Operating Engineers Local 406

National Labor Relations Board - Board Decisions

Jun 27, 1995

317 N.L.R.B. 981 (N.L.R.B. 1995)

981
317 NLRB No. 140
OPERATING ENGINEERS LOCAL 406
1 The exceptions were limited to the judge’s dismissal of the alle-
gation that Bennie Seal was unlawfully discharged.
2 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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.
International Union of Operating Engineers, Local
Union No. 406, AFL–CIO and Lloyd E.
‘‘Sonny’’ Mason and Laborers International
Union of North America, Professional Employ-
ees Local Union No. 693
International Union of Operating Engineers, Local
Union No. 406, AFL–CIO (Boh Brothers Con-
struction Co., Inc.) and James Madison White
International Union of Operating Engineers, Local
Union No. 406, AFL–CIO (International Main-
tenance Corporation and Charles Miller Con-
struction Co., Inc.) and Joseph Robert Ezell.
Cases 15–CA–12226, 15–CA–12227, 15–CB–
3936, and 15–CB–3941
June 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On March 8, 1995, Administrative Law Judge Peter
E. Donnelly issued the attached decision. The Charg-
ing Party, Laborers’ International Union of North
America, Professional Employees Local Union No.
693, filed exceptions and a supporting brief.1 The Re-
spondent, International Union of Operating Engineers,
Local Union No. 406, filed an answering brief to the
Charging Party’s exceptions, to which Charging Party
Mason responded.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Op-
erating Engineers, Local Union No. 406, Lake Charles,
Louisiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Charles R. Rogers, Esq., for the General Counsel.
Louis L. Robein, Jr., Esq., of Metaire, Louisiana, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On
charges filed by Lloyd E. (Sonny) Mason, an individual, and
Laborers International Union of North America, Professional
Employees Local Union No. 693 (Charging Party or Local
693), a consolidated complaint issued on September 3, 1994,
alleging that International Union of Operating Engineers,
Local Union No. 406, AFL–CIO (Employer, Respondent,
Union, or Local 406), discriminatorily discharged employee
Bennie Seal in violation of Section 8(a)(3) of the Act and
also discharged Supervisor Sonny Mason in violation of Sec-
tion 8(a)(1) of the Act for refusing to discharge Seal. On
charges filed by James White and Joseph Ezell, both individ-
uals, a consolidated complaint issued on June 29, 1994, al-
leging that Local 406 refused to refer Ezell for employment
in violation of Section 8(b)(2) of the Act and, further, that
Respondent violated Section 8(b)(1)(A) of the Act by threat-
ening employees with unspecified reprisals and also threaten-
ing and inflicting bodily harm on White for engaging in dis-
sident union activity. By order dated June 29, 1994, these
cases were consolidated. Answers were timely filed by Re-
spondent. Pursuant to notice, this case was heard before me
on October 11, 12, 13, and 14, 1994. Briefs have been timely
filed by Respondent and the General Counsel, which have
been duly considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
The Employer, Local 406, is an organization engaged in
the business of representing employees in dealing with em-
ployers concerning wages, hours, terms, and conditions of
employment. During the 12-month period ending August 31,
1993, Local 406, in conducting the operations described
above, received dues and initiation fees in excess of $50,000
and remitted from its New Orleans facility to its Washington,
D.C. facility of the International Union of Operating Engi-
neers dues and initiation fees in excess of $50,000.
Boh Brothers Construction Co., Inc., a corporation with
officers and places of business in New Orleans and Lake
Charles, Louisiana, has been engaged as a building and
maintenance contractor in the construction industry. During
the 12-month period ending May 31, 1994, Boh Brothers, in
conducting its business operations described above, pur-
chased and received at its Louisiana facility goods valued in
excess of $50,000 directly from points outside the State of
Louisiana.
International Maintenance Corporation, a corporation with
an office and place of business in Baton Rouge, Louisiana,
and a construction jobsite in Sulphur, Louisiana, has been en-
gaged as a maintenance contractor in the construction indus-
try doing industrial construction and maintenance. In the 12-
month period ending May 31, 1994, International, in con-
ducting its business operations described above, purchased
and received at its Sulphur jobsite goods valued in excess of
$50,000 directly from points outside the State of Louisiana.
Charles Miller Construction Co., Inc., a corporation with
an office and place of business in West Lake, Louisiana
(West Lake jobsite), has been engaged as a pipeline contrac-
tor in the construction industry doing industrial construction
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There is conflicting testimony regarding some of the allegations
of the complaint. In resolving these conflicts, I have taken into con-
sideration the apparent interests of the witnesses; the inherent prob-
abilities in light of other events; corroboration or lack of it; and con-
sistencies or inconsistencies within the testimony of each witness
and between the testimony of each and that of other witnesses with
similar apparent interests. In evaluating the testimony of each wit-
ness, I rely specifically on their demeanor and make my findings ac-
cordingly. And while apart from considerations of demeanor, I have
taken into account the above-noted credibility considerations, my
failure to detail each of these is not to be deemed a failure on my
part to have fully considered it. Bishop & Malco, Inc., 159 NLRB
1159, 1161.
2 According to Seal, during a telephone conversation with Babin
about refusing the raise, she asked about joining Local 406 and was
told by Babin that he had taken a personal oath not to allow sec-
retaries into the Union. Babin denies having made any such state-
ment, and, having reviewed the relevant testimony, I conclude that
Babin’s testimony is credible and that the statement was not made.
and maintenance. During the 12-month period ending May
31, 1994, Miller, in conducting business operations described
above, purchased and received at its West Lake jobsite goods
valued in excess of $50,000 directly from points outside the
State of Louisiana. The complaints allege and the answers
admit that the above-named Employers, including Local 406,
are employers within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find that
Charging Party Local 693 and Respondent Local 406 are
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE EMPLOYER’S UNFAIR LABOR PRACTICE
ALLEGATIONS
A. Facts1
1. Discharges of Sonny Mason and Bennie Seal
The Respondent, Local 406, is a statewide local union of
about 3000 members with headquarters in New Orleans and
district offices in various localities, including Lake Charles,
Louisiana, with about 475 members in the Lake Charles dis-
trict. The Union’s hierarchy in New Orleans consists of Peter
Babin III, business manager and financial secretary, who has
overall responsibility for the operation of Local 406. Don
Schiro is president and pipeline business agent for Pipeline
Construction. Carter Carpenter is vice president and business
agent for the Baton Rouge district. Rayford Cloy is business
agent for the New Orleans district and recording correspond-
ing secretary of Local 406.
