons had a signifi-
cant role in shaping the clearly hostile attitude of the
membership , as a whole, toward the protesters. It was
uncontroverted that, at a monthly membership meeting
on October 16, 1985, Joe Leon attacked the dissidents'
filing of unfair labor practice charges and their picketing
and implored nonprotesters "to fight for their rights."
Further, Michael Leon admitted having assisted in the
drafting of a general membership letter, in which non-
protesters were urged to inform the dissidents of their
feelings . One can only speculate as to the effect of such
exhortations (counsel for Respondent claims that the
intent of the letter was to promote a peaceful dialogue
between the groups); however, a fight between the fac-
tions, at the conclusion of the International's investiga-
tion of the internal complaints, was only narrowly avert-
ed. The antipathy of the leadership of Respondent
toward the dissidents ' activities seems to be exemplified
by Steve Martinez , Respondent's auditor and a member
of its executive board . 66 He expressed utter disdain for
dissidents Rodriguez and Cervantes , terming them "a
bunch of assholes," and ridiculed the picketing as being
without focus, humiliating to Respondent 's members, and
representing no more than "crying" and "complaining"
by the dissidents . Finally, as to the Leons themselves,
one may sympathize with them for having been subject-
ed to the abuse directed against them by the dissidents.
However, while perhaps "nettlesome" to them, such
conduct is-and has been-clearly protected and does
not justify counterattack . Boilermakers Local 686, supra.
There is also no doubt in my mind that Joe Leon has, in
general, felt nothing but contempt for those who have
opposed his policies, at least, since the bitter 1983 elec-
tion campaign . This is seen from his attitude at the 1983
Los Angeles County Fair, at which he cursed and threat-
ened retaliation at his opposition (in this regard, the
credibility reasons for which I shall discuss infra, I rely
upon the testimony of Ruben Vivanco over that of
Leon). Further, Leon expressed the view that neither
Rodriguez nor Eddie Garcia possessed the right to criti-
cize him as a union officer , an admission I credit over his
subsequent attempted disavowal . Also, Steve Martinez
characterized Joe Leon as being "upset" at the picketing
during the award dinner for the latter in 1985 . Accord-
ingly, I place no credence upon Michael Leon's assertion
that the antagonism between the Leons and the dissidents
were merely personal and not, at all, influenced or af-
fected by their protected activities, mainly the picketing.
Bearing in mind the foregoing and turning to the al-
leged instances of unlawful conduct by Respondent's
agents, the Leons, I first consider the August 13, 1984
confrontation between Ruben Vivanco and Gabriel
Leon67 on the sidewalk in front of Respondent's
Pomona facility . The main issue involves the occurrence
of physical contact between them, with Vivanco and
Jesus Nunez testifying that Leon pushed Vivanco with
his stomach and Leon, his brother Michael , and Steve
Martinez denying such contact. I earlier concluded, and
I reiterate, that most, if not all, of the witnesses herein
demonstrated capacities for fabricating , wholly or in
66 Although not alleged as such in the second consolidated amended
complaint , Martinez clearly is considered an agent of Respondent by dint
of his positions Electrical Workers Local 453, supra at 1428.
67 An important issue in these matters includes Gabriel Leon , specifi-
cally how he should be viewed . Thus, Respondent 's witnesses describe
him as reacting to provocation and not as instigating confrontation. On
the other hand , the Charging Party's witnesses portray Leon as hothead-
ed, as one who seeks out confrontation and instigates it, and as one who
exhibited particular vengeance toward the protesters. Having viewed
Leon 's demeanor, while testifying, and studied the record as a whole, I
am convinced that the latter view of Leon , as an instigator of confronta-
tion, is correct. In this regard , I am particularly mindful that Leon went
out of his way, while driving in Los Angeles , to pass by the picketing at
520 South Virgil . Both he and his brother admitted that they could view
the picketing from either Fifth Street or Sixth Street and that turning
onto Virgil was unnecessary. Further , Michael Leon admitted that, on
past occasions , as they drove past the picketing , the dissidents noticed
them and reacted to their presence . While clearly not an unfair labor
practice to do so , Gabriel Leon's practice of driving the brown Bronco
is, nevertheless , demonstrative of a proclivity to provoke the protesters. I
cannot, and do not , accept any other explanation
LABORERS LOCAL 806 959
part , their respective testimonies in order to bolster the
positions of the parties . Thus, while Vivanco testified in
a credible manner and exhibited the demeanor of a
straightforward witness, certain aspects of his testimony,
when viewed in conjunction with the testimony of others
and documentary evidence , appear to have been fabricat-
ed. Likewise , Jesus Nunez testified in a candid manner;
however, the contradictory nature of his testimony as to
whether Gabriel Leon punched Vivanco or pushed him
with his stomach caused me to question his credibility.
