New York Taxi Drivers

NEW YORK CITY TAXI DRIVERS New York City Taxi Drivers Union, Local 3036, AFL- CIO (Taxi Maintenance Corporation) andThomas Robbins New York City Taxi Drivers Union, Local 3036, AFL- CIO (Metropolitan Taxi Cab Board of Trade Inc.) and Steve Seltzer, on behalf of the Taxi Rank and File Coalition. Cases 2-CB-5888 and 2-CB-5979 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 7, 1977, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, General Counsel and Steve Seltzer, on behalf of Taxi Rank and File Coalition, filed exceptions and supporting briefs, and Respondent filed a brief in opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. The General Counsel and Taxi Rank and File Coalition have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard D0r Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. We hereby correct the following inadvertent errors in the Administrative Law Judge's Decision which do not affect the results herein: In sec. Ill, D. 2, the Administrative Law Judge found that, in a discussion between Union Shop Committeeman Kaufman and Goldman's garage manager, the latter displayed a weapon which he said Goldman had used in a fight at the garage, whereas the record discloses that the garage manager actually showed Kaufman a picture of a weapon. In fn. 32, the Administrative Law Judge found that. as of the time of the hearing. Seltzer had been fired by his employer and was furthering another career, whereas it is clear that he had been reinstated. Finally, in fn. 35. the Administrative Law Judge stated that an unfair labor practice charge filed by Goldman following his November 1975 discharge was dismissed by the Regional Director. whereas in fact such charge was withdrawn. 231 NLRB No. 160 DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act, based on charges filed by Thomas Robbins on May 27, 1975,' in Case 2-CB-5888 and on charges and amended charges filed by Steve Seltzer, on behalf of the Taxi Rank and File Coalition, in Case 2- CB-5979 on August 4, 1975, and amended on November 5, each of which was duly served upon Respondent; a consolidated complaint was issued on November 13, presenting allegations that New York City Taxi Drivers Union, Local 3036, AFL-CIO, hereinafter referred to as the Respondent, committed unfair labor practices within the meaning of Section 8(b)(IXA) and Section 2(6) and (7) of the Act. The Respondent filed an answer denying that it committed the violation of the Act alleged in the com- plaint. Upon due notice, the case was heard before me at New York, New York, on May 3, 4, and 5, 1976. Representatives of all parties entered appearances and had an opportunity to participate in the proceeding. Based on the entire record, including my observation of the witnesses, 2 and after due consideration of briefs and arguments, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION The Respondent does not deny the allegations in the complaint that Metropolitan Taxi Cab Board of Trade, Inc., herein called MTBOT is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. The MTBOT is an association of approximately 60 fleet taxicab garages operating taxis in New York City. MTBOT was formed for the purpose, in whole or in part, of bargaining collectively, and negotiating and administering a collective-bargaining agreement with Respondent which represents the employees employed by its employer-mem- bers in the city of New York. At all times material herein, MTBOT has maintained an office and place of business at I All events are in 1975 unless otherwise specifically indicated. 2 The credibility resolutions herein have been derived from a review of the entire testimony in the record and the exhibits, with due regard for the logic of probability, the special interests involved, the demeanor of the witnesses, and the principles of N .L R.. v. Walton Manufacturing Company' & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to any finding herein, their testimony has been considered and discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 965 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1775 Broadway, in the city and State of New York where it is, and has been at all times material herein, engaged on behalf of its employer-members in the function of negotiat- ing and administering a collective-bargaining agreement with Respondent. At all times material herein Cab Transportation Systems, herein Cab, located at 1440 39th Street, Brooklyn; Frenat Service, herein Frenat, located at 41-40 24th Street, Queens; Marby Maintenance Corp., herein Marby, located at 2233 Nostrand Avenue, Brooklyn; Linden Maintenance Corporation, herein Linden, located at 133-33 Miller Avenue, Flushing; Dover Garage, herein Dover, located at 534 Hudson Street, New York; Terminal Systems, Inc., herein Terminal, located at 618 West 49th Street, New York; Jayson Garage, herein Jayson, located at 851 East 29th Street, Brooklyn; and Ann Service Corp., herein Ann, located at 151 West 21st Street, New York, were employer- members of MTBOT. During the past year, which period is representative of their annual operations generally, the employer-members of MTBOT collectively, in the course and conduct of their taxicab operations, derived gross revenues therefrom in excess of $10 million. During the same period the employer-members of MTBOT, in the course and conduct of their business operations, purchased automobiles, automobile parts, and other goods and material valued in excess of $50,000 which were transported and delivered to their garages in interstate commerce directly from States of the United States other than the State of New York. I find on the basis of these uncontested pleadings that MTBOT and its employer-members are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Whether Respondent threatened employees who were employed by the employer-members of the MTBOT, and who were supporters of the Taxi Rank and File Coalition, that Respondent would inflict bodily injury or would cause the loss of their employment with employer-members of MTBOT if they continued their support and assistance to that group. B. Background and Context It is undisputed that, during the time material herein, Elias Rick and Harry Mendez were vice presidents and :l See United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry Local Union No. 137 (Hames Construction & Equipment (o. Inc.), 207 NLRB 359, 365 (1973), and cases cited therein. Cf. Retail Clerks Union, Local 770 Retail Clerks International Association, AFL CIO, 208 NLRB 356. 357 (1974), where the activity and alleged unlawful conduct took place in the context of a union employer-employee relationship rather than a union-member relationship and was, therefore, not protected by Sec. representatives of Respondent and that Victor Kaufman and Arthur Janowsky were shop chairmen of Respondent at Frenat and at Marby, respectively. Taxi Rank and File Coalition, frequently referred to in the testimony as "Rank and Filers," or as "Hot Seaters" (derived from its official publication, "The Hot Seat"), and herein referred to as the Coalition, is an activist group of taxi industry employees with participants working at various of the companies covered by the collective-bargain- ing agreement between the Respondent and MTBOT. They assertedly identified themselves as representing the socialist's political persuasion but were, on more than one occasion, accused by an official of Respondent of being communists supported by Peking. This political and philosophical antagonism, together with other elements apparently relating to the so-called generation gap, such as long hair, personal attire, and the use of motorcycles for mobility and for group action, constitutes a part of the setting for many of the comments alleged in the complaint to have been unlawful. Many of those active in the Coalition were part-time employees and some of those who testified have since left the industry for more intellectual pursuits. It appears that members of the coalition faction insinuated themselves, without benefit of union office or elected position, into presentation and processing of grievances, the calling of work stoppages, and the dealings of employees with their employer, their own shop representative, and with officials of Respondent. Participants in the Coalition also sought union elective offices and, at several employer locations, held the position of shop chairman. Some of these committeemen also, contrary to union policy and the grievance procedure in their collective-bargaining agree- ment which provided for arbitration as the final step, created or threatened work stoppages over grievances or the Union's handling of grievances. Thus, much of the challenge of this case involves the sorting out of world political and sociological conflicts, and legitimate internal union control matters, from concerted activities related to the terms and conditions of employment and rights otherwise protected by Section 7 of the Act. C. Legal Principles It is a violation of Section 8(b)(1)(A) if a union restrains or coerces an employee in the exercise of his Section 7 rights, and it is well settled that the activities of employees designed to oust the incumbent union leadership and elect different union officers are concerted activities protected by Section 7 of the Act.3 Clearly, any threat to a member of the intraunion opposition to affect that member's employ- ment status with an employer, other than the union- employer, or the job opportunities of that member because of the intraunion political activity, would be unlawful. 