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. Gabriel and Michael Leon use a form for handling labor phone requests from contractors.[9] Tr. I at 34-35. See also GEB Ex. 28. The practice was for the person[10] handling the dispatch to indicate requests for specific laborers on the form. Tr. I at 42. See, e.g., GEB Ex. 28A. As a result, some of the forms indicate only a generic requests for laborers stating type of work and quantity of workers while other forms indicate that the contractor requested a specific individual. Compare GEB Ex. 28A with 28B. A request from an employer for a rehire would also be reflected on the job order form. Tr. I at 37.

113. Local 806 receives most of its requests for laborers by telephone. Tr. I at 36. When labor requests are received by mail, it is the practice of Gabriel and Michael Leon to file the dispatch slips related to a letter of request stapled to the letter of request. Tr. I at 45.

114. Absent a specific name request or special skill required, dispatch from the out-of-work list proceeds in numerical order.[11] In his testimony, Gabriel Leon did not dispute that it would have been improper for the dispatcher to dispatch a member to a job site out of order, as a name request, when such a member had not, in fact, been requested by name. Tr. I at 44.

115. Fairplex employs several classifications of workers such as landscape, livestock duties, racing horses, general maintenance, and waste management. Tr. I at 76. The different classifications have different pay scales. Tr. I at 77. Waste management is on the low end of the pay scale. Id.

116. If a member turns down two dispatches to a waste management job, he is removed from the out-of-work list. Tr. I at 77-78.

117. During the LA County Fair, Fairplex requests as many as sixty to eighty waste management workers. Tr. I at 78. In order to handle this large personnel request, there is a special category of workers called permit workers. Id. Permit workers buy a permit at a rate below the union’s normal initiation fees thereby enabling them to be dispatched to Fairplex during the fair. Tr. I at 78-79.

118. Local 806’s policy is that when job orders are received from Fairplex for waste management workers, full time members are dispatched first and permit workers are only dispatched after the out-of-work list has been exhausted. Tr. I at 79.

119. Charges 7, 8, 9, 10, 11, 12, and 13 contain allegations that members were improperly dispatched out of order and that some individuals were dispatched as requested workers when they had not in fact been requested.

120. Richard Hermosillo (“Hermosillo”) is member of Local 806. Hermosillo has never been redlined by Fairplex. Tr. I at 91.

121. Hermosillo was dispatched to the LA County Fair on the following dates: September 1987, October 1987, September 1988, October 1988, August 1989, September 1989, September 1995, October 1995, September 1996, September 1997, October 1997. Tr. III at 107. Michael Leon did not deny that Hermosillo has experience working at the LA County Fair, including Waste Management. Tr. III at 107-08. See also GEB Ex. 25-26.

122. Hermosillo was dispatched to the LA County Fair for waste management on August 22, 1995. Tr. I at 91. See also GEB Ex. 21 at 4-L , line 12 and Ex. 25. Hermosillo was again dispatched to Fairplex on August 20, 1996. Tr. I at 91-92; Tr. II at 12. See also GEB Ex. 21 at 26-L, line 10 and Ex. 26.

123. On September 30, 1996, Hermosillo signed the out-of-work list. Tr. I at 93; Tr. II at 12. See also GEB Ex. 22 at 3-NL, line 15. Hermosillo continued on the out-of-work list from September 30, 1996 until September 5, 1997, when he was dispatched to Fairplex. Id. See also Tr. II at 7.

124. The IHO finds that Hermosillo was available for dispatch between September 30, 1996 and September 5, 1997.[12] Tr. I at 94. See also GEB Ex. 22 at 3-NL, line 15.

125. Charge 7 states as follows:

Charge 7 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about October 11, 1996, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 members David Ybarra, Mario Cardenas, Rigoberto Arias, Norberto Limon, Salvador Limon, Jubenal Briseno, and others unnamed to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment, claiming that they were “requests” when in fact they were not requested by name by the contractor. 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)

126. On October 11, 1996, Local 806 received a request from Fairplex for ten waste management workers for a one day job after a trade show on October 13, 1996. Tr. III at 88-89; see also GEB Ex. 28b. Gabriel Leon took the dispatch. None of the workers were requested by name. Tr. III at 108.

127. David Ybarra, Mario Cardenas, Rigoberto Z. Arias, Norberto G. Limon, Salvador Limon, and Jubenal Briseno were regulars at the fair. Tr. III at 92.

128. Michael Leon testified that there is a list of “regulars” which the Local sends to Fairplex when it receives a request for waste management work, but that the regulars are not specifically requested by name. Tr. III at 87-91.

129. The Collective Bargaining Agreement has no provision for the practice of dispatching regulars who were not requested by name, and the procedure does not appear anywhere but in an alleged oral agreement that Gabriel and Michael Leon claimed they had with Fairplex. Id.

130. The IHO finds that there is no evidence of an oral agreement between the Leons and Fairplex by which regular Fairplex workers were given preference in dispatch.

131. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996. GEB Ex. 22. He was not dispatched until September 5, 1997. Id.

132. David Ybarra was registered on page 4-NL of the out-of work list on October 2, 1996, and was dispatched to Fairplex as a requested Waste Management worker on October 11, 1996. GEB Ex. 22. Rigoberto Z. Arias and Mario Cardenas were registered on page 4-NL of the out-of-work list on October 7, 1996 and were dispatched to Fairplex as requested Waste Management workers on October 11, 1996. Id. Salvador Limon and Norberto G. Limon were registered on page 5-NL of the out-of-work list on October 8, 1996, and were dispatched to Fairplex as requested Waste Management workers on October 11, 1996. Id. Jubenal Briseno was registered on page 5-NL of the out-of-work list on October 10, 1996, and was dispatched to Fairplex as a requested Waste Management worker on October 11, 1996. Id.