It appears that all of the business agents report directly to
Babin, including Schiro, Carpenter, and Cloy who also hold
union office. Sonny Mason was the business agent for the
Lake Charles district. Mason had no reporting responsibility
except to Babin. In 1985, Sonny Mason had been a member
of Local 406 working in the pipeline industry. At that time,
Mason was recommended by his friend, Schiro, for the posi-
tion of business agent in the Lake Charles district to replace
the previous business agent, Willard Carlock, whose adminis-
tration had been tainted by allegations of sexual misconduct
involving the trading of job referrals for sex. At the time of
the alleged misconduct, Carlock employed both his wife and
a girlfriend in the district office. These revelations were the
subject of various inquiries in the United States Senate by
the Senate Labor Committee. Subsequently, lawsuits were
also filed that included allegations that preference in job re-
ferrals was being given to members contributing to a legal
defense fund supporting Carlock, who had been charged with
the misconduct.
In October 1985, Mason was interviewed by Babin,
Schiro, and Cloy in the conference room of the New Orleans
office about his employment to replace Carlock. It is undis-
puted that Babin wanted to avoid any recurrence of the
Carlock scandal. Based on the corroborated testimony of
these witnesses, which I credit, Mason was told by Babin,
inter alia, in referring to the problems involving Carlock’s re-
gime, that if he were to be hired, he would not be allowed
to hire as employees in the Lake Charles district office either
the wives or girlfriends of members. It does not appear that
there exists any written prohibition against such employment.
Babin conceded that Local 406 did at one time employ some
of his relatives in various capacities. His mother and a cousin
had been office employees. His mother left in about 1973
and his cousin in the mid-1980’s.
Mason concedes that he was interviewed but testified that
he was told either by Babin or Schiro only that they would
prefer that he not hire his wife or the wives of union mem-
bers as employees. The corroborative testimony of Babin,
Schiro, and Cloy persuades me, however, that the prohibition
included girlfriends, and that Mason accepted this condition
of employment.
In late October 1985, Mason was hired as business agent
for the Lake Charles district. At the time of his employment,
Mason was married, and the office secretary was a woman
named Jackie Trussclair. In July 1988, however, Mason dis-
charged her and hired Bennie Seal. Mason and Seal were ad-
mittedly engaged in an intimate relationship.
Schiro testified that prior to Seal’s employment, Mason
had disclosed to him that he was having a sexual relationship
with Seal and intended to hire her as an office secretary.
Schiro testified that he warned Mason that he knew the rules
and was aware of the problems that the Lake Charles office
had experienced under Carlock.
Over the next years, it appears that Mason and Seal, as a
couple, attended several union and political functions also at-
tended by officers of Local 406, including Babin, and Babin
testified that he did suspect the existence of a personal rela-
tionship, particularly in November 1991 when he received re-
quests for verifications of employment from a home mort-
gage lender for both Seal and Mason related to a home mort-
gage. Babin raised the question with Mason at that time but
was assured by Mason that he was simply cosigning the loan
as a friend and denied any personal relationship.
Babin testified that his suspicions of a personal relation-
ship were aroused again in July 1992 when Seal rejected a
small raise as inadequate.2 Babin found this rejection embar-
rassing and, when he discussed it with Mason, discovered
that Mason was supporting Seal, saying that she needed and
deserved more money than the raise Babin was attempting to
give her. Babin again inquired if Mason and Seal were hav-
983OPERATING ENGINEERS LOCAL 406
3 All dates refer to 1993 unless otherwise indicated.
4 Although Mason denied that the matter of a mortgage application
work verification form was mentioned, I credit the corroborated ac-
counts of Babin and Schiro that it was.
ing a personal relationship because it looked personal to him,
but once again Mason denied it.
It is undisputed that Schiro was aware of the relationship
between Mason and Seal from the beginning, but did not
mention it to Babin because, as he testified, he was a friend
of Mason and did not want to see him get into trouble.
Schiro also testified that about a year before Seal’s dismissal,
he raised the issue again with Mason, who assured him that
the relationship had ended at that point, and that Seal was
returning to her husband and would be leaving her union em-
ployment within a few weeks. This did not happen.
In June 1993,3 a decision was made to give all of the busi-
ness agents a raise of $1000 per year, amounting to a net
raise of about $20 per week. Schiro, fearing that Mason, like
Seal, would reject the raise, arranged a meeting with Mason
at the Pit Grill in Lake Charles on June 8. Schiro urged
Mason to accept the raise. Mason said that as the financial
condition of the Union was poor and as dues had just been
raised, he was not disposed to accept the raise. According to
Mason, Schiro also told him that Mason was going to have
fire Seal because Babin did not want to negotiate with an-
other local union over a secretary. Schiro denies that there
was any discussion about Seal’s affiliating or joining the
Union, or her discharge at this meeting. Having carefully re-
viewed the entire record, I conclude that Schiro’s account
was the more credible.
