OFFICE OF THE INDEPENDENT HEARING OFFICER

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

IN THE MATTER OF	DOCKET NO.
GABRIEL LEON AND MICHAEL LEON LOCAL UNION 806 POMONA, CALIFORNIA	98-49D
ORDER AND MEMORANDUM

PROCEDURAL HISTORY

This matter comes before the Laborers’ International Union of North America (“LIUNA”) Independent Hearing Officer (“IHO”) pursuant to the LIUNA Constitution and the Ethics and Disciplinary Procedure (“EDP”).

On June 19, 1998, Disciplinary Charges were filed by the LIUNA General Executive Board Attorney (“GEB Attorney”) against Michael Leon and Gabriel Leon (“Respondents”). The charges allege Respondents committed barred conduct proscribed by federal law, the EDP, and the Uniform Local Union Constitution (“Constitution”) in pursuing unlawful hiring hall practices.

The IHO held a hearing in Industry Hills, California, on April 19-21, 1999. The GEB Attorney filed a post hearing brief on May 28, 1999, and a reply brief on June 25, 1999. Respondent filed a post hearing brief on June 17, 1999, and a reply brief on July 7, 1999.

Charge 15 was dismissed by the GEB Attorney prior to the hearing.

FINDINGS OF FACT

1. LIUNA Local Union 806 (“Local 806”) has jurisdiction in and around Pomona, California.

2. From 1964 to 1993, Joe Leon was the Business Manager and Secretary-Treasurer of Local 806. Transcript of April 19, 1999 (“Tr. I”) at 6-7. Joe Leon is the father of Gabriel and Michael Leon. Id.

3. From August 1994 to October 1997, the period covered by the disciplinary charges, Gabriel and Michael Leon were the only employee/agents of Local 806 and were jointly responsible for the operation of the hiring hall during this time period. Tr. I at 10, 29; and Transcript of April 20, 1999 (“Tr. II”) at 197.

4. Gabriel Leon joined Local 806 in June 1972. In 1976, Gabriel Leon was hired as a field representative for Local 806, a position he continues to hold. Tr. I at 8, 13. Gabriel Leon first became an officer of Local 806 in June 1977, when he ran unopposed and was elected Vice President. Tr. I at 8. That same year, Gabriel Leon became a delegate to the District Council. Tr. I at 12. Gabriel Leon continued as Vice President until 1980 when he became President. Tr. I at 9. Gabriel Leon then continued as President from 1980 to 1993. Tr. I at 8.

5. In 1993, upon his father’s retirement, Gabriel Leon was appointed Business Manager and Secretary-Treasurer. Tr. I at 10. In June 1995, Gabriel Leon was elected to a three year term as Business Manager/Secretary-Treasurer. Gabriel Leon currently continues as Business Manager/Secretary-Treasurer, field representative, and Delegate to District Council. Tr. I at 12. Gabriel Leon became a trustee of the Training Trust in 1993, and of the Health and Welfare Trust in 1994. Id.

6. Gabriel Leon’s brother, Michael Leon, was hired by Local 806 as a field representative in 1982, appointed Recording Secretary, and made a delegate to the District Council. Tr. II at 196. In 1993, Michael Leon was appointed President of Local 806. Id. Michael Leon was elected to a three year term as President in 1995. Michael Leon continued to serve as a field representative until September 1998. Tr. I at 13.

7. In September 1998, Michael Leon ceased being a field representative. Tr. II at 196. In November 1998, Michael Leon became employed by the American Benefit Plan Administrators, as a liaison in the collection department.[1] Id. Michael Leon continues as President of Local 806. Tr. I at 13, Tr. II at 196.

8. The Southern California Master Labor Agreement established the rules governing dispatch between Southern California General Contractors and the Southern California District Council of Laborers affiliated with LIUNA. GEB Ex. 4, Master Labor Agreement 1992-1995 extended until 1997; GEB Ex. 5, Master Labor Agreement 1997-2000.

9. Fairplex is a contractor which does business with the Los Angeles County Fair Association. Fairplex runs and provides maintenance and support personnel for events held at the Los Angeles County Fairgrounds (“Fairgrounds”). Tr. I at 31. Approximately fourteen Local 806 members are employed by Fairplex at the fairgrounds year round. Tr. I at 31-32.

10. The Los Angeles County Fair (“LA County Fair”) is an eighteen day yearly event held at the fairgrounds every September. Tr. I at 31. The LA County Fair is the biggest event held at the fairgrounds. In addition to those members employed year round, many more Local 806 members are temporarily employed by Fairplex during the weeks prior, during, and after the LA County Fair. Tr. I at 32.

11. Fairplex and Local 806 have a separate collective bargaining agreement outside the Southern California Master Labor Agreement. Tr. I at 32. GEB Ex. 8, Master Maintenance Agreement & Addendums, 1995-2000 (“Fairplex Agreement”). However, according to the Fairplex Agreement, the Master Labor Agreement continues to govern dispatch procedure with Fairplex. Tr. I at 32-33. The Fairplex Agreement reads, in pertinent part, as follows: “Workers shall be dispatched in accordance with the dispatch procedure contained in the Laborers’ Union Master Labor Agreement in effect at the time of dispatch.” GEB Ex. 8 at 15.

12. The collective bargaining agreement between Fairplex and Local 806 contains a clause giving certain grandfathered employees priority in being rehired at Fairplex regardless of their positions on the out-of-work list. Tr. II at 165. See also GEB Ex. 8.

13. “Redlining” is a procedure utilized by Fairplex to prevent a Local 806 member from ever returning to work for it.[2] Tr. I at 79-80. As the majority of positions with Fairplex are temporary positions occurring once a year during the LA County Fair, Fairplex accomplishes redlining by sending Local 806 a letter prior to the busy LA County Fair season. Tr. I at 80. The letter lists, by name, the individuals who have been redlined. Being named in the letter bars the individuals from ever working for Fairplex again. Id.