4 And the immunity accorded- a union by the proviso to 7. Also see Butchers Union Local 115, etc. (Ernest S. Cerelli), 209 NLRB 806 (1974). ' See Chauffeurs' Union Local 923, International Brotherhood of Team- sters, et atl. (Yellow Cab Company), 172 NLRB 2137 (1968); Hoisting and Portable Engineers, Local No. 4 of Operating Engineers (The Carlson Corporation), 189 NLRB 366 (1971). 966 NEW YORK CITY TAXI DRIVERS Section 8(b)(1)(A) with respect to enforcement of its rules and policies does not shelter the union from Board remedial action merely because the discipline taken or threatened is confined strictly to internal union sanctions not affecting the employee's job status. The proviso does not leave a union free to enforce union rules or policies which serve no legitimate union interest or which run counter to other public policies of an overriding nature that Congress has embedded in the labor laws.5 Generally speaking, a union has a legitimate interest in maintaining order at its hiring hall against disruptions by members; in retaining its members' trust in the fairness of the operation; in protecting its representatives from unwarranted abuse in the course of their duties; and in financing its operation through the collection of proper dues,6 and it may press intraunion charges and revoke membership,' debar from union office,8 and/or impose fines upon members for such activities as strike breaking in lawful strike situations, advocating withdrawal from the union; opposing advice, recommendations, and conduct of union officials during contract negotiations; making appeals to the International; 9 and interfering with or attempting to frustrate the pursuit of a grievance by a business agent.'0 These are intraunion matters which do not give rise to a violation of Section 8(b)( IXA) of the Act. It would follow that in any situation in which a union could, with impunity, bring intraunion charges and impose fines, debarment, or expulsion from membership for such reasons, it could also safely engage in threats to do so for the same reasons. However, any union disciplinary action against a member for refusing to engage in unlawful union activity, even though pursuant to a lawful union rule dealing with internal union matters, falls outside the ambit of the proviso to Section 8(b)(I)(A) and is violative of that Section of the Act.t Conversely, it would seem to follow that engaging in an illegal strike, or fostering or causing a work stoppage in the face of a no-strike agreement,' 2 would be unprotected activity for which the union could discipline or threaten to discipline its members and elected officers. For such action would be a matter of significant intraunion concern and would not be contrary to establish- ed labor or public policy. It is in this context that the conduct and statements herein must be evaluated. ' See Freight Drivers and Helpers Local Union No. 557 (Liberct Transfer Cornipaun, Inr.). 218 NLRB 1117, 1120(1975). i United Brotherhxod of Carpenters and Joiners of Amertca, Local 41913, AFI CIO (Michal R. Amato), 189 NLRB 521 (1977). 7 "Expulsion from membership in a labor organization is a matter of internal union concern, and does not in and of itself give rise to a violation of the Act .. ." Teamsters Local Union No. 122 (August A. Busch & Co. of Malos. Inc.), 203 NLRB 1041. 1042. Cf. Local 36Ot, Communications Workiers of America, AFL-CIO. e al. (I'arcter, Incorporated), 212 NLRB 768 (1974). * See Booster Lodge No. 405 Machinists (Boeing Co.) v. N.L.R.B., 459 F.2d 1143. 1148-49 1972). International Brotherhood of Electrical Workers, Local Union No. 34, AFL (CIO (Protection Alarms, Inc.), 208 NLRB 639, 641-442 (1974). D. Analysis of Evidence and Conclusions 1. Threats of physical violence Sid H. Kivanoski, a driver at Jayson, testified that on May 16, when Union Officials Rick Mendez and Sam Eastman arrived at the garage, he and Clavar Welch, shop chairman, were summoned into the garage office where Rick engaged in shouting repetitious variations of, "We are sick of Rank and File stepping on our toes ... and we are going to put an end to it .... We are going to stop Rank and File . . . . We are going to squash Rank and File .... You're communists, you're atheist ... ," etc. Kivanoski further testified that Rick instructed Welch, "If they start demonstrating, you disassociate yourself from the demonstration immediately and call us up. We'll bring 500 demonstrators down and show them what demonstrat- ing is all about," to which Mendez added, "Yes, we wrote the book in this industry on demonstrating and we'll show them what demonstrating is all about." The testimony which I credit establishes that Respon- dent's vice presidents, Rick Mendez and Sam Eastman, arrived at Jayson on May 16 to check the dues delinquen- cies of a list of members working there and to compute and collect employer payments to the union welfare fund. They went directly to the office and, while checking their computer printout sheets against the owner's records, they were told by the owner that a certain driver, named Kivanoski, had been causing him trouble; that he was afraid of Kivanoski and his friends; that some of them came on motorcycles, wearing leather jackets, and threat- ened him; that Kivanoski was threatening to cause a work stoppage, threatening to have "his people" lay down across the garage entrance to accomplish this, and was threaten- ing to have his helmeted friends on motorcycles come and close the shop if the employer tried to discipline him. Respondent's officials asked the owner to call this employee in so they could talk with him. When Kivanoski entered Rick asked what this was he was hearing about Kivanoski's antics at the garage. Kivanoski's response was that the Union was not going to tell him what to do. Welch complained to the union officials that "Kivanoski and his fellow Hot Seaters" were causing trouble at the shop. Union officials explained to Kivanoski that their contract did not permit, or provide for, work stoppages; that there were grievance steps required, ending in arbitration; and that work stoppages were against the Union's policy. In response to these 10 International Union of Elevator Constructors. AFL-CIO (Reston Elevator Company), 215 NLRB 744 (1974). " See, e.g., Local Union No. 418, Sheet Metal Workers International Association, AFL-CIO (Larry Asbury), 227 NLRB 300 (1976). and cases cited therein. 12 The current contract was not entered in evidence and no finding is made that it contained a no-strike agreement. However, the evidence indicates and it is not disputed that contractually arbitration was the final step to all grievances, that, repeatedly. discharges followed strikes and these discharges were the subject of arbitrator decisions. It is also clear that strikes were contrary to union policy and, although the Union repeatedly defended participants in such unauthorized walkouts, its officers repeatedly inveighed against such conduct. DECISIONS OF NATIONAL LABOR RELATIONS BOARD cautionings and explanations by the union officials, as well as their explanation of his dues delinquency,13 Kivanoski challenged them as "liars" '4 and with selling out to the bosses. To Kivanoski's assertion that he would bring his helmeted motorcycle friends down and close the shop, Rick admitted he may have said the Union could match any number Kivanoski could bring in. Rick also admitted he stated he was sick of Kivanoski stepping on his toes-or the Union's toes-and that he would "get them one at a time." Rick denied that he had reference to violence. He testified that after the meeting, as he was departing, he told Kivanoski that the latter and other coalitionists were causing problems in the garages and that he would bring coalition activists individually