Nonetheless, shortly thereafter, Mason called the book-
keeper in the New Orleans office and told her that he was
rejecting the raise and would be returning the raise that had
appeared in his check. This created a problem in book-
keeping because the raise had already been programmed into
the computer. The bookkeeper spoke to Babin about the mat-
ter and Babin, somewhat angered and embarrassed, directed
Schiro to arrange a meeting with Mason
This meeting was held on June 17 in Jennings, Louisiana,
attended by Babin, Schiro, and Mason. At this meeting,
Babin made it known to Mason that word of his refusing the
raise had gotten around the Union and that he had been em-
barrassed by Mason’s rejection of the raise. Babin called Ma-
son’s attention to the policy prohibiting business agents from
employing wives or girlfriends as office secretaries and said
that with both of them looking for a home mortgage,4 and
both turning down raises, he wanted to know if a personal
relationship existed between Mason and Seal. For the first
time, Mason admitted to Babin that he and Seal did have a
personal relationship and, in fact, were engaged and intended
to get married. Babin told him that in view of the policy, the
relationship between Mason and Seal could not be tolerated
within the Union and that Seal would either have to quit or
be fired. Babin made it clear that it was Mason’s responsibil-
ity to take care of the situation. Mason said that he would
not fire her. But Babin told Mason to let him know his final
decision by the following Monday.
On June 21, Mason called Local 406 headquarters in New
Orleans and spoke to Babin. Unknown to Babin, this con-
versation was being taped by Mason. During the conversa-
tion, Mason suggested that Seal was going to resign her em-
ployment and questioned Babin about whether or not Seal
was entitled to the return of certain pension-benefit contribu-
tions. Mason also asked why Seal had to be laid off and
Babin replied:
Because of the arrangement that they have in the office
and I’m not going to rehash that with you. I didn’t
want it to start off with, I don’t want it now and I and
I I’ve put up with it because of some—of your work
and it took me longer than what it should have, it
should never have started because it’s just dead against
my policies and I will try to work with you as much
as I can because like I told you, it’s nothing personal
against you. But let me look into the other thing.
Seal did not resign, however, and because Mason had not
discharged her it became necessary, according to Babin, to
discharge both of them. Babin testified that it was necessary
to fire Mason as well as Seal in order to avoid any appear-
ance of gender-based discrimination against Seal because
both were involved in the relationship.
On June 30, Schiro and Carpenter appeared at the union
hall in Lake Charles at the direction of Babin for the purpose
of discharging Mason and Seal and to temporarily take over
the affairs of the Lake Charles district office. Letters dated
June 29 were presented to both Mason and Seal and signed
by Babin. The letter given to Seal, read, inter alia:
Effective immediately upon receipt of this letter on
June 30, 1993. Your [sic] are terminated as an em-
ployee of Local 406.
I regret that this action had to be taken.
As explained to you earlier by another officer of this
Local Union, the Union must enforce its ‘‘no fraterniza-
tion’’ rule. Your direct supervisor, Sonny Mason, has
similarly been apprised of this policy and will be sub-
jected to a similar application of this policy.
You will be issued a final paycheck, as well as ac-
crued vacation, within the time established by law.
The letter given to Mason reads, inter alia:
Please be advised that effective immediately upon re-
ceipt of this letter you are terminated as Business Agent
of this Local Union at its Lake Charles office. As you
know, you are being terminated because of your failure
to correct a continuing violation of this Local’s ‘‘no
fraternization’’ policy.
Checks representing pay earned through the end of
the payroll period, as well as accrued vacation, will be
issued to you within the time established by law.
Please return all keys, credit cards and other property
of Local 406 to either D. Schiro or Carter Carpenter,
who will assume responsibility for the administration of
the Lake Charles office.
I regret that this decision had to be made. But, as I
explained to you earlier, I must seriously enforce this
important policy for the good of the Local Union.
Your refusal to cooperate in this regard can simply
not be tolerated.
According to Seal and Mason, both Schiro and Carpenter,
when questioned, admitted that they were not aware of any
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The bylaws of Local 406 require that a petition for a special
meeting must be signed by at least 10 percent of the membership
in good standing residing in the district, stating the purpose of the
meeting; further, that no other business shall be transacted at this
meeting.
‘‘fraternization’’ policy. Schiro, however, whose testimony
based on the record as a whole I found to be more credible,
states that he was asked only if there was any written policy
and he replied that there was nothing in writing that he was
aware of; not that no rule existed. After an accounting of the
funds of the Union, both Mason and Seal left the union of-
fice. Schiro, whose testimony I found credible in this regard
also, states that Mason himself observed that he was being
fired for rejecting a pay raise, and that Schiro replied, ‘‘that’s
probably a part of it.’’
At a meeting of the union membership on October 19,
Mason mentioned the subject of his raise. As the minutes
disclose:
Brother Mason asked if he had a right to turn down a
raise. We said yes, he had that right. Brother Mason
stated, ‘‘I was fired by Brother Babin because I turned
down a pay raise he granted to me and I embarrassed
him by doing that. That’s why I was fired.’’
With respect to the matter of Seal’s union activities and
the Respondent Union knowledge thereof, it appears that in
about March 1993, Rodney Sonnier, business manager of La-
borers Local Union No. 693, came to see Mason at the union
hall. While he was there, Seal spoke to him, telling him
about her dissatisfaction with the small raise she had been
given and had rejected, and inquiring about the possibility of
representation by Local 693 and asked what she would have
to do. Sonnier told her that she needed to sign an authoriza-
tion card in order for him to seek recognition for her.
Thereafter, Sonnier also raised the matter with Mason who
told him that he was a union member and that everyone had
a right to be a union member. On or about April 28, Sonnier
and Seal met for lunch and Seal signed an authorization card
for Local 693 with the understanding that the card would be
held and nothing done until after the nominations for office
for Local 406 were held at the end of April or early May.
Because Sonnier was unsure of the procedures for rep-
resenting a single employee, he called the New Orleans of-
fice of the National Labor Relations Board and was advised
that while an election could not be held, Local 693 could
represent a single employee. With this information, Sonnier
concluded that Local 693 would also have to bargain with
Local 406 on Seal’s behalf.