However, weighing the credibility of both against that of
the Leon brothers and Steve Martinez has convinced me
that Vivanco and Nunez truthfully testified as to what
occurred . Thus, Martinez failed to impress me as being
either a candid or straightforward witness and as exem-
plified by his comments regarding the dissidents ' picket-
ing, demonstrated a bias against the dissidents . He shall
be credited only upon matters about which he gave un-
controverted testimony . Likewise , Gabriel Leon's testi-
monial demeanor was that of a most unconvincing and
mendacious witness, and his accounts of events shall be
relied upon only when uncontroverted or when in con-
flict with inherently less reliable testimony . While Mi-
chael Leon seemed to be testifying in a somewhat
straightforward manner, I perceived him of being a skill-
ful, but disingenuous , witness, one who deliberately tai-
lored his testimony to fit the accounts of others. There-
fore, he shall be credited only to the same extent as his
brother Gabriel. In these circumstances, I rely upon the
more trustworthy-at least as to this incident-testimony
of Vivanco, as corroborated by Nunez, in finding what
occurred during the August 13 , 1984 confrontation be-
tween Vivanco and Gabriel Leon-believing that, as
seems to be his unfortunate wont, the latter deliberately
provoked the incident. Thus, I conclude that Leon spot-
ted Vivanco and Nunez on the sidewalk in front of the
Pomona facility, cursed at them, walked over to Vivanco
and pushed him with his stomach, and invited Vivanco
to hit him. I further conclude that Vivanco neither said
anything or acted in a manner which may have caused
or incited Gabriel Leon to engage in said conduct. More-
over, that what Leon did was related to Vivanco's dissi-
dent activities seems clear as, after pushing the latter,
Gabriel said that he (Vivanco) had been picketing for
nearly a year "without doing anything." While the
second consolidated amended complaint perhaps vaguely
characterizes Leon's conduct as "challeng [ing] employee-
members to fight," there can be no doubt that such con-
stituted coercion of an employee -member who was exer-
cising his Section 7 right to engage in dissident activities
and was, therefore , violative of Section 8(a)(1)(A) of the
Act.68
The remaining coercive challenge to fight or bumping
allegations are the February 3, 1986 roll call line and the
March 17, 1986 front lobby incidents. With regard to the
former, Ruben Vivanco, his brother Jose, and Art Cer-
vantes69 each testified that Gabriel Leon deliberately
bumped into Ruben as the former walked past him that
morning. Their accounts are, however, contradictory in
numerous aspects . Thus, Ruben Vivanco testified that he
stood behind the others in the roll call line; that Gabriel
Leon bumped into him as he (Ruben ) was standing at the
dispatch window , handing his union card to Joe Leon;
and that Gabriel Leon laughed at him immediatley after
the contact . In contrast , Jose Vivanco stated that the
three stood together with Ruben first in line, then him-
self, and Cervantes behind; that Gabriel struck his broth-
er as Ruben stood off to the side after signing his name
to the roll call book; and that he did not hear Gabriel
utter a sound after the contact . Finally , Cervantes initial-
ly stated that the Vivanco brothers were ahead of him in
the line but later said that Ruben signed the book first,
then himself, and Jose Vivanco last . Moreover, he did
not corroborate Ruben Vivanco that Gabriel laughed
after pushing the former. Casting further doubt upon the
veracity of these witnesses ' account is Respondent's Ex-
hibit 5, a roll call book page dated February 3, 1986,
which places the three dissidents separated from each
other in the roll call line that morning (Ruben Vivanco's
name appears first; Cervantes' signature is five names
below that of Ruben ; and Jose Vivanco's signature is
two names beneath that of Cervantes ). In the above cir-
cumstances, given the dubious value of the above-de-
scribed testimony and my belief that the three dissi-
dents-and others-impressed me as witnesses , who, on
occasion , fabricated testimony to support their cause,
and, notwithstanding that Gabriel Leon demonstrated
unmistakable hostility toward the dissidents , because of
their activities in support of their movement , and a pro-
clivity for instigating confrontation , I do not believe
their respective accounts of this alleged incident and rely
on Gabriel Leon' s denial that it ever occurred. Accord-
ingly, I shall recommend that paragraph 7(b) of the
second consolidated amended complaint be dismissed.
