Consolidated Edison Co. Of New York, Inc.

CONSOLIDATED EDISON CO. Consolidated Edison Company of New York, Inc. and Michael McGarry. Case 2-CA-20801 20 November 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 3 July 1985 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Charging Party filed exceptions and an addendum to the exceptions. The Respondent filed a motion to strike the Charging Party's excep- tions and addendum, a memorandum in support of its motion to strike, and an answering brief to ex- ceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The General Counsel excepts to the judge's fail- ure to find that the Respondent violated Section 8(a)(1) of the Act by threatening employee Michael McGarry with a civil suit during a grievance meet- ing on 22 October 1984,2 and by threatening McGarry with unspecified reprisals during a tele- phone conversation on 23 October. The judge dis- missed the complaint in its entirety, finding that Division Manager Paul Angelides' threats were "personal to him" and therefore not attributable to the Respondent. We find merit in the exceptions. McGarry has been employed by the Respondent since 1945. In December 1980, McGarry, then a mechanic, was notified that he had been accepted for an inspector position and as a result attended a 1-week training course for the position. On 6 or 7 January 1981 Angelides, the division manager of contract administration and inspection for the Westchester division of the Respondent, inter- viewed McGarry for an inspector position. On 12 January 1981 McGarry filed a grievance demand- ing assignment to the Westchester division, claim- ing that he had been "shunted from one location to another without explanation." On 23 March 1982 McGarry filed 8(a)(1) charges against the Respond- ent regarding the failure to be given the inspector position. During a meeting held to discuss the grievance, McGarry accused Angelides of discrimi- 1 We deny the Respondent's motion to stnke the Charging Party's ex- ceptions and addendum. 2 All dates refer to 1984 unless otherwise specified. 1031 nation based on age. McGarry prevailed on the grievance and was assigned to the Westchester Di- vision in August 1981.3 Within days of the assign- ment, McGarry filed a grievance contending that the 8-month delay in the promotion and transfer was the result of discrimination. The grievance de- manded retroactive pay for the delayed wage raise and the difference in travel expenses. Angelides participated in a grievance meeting held in his office to discuss the grievance. The grievance was unresolved and later was denied at arbitration. McGarry has been a member of the Union since 1946 and served as a shop steward in 1977 and 1978. In 1980 McGarry ran unsuccessfully for the office of business agent. During the period McGarry was pursuing the inspector position at Westchester, he and other union members estab- lished a dissident group within the Union called "Fight Back." The primary position of "Fight Back" has been that the union leadership is inap- propriately cooperative with the Respondent. McGarry has written articles for Fight Back leaf- lets and has distributed the leaflets at the Respond- ent's facilities. In 1983 McGarry ran unsuccessfully for the office of business agent against the incum- bent union leadership on a Fight Back slate. During this period McGarry filed several unfair labor practice charges with the Board alleging that the Union had unlawfully failed to process his grievances. All these charges were dismissed or withdrawn. Since being assigned to the Westchester division and becoming involved in Fight Back, McGarry has filed several additional grievances accusing An- gelides of discrimination and harassment. McGarry filed a grievance on 27 October 1983 alleging dis- criminatory denial of excused time and filed a grievance on 10 April 1984 alleging harassment and denial of mileage reimbursement because of his union dissident activity. In order to process these grievances, meetings were held in Angelides' office with Angelides presiding. At the meeting to discuss the 27 October grievance Angelides accused McGarry of being "paranoid" and of "harassing" and "blackmailing" him. On 18 April 1984 McGarry filed unfair labor practice charges in Case 2-CA-20343 alleging that the Respondent violated Section 8(a)(1) of the Act by interrogating McGarry regarding solicitations involving intraunion matters, by warning McGarry that the solicitation had to cease and threatening reprisals if the solicitations did not cease, and by creating an impression that union activities were under surveillance. Later, on 11 June, McGarry 3 The charges before the Board were either withdrawn or dismissed 286 NLRB No. 97 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD filed an amended charge alleging that the Respond- ent violated Section 8(a)(1) of the Act by maintain- ing and enforcing two provisions of the collective- bargaining agreement regarding restrictions on the use of bulletin boards and distribution of literature at the Respondent's facility. A complaint issued and the General Counsel subpoenaed McGarry and several coworkers to testify at the hearing.4 McGarry and coworkers filed grievances de- manding payment for the 3 days missed from work to testify in the above proceeding before the Board. On 22 October a meeting to discuss McGarry's grievances was held in Angelides' office. The meeting