133. In addition to the named individuals in the charges, Aostreberto Lopez was registered on page 5-NL of the out-of-work list on October 11, 1996, Irineo P. Lopez was registered on page 4-NL on October 7, 1996, and Gregorio Preciado was registered on page 5-NL on October 10, 1996. Id. All three individuals were dispatched to Fairplex as requested Waste Management workers on October 11, 1996. Id.

134. David Ybarra, Mario Cardenas, Rigoberto Z. Arias, Norberto G. Limon, Salvador Limon, Jubenal Briseno, Aostreberto Lopez, Irineo P. Lopez, and Gregorio Preciado were dispatched out of order. Familiarity with the fairgrounds is not a reason to dispatch individuals out of order. Even if those individuals had been familiar with the fairgrounds, Hermosillo also had experience at the fairgrounds and was ahead of them on the out-of-work list.

135. Furthermore, the IHO finds that Gabriel Leon attempted to conceal his improper dispatch by writing “requested” on the out-of-work list when the intake sheet written by Gabriel Leon indicates only a generic, not by name, request.

136. Charge 8 states as follows:

Charge 8 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about November 15, 1996, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 members Rigoberto Arias, Irineo Lopez, Adolfo Garcia, Miguel Reyes and others unnamed to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment, claiming that they were “requests” when in fact they were not requested by name by the contractor. 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)

137. On November 14, 1996, Local 806 received a request from Fairplex for ten waste management workers for a one day job after a trade show on November 17, 1996. GEB Ex. 28b. Gabriel Leon took the dispatch. None of the workers were requested by name. Tr. III at 108.

138. Rigoberto Arias, Adolfo Garcia, and Miguel Reyes had been previously dispatched to Fairplex on a regular basis.[13] Tr. III at 93.

139. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996. GEB Ex. 22. He was not dispatched until September 5, 1997. Id.

140. Rigoberto Z. Arias and Irineo P. Lopez were registered on page 4-NL of the out-of-work list on October 7, 1996, and were dispatched to Fairplex as requested workers on November 15, 1996. Id. Adolfo Garcia and Miguel C. Reyes were registered on page 5-NL of the out-of-work list on October 7, 1996, and were dispatched to Fairplex as requested Waste Management workers on November 15, 1996.

141. In addition to the named individuals in the charges, Jubenal Briseno was registered on page 6-NL of the out-of-work list on November 1, 1996, Juan Solario was registered on page 4-NL on October 7, 1996, Nicolas Zamudio was registered on page 6-NL on October 21, 1996, Sebastian Macias was registered on page 4-NL on October 7, 1996, and Gregorio Preciado was registered on page 6-NL on November 1, 1996. All five individuals were dispatched to Fairplex as requested Waste Management workers on November 15, 1996.

142. The IHO finds that Rigoberto Arias, Irineo P. Lopez, Adolfo Garcia, Miguel C. Reyes, Jubenal Briseno, Juan Solario, and Nicolas Zamudio were dispatched out of order before Hermosillo. Hermosillo was ahead of all these individuals on the out-of-work list, and should have been dispatched first.

143. The IHO again notes that Gabriel Leon attempted to conceal his improper dispatch by writing “requested” on the out-of-work list when the intake sheet written by Gabriel Leon indicates only a generic, not by name, request.

144. Charge 9 states as follows:

Charge 9 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about January 20, 1997, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 member Joe Bauman to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment. 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)

145. On January 17, 1997, Local 806 received a request from Fairplex for seven laborers to report the following Monday. GEB Ex. 28b. Michael Leon took the dispatch. None of the workers were requested by name. Tr. III at 108.

146. Michael Leon testified that although he could not locate the letter, Fairplex had once requested Joe Bauman by letter as a concrete worker. Tr. III at 100. However, this was on a previous occasion and not on the January 20, 1997 occasion alleged in the charge.

147. Michael Leon testified that when Fairplex needs concrete laborers, it specifically requests them. Tr. III at 108.

148. Michael Leon testified that Bauman was dispatched to Fairplex on January 20, 1997, based on his understanding of the agreement with Fairplex that Bauman would be sent for concrete jobs. Tr. III at 99-100. The IHO finds no evidence of such an agreement. Furthermore, even if such an agreement existed, the January 17, 1997 request was not for a concrete worker but for general laborer.

149. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996. GEB Ex. 22. He was not dispatched until September 5, 1997. Id. Bauman was registered on page 6-NL of the out-of-work list on October 17, 1997, and was dispatched to Fairplex on January 20, 1997. Id.

150. Bauman was dispatched out of order over Hermosillo.

151. Charge 10 states as follows:

Charge 10 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about January 28, 1997, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 member Melchor Lopez to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment, claiming that he was “requested” when in fact he was not requested by name by the contractor. 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)

152. On January 27, 1997, Local 806 received a request for one laborer to report to Fairplex on January 28, 1997. GEB Ex. 28b. Michael Leon took the dispatch. The worker was not requested by name. Tr. III at 108.

153. On January 28, 1997, Local 806 dispatched Melchor Lopez to Fairplex without his being specifically requested by name. Tr. III at 95. Michael Leon testified that Lopez was sent because he performed concrete work and Fairplex had requested a concrete laborer. Id.

154. In response to Charge 10, Respondents offered a letter showing that on March 15, 1995, Shacklett sent Gabriel Leon a written request asking that Melchor Lopez be dispatched to Fairplex starting March 16, 1995, and be classified as a Group I specialty class pursuant to the Master Labor Agreement. R. Ex. 6, Letter from Bill Shacklett, General Superintendent, to Gabe Leon of March 15, 1995.

155. Joe Bauman and Melchor Lopez were the only concrete workers from Local 806 sent to do concrete work at Fairplex. Tr. III at 96, 98.

156. Regardless of Bauman’s and Lopez’s qualifications as concrete workers, the January 27, 1998 request was not for concrete workers but for a laborer, therefore, there was no reason for a Lopez to have been sent ahead of other laborers.

157. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996, and was not dispatched until September 5, 1997. GEB Ex. 22.

158. Melchor Lopez was registered on page 6-NL of the out-of-work list on October 14, 1996, and was dispatched to Fairplex on January 28, 1997. Id.

159. Melchor Lopez was dispatched out of order over Hermosillo.

160. The IHO notes that Gabriel Leon attempted to conceal his improper dispatch by writing “requested” on the out-of-work list when the intake sheet written by Michael Leon indicates only a generic, not by name, request.

161. Charge 11 states as follows:

Charge 11 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about March 7, 1997, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 members Norberto Limon, Salvador Limon, James Otero, Nicolas Zamudio, Jubenal Briseno and others unnamed to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment, claiming that they were “requests” when in fact they were not requested by name by the contractor. 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)

162. On March 5, 1997, Fairplex requested thirteen waste management workers and one laborer for March 7, 1997. GEB Ex. 28b. Michael Leon took the dispatch. None of the workers were requested by name. Tr. III at 108.

163. Michael Leon testified that the dispatch identified in Charge 11 was for a waste management job after a trade show. Tr. III at 100.

164. Michael Leon also testified that Norberto Limon, Salvador Limon, Nicholas Zamudio, and Jubenal Briseno were dispatched because they were the regular employees that normally worked the waste management jobs after trade shows, and they were all familiar with the fairgrounds. Tr. III at 101.

165. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996. GEB Ex. 22. He was not dispatched until September 5, 1997. Id.

166. The following members were dispatched to Fairplex as requested workers on March 7, 1997: Norberto Limon and Salvador Limon registered on page 5-NL of the out-of-work list on October 8, 1996; Nicolas Zamudio registered on page 10-NL of the out-of-work list on January 22, 1997; Jubenal Briseno registered on page 10-NL of the out-of-work list on February 12, 1997; Adolfo Garcia registered on page 5-NL of the out-of-work list on October 7, 1996; Francisco Solorio registered on page 10-NL of the out-of-work list on January 23, 1997; Miguel Reyes registered on page 8-NL of the out-of-work list on November 26, 1996; Juan L. Ortiz registered on page 6-NL of the out-of-work list on October 16, 1996; and Sebastian Macias registered on page 7-NL of the out-of-work list on November 18, 1996. Id. Juan Solorio registered on page 4-NL of the out-of-work list on October 7, 1996 was also dispatched on March 7, 1997, although not as a request. Id.

167. James Otero is a grandfathered employee with Fairplex. Tr. III at 100; see also GEB Ex. 8, Fairplex Agreement, at 15.

168. As a grandfathered employee, Otero was properly given priority in dispatch. Norberto Limon, Salvador Limon, Nicolas Zamudio, Jubenal Briseno, Adolfo Garcia, Francisco Solorio, Miguel Reyes, Juan Solorio, Juan L. Ortiz, and Sebastian Macias, although regular employees at Fairplex, were improperly dispatched ahead of Hermosillo.

169. The IHO again notes that Gabriel Leon attempted to conceal his improper dispatch by writing “requested” on the out-of-work list when both Gabriel Leon and Michael Leon’s testimony indicate the members had not been requested by name and the intake sheet written by Michael Leon indicates only a generic, not by name, request.

170. Charge 12 states as follows:

Charge 12 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about March 17, 1997, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 members James Otero, Miguel Reyes and Francisco Solorio to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment, claiming that they were “requests” when in fact they were not requested by name by the contractor. 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)

171. On March 14, 1997, Local 806 received a request from Fairplex for four laborers to report on March 17, 1997. GEB Ex. 28b. Jean Dwyer, a temporary secretary for Local 806, took the request. None of the workers were requested by name. Tr. III at 108.

172. Michael Leon testified that Francisco Solorio, James Otero, and Miguel Reyes were dispatched as general laborers to work with livestock. Tr. III at 102. However, the IHO notes that the request indicated laborers, not livestock laborers.

173. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996. GEB Ex. 22. He was not dispatched until September 5, 1997. Id.

174. Francisco Solorio registered on page 11-NL of the out-of-work list on March 14, 1997, and was dispatched to Fairplex as a requested worker on March 17, 1997. Id. Miguel C. Reyes was registered on page 10-NL of the out-of-work list on January 22, 1997 and was dispatched as a requested worker to Fairplex on March 17, 1997. Id.

175. Michael Leon testified that James Otero was dispatched on March 17, 1999, because he was a grandfathered employee and therefore had seniority. Tr. III at 101.

176. James Otero was properly given precedence in being sent to Fairplex from the out-of-work list; however, Francisco Solorio and Miguel C. Reyes were improperly dispatched ahead of Hermosillo.

177. The IHO notes that Gabriel Leon attempted to conceal his improper dispatch by writing “requested” on the out-of-work list when the intake sheet written by Jean Dwyer, a temporary secretary, indicates only a generic, not by name, request.

178. Charge 13 states as follows:

Charge 13 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about April 25, 1997, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon dispatched Local 806 members Jubenal Briseno, Francisco Solorio, Rigoberto Arias and Sebastian Macias and others unnamed to work at Fairplex ahead of at least one other hiring hall registrant who was qualified to perform the work and available for employment, claiming that they were “requests” when in fact they were not requested by name by the contractor. 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)

179. On April 23, 1997, Fairplex requested thirteen waste management workers from Local 806 for April 27, 1997. GEB Ex. 28b. Michael Leon took the dispatch. None of the workers were requested by name. Tr. III at 108. Michael Leon testified that on April 25, 1997, workers were dispatched to Fairplex for waste management after a trade show. Tr. III at 102.

180. As previously discussed, Michael Leon testified that Jubenal Briseno, Francisco Solorio, and Rigoberto Arias were dispatched because they were the regular employees that normally worked the waste management jobs after trade shows. Tr. III at 92, 93, 101, 103. Sebastian Macias was a regular employee of Fairplex and familiar with the fairgrounds. Tr. III at 102-03.