before the union executive board on charges of inciting to riot, causing trouble, and opposing what the Union stood for. Kivanoski said, "Bullshit." I also credit Mendez' testimony that he did not participate in or hear much of what transpired during the meeting, as he was occupied with checking the employer's records, and that he said nothing about the Union having written the book in this industry on demonstrations. In my view a threat to present a counter demonstration is not a threat of violence. I find no merit to the General Counsel's contention that any threat of violence took place on this occasion. I view Rick's departing remarks to Kivanoski as part of the res gesti of the meeting and, therefore, consider his assertion that he would bring coalition activists up on charges an explanation of his comment that he would get coalition activists "one at a time." Such a warning does not constitute a threat to the employment status of the coalition members because of their activity but, at most, only to their union membership. On May 21, Rick again arrived at the Jayson garage with Eastman to a greeting of insults, vulgarities, and disparage- ment of him personally and of the Union's efforts, inflicted by Kivanoski who was trying to sell copies of the Hot Seat near the bench where drivers were waiting to be dis- patched. Rick sat on the bench with the drivers and spoke with them of the Union's endeavors on their behalf, trying to convince them that the Coalition was not concerned with, or acting in the best interests of, the employees.' 5 Irving Adler, a driver at this location and a known coalition leader, had a pad on which he was taking notes. At one point he asked whether he could quote Rick, who responded, "Be my guest." Adler testified he accused the Union of colluding with management in. the firing of Thomas Robbins, a coalition-slate shop chairman at Dover,16 and with being behind the petition of employees 1a Kivanoski was among those who were delinquent in dues and was suspended from dispatch until he settled his dues discrepancies with the Union. His delinquent status and resulting suspension are not the subject of any unfair labor practice contentions. 14 Kivanoski's use of vulgarities and obscenities in his responses and challenges caused Eastman, who admittedly was deeply sensitive to such language, to protest and absent himself from the meeting. It was admitted by witnesses for the General Counsel that, in garage shapeup rooms obscenities fly pretty freely, although admittedly such language was rarely heard from union officials. 1" Kivanoski interrupted Rick's conversations with the men on the bench by asking him to buy a paper and Rick told Kivanoski to "get lost." According to Kivanoski, Rick started screaming, "You guys get your money from Peking and we can prove it .... You re communists .... We're going to step on you one by one .... We're going to get rid of you Rank and Filers one by one .... We are going to squash you .... We're sick of your stepping on our toes .. .," etc. to remove Jane Mt. Pleasant as coalition-slate shop chairman at Transportation. Rick responded that these charges were ridiculous but, according to Adler, added, "We are going to get you Rank and Filers one by one." Adler related that in the course of this discussion he mentioned to Rick a rumor concerning a garage merger and expressed the employees' concern for their jobs. Rick assured them all there was nothing to worry about in that situation and that all employees would be taken care of. Later, while Rick was attempting to explain to the men on the bench the Union's formula for determining full- and part-time employment for dues purposes, 17 Kivanoski called him "a f-ing liar." According to Kivanoski, Rick exploded because of the obscenity and said he would bring somebody down there Kivanoski's age; "He would bring his kid and 'he'll wrap you around that pole up there,' " indicating a pole by the garage building. Adler recalled that Rick said, "He would bring someone down there to make Kivanoski eat his words." Rick denied that he threatened to bring his "kid" down to take care of Kivanoski or to "wrap him around a pole" even though Kivanoski had accused him of coming around to cause problems, had called him a "fat slob,"' s a "boss' man," and a "f-ing liar." All agree that this incident caused Rick and Eastman to leave promptly. I credit Rick's denial that he threatened Kivanoski with violence. I note that even Adler's version does not support Kivanoski's assertion that Rick referred to bringing in his "kid" or that someone would "wrap [Kivanoski] around a pole." Adler merely indicated that Rick stated he would have someone "make Kivanoski eat his words"--clearly a symbolic metaphor referring only to inducing a retraction of the insulting name-calling. Even if Adler's version is accurate, it was not a threat of physical retaliation for protected concerted activity but was a manner of taking exception to Kivanoski's obscene name-calling. Indeed, Kivanoski voluntarily indicated that he so understood this to be the basis for Rick's angry reaction, which included his immediate departure. Accordingly, I find no unlawful threat of violence by Rick in this incident. Nor do I find in Adler's testimony that Rick stated, "We are going to get you Rank and Filers one by one," a threat to the job security of Coalitionists. This statement occurred in the midst of active intraunion campaigning during which the question of job security was raised by Adler and he was assured that all employees "would be taken care of," and "there was nothing to worry about." The entire circum- stances made it abundantly clear that factionalism within Except as consistent with credited testimony. I do not credit Kivanoski with respect to specific statements by Rick in this or any other incident. His testimony consisted of a repetition of given phrases and his demeanor and manner of response revealed that he made no attempt to distinguish between the various incidents or to recall specifically what was said at any given encounter. i6 No complaint issued based on such an assertion included in the charge in Case 2-CB-5888. i' A number of the employees at this shop were on the list of dues delinquents posted by the union officials as a result of the previous visit. 18 Rick, who was not in good health and for this reason was required to absent himself from the hearing for hospital treatment, testified he was 5 feet 8 inches and weighed over 400 pounds. Other credited testimony indicates that he was the recipient of much verbal abuse relating to his size by various coalition members. Counsel has advised of Rick's demise since the hearing. 968 NEW YORK CITY TAXI DRIVERS the Union, and not job security, was the target of Rick's remarks. On Mondays and Thursdays, Rick was officer of the day and remained in his office at union headquarters handling grievances and similar matters involving the four boroughs, frequently seeing as many as 100 to 150 members a day. On those same days Mendez was in the union office handling dues receipts. Kivanoski came to the union office and cleared up his dues discrepancies on the Monday following his suspension. On May 22, Kivanoski and Adler, along with a number of drivers from Jayson who were on the dues delinquent list, came to the union office to take care of the dues matters. Kivanoski and Adler attempted to look over the union official's shoulders and to place themselves between the member and the union official as representing and assisting the member in his dealings with the union representative's This created a situation requiring more than one union official to handle, and resulted in Mendez requiring the group to gather in Rick's office following completion of their business where Mendez proceeded to address them in the presence of Rick. Mendez credibly testified that the meeting was orderly until near the end, when the group began shouting vituperative remarks about the Union and calling Rick names. At this point Mendez attempted to shout over the boisterousness to calm everyone down and restore order. Rick recalled that, when Mendez and Union Secretary Joe Paradise, with Kivanoski, Adler, and the men from Jayson were in his office, Kivanoski complained that the men at Jayson were being abused for low bookings. Rick asked Kivanoski just what he had to do with this matter; i.e., whether he was an elected committeeman, a shop chairman, or had any other official status. Rick told him this was why they had elected committeemen. Kivanoski charged that all elections were fixed, that the shop chairman was not doing his job, and that nobody else in the garage was helping the men. Kivanoski then attacked Rick as a "boss' man," and inflicted other insulting invectives. Rick ordered them all out of his office. According to Kivanoski, when he complained about the difficulty drivers were having getting "break-down pay" Rick began shouting: "You're all communists; Rank and File is a group of communists. We're going to squash you; we're sick of your stepping on our toes. We're going to stop i' Adler denied that he held himself out to anyone as a union official, but admitted that he told other drivers, if they thought they had a grievance he would go with them to management and help in the presentation of their position, and that he was attempting to represent employees before the Union on this occasion. Adler stated he was never told by the Union that it objected to his assuming an active role in representing drivers. He testified that Sid Peck. a union employee who was the first one they encountered in the handling of the dues matters, supported by Mendez, would not permit him or Kivanoski to sit and counsel with the members involved, and that Rick told coalition members as well as other union members in the meeting which followed that they should deal directly with the Ulnion with respect to their problems. 