As to the March 17, 1986 incident , Ruben Vivanco al-
leged that Jose Leon , in the same manner as his son
above, deliberately bumped into him while he (Vivanco)
waited in the front lobby of Respondent 's facility as Art
Cervantes paid his monthly dues. Vivanco stated that the
bump occurred as Leon came out of the office and
walked past him. During direct examination , Cervantes
corroborated Vivanco that Leon had, indeed, pushed
Ruben with his shoulder, but later stated that his back
had been turned during the incident and admitted , during
cross-examination , that he overheard the sound of what
he took to be a push . Cervantes further admitted specify-
ing in a pretrial affidavit that Joe Leon struck Vivanco
with a shoulder , averring that he based this "assumption"
on Leon 's past practice of such contact . The foregoing
convinces me that Cervantes was a most unreliable wit-
ness as to this incident and that, in order to ascertain the
truth , I must weigh the testimony of Vivanco against
that of Joe Leon, who denied the occurrence of any
68 By inviting Vivanco to strike him, Leon may very well have meant
his act as a challenge to Vivanco to engage in a fight. In the circum- 69 Art Cervantes and Jose Vivanco impressed me as being generally
stances of this case, given Gabriel Leon's propensity to instigate confron- straightforward and honest witnesses Nevertheless, as did other wit-
tation with unwilling dissidents , his conduct must be considered as noth- nesses herein , each also left me with the impression that he fabricated
ing less than coercive. certain portions of his testimony in order to support his cause
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such bumping episode . I have previously discussed what
I perceived as the credible demeanor of Vivanco. In con-
trast, Joe Leon impressed me as being an utterly uncon-
vincing and forsworn witness, one lacking in candor and
not worthy of belief. Accordingly, I do not believe his
testimony70 in this instance and, therefore , credit the
more reliable testimony of Ruben Vivanco as to what
occurred that day. Concerning the legal consequences of
Leon 's conduct , while undoubtedly not arising to a
"challenge to fight" and , at first glimpse, appearing to be
trivial and of slight significance, the bumping of Vi-
vanco, nevertheless , constituted a deliberate-and unpro-
voked-act perpetrated against a dissident employee-
member by an admitted agent of Respondent who, I be-
lieve, was openly antagonistic toward the dissident ac-
tivities herein . "Consequently , the test of [Joe Leon's]
conduct-irrespective of subjective intent , provocation,
or actual effect-is whether it reasonably tended to
coerce [Vivanco] in the exercise of his Section 7 rights."
Boilermakers Local 68, supra . On these facts , given the
lack of provocation , I find that an "unmistakable nexus"
between what occurred and Vivanco's protected con-
certed activities exist and that Leon 's conduct reasonably
tended to coerce Vivanco in violation of Section
8(b)(1)(A) of the Act.
Turning next to the second consolidated amended
complaint allegations , regarding threats to dissidents
based upon their involvement in such activities , I initially
consider Joe Leon's asserted May 6 , 1985 threat to Art
Cervantes uttered outside Respondent 's Pomona facility
and witnessed by Cervantes, Ruben Vivanco , and Jose
Rodriguez . 71 Just 3 days after Viviano Perez attacked
Rodriguez in the parking lot, punching the latter three or
four times in the head and causing damage to Rodriguez'
eyes, Joe Leon allegedly approached Rodriguez and Cer-
vantes, asked the former how he liked how Leon had
"made" his eyes, turned to Cervantes , and warned that
he would be "the next one." Joe Leon denied uttering
any such warning . At the outset , inasmuch as both Ro-
driguez and Cervantes asserted that no other dissident
was nearby or in a position to overhear what Leon said,
I do not rely upon the otherwise corroborative testimony
of Ruben Vivanco, who failed to mention the incident in
a subsequent NLRB affidavit , as to this incident. With
regard to Rodriguez, given the damage inflicted upon
him by Viviano Perez and Joe Leon's rather blatant ac-
ceptance of responsibility for the attack , along with the
warning to Cervantes , I fail to see how a truly forthright
and honest witness could have forgotten or, to put it
charitably , neglected to mention what Leon said in
Board affidavits , which were given just 2 and 13 days,
respectively, after the alleged occurrence . Surely, Rodri-
guez' memory would have been fresher at that point
70 As with the testimony of his sons , I shall not credit Joe Leon's testi-
mony at any point herein except when in conflict with inherently unreli-
able testimony . For this reason , I do not believe Leon 's version of what
he said at the 1983 Los Angeles County Fair and have relied on the more
believable account of Vivanco.
71 I was less impressed with the testimonial demeanor of Rodriguez
than with the demeanor of other dissident employee -members of Re-
spondent, who testified . I have weighed his testimony and shall credit it
only where inherently more reliable than other tesimony.
than 14 months later at the instant hearing . Accordingly,
I am convinced that no references to Leon 's May 6, 1985
comments were included in those documents because
Rodriguez did not hear them and, therefore , his trial tes-
timony, that he did hear Leon utter his alleged com-
ments, must have been fabricated-and I so find. There
are two viable alternative theories vis-a-vis the validity
of Cervantes ' testimony-such was truthful and he subse-
quently related the facts to Rodriguez and Vivanco or
the three together fabricated the occurrence . As Cervan-
tes placed Rodriguez at the scene of the event, thereby
falsely corroborating the latter 's presence , I believe it
more likely that the testimony of Cervantes is as patently
incredible as that of Rodriguez and Vivanco. Therefore,
as the testimonies of the three dissidents are inherently
unreliable , noting the denial of Joe Leon, I find that he
did not utter the alleged May 6 , 1986 threat . According-
ly, I shall recommend that paragraph 6(j) of the second
consolidated amended complaint be dismissed.
Two days later, on May 8, 1985 , according to Jose
Rodriguez, in Respondent 's parking lot, Viviano Perez,
in the presence of Joe Leon , after Rodriguez responded
to Perez that the law would tell the latter if Rodriguez
took him to court over Perez' punching attack upon the
former 5 days earlier , warned that he had the law in his
hands and made a menacing gesture, raising and clench-
ing his fists . Leon denied the incident . As between Ro-
driguez and Leon , while neither exhibited the demeanor
of a candid witness , I found the former to be the more
credible and , relying upon Rodriguez ' account, uncon-
troverted by Perez, find that the incident occurred as de-
scribed . Further, in the circumstances of Perez' earlier
attack , there can be no doubt that Perez' conduct consti-
tuted a threat of further violence if Rodriguez pursued
the matter in court . Moreover , it may be argued that, by
doing nothing to restrain Perez or to reprimand him for
such conduct, Joe Leon condoned and ratified the threat.
