International Union of Operating Engineers, Local 513, AFL-CIO (Ozark Constructors, LLC)

National Labor Relations Board - Board Decisions

Apr 19, 2010

355 N.L.R.B. 145 (N.L.R.B. 2010)

OPERATING ENGINEERS LOCAL 513 (OZARK CONSTRUCTORS)
355 NLRB No. 25
145
International Union of Operating Engineers, Local
513, AFL–CIO and Ozark Constructors, LLC, A
Fred Weber—ASI Joint Venture. Case 14–CB–
10424
April 19, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
The single issue in this case is whether the Respondent
violated Section 8(b)(1)(A) of the Act by fining em-
ployee Mark Overton $2500 because, in compliance with
the Charging Party Employer’s safety rules, which are
incorporated by reference in the parties’ collective-
bargaining agreement, Overton reported a safety viola-
tion by another employee to the Employer.1 The judge
found the violation as alleged.
The National Labor Relations Board has delegated 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.2
The Respondent contends that by disciplining Overton
it did not restrain or coerce him in the exercise of his
rights under Section 7 of the Act because Overton acted
alone and not concertedly. The Board has consistently
found Section 8(b)(1)(A) violated, however, where a
union disciplines an employee for reporting a work-rule
infraction by another employee, if the disciplined em-
ployee is under a duty to make such reports, notwith-
standing that the disciplined employee acted alone. See
Teamsters Local 439 (University of the Pacific), 324
NLRB 1096 (1997); Carpenters District Council of San
Diego (Hopeman Bros.), 272 NLRB 584 (1984); Chemi-
cal Workers Local 604 (Essex International), 233 NLRB
1239 (1977), enfd. mem. 588 F.2d 838 (7th Cir. 1978).
We find these precedents controlling.3

1 On September 4, 2009, Administrative Law Judge Michael A.
Rosas issued the attached decision. The Respondent Union filed excep-
tions and a supporting brief, the General Counsel and the Charging
Party Employer filed answering briefs, and the Respondent filed a reply
brief.
2 The judge’s proposed notice has been modified to conform to the
Board’s standard remedial language. Teamsters Local 896 (Anheuser-
Busch), 339 NLRB 769, 770–771 (2003).
3 Accord: Teamsters Local 896 (Anheuser-Busch), supra (finding
unlawful union’s threat to discipline employees who complied with
contractual duty to report fellow employees’ safety violations where,
inter alia, threat contravened Act’s basic policy of promoting collective
bargaining). We do not rely on the judge’s conclusion that an em-
ployee who complies with an employer’s rule to report co-employee
misconduct is deemed to engage in Sec. 7 activity because that em-
ployee has refrained from joining fellow employees in ignoring an
We reject as untimely the Respondent’s argument,
raised for the first time on exceptions, that Overton ex-
ceeded his collective-bargaining agreement obligations
by reporting both the safety incident and the person re-
sponsible for it. We find that by failing to make this ar-
gument to the judge below, the Respondent has waived
it. See, e.g., Smoke House Restaurant, 347 NLRB 192,
195 (2006).
Finally, for the reasons stated by the judge, we reject
the Respondent’s contention that it disciplined Overton
for “abusive” conduct toward fellow Operating Engi-
neers, not for reporting a safety violation.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Oper-
ating Engineers, Local 513, AFL–CIO, its officers,
agents, and representatives, shall take the action set forth
in the Order, except that the attached notice is substituted
for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

Federal law provides that labor organizations may set
their own internal rules regarding acquisition and reten-
tion of union membership and governance of their inter-
nal affairs, including the imposition of internal discipline
on members. Such procedures, however, may not be

outstanding order. See Teamsters Local 439 (University of the Pacific),
supra, 324 NLRB at 1096 fn. 1 (omitting the judge’s “refraining from”
analysis from the 8(b)(1)(A) rationale).
4 We correct two errors in the judge’s characterization of precedent.
The judge stated that the Board found concerted activity in Teamsters
Local 439 (University of the Pacific), supra, and Chemical Workers
Local 604 (Essex International), supra. The Board did not so find in
either case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 146
improperly used to affect the union members’ employ-
ment relationship.
We represent certain employees of Ozark Construc-
tors, LLC (Ozark), and have entered into collective-
bargaining agreements or contracts with Ozark concern-
ing those employees. Our current contract incorporates
by reference Ozark’s safety rules. Those safety rules
provide that covered employees have the responsibility
to report to management any safety “accidents/inci-
dents.” Thus, making such reports is part of covered
employees’ contractual and work duties.
Since our members covered by this contract have the
obligation to report to management any safety acci-
dents/incidents, and since this obligation may include the
responsibility to report on fellow union members, we
give our members, all of whom have this responsibility,
the following assurances.