After the nominations, Sonnier called Babin and told him
that he had a secretary who wanted to be represented and
asked about taking Seal into Local 406. According to
Sonnier, he was advised by Babin that Local 406 was not
‘‘structured’’ to have one secretary as a union member but
that they could talk about it. Babin testified that he told
Sonnier that Local 406 was a statewide Union and that he
needed to see an authorization card. Babin further questioned
the feasibility of bargaining for a one-person unit but agreed
to talk about it.
Later, Sonnier approached Babin about the matter while
both were attending a session of the state legislature in Baton
Rouge. Babin referred him to Louis Robein, labor counsel
for Local 406, for further discussion. Sonnier called Robein
who confirmed that Babin had authorized him to handle the
situation. They discussed the problem, including the possibil-
ity of Seal going into Local 406. Thereafter, Robein and
Sonnier spoke several times on the telephone but nothing
was resolved. In about mid-June, Sonnier heard from Seal
that someone was being sent to discharge her. Thereafter, he
solicited and, on June 21, obtained a second authorization
card from another secretary in the Shreveport office. He also
told her that in view of Seal’s pending discharge, however,
he would hold the card, but he nonetheless called Robein to
tell him that he had another authorization card. Robein asked
from which office the authorization card had come, but
Sonnier declined to tell him.
After consulting the Laborers International Union in an ef-
fort to resolve the matter, Sonnier filed an unfair labor prac-
tice charge against Local 406 on July 22, 1992.
2. The 8(b)(1)(A) and (2) allegations—Joseph Ezell
Joseph Ezell was a longtime (15 years) member of Local
206. As noted earlier, Local 406 maintains two referral lists.
One list is for applicants of the pipeline industry, which is
maintained on a statewide basis from New Orleans where it
is managed by Schiro, and the second list is the building
trades list, which is maintained locally in the district offices,
including Lake Charles, and from which referrals are made
to the local building trades contractors in the area. Ezell
worked from the building trades referral list.
At the time Mason was fired on June 30, Ezell went to
the union hall where he spoke to Schiro, wanting to know
what had happened. He was told by Schiro that the union
hall was not closing and that he needed to hear ‘‘their’’ side
of the story. Ezell also spoke to Mason who told him that
he and Seal were fired because he had refused to hire Seal.
At about this time, Ezell told Schiro that a special meeting
should be held to discuss the matter and Schiro said that a
regular quarterly meeting was coming up within a couple
weeks during the week of July 4, where the matter could be
discussed. That meeting, however, and all other district meet-
ings scheduled for that time were canceled because of the
holiday and other commitments of union officers. The next
regularly scheduled quarterly meeting would be held in Octo-
ber.
By letter to Babin dated July 9, members of Local 406 re-
quested that a ‘‘special call’’ meeting be set immediately and
attended by Babin because the regular July meeting had been
canceled. The purpose of the meeting was ‘‘to address the
membership regarding the termination of our business agent
Sonny Mason, in the Lake Charles-Lafayette district.’’ By
letter dated July 19, Babin responded to Ezell’s request and
advised him that the request for a special meeting did not
meet the requirements of the bylaws of Local 406 and that
no decision on a special meeting would be made until those
requirements were met.5 It appears that prior thereto, how-
ever, a proper request had been made by letter dated July 16.
A ‘‘special call’’ meeting of the membership of Local 406
was held on August 19.
The special meeting was attended by about 100 members.
It was limited to the subject of Mason’s discharge. Babin
read a statement saying essentially that after he became
aware that the ‘‘no fraternization’’ rule was being violated by
985OPERATING ENGINEERS LOCAL 406
6 A prior work reference from dated June 4, 1992, also shows
‘‘motor patrols’’ not checked off.
Mason and Seal, Mason had been given ‘‘time to work this
out. He chose not to.’’ Further, that in order not to show sex-
ual discrimination, it was necessary to discharge both Mason
and Seal.
On the following day, August 20, in a letter to Babin
signed by Ezell, another request for a special meeting was
made. This letter protested the cancellation of the regular
quarterly meeting in July and requested that a meeting to dis-
cuss ‘‘any and all problems’’ of the membership. The letter
also expressed the conviction that this discussion could not
wait until the next scheduled quarterly meeting in October
1993. Nonetheless, by letter dated September 16 from Schiro
to Ezell, the request was denied due to the travel commit-
ments of those who would have to attend.
Ezell also testified that sometime in July after Mason and
Seal were discharged, he and Schiro were discussing a refer-
ral problem. During this conversation, Schiro raised the mat-
ter of Ezell’s efforts by way of meetings and circulating peti-
tions seeking reinstatement for Mason. Schiro told Ezell that
he was rocking the boat too hard and that he did not realize
the power that Babin had in both Louisiana and the county.
Schiro recalled a conversation with Ezell wherein Ezell
asked what he thought about the situation but only expressed
the conviction that Mason would not be back and he did not
say anything to Ezell about waves or rocking the boat. Based
on a review of the pertinent probative testimony, I conclude
that Ezell’s testimony concerning the conversation is more
accurate and I credit that account.
With respect to the matter of the alleged discriminatory re-
fusals to refer, it appears that on October 29, Ezell was laid
off and went to the union hall to register on the out-of-work
referral list. As he had done in the past, he filled out a work
reference card listing the types of jobs that he was qualified
to perform on referral, with boxes to be checked beside the
various jobs. This record discloses two work reference cards
dated October 29, both apparently signed by Ezell. Both ap-
peared to have been signed by Ezell but are different in con-
tent, listing somewhat different types of jobs. The box
checked ‘‘motor patrols’’ is checked on one, but the ‘‘motor
grader’’ category on the second, although this is the same
type of work, is not checked.6 The normal procedure is then
for the business agent, in this case newly appointed Business
Agent Wilbert ‘‘Bish’’ LeJuene, to make up an out-of-work
list containing information previously submitted on the work
referral card. All this information, however, does not appear
on the posted out-of-work list of union members. Only the
out-of-work date, name, and telephone number appear there-
on as posted.