20 Kivanoski also testified that Mendez said they were "going to get Rank and File." Kivanoski asked him how and Mendez said. "That's our business." I credit Mendez' denial of this alleged exchange. 21 On cross-examination Adler added to the account of the May 21 encounter a statement by Rick that Taxi Rank and File would not be able to get jobs in the industry and to the May 22 incident that Rick said. "We would be fired and would not be able to get jobs in the industry." He asserted this was the most serious threat he had heard and this was what he Rank and File. We're going to get you out of the industry." He testified that Adler, who was taking notes, asked Rick if he could put those statements in writing. Rick said, "Yes, you can quote me on anything-quote whatever you like." Kivanoski asked, "Will you sign" them. Rick turned to him and said, "I'll sign your death certificate," following which Rick screamed that he "hated Rank and File" and that they "were going to get Rank and File out of the industry." 20 Adler testified that at this meeting someone brought up the rumor regarding mergers and the fears of employees, and Rick and Mendez assured all that they could rest assured there was no danger to anyone's job. Adler asked why they had not seen the contract which had not yet been printed and Rick threw his signed manuscript copy on the top of his desk for anyone to inspect. Toward the end of the meeting, Rick said, "I'm not going to stand for Rank and File. I'll step on you every chance I get." Adler asked whether he could put this in writing, or could quote Rick. Rick said, "certainly." Kivanoski asked if Rick would sign those statements, and Rick turned to Kivanoski and said, "I'll sign your death certificate." Rick then ordered them all out of his office. According to Adler, after telling the drivers present that Rank and File could not be trusted- that they were communists and atheists, Rick said that if members wanted justice in the industry they should go straight to union leaders; that Taxi Rank and File would be driven out of the industry; that they would not be able to get jobs in the industry; and that they would be fired from their jobs.21 Rick denied that he said, "I'll sign your death certifi- cate," but instead insisted he simply replied "No" when asked if he would sign a statement quoting him, and admitted he may have used an obscenity with his refusal. Mendez also denied that Rick said he would sign anyone's death certificate. 22 I credit these denials, and find no reliable evidence to support the assertion that threats of physical violence were made by union officials at this meeting. In view of the unreliability of Kivanoski's testimony and the equivocation of Adler, I do not credit the testimony that Rick made any reference to the jobs of coalition members or threatened to drive coalition mem- bers out of the industry. On May 16, Rick and Eastman came to Transportation to confer with the employer, on a grievance relating to low was going to write down, but he did not do so because he was shocked when Rick made the comment about "signing a death certificate." Adler admitted that he did nor remember Rick's exact words with respect to Rank and File members getting fired and being unable to get jobs in the industry. 22 Mendez credibly testified that Rick is normally an even-tempered and jovial person with a naturally "gravel voice" who does raise his voice if provoked but as a general habit he does not use obscenities. He denied that Rick had ever, in his hearing, said anything suggesting causing physical harm or made any statements relating to death with regard to members of the political opposition. He acknowledged that in the shapeup room of any garage you would get an education in cursing as an everyday occurrence, especially in disputes between the dispatcher and the driver, and that these included suggestions of physical violence such as "drop dead." "I'll break your leg," "I'll crack your head," etc. Mendez recalled that occasionally he had heard Rick shout as a greeting to a friend: "Hey, nobody break your legs yet?" He testified that drivers so greeted by Rick generally laughed and shouted back some similar remark. I suppose it is an accepted sociological truism that some masculine groups exchange this type of greeting and that it is regarded by participants as manly comradery. 969 DECISIONS OF NATIONAL LABOR RELATIONS BOARD productivity and warning slips, at the request of Shop Chairman Mt. Pleasant. Mendez came at the same time to check the Employer's record of payments to the union benefit fund. When the meeting began Mt. Pleasant gave Rick the warning slip involved and Rick asked the Employer for the driver's record and information which would reveal his production in comparison with "the average." Mt. Pleasant took exception to the concept that there was such a thing as an average production and accused Rick of taking the side of the Employer. On this occasion Mt. Pleasant expressed her accusations and criticisms of Rick and the Union in abusive and obscene language for which Eastman admonished her that he would not tolerate such language. When Mt. Pleasant again engaged in obscene invectives, Eastman told her, "Either you leave, or I will leave if you insist upon using such language." Rick asked the Employer what his break-even figure was and, when told it was $47, Rick turned to Mt. Pleasant and asked whether she thought this was a fair request on the part of the Employer. She verbally exploded, asserting that nobody was going to tell her or her people how much they had to "book," and walked out. The grievance discussion was completed to a satisfactory conclusion between Rick and the Employer. During this time Mendez was busy with the computer sheets and did not participate in or hear much of the discussion. When he completed his mission during the meeting he departed. According to Mt. Pleasant,2 3 toward the end of the meeting Rick said, "We have just started to fight and you are not going to like what is going to happen." Mt. Pleasant asked Rick what would happen and Rick said "You'll find out very soon"; then turned to Mendez and said, "Go do your business but don't be too rough on her, she's just a small girl." She further testified that when she emerged from the meeting she observed that two drivers were trying to get employees to sign a petition demanding her removal as shop chairman of the garage, and that when she came out of the office Mendez left. Eastman testified that he came out of the office shortly after Mt. Pleasant did and was approached by a group of 10 or 12 drivers who asked whether it was true what Mt. Pleasant had been reporting; i.e., that Rick had advised the Employer to tell every man to bring in a minimum of $47. Eastman called Mt. Pleasant over and confronted her with this report. Mt. Pleasant asserted she had heard the union officials say this to the Employer. Eastman accused her of not telling the truth and then confronted her, in the presence of the others, with what had in fact occurred in the meeting and also warned her against ever engaging in such obscenities and vulgarities as she had in that meeting. Some among the group of drivers present told Eastman of their displeasure with Mt. Pleasant and stated they wanted to get rid of her as shop chairman. They asked Eastman whether they could remove her by petition. Eastman replied, "You elected her." Rick testified that