14. Between September 1996 and October 1997, eighty-nine percent (89%) of the dispatches made by Local 806 off the out-of-work list were made to Fairplex. Tr. I at 81. Thus, being redlined by Fairplex is highly detrimental to the members. Id.

Local 806 Dissidents and the National Labor Relations Board

15. In the past twenty years, Local 806 has held only two contested elections, in 1977 and 1983. Tr. I at 10. Events occurred during the 1983 election campaign and afterwards which led twenty to twenty-five members to picket in front of Local 806’s office several times a week. R. Ex. 8, Local No. 806, Laborers’ International Union of North America, Decision (July 9, 1987).

16. In addition to the picketing, several Local 806 members filed complaints with the National Labor Relations Board (“NLRB”), complaining about the Leons’ activities during the election and afterwards. Id.

17. Ruben Vivanco (“Vivanco”), in 1984 and 1986, and Edward Garcia, in 1985, filed unfair labor practices charges against Local 806.[3] Id. At the time of the Administrative Law Judge’s (“ALJ”) decision in July 1987, Gabriel Leon had been the President of Local 806 for six years and Michael Leon had been the Recording Secretary for four years. Both brothers were also paid field representatives at the time. Id.

18. The ALJ found that the Joe, Gabriel, and Michael Leon had engaged in unprovoked physical contact and assault with members who engaged in dissident activities including threatening dissidents with loss of employment. Id. Furthermore, the ALJ found that Gabriel Leon was primarily motivated by unlawful considerations stemming from the dissident activities rather than from any personal animosity which may have also existed. Id. The ALJ issued a cease and desist order, preventing Local 806 from physically assaulting or threatening to physically assault dissidents. Id.

19. On July 10, 1989, a panel of the NLRB affirmed the ALJ’s decision. R. Ex. 8, Local No. 806, Laborers’ International Union of North America and Ruben V. Vivanco and Edward Garcia, 21-CB-8978, 21-CB-9532, 21-CB-9220, Decision and Order (July 10, 1989). In September 1992, the Court of Appeals for the Ninth Circuit affirmed the decision of the NLRB

against Local 806 finding that substantial evidence existed to support a finding that Local 806’s coercive conduct was “motivated primarily by the dissident members’ protected concerted activities, rather than by personal animosity.” See GEB Ex. 1, National Labor Relations Board v. Local No. 806, No. 91-70404 (9th Cir. 1992).

20. In 1991, Vivanco again filed charges with the NLRB.[4] The charges covered a time period when Joe Leon was Business Manager, Gabriel Leon was President, and Michael Leon was Recording Secretary. GEB Ex. 2, Local No. 806, Laborers’ International Union of North America and Ruben V. Vivanco, 21-CB-11002, 21-CB-11114, and 21-CB-11205, Second Order Consolidating Cases, Second Consolidated Amended Complaint, and Amended Notice of Hearing, (June 2, 1992) at 4. A contested hearing was held, and witnesses were called by both sides. Tr. I at 21. Local 806 entered into a stipulated settlement with the NLRB. Id. As a result, the NLRB issued an order that Local 806 cease and desist from the following activities:

a. Physically assaulting employee-members of Respondent because they engaged in dissident union activities

b. Verbally threatening employee-members with physical harm because they engaged in dissident union activities

c. Telling employee-members of Respondent that they would be denied entitlement to Respondent-administered pension benefits in retaliation for their dissident union activities

d. Evicting employee-members from the Respondent’s hiring hall facility…because said employees engaged in dissident union activities

e. Imposing unlawful conditions precedent orally or by letter to disclosure of hiring hall referral system information requested by employee-members of Respondent and, in doing so, refusing said employee-members’ requests for information relating to Respondent’s hiring hall referral system

f. Making verbal statement of disparagement concerning dissident employee-members resorting to the [National Labor Relations] Board’s processes

g. Threatening employee-members by telling them that they will not get job referrals through the Respondent’s hiring hall because they engaged in dissident union activities

h. Physically threatening and intimidating dissident employee-members when they are on Respondent’s hiring hall facility and grounds

i. Denying dissident employee-members access to Respondent’s hiring hall

j. In any other manner restraining or coercing its employee-members in the exercise of their rights guaranteed by Section 7 of the [National Labor Relations] Act.

GEB Ex. 2, Local No. 806 and Ruben V. Vivanco, 21-CB-11002, 21-CB-11114, 21-CB-11205, Decision and Order (February 3, 1993). Furthermore, Local 806 was ordered to provide members upon request with hiring hall referral system information. Id. The Board’s Order was affirmed by the Court of Appeals for the Ninth Circuit on July 19, 1993. National Labor Relations Board v. Local No. 806, Laborers’ International Union of North America, 93-70235 (9th Cir. July 1993).

21. In addition to the foregoing charges, Vivanco has filed many other unfair labor practice charges against Local 806 alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act. Some of the cases have been dismissed having been deemed without merit. There are five contempt based cases still currently pending before the NLRB. See GEB Ex. 3, Letter from Barbara A. O’Neill, Attorney, to Karen Snell, Esquire, of December 23, 1997.

22. The information in paragraphs 16-21, supra. are discussed pursuant to Federal Rules of Evidence 404(b) to demonstrate the Leons’ knowledge that their acts were improper and to demonstrate their deliberate intent, plan, and lack of mistake. In those cases, Gabriel and Michael Leon were specifically put on notice by the ALJ that their behavior violated federal law and they were warned that they were not to threaten members with loss of jobs or to impose unlawful conditions on members requesting access to dispatch records.