When a job became available on November 18 with
Charles Miller Construction Co., a union member operating
engineer named J. W. Shay was referred to the job by
LeJuene despite the fact that Shay did not come onto the out-
of-work list until November 6, a week after Ezell.
On November 22, having learned that Shay had been sent
to the job, Ezell went to the union office to speak to LeJuene
when LeJuene explained that Shay was sent out ahead of
Ezell because the job required road grader skills and Ezell
had not checked off ‘‘motor grader’’ on his work reference
card and LeJuene was unaware that he could do that job.
LeJuene then retrieved the work reference form dated Octo-
ber 29, 1993, showing that the ‘‘motor grader’’ box had not
been checked and showed it to Ezell by way of explanation.
LeJuene also changed the job out-of-work list to reflect
Ezell’s ability to do this work and on the same day, Novem-
ber 22, referred Ezell to A. D. Ballad Construction Company
as a dozer operator.
On December 7, the A. D. Ballad job finished and both
Ezell and George Duhon, another union member, were laid
off. Ezell went to the union hall to register on the out-of-
work list. Ezell testified that while he was there, he filled out
another work referral card and was making out a check for
his union dues when Duhon called. The office secretary,
Martha Spell, took the work referral card information over
the telephone from Duhon. Ezell remarked to her, ‘‘Since
when do we put our name on the list by phone. We have
never been able to do that,’’ and Spell replied, ‘‘I do it for
everyone.’’
On December 8, a union member previously referred to
International Maintenance Corporation jobsite called Ezell to
ask if he was working there. Ezell said no and was told that
Duhon was working there.
Ezell felt that he should have been placed on the referral
list and referred ahead of Duhon and went to the union hall
on December 9 to speak to LeJuene about the matter.
LeJuene explained that Duhon was sent because he was
ahead of Ezell on the referral list. Ezell complained that he
had already signed his work referral card when Duhon called
and was writing a check for his dues. LeJuene said that his
records showed that Duhon’s name preceded Ezell’s.
LeJuene testified that he had looked into the matter and was
told by Spell that Ezell came in while she was filling out a
work reference card for Duhon over the phone. According to
LeJuene, it was for this reason that Duhon was placed ahead
of Ezell when the job referral list was made up. LeJuene in-
quired of business agents at the other district offices about
their policy on calling in to be placed on the out-of-work list,
and all told him that it was allowed and that it was not nec-
essary to appear in person.
It was stipulated that thereafter Ezell was referred by the
Union to jobs on February 9 at Nichols Construction Com-
pany and on March 1, 1994, to Boh Brothers Construction
Company.
The record also discloses with respect to the matter of
calling in, that with respect to the building trades out-of-
work list, there exists a document captioned, ‘‘LOCAL 406
INTERNATIONAL UNION OF OPERATING ENGINEERS HIRING
PROCEDURES.’’ In relevant part, these procedures read:
1. All applicants must have their names and tele-
phone numbers placed on the current out of work list
in the district of their choice.
2. Each applicant must indicate on a work reference
form to be supplied by Local 406 his qualification so
that this information may be entered on the current out
of work list.
These procedures do not require the personal appearance
of a member to sign the out-of-work list. Mason testified,
however, that under the administration of Carlock and then
himself, it was the policy to require members of the Lake
Charles district to register personally at the office to be
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In its answer, Respondent argues that as a managerial employee,
Seal is not entitled to the protection afforded employees under the
Act. The record discloses that Seal performs traditional secretarial
functions, including typing, answering telephone calls, making writ-
ten reports, and taking dues payments from union members. The
record also discloses that occasionally, when employers need imme-
diate referrals and Mason is not in the office, she would contact him
by car phone and, if so instructed, go down the out-of-work list to
locate eligible members. Thereafter she would recontact Mason who
instructed her on what to include on the referral slip and authorized
her to sign his name on the referral. In my opinion, because the
placed on the out-of-work list and further that he was told
by Babin at the time he was hired that this was the policy
to be followed. Babin, whose testimony I credit in this re-
spect, testified that he did not tell Mason that it was nec-
essary for members of the Lake Charles district to appear
personally for registration on the out-of-work list. Further, it
appears, as noted above, that all of the other districts allowed
members to call in and be placed on the building trades out-
of-work list.
Carpenter and Schiro testified that on June 30, when they
came to Lake Charles to take over the office, they were not
aware of any policy requiring the personal appearances of
members in order to be placed on the out-of-work list and
that, in fact, they took and placed several members on the
out-of-work list based on telephone calls pursuant to their
understanding of how the referral procedures operated in the
other districts within Local 406.
3. The 8(b)(1)(A) allegations—James White
a. Threats
It appears that White, Mason, and Seal were friends. When
Mason and Seal were fired on June 30, White went to the
union hall and assisted them in their departure. Later, over
a period of about a month and a half, White circulated a
written petition in various segments of the community and
labor movement, including the District Attorney’s office,
construction sites, and the Local Building Trades Council,
asking for Babin to reconsider Mason’s discharge based on
his performance and value to the Union and obtained about
150 names on the petitions.
Sometime in July, White and another union member ap-
peared at the union hall circulating these petitions. When
Schiro inquired what they were doing, White responded by
giving Schiro a copy of the petition. Schiro then remarked
that they should not be making waves like that because they
were looking for a new business agent and it could be one
of them. White laughed and then responded that Mason had
helped them and now they were going to try to help him.