181. As stated above, Hermosillo was registered on page 3-NL of the out-of-work list on September 30, 1996. GEB Ex. 22. He was not dispatched until September 5, 1997. Id.

182. The following members were dispatched as requested workers on April 25, 1997: Miguel C. Reyes registered on page 13-NL of the out-of-work list on April 23, 1997; Jubenal Briseno registered on page 13-NL of the out-of-work list on April 21, 1997; Francisco Solorio registered on page 12-NL of the out-of-work list on April 9, 1997; Juan L. Ortiz registered on page 12-NL of the out-of-work list on March 25, 1997; Rigoberto Z. Arias registered on page 7-NL of the out-of-work list on November 18, 1996; Sebastian Macias registered on page 13-NL of the out-of-work list on April 11, 1997; and Mario Cardenas registered on page 11-NL of the out-of-work list on March 24, 1997. Nicolas Zamudio registered on page 13-NL of the out-of-work list on April 23, 1997 was also dispatched on April 25, 1997, but not as a requested worker.

183. Familiarity with the fairgrounds is not a defense to an out of order dispatch. Hermosillo, who is also familiar with the fairgrounds should have been dispatched first because of his position on the out-of-work list.

184. Jubenal Briseno, Francisco Solorio, Rigoberto Z. Arias, Sebastian Macias, Miguel C. Reyes, Nicolas Zamudio, Juan Ortiz, and Mario Cardenas were improperly dispatched ahead of Hermosillo.

185. The IHO notes that Gabriel Leon attempted to conceal his improper dispatch by writing “requested” the out-of-work list when the intake sheet written by Gabriel Leon indicates only a generic, not by name, request.

186. Charge 14 states as follows:

Charge 14 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

Between on or about January 8, 1997 and the present, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: Gabriel M. Leon and Michael Leon failed to adequately maintain dispatch records. This conduct violated:

-the LIUNA Ethical Practices Code, Democratic Practices Section, paras. 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)

187. As discussed above in the findings regarding charges 7, 8, 9, 10, 11, 12, and 13, Gabriel and Michael Leon improperly dispatched members out of order. The IHO adopts the above findings in reference to charge 14.

188. On roll call day, the members personally come to the Local hiring hall and sign the sign-in list. Tr. II at 190.

189. After roll call, it was the practice of Gabriel and Michael Leon go through the out-of-work list and strike anyone from the out-of-work list who has not signed in on the sign-in list. Id. Additionally, any member who signs in and was not on the out-of-work list is added to the out-of-work list. Tr. II at 190-91.

190. Investigation by the GEB Attorney revealed that certain individuals had been added to the out-of-work list without having signed-in. Tr. II at 192. The following examples are illustrative of this practice:

-Norberto Limon’s name appeared on the out-of-work list for October 8, 1996, but his name did not appear on the sign-in list. Tr. II at 192. Gabriel Leon verified that Norberto Limon’s name was placed on the out-of-work list without Limon’s having signed up. Tr. II at 192.

-James Otero’s name appeared on the December 3, 1996 out-of-work list but he had not signed up. Tr. II at 193.

-Jubenal Briseno’s name appeared on the March 28, 1997 out-of-work list but he had not signed up. Tr. II at 193.

-Jubenal Brisno’s name also appeared on the April 21, 1997 out-of-work list but not the sign-in list. Tr. II at 193.

191. When asked about the discrepancies between the out-of-work list and that sign up lists, Michael Leon stated that on October 8, 1996, Norberto Limon was requested by Fairplex, went to the Local to be dispatched, but forgot to sign the sign-up list. Tr. III at 182. However, when asked if he specifically recollected Norberto Limon going to the Local hall on October 8, 1996, Michael Leon stated that he did not. Id. Michael Leon claimed the same mistake had occurred with James Otero. Id. Michael Leon gave the same explanation regarding both instances with Jubenal Briseno. Tr. III at 183. Michael Leon again gave the same explanation for David Calderon but stated that the Local had received a specific letter requesting Calderon. Id. The IHO finds the explanations given by Michael Leon to be incredible.

192. In order to be hired as a request, a member must be on the out-of-work list. Therefore, even if Norberto Limon, James Otero, and Jubenal Briseno had been specific requests, they were required to have been on the out-of-work list before they could have been dispatched as specific requests. If the individuals were not on the list, the Leons could not notify them of the request and dispatch them ahead of other members who were on the list.

193. While in the other charges James Otero was properly discharged ahead of others as a grandfathered employee, the same is not true in Charge 14 because grandfathered employees are given preference only when they are properly registered on the sign-in list and out-of-work list.

194. Michael Leon confirmed that a member must appear in person to be added on the out-of-work list and that the only way to verify that a person had appeared was to check the sign-in list. Id. Michael Leon stated that he knew that it would be improper to give certain members special treatment by adding their names to the out-of-work list without requiring them to appear and that such action could cause other members to believe that they were being discriminated against. Tr. III at 184.

195. On approximately September 18, 1996, Gabriel and Michael Leon sent Inspector General investigator William Fleming a copy of the out-of-work list. Tr. II at 205-07. The list did not reflect Steve Pope’s dispatch to C.C. Myers on September 13, 1996. A second version was later sent on November 20, 1997, to the GEB Attorney and Inspector Fleming which reflected Pope’s dispatch to C.C. Myers after a dispatch to Laird Construction for which he did not work. GEB Ex. 23. The changes in the two copies are in Gabriel Leon’s handwriting but no explanation was provided for the discrepancy other than the list was “updated.” Tr. II at 207-09. The IHO does not find the discrepancy as evidence of sinister intent to thwart the IG but only as evidence of lax record keeping.

