Glaziers, Architectural Metal & Glass Workers Local Union No. 636, Afl-Cio (Downey Glass Co., Inc)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glaziers, Architectural Metal & Glass Workers Local Union No. 636, AFL-CIO (Downey Glass Co., Inc.) and Arturo Ramos. Case 21-CB-9421 8 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 September 1986 Administrative Law Judge Gordon J. Myatt issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The sole issue presented for our consideration is whether Respondent Union's business manager Mario Salazar unlawfully restrained and coerced union member Arturo Ramos by threatening Ramos with physical harm when he stated an in- tention to file charges with the Board. The judge found the alleged violation of Section 8(b)(1)(A) of the Act. We disagree. Factually, this case involves conflicting versions of a November 1985 telephone conversation be- tween Ramos and Salazar." On direct examination, Ramos testified that he telephoned Salazar to ques- tion the reason for an additional dues assessment for June indicated on the statement from the Union showing receipt of Ramos dues payment. Salazar informed Ramos that the assessment was for nonat- tendance at union meetings. When Ramos insisted that he had attended the meetings and reminded Salazar of their conversation before the meetings Salazar said, "I know who the son-of-a-bitch that is talking" and used the derogatory Hispanic expres- sion "cabron" to refer to Ramos. Ramos asked Sa- lazar to control himself and repeated his inquiry. Salazar responded, "Because you're going to pay them. Don't get brute [brutal] because I know who you are, and I'm going to give you and your mother."2 1 The judge completely discredited a third version of this conversation elicited from Francisco Montoya, Ramos' close friend and an alleged union dissident. The judge concluded that Montoya was not engaged in dissident union activity and that even if he were the complaint allegation that Salazar threatened Ramos with bodily harm because of Ramos' asso- ciation with Montoya is not factually supported by the credible evidence in the record. We note that no exceptions were filed to the judge's find- ings and conclusions in this regard. 2 The distorted syntax of quoted testimony may in part be attributable to the translation from Spanish. When asked to repeat what Salazar said, Ramos testified, "Don't get brute with me. Whenever I grab you because I know who you are. I'm going to get your mother." Ramos then told Salazar he intended to gather up his receipts and go to the Labor Board. Salazar stated, "Yes, you're going to the Labor Board." Ramos then asked Salazar to repeat at the Labor Board the statements he made over the telephone. Salazar replied, "Not there, but outside I'm going to hit you and your mother." On cross-examination Ramos summarized the above conversation as follows : Salazar told him, "I know who the son-of-a-bitch I'm talking to. I'm going to grab you. I'm going to get your mother." Ramos told Salazar, "I'm going to gather up my receipts. I'm going to go to the Labor Board, and there you tell me that." Salazar replied, "There, no, but whenever I get you outside, I'm going to- I'm going to get you ...." According to Salazar's testimony, Ramos tele- phoned him to request payment of wages for the period of a 31 October plant shutdown. When Sa- lazar explained to Ramos that contractual provi- sions barred his claim, Ramos angrily insulted the Union and its officials, Salazar in particular. Sala- zar admitted that Ramos stated his intention to go to the Board. Salazar told Ramos that was his right. When Ramos continued to berate Salazar, Salazar told Ramos what to do with himself and hung up on him. Salazar denied threatening to hit Ramos or his mother. The judge found it unnecessary to resolve the testimonial conflict between Ramos and Salazar concerning the subject matter of the telephone con- versation. Finding it uncontroverted that a tele- phone dispute arose, that Salazar became pro- voked, and that Ramos threatened to file charges with the Board, the judge found it logical to infer that Ramos' stated intent to invoke the Board proc- esses provoked Salazar's threat to hit Ramos and his mother. The Respondent excepts to the judge's failure to resolve testimonial conflicts between Ramos and Salazar and to his ultimate finding of a violation. We find no need to resolve the conflict in testimo- ny regarding the subject matter of the dispute. Al- though we strongly disapprove of threats of vio- lence in labor relations , we find that even crediting Ramos' version in its entirety, there is an insuffi- cient nexus between the alleged threat and Ramos' stated intent to invoke Board processes.3 a We note that neither the General Counsel nor the Charging Party filed exceptions and that there is no contention before us that any other aspect of this conversation, apart from reference to invoking Board proc- esses, involved protected activity by Ramos. 