WE WILL NOT impose a fine on any employee because
he or she reports another employee-member to his or her
employer for safety rule infractions, at a time when doing
so is part of the work duties of the employee who makes
the report.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above,
which are guaranteed you by Federal labor law.
WE WILL rescind in full the fine levied against Mark
Overton on or about January 20, 2009.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
internal union proceedings against Mark Overton in con-
nection with the fine levied against him on or about
January 20, 2009, and WE WILL, within 3 days thereafter,
notify Overton in writing that this has been done and that
we will not use this matter against him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, request that the International Union of Operating
Engineers purge its records of the proceedings brought
against Mark Overton in connection with the fine levied
against him on or about January 20, 2009, and WE WILL
concurrently furnish Overton with a copy of this request.

INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 513, AFL–CIO

Rotimi Solanke, Esq., for the General Counsel.
Jeffrey E. Hartnett, Esq. and James F. Faul, Esq. (Bartley Goff-
stein, LLC), of St. Louis, Missouri, for the Respondent.
Russell Riggan, Esq. (Lewis, Rice & Fingersh, LLC), of St.
Louis, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in St. Louis, Missouri, on May 18, 2009. The charge
was filed January 21, 2009, and the amended charge was filed
March 25, 2009. The complaint issued March 31, 2009. It al-
leges that the Respondent, International Union of Operating
Engineers, Local 513, AFL–CIO, violated Section 8(b)(1)(A)
of the National Labor Relations Act (the Act) by filing an inter-
nal union charge against employee Mark Overton, and fining
him $2500 because, in compliance with the collective-
bargaining agreement and safety policies in effect, he reported
a safety violation by an employee to the employer and thereby
engaged in protected concerted activity within Section 7 of the
Act.1
At the conclusion of the General Counsel’s case-in-chief, the
Union moved to dismiss the complaint on the basis that no
prima facie case was presented. The Union presented no evi-
dence in its defense.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Charging Party, a Missouri limited liability company
with an office and place of business in St. Louis, Missouri, has
been engaged in the construction industry with a construction
jobsite at the Taum Sauk upper reservoir dam in Missouri.
During the 12-month period ending February, the Charging
Party, in conducting its business operations at the Taum Sauk
upper reservoir dam jobsite, purchased and received goods
valued in excess of $50,000 directly from points outside the
State of Missouri. The Union admits and I find that it is a labor
organization within the meaning of Section 2(5) of the Act and
that the Charging Party is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Taum Sauk Reservoir Project
Fred Weber, Inc. (FWI), of St. Louis, Missouri, is a union-
affiliated heavy and highway construction company. ASI Con-
structors, Inc. (ASI), a nonunion dam construction company
from Pueblo, Colorado. In 2007, FWI and ASI entered into a
joint venture (the Company) for the purpose of reconstructing
the Taum Sauk Reservoir in southeast Missouri (the project).
The Taum Sauk Reservoir is a hydroelectric facility contain-
ing five operating plants and a large crushing plant.2 The Com-
pany serves as the project’s general contractor. The project has,
at times, employed up to 700 people. Roger Gagliano, of FWI,
and Lee Schermerhorn, of ASI, serve as the project’s construc-
tion managers. Gagliano generally handles the personnel and
collective-bargaining issues, while Schermerhorn oversees the
day-to-day construction operations. Andy Westbrook and
Kevin Delo serve as the project’s two general superintendents.

1 All dates are from November 2008 to April 2009 unless otherwise
indicated.
2 GC Exh. 3.
OPERATING ENGINEERS LOCAL 513 (OZARK CONSTRUCTORS) 147
The project’s general superintendents, safety manager, and
engineering manager report to Gagliano and Schermerhorn.
Leadmen, also known as working foremen, are embedded with
work crews on the project.3
The equipment at issue in this controversy involves the tele-
belt, a heavy piece of construction equipment operated by the
project’s operating engineers. An attached conveyer belt, span-
ning approximately 130 feet, transfers materials such as roller-
compacted concrete, coarse aggregate, and other materials for
the various parts of the project site. The telebelt sits on a truck
and is stabilized by four steel legs, called outriggers. The out-
riggers have to be fully extended on level ground to prevent the
telebelt from overturning.4
B. The National Maintenance Agreement
Since 1971, some form of a National Maintenance Agree-
ment (NMA) has been utilized by labor organizations, man-
agement, and owners on construction projects employing mem-
bers of the International Union of Operating Engineers. Effec-
tive April 2, 2007, the Union, the Company, and the project’s
owners adopted the “Revised 1996” version of the NMA as the
general collective-bargaining agreement applicable to the oper-
ating engineers on the project. The NMA incorporates by refer-
ence the local collective-bargaining agreement previously en-
tered into between FWI and the Union for a 5-year term com-
mencing May 1, 2004. The local collective-bargaining agree-
ment covers work at various Missouri locations, including the
project site, and automatically renews for additional 1-year
periods until such time as either party provides 60-days’ prior
notice of termination. Accordingly, union members working on
the project are governed by the NMA and local collective-
bargaining agreement.5
The Union, one of four labor organizations on the project,
represents the approximately 200 operating engineers employed
there. Approximately 6 of those operating engineers are mem-
bers of operating engineers’ locals specializing in dam con-
struction in other parts of the country and work on the project
pursuant a traveler permit. The issue of “travelers” has been a
sore topic with the Union, given the fact that travelers are being
hired for the project in lieu of unemployed union members.6
The NMA recognizes the applicability of the Company’s
safety rules and regulations at article XVII: “The employees
covered by the terms of this Agreement shall at all times while
in the employ of the Employer be bound by the safety rules and
regulations as established by the Owner, the Employer, this