Nevertheless, I do not believe that Leon thereby en-
gaged in conduct violative of the Act. Thus, as will be
explored infra, animosity between Perez and Rodriguez
existed from the latter 's published accusation that "some-
one"-an understood reference to Perez-had been ar-
rested for carrying a concealed weapon at the 1984 Los
Angeles County Fair, and Perez ' attack upon Rodriguez
immediately after the former became aware of what he
considered to be a false accusation . There is no evidence
that Perez' intemperate conduct was in aid of or related
to Rodriguez ' protected concerted activities; rather, it
seems to have been entirely personally motivated. In
these circumstances , and in the absence of a "nexus" to
Rodriguez ' protected concerted activities, I find that
Leon 's failure to disavow Perez ' conduct was not viola-
tive of Section 8(b)(1)(A) of the Act and shall recom-
mend dismissal of paragraph 6(k) of the second consoli-
dated amended complaint.
Another allegedly unlawful threat was uttered by Joe
Leon on September 17, 1985 . According to Jose Vi-
vanco, while inside the temporary office trailer , the door
to which had been closed by his sons, Joe Leon referred
to Eddie Garcia, Jesus Nujez and Vivanco and said "by
the law of my balls, you won't work." Vivanco further
LABORERS LOCAL 806
alleged that Leon repeated the comment later in Re-
spondent 's parking lot, pointing at the three dissidents
and saying "they will not get a job." Joe Leon and his
sons denied the occurrence of such an incident, with the
former denying having said what was attributed to him.
As between Jose Vivanco and Joe Leon, Vivanco im-
pressed me as being a generally straightforward and
candid witness , and I credit him over Leon, whose lack
of candor equally impressed me. Accordingly, I find that
Leon uttered the above-attributed threat to withhold
jobs from Garcia, Nunez, and Vivanco. I further believe
that said threat was directly related to their dissident ac-
tivities . Thus, just 3 days earlier, the dissidents had upset
Leon by their picketing at his labor leader of the year
award dinner and, as has been pointed out, Leon's atti-
tude toward the dissidents and their activities was always
one of contempt . The record warrants the conclusion of
the existence of a nexus between the threat and the em-
ployee-members' protected concerted activities, and
Leon's threat is found violative of Section 8(b)(1)(A) of
the Act. Teamsters Local 705 (Associated Transport), 209
NLRB 292 (1974).
Next, the General Counsel alleges that Gabriel Leon
and Michael Leon uttered unlawful threats during their
confrontation with the dissidents outside the building, lo-
cated at 520 South Virgil Avenue in Los Angeles, in
which the International maintains a Southern California
office, in January 1986 . Sifting through the enormous
morass of conflicting and inconsistent testimony as to
what occurred on that day, all that the General Counsel
contends was unlawful were threats "to the effect that
[Gabriel Leon] would get A . Cervantes ." At the outside,
I am convinced , based upon the record as a whole, that
Gabriel Leon, with his brother as the perhaps unwilling
passenger , drove by the picket line that morning either
intent upon provoking a confrontation or with the cer-
tain knowledge , bsaed upon past experience, that one
would result from him driving past slowly enough to be
observed . In any event , three witnesses , presented by the
General Counsel , testified to the above , or similar lan-
guage; however, two depict the other as not being
present at the time of the alleged threat but rather at an-
other confrontation with the Leon brothers . Thus, Art
Cervantes and his wife Socorro7 2 testified that Gabriel
Leon drove his brown Bronco into one of the building
driveways, got out of the vehicle , and initiated a verbal
confrontation with Art Cervantes. According to the
latter, after he asked Gabriel why was he mistreating the
dissidents, Leon said "When we go to the Union, he was
gonna fuck us up ." Socorro Cervantes stated that, in the
midst of a verbal harangue , Gabriel said "You have now
been here for two years , and you haven 't done anything.
I have money to fuck you over. . . . I'm going to
fuck you over . You and that ass . . . Jose Vivanco."
Meril Smith , an official of the Carpenters Southern Cali-
fornia Administrative Corporation and an individual not
involved herein other than as a witness, testified73 that
72 Socorro Cervantes appeared to be an honest and forthright witness,
one who honestly testified as to her recollection of events.
73 Notwithstanding his status as a neutral witness herein , I was not
overly impressed with the testimonial demeanor of Menl Smith. I have
not relied on his testimony
961
one of the men in the Bronco yelled to the pickets "and
we're going to get you." No other witness, on behalf of
the General Counsel , testified to such a threat . Both Ga-
briel and Michael Leon denied uttering any threats that
day and asserted that Art Cervantes and his wife initiat-
ed any cursing or obscene gesturing that may have oc-
curred . Both Art and Socorro Cervantes impressed me
as generally honest and forthright witnesses . In contrast
each of the Leon brothers impressed me as being a disin-
genous witness, testifying in a manner to support Re-
spondent 's defense . Accordingly , I credit the Cervantes'
testimony that the Leon brothers drove up to the scene
of the picketing that morning, that Gabriel Leon , exhibit-
ing his usual style , initiated a confrontation , and that he,
indeed , uttered the threat which was attributed to him.