282 NLRB No. 99 GLAZIERS LOCAL 636 (DOWNEY GLASS) In this regard, we note that the alleged threat which Ramos attributes to Salazar occurred prior to Ramos' statement that he was taking his receipts to the Board. Thus, contrary to the judge, Ramos' own testimony establishes that the alleged threat was initially made in response to his inquiry con- cerning the ,additional assessment and not with re- spect to an as yet unstated intention to invoke Board processes. Further, considering the entire content and context of Ramos' version of the tele- phone conversation, including the timing and con- tent of the initial threat, we find that reiteration of essentially the same threat after Ramos' mention of possible recourse to the Board cannot on the par- ticular facts reasonably be construed as a threat- ened reprisal against such recourse. ORDER The complaint is dismissed. Alfredo Magallanes and Leonard Bernstein, Esqs., for the General Counsel. Howard Z Rosen, Esq. (Posner & Rosen), of Los Angeles, California, for the Respondent. DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. On a charge filed by Arturo Ramos, an individual, against Glaziers, Architectural Metal & Glass Workers Local Union No. 636, AFL-CIO (Respondent Union), the Acting Regional Director for Region 21 issued a com- plaint and notice of hearing on 30 December 1985. The complaint alleges that Respondent Union, by the conduct of its business manager, Mario Salazar, violated Section ,8(bx1XA) of the National Labor Relations Act. 29 U.S.C. § 151 et seq. Specifically, the complaint alleges that Salazar threatened an employee with bodily harm because of the employee's association with a fellow em- ployee who had engaged in dissident union activity. Fur- ther, that Salazar threatened an employee with bodily harm because the employee stated an intention to file a charge against Respondent Union with the National Labor Relations Board. Respondent Union filed an answer in which it admitted certain allegations of the complaint, denied others, and specifically denied commit- ting any unfair labor practices. A hearing was held on this matter in Los Angeles, California, on 20 March 1986. All parties were represent- ed by counsel and afforded an opportunity to present material and relevant evidence on the issues and to ex- amine and cross-examine witnesses . Briefs were submit- ted by the parties and have been duly considered. On the entire record in this case, including my obser- vation of the witnesses while they were testifying, I make the following FINDINGS OF FACT I. JURISDICTION 649 Downey Glass Co., Inc. is a California corporation en- gaged ' in the business of fabricating and selling glass products on a wholesale basis . Downey maintains and operates a facility located in Los Angeles, California. In the course of its business operations, Downey annually sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. On the basis of the above, I find that Downey is, and has been at all times material , an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Glaziers, Architectural Metal & Glass Workers Local Union No. 636, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Meeting on the Wage Increase Allocation The undisputed testimony establishes that Respondent Union is the bargaining representative of a unit 'of em- ployees employed by Downey and that the employment relationship is governed by an existing collective-bargain- ing agreement. In addition to the employees at Downey, the Union represents units of employees of three other employers who are also' covered by the same collective- bargaining agreement. The agreement provided that the employees were to receive a wage increase amounting to 30 cents an hour in August 1985.1 Apparently under the terms of the agreement, the question of whether the wage increase would be allocat- ed to the employees' wages or would become additional contributions on their behalf to the union pension fund was a matter to be determined by a vote of the employ- ees. In order to ascertain the preference of the employees regarding the pending August wage increase, the Union called a special meeting in June for the purpose of con- ducting a secret ballot vote on the issue. Ramos, who worked in the insulation department at Downey, testified he 'went to the union meeting with Francisco Montoya, a friend and coworker in the insula- tion department.2 When they arrived at the meeting ball, they signed their names and social security numbers on the-sign-in sheet at the entrance of the hall. Ramos testi- fied that the hall was crowded with people who were not employees of Downey so he and Montoya decided to go outside and stand across the street until the meet- ing began. On their way, Montoya left to seek out Mario Salazar, business manager of the Union, to talk to him ' Unless otherwise indicated, all dates herein refer to the year 1985. 2 Ramos had been employed at Downey for approximately 7 years and had been a member of the Union since the inception of his employment. Ramos and Montoya had been friends and coworkers prior to their re- spective employment by Downey. The unrefuted testimony reveals it was at Ramos' suggestion that Montoya applied for and secured a job with Downey in May 1983. The two employees were eventually assigned to work in the same department on the same shift. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the wage increase and the pending vote on the issue. According to Ramos, he overheard Montoya and Salazar arguing as they came across the street to where he was standing with a group of other Downey employ- s. Ramos testified that as they approached , he ques- tioned Salazar about other members, who were not em- ployed by Downey, voting on a matter which affected Downey employees. Ramos stated he was told by Sala- zar that it did not matter and it was not the place to "talk about those things." Montoya testified that when he found Salazar before the meeting commenced, he told the union official that the contract which had been negotiated was "bad" and that he did not want Salazar to "take anything out of his wage increase." According to Montoya, Salazar called him a "mother" and said Montoya was alone and "did not count for anything." Montoya then informed Salazar that he was accompanied by "companions" and asked Salazar to come outside to verify this . Montoya further testified that as they crossed the street to