3 I found the General Counsel’s witnesses—Gagliano, Overton, and
Westbrook—to be credible witnesses and nearly all of their testimony
went unrefuted. (Tr. 31–38, 40–42, 47–52, 62, 101–102.)
4 The testimony of Gagliano and Overton regarding the proper and
safe set up of the telebelt was not disputed. (GC Exhs. 7(a), 7(b), and
10; Tr. 45–46, 58–60, 106–108, 125.)
5 GC Exhs. 4–5.
6 That the Company was able to employ travelers given the negative
views of the Union indicates that otherwise eligible, but unemployed,
union members were not previously trained to operate a telebelt. See
art. XIX of the NMA and sec. 3.03(C) of the local collective-bargaining
agreement. (GC Exh. 4 at p. 11; GC Exh. 5 at p.15; Tr. 35–40, 67–68,
162.)
agreement, or by applicable Safety Laws.”7
C. The Company’s Safety Regulations
The Company’s Safety Orientation check-off sheet (safety
orientation) contains a comprehensive list of the safety topics
discussed during employee orientation. The safety orientation
includes, in pertinent part, the following employee responsibili-
ties:

32. Employees MUST report all accidents/incidents to
their supervisor immediately, no matter how slight. This
allows us to provide prompt care, and investigate & elimi-
nate hazards that may cause others to be injured.
35. Employees are expected to learn and comply with
all project safety rules, regulations and policies applicable
to their specific work tasks, as a condition of employment.

The last page of the safety orientation consists of a signed
acknowledgement by the employee that he or she participated
in the safety orientation during which all of the safety topics
were discussed, fully understands all of the Company’s safety
policies, rules and regulations, and knows where to find the
safety manual. Every operating engineer on the project signed
the safety orientation acknowledgment sheet. In addition, the
Company holds daily meetings onsite to discuss various safety
issues. The failure to report a safety violation subjects an em-
ployee to discipline.8
D. Overton is Issued a Traveler Permit
Mark Overton, a Colorado resident, has worked as an operat-
ing engineer for ASI on dam construction projects in several
states. He is a member of the International Union of Operating
Engineers, Local 953, AFL–CIO (Local 953), based in Albu-
querque, New Mexico. In December 2007, ASI hired Overton
to work on the project as a telebelt operator and trainer. As a
telebelt operator, Overton receives directives from supervisors
on the placement of telebelts on the project site, coordinates the
placement and operation of the project’s four telebelts, and
trains others in the operation of the telebelts.
Upon arriving at the project, Overton applied for union
membership by attempting to transfer his membership from
Local 953. Given his position on the employment of nonbar-
gaining unit members on the project, Stephen Gunter, the Un-
ion’s business representative, denied Overton’s application on
the ground that the hall was “overfull,” but issued him a trav-
eler permit to work as an operating engineer at the project site
pursuant to the terms of the local collective-bargaining agree-
ment. As such, Overton is paid by Ozark as an hourly employee
in accordance with the pay scale set forth in the local collec-

7 GC Exh. 4 at p. 11.
8 The safety orientation and the NMA both refer to the Company’s
safety rules and regulations, but no written proof of such rules or a
disciplinary policy were offered in evidence. Nevertheless, in the ab-
sence of testimony or evidence by the Union to refute the testimony of
the General Counsel’s witnesses that the Company had such rules in
place, I find that they existed. (GC Exhs. 6, 11; Tr. 42–44, 60–61, 108–
109, 151–154.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 148
tive-bargaining agreement.9
E. Overton Becomes a Working Foreman
In September 2008, Overton was promoted to the job classi-
fication of a working foreman. In that capacity, he leads a crew
of about nine operating engineers and laborers who work with
telebelts and pump trucks. Although he has training duties and
reports directly to the superintendents, Andy Westbrook and
Kevin Delo, Overton does not have supervisory functions or
responsibilities, as he does not have the authority to hire, fire,
or discipline employees. As such, he remained part of the col-
lective-bargaining unit. In fact, working foreman have filed
grievances against the Company and have been represented by
the Union in that regard.10
Prior to November 20, Overton’s performance as a working
foreman had been relatively uneventful. There were two in-
stances during the summer of 2008 when Pat Kammer, a shop
steward and foreman, complained to Overton that laborers were
performing the bargaining unit work of operating engineers.
However, neither Kammer, nor anyone else, ever complained to
the Company about Overton’s treatment of bargaining unit
members.11 Gunter would have had an opportunity to express
such concerns during his weekly meetings with Gagliano and
Westbrook, as well as the monthly tripartite meetings with
them and the project’s owners to discuss work, safety, and per-
sonnel matters. Yet, he never did at any time prior to March
2009.12 On the other hand, Overton’s status on the project as a
traveler has evoked criticism by Gunter and other union repre-
sentatives and members.13
F. The Allison Safety Violation
As he arrived at the project site during the morning of No-
vember 20, Overton observed a telebelt with an outrigger that
was not fully extended. As a shortened outrigger could cause