There can be no doubt, given his attitude toward the dis-
sidents and the record as a whole, that his threats,
which , I believe, were threats of potential bodily harm,
were directly related to the dissidents ' activities and,
hence, violative of Section 8(b)(1)(A) of the Act, and I
so conclude. Iron Workers Local 601 (Papco, Inc.), 276
NLRB 1273 ( 1985); Boilermakers Local 686, supra.
With respect to the March 1986 confrontation in Re-
spondent 's parking lot involving Jose Rodriguez, I note
that the witnesses , who testified on behalf of the General
Counsel , are contradictory as to who was involved and
what occurred . Thus, Rodriguez testified that Joe Leon,
Gabriel Leon, and Paul Perez were involved, that Gabri-
el Leon threatened "he was going to do what he did to
Jose Luis Pienda," that Paul Perez stood in front of his
car, and that Joe reached inside Rodriguez' car and Leon
"threw me a strike on the face" with his right hand. In
contrast , Eddie Garcia74 testified that only Joe Leon and
Rodriguez were involved, that Rodriguez was inside his
car and Leon beside it, and that, although Leon placed
his hand inside the vehicle, he (Garcia) saw no physical
contact. Both Joe Leon and Steve Martinez admitted
that a verbal exchange between the former and Rodri-
guez occurred , with Rodriguez in his car and Leon
walking beside, but denied any physical contact. Inas-
much as Rodriguez ' testimony bears little semblance to
the reality of the episode, I cannot credit him as to it.
His testimony contradicts that of Garcia and involves in-
dividuals that no other witness places on the scene. Fur-
ther, as his incredible account includes Joe Leon striking
him through the open car window and Eddie Garcia
corroborated him to the extent that Leon allegedly
reached into the car , I do not credit Garcia in that
regard. Also, the fact that Garcia never bothered to
relate this incident in an NLRB affidavit convinces me
that what he witnessed was the version of events as ad-
mitted by Respondent 's witnesses, a mere verbal con-
frontation, which Garcia knew , was not unlawful, and
that the part having to do with Leon reaching into the
car was fabricated, an afterthought in order to establish a
violation of the Act. Accordingly, I do not find that
74 Garcia, as did other witnesses , impressed me as being a basically
honest and forthright witness. However, he did appear to be evasive on
some points and not forthcoming on others . Accordingly , I shall credit
him in general but will not credit him when in conflict with more credi-
ble testimony.
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
either Gabriel Leon threatened Rodriguez with violence
or Joe Leon struck him in the face and shall recommend
that paragraph 7(g) be dismissed and no violation of Sec-
tion 8(b)(1)(A) found.
Turning now to the three instances of allegedly unlaw-
ful physical beatings herein, I shall initially consider the
May 3, 1986 attack upon Joe Rodriguez in Respondent's
parking lot. At the outset, it was uncontroverted that Vi-
viano Perez confronted Rodriguez that morning, asked if
he had written the letter to the International 's president
in which someone was accused of carrying a concealed
weapon while working at the most recent Los Angeles
County Fair, told Rodriguez that he had been exonerat-
ed of such charges, and proceeded to punch Rodriguez
three or four times in the head . Further, Michael Leon
did not deny being present in the parking lot that morn-
ing and , while he denied being present at the time of the
attack , Joe Leon admitted arriving at Respondent 's facili-
ty shortly thereafter and being made aware of what oc-
curred . Moreover, there is no dispute that Perez was not,
at any time, an agent of Respondent , that neither Rodri-
guez nor any official or agent of Respondent filed inter-
nal union charges against Perez, or that Respondent nei-
ther disciplined nor censured Perez for his conduct not-
withstanding that what occurred was his second such
attack on a prominent member of the dissident faction.
In urging the finding of a violation of Section
8(b)(1)(A) of the Act, counsel for the General Counsel
asserts that Perez' physical attack upon Rodriguez was
related to the latter's dissident activities ; that Respondent
was aware of the conduct, and that Respondent "failed
to reprimand or prevent " Perez from engaging in similar,
future conduct . Therefore, citing East Texas Motor
Freight, supra at 871 , counsel further asserts that Re-
spondent thereby "condoned and ratified" Perez' actions
in violation of Section 8(b)(1)(A). Assuming arguendo
that Respondent was aware of Perez' attack and was,
indeed , derelict in failing to reprimand Perez or to pre-
vent him from engaging in like conduct in the future, the
central issue , in asserted instances of condonation, is the
relationship beween the conduct and Respondent 's antag-
onism toward the dissident 's protected concerted activi-
ties-did Perez act "clearly in aid of" Respondent's ef-
forts against said privileged Section 7 conduct. Cf.
