Laborers Local 806

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