Interference With Vivanco’s Employment Opportunities

23. Charges 1, 2, 3, and 16 are based upon allegations that Gabriel and Michael Leon interfered with Vivanco’s employment opportunities in retaliation for Vivanco’s dissident activities.

24. Charge 1 alleges as follows:

Charge 1 (Unlawful Hiring Hall Practice by Gabriel M. Leon)

Beginning prior to August 24, 1994, and continuing to the present, Gabriel M. Leon has engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit, in retaliation for Local 806 member Ruben Vivanco’s dissident activities, Gabriel M. Leon caused the General Superintendent of Fairplex to issue a letter dated August 23, 1994, which bars Mr. Vivanco from being dispatched to work for that employer. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 1,3,4;

-Federal Labor Law-Unfair Labor Practice, 29 U.S.C. § 158; and

-the Uniform Local Union Constitution, Art. III, Sec. 2(a) and Art. IV, Sec.4(E).

25. Vivanco has been a member of Local 806 since 1966 or 1967. Tr. II at 46.

26. James Wyatt (“Wyatt”) is a member of the International Brotherhood of Teamsters and has been employed by Fairplex at the fairgrounds since July 1974. Tr. I at 88, 117-18.

27. Wyatt first met Vivanco in 1993, when Wyatt was a night foreman at the fairgrounds and Vivanco was one of the workers dispatched to him. Tr. I at 117. At their first meeting, Vivanco asked Wyatt for an assignment because he wanted to get away from a man who was trying to “pick a fight” with him and he did not want to get involved. Tr. I at 119-20. Vivanco asked Wyatt for a job to do because he wanted to “hurry up and get out of here” because he had problems and needed to get to work quickly. Id. Wyatt told Vivanco that he would get back to him in a minute. Tr. 120. A short time later, Vivanco again approached Wyatt and told him he had to give him some work in order to get him out of there “right away.” Id. Wyatt asked Vivanco the nature of his problem. Vivanco told him that he was having a problem with Gabriel Leon, who wanted to “pick a fight with him.” Id. Wyatt testified that he put Vivanco aside again and tried to organize some other workers into groups when Vivanco returned a third time. Id. Wyatt then told Vivanco to sit in Wyatt’s truck and wait for him. Tr. I at 120-21. When Wyatt returned to the truck, Gabriel Leon was outside the cab speaking to Vivanco. Tr. 121. Wyatt observed Gabriel Leon confronting and insulting Vivanco telling him that he did not belong working there with the other workers, that the others were hard workers while Vivanco was not, and that he did not know why Vivanco would “go out here to get a job like this.” Id.

28. Wyatt testified that he had had an opportunity to observe Vivanco’s work skills on the night they first met. Tr. I at 123. Wyatt stated that he had been “amazed” at the thorough job Vivanco had done in his cleaning assignment. Tr. I at 124. Wyatt further testified that he had continued to observe Vivanco every time he gave him an assignment and that Vivanco performed well and did not give Wyatt any problems. Id. The IHO finds Wyatt to be a credible witness and credits his testimony.

29. Wyatt was Vivanco’s only supervisor during the 1993 LA County Fair. Tr. I at 124, Tr. II at 47.

30. Vivanco testified that no one ever informed him that his work at the fair was not acceptable. Tr. II at 48.

31. The following year, on or about August 23, 1994, Gabriel Leon received a redline letter from Fairplex listing four individuals, including Ruben Vivanco, who Fairplex wanted removed from the 1994 fair roster. Tr. I at 86-87. See also GEB Ex. 9. While the letter states “this year’s fair roster,” Gabriel Leon stated that he understood the letter to mean that the individuals were permanently barred. Tr. I at 86.

32. Vivanco was present in the union hall on or about August 26, 1994, and heard Gabriel Leon say that he needed ten members to work at the LA County Fair. Tr. II at 47. Vivanco was on the out-of-work list at that time. Id. Vivanco handed Gabriel Leon his out-of-work card and Gabriel Leon told him to go to the office where Gabriel joined Michael Leon. Id.

33. In the office, Gabriel Leon told Vivanco that Fairplex no longer wanted him to work there and showed him a portion of the letter sent from Fairplex but did not permit him to read it. Tr. II at 47-48. The letter stated as follows:

Dear Mr. Leon:

The Los Angeles County Fair would like your cooperation in removing the following people from this year’s fair roster:

Larry Pico

Miguel Carrillo

Ruben Vivanco

Gorgonio Rodriguez

We found that in the past we could not rely on these individuals. Their job performance did not meet our requirements.

If you have any questions regarding our decision, please feel free to contact me.

Sincerely,

/s

Bill Shacklett

General Superintendent

34. Vivanco asked Gabriel Leon for a copy of the letter. Gabriel Leon refused to give Vivanco a copy and told him he had to request it by mail, which Vivanco eventually did. Tr. II at 49-50.

35. Vivanco was again present at the union hall on August 29, 1994, and he saw Joe Leon go into the union office. Tr. II at 50. Vivanco saw Joe Leon through the window with Michael and Gabriel Leon and Joe Leon stood up and made a motion like he was having sex and mouthed to Vivanco that they had “fucked him up” while Gabriel and Michael Leon stood behind Joe Leon laughing. Tr. II at 52-54. At the time, Joe Leon had been retired for less than a year. The IHO finds that Joe Leon continued to have influence over Local 806, long after his retirement.

36. Vivanco returned to the union hall during dispatch hours the following morning, August 30, 1994, where he saw posted on the window of the dispatching hall a copy of the letter which Gabriel Leon had briefly shown him but had refused to give Vivanco a copy of on August 26. Tr. II at 55. When he saw the posted letter, Vivanco requested a copy from Michael Leon who refused. Tr. II at 56.