DISCUSSION

Respondents claim that the NLRB has the exclusive jurisdiction of regulating hiring halls, and it is not within the purview of the LIUNA disciplinary process. The argument is without merit. While it is true that the NLRB has jurisdiction over hiring hall practices, such jurisdiction does not prevent a union from policing itself. The union is responsible for maintaining its hiring halls and the NLRB is the safety valve should the self-regulation fail. To hold otherwise is to give local hiring halls carte blanche to operate improper hiring halls until someone files a successful grievance with the NLRB.

In In the Matter of Joe R. Gutierrez, 1997 A.O. 139, 170 (97-015-IHO), the Appellate Officer established standards for reviewing allegations of improper dispatch. In a two prong procedure, the GEB Attorney must first establish a prima facie case by showing that “a member was dispatched to a job ahead of at least one more senior member of the Local’s out-of-work list,” and then that “the more senior member was otherwise eligible to be dispatched.” Id. at 171. Once the GEB Attorney has made this showing, the burden shifts to the charged party to demonstrate a valid exception for the challenged dispatch. Id. Even notice to the membership regarding dispatch procedures exceptions “[will] not excuse an otherwise improper dispatch if the procedures were themselves inconsistent with federal law.” Id. (Emphasis in original).

Here the GEB Attorney has demonstrated that members were dispatched ahead of Hermosillo and that Hermosillo was eligible to be dispatched. In response, Respondents claim they were justified in sending workers out of order from the out-of-work list as named requests because the workers had previously worked for Fairplex and there was an “oral agreement” between Fairplex and Local whereby Fairplex was to be sent workers experienced with the fairgrounds ahead of other workers. The IHO has found that such an agreement never existed. The existence of such an agreement, even if true, violates federal law. While variances from collective agreements are permitted by the NLRB, any exceptions to collective bargaining agreements must be written and published so that the membership is aware of the exception and how it operates. Any other method leads to an appearance of favoritism. See, e.g., Boilermakers Local No. 374 v. NLRB, 852 F.2d 1353, 1358 (D.C. Cir. 1988)(“The duty of fair representation requires the union not only to refrain from arbitrary refusals to permit registration for a hiring hall, but also to inform workers of relevant rules.”); Plumbers and Pipe Fitters Union No. 32 v. NLRB, 50 F.3d 29, 34 (D.C. Cir. 1995)(“We remain confident that unions that operate hiring halls without objective criteria violate their duty of fair representation.”). Even if an agreement had existed, Hermosillo had previous experience at Fairplex and would have qualified for priority in dispatch. Furthermore, the existence of such an agreement would not justify dispatching members as named requests when the members had not in fact been requested by name.

Gabriel Leon, as the Business Manager, had a duty to ensure that dispatching rules were clear and evenly applied to all members. In Gutierrez, the Appellate Officer found that “confusion in the applicable dispatch standards weighs substantially against, not in favor of” the Business Manager because the Business Manager “was no mere employee of” the Local. The Business Manager is “’the recognized representative of the Local Union’ with a constitutional obligation to ‘see to it that the affairs and business of the Local Union are being properly conducted,’ including a duty ‘to see to it that the provisions of all agreements are enforced and respected by all persons affected thereby.’” Gutierrez at 170 citing LIUNA Uniform Local Uniform Constitution Art. IV, § 4(E).

CONCLUSIONS (CHARGES 7, 8, 9, 10, 11, 12, 13, AND 14)

16. Michael and Gabriel Leon continually dispatched persons out of turn on the dates alleged in charges 7, 8, 9, 10, 11, 12, 13, and 14.

17. There was no oral agreement between the Leons and Fairplex regarding priority in dispatch for regular Fairplex employees.

18. The reasons for dispatching out of order given by Michael and Gabriel Leon lacked any credibility, and their practice of dispatch reflected their intent to control the work dispatch to their friends, and punish those who were in their disfavor.

19. The evidence as to charge 14 clearly demonstrates a failure to maintain adequate dispatch records. As demonstrated in this instance, such an inadequate system can be a vehicle to manipulate the hiring hall dispatch system.

FINDINGS OF FACT

196. Charge 6 states as follows:

Charge 6 (Unlawful Hiring Hall Practice by Gabriel M. Leon and Michael Leon)

On or about September 12 and 13, 1996, Gabriel M. Leon and Michael Leon engaged in unfair, unlawful, discriminatory and undemocratic practices; to wit: On September 12, 1996, Gabriel M. Leon dispatched Local 806 member Ruben Vivanco to a job with C.C. Meyers that Mr. Vivanco was unable to find. On September 13, 1996, Mr. Vivanco was present at the hiring hall during dispatch hours. Rather than providing Mr. Vivanco assistance in finding the C.C. Meyers job, Gabriel M. Leon and Michael Leon placed Mr. Vivanco’s name at the bottom of the out-of-work list and dispatched Steve Pope, a member registered below Mr. Vivanco on the out-of-work list, to the C.C. Meyers job. 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)

197. On September 12, 1996, Gabriel Leon dispatched Ruben Vivanco to a job with contractor C.C. Myers. Tr. I at 95. See also GEB Ex. 17. The dispatch slip filled out by Gabriel Leon and given to Vivanco lists the job location as “Reservoir and 60 Fwy” in Pomona.[14] Id. Vivanco testified that Gabriel Leon did not give him any other instructions on how to locate the job site. Tr. II at 80.

198. Gabriel Leon testified that he told Vivanco that the supervisor for the C.C. Myers job site would be located on the freeway where the work was being performed. Tr. I at 100. While he testified that he did not know how many job sites were being performed on the freeway at the time of the dispatch, Gabriel Leon also testified that he was aware there was more than one job being performed on the freeway. Tr. I at 101.

199. In order to get to the C.C. Myers job site from Local 806 it is necessary to travel south on Reservoir until Reservoir intersects with the 60 Freeway. Tr. I at 97. At the intersection of Reservoir and the Freeway, it is possible to go either east or west. Id. The dispatch slip did not indicate which direction Vivanco was to turn in order to reach the job site. See also GEB Ex. 17.