9 Overton’s testimony regarding his background and communication
with the Union was also credible and unrefuted. (Tr. 98–122.)
10 I considered, but did not end up giving much weight to Gagliano’s
reference to Overton as a “working supervisor” in his protestation letter
to the Union, dated December 11. Consistent with an evaluation as to
an employee’s potential supervisory status in these cases, I considered
all of the actual functions served by Overton on the project. (GC Exh.
9; Tr. 41–42, 47–48, 52, 74–76, 97, 100–102, 116, 158–159.)
11 Westbrook credibly testified that, except for one comment about
how Overton was leading his crew, he never received a complaint about
Overton’s treatment of bargaining unit members. While the General
Counsel offered two exhibits containing vague statements about Over-
ton’s allegedly abusive behavior, the record contains no specific exam-
ples of any abusive conduct by Overton. (GC Exhs. 8B and 17; Tr. 63–
64, 157, 165–166.) In fact, it was not until March 2009, well after the
unfair labor practice charges were filed, that Gunter complained at a
tripartite meeting about the alleged mistreatment of bargaining unit
members by Overton. (Tr. 66–67, 155–157.)
12 Despite no mention of problems with Overton, Gunter has filed
several grievances and raised other issues with Gagliano. (Tr. 61–66).
13 Although it was conceded that Overton had a “gruff” nature, the
lack of union testimony leaves me to rely solely on the testimony of
Overton and Westbrook that there were no complaints by the Union or
other employees of abusive conduct prior to the filing of the Com-
pany’s unfair labor practice charge. (Tr. 122–123, 142, 144, 156–157;
GC Exh. 10.)
the telebelt to become unstable and overturn, resulting in seri-
ous personal injury or property damage, this condition consti-
tuted a safety violation.14
Being required to report the incident, as explained during
safety orientation, Overton immediately went to the office of
Jim Andrews, the Company’s safety officer. Overton and An-
drews then proceeded to the telebelt and measured the outrig-
gers. They found that the fully extended outrigger measured 64
inches, while the shortened outrigger measured only 30 inches.
After confirming the safety violation, Overton sought to deter-
mine who operated that telebelt. Overton called Steve Newton,
a union steward, who reported that Ryan Allison, an operating
engineer and union member, was the last one to operate the
telebelt. Overton also spoke with Dwayne Wehner, another
operating engineer and union member, who reported that he
helped Allison set up the telebelt that night.15
On the same day, Overton reported the safety violation to
Westbrook. Westbrook then directed Overton to prepare an
incident report, as employees were instructed to do during
safety orientation. The failure to report the incident would have
subjected Overton to discipline.16
After confirming the incident with the safety department,
Westbrook issued a letter, dated November 20, suspending
Allison for 3 days on the following ground:

During the set up of the equipment, you failed to follow estab-
lished safety instructions by not having the outriggers of the
equipment fully extended. It is the responsibility of each op-
erator to operate his or her equipment in a safe and conscien-
tious manner. Your failure to follow established protocols
could have resulted in serious injury to one of your coworkers
as well as extensive damage to the equipment.

The suspension letter was copied to Gagliano and Kemmer,
and faxed to Gunter on November 21. Allison did not grieve
the discipline and served a 3-day suspension from November
21 to 23.
G. The Union Retaliates Against Overton
Upon receiving the suspension letter on November 21,
Kemmer faxed a copy of it to Gunter. The next business day,
November 24, Gunter filed internal union charges against Over-
ton for “violation of Article XXI, Section 21:01, subdivision
(F) Gross disloyalty or conduct unbecoming a member”. The
charge further stated, in pertinent part:

Mark Overton wrote up Ryan Alliso for failing to have an
outrigger fully extended on the telebelt, when he had already
been informed that Duane Wehner was the operator who had

14 Overton’s description of the positioning of the outriggers was not
disputed. (Tr. 110–111,147, 152; GC Exhs. 10, 14.)
15 Wehner’s role in helping Allison set up the telebelt was never
clarified. However, coupled with the information he received from both
Wehner and Newton, I find that Overton reasonably concluded that
Allison was primarily responsible for the telebelt setup. (Tr. 60, 111–
116.).
16 The testimony of Overton and Westbrook that any employee
would have been required to report the safety violation was credible,
corroborated by item 32 of the safety orientation and not refuted by any
other evidence. (Tr. 60–61, 115–116, 151–152.)
OPERATING ENGINEERS LOCAL 513 (OZARK CONSTRUCTORS) 149
failed to fully extend the outrigger.