37. Vivanco was outside the Local 806 hall on August 31, 1994, when Gabriel Leon approached him. Id. Gabriel Leon told Vivanco that they, which Vivanco interpreted as a reference to the three Leons, had “taken [his] job at the fair.” Tr. II at 57, 111-12. After this occurred, Vivanco filed a grievance with the NLRB.[5] Tr. II at 56-57. See also GEB Ex. 10, Affidavit of Ruben Vivanco of September 1994, NLRB Case No. 21-CB-11791.

38. Rodriguez testified that he had heard a confrontation at the union hall between Gabriel Leon and Vivanco sometime in August 1994, in which Gabriel Leon yelled at Vivanco that they [the Leons] had taken Vivanco’s job at Fairplex and that Vivanco was not going to be sent to work and would continue to only pay dues without ever being sent to work. Tr. II at 27-30.

39. In September 1994, Vivanco spoke to Wyatt and asked Wyatt if he had redlined him. Tr. I at 126. Wyatt told Vivanco that he had not redlined him and would find out what had happened. Id.

40. Vivanco stated that on September 7, 1994, Wyatt told him that when Wyatt went to the office to get the list of workers for that year’s fair, Vivanco’s name was not on the list. Vivanco further stated when Wyatt asked why Vivanco’s name did not appear he was told that Fairplex couldn’t give Vivanco work “because of the things [he] was doing against the union.” Tr. II at 114. Wyatt was not examined at the hearing regarding this testimony. There is no evidence of record to corroborate this conversation, or evidence with whom Wyatt allegedly spoke at the office. The IHO does not give any probative weight to this statement by Vivanco.

41. Wyatt testified that as Vivanco’s only supervisor in 1993, he had never redlined Vivanco, and that the decision had come from someone who had not worked with Vivanco. Tr. I at 124, 126.

42. Nancy Chiatovich (“Chiatovich”) is the office secretary at Fairplex. Tr. I at 44; GEB Ex. 36.

43. Rex Pecarero (“Pecarero”) was the day shift supervisor, supervisor over Wyatt, and the grounds superintendent. Tr. II at 181.

44. Bill Shacklett (“Shacklett”) is the Fairplex general superintendent of the fairgrounds. Tr. I at 27. At the time of Vivanco’s redlining, Shacklett had just begun to work for Fairplex and the 1994 Fair was Shacklett’s first fair as general superintendent.[6] Tr. II at 158, 181. At the time he wrote the redline letter, Shacklett had never met Vivanco. Tr. II at 181.

45. Shacklett testified that he made the decision to redline Vivanco and did not receive any request to do so from anyone at Local 806. Tr. II at 157. Shacklett stated that he reached this decision after meeting with Pecarero and Chiatovich. Tr. II at 158. Shacklett did state, however, that he did not know if Pecarero and Chiatovich had spoken with Gabriel or Michael Leon. Tr. II at 184. Wyatt testified that Shacklett had told him that he had redlined Vivanco because of what Chiatovich had told him. Tr. I at 127.

46. Chiatovich has changed her story regarding Vivanco’s redlining several times from the initial investigation by the NLRB to the hearing in this matter. Chiatovitch stated that Vivanco had been redlined for claiming that he had not been paid properly and because he lead other people to believe he was their supervisor when he was not. Transcript of April 21, 1999 (“Tr. III”) at 50. The relative importance of this fact, or how this became a problem, was not explained at the hearing. Gabriel Leon testified that he was aware that some supervisors, such as Wyatt, did not speak Spanish but frequently had to supervise Spanish speakers who did not speak English, in which case Wyatt relied on other bilingual workers, such as Vivanco, to help him communicate with non-English speakers. Tr. III at 168.

47. Chiatovich also stated that she wasted a lot of time inspecting records and verifying that Vivanco had been paid correctly.[7] Tr. III at 50. Chiatovich further stated that she had been the one who had initiated redlining Vivanco because of his “complaining during the entire time,” yet Chiatovich does not remember if Vivanco complained once or more than once. Tr. III at 52. Chiatovich also indicated that her memory of the events was not quite clear due to the passage of time. Tr. III at 51. When questioned by NLRB investigator Hector Martinez, however, Chiatovich stated that the only participation she had had in Vivanco’s redlining was in typing the letter for Shacklett. Tr. III at 60. The IHO finds Chiatovich’s testimony to be conflicting and not probative, and the IHO does not credit her testimony. See Conclusions 6-8, infra.

48. Chiatovich first met Gabriel and Michael Leon in 1993 when she began working for Fairplex and the Leons were the Laborers’ union representatives. Tr. III at 58. The 1993 Fair was Chiatovich’s first fair on the job. Id.

49. Shacklett did not discuss Vivanco with Vivanco’s supervisor, Wyatt, until after Shacklett had already redlined Vivanco. Tr. II at 159. Shacklett stated that this was the first group of personnel changes that he made at Fairplex. Id.

50. Shacklett stated that he redlined Vivanco because Vivanco had made claims that he was underpaid which after review had not been the case. Id. Shacklett also stated that there

were no foremen who wanted to work with Vivanco. Id. Shacklett’s testimony is unsupported in this regard, and is in conflict with Wyatt who testified he wanted to work with Vivanco and was impressed by Vivanco’s work product. Tr. II at 160. The IHO finds that there is no evidence to support Shacklett’s reason for redlining Vivanco.

51. Gabriel Leon testified that it is his understanding that Vivanco was redlined due to unacceptable work. Tr. I at 87. At the hearing, Gabriel Leon stated that he had not been told this by superintendent Bill Shacklett in 1994. Id. However, when read his deposition testimony in which he had previously indicated that he had spoken to Bill Shacklett in 1994 who told him that the supervisor was unhappy with Vivanco’s work, Gabriel Leon changed his testimony to state that he had spoken to Shacklett in 1994. Id.