when he emerged from the office he overheard Mt. Pleasant saying to a group of drivers that the union representatives had sold them down the river by 23 I credit Rick's denial of Mt. Pleasant's testimony that when she entered this meeting Rick said to the Employer, "Look, she's trouble for you. she's trouble for us, why don't you fire her?" The Employer said, "I'd agreeing that they should "book $47 or better"; that Eastman was in the middle of the group of men; and that he therefore, proceeded to his automobile to wait for Eastman. I credit the denials of Rick and Mendez that Rick said to Mendez at this or any other time, "Go do your stuff, Harry, but take it easy, she is only a little girl," or any similar statement. I do not find in the statement, "We have just started to fight and you are not going to like what is going to happen," a threat of violence. Nor do I find in this statement a threat to Mt. Pleasant's job security or any other unlawful threat to her right, or that of any other employee, to engage in protected activity. The right to engage in such activity does not include the right to do so unopposed. Clearly, this remark had reference to Mt. Pleasant's conduct and manner of handling the union shop committee chairmanship. While subsequent events reveal- ed that steps to remove her from that post originated that day, in my view, even were there proof that the Union sponsored the petition, such a move would be an intraunion matter and not unlawful. On May 30, union representatives learned that there was a group of men milling around at the Transportation garage. Rick, Eastman, and Mendez went to the garage. When they arrived a group of coalition members, including leaders of that group from other garages, was talking to drivers coming into the garage and passing out leaflets pertaining to the employee petition being circulated for the ouster of Mt. Pleasant as shop chairman. It is undisputed that the two drivers who had begun the petition of May 16 were also still soliciting additional signatures. Mendez testified that the coalition members were milling about in groups watching everybody and generally talking among themselves, but also making critical and derogatory statements to union officials or for the hearing of other drivers as well as those officials, such as "dime ripoff" (having reference to the employer's contribution to the union benefit fund of which the Coalition was critical). Mt. Pleasant testified that, at some point during this particular afternoon, Rick told her, "I'm going to have my daughter come down and take care of you." Rick denied that he ever made any such or a similar statement or ever mentioned his 9-year-old daughter in any union context. I credit his denial. Lawrence Steven Seltzer, a coalition leader from another garage, who was present at Mt. Pleasant's request for help in connection with the removal petition, testified that one of the drivers asked Mendez, "Why are you doing this?" And Mendez replied, "This is war. We are going to get you. We are going to get every one of you." According to Mendez, two of the drivers approached him and, pointing to the coalition group, asked what was going on. Mendez replied, "It looks like war, but don't worry, we'll take care of it." He admitted he said it loud enough for the group of coalition members to hear. I credit Mendez' denial that Seltzer asked him what he meant or that he said, "This is war, we're going to get you, we're going to get every one of you." Rick testified that, in speaking to Mt. Pleasant in reference to the number of need a reason," and Rick commented, "She's not going to be in the industry much longer." 970 NEW YORK CITY TAXI DRIVERS coalition members she had brought in, he told her that any number she could bring the Union could match man for man. John Gordon, another Coalitionist who had responded to Mt. Pleasant's request to help her distribute leaflets, testified that Rick asked the group why the coalition members had come to this garage, and was told they had come down to help Mt. Pleasant. Rick stated that if he wanted to he could make a phone call and get some guys to beat them up. Rick added, "You call yourself socialists but you're really communists," and that, "They were going to get rid of us." On cross-examination, Gordon admitted he did not really remember Rick's words about "beating up" but had the impression they were "clearly physical" and when pressed further Gordon admitted he was not really sure Rick used the words "beat us up." I credit Rick's denial that he made any statements of the type testified to by Gordon. Later the signed petition was presented to the union officials. Rick asked Mt. Pleasant to witness in writing the delivery of the petition with the drivers' signatures thereon. She refused, and accused Rick of being behind the circulation of the petition. Rick denied any union complici- ty and, admittedly, added, "we've got you going now, and I can see that you are really afraid." Although the term "war" as a specific activity is associated with violence, in modern parlance it can refer to any all-out contest short of violence and does not necessarily connote bodily harm. In the context in which it was used by Mendez it could as reasonably be interpreted as meaning persuasion by the use of conversations and propaganda leaflets to gain the loyalty of drivers, which was the precise contest that was going on between the incumbent union officials and the coalition faction. I find no unlawful threat in this remark. I make the same ruling and for the same reasons with respect to Rick's match "man for man" comment to Mt. Pleasant. Clearly this related to matching numbers of demonstrators. The Union, as bargaining representative, had an obligation to maintain order and was responsible for the conduct of its elected officers and committeemen. In these circumstances it had an unusual burden of preventing disturbances and work stoppages and was certainly entitled to take counteraction to maintain industrial peace through control of its organization. Nor do I find anything unlawful in Rick's statement to Mt. Pleasant that he could see that she was really afraid. Having just received the employee petition for her removal from her elective position as shop chairman, Rick was clearly referring to the possible loss of her intraunion political position and not to her physical safety.2 4 In summary, I conclude that the General Counsel has not established that Respondent engaged in any threats of 24 No action was ever taken by Respondent on this petition and Mt. Pleasant's loss of the committeeman post was by expiration of her term of office. 2' Rick testified that Robbins' previous discharge, for an illegal work stoppage. was successfully processed through arbitration by Rick at which time the Union took the position that the walkout constituted a lawful safety check. In April 1975, the arbitrator upheld the March 1975 discharge of Robbins for similar Ionduct. physical violence against employees for engaging in protected concerted activity. 2. Threats to job security A number of other incidents were related by witnesses for the General Counsel to establish that Respondent's officials and representatives made threats to cause the loss of employment of employees active on behalf of the Coalition. Mt. Pleasant testified that she had been dissatisfied with the results of a discharge grievance Rick and Eastman had handled for her and wrote a newsletter scathingly critical of Rick and the Union. Sometime during the third week in February, Rick arrived to again assist her in a grievance. He told Mt. Pleasant he had heard about the newsletter she had been passing out. The Employer supplied Rick with a copy. Rick read it and said to Mt. Pleasant, "This time you have gone too far. I'm not going to put up with this .... You're not going to be shop chairman here much longer." Rick acknowledged that they exchanged words about the Cab Transit Gazette that Mt. Pleasant published criticizing the Union and him personal- ly. On that occasion, he asked Mt. Pleasant why she did not print the truth instead of writing a paper to fit her own political interests. Rick admitted he did tell Mt. Pleasant she was not going to be shop chairman much longer. I find that this threat of loss of union position is not violative of Section 8(b) I XA) of the Act. Mt. Pleasant further testified that at one such meeting, the date not identified, Rick said to her, "We're going to get rid of you one by one-look what happened at Dover." The context of this statement was not given by Mt. Pleasant. It appears that, sometime in March 1975, the coalition-slate union shop chairman at Dover, Jim Rob- bins, had been fired. Rick recalled that there was an occasion when he had a discussion with Mt. Pleasant in which the latter accused union officials of causing Robbins' discharge. On that occasion he responded that the accusation was not true. He explained to Mt. Pleasant and the other drivers present that the Dover problem involved "wild cat" strikes; that the Union had gone to arbitration twice before for Robbins in similar situations and both times obtained his reinstatement; and that the arbitrator had warned that he would no longer tolerate work stoppages.2 5 When Mt. Pleasant characterized his response with an obscenity, Rick told her he was tired of the Hot Seat Coalition causing the Union all kinds of unnecessary problems; creating a riot and causing personal injuries at the union meeting; 26 creating work stoppages; 27 and costing a lot of time for the union officers. He stated, "We've just started to fight and you're not going to like it," adding that he would "get rid of the Hot Seaters, one by one." 2 8 Later, Rick did seek legal advice from union attorneys about bringing coalition activists individually 76 Mt. Pleasant was among those whom the union officials identified as creating a disturbance at the previous union meeting. 