where Ramos and other Downey employees were standing , he com- plained to Salazar about non-Downey members voting on the wage increase allocation which affected Downey employees. Although Salazar's testimony concerning the events preceding the meeting was substantially similar to that given by Ramos and ' Montoya, there were certain key differences between his statements and that of the em- ployees. Salazar acknowledged that Montoya sought him out and complained that the contract was a bad agree- ment. He stated that, in general, Montoya and most of the other members expressed the view that the pay in- crease should be allocated only to wages and not as a pension fund contribution.8 Salazar further, testified that during this conversation with Montoya, the employee asked him to go across the street to talk to other members about the issue and he did so. According to Salazar, Montoya questioned the presence of non-Downey members participating -in the vote and Salazar stated the issue was to be decided by all the members who were under the same collective-bar- gaining agreement. Montoya and other employees in the group insisted they only wanted Downey employees to vote on the allocation of their wage increase and Salazar replied that it was not possible. Salazar testified he had ,no recollection of Ramos being in the group during the discussion and that he was not aware at the time of the friendship that existed between Montoya and Ramos. B. The Incident Regarding the $2 Assessment Against Ramos Ramos testified that on 4 November when he came home from work, he received a dues payment statement from the Union in the mail. Montoya was with Ramos at the time as they planned to take care of a matter for Montoya at the Department ' of Motor Vehicles. The statement from the Union showed receipt of Ramos' dues S The testimony reveals that the membership overwhelmingly voted to receive the increase in the form of wages rather than as a pension contn- bution. and indicated a $2 balance due as an assessment for June 1985. (See G.C. Exh. Z,).4 - Ramos testified he called the union office and spoke with a secretary who was unable to understand his in- quiry about the outstanding balance due. She put another individual on the line who in turn transferred Ramos' call directly to Salazar. According to Ramos, when he questioned the reason for the $2 assessment, Salazar re- plied it was because Ramos did not attend the June meet- ing. Ramos stated he informed ' Salazar that he had at- tended that meeting and reminded the union official of their conversation across the street from the union hall before, the meeting. At this point, according to Ramos, Salazar said, "I know who is the son-of-a-bitch that is talking" [sic] and used the derogatory Hispanic expres- sion "cabron" in referring to Ramos.5 Ramos stated he asked Salazar to control himself and repeated his ques- tion about the basis for the $2 assessment. According to Ramos, Salazar cautioned the employee not to get "brutal" with him and said, "I know who you are, and I am going to hit you and your mother." Ramos further testified that when Salazar began making these state- ments to him, Ramos motioned to Montoya to pick up the extension phone and listen to the conversation. Ramos asserted that he then told Salazar that he in- tended to gather up his dues receipts and go to the Labor Board. Ramos asked Salazar to repeat the state- ments at the Labor Board that he made over the tele- phone. According to Ramos, Salazar replied, "Not there, but outside I am going to hit you and your mother." Ramos acknowledged on cross-examination that he normally received dues receipts from the Union every 2 or 3 months whenever he paid his union dues. He further acknowledged that approximately three' out of every four receipts indicated a $2 balance due and whenever this occurred, he would call the union office about the assessment. On some of these occasions he spoke with a clerical person and on others he spoke directly with Sa- lazar about the assessment. Although' he testified that Sa- lazar stated Ramos was the only member who gave him a problem about the $2 assessment, Ramos further ac- knowledged that Salazar had never in the past called him a "cabron" or an "s.o.b." or threatened to hit him or his mother. Montoya confirmed that he picked up" the extension phone on Ramos' signal during the employee's conversa- tion with Salazar. According to Montoya, he heard Ramos say he would' take his receipts ' to the Labor Board. Montoya testified Salazar -then called Ramos a "mother fucker"6 and Ramos said Salazar should tell 4 Under the Union's bylaws, a $2 assessment was imposed on all mem- bers who failed to' attend any specially called meeting of the membership. Ramos testified he had not attended any union meetings for the months of July through September, but did attend a meeting on 26 October. There was no indication in the record about whether the meetings for these months were considered specially called meetings. b Ramos testified the term "cabron" meant "ignorant, foolish, and something very low." 6 Ramos was recalled as a witness and denied that Salazar used such an expression during their telephone conversation. GLAZIERS LOCAL 636 (DOWNEY GLASS) that to him before the Labor Board. Montoya itated"Sa- lazar responded by saying , "There I won't tell you any- thing, but I have to get you alone." Salazar's account of his conversation with Ramos dif- fered sharply from that of the two employees . Salazar stated that on 31 October, Downey shut down its plant for 1 day due to a lack of work. According to Salazar, a number of employees felt they should have been paid their wages for the day of the plant