52. Gabriel Leon testified that he did not know whether Wyatt had been Ruben Vivanco’s supervisor at Fairplex in 1993. Tr. I at 89. Gabriel Leon indicated that he had had never discussed Ruben Vivanco with Wyatt. Id.

53. Wyatt stated that Shacklett had told him he redlined Vivanco because Chiatovich had told him that Vivanco created a lot of paperwork and trouble for her and she didn’t want him working there anymore. Tr. I at 127.

54. Wyatt stated that Chiatovich had previously asked him for a list of persons he did not want at that year’s [1994] fair. Tr. I at 128. Wyatt told Chiatovich that there were two persons he wanted to redline. Tr. I at 129. During the conversation, Wyatt asked Chiatovich why Vivanco had been redlined and Chiatovich told Wyatt that Vivanco had caused her a lot of trouble with paperwork. Tr. I at 129, 149, 152.

55. Approximately ten to twenty minutes after the conversation with Chiatovich, Wyatt saw Michael and Gabriel Leon, just outside of Chiatovich’s office. Tr. I at 131. Gabriel Leon asked Wyatt why he had redlined some of their members and a discussion ensued in which Gabriel Leon accused Wyatt of redlining the two Laborers in retaliation for what “they [Gabriel and Michael Leon] had done with Ruben Vivanco by redlining him.” Tr. I at 132-33.

56. During the same conversation, Gabriel and Michael Leon both told Wyatt that Vivanco was an “enemy” of their family and that if Wyatt chose to back Vivanco it would cause problems between Wyatt and the Leons. Tr. I at 133-34. Wyatt asked what kind of problems and Gabriel Leon told him that they would dispatch the “laziest” laborers they had and ones who only spoke Spanish so that Wyatt would not be able to communicate with them and that Wyatt would eventually be fired for having to continually send back workers. Tr. I at 135. See also GEB Ex. 11, Affidavit of James Richard Wyatt of December 29, 1994.

57. Wyatt testified that prior to their encounter regarding Vivanco, he and the Leons had had an amicable relationship. Tr. I at 133-35. However, after the encounter, the relationship between Wyatt and the Leons became strained. Id.

58. Michael Leon deals with Fairplex personnel on a regular basis. Michael Leon is on the community relations board of Fairplex. Tr. II at 197. Michael Leon served on the Latino advisory committee for Fairplex and was on the board in 1994. Tr. II at 198. The President of Fairplex was also a participant on that same board. Id.

59. From the time Vivanco received the letter from Fairplex in 1994, he has not been able to be employed at Fairplex resulting in financial hardship. Tr. II at 96.

60. All contractors, including Fairplex, are prohibited from discriminating against a member based on the member’s union activities which do not interfere with the proper performance of their work. Tr. I at 81-82. Gabriel Leon acknowledged that, as Business Manager, it is his responsibility to defend the rights of his members and ensure that the contractors comply with this provision. Tr. I at 82.

61. During his deposition by the GEB Attorney, Gabriel Leon testified that he had never questioned the superintendent of Fairplex why he had redlined Local 806 members. Id.

CONCLUSIONS (CHARGE 1)

1. The picketing activities of Vivanco offended Gabriel, Michael, and Joe Leon. They reacted to the activity and set upon a course of conduct to deal adversely with Vivanco both personally and in their operation of the hiring hall.

2. This negative attitude consisted of belittling him in front of his fellow workers on numerous occasions. In further support of this conclusion, see charges 2, 3, and 16, infra.

3. The Leons set out on a course to deny Vivanco work.

4. The IHO concludes that the Leons took advantage of the redlining procedure of Fairplex to insure Vivanco never returned to that job. Although there is no direct testimony that the Leons told the Fairplex personnel to redline Vivanco, there is ample evidence from which to draw this conclusion.

5. Gabriel Leon was angry that Vivanco was on the job at Fairplex. His encounter with Vivanco the first night that Vivanco worked for Wyatt is clear evidence of his dissatisfaction with Vicanco being on that job.

6. There is no evidence that Vivanco’s performance at Fairplex was substandard. Indeed, there is credible evidence to the contrary. Shacklett’s testimony, that Vivanco was not a good worker and that no supervisor wanted him, has no support in this record, and is directly contradicted by Wyatt. Thus, it appears the person who played a key role in Vivanco’s redlining was Chiatovich. Her conflicting version of why she caused Shacklett to redline Vivanco are obvious attempts to find a plausible reason for her actions. The statements and actions of the Leons supply the reason for her story, and are proof that the Leons caused her to redline Vivanco. The Leons’ actions also supply the reason why Chiatovich’s story is conflicting and lacks credibility.

7. Gabriel, Michael, and Joe Leon demonstrated verbally and visually to Vivanco that they had “fucked him up” at Fairplex. Gabriel and Michael Leon became angry at Wyatt when he redlined two of their members. They accused Wyatt of retaliation for what they had done to Vivanco. They threatened him with retaliation, and later made statements they would have Wyatt fired. Gabriel Leon’s actions upon receiving the redlining letter are further evidence of his role in the scheme. He attempted to keep the letter from Vivanco. It is the duty of the head of the collective bargaining unit to represent his workers. At the very least, the Leons were required to contact Fairplex to determine the circumstances for which Vivanco and the others had been dismissed other than a generic term unsatisfactory performance, especially considering that Vivanco had previously worked for years without incident at Fairplex. Not only did the Leons fail to defend Vivanco, they deliberately used the redlining as an opportunity to further humiliate Vivanco in retaliation for prior election activities and subsequent picketing. Gabriel and Michael Leon had a duty to fairly represent Vivanco, regardless of Vivanco’s political opinions and protected activities within the union. Taliaferro v. Schiro, 669 F.Supp. 763, 775 (W.D. La. 1987), aff’d in pertinent part sub nom. Guidry v. International Union of Operating Engineers Local 406, 882 F.2d 929 (5th Cir. 1989).