200. Gabriel Leon testified that he marked the direction for getting on the freeway on a map and that he told Vivanco to enter the freeway from Reservoir going west and that he marked the direction on a map. Tr. I at 98. Vivanco denied that he was provided with a map on September 12, 1996. Tr. II at 80.

201. Vivanco testified that he asked another member, Jose Rodriguez, how to get to the C.C. Myers job site listed on the dispatch slip. Tr. II at 81. Rodriguez told Vivanco that the site was near Rodriguez’s house and gave Vivanco directions on how to get to the address. Id. Vivanco testified that when he got to the address on the dispatch slip, there was no work being performed. Id.

202. After searching eastbound and westbound on the freeway, Vivanco stopped at an office of a commercial business and asked a woman employee for help. Tr. II at 82. The woman did not know the location of the job site but placed a call to call Local 806 on Vivanco’s behalf. Id. The woman spoke to Gabriel Leon and told him she had a worker at her office who he had dispatched to the C.C. Myers job and who could not find the job site. Tr. II at 83. The woman asked Gabriel Leon whether he had a telephone number for C.C. Myers so that she could call and ask for directions. Tr. II at 84. Gabriel Leon told her that he did not. Id.

203. Gabriel Leon denied having a conversation with the woman regarding Vivanco. During the hearing, however, Gabriel Leon testified that on November 20, 1997, in his presence, Michael Leon told the GEB Attorney in an interview that a secretary from MCM had called the local on Vivanco’s behalf on September 12, 1996.[15] Tr. III at 173. Michael Leon denied having told this to the GEB Attorney and said that he and Gabriel had not found out until later that a secretary from MCM had contacted C.C. Myers on Vivanco’s behalf to try and locate the job site foreman. Tr. III at 175.

204. Even though both Gabriel Leon and Michael Leon both denied knowledge of a phone call from a woman employee on Vivanco’s behalf until much after the fact, it is obvious that one of the two received a phone call informing them Vivanco was lost and calling for help. The better practice upon receipt of such a call would have been to request to speak directly with Vivanco to determine his location and instruct him how to reach the job site.

205. Unable to find the job site, Vivanco went home, telephoned Local 806, and spoke with Michael Leon. Tr. II at 84. Vivanco stated that Michael Leon asked Vivanco whether he wanted to work or not, told him they needed Vivanco to pour cement, and only gave Vivanco a beeper number. Tr. II at 85. Vivanco testified that he called the beeper number two or three times but received no answer. Id.

206. Michael Leon testified that he had received a phone call from Vivanco telling him that he could not find the job site. Tr. II at 199. Michael Leon told Vivanco that the contractor had just phoned him and was still in need of a laborer, and Michael gave Vivanco a pager phone number to reach the contractor. Tr. II at 200, 213.

207. Gabriel Leon did not speak with Vivanco after he dispatched him on September 12, 1996, Gabriel Leon was, however, aware that Vivanco called Local 806 later in the day and spoke with Michael Leon. Tr. I at 101.

208. Gabriel Leon denies being told by Vivanco that he had been unable to find the job site on September 12, 1996. Tr. I at 101.

209. At the time of his dispatch to C.C. Myers on September 12, 1996, Vivanco was on the out-of-work list. GEB Ex. 21 at 25-L line 9. After the dispatch, Vivanco’s name was removed from the list. Id.

210. Vivanco returned to Local 806 during morning dispatch hours the next day, September 13, 1996. Tr. I at 102-03; Tr. II at 85. Vivanco was not re-dispatched.

211. Steve Pope (“Pope”) testified that Gabriel Leon had approached him on the morning of the 13th, as Gabriel was opening the office, and asked him if he was ready to go to work. Tr. II at 149. Pope was dispatched to the C.C. Myers job where he worked 246.5 hours. GEB Ex. 19-20.

212. Pope had been dispatched to a different job with Laird Construction the day before, but as the job was out of Local 806’s jurisdiction, and Pope was permitted to turn it down. Tr. II at 148. GEB Ex. 19. Pope was returned to his position at the top of the out-of-work list. Pope’s name appeared below Vivanco’s on the out-of-work list on September 13, 1996. Tr. III at 114. See also GEB Ex. 21, 25-L and 28-L.

213. Both Gabriel and Michael Leon agreed that if a member had returned to the local and said he could not find the job site, the proper procedure under such circumstances would have been to keep him on the list at his original position. Tr. I. at 104; Tr. II at 202.

214. Vivanco and Gabriel Leon argued over Gabriel’s having given the job to another member. Pope confirmed that he had heard an argument between Gabriel Leon and Vivanco concerning Pope’s assignment to the job, but could not fully understand the discussion because it was partly in Spanish. Tr. II at 147.

215. Michael Leon testified that he was not involved in Pope’s dispatch or the ensuing argument between Gabriel Leon and Vivanco. Tr. II at 201.

216. Instead of being left in his position at the top of the list, Vivanco was placed on the bottom of the list on September 13, 1996. See GEB Ex. 21 at 41-L, line 6.

217. Gabriel Leon testified that Vivanco after waiting on the out-of-work list from March 20, 1996 to September 12, 1996, asked to be permitted to sign the bottom of the out-of-work list. Tr. I at 105-06. Michael Leon gave similar testimony. Tr. II at 202; Tr. III at 82. At that point, Vivanco’s signing the bottom of the sign-in list is irrelevant. Vivanco had just witnessed a worker dispatched improperly before him. Vivanco’s act of asking to sign the bottom of the list has no effect on the significance of the events described above, especially when considered in light of the fact that the Leons had removed his name from the out-of-work list at the time they dispatched him to C.C. Myers.