27 Other coalition leaders were also defended by the Union when they were discharged for their part in work stoppages as well as for other reasons. 2s Eastman related an incident occurring sometime between May 16 and May 30 when he received a call that there was a work stoppage at (Continued) 971 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the union executive committee for discipline or expulsion when they created disturbances or work stoppag- es, but was advised against taking such action. Instead the Respondent established a policy of ignoring coalition member's actions, including their obscene and vulgar abuse of officers, and to "let them talk." I credit Rick's testimony over that of Mt. Pleasant whom I found to be unconvincing in demeanor and unspecific in detail. Rick's statements, "We have just started to fight," and he would "get rid of Hot Seaters, one by one," in the context presented, clearly referred to intraunion control and discipline and was not unlawful. Lester Cohen, a coalition-slate union shop chairman at Linden, testified he came to the union office for a conference with another official to try to obtain reinstate- ment of a discharged driver and, as he passed Rick's office, Rick called out that he wanted to speak with Cohen. As Cohen paused, Rick said, "We got rid of Robbins, we'll get rid of the rest of you." Cohen made no reply but merely walked away. Rick testified it was possible that he had a conversation with Cohen in April 1975, but that he did not have the conversation related by Cohen. I credit his denial that he made the statement in any form to Cohen or to anyone that, "We got rid of Robbins, we'll get rid of the rest of you." The facts are to the contrary, with respect to Robbins, and there was clearly no logical occasion for such a remark. Rick was much too busy and, in my evaluation, not the type of man who would waste his time shouting illogical untruths to passers-by. On May 29, Joyce Ravitz and Charles Wertheimer, both former coalition candidates, saw Rick at the union office to inquire when the shop committee elections, last held in September 1974, would be conducted again. Rick advised them that it probably would be in September 1975, and that they would be notified. Both Ravitz and Wertheimer testified that, as they were going out the door, Rick called after them saying: "You know that Mt. Pleasant girl? We are going to get her. We are going to get all of you out of the industry within a year." Neither made a response but walked out and left the premises.2 9 Rick testified that, when Ravitz and Wertheimer departed, he did not even say "goodby." I credit Rick's testimony that the conversation related only to the next committeeman election and to their complaint that the incumbent shop chairman was a "boss' man" and unfit to be chairman. I credit Rick's denial that he made the statements attributed to him with reference to Mt. Pleasant or to getting all of the coalition leaders out of the industry within a year. I also credit his broader denial that he ever said to anyone at any time he would get coalition members out of the industry. This clearly was not the Union's objective. On the contrary, Rick repeatedly reassured employees, particularly coalition members who raised the question, that none of them would lose Transportation. He drove to the garage and, while going from his car to the Employer's office, a group of coalition members who were handing out leaflets confronted him. They told him, "This is one time you're not going to be able to do anything. We got the garage out and it stays out." He proceeded to the office, ascertained that the Employer had made a complaint to Mt. Pleasant about some of the men, and that, instead of going through the grievance procedure, Mt. Pleasant had instructed the men to withhold their labor. Eastman tried to get the situation under control. In the course of these efforts, Mt. Pleasant again employed obscenities and profanity to the extent that Eastman himself began shouting to the employment because of an impending merger of employ- ers. Such assurances following statements like, "We're going to get Rank and Filers, one by one" (e.g., the May 21 encounter), surely requires an interpretation of such statements as meaning something other than adversely affecting the job status and tenure of coalition members. This conclusion is further bolstered by the union actions and Rick's personal participation in repeatedly securing jobs in the industry for discharged coalition-slate employ- ees. After Robbins' discharge, the chairmanship of the garage committee was open. John Gordon, a coalition-slate union shop committeeman, saw Rick conferring with the Em- ployer at the Dover garage and, in the company of Steve Martin, another coalition committeeman, approached Rick as he was leaving and asked what he was going to do about selecting a new shop committee chairman. Rick said he would appoint one. According to Gordon, he and Martin asserted that there should be an election. Rick told them to read their constitution. Martin urged Rick to appoint Gordon. Rick laughed and said, "You guys' days in the industry are numbered. It's in the cards. You are not going to last long." Rick testified that Gordon was claiming to be chairman at Dover as long as Robbins was not there and he advised Gordon that the constitution did not require the Union to appoint the next in number of votes to a vacant chairmanship. Then they insisted the Union's appointment should be of the coalition group. Rick denied he made the statement attributed to him by them. He testified he told Gordon and Martin that he, and the union office, had been studying the records of coalition members and that the results showed they seemed to last as drivers no more than 2 or 3 years. Most of them were in college or had gone to college 2 years or more and had just "stopped here to work our brains out and then continue on their way, never fulfilling their engagements at the garages." I credit Rick's version of this exchange and find nothing unlawful in the statements made by Rick. After the arbitrator's decision, Robbins was hired by another garage through Rick's efforts. He was fired from that employment after 3 weeks. He was again in Rick's office on April 28 and Rick was attempting to place him with still another garage when Gordon and Wasserman came in. The latter two began talking about the vacant chairmanship at their garage, stating that "the people" felt there should be an election. Rick asked them who "the people" were, stating, "You guys are always talking about "the people .... You call yourselves socialists, but you are really communists .... We talk about members .... Employer. to Mt. Pleasant, and to the men, that he would not tolerate the obscenities and wanted the profanity stopped. As a result of his shouting, they all stopped, and Eastman managed to settle the grievance matter and get the men back to work. 29 Wertheimer gave this variation, "Do you know your friend Mt. Pleasant? We are going to get rid of her. We are going to get rid of all you Rank and File people. You won't be driving within a year." Ravitz gave several other variations and finally admitted, when confronted with her affidavit, that she did not remember the exact words used by Rick. but knew only what was "implied." 972 NEW YORK CITY TAXI DRIVERS We know what you want and we're not going to let you get away with it. We're going to clean house." 