The above isn’t the first incident of Mark Overton being ad-
versarial with Local 513 operators. There has been an ongoing
problem with him screaming at and speaking in an abusive
manner to his brother operators, which he has been warned
about repeatedly. Also, numerous operators have run the tele-
belt for an extended period of time and he eventually finds a
way to get rid of them.
It appears that Mark Overton has been dissatisfied with
working in Local 513’s jurisdiction ever since he was informed,
some months ago, that he wouldn’t ne allowed to bring his
buddies in from other states to run the telebelts, but instead he
would have to train Local 513 operators on them. This is no
way justifies Mark Overton’s misconduct and behavior.17

By letter dated the same day, Dan McNamee, the Union’s
recording secretary, provided Overton with a copy of the union
charges and informed Overton of his right to respond in writing
to the charges within 3 weeks of receipt of the letter.
McNamee’s letter further informed Overton of the Union’s
procedural process:

You will be required to appear before the Executive
Board, at a later date, at which time a pre-trial hearing will
be held to determine if the charges have merit, and in
hopes that the charges may be resolved at this pre-trial
hearing.

You will be notified of the time and place of when the
next Executive Board meeting will be held.

Failure to appear at this pre-trial hearing or to notify us
in time of a reason why cannot appear on the scheduled
date may convince the Board of your guilt, and will obli-
gate the Board to forward the charges to the membership
for consideration and a vote as to your guilt [or] innocence
of the charges.[18]

Overton provided Gagliano with a copy of the Union’s
charges. Gagliano responded with a letter to McNamee, dated
December 11, with copies to Dick Dickens, the Union’s presi-
dent, and Gunter. In his letter, Gagliano disputed the charges by
questioning why the Union did not comply with the NMA’s
dispute resolution procedures or file a grievance challenging
the discipline. He also noted that the Union made no previous
mention of abusive treatment of its members by Overton at any
project meetings, suggested that the union charges were an
attempt to intimidate the working foremen on the project, and
demanded the Union withdraw the charges.19

The Union did not respond to Gagliano’s letter. Instead,
McNamee sent Overton a letter, dated January 6, 2009, inform-

17 GC Exh. 8B.
18 Again, while Overton learned that Wehner had a role in helping
Allison set up the telebelt, Allison did not grieve his suspension and, as
such, took full responsibility for the safety violation. Given that docu-
mentary background, Overton’s credible testimony and the lack of any
testimony by Allison or Wehner, I find that Overton reasonably be-
lieved that Allison either had primary or sole responsibility for setting
up the telebelt. (GC Exh. 8A; Tr. 116–117.)
19 GC Exh. 9.
ing him that the Union would proceed to the next step at its
January 20 executive board meeting:

You are requested to appear before this meeting at
which time the charges that have been filed against you
will be reviewed and a pretrial held, so that we may de-
termine if the charge has merit to present to the entire
membership at the next regular meeting.

Failure to appear before the meeting may convince the
boar of your guilt, and will then recommend that the
charges be presented to the entire membership to vote and
decide you’re your guilt or innocence.[20]

Overton did not attend the Union’s executive board meeting
on January 20. The minutes reflect that “[m]erit was found in
charges and a fine of $2500 was recommended if he wishes to
not go to trial by the membership.”21 However, McNamee’s
letter on behalf of the Union, dated January 26, indicated, in
pertinent part, that it was more than a recommendation:

This letter is to inform you that merit was found in the
charges of November 24, 2008 and a fine of $2,500.00
was levied against you.
If you wish not to accept this fine, you also have a
right to trial at the next Local Union Meeting. Please no-
tify me immediately so I know whether to set up a trial at
the next Local Meeting.
It is also my duty to inform you that you have a right
to file an appeal with the General Executive Board in
Washington, D.C., but before you may appeal, you must
first have paid the fine, in accordance with Article XXIV,
Subdivision 7, Section (f) of the International Consti
tution.[22]

On January 21, 2009, the Company responded by filing an
unfair labor practice charge against the Union. The Company’s
amended charge (GC Exh. 1(d)) alleged the Union

[R]estrained and coerced employees of Ozark Constructors,
LLC in the exercise of rights guaranteed to them in Section 7
of the Act, as amended by filing internal union charges and
assessing a $2,500 fine against employee Mark R. Overton in
retaliation for reporting to his employer a violation of safety
standards.[23]

In its March 2 position statement responding the charges, the
Union insisted that its internal charges against Overton were
not related to the Allison discipline. It states, in pertinent part:

[T]he charges against Mr. Overton were based upon his abu-
sive treatment of fellow members. The Board refused to con-
sider matters relating to safety. Overton was found guilty of
verbal abuse of fellow members, conduct of which the com-
pany had been made aware on numerous occasions by several
individuals.