8. Based upon all the evidence described above and the reasonable inferences drawn therefrom, the IHO concludes that Gabriel Leon was the cause of Vivanco being redlined by Fairplex.

FINDINGS OF FACT

62. Charge 2 states as follows:

Charge 2 (Unlawful Hiring Hall Practice by Gabriel M. Leon)

On or about October 4, 1995, Gabriel M. Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit, in retaliation for Local 806 member Ruben Vivanco’s dissident activities, Gabriel M. Leon told Mr. Vivanco that he could keep paying his dues, but he would never be sent to work. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 1,3,4;

-Federal Labor Law-Unfair Labor Practice, 29 U.S.C. ' 158; and

-the Uniform Local Union Constitution, Art. III, Sec. 2(a) and Art. IV, Sec. 4(E).

63. On September 29, 1995, Vivanco was outside the union hall on the picket line when he was approached by and engaged in a conversation with Local 300 member Hector Macias (“Macias”). Tr. II at 60. Gabriel Leon joined them and told Macias not to speak with Vivanco because Vivanco did not want to work. Tr. II at 61.

64. On October 2, 1995, Vivanco was again outside the union hall on the picket line and Gabriel Leon again approached him and told him that he did not want to work. Tr. II at 62.

65. On October 4, 1995, while Vivanco was again picketing outside the union hall and Gabriel made a comment to an unknown third person telling the person that “these people [the ones picketing including Vivanco and Hermosillo] do not want to work.” Tr. II at 62-63.

66. Vivanco started to walk to his car at which point Gabriel told him that he did not want to work, that he should keep paying his dues because they [the Leons] wanted a new car, and that he could continue paying his dues but they were not going to send him to work. Tr. II at 63-64.

67. Vivanco stated he believed the reason Gabriel Leon kept utilizing the term “does not want to work” in all the incidents was to discredit Vivanco and his cause in front of the other members. Tr. II at 68.

68. Charge 3 states as follows:

Charge 3 (Unlawful Hiring Hall Practice by Gabriel M. Leon)

On or about June 5, 1996, Gabriel M. Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit, in retaliation for Local 806 member Ruben Vivanco’s dissident activities, Gabriel M. Leon told Mr. Vivanco that he could keep paying his dues, but he would never be sent to work. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 1,3,4;

-Federal Labor Law-Unfair Labor Practice, 29 U.S.C. ' 158; and

-the Uniform Local Union Constitution, Art. III, Sec. 2(a) and Art. IV, Sec. 4(E).

69. On June 5, 1996, Vivanco was present outside the union hall. Tr. II at 67.

70. Gabriel Leon approached Vivanco and told him that he did not want to work. Id. Vivanco replied by asking Gabriel Leon how he could work if Gabriel did not dispatch him or dispatched him for jobs consisting of only one or two days. Tr. II at 68.

71. Gabriel Leon told Vivanco that Vivanco was going to continue paying his dues without being sent to work, and that Gabriel was going to do everything possible to have Wyatt fired from the fair. Tr. II at 70.

72. Charge 16 states as follows:

Charge 16 (Unlawful Hiring Hall Practice by Michael Leon)

On or about July 17, 1997, Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit, in retaliation for Local 806 member Ruben Vivanco’s dissident activities, Michael Leon told Mr. Vivanco that he could keep paying his dues, but he would never be sent to work. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 1,3,4;

-Federal Labor Law-Unfair Labor Practice, 29 U.S.C. ' 158; and

-the Uniform Local Union Constitution, Art. III, Sec. 2(a) and Art. IV, Sec. 4(E).

73. On July 17, 1997, Vivanco went to the union hall to pay his dues. Tr. II at 89-90.

74. Vivanco placed twenty-five dollars ($25) at the window where dues are paid while Michael Leon was working at the window. Tr. II at 90. Michael Leon asked Vivanco what the money was for and Vivanco told him he knew what it was for. Id. Michael Leon refused to take Vivanco’s dues, so Vivanco retrieved his money. Id.

75. Vivanco went outside and returned with his friend, Jose Rodriguez, and again presented his dues. Id. Gabriel Leon was then at the dues window and grabbed Vivanco’s money. Id. Michael Leon told Vivanco that he was a fool to keep paying his dues when they were not sending him to work. Id.

CONCLUSIONS (CHARGES 2, 3, AND 16)

9. On at least two occasions Gabriel Leon told Vivanco that he could pay his dues but he would not be assigned any work.

10. On at least one occasion Michael Leon told Vivanco that he could pay his dues but would not be assigned any work.

11. Gabriel Leon’s and Michael Leon’s statements were reflective of their intention to deny Vivanco work in retaliation for Vivanco’s legally protected picket line activity.

FINDINGS OF FACT

Refusal to Permit Members Access to Dispatch Records

76. Charges 4, 5, 17, and 18 allege that Gabriel Leon improperly refused to permit members access to dispatch records.

77. The out-of-work list[8] is the primary document which helps a member requesting records verify that the Local is dispatching members in a proper fashion. Tr. I at 47.

78. As discussed in Findings 20-21 supra, Local 806 entered into a stipulated settlement with the NLRB in which Local 806 consented to cease and desist from imposing unlawful conditions precedent, orally or by letter, to disclosure of hiring hall referral system information. Tr. I at 28.