Teamsters Local 5 (Union Tank Car Co.), 172 NLRB 137,
138 (1968). Put another way, there must be "an unmis-
takable nexus" between what Perez did and Respond-
ent's demonstrated aforementioned antagonism . Boiler-
makers Local 686, supra. I believe that such is lacking in
this factual context . Thus, everything that Viviano Perez
did and said that day establish that he was personally
motivated , over what he interpreted as a reference to
him in Rodriguez ' letter to the International president, in
attacking Rodriguez . According to the latter, Perez had
the letter in hand when he approached Rodriguez and,
before punching him, asked Rodriguez about it. Also
Eddie Garcia testified that Perez spoke to him later that
day, saying that Rodriguez' letter referred to him and
"That's why I beat up on Jose Rodriguez ." Moreover,
while counsel for the General Counsel argues that the
letter was an "excuse"75 inasmuch as it had been written
and publicized to Respondent 's membership 4 months
prior to the attack, Garcia testified that May 3, 1985
"may have been" the first time Perez became aware of
the letter . Also, in agreement with Respondent 's counsel,
if, indeed , the letter was a pretext , it would be more rea-
sonable to believe the attack would have occurred closer
in time to its publication . Finally, Garcia characterized
Perez as a hot-tempered individual , one who may very
well have acted as he did upon learning about what Ro-
driguez wrote . In these circumstances , I must conclude
that the necessary nexus between Perez' conduct and Re-
spondent 's antagonistic attitude toward Rodriguez' pro-
tected concerted dissident activities has not been estab-
lished , that Perez' attack was probably an emotional re-
sponse to a perceived libelous writing , and that, there-
fore, Respondent 's inaction was not violative of the
Act.76 Accordingly, I shall recommend dismissal of
paragraph 6(i) of the second consolidated amended com-
plaint.
With regard to the October 17 , 1985 attack upon
Eddie Garcia by Paul Perez in Respondent 's parking lot,
I believe that the same sort of considerations exist. With-
out recapitulating the testimony , there is no dispute that,
upon driving into the parking lot that morning, Eddie
Garcia remained seated in his car , reading his notes of
the membership meeting of the night before, with said
notes contained in a notebook ; that Ruben Vivanco and
Art Cervantes came over to the car and engaged Garcia
in conversation ; that Gabriel Leon , who had been stand-
ing with a group of members, including Paul Perez and
Steve Martinez, approached the car and began debating
Garcia about the membership meeting; that, after a few
minutes, Gabriel walked back to the group with whom
he had been previously standing; that Garcia exited his
car and walked toward a portable toilet, leaving the
notebook inside the car; that Paul Perez , who had no-
ticed Garcia reading from the notebook and was curious,
walked over to Garcia's car , reached inside , extracted
the notebook , and, while leaning against Garcia's car,
began reading Garcia's notes; that, upon leaving the
bathroom , Garcia observed Perez reading from his note-
book and walked hurriedly back to his car ; and that
Perez punched Garcia to the right side of the face. As to
the circumstances of the punch , there exists sharp dis-
agreement between the General Counsel's witnesses
(Garcia, Cervantes , and Vivanco) and those who testified
75 Counsel for the General Counsel speculates that Perez himself may
have been motivated by antagonism for the dissidents' activities He bases
this upon the November 1983 attack on Joe Romero and upon what he
alleges as Perez' specious rationale for such . However , while there exist-
ed no corroborative evidence to support Perez' stated reason for attack-
ing Romero , such does exist for my conclusions as to the Rodriguez inci-
dent , namely Perez ' admission to Eddie Garcia.
78 In finding a violation of Sec. 8 (b)(1)(A) of the Act, based upon the
Respondent Union 's failure to reprimand the perpetrator of the physical
attack and to take preventative action against future such conduct, in
East Texas Motor Freight , supra, the Board was able to clearly establish
that, in the instance of unlawful conduct, the attacker was attempting to
prevent the victim from engaging in dissident conduct at a general mem-
bership meeting and, thus , was unlawfully motivated . Such was not the
case in the other assertedly unlawful conduct in that matter , nor herein.
Id at 870.
LABORERS LOCAL 806 963
on behalf of Respondent (Leon, Martinez , and Paul
Perez). I have earlier stated that neither Steve Martinez
nor Gabriel Leon exhibited the demeanor of a truthful,
straightforward witness . Likewise, Paul Perez appeared
to be an arrogant and dishonest witness, one who was
not hesitant to fabricate testimony . As I found Garcia,
Cervantes, and Vivanco generally credible, I credit their
respective testimony as to what occurred over that of
Gabriel Leon , Martinez , and Perez . Accordingly, I find
that, upon coming up to Paul Perez , Garcia wrested the
notebook from him ; that Garcia thereupon placed the
notebook back inside his car; that , as Garcia turned to
face Perez, the latter punched him on the right side of
his face, saying "No son-of-a-bitch touches me , not even
the police"; and that the immediate reaction of those
members in the parking lot, including Gabriel Leon, was
mirth-everyone laughed . Finally, there is no dispute
that Paul Perez was not acting as Respondent 's agent at
the time, that neither Garcia nor any official of Respond-
ent filed internal union charges against Perez, and that
the latter was never disciplined or rebuked by Respond-
ent.