Also in July, White was referred to Boh Brothers as an
operator and was made a foreman about 3 weeks later. The
job was expanding and needed additional operators. The job
superintendent, Sal Pepitone, had called the union hall for
eight operators and also asked White to go to the union hall
to see that they were ‘‘all lined up and that we had the type
of people we wanted and that they were all drug tested and
they were all ready to go.’’ In late July or early August,
White went to the union hall and spoke to Schiro and
LeJuene. At this meeting, Schiro told White that he could not
be loading up the job with his friends and that all the opera-
tors would be referred from the out-of-work list. Schiro told
White that he could be brought up on charges if he tried to
break the rules by having friends get the work and Schiro
also said that Babin and Robert Boh, the contractor, were
friends and that if he did not watch out, Babin would call
Boh and White would not like the results of the conversa-
tion. Schiro denied saying this. Schiro testified that he had
learned that the union hall had received a call from Pepitone
about the need for additional operators and that Pepitone had
said that White had remarked to him that the Union would
not be able to supply the operators. According to Schiro, he
only admonished White not to represent to contractors the
Union’s incapacity to provide operators and that any other
conversations with White were only an exchange of pleasant-
ries. Although Schiro generally denies making any such coer-
cive admonitions to White, a review of the probative testi-
mony persuades me that White’s accounts of these two con-
versations should be credited.
b. Altercation with LeJuene
In August 1993, Brandon Walker was referred by LeJuene
as an apprentice to Boh Brothers where he worked with
White. The matter of Walker’s referral was raised by White
at the regular meeting which, as noted earlier, was held on
October 21. At this meeting, White inquired about why the
sons of union members would not have been referred to the
job from among the apprentices on the apprentice list rather
than Walker who was not the son of a member. LeJuene ex-
plained that he had tried to call the son of a member, Donald
Cauthon, but was unable to reach him. LeJuene testified that
he felt that members’ sons should have priority for getting
into the apprenticeship classes but, once in the class and put
on the list for referral, they should be referred in the order
they appeared on the list and that is what he had done. The
son of Joseph Ezell was also on the list, but his name ap-
peared below Walker’s and thus was not referred.
On the following day, LeJuene went to the Boh Brothers’
jobsite. He testified that the purpose of the visit was to ex-
plain to White that he had not deliberately passed over any
member’s son on the list. At the jobsite, LeJuene got to-
gether with White and Walker in the timeclock shed.
LeJuene began to explain how Walker had been referred, i.e.,
that LeJuene had just gone down the list by dates of applica-
tion. White disagreed, taking the position that members’ sons
should be given priority regardless of their place on the ap-
prenticeship list. LeJuene then directed White to tell that to
Walker. As White turned toward Walker, he was struck on
the side of the head by LeJuene who testified that he ‘‘lost
his cool’’ when White put a finger into his face and said that
because of S.O.B.’s like LeJuene, the Union was going
downhill. White denied either using profanity or having put
his finger in LeJuene’s face. In this regard, I credit White’s
account, corroborated by Walker, that White did not have his
finger in LeJuene’s face, nor do I credit LeJuene’s recital of
profanity, noting particularly that Walker’s detailed account
of the incident does not disclose the use of any profanity by
White.
B. Discussion and Analysis
1. The discharges of Mason and Seal7
The General Counsel contends that Seal was discharged
for her union activity and that Mason was discharged for re-
987OPERATING ENGINEERS LOCAL 406
record discloses that Seal performs basically secretarial duties, such
limited, occasional, and routine referral duties are insufficient to con-
stitute her a managerial employee.
8 With respect to any Wright Line, 251 NLRB 1083 (1980), analy-
sis, I conclude that the General Counsel has failed to make a prima
facie showing sufficient to support any inference that protected con-
duct was a ‘‘motivating factor’’ in Respondent’s decision to termi-
nate Seal.
fusing to unlawfully discharge Seal. In my view, the facts do
not establish that contention.
The Act is designed to protect the rights of employees. Su-
pervisors, like Mason, are normally not entitled to protection
against discrimination, including discharge, for having en-
gaged in union or protected activity. In circumstances, how-
ever, when supervisors are discriminated against for refusing
to discharge employees for reasons that are unlawful under
the Act, such discrimination is deemed unlawful in violation
of Section 8(a)(1) of the Act.
Mason was hired to replace a corrupt business agent to run
the Union. Babin felt that it was in the interest of the Union
for business agents, including Mason, not to hire their wives,
girlfriends, or relatives as employees of the Union. Although
this hiring policy was never reduced to writing, Mason was
made aware of it at the time he was hired, and he accepted
it as a condition of his employment.
Nonetheless, Mason and Seal became romantically in-
volved. Despite the prohibitions of the hiring policy, Mason
terminated the incumbent office secretary, and hired Seal.
Schiro was fully aware of this relationship but, as Mason’s
friend, decided not to tell Babin. Certain events, however,
did cause Babin to suspect a personal relationship between
Mason and Seal, i.e., the mortgage loan employment ver-
ification and, later, Mason’s support for Seal when she re-
jected a raise. At those times, on inquiry by Babin, Mason
denied any personal relationship between himself and Seal.
Mason’s denials continued until about June 1993 when
Mason, like Seal, rejected a raise, an event that caused Babin
embarrassment within the Union and also caused him to sus-
pect that they were making common cause against him, and
were engaged in a personal relationship.
At a meeting on June 17 Babin confronted Mason directly.
He recited the basis for his suspicions and Mason admitted,
for the first time, that he and Seal had a personal relationship
and had plans to be married. Babin reminded Mason of the
hiring policy and told him that it would be his responsibility
to correct the situation. He gave Mason time to secure Seal’s
termination, either by resignation or discharge. The General
Counsel argues that this relationship had been condoned by
Babin as he was aware of it and did nothing about it until
Seal’s alleged union activity. In my view, while Babin’s sus-
picions had been aroused, these suspicions had been softened
by Mason’s untruthful denials, and it was not until June 17,
when directly confronted, that Mason admitted to Babin the
existence of the relationship. Also, on June 21, in the se-
cretly taped discussion of Seal’s resignation, Babin alluded
to the relationship between Mason and Seal as violating the
Union’s policy and requiring Seal’s departure in conformity
to the hiring policy.