shutdown. He testified that Ramos called the union office the fol- lowing week and spoke with him about getting paid his wages for the day of the shutdown. Salazar stated he ex- plained to Ramos that there was no guaranteed 40-hour workweek in the collective-bargaining agreement and nothing could be done about the employees ' wages for time lost due to the plant shutdown . Salazar stated Ramos became angry and said, "`The Union wasn't worth a damn." The employee also stated, according to Salazar, that the union officials were "a bunch of leeches and sons-of-bitches that didn't do anything for anybody." Sa- lazar testified that at this point he asked Ramos ,to come to the union office and discuss the matter . He stated he did so because many times when employees had com- planits he would have them come to the union office. He would then show them the collective-bargaining agree- ment and, in many instances, this usually resolved the problem. Salazar admitted that Ramos said he was going to the Labor Board, but stated he told Ramos that was his right. Salazar further testified that when Ramos con- tinued to berate the Union and him in particular, Salazar became angry and said, "Well you can go fuck yourself then." Salazar then terminated the conversation with the employee by hanging up the telephone. Salazar denied that during the conversation he used the term "cabron" in referring to Ramos and he denied calling Ramos an "s.o.b." or threatening to hit Ramos or his mother. Regarding the $2 assessment, Salazar asserted that he normally did not respond to telephone inquiries from members regarding the imposition of the assessment for missing specially called meetings. He stated that the union membership totaled 2800 and he did not devote his time to such minor matters. According to Salazar, such inquiries were handled by the secretaries in the office as a routine matter. He testified that one secretary was bi- lingual and her work hours were from 7:30 a.m. until 3:30 p.m. The other two secretaries only spoke English and their hours were from 8 a.m. until 4:30 p.m. and 9 a.m. until 5 p.m., respectively: He stated the procedure in responding to such inquiries merely involved the sec- retary checking the sign-in book for the particular meet- ing in question and ascertaining whether the member's name was shown there. Concluding Findings The complaint alleges and the General Counsel argues that Salazar threatened Ramos with bodily harm and that his reasons were twofold. First, because of Ramos' close association with Montoya, who it is alleged had engaged in dissident union activity. Second, because Ramos threatened to go to the Board regarding his dispute with the Union over the $2 assessment. In my judgment, the 651 record establishes tliat 'a violation has been committed, but only for the latter reason. It is settled law that a union violates Section 8(bxl)(A) of the Act when its agents threaten an employee with bodily harm for engaging in protected concerted activi- ties. Electrical Workers IBEW Local 453 (National Elec- trical Contractors Assn.), 258 NLRB 1427 (1981). It is equally settled that engaging in dissident union activities or being aligned or associated with employees who are engaged in such activities is a'protected right under the Act. Cf. Boilermakers Local 686 (Boiler Tube), 267 NLRB 1056 (1983); East Texas Motor Freight, 262 NLRB 868 (1982), However, in order to demonstrate that a violation has been committed, it is necessary to establish a causal connection between the asserted union misconduct and the protected activity of the employee. I find the record here fails to demonstrate that Salazar's comments to Ramos during the telephone conversation on 4 Novem- ber were engendered by Ramos' association with Mon- toya or with the position taken by Montoya regarding the allocation of the wage increase. Although there is no doubt that Montoya made it per- fectly clear to Salazar that he wanted ` the increase ap- plied solely to his wages, it is equally apparent from Sa- lazar's testimony and the result of the membership 'vote that Montoya was not expressing a dissident viewpoint. Rather, he was verbalizing the sentiments advocated by an overwhelming majority of the union members cov- ered by the collective-bargaining agreement. More im- portant, there is nothing in the record which suggests that Salazar or the union leadership were seeking to have the pending wage increase applied in any manner other than that , decided on by .the ,membership. The record re- flects that the union officials were merely providing a means for the members to express their , choice by a secret ballot vote. Montoya's characterization of the collective-bargaining agreement as a "bad contract" would appear, at first blush, to place him in conflict with Salazar. I find, how- ever, that in the context of their conversation this was not the case. Although Montoya and, ' Ramos testified through an interpreter and Salazar did not, I observed each of the witnesses carefully during the course of the testimony. Montoya appeared to me to be willing to em- bellish his statements and color the facts so as to convey an impression of being at odds with Salazar. For exam- ple, Montoya testified that when he told , Salazar the con- tract was a bad agreement and he did not want Salazar (the Union) to take anything out of his wage increase, Salazar called him an obscene name and stated the em- ployee was alone and his view did not count . Salazar, on the other hand, forthrightly testified that he knew at this point the members in general wanted the increase, in'the form of wages and not as a pension contribution. It is not logical that the union representative would berate Mon- toya and state that the employee's views were of no con- sequence when 'Salazar knew Montoya's position in fact reflected the sentiments of a majority of the members. For this reason, I find Salazar's testimony regarding his conversation with Montoya and the employees to be more trustworthy. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further find that in addition to stating he wanted the increase in his wages, Montoya's chief complaint was about the' fact that members not employed by Downey were going to vote on the wage increase issue. I credit Salazar's testimony that when he explained the other members Were covered by the same collective-bargaining agreement and were entitled to vote, that Montoya asked him to go across the street to speak with his companions. I credit Salazar's testimony that when he spoke to the group of employees they were insisting that only the members employed by Downey should vote and he told them it was impossible . Finally, I credit Salazar's testi- mony that he had no recollection of whether Ramos was in the group when he spoke to the employees and that he was not aware of the personal friendship and associa- tion that existed between Ramos and Montoya. Based on the above, I find that Montoya was not en- gaged in dissident union activity in June. But even if Montoya's conduct were deemed to be dissident union activity, the record fails to demonstrate that Salazar was aware of the close association between Ramos and Mon- toya or that Salazar considered Ramos aligned with Montoya's views. I find, therefore, that paragraph 6(a) of the complaint (which alleges that Salazar threatened Ramos with bodily harm because of that employee's as- sociation with Montoya) is not factually supported, by the credible evidence in the record. Accordingly, this paragraph of the complaint must be dismissed. The question of whether the asserted threat of bodily harm was made because Ramos stated he was going to the Board about his dispute with the Union presents a more difficult issue. There is sharp conflict in the testi- mony of all the witnesses; not only concerning the basis for the phone conversation between Ramos and Salazar, but also regarding what was said by these two individ- uals during the conversation. In sifting through the contradictory testimony, howev- er, I place no reliance whatsoever on the testimony of Montoya, who listened to a portion of the conversation. Here again, I find that Montoya's proclivity for embel- lishing his testimony renders his statements completely unreliable. Montoya testified that he heard Salazar call Ramos a "mother fucker," but on redirect examination Ramos specifically stated that Salazar never referred to him by this obscene expression. Thus, I rely, solely on my examination of the testimony of Ramos and Salazar in determining whether a violation was committed during the telephone conversation on 4 November. Although Ramos and Salazar gave differing versions of the underlying reason that prompted Ramos to call the union office, I do not deem it necessary to resolve this testimonial conflict. I find it sufficient that there are certain material matters about which there is no conflict and about which the testimony of these two witnesses is consistent. First, there is no question but that a dispute arose between Ramos and Salazar concerning whatever the subject matter of the telephone conversation hap- pened to be, i.e., whether the $2 assessment as Ramos in- dicated by his testimony, or the request for payment of wages for the day loss due to the plant shutdown as indi- cated by Salazar. Second, it is evident from the testimo- ny from both of the witnesses that Salazar became pro- voked with Ramos during the telephone conversation. Third, it is equally evident from the testimony that Ramos threatened to go to the Board about his dispute with the Union. In these circumstances, I find it logical to infer that Ramos' statement to the effect that he would take the matter to the Board provoked Salazar into responding that he would hit the employee and his mother. By Salazar's own admission he concluded the conversation by telling the employee what he could do with himself. In my judgment, this demonstrates the level of anger felt by Salazar at the time and lends cre- dence to Ramos' testimony that the union official threat- ened him with physical violence. Oil Workers Local 2- 947 (Cotter Corp.), 270 NLRB 1311 (1984). Accordingly, I find the Respondent violated Section 8(b)(1)(A) of the Act in that Salazar's threat unlawfully restrained and co- erced Ramos in his right to use the Board's processes. CONCLUSIONS OF LAW 1. Downey Glass Co., Inc. is an employer engaged in commerce or in an industry' affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Glaziers, Architectural Metal & Glass Workers Local Union No. 636, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening an employee with physical harm for indicating he planned to file charges with the National Labor Relations Board, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices, it shall be ordered to cease and desist therefrom and take certain affirmative action which will effectuate the purposes of the Act.' [Recommended Order omitted from publication.] T The General Counsel has requestd that the Order issued here contain a visitatorial provision. The purpose of such a provision is to enable the General Counsel to monitor compliance with the Order in the event it is adopted by the Board and enforced by a court of appeals. The Board has yet to establish guidelines for the inclusion of this type of provision in its orders and until such are developed, I am of the view that the request must be denied.