218. Vivanco was in the union hall and heard Gabriel Leon give Pope directions on how to arrive at the C.C. Myers job site. Tr. II at 85. Pope verified that Gabriel Leon had instructed Pope on how to find the job site. Tr. II at 149-50. Pope also stated that the only C.C. Myers identification at the job site was the foreman’s pickup truck. Tr. II at 151.

219. Pope also testified that both the street to access the Freeway and the job site itself were not on the map given to him. Tr. II at 152-54. The IHO finds that even if Gabriel Leon had given Vivanco a copy of the map, which the IHO finds he had not, the map was inadequate and alone would not have enabled Vivanco to reach the job site.

220. Pope testified that he had received a map with directions from Gabriel Leon. Tr. II at 141. Pope testified that he too had had difficulty locating the C.C. Myers job site even with a map, and that there were several construction jobs underway on the Freeway. Tr. II at 144-45.

CONCLUSIONS (CHARGE 6)

20. The record is not clear what directions Gabriel Leon or Michael Leon gave to Vivanco. Notwithstanding the Leons’ response to Vivanco’s phone calls, there is not a preponderance of the evidence that Gabriel and Michael Leon purposely gave Vivanco incomplete directions to the C.C. Myers job.

21. There is a preponderance of the evidence that Gabriel and Michael Leon deliberately and improperly dispatched Pope out of turn to the C.C. Myers job the next day over Vivanco. Vivanco, not having been able to find the job the day before, should have been dispatched before Pope.

DISCUSSION

The GEB Attorney has alleged the following violations in each of the charges: the Ethical Practices Code, Title 29 U.S.C. '' 158, and Article III, Section 2 (a) and Article IV, Section 4 (E) of the Uniform Local Union Constitution (“Constitution”).

The LIUNA Ethical Practices Code, Democratic Practices Section provides in pertinent part:

Each member shall be entitled to a full share in Union self-government. Each member shall have full freedom of speech and the right to participate in the democratic decisions of the Union…

All Union rules and laws must be fairly and uniformly applied and disciplinary procedures shall be fair and afford full due process to each member.

The Union shall ensure that its operations shall be conducted in a democratic and fair manner. Corruption, discrimination or anti-democratic procedures shall not be permitted under any circumstances.

Article III, Section 2 of the Constitution states in pertinent part:

[A]ll persons having lawfully acquired membership in the Union, shall be entitled to the following rights:

To be represented by the Union for the purpose of collective bargaining and to work as a member of the Union and enjoy all of the benefits that flow therefrom, in accordance with agreements, understandings, or conditions properly established by the Local Union;

Article IV Section 4 E states in pertinent part:

It shall be the duty of the Business Manager of a Local Union to see to it that the affairs and business of the Local Union are being properly conducted in accordance with the Constitutions and with the rules, regulations, policies, practices and lawful orders and decisions.

Respondents are charged in part under 29 U.S.C. '' 157-58. Title 29 U.S.C. ' 158 provides in pertinent part:

Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents--

to restrain or coerce … employees in the exercise of the rights guaranteed in section 157 of this title…

to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section…

Title 29 U.S.C. ' 157 provides in pertinent part:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 158 (a)(3) of this title.

CONCLUSIONS

22. An exclusive bargaining agent has a statutory duty to fairly represent all the employees, without hostility or discrimination. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903 (1967); Teamsters Local 729 (Penntruck Co.), 189 NLRB 696 (1971)(establishing duty of representation test distinguishing personal animosity from animosity resulting from a protected union activity). NLRB Administrative Law Judge Litvack specifically found that while the Leons’ problems with Vivanco may have eventually included personal animosity, the problems originally stemmed from the Leons’ reaction to Vivanco’s protected union activities, the election of 1983, and the picketing since that time, which decision was upheld by the Ninth Circuit Court of Appeals. National Labor Relations Board v. Local No. 806, No. 91-70404 (9th Cir. 1992).

23. The Leons demonstrated their feelings for Vivanco and his friends by their characterizing them as “dissidents” and “nihilists.”[16] Vivanco and friends’ dissident activities do not strip them of their protection to fair representation under 29 U.S.C. 158(b) and participation in protected activities under 29 U.S.C. 157. By threatening Vivanco with lack of employment and causing loss of employment at Fairplex, the Leons sought to stop or punish their dissident activities, in violation of federal law.

24. The IHO finds that the Leons have continued their attacks on Vivanco for the same reasons as found by Judge Litvack in National Labor Relations Board v. Local No.806, No. 91-70404 (9th Cir. 1992). The problems of retribution and lack of fair representation for Vivanco developed from the 1983 campaign election and the subsequent picketing. The disagreements and picketing began after a contested election.

25. Gabriel Leon, by causing Vivanco to be redlined by Fairplex, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

26. Charge 1 has been proved by a preponderance of the evidence.

27. Gabriel Leon and Michael Leon, by telling Vivanco that he could continue paying his dues but would never be sent to work, in retaliation for Vivanco’s protected dissident activities, violated the Ethical Practices Code, Title 29 USC '' 158, Article III, Section 2 (a) and Article IV, Section 4 (e), as set out above.

28. Charges 2, 3, and 16 have been proved by a preponderance of the evidence.

29. Gabriel Leon, by refusing to allow Vivanco and Rodriguez access to the out of work list despite written requests, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

30. Charges 5 and 18 have been proved by a preponderance of the evidence.

31. As the IHO has given the Leons the benefit of the doubt in their interpretation of the settlement agreement that they could require requests to examine the out-of-work list to be in writing, Charges 4 and 17 have not been proved by a preponderance of the evidence.

32. From this date forward, unless the International Union issues a clear policy to the contrary, a local union may not require requests to view the out-of-work list to be in writing.

33. Gabriel Leon and Michael Leon, by dispatching members out of order from the out-of-work list, and giving dispatch preference to their friends in lieu of members in their disfavor, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

34. Gabriel Leon and Michael Leon, by dispatching members as named requests ahead of other members on the out-of-work list, and indicating on the out-of-work list that such members had been requested by name when they in fact had not been requested by name, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

35. Charges 7, 8, 9,10, 11, 12,13, with the exception of the references to James Otero, have been proved by a preponderance of the evidence.