As it turned out, Seal did not resign and when Mason re-
fused to discharge her, Babin fired them both. According to
Babin, he fired Mason and Seal together, lest he be charged
with gender bias in retaining Mason and firing Seal when
both were parties to the relationship that was the basis for
their discharges. In order for the General Counsel to prevail,
it must establish that Seal was discharged because of her
union activity. The credible evidence in this case, however,
is insufficient to support this contention. Although it is true
that Seal was seeking union representation for herself and
had signed an authorization card, the credible evidence does
not show that Babin opposed union representation for her, al-
though he was dubious about representation in a one-person
unit and had turned the matter over to his attorney to resolve.
Discussions were in progress when the incidents giving rise
to the discharges arose.
The General Counsel also argues that disparate enforce-
ment of the no-fraternization rule is evidence that enforce-
ment against Seal was a pretext. I do not agree. The no-frat-
ernization rule was actually a condition of employment ac-
cepted by Mason when he was hired in 1985. This prohibi-
tion was a response to the problems experienced in the Lake
Charles District during Carlock’s tenure. It was prospective
in nature. It prohibited Mason from hiring girlfriends and rel-
atives. It did not require the discharge of anyone already em-
ployed.
As for Mason, the record discloses that Babin’s objective
was to enforce the Union’s hiring policy. Had Mason ac-
ceded to Babin’s directive that Mason arrange for Seal’s de-
parture either by resignation or termination, he could have
retained his own employment as business agent. For what-
ever reason, however, Seal did not resign and Mason de-
clined to discharge her. At this point, Babin obviously had
the option of discharging Seal and retaining Mason. As noted
above, Babin chose not to exercise this option but rather to
fire both of them.
Although the record also discloses that Babin was irritated
by Mason’s deception and uncooperative attitude, the record
also clearly discloses that he would have retained Mason if
Mason had terminated Seal. In these circumstances, I con-
clude, based on the record, that Mason was discharged be-
cause Babin theorized that for him to have retained Mason
while discharging Seal would have left him vulnerable to
charges of gender discrimination because both were parties
to same prohibited relationship.
Having concluded that neither Seal nor Mason was dis-
charged in violation of the Act, it is unnecessary to deter-
mine what, if any, consideration should be given to Respond-
ent’s contention that their discharges were justified by post-
discharge information acquired after their discharges.
In summary, I conclude that Seal’s union activity was not
related to her discharge and while Babin did fire Mason for
not terminating Seal, her union activity was not a factor.8
Babin fired both of them to enforce this Union’s policy
against hiring relatives or girlfriends. He fired Mason only
because he was forced to when Mason refused to fire Seal,
and because he wanted to avoid charges of gender-based dis-
crimination against Seal.
2. The 8(b)(1)(A) and (2) allegations—Joseph Ezell
a. Failure to refer
It is the contention of the General Counsel that on two oc-
casions, November 18 and December 8, that Respondent
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed to refer Ezell for employment because he had engaged
in dissident union activity in violation of Section 8(b)(1)(A)
and (2) of the Act. The record discloses that Ezell was a sup-
porter of Mason and, along with White, held meetings and
contacted with Babin in an effort to secure Mason’s rein-
statement. The record does not support the conclusion that
the failure to refer Ezell, however, either on November 18
or December 8, was caused by Ezell’s dissident activity.
With respect to the November 18 incident, it is undisputed
that Miller Construction Company wanted someone with
‘‘motor grader’’ skills. LeJuene’s unrebutted testimony is
that when he consulted the work reference form submitted by
Ezell, that skill was not indicated and, therefore, he went to
the next person on the out-of-work list, whose work referral
form did indicate that skill and referred that person, J. W.
Shay. Unaccountably, so far as this record is concerned,
there appears to be two work referral forms signed by Ezell
dated October 29, one indicating motor grader skills and an-
other that does not. Ezell offered no explanation for the ex-
istence of two forms, but their authenticity was not disputed.
LeJuene’s undisputed testimony is that he saw only the form
that did not list the motor grader skill and therefore passed
over Ezell. There is nothing in the record to suggest that
LeJuene deliberately ignored the work referral form showing
Ezell’s qualifications for motor grader work. I credit
LeJuene’s testimony that he was unaware that Ezell had list-
ed any qualifications as motor grader when he made the re-
ferral of Shay and, accordingly, I conclude that his failure to
refer Ezell was not related to Ezell’s dissident activity on be-
half of Mason.
In this regard, I also note that when Ezell called the matter
to LeJuene’s attention on November 22, LeJuene added the
motor grader skill to Ezell’s work referral form and referred
him, that same day, to a job at Ballard Construction Com-
pany.
With respect to the allegation that LeJuene discriminatorily
failed to refer Ezell on December 8, the record discloses only
that Duhon was allowed to register on the out-of-work list
by telephone. Nothing in the Union’s hiring hall procedures
mandates a personal appearance to register on the out-of-
work list for building trades’ work and, in fact, the Lake
Charles district is the only district that had been requiring a
personal appearance. Those in charge of referrals were un-
aware of this requirement and several members, prior to De-
cember 8, were allowed to register on the out-of-work list by
telephone. LeJuene’s unrebutted testimony, which I credit, is
to the effect that Duhon was placed on the out-of-work list
ahead of Ezell only because he had been informed that Ezell
registered after Duhon had called. In these circumstances, I
conclude that the General Counsel has not established that
the failure to refer Ezell on December 8 was motivated by
Ezell’s dissident activity.
The General Counsel further contends, in view of the ex-
clusive referral systems in effect under contracts with Miller
Construction and IMC, that even assuming that the failures
to refer Ezell were not discriminatory, they were nonetheless
‘‘arbitrary acts’’ in violation of Section 8(b)(1)(A) and (2) of
the Act. See Painters Local 1115 (C & O Painting), 312
NLRB 1036, 1040 (1993). Even assuming that exclusive re-
ferral provisions were in place, however, the probative facts
do not support the conclusion that LeJuene acted arbitrarily.
