Operating Engineers Local 406, 981 (1995)

International Union of Operating Engineers, Local

Union No. 406, AFL-CIO and Lloyd E. ''Sonny'' Mason and Laborers International Union of North America, Professional Employees Local Union No. 693

International Union of Operating Engineers, Local

Union No. 406, AFL-CIO (Boh Brothers Construction Co., Inc.) and James Madison White International Union of Operating Engineers, Local

Union No. 406, AFL-CIO (International Maintenance Corporation and Charles Miller Construction Co., Inc.) and Joseph Robert Ezell. Cases 15-CA-12226, 15-CA-12227, 15-CB- 3936, and 15-CB-3941

June 27, 1995

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND TRUESDALE

On March 8, 1995, Administrative Law Judge Peter

E. Donnelly issued the attached decision. The Charging Party, Laborers' International Union of North America, Professional Employees Local Union No. 693, filed exceptions and a supporting brief.1 The Respondent, International Union of Operating Engineers, Local Union No. 406, filed an answering brief to the Charging Party's exceptions, to which Charging Party Mason responded.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Union of Operating Engineers, Local Union No. 406, Lake Charles, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Charles R. Rogers, Esq., for the General Counsel.

Louis L. Robein, Jr., Esq., of Metaire, Louisiana, for the Respondent.

DECISION

STATEMENT OF THE CASE

PETER E. DONNELLY, Administrative Law Judge. On charges filed by Lloyd E. (Sonny) Mason, an individual, and Laborers International Union of North America, Professional Employees Local Union No. 693 (Charging Party or Local 693), a consolidated complaint issued on September 3, 1994, alleging that International Union of Operating Engineers, Local Union No. 406, AFL-CIO (Employer, Respondent, Union, or Local 406), discriminatorily discharged employee Bennie Seal in violation of Section 8(a)(3) of the Act and also discharged Supervisor Sonny Mason in violation of Section 8(a)(1) of the Act for refusing to discharge Seal. On charges filed by James White and Joseph Ezell, both individuals, a consolidated complaint issued on June 29, 1994, alleging that Local 406 refused to refer Ezell for employment in violation of Section 8(b)(2) of the Act and, further, that Respondent violated Section 8(b)(1)(A) of the Act by threatening employees with unspecified reprisals and also threatening and inflicting bodily harm on White for engaging in dissident union activity. By order dated June 29, 1994, these cases were consolidated. Answers were timely filed by Respondent. Pursuant to notice, this case was heard before me on October 11, 12, 13, and 14, 1994. Briefs have been timely filed by Respondent and the General Counsel, which have been duly considered.

FINDINGS OF FACT

1. EMPLOYER'S BUSINESS

   The Employer, Local 406, is an organization engaged in the business of representing employees in dealing with employers concerning wages, hours, terms, and conditions of employment. During the 12-month period ending August 31, 1993, Local 406, in conducting the operations described above, received dues and initiation fees in excess of $50,000 and remitted from its New Orleans facility to its Washington, D.C. facility of the International Union of Operating Engineers dues and initiation fees in excess of $50,000.

   Boh Brothers Construction Co., Inc., a corporation with officers and places of business in New Orleans and Lake Charles, Louisiana, has been engaged as a building and maintenance contractor in the construction industry. During the 12-month period ending May 31, 1994, Boh Brothers, in conducting its business operations described above, purchased and received at its Louisiana facility goods valued in excess of $50,000 directly from points outside the State of Louisiana.

   International Maintenance Corporation, a corporation with an office and place of business in Baton Rouge, Louisiana, and a construction jobsite in Sulphur, Louisiana, has been engaged as a maintenance contractor in the construction industry doing industrial construction and maintenance. In the 12-month period ending May 31, 1994, International, in conducting its business operations described above, purchased and received at its Sulphur jobsite goods valued in excess of $50,000 directly from points outside the State of Louisiana.