Counsel for the General Counsel argues that the fore-
going factual context establishes that Respondent acted
in violation of Section 8(b)(1)(A) of the Act, and, in sup-
port, he advances the same theory as set forth in the Vi-
viano Perez-Jose Rodriguez incident analysis : that Paul
Perez ' attack was directly related to Garcia 's dissident
activities ; that Respondent was aware of the conduct;
and that, by failing to reprimand Perez or to prevent
similar conduct in the future by him, Respondent con-
doned Perez ' actions in violation of the above section of
the Act . As involved in the earlier incident , the finding
of a violation is dependent upon the existence of a nexus
between what Paul Perez did and Respondent 's clear
animus toward the dissidents ' protected concerted activi-
ties . Once again , I believe, the record establishes that the
perpetrator 's conduct was an emotional reaction to a per-
ceived provocation and, if influenced by anything, was
motivated by personal animosity-in this instance, Paul
Perez' apparent aversion to being touched-and not un-
lawful considerations . As before , counsel for the General
Counsel hypothesizes the existence of the latter, asserting
that Paul Perez must have been influenced by Joe Leon's
urgings at the membership meeting, of the night before,
that his supporters should fight for their rights. Howev-
er, not only is such just supposition but also there exists
no evidence that Paul Perez attended the meeting. Ac-
cordingly , "in the absence of any action . . . based upon
unlawful considerations , no obligation is placed upon
... [Respondent ] to take actions in furtherance of em-
ployees' Section 7 rights." East Texas Motor Freight,
supra at 870.77 Therefore , I shall recommend that para-
77 Careful analysis of East Texas Motor Freight, supra, discloses that, in
fording a violation of Sec. 8(b)(l)(A) over a labor organization 's internal
conduct after one physical beating and not after another, the Board was
extremely careful to not violate "the congressional policy not to interfere
with the internal affairs of unions" and to balance that policy against the
Sec. 7 guarantee "to employees [to be able to ] question the wisdom of
their representative ." The delicate balance struck in cases , such as herein,
requires the existence of convincing evidence that the attacker is motivat-
ed by his victim 's protected concerted activities and not personal consid-
erations.
graph 6(1) of the second consolidated amended complaint
be dismissed.
The final allegedly unlawful physical assault herein
concerns the confrontation between Jose Pineda and Ga-
briel Leon on February 5, 1986. The principal witness on
behalf of the General Counsel in this instance was
Pineda, as corroborated by his wife Teresa; while the
principal witness on behalf of Respondent was Gabriel
Leon, as corroborated by his brother Michael and Steve
Martinez . With regard to what occurred that day, Jose
Pineda and the Leon brothers gave utterly conflicting
testimony . Pineda's demeanor , while testifying, was that
of an honest and convincing witness . In particular, he
straightforwardly admitted the occurrence of the 1983 or
1984 incident during which he pushed Gabriel in the
back. In contrast, as I have stated , neither Leon brother
impressed me with his honesty on the witness stand. In
particular, Gabriel failed to mention , during direct exam-
ination, having kneed Pineda in the stomach . As against
the Leon brothers, I credit the testimony of Jose Pineda
and find that, as seems to have been his custom , Gabriel
Leon was the instigator of the conflict that morning and
that such was unprovoked. Therefore, I find that Leon
commenced harassing Pineda as the latter entered into
Respondent 's building, followed Pineda to the dispatch
office, and confronted him there , pushing Pineda and de-
manding that he leave . Thereupon , they began cursing at
each other, and Leon suddenly pressed hard against
Pineda with his stomach . Feeling pain, Pineda punched
Leon in the right cheek . The latter retaliated , punching
Pineda to the stomach and face and knocking him to the
floor.
In discrediting the versions of the incident, given by
Gabriel Leon and Michael Leon and finding the forego-
ing account, I have concluded that not only did Gabriel
Leon instigate the confrontation but also he was unpro-
voked . Nevertheless , Respondent's defense is that he was
motivated by a longstanding personal antagonism toward
Jose Pineda and was not motivated by Pineda 's participa-
tion in the dissident activities . Indeed , there is no doubt
that there existed personal differences between the two
men. Thus, Pineda conceded that 2 years before he had
pushed Gabriel away from Jose Rodriguez after Gabriel
had interceded in an argument between Rodriguez and
Joe Leon . Also, Pineda's wife Teresa conceded that she
drove to the Pomona facility shortly after that incident,
under the mistaken belief that Gabriel had struck her
husband , and, not listening to Gabriel 's claim that her
husband was the aggressor, implored him not "to beat
my husband ." I credit her more honest testimony that
the Leons merely laughed at her.78 Therefore, while a
certain degree of personal animosity may have lingered
from the events of 2 years before, it was certainly no-
where near the degree asserted by Gabriel Leon . In this
regard, I cannot accept the testimony of Gabriel that, in
the interim , Pineda would continually chide him about
78 Teresa Pineda impressed me with her candor. I do not credit, for
reasons stated above , the Leons ' version of Mrs. Pineda's visit and specif-
ically that she threatened to kill Gabriel if he touched her husband again.