In my opinion, the General Counsel has not shown that Ezell
was misplaced on the out-of-work lists. I cannot on this
record conclude that LeJuene acted improperly in the place-
ment of Ezell on the out-of-work list or in his referral.
b. Unilateral change—hiring hall procedures
The record discloses that physical registration on the out-
of-work list was not a requirement of the Union. Nothing in
the written union hiring procedures requires that this be
done, even though Mason and Carlock, during their tenures
as business agents, required employees to register in person
on the out-of-work list. After Mason was ousted, the referrals
were done by Carpenter and Schiro and later by LeJuene
when he succeeded Mason. None of these people were aware
of Mason’s policy and allowed members to register both in
person and on the telephone. In doing so, they were simply
following the practice that prevailed at the other district of-
fices and appears to be contemplated by the Union’s own
written hiring procedures. This was a matter that was within
the authority of the Lake Charles district business agent to
administer. LeJuene was not bound by the procedures of his
departed predecessor, and a return to the more widely uti-
lized practice was not unlawful as a ‘‘unilateral change’’
under Section 8(b)(1)(A) of the Act.
Having concluded that Respondent did not violate the Act
by unilaterally changing hiring hall procedures, it is unneces-
sary to reach the contention made by Respondent that this
change allegation is barred as untimely under Section 10(b)
of the Act.
3. The 8(b)(1)(A) allegation—James White
The altercation
As noted above, at a meeting on the night before this inci-
dent, White had accused LeJuene, at a meeting of the mem-
bership, of bypassing relatives of members in selecting an
apprentice for referral. LeJuene, a newly appointed business
agent, was upset by this allegation and argued that he had
gone down the list of apprentices in the order in which they
appeared. His visit to White’s jobsite on the following day
was for the purpose of setting White straight in the presence
of Walker.
In the course of attempting to convince White of the fair-
ness of his method in selecting and apprentice, White contin-
ued to maintain the position that relatives of members should
be favored regardless of their position on the apprenticeship
list. LeJuene became agitated by White’s disagreement and,
in my opinion, LeJuene struck White out of anger and frus-
tration at what LeJuene perceived as White’s attempt to show
him as disloyal to the membership for not favoring relatives
in making the selection of apprentices. In short, LeJuene
struck White out of anger for making him look bad in front
of the membership by questioning his selection of an appren-
tice at a union meeting on the previous evening. In my opin-
ion, White had the right to express a dissident view on this
issue and the assault in response to that dissent violated Sec-
tion 8(b)(1)(A) of the Act.
With respect to Respondent’s contention that White is a
supervisor, it appears that White was hired by Boh Brothers
by way of referral and that he became a foreman late in July
when the size of the work crews increased. This contingency
was covered by the contract and White worked under the
conditions set out in the contract. White did not have any
989OPERATING ENGINEERS LOCAL 406
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
independent authority to hire or fire. Although it appears that
he did direct the work activity of some five or six men for
about a year, he was thereafter returned to operator status
when the job slowed down and the number of operators di-
minished. Even though White may have temporarily exer-
cised some authority over a work crew, this record is insuffi-
cient to warrant the conclusion that the nature of his duties
constituted him a supervisor within the meaning of Section
2(11) of the Act, particularly as his employment as a fore-
man was temporary and his working conditions were gov-
erned by the contract during the entirety of his employment.
In these circumstances, I conclude that Respondent may not
claim supervisory status for White. Birmingham Printing
Pressmen’s Local 55 (Birmingham News), 300 NLRB 1
(1990).
Further, even assuming that White was a supervisor, the
attack on him was nonetheless coercive as it occurred in the
presence of Walker, who was clearly an employee.
4. The 8(b)(1)(A) threats to Ezell and White
As set out above, Ezell and White were both friends of
Mason opposed to his ouster and clearly engaged in a cam-
paign to have him reinstated. Because the union hierarchy
had concurred in the discharge of Mason, it can fairly be
said that the activities of Ezell and White were an opposition
viewpoint and dissident in nature.
I also conclude that Schiro’s statements to Ezell and White
alluded to their efforts to seek Mason’s reinstatement and
that these statements were coercive. In essence, Schiro was
making it clear to both of them that Babin would use his po-
sition and his influence to retaliate if they persisted in their
efforts to support Mason. Such threats for engaging in dis-
sident union activity violate the Act because union members
have the right to engage in dissident union activity. Laborers
Local 158 (Contractors of Pennsylvania), 280 NLRB 1100
(1986).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, have a close and intimate relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is en-
gaging in, unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative ac-
tions designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Employers are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them by Section 7
of the Act, Respondent has engaged in, and is engaging in,
unfair labor practices proscribed by Section 8(b)(1)(A) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, International Union of Operating Engi-
neers, Local Union No. 406, AFL–CIO, New Orleans, Lou-
isiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Restraining and coercing union member-employees in
the exercise of their rights under Section 8(b)(1)(A) of the
Act by threatening them with reprisal for engaging in dis-
sident union activity.
(b) Restraining and coercing union member-employees in
the exercise of their rights under Section 8(b)(1)(A) of the
Act by assaulting union member-employees for engaging in
dissident union activity.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and at any place where its meetings
are customarily held copies of the attached notice marked
‘‘Appendix.’’10 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, including all
places where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Mail signed copies of the notice to the Regional Direc-
tor for Region 15 for posting by Boh Brothers Construction
Co., Inc., if willing, at all locations where notices to its em-
ployees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges other violations under the Act,
not specifically found here.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT restrain and coerce union member-employ-
ees in the exercise of their rights under Section 8(b)(1)(A)
of the Act by threatening them with reprisal for engaging in
dissident union activity.
WE WILL NOT restrain and coerce union member-employ-
ees in the exercise of their rights under Section 8(b)(1)(A)
of the Act by assaulting union member-employees for engag-
ing in dissident union activity.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL UNION NO. 406