36. Gabriel Leon and Michael Leon, by deliberately and improperly dispatching another member to the C.C. Myers job ahead of Vivanco, when their normal procedure would be to redispatch a member unable to find a job site, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

37. Charge 6 has been proved by a preponderance of the evidence, with the exception of the portion related to giving Vivanco improper directions.

38. Gabriel Leon and Michael Leon, by registering members on the out-of-work list who had not registered on the sign-in list, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

39. Gabriel Leon and Michael Leon, by dispatching members as requests who had not registered on the sign-in list ahead of other members properly registered on the sign-in list, violated the Ethical Practices Code, Title 29 USC '' 158, Constitution Article III, Section 2 (a), and Constitution Article IV, Section 4 (e).

40. Charge 14 has been proved by a preponderance of the evidence.

41. The IHO finds it disturbing that Vivanco picketed the union hall with numerous others for several years without some inquiry by the District Council or the upper management of the International Union making an inquiry. This is further aggravated by the adverse rulings against Local 806 by the NLRB. These actions should have put the District Council and International Union on notice that there was some difficulty in the solidarity of the membership at Local 806. Although many viewed Vivanco as a dissident, LIUNA is a union that respects reasonable dissent. Without addressing whether Vivanco’s reasons for picketing had any merit, the cause for the dissent and the picket lines should have been addressed long before now.

DECISION

Charges 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 18 have been proved by a preponderance of the evidence. Charges 4 and 17 have not been proved by a preponderance of the evidence.

PENALTY

Gabriel Leon’s membership in LIUNA is revoked for a period of 4 years from the time this Order and Memorandum becomes final. Gabriel Leon is barred from holding an office in or being employed by Local 806 or from being an officer or being employed by any LIUNA affiliated entity or fund for 4 years from the time this Order and Memorandum becomes final. Gabriel Leon is fined $4000.

Michael Leon’s membership in LIUNA is revoked for a period of 4 years from the time this Order and Memorandum becomes final. Michael Leon is barred from holding an office in or being employed by Local 806 or from being an officer or being employed by any LIUNA affiliated entity or fund for 4 years from the time this Order and Memorandum becomes final. Michael Leon is fined $4000.

Gabriel Leon and Michael Leon have a right to appeal this Order to the LIUNA Appellate Officer by filing a Notice of Appeal with the Appellate Officer within 10 days of the date of this Order.

Upon their removal from office, Local 806 is to fill the vacancies with an open election pursuant to Article VI, of the Constitution. Their positions are not to be filled, even temporarily by appointments by the Executive Board. The General President is authorized to appoint an emergency trustee to fill the void until an election can be held.

The Appellate Officer is:

W. Neil Eggleston, Appellate Officer

1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 783-0800

(202) 383-6610 (fax)

This Order does not take effect until 10 days after the date of this Order, and if appealed, upon the decision of the Appellate Officer.

	SIGNED
	PETER F. VAIRA
	INDEPENDENT HEARING OFFICER
Date: August 24, 1999
George A. Pappy, Esquire Karen L. Snell, Esquire Gabriel Leon Michael Leon Local Union 806

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[1] The ABPA administrates the health benefits for the membership of the Local and the collection department contacts the contracted employers that are behind in their benefits. Tr. 11 at 196.

[2] Fairplex has a contractual right to send redline letters to the union to bar the laborers it names from returning to work at Fairplex. Tr. II at 156.

[3] The three complaints were consolidated on May 15, 1986.

[4] NLRB cases 21-CB-11002, 21-CB-11114, and 21-CB-11205 were consolidated.

[5] There is no evidence in the record of the result of the grievance. The IHO gives no probative value to the fact that a grievance was filed.

[6] Even though Shacklett had just begun work at Fairplex, through previously having worked for his father in the construction industry, Shacklett has known the Leons almost thirty (30) years. Tr. II at 184.

[7] Chiatovich testified that the reason verifying Vivanco’s pay records was so time consuming was not the complexity of Vivanco’s request, but the way in which Fairplex organized its records so that payroll searches had to be done manually. Tr. III at 59.

[8] The Local 806 out-of-work list is further discussed in Findings 98-118 infra.

[9] Examples of the dispatch forms can be seen in GEB Ex. 28.

[10] Either Michael or Gabriel Leon and, on some occasions, a temporary secretary.

[11] For more detailed dispatching procedures regarding order of preference, see MLA, Article III, Section A.

[12] Gabriel Leon himself did not dispute that such a conclusion can be reached based upon Local 806 documents. Tr. I at 94.

[13] The transcript indicates that “Rene” Lopez was also a regular at Fairplex, however, it is unclear if this should have read “Irineo” Lopez and was mispronounced or mistranscribed. The IHO gives the Leons the benefit of the doubt and accepts that Irineo Lopez was also a regular at Fairplex.

[14] The 60 Freeway is an eight lane highway, with four lanes each direction and a space between the two sides. Tr. I at 96.

[15] MCM is a brother company of C.C. Myers, while they are not the same company, the owners are from the same family. Tr. III at 174.

[16] Respondent’s attorney goes so far as to offer his “personal opinion” that Vivanco is a nihilist and in the incident described in Charge 6, states that Vivanco purposely did not go to the job to create a claim. A nihilist is defined as a person who wants to break down all established order. Webster’s New World College Dictionary (3d ed. 1997). Aside from the impropriety of a lawyer giving his personal opinions, Rule 5-200(E) California Rules of Professional Conduct; People v. Tyler, 233 Cal.App.3d 1456, 1460, the IHO concludes that a person, such as Vivanco, who has utilized the established procedures of the NLRB on numerous occasions to file grievances, can hardly be viewed as an anarchist who wants to break down all established order.