79. Gabriel Leon testified that in order for a member to get access to hiring hall information the member was required to put the request in writing. Tr. I at 27. Gabriel Leon further testified that requiring the request to be in writing was the only condition precedent to which the Ninth Circuit decision was referring when it ordered Local 806 to cease and desist unlawful conditions precedent. Tr. I at 27, 74. Later, Michael Leon testified that the Leons had previously required the requests to be in English and that was the condition struck down by the court. Tr. III at 19-20.

80. On December 16, 1996, a memorandum was sent to the membership regarding job referral procedures. Tr. I at 52. See also GEB Ex. 6, Memorandum of December 16, 1996, no. 000106. In part, the memorandum states, “A copy of the current out-of-work list and a list of all job referrals will be made available for inspection at the Local Union.” Id. The memorandum did not indicate that there was any requirement that requests would have to be in writing. A reasonable reading of this provision is that there is no requirement that the request be in writing.

81. The memorandum also indicated that “[t]he reason for any out-of-order referrals would be available upon request” and went on to state examples of why referrals could be out of order. Tr. I at 53. See also GEB Ex. 6. Again, there was no indication that the requests for information had to be made in writing.

82. Between the December 16, 1996 memorandum and October 15, 1997, no further changes were made nor were any other memos sent regarding rules related to how a member could inspect dispatch information. Tr. I at 54.

83. On October 15, 1997, a memorandum was sent to the membership indicating that, “[a] copy of the current out-of-work list and a list of all job referral will be made available for inspection at the Local Union upon written request…The reason for any out of order referrals will be available upon written request.” GEB Ex. 7 (Emphasis added). See also Tr. I at 55-56.

84. Gabriel Leon testified that he could not recall how many requests to review dispatch records he had received since 1994, but that there had been less than ten and that the requests had not been made by more than one person. Tr. I at 67. In addition, Gabriel Leon testified that he had honored every request to view records that he had received. Tr. I at 68. Gabriel Leon stated that he responded in writing to every request by sending the requestor copies of the records they requested. Id. Gabriel Leon then clarified his testimony to say that he had responded to every request he had received in writing. Id. I do not credit Gabriel Leon’s testimony.

85. Gabriel Leon stated that Ruben Vivanco was the only person from whom he had received requests from 1994 to 1997, and that when Vivanco requested records in writing, Gabriel Leon sent them to him. Tr. I at 75.

86. Gabriel Leon testified that “it always had been the policy of the Local to request it [viewing dispatch records] in writing” even prior to July 1997. Tr. I at 69-73.

87. The Leons maintain two books, one the roll call list, the other the dispatch/out-of-work list. Tr. II at 42. Members see only the roll call list as they sign in, they do not see the out-of-work list unless the Leons show it to them. Id.

88. Charges 4 and 17 allege that Gabriel Leon denied oral requests to examine the out-of-work list. As discussed below, the IHO has determined to give the Leons the benefit of the doubt in their belief that they could impose a requirement that requests to see dispatch records must be in writing. Therefore, Charges 4 and 17 are not proved by a preponderance of the evidence and there is no need to further elaborate on them.

89. Charge 5 states as follows:

Charge 5 (Unlawful Hiring Hall Practice by Gabriel M. Leon)

On or about September 9, 1996, Gabriel M. Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit, Gabriel M. Leon denied member Ruben Vivanco’s written requests to see dispatch records. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 1,3,4;

-Federal Labor Law-Unfair Labor Practice, 29 U.S.C. ' 158; and

-the Uniform Local Union Constitution, Art. III, Sec. 2(a) and Art. IV, Sec. 4(E)

90. On September 9, 1999, Vivanco sent Gabriel Leon a letter requesting specifically requesting a copy of the dispatch records. Tr. II at 74. See also GEB Ex. 16.

91. Vivanco testified that he never received a response to his letter. Tr. II at 75.

92. Charge 18 states as follows:

Charge 18 (Unlawful Hiring Hall Practice by Gabriel M. Leon)

On or about October 26, 1997, Gabriel M. Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit, Gabriel M. Leon denied member Ruben Vivanco’s written request to see dispatch records. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 1,3,4;

-Federal Labor Law-Unfair Labor Practice, 29 U.S.C. ' 158; and

-the Uniform Local Union Constitution, Art. III, Sec. 2(a) and Art. IV, Sec. 4(E)

93. Gabriel Leon told Vivanco that if he wanted to see the list, he had to submit a written request. Tr. II at 92. Vivanco did so on October 26, 1997, specifically requesting to see if his name appeared on the list. Tr. II at 93. See also GEB Ex. 31.

94. Vivanco testified that he never received a response to his October 26 letter. Tr. II at 95.

DISCUSSION

The stipulated settlement Decision and Order, Local No. 806, Laborers’ International Union of North America and Ruben V. Vivanco, 21-CB-11002, 21-CB-11114, and 21-CB-1205, National Labor Relations Board (February 3, 1993), judgment enforced by, National Labor Relations Board v. Local No. 806, Laborers’ International Union of North America, 93-70235 (9th Cir. 1993), stated that Local 806 was to cease imposing unlawful conditions precedent to disclosure of hiring hall information. The settlement is silent as to the nature of the unlawful conditions. Charges 4, 5, 17, and 18 deal with the conditions of that settlement. The GEB Attorney contends that the only condition at the time was that the requests be made in writing. The Leons claim the settlement referred to the requirement that all requests be made in English, with no reference regarding that the request be in writing. The IHO gives the Leons the benefit of the doubt that they believed they could require requests to view dispatch records to be in writing.

While there may have been some confusion on this subject in the past, from this time forward, unless the International Union issues a policy to the contrary, there shall be no requirement that any request to examine dispatch records be in writing. Any member in good standing has the right to make a reasonable oral request to see dispatch records.

Accepting that there was a requirement that the requests were to be in writing, the Leons violated the settlement stipulation because in two instances they also denied written requests.