began with Angelides reading from McGarry's grievance, adding comments as he proceeded. McGarry interrupted Angelides by stat- ing that the denial of the pay would constitute un- lawful retaliation. Angelides responded saying, "I get a million papers like this," and "forgetting the union matter, you continue to do what you do, using my name you're gonna be sued." Angelides continued, "I'm going to sue your ass off because I can buy and sell you and all your frigging lawyers .. . . And I will do it, you keep the crap up, you're harassing the shit out of me buddy and I'm getting angry, and if I get angry it has nothing to do with you or the union or the NLRB or any- body." McGarry turned to the union representative and said, "I believe this man is threatening me with illegal action." Angelides responded, "You bet I am." The meeting ended without resolution of the grievance. On 23 October, the day following the grievance meeting, Angelides telephoned McGarry at work. Angelides told McGarry that he had consulted with his lawyers and repeated the threat to sue. Angelides accused McGarry of hiding behind his Union by filing grievances and demanded to speak to McGarry "man to man." Angelides continued, "I have friends in high places at Con Ed and on the outside and I'm going to use these people to get back at you for harassing me. I'm going to make you sorry." McGarry filed a grievance based on the state- ments Angelides made during the 22 October grievance meeting and the 23 October telephone conversation. General Manager Robert Donahue presided over a meeting held to discuss the griev- 4 In that proceeding Administrative Law Judge Joel P Biblowitz found that certain restrictions on solicitation and distribution contained in the collective-bargaining agreement violated Sec. 8(a)(1) of the Act, and that the Respondent violated Sec 8(a)(1) of the Act by disparately en- forcing its rule against distribution against McGarry and by warning McGarry about his solicitation The judge also dismissed the surveillance allegation and the allegation that McGarry had been discriminatorily transferred and his hours changed as a result of his union activities The Board affirmed the judge's findings of 8(a)( 1) misconduct at 280 NLRB 338 (1986) ance. During the meeting Angelides and Denis Moran, McGarry's shop steward, questioned the truthfulness of the grievance allegations. In re- sponse McGarry disclosed that he had recorded the 22 October meeting and on inquiry further dis- closed that he was recording the present meeting.5 Donahue immediately ended the meeting and sent the grievance to Assistant Vice President C. J. Pa- pakrasas. Papakrasas denied the grievance by letter to the Union's business agent. The letter reads in its entirety: "In my review of Mr. McGarry's com- plaint, I find no concrete example of any discrimi- nation against him by management. Grievance denied." The letter was delivered to McGarry by Moran who told McGarry that the matter might go to arbitration.6 The judge found that the 22 October threat to sue McGarry and the 23 October threat of unspeci- fied reprisals were based on personal feelings be- tween Angelides and McGarry and were not calcu- lated to restrain or coerce McGarry in the exercise of his Section 7 rights. In so finding, the judge relied on several factors. First, the judge looked to the number of grievances, unfair labor practice charges, and lawsuits filed by McGarry in the prior 4 years, concluding that Angelides' statements must be considered in conjunction with those activities of McGarry. Second, the judge looked to the accu- sations that Angelides and McGarry had made against each other since McGarry's assignment to the Westchester division. Third, the judge relied on Angelides' disclaimers regarding the "union matter" and the "NLRB" made during the 22 Oc- tober grievance meeting. Based on these factors the judge concluded that Angelides' statements were unrelated to McGarry's protected activities, and thus the Respondent was not responsible for them. We do not agree. It is well established that the making of a threat by an employer to resort to civil courts as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act is unlawful. In Clyde Taylor Co.,7 the employer impliedly threatened to file a libel suit against certain employees unless they withdrew their unfair labor practice charges. The Board found such a threat amounted to harass- 5 McGarry later was singled out for public attack in a leaflet distribut- ed by the union leadership The leaflet accused McGarry and several other union dissidents of "dishonorable conduct" and "dirty tricks" for having made a surreptitious tape recording of the 22 October grievance meeting 6 The judge rejected the Respondent 's defense that this matter should be deferred pending arbitration under the parties' collective-bargaining agreement No exceptions were taken to the judge 's rejection of this de- fense 7 127 NLRB 103 ( 1960) Compare United Aircraft Corp., 192 NLRB 382 (1971), modified on other grounds 534 F 2d 422 (2d Ctr 1975), cert denied 429 U S 825 (1976) CONSOLIDATED EDISON CO ment since it would normally tend to intimidate an individual contemplating filing a charge from doing so or one who had filed a charge to withdraw it. Threats that operate to restrain employees in the exercise of their right to file charges under the Act are coercive and they violate Section 8(a)(1) of