30 According to Robbins, when Gordon and Wasserman left he told Rick he had not dealt with their problem. Rick told him he could follow them right out-pointing to the window of the office which is located on the seventh floor of the building.3 1 Rick then said, "I know all of you people are communists and we are getting all the communists out; we're not going to have any in the Union." Robbins then asked Rick if he was not aware that John L. Lewis had hired a large number of communists in organizing the CIO. Robbins further testified that he was at Rick's office to discuss his discharge and the possibility of filing a grievance but Rick said there was nothing they could do about his discharge because it was within the probationary period. Instead Rick sent him to another garage for employment. He was hired but was discharged from that garage 5 days later. Rick's threat to "clean house" and to have no commun- ists in the Union, made to a discharged former coalition- slate shop chairman, while Rick was successfully seeking another job for him in the industry, cannot bear such distortion as would be required to establish a threat to exclude coalition members from employment in the industry. It must, in this context, be understood as a threat to exclude communists from union membership-a clearly intraunion matter. Seltzer, who was elected shop committeeman at Terminal garage in 1974, was in Rick's office on February 13 when Rick received a telephone call from a union committeeman at Queens Forest garage concerning the use by other organizations of the Union's bulletin board. Rick told the caller he would have the bulletin board checked the following day and, if the material of the other organization was posted thereon, he would have that committeeman removed. This call was followed by an exchange of views between Seltzer and Rick in the course of which Seltzer criticized Rick's ruling and the Union, and Rick said, "My toes are beginning to hurt-someone is stepping on my toes .... " According to Seltzer, Rick added, "I'm going to get rid of every one of Rank and File one at a time, starting with Mt. Pleasant." Seltzer testified concerning several other alleged inci- dents. He related that on June 6 he was in the union office when Rick told him there was "a chapel meeting" going on at 55th street; that one of the drivers had been fired. Rick stated, "I'm going to steer clear of it. I hope they walk out and get themselves fired." Seltzer admitted that when the employees did walk out and were fired for it the Union took their case to arbitration and obtained their reinstate- ment. On another occasion, the date not identified, Seltzer recalled that, while he was acting as a committeeman at a grievance meeting, Rick said to him, "How long are you going to be here? Why don't you resign?" In a similar context after he had an accident with his cab, Seltzer recalled that Rick got the Employer to rescind Seltzer's :io Gordon also testified that Rick added he had orders not to take any more - - - from them, and that the Union was going to get them all out of the industry. On cross-examination Gordon admitted he did not recall the context of the comment that their days in the industry were numbered and did not beheve Taxi Rank and File Coalition was mentioned by anyone. Upon seeing his affidavit, he recalled that the Coalition was discussed. discharge. Seltzer admitted that sometimes he wondered whether Rick was kidding when he made these statements. On July 3, Seltzer was at the union office on another matter, and Rick thanked him for the publicity in their "rag"-referring to the Hot Seat newspaper. Rick labeled as untrue the report in the paper that Robbins had gone to 25 garages unsuccessfully trying to get hired and that there was union complicity in the petition campaign directed toward the removal of Mt. Pleasant as shop chairman at Transportation. In this context, Seltzer testified Rick said to him, "Don't you think we could have gotten rid of her if we had wanted to." Rick told him the only true statement in their paper was that there was a campaign to get rid of Taxi Rank and File Coalition, and added that Mt. Pleasant was useless at the garage; the boss would not have anything to do with her, and nobody could handle grievances through her; drivers would not come to her and "She is dead out there, a hopeless case." Rick also referred to an arbitration on a discharge there as "a hopeless case" and added, "We are going to get every one of you, and you are next," then reconsidered and said, "well maybe not you. I understand Goldman [at Frenat] is having some trouble." 32 Rick testified that he has known Seltzer for 10 or 12 years and has spoken with Seltzer many times both in his office and at grievance meetings. Rick did not specifically recall the telephone incident referred to by Seltzer, but stated it was probable that he had referred to his toes hurting and to someone stepping on his toes, and it was also possible that he said, "They would get Rank and File Coalitionists one at a time." However, Rick testified he did not make any such statements referring to Mt. Pleasant; that the only time he spoke with Seltzer concerning her was at Transpor- tation's garage on May 30. Rick did not specifically deny telling Seltzer he was "next." If this was stated by Rick in the context given by Seltzer, it is apparent Rick had reference to Mt. Pleasant's loss of the support of her constituency, for there was never any action taken with respect to her employment status or tenure. Nor did the Union take any action to remove her committee chairman- ship there. There is no evidence concerning what "trouble" Goldman was having at Frenat, but the entire context given by Seltzer suggests, at most, loss of intraunion political status, particularly in view of the precipitous events which occasioned Goldman's discharge, related infra. Hyman Tawil, a driver still within the probationary period at Marby, was fired on April 14. Tawil testified he was told by the bookkeeper that the reason for his discharge was his pretending to be shop chairman. On April 18, he came to the garage to talk with Shop Chairman Arthur Janousky about obtaining his reinstatement. Tawil testified that Janousky said he had been at the union office when the Marby owner called and said he did not want Tawil working there because he was a lunatic and a troublemaker. Janousky then asked him whether he was a 31 Although the General Counsel did not so specify and did not file a brief. I cannot believe he intended this as a threat of violence, and rule that it is not. 32 Since that time both Goldman and Seltzer have been fired by their respective employers and are furthering other careers. Their discharges are not the subject of any of the charges against the Union. 973 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hot Seater, and stated that the Union was out to get all Hot Seaters and anybody associated with them, and that the Union made it impossible for them to get jobs. Janousky concluded, "My advice to you is to go to another garage, hand in your papers, get a job, get your picture, wait for your cab and don't say nothing to any other driver. If you persist in the course you are going, you will run into an obstacle course which will eventually wash you completely out of the taxi industry ... wait in the cab and talk to nobody." Janousky recalled that when Tawil came to work at the garage he began passing out leaflets3 3 and other literature and talking to other drivers. Janousky testified he over- heard Tawil telling other drivers he was the new chairman. Other drivers reported to Janousky that the "new guy" was constantly saying he was the new shop chairman the Union put in. One day Janousky greeted Tawil with "Congratula- tions, I hear you're the new man taking over the garage." Tawil said he had a book and was taking notes and he was going to take over the Union, he was going to take over the chairman's job, he was going to handle everything in the garage, and he was going to be the new boss there. Janousky laughed and walked away. About 2 weeks later Tawil offered Janousky some literature which Janousky handed back stating that he was not interested. Tawil asked if he was the shop chairman of the garage. Janousky said, "Yes." Tawil said, "I'm the new boss, I'm taking over." Janousky again walked away. Janousky was check- ing in from his day's work and was present when Tawil began "fighting" with the owner, who fired Tawil. Janousky made an effort to represent Tawil and sought reconsideration by the Employer, asking that Tawil be given another chance. The owner showed Janousky the