   Charles Miller Construction Co., Inc., a corporation with an office and place of business in West Lake, Louisiana (West Lake jobsite), has been engaged as a pipeline contractor in the construction industry doing industrial construction

   1 The exceptions were limited to the judge's dismissal of the allegation that Bennie Seal was unlawfully discharged.

   2 The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

   and maintenance. During the 12-month period ending May 31, 1994, Miller, in conducting business operations described above, purchased and received at its West Lake jobsite goods valued in excess of $50,000 directly from points outside the State of Louisiana. The complaints allege and the answers admit that the above-named Employers, including Local 406, are employers within the meaning of Section 2(2), (6), and

   (7) of the Act.

2. LABOR ORGANIZATIONS

   The complaint alleges, the answer admits, and I find that Charging Party Local 693 and Respondent Local 406 are labor organizations within the meaning of Section 2(5) of the Act.

3. THE EMPLOYER'S UNFAIR LABOR PRACTICE ALLEGATIONS

   A. Facts1

   1. Discharges of Sonny Mason and Bennie Seal

      The Respondent, Local 406, is a statewide local union of about 3000 members with headquarters in New Orleans and district offices in various localities, including Lake Charles, Louisiana, with about 475 members in the Lake Charles district. The Union's hierarchy in New Orleans consists of Peter Babin III, business manager and financial secretary, who has overall responsibility for the operation of Local 406. Don Schiro is president and pipeline business agent for Pipeline Construction. Carter Carpenter is vice president and business agent for the Baton Rouge district. Rayford Cloy is business agent for the New Orleans district and recording corresponding secretary of Local 406.

      It appears that all of the business agents report directly to Babin, including Schiro, Carpenter, and Cloy who also hold union office. Sonny Mason was the business agent for the Lake Charles district. Mason had no reporting responsibility except to Babin. In 1985, Sonny Mason had been a member of Local 406 working in the pipeline industry. At that time, Mason was recommended by his friend, Schiro, for the position of business agent in the Lake Charles district to replace the previous business agent, Willard Carlock, whose administration had been tainted by allegations of sexual misconduct involving the trading of job referrals for sex. At the time of the alleged misconduct, Carlock employed both his wife and a girlfriend in the district office. These revelations were the subject of various inquiries in the United States Senate by the Senate Labor Committee. Subsequently, lawsuits were also filed that included allegations that preference in job re-

      ferrals was being given to members contributing to a legal defense fund supporting Carlock, who had been charged with the misconduct.

      In October 1985, Mason was interviewed by Babin, Schiro, and Cloy in the conference room of the New Orleans office about his employment to replace Carlock. It is undisputed that Babin wanted to avoid any recurrence of the Carlock scandal. Based on the corroborated testimony of these witnesses, which I credit, Mason was told by Babin, inter alia, in referring to the problems involving Carlock's regime, that if he were to be hired, he would not be allowed to hire as employees in the Lake Charles district office either the wives or girlfriends of members. It does not appear that there exists any written prohibition against such employment. Babin conceded that Local 406 did at one time employ some of his relatives in various capacities. His mother and a cousin had been office employees. His mother left in about 1973 and his cousin in the mid-1980's.

      Mason concedes that he was interviewed but testified that he was told either by Babin or Schiro only that they would prefer that he not hire his wife or the wives of union members as employees. The corroborative testimony of Babin, Schiro, and Cloy persuades me, however, that the prohibition included girlfriends, and that Mason accepted this condition of employment.

      In late October 1985, Mason was hired as business agent for the Lake Charles district. At the time of his employment, Mason was married, and the office secretary was a woman named Jackie Trussclair. In July 1988, however, Mason discharged her and hired Bennie Seal. Mason and Seal were admittedly engaged in an intimate relationship.

      Schiro testified that prior to Seal's employment, Mason had disclosed to him that he was having a sexual relationship with Seal and intended to hire her as an office secretary. Schiro testified that he warned Mason that he knew the rules and was aware of the problems that the Lake Charles office had experienced under Carlock.

      Over the next years, it appears that Mason and Seal, as a couple, attended several union and...