the Act. t3 In recommending dismissal of the complaint, the judge relied on Postal Service, 275 NLRB 360 (1985), in which the issue before the Board was whether the employer could be held accountable for a temporary supervisor's threat to file a lawsuit against the union. The supervisor, in addition to her regular clerical duties, served as a temporary supervisor on the third shift. The union filed griev- ances with the employer asserting that the supervi- sor was receiving preferential treatment in her em- ployee capacity in receiving job assignments and work hours. The supervisor made the alleged threat to sue the union during a private meeting with the state president of the union. The supervi- sor told the president that too many grievances were being filed against her, that the union was trying to block her in attaining her goals, and that she felt the union was harassing her. The supervi- sor stated that her husband had retained an attor- ney and she was forwarding information on the grievances to her attorney to bring civil suit when the union made a mistake or said the wrong word. The Board concluded that the supervisor was a temporary low-level supervisor and her remarks concerned the filing of a lawsuit on her own per- sonal behalf. The Board found the remarks could not be construed to involve any threatened retalia- tion within the framework of her supervisory re- sponsibilities and, without additional circumstances, the threats could not be attributed to the employer. The threats, moreover, were directed at a union, not an individual. The instant case is readily distinguishable. In contrast to Postal Service,9 Angelides was not a temporary supervisor but a division manager who represented the Respondent in a large number of grievances, Board actions, and lawsuits filed by McGarry. During the 22 October grievance meet- ing held in Angelides' office to discuss a grievance concerning a Board hearing, Angelides threatened McGarry with a civil suit. Then during a telephone conversation the following day he not only repeat- ed the threat to sue but additionally threatened 8 We find the issue of the legality of a threat to file a lawsuit different from those involved in the actual filing of a lawsuit In the latter situa- tion, a concern for a party's constitutional right of access to judicial forums must also be considered Cf Bill Johnson's Restaurants v NLRB, 461 US 731 (1983) Member Johansen did not participate in Postal Service, and expresses no view on its validity 1033 McGarry with future unspecified reprisals. These threats, given the context in which they were made, involve a form of retaliation by Angelides within the framework of his supervisory responsi- bilities and are hence not susceptible of being treat- ed as separate and apart from his role as the Re- spondent's grievance representative. Unlike Postal Service, in which the threats were directed at the union and, consequently, could not be construed to involve any threatened retaliation at the workplace, Angelides' threats were directed toward an employee, McGarry, as an employee. Angelides' threats to sue were made during a formal grievance meeting and arose out of the dis- cussion of the grievance that McGarry and the Union were then pursuing. Furthermore, when An- gelides repeated these threats in a followup tele- phone conversation the next day, he also referred to having friends in high places at the Respondent and on the outside, whom he was going to use to get back at McGarry. Angelides' allusion to the use of such friends to take unspecified reprisals to "get back at" McGarry is thus a threat directly related to the workplace made within the framework of Angelides' duties as supervisor and grievance ad- juster for the Respondent. At the very least, it would be reasonable for McGarry to construe it as such, and we so find. The situation here, then, is wholly different from the one in Postal Service in which the statements in issue solely concerned a low-level temporary supervisor's threat to sue the union during a private conversation with the union president. 10 Accordingly, we find that Angelides' threats are properly attributable to the Respondent and that the Respondent violated Section 8(a)(1) of the Act by threatening McGarry with legal action and un- specified reprisals for filing grievances and filing and pursuing unfair labor practice charges with the Board. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 10 We also deem it significant in distinguishing the two situations that the supervisor in Postal Service was a member of the bargaining unit and the union at the time she threatened to bring suit, that it was her repre- sentative that she was threatening , and that her temporary status as a su- pervisor did not serve to remove her from the permanent status she then enjoyed as a unit employee and constituent of the union In such circum- stances, it was difficult to impute responsibility to management for her threat to sue her own representative Compare Montgomery Ward & Co, 115 NLRB 645, 647 ( 1956), enfd 242 F.2d 497 (2d Cir 1957) (statements by a supervisor member of the bargaining unit are not considered by em- ployees to be representations of management but of a fellow employee) 1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. By threatening Michael McGarry with a law- suit or unspecified reprisals for filing grievances and filing and pursuing unfair labor practice charges with the Board, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten Michael McGarry or any other employee with a lawsuit or unspecified re- prisals for filing grievances or for filing and pursu- ing unfair labor practice charges with the Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. The National Labor Relations Beard orders that the Respondent, Consolidated Edison Company of New York, Inc., New York, New York, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening Michael McGarry or any other employee with a lawsuit or unspecified reprisals for filing grievances and filing and pursuing unfair labor practice charges with the Board. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its place of business in New York, New York, copies of the attached notice marked "Appendix."" Copies of the notice, on forms pro- vided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. " If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Ken Hirozawa, Esq., and Stephen D. Appell, Esq., for the General Counsel. Michael McGarry, pro se Francis B. Conrad, Esq., and David J. Reilly, Esq., for the Respondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITz, Administrative Law Judge. This case was tried before me in New York, New York, on 25 and 26 April 1985. The complaint and notice of hearing issued on 8 February 1985, and was based on a charge, a first amended charge and a second amended charge filed on 27 December 1984,1 8 January 1985, and 23 January 1985 by Michael McGarry, an individual. The complaint alleges that Consolidated Edison Co. of New York, Inc. (Respondent), by Paul Angelides, its division manager and agent, threatened to sue McGarry and threatened McGarry with unspecified reprisals because McGarry had testified at a Board hearing and had filed grievances pursuant to the applicable collective-bargaining agree- ment, in violation of Section 8(a)(1) of the Act. Respond- ent, although admitting that Angelides told McGarry that he would sue him, alleges that this was a purely per- sonal disagreement between Angelides and McGarry, and was never authorized or ratified by Respondent. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURSIDICTION Respondent, a New York Corporation with an office and place of business at 210 Westchester Avenue, White i Unless indicated otherwise, all dates referred to are for the year 1984. CONSOLIDATED EDISON CO Plains, New York, and other facilities, is a public utility providing electricity. Annually, Respondent receives rev- enues in excess of $250,000, and purchases goods and materials valued in excess of $50,000 directly from firms outside the State of New York. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. LABOR ORGANIZATION STATUS Respondent admits, and I find, that Utility Workers Union of America, Local No. 1, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE FACTS The Union has been the collective-bargaining repre- sentative for certain of Respondent's employees for almost 40 years. McGarry has been employed by Re- spondent for 38 years. Since about 1980 he has been active with a dissident group within the Union-Fight Back. His activities for Fight Back include running for union office on the Fight Back slate and soliciting signa- tures and distributing literature for Fight Back. In 1983, Fight Back printed a newsletter accusing the union lead- ership of a "track record of collusion with the company" and ignoring the employees' rights. At the same time, a union leaflet referred to Fight Back as a "handful of mis- fits" supported by radical groups. More recently, the Union referred to McGarry's tapings as "dishonorable conduct" and "dirty tricks." Angelides is the division manager of Respondent's Westchester division and is, lit- erally, middle management, four lines up from the union employees in the division, and four lines down from the top classification-vice president-of the division. McGarry has been working in this division since 1981 when he became an inspector in Respondent's contract administration and inspection department of the West- chester division. Approximately a year or two later he was promoted to construction representative. Since 1981, McGarry has filed numerous grievances and unfair labor practice charges against Respondent and the Union as well as a court case against Respondent. On 12 January 1981, he filed a grievance alleging that al- though he had been accepted for a job as inspector, and had chosen the Westchester division the prior month, he had not yet been given any official notification of his status. After a number of meetings, the grievance was granted and he became an inspector officially in August 1981. In August 1981, after having received this promo- tion, he filed a grievance asking for reimbursement for "denied raises" he would have received if he had been promoted earlier, and reimbursement for the extra miles he had to drive because of the delay in the promotion (the Westchester division location was closer to his home than his prior work location). The grievance recites that he had filed charges with the Board and the EEOC on the subject. In September 1981 a meeting was held in Angelides' office regarding this grievance. An arbitration hearing, at which McGarry and Angelides testified, was conducted in October 1982; the result was that his griev- ance was denied. On 27 October 1983 McGarry filed