employment record which revealed that Tawil was within the probationary period. Janousky then told Tawil to go down to the Union and try to get another job. Janousky denied he ever said, "The Union would get Hot Seater," or "was out to get Hot Seater," or that "The Union was making it tough for Coalitionists to get jobs." He denied he ever inquired whether Tawil was a Hot Seater or a Rank and File coalition man. Janousky also denied making any reference to the Dover job or to Tom Robbins at Dover, asserting he never knew Tawil had worked there. Janousky asserted that Tawil never came back and asked him to help get his job back. Tawil's demeanor revealed a response to the witness stand experience of dramatic stimulation to an active imagination which rendered his testimony completely unreliable. I find no substantial evidence of unlawful threats or coercion in this incident. Edward Goldman began publishing and distributing newsletters under various names, as well as leaflets, shortly after he was hired at Frenat garage. He was elected to the shop committee in 1974 as a coalition candidate. Victor Kaufman, who had held the position for 10 years, was again elected shop committee chairman. Goldman testified that, every time he distributed literature, Kaufman would :3" Testimony establishes that Tawil was giving out leaflets to overthrow the Union. to overthrow the Government, and to overthrow everything. Leaflets carried such statements as "Let's march and fight." :1 On this occasion Goldman told the owner, "I'll do as I please. If you speak to him and that Kaufman's general pattern was to tell Goldman he was looking for trouble, creating a situation for himself which would get him fired, or that, "He would get me fired," or "I won't help you." Specifically, Goldman testified that during the week of April II when a driver had been discharged for low bookings and Goldman published a newsletter concerning this, Kaufman told him his newsletter was full of lies and he was a troublemaker. On this occasion Kaufman said he was going to see to it that Goldman got fired and Goldman was not going to get any help from the Union. Kaufman also told other drivers present they would get into trouble if they listened to Goldman and they would not be defended by him if they got into trouble. On another occasion, Goldman called a meeting which was held April 18 at 4 p.m. in the driver's waiting room of the garage. About 20 drivers were present. Goldman told fellow employees that the discharge of the aforesaid driver was an indication that the boss was going to set a quota and if a driver produced less he would be discharged. Kaufman was present and interrupted Goldman. Kaufman told employees that Goldman was going to get them in trouble; that Goldman was full of lies; that they had no right to meet in the garage; that he was the only person who could call a meeting; that he was finished with Goldman; that he wiped his hands of the matter; and that he was not going to help Goldman anymore. Kaufman denied that he ever told Goldman he would see to it that Goldman was fired or that if Goldman was fired he could expect no help from the Union. Kaufman testified that, on one occasion when Goldman was handing out his literature at the gasline, the owner told Kaufman to tell Goldman to distribute his literature outside the waiting room but when he relayed this message to Goldman he was rudely rebuffed and, therefore, reported his lack of success to the owner, who then ordered Goldman to stop his distribution at that location because it was blocking traffic through the garage. 34 Kaufman also recalled an occasion when Goldman was distributing a leaflet containing what he considered untrue statements and Kaufman said, in the presence of other drivers, "if you want to help people, help them; but don't hurt yourself because you're getting a reputation throughout the industry and, God forbid, if you ever lose this job, it is going to be tough for you to get a job; they'll be afraid of you." Kaufman further testified that, every time one of the drivers had a dispute with a dispatcher or anything else happened, Goldman was always injecting himself into the situation as Kaufman was trying to settle the matter; Goldman always wanted to "close the garage"; he always "wanted to have a strike right away." Kaufman told Goldman this was his depart- ment and he would take care of matters. On the occasion of the discharge for low production, Goldman prepared a leaflet publicizing his criticism of Kaufman's handling of the matter. Kaufman told Goldman that the latter did not know the story and that his leaflet could damage the driver involved. That driver later attended a garage meeting and don't like it, call your lawyer." On cross-examination. Goldman admitted the Employer did complain to the Union about the manner in which Goldman distributed his newsletters and leaflets, and that he had been told not to distribute the literature in the garage. 974 NEW YORK CITY TAXI DRIVERS spoke to the group saying, "Look, Victor was good enough to get me a job in another garage, and you want to hurt me and cause me to lose my job with what you're writing about me." Goldman retracted his leaflet the following week. Kaufman asserted that Goldman was always trying to call a meeting but that he would not permit this. It appears that Kaufman was at the union office handling some official business when he was told that Goldman was discharged. Kaufman returned to the garage. Goldman and some of his friends were standing outside the garage door and as Kaufman approached they urged him to take up a grievance on Goldman's behalf. Kaufman said he would investigate. Kaufman went into the manager's office. The manager told Kaufman, "We had to fire him," and displayed a weapon which the manager said had been used in a knife fight incident between Goldman and a mechanic in the garage. The other employee involved was not at the garage when Kaufman arrived and could not be interviewed at that time. Kaufman resumed his investiga- tion at 6 a.m. the next morning, but soon received a message through the manager that the union officials said he was to stay out of the matter because the Union was taking over the investigation. (Kaufman usually handled grievance investigations, but in this case there was an assault charge which could endanger the driver's taxi license and for this reason the matter was removed from the shop committee chairman's jurisdiction.) Kaufman reported these instructions to Goldman and his friends, and took no further steps in the matter. This was the third time Goldman had been fired by Frenat. On each of the previous occasions, one of them handled by Kaufman and the other by Rick, he was reinstated.3 5 I credit Kaufman's denial that he ever told Goldman he would see to it that Goldman was fired, or that he could :: Goldman was fired again in November 1975 and another committee- man filed his grievance which was unsuccessful. Goldman filed a charge which was dismissed by the Board's Regional Office. :sk In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. expect no help from the Union if he were fired. In the absence of a specific denial, Goldman's testimony-that Kaufman, in protesting the unauthorized meeting called by Goldman in the waiting room where meetings were not permitted, said he was finished with Goldman, that he wiped his hands of the matter, and that he was not going to help Goldman anymore-stands uncontradicted. Although this statement could be interpreted as implying that Kaufman would withhold union representation of Gold- man, it is clear that the statement was not so interpreted. For it was Kaufman whom Goldman and his friends approached to file the grievance when next Goldman was discharged. In the context in which Kaufman's statement was uttered it can as reasonably be interpreted as having reference to Goldman's improper use of the waiting room and his unauthorized actions as a union committeeman. Even if it is treated as a broader threat by Kaufman to deny Goldman, as an employee, his services as committee chairman, I view this as an isolated threat uttered in extreme extenuating circumstances and unworthy of a finding of unlawful conduct requiring a remedy under the Act. In summary, I find that the General Counsel has failed to establish by a preponderance of the credible evidence that Respondent has violated the Act in any of the respects alleged in the complaint. Upon the foregoing findings of fact, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 36 It is ordered that the complaint be, and the same hereby is, dismissed in its entirety. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 975