As to Ryan Allison, Overton was told by another member at

20 GC Exh. 12.
21 GC Exh. 16.
22 GC Exh. 13; Tr. 119–121.
23 GC Exh. 1(a), (d).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 150
the time of the incident that it was that member, not Allison,
who committed the purported safety violation. Overton told
the member that he was going to charge the violation to Alli-
son anyway. This was simply another incident of Mr. Overton
being abusive to fellow members. His conduct toward Allison
is not “employment” related, but an abuse of a fellow mem-
ber.[24]
Legal Analysis and Discussion
Section 8(b)(1)(A) of the Act recognizes the right of a labor
organization to “prescribe its own rules with respect to the ac-
quisition or retention of membership therein.” In that regard,
the Board has consistently held that a union has a legitimate
interest in promoting harmony within its ranks and may law-
fully seek to protect this interest by imposing internal union
discipline pursuant to a properly adopted rule prohibiting mem-
bers from reporting misconduct by fellow members to their
employer. Communications Workers Local 5795 (Western
Electric Co.), 192 NLRB 556 (1971); Letter Carriers Local
3825, 333 NLRB 343, 345 fn. 4 (2001); Letter Carriers (Postal
Service), 316 NLRB 1294, 1303–1304 (1995); Electrical
Workers Local 1547 (Redi Electric), 300 NLRB 604, 607
(1990).
Such a right is limited, however, to the extent that the disci-
pline affects a member’s employment status. See NLRB v.
Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967). In Scofield
v. NLRB, 394 U.S. 423, 430 (1969), the Supreme Court subse-
quently refined that test to a determination as to whether the
union discipline or rule: (1) is geared to a legitimate union in-
terest; (2) impairs no policy imbedded in the labor laws; and (3)
is reasonably enforced against a union member who is free to
leave the union. In both cases, employees had been fined by a
union when they engaged in concerted activities.
More recently, in Office Employees Local 251 (Sandia Na-
tional Laboratories), 331 NLRB 1417, 1418–1419 (2000), the
Board articulated its latest approach for reviewing the propriety
of union discipline under Section 8(b)(1)(A):

[W]e find that Section 8(b)(1)(A)’s proper scope, in union
discipline cases, is to proscribe union conduct against union
members that impacts on the employment relationship, im-
pairs access to the Board’s processes, pertains to unacceptable
methods of union coercion, such as physical violence in or-
ganizational or strike contexts, or otherwise impairs policies
imbedded in the Act.

In determining whether an internal union rule is geared to a
legitimate union interest or affects a member’s employment
status, the Board must determine whether enforcement of the
rule has an external effect and, thus, tends to restrain or coerce
employees in the exercise of their Section 7 rights. Circum-
stances of union discipline that have an unlawful external effect
fall into two areas. The first includes instances where union
members make statements pursuant to the grievance process.
Cement Workers D-357 (Southwestern Portland Cement), 288
NLRB 1156 (1988). The other instance, applicable here, is