Frankly, having viewed Teresa Pineda on the witness stand, I do not be-
lieve that she was capable of uttering such a threat.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not retaliating after being pushed by Pineda and about
hiding behind his father and, instead , credit the more re-
liable testimony of Pineda that no overt hostility between
them existed and that, during the 2 years after the above
incident , Gabriel would stare at him whenever Pineda in-
frequently visited the Pomona facility.
Contrary to Respondent, I am convinced that Gabriel
was "primarily motivated" by unlawful considerations
rather than by any personal animosity, which may have
existed , when he instigated the February 5, 1986 con-
frontation with Pineda . Thus, I reiterate my conclusion
that it would not have been unusual , given Gabriel
Leon's propensity for such, for him to have provoked a
fight with a known dissident, one who was regularly
working and whom Leon saw infrequently. Further, I
believe Leon may well have harbored an undue amount
of animus toward Pineda . As to this , the latter was one
of the dissidents who picketed outside the San Gabriel
Mission during the Jose Leon labor award dinner, doing
so with his wife and children. A confrontation occurred,
and, as between the version of Teresa Pineda and those
of Gabriel Leon and Steve Martinez , neither of whom
impressed me with his honesty or candor while testify-
ing, I credit the more reliable account of Teresa Pineda
that Leon and Martinez continually stared at her hus-
band and herself while they picketed, that Leon cursed
at her husband, that the two of them moved close to
each other and continued cursing at each other, that
Martinez said he was going "to get my husband to one
side," and that a fight was averted only by the start of
the ceremony. This incident occurred just 5 months prior
to the February 5, 1986 confrontation, more proximate to
it than the remote pushing incident. Accordingly, based
upon the foregoing, I restate my belief that Gabriel
Leon's resentment toward Pineda 's dissident activities,
primarily the picketing at the award dinner for Leon's
father, was the primary motivation behind his unpro-
voked conduct on February 5. By instigating the alterca-
tion, Gabriel Leon 's acts were clearly coercive and un-
lawful within the meaning of Section 8(b)(1)(A) of the
Act. Teamsters Local 729 , supra.
CONCLUSIONS OF LAW
1. The employer-members of the multiemployer asso-
ciations with whom Respondent engages in collective
bargaining are, and have been at all times material
herein , employers engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in unprovoked physical contact with
employee-members, who engaged in dissident activities,
on August 13, 1984, and March 17, 1986; by threatening
employee -members, who engaged in dissident activities,
with loss of employment opportunities and with bodily
harm ; and by engaging in an unprovoked physical assault
on an employee-member who engaged in dissident activi-
ties, Respondent coerced and restrained its employee-
members in the exercise of their Section 7 rights and,
thereby, engaged in conduct violative of Section
8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Unless specified above, Respondent committed no
other unfair labor practices.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , which are violative of Section
8(b)(1)(A) of the Act, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action , including the posting of a notice, which
will effectuate the policies of the Act.79
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed80
ORDER
The Respondent , Local No. 806, Laborers ' Interna-
tional Union of North America , AFL-CIO, CLC,
Pomona, California, its officers, agents; and representa-
tives, shall
1. Cease and desist from
(a) Engaging in unprovoked physical contact with its
employee-members because they engage in activities
which are designed to protest , criticize, or question the
policies and practices of their bargaining representative
and its leaders.
(b) Threatening its employee -members with bodily
harm because they engage in activities designed to pro-
test , criticize , or question the policies and practices of
their bargaining representative and its leaders.
(c) Threatening its employee-members with loss of em-
ployment opportunities because they engage in activities
which are designed to protest , criticize , or question the
policies and practices of their bargaining representative
and its leaders.
(d) Engaging in unprovoked physical assaults upon
employee-members because they engage in activities
which are designed to protest, criticize , or question the
policies and practices of their bargaining representative
and its leaders.
(e) In any like or related manner restraining or coerc-
ing its employee-members 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) Post at its business offices, meeting halls, and dis-
patch halls copies of the attached notice marked "Ap-
98 Counsel for the General Counsel requests that a broad cease-and-
desist order be granted against Respondent . However , there is no evi-
dence that Respondent has a proclivity to violate the Act or that its con-
duct has been particularly egregious I, therefore, find that such a broad
remedial order is not necessary or required in this case Counsel for the
General Counsel also seeks a visitatorial provision in my order herein.
Putting aside my belief that such is unnecessary in the circumstances of
these matters , such a request is more properly made to the Board and is,
therefore, denied.
80 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 pur-
poses.
LABORERS LOCAL 806 965
pendix ."81 Copies of said notices,82 on forms provided
by the Regional Director for Region 21, after being
signed by Respondent 's authorized representative, shall
be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
81 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
82 All notices should be in English and Spanish , the predominant lan-
guage spoken by Respondent's members.
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that, insofar as the
second consolidated amended complaint alleges that Re-
spondent violated Section 8(b)(1)(A) by condoning
threats of or acts of physical violence against dessident
employee -members, it shall be dismissed.