Respondents also contend that a member not on the out-of-work list cannot request a copy of the out-of-work list. This contention is without merit; any member can request a copy of dispatch records. It is a member’s right, whether or not he is working, and whether or not he is on the out-of-work list, to inspect the dispatch records. To hold otherwise would defy common sense. As evidenced by the case at hand, the possibility that some workers are receiving special treatment can be detrimental to the workers’ perception of the union and the cause of the labor movement. It does little good to win a collective bargaining agreement, and then institute a system that denies workers a fair chance of employment. The aura of secrecy and special privilege caused by the Leons’ control of the list resulted in the members’ conception that the union is run unfairly. No member can be denied access to the out of work list simply because he is not, at the time, listed on the list.

CONCLUSIONS (CHARGES 4, 5, 17, AND 18)

12. There was confusion whether Local 806 could require a request to examine the out-of-work list to be in writing. The IHO will accept that such a requirement was in force during the time period covered by charges 4, 5, 17, and 18.

13. Accepting the existence of a written requirement to examine the out-of-work list, Gabriel Leon improperly denied Vivanco’s written requests to examine the out-of-work list on the dates charged in charges 5 and 18. The reasons given by Gabriel Leon for the refusal were merely a pretext to prevent Vivanco from examining the records.

14. Charges 5 and 18 were proved by a preponderance of the evidence.

15. Charges 4 and 17 were not proved by a preponderance of the evidence.

FINDINGS OF FACT

Improper Dispatch Procedures

95. Charge 6, 7, 8, 9, 10, 11, 12, 13, and 14 allege that Gabriel Leon and Michael Leon followed improper dispatch procedures.

96. The charges cover the period of time from August 1994 to October 1997. During that time, Gabriel Leon and Michael Leon shared the responsibility of dispatching. Tr. I at 29.

97. As discussed supra in Finding 8, the rules governing dispatch are contained in the Southern California Master Labor Agreement. Tr. I at 29; GEB Ex. 4, Southern California Master Labor Agreement.

98. Local 806 maintains an out-of-work list on which approximately thirty to forty persons are registered at any given time. Tr. I at 29.

99. Local 806 has a dispatch office where it maintains the out-of-work list. The out-of-work list is a lined notebook, seventeen names per page, with the names date-stamped according to when they were placed on the list. Tr. I at 46-47. Once seventeen numbers have been entered on a page, a new page is begun. Tr. I at 58.

100. At the top of each page of the out-of-work list is a number and a letter. The letter “L” indicates a labor list. Id. For example, “1-L” at the top of a page in the out-of-work list indicates that page is the first page of the labor list. Id. Members are given “out-of-work” cards which they carry with them. Id. The page number of the out-of-work list on which the member’s name appears is placed on his card. Id. This facilitates the member’s checking his position on the out-of-work list at the hall. Id.

101. According to the MLA, “[a]pplicants shall be registered on the employment list in the order of time and date of registration.” GEB Ex. 5 at 10. Members are to be dispatched in the order their names appear on the list.

102. Each entry of the out-of-work list has a stamped date on the left-hand side which indicates when the individual put himself on the list. Tr. I at 59. See also GEB Ex. 21. On the right hand side of the page, there is another stamped date which indicates the date the individual was either dispatched or removed from the list for another reason. Tr. I at 60. If the individual was dispatched, the name of the employer to which he was dispatch appears next to his name. Tr. I at 60. See also GEB Ex. 21.

103. There are several reasons why a member may be removed from the list such as not being present at the hall or at home when the dispatcher telephones during dispatch hours on more than one occasion, missing a roll call, or failing to accept more than one dispatch. Tr. I at 61, 64-65.

104. Under the Master Laborers’ Agreement, if the job to which an individual is dispatched does not last five full days, the individual’s name is returned to the out-of-work list, at the same position in which it was before the dispatch. Tr. I at 61. The individual’s name is originally struck at the time of dispatch, then a notation is later made if he has not worked the full five days. Tr. I at 61. See, e.g., GEB Ex. 21 at 13-L.

105. If a person accepts a job, goes to the job, and for whatever reason realizes he can not perform the job, the individual remains on the same position on the out-of-work list as before his dispatch to the job he could not perform. Tr. I at 66. The same applies if a member reports to the job site and is rejected by the employer. Tr. I at 67. If a member accepts a job but does not appear at the job site, he is removed from the out-of-work list. Tr. I at 66.

106. Gabriel and Michael Leon keep track of the jobs to which members have been dispatched by writing the dispatch information alongside the members’ names on the out-of-work list. Tr. I at 46. It is the practice of Local 806 to record this information as close to the time of actual dispatch as possible, making an effort to list the information the same day the worker is dispatched. Tr. I at 46, 49.

107. In order for a Local 806 member to remain eligible for dispatching, he must sign a roll call book on the designated roll call day.

108. Pursuant to the Master Labor Agreement, a member requested by name who previously worked for an employer may be given preference in hiring off of the out-of-work list:

Applicants whom a Contractor requests by name who have been laid off or terminated from employment of the type covered by this Agreement in the area served by the employment facility within five (5) years before a request from the same Contractor …who laid off or terminated them provided they are available for employment….

GEB Ex. 5 at 11.

109. Local 806 uses the term “request” to include rehires specifically requested by name. Tr. I at 37.

110. Changes were made to the Master Labor Agreement so that as of July 1, 1997, a written request is required for a worker specifically requested by name before that member can be dispatched. Tr. I at 31. Prior to July 1, 1997, a written request was not required. Tr. I at 33.

111. While prior to July 1, 1997, there was no requirement to obtain written requests for specific laborers before dispatching them to a job, Local 806 still maintained internal records of requested laborers. Tr. I at 34.

112.