24 The Union essentially reiterated this position at trial. (GC Exh.
17; Tr. 89.)
where an employee is required by his employer to report certain
information that contravenes the interests of the union or its
members. Oil Workers Local 7-103 (DAP, Inc.), 269 NLRB
129, 130–131 (1984). The reason that union discipline would
unlawfully coerce or restrain in the latter instance is because it
would affect the union member’s employment status. See
Scofield v. NLRB, supra at 428; NLRB v. Allis-Chalmers Mfg.
Co., supra at 195. Accordingly, the Board has typically held
that a union commits an unfair labor practice if it disciplines a
member who reports a work rule infraction by a coemployee to
his employer when that member is required to do so by his
employer. See Shipbuilders Local 9 (Todd Pacific), 279 NLRB
617 (1986); Carpenters (Hopeman Bros.), 272 NLRB 584
(1984); Chemical Workers Local 604 (Essex International),
233 NLRB 1239 (1977), enfd. 588 F.2d 838 (7th Cir. 1978).
It is undisputed that Overton reported a safety violation by
another employee-member, which he was required to do pursu-
ant to the Company’s safety rules and the NMA that incorpo-
rated them as part of employees’ terms and conditions of em-
ployment. Overton’s failure to report the incident could have
resulted in his discipline and, thus, affected the employer rela-
tionship. Moreover, it is reasonable to expect that Overton’s
failure to act on a safety violation, which could have resulted in
serious personal injury or death, would have contravened the
NMA, as well as numerous Federal and State labor laws involv-
ing worker safety. Lastly, Overton was faced with the classic
Hobson’s choice, since he was required by the NMA to be a
member of the Union—albeit under the status of a permitted
“traveler”—and, thus, was not reasonably free to simply
“leave” the Union and remain employed on the project.
Overton’s Section 7 Activities
The Union contends that Overton was not engaged in con-
certed activity because he acted alone in reporting Allison’s
safety violation. The Union’s strict construction of the statute is
certainly consistent with the Supreme Court’s decision in
Meyers Industries, 268 NLRB 493, 497 (1984), which clarified
that, generally, “concerted” activity consisted of an employee’s
activity engaged with or on the authority of other employees,
and not solely by and on behalf of the employee. Such interpre-
tation, however, does not reflect the evolution of court and
Board decisions providing Section 8(b)(1)(A) with a much
broader scope than those analyzed under Section 8(a)(1). See
Elevator Constructors (Otis Elevator Co.), 349 NLRB 583,
596–597 (2007) (employee-member’s conduct in following
supervisor’s direction to stand aside while subcontractor’s em-
ployee performed bargaining unit work considered Sec. 7 activ-
ity); Teamsters Local 439 (University of the Pacific), 324
NLRB 1096 (1997), enfd. 175 F.3d 1173 (9th Cir. 1999)
(newly appointed leadman-member engaged in concerted activ-
ity by reporting, as required, nonperformance of fellow union
member); Chemical Workers Local 604 (Essex International),
above; employee-member engaged in concerted activity by
reporting, as required, fellow member’s work rule violation).
Communications Workers Local 13000 (Verizon Communica-
tions), 340 NLRB 18 (2003) (potential disobedience by an em-
ployee-member of union rule requiring members to refuse
“mandatory” overtime).
OPERATING ENGINEERS LOCAL 513 (OZARK CONSTRUCTORS) 151
An employee who complies with an employer’s rule to re-
port coemployee misconduct is deemed to engage in concerted
activity within the context of Section 8(b)(1)(A) because Sec-
tion 7 also gives employees “the right to refrain from any or all
such activities” by refusing to join with other employees who
wished to ignore the employer’s outstanding orders. Even
where nonsupervisory leadmen act alone, the Board has broadly
interpreted Section 8(b)(1)(A) if compliance with the Union’s
actions or mandate would affected the employee-member’s
employment status. See Teamsters Local 439, supra at fn. 1,
and Carpenters (Hopeman Bros.), above. Under the circum-
stances, Overton was engaged in Section 7 activity when he
reported, as required, Allison’s safety violation.
Overton’s Discipline
The Union contends that the General Counsel failed to estab-
lish a prima facie case by offering testimony that a fine was
actually imposed on Overton. It also argues that, without such
testimony, the documentary evidence merely establishes that a
fine was merely recommended and not imposed. This defense
is unfounded in two respects.
First, the actual imposition of union discipline is not required
in order to find a violation of Section 8(b)(1)(A). A union’s
mere threat of internal discipline violates an employee-
member’s Section 7 rights where: (1) it reasonably tends to
restrain or coerce members from exercising their Section 7
rights to complain concertedly to management about safety
violations, including those committed by a fellow member; or
(2) reasonably would compel union members to act in contra-
vention of a collective-bargaining agreement. See Anheuser-
Busch, Inc., 339 NLRB 769 (2003); Stationary Engineers Local
39 (San Jose Hospital), 240 NLRB 1122 (1979). Clearly, the
internal Union charges served on Overton conveyed the mes-
sage that any he needed to refrain from exercising his Section 7
rights in the future by not reporting, as required, coworker
safety violations. Moreover, by failing or refusing to report the
safety violation in contravention of the Company’s safety rules,
he would have been violating the provisions of the applicable
labor agreements.
In any event, notwithstanding counsel’s contentions, the re-
cord evidence demonstrates that Overton was tried and issued a
fine on January 20 because he reported a safety violation by
another union member. While I indeed sustained a form objec-
tion when Overton was asked about the fine,25 the undisputed
record evidence reveals that, on January 20, the Union’s execu-
tive board pronounced that “merit was found in the charges and
a fine of $2500 was levied against [Overton].”26 It is true that
the fine was merely a recommendation, but the testimony of
Overton establishes that he took no further action to appeal the
action. By its terms, the letter clearly indicated that the “levied”
fine certainly did not go away.
The Position Statement
The General Counsel’s offered the position statement as evi-
dence of the Union’s reason for engaging in conduct violative

25 Tr. 121.
26 GC Exh. 16.
of Section 8(b)(1)(A). The Union objected that it was irrelevant
and merely sets forth the Union’s generalized statement of posi-
tion. I overruled the objection and received the position state-
ment in evidence in accordance with longstanding Board law.
The Union, having lost that argument, advances the novel ar-
gument that, based upon its position statement, “standing with-
out comment, and supported by the record in the General Coun-
sel’s case, the General Counsel has failed to carry its burden.
The charge must be dismissed.”27
Position statements are frequently received as evidence in
Board cases as admissions against interest if those assertions
conflict with the party’s current litigation position or the testi-
mony of the party’s witness. Union-Tribune Publishing Co.,
353 NLRB 11, 18 (2008); Jerry Ryce Builders, 352 NLRB
1262, 1264 fn. 6 (2008); Evergreen America Corp., 348 NLRB
178, 187–188 (2006); Rogers Corp., 344 NLRB 504 (2005);
United Scrap Metal, Inc., 344 NLRB 467, 468 (2005); Smucker
Co., 341 NLRB 35, 40 (2004); Tarmac America, Inc., 342
NLRB 1049, 1049 fn. 2 (2004); Navigator Communications
Systems, 331 NLRB 1056, 1058 fn. 10 (2000); McKenzie Engi-
neering Co., 326 NLRB 473, 485 fn. 6 (1998).
The fact that the Union did not call any witnesses, while the
position statement was offered on the General Counsel’s case,
presents an interesting issue. The position statement alleges, in
essence, that the Union brought charges against Overton be-
cause of his abusive conduct toward fellow union members and
that the safety violation report was the last straw in that se-
quence of events. The General Counsel offers as relevant evi-
dence only that portion of the position statement that asserts
that the Union charges Overton because he reported Allison.
The Union, on the other hand, suggests that the portion of the
position statement alleging abusive behavior by Overton is
somehow fatal to the General Counsel’s prima facie case.
I tend to agree with the General Counsel on this point. The
position statement contained an admission by the Union that, at
least in part, explains that its motivation for charging Overton
was due to his reporting Allison’s safety violation. Such an
allegation corroborates the testimony of the General Counsel’s
witnesses. While it also contains allegations that the General
Counsel denies, the fact is that the General Counsel did not
offer the document for that purpose. The position statement
thus contains a mixed bag of allegations—some favorable to
the General Counsel and some not. Contrary to the Union’s
assertions, however, the portions of the position statement that
are unfavorable to the General Counsel’s case did not go un-
denied, uncontradicted, or unimpeached. The record contains
credible and unrefuted testimony by Overton, Gagliano, and
Westbrook that there were no complaints by the Union or other
employee-members about abusive treatment by Overton. Ac-
cordingly, I disagree with the Union’s contention that its posi-
tion statement defeats the General Counsel’s prima facie case.
Under the circumstances, the Company’s actions constituted a
violation of Section 8(b)(1)(A).
CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a

27 U. Br. at 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 152
whole and Section 10(c) of the Act, I make the following con-
clusions of law.
1. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. At all material times, the Union was the exclusive bargain-
ing representative within the meaning of Section 9(a) of the Act
of the Company’s employees, including the operating engi-
neers.
4. By the fine levied against him on or about January 20,
2009, the Union restrained and coerced Mark Overton and
other similarly situated employees within the meaning of Sec-
tion 8(b)(1)(A) of the Act.
REMEDY
Having found the Union engaged in certain unfair labor prac-
tices, I recommend that it be ordered to cease and desist there-
from and take the following affirmative action designed to ef-
fectuate the purposes of the Act. Thus, my recommended Order
requires that the Union rescind the fine it levied against Mark
Overton on January 20, 2009. Moreover, the Union is required
to remove from its records any reference to the internal pro-
ceedings against Overton which are the subject of this case and
notify Overton in writing that this action has been taken and
that this matter will not be considered in any future proceed-
ings. The Union is also required to request that the International
Union of Operating Engineers purge its records of this matter
and furnish Overton with a copy of that request. Finally, the
Union is required to post official notices to members concern-
ing this matter and to provide signed copies of that notice to the
Company for posting if it so desires.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended28
ORDER
The Union, International Union of Operating Engineers, Lo-
cal 513, AFL–CIO, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Imposing a fine on any employee because he or she re-
ports another employee-member to his or her employer for
work rule infractions, at a time when it is part of the work du-

28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ties of the employee who makes the report to do so.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of their rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind in full the fine levied against Mark Overton on or
about January 20, 2009,
(b) Within 14 days from the date of this Order, remove from
its files any and all references to the internal union proceedings
against Mark Overton in connection with the fine levied against
him on or about January 20, 2009, and within 3 days thereafter
notify Overton in writing that it has done so and that it will not
use this matter against him in any way.
(c) Within 14 days from the date of this Order, request that
the International Union of Operating Engineers purge its re-
cords of the proceedings brought against Mark Overton in con-
nection with the fine levied against him on or about January 20,
2009, and concurrently furnish Overton with a copy of this
request.
(d) Within 14 days after service by the Region, post at its of-
fice in St. Louis, Missouri, and other places where notices to its
members are customarily posted copies of the attached notice
marked ‘‘Appendix.’’29 Copies of the notice, on forms pro-
vided by the Regional Director for Region 14, after being
signed by the Union’s authorized representative, shall be posted
by the Union immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Sign and return to the Regional Director sufficient copies
of the notice for posting by the Company, if willing, at all
places where its notices to employees are customarily posted.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Union has taken to comply.

29 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”