a 1035 grievance alleging that 2 days earlier he had requested "excused time" to attend a meeting at Respondent's New York City office. He stated that the meeting was in regard to a "Company related issue," but his request was denied. "My record has been excellent and therefore I can only conclude that this constitutes an act of discrimi- nation on the part of the management of the Westchester Division towards me." McGarry used a vacation day to attend the meeting. Two weeks later a meeting was held on the grievance; Angelides, as well as Jack Murphy, the Union's business agent, and Denis Moran, his shop stew- ard, were present. At this meeting, Angelides referred to McGarry as paranoid and claimed that he was harassing and blackmailing him. After the meeting, the Union in- formed McGarry that the grievance might go to arbitra- tion, but it never did. On 10 April McGarry filed a grievance alleging that he had been improperly transferred to another job loca- tion and had been inhibited from speaking to his fellow employees prior to the start of the workday. About a week later, a meeting was held in Angelides' office re- garding this grievance; present, in addition to McGarry and Angelides were Murphy and Al Masullo, his shop steward. The grievance was eventually denied. This dis- pute was also the subject of the unfair labor practice charge filed by McGarry and discussed, infra. On 5 Oc- tober McGarry filed a grievance requesting 3 days' pay for the days he attended the Board hearing, discussed infra. A meeting was held on 22 October regarding this grievance and it was at this meeting that Angelides made the comments that are the subject of this hearing. Re- spondent later paid McGarry and the other employees for the days they spent at the hearing. On 29 October McGarry filed a grievance regarding Angelides' threat to sue him and the other comments made by Angelides on 22 and 23 October. After a meeting on this grievance, it was denied by letter dated 23 November." When Moran gave him a copy of this letter he told him that it might go to arbitation, but McGarry has received no further word in that regard since that time. On 23 March 1981, McGarry filed 8(a)(1) and 8(b)(1)(A) charges against Respondent and the Union, al- leging that Respondent refused to place him in its West- chester division because of his protected activities and the Union failed to process his grievance regarding this refusal. On 14 April 1982, McGarry filed a charge against the Union alleging that they were delaying bring- ing a case of his to arbitration, and refusing to inform him of the date of the arbitration hearing. On 20 Decem- ber 1982 he filed a charge against the Union alleging that they had failed to represent him regarding his demand for retroactive wage payments from Respondent. On 27 December 1983 he filed a charge against the Union for refusing to process his grievance regarding the denial of a leave request he made to Respondent. Apparently, all the above charges were either withdrawn or dismissed. On 18 April and 11 June McGarry filed a charge and amended charge against Respondent alleging that Re- spondent maintained and enforced an unlawful limit on solicitation as contained in its collective bargaining agreement with the Union, that it interrogated and 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD threatened McGarry because of his solicitation for a peti- tion relating to union matters , kept these activities under surveillance, and changed McGarry's work location and working hours due to his union activities . A complaint issued in this regard and I heard this matter and , in a de- cision dated 7 March 1985, found that certain restrictions on solicitation and distribution contained in the collec- tive-bargaining agreement violated Section 8(a)(1) of the Act, and that Respondent violated Section 8(a)(1) of the Act by disparately enforcing its rule against distribution against McGarry and by warning McGarry about his so- licitation. I also dismissed the surveillance allegation and the allegation that he had been discriminatorily trans- ferred and had his hours changed because of his union activities. Exceptions were taken to this decision; the Board has not yet ruled on these exceptions. In addition to the above, McGarry instituted a lawsuit against Respondent in the United States District Court for the Southern District of New York, alleging that it had discriminated against him on the basis of his age (he is 60 years old), and alleging that Angelides was respon- sible for the discrimination. The case came to trial in De- cember and the judge dismissed the case prior to it going to the jury. A. The 22 October Meeting On 22 October a grievance meeting occurred in Ange- lides' office; present were McGarry, Angelides, Tony Branca, the Union's business agent, Moran, Masullo, and Ray Mechmann, Respondent's superintendent, contract inspection, Westchester division (one level below Ange- lides). The purpose of the meeting was to discuss McGarry's grievance demanding to be paid for the days he and other employees missed from work due to their attendance at the Board hearing referred to, supra. The meeting began with Angelides reading McGarry's griev- ance; some discussion ensued; Angelides accused McGarry of harassing him, and he said that the harass- ment annoyed him. He told McGarry: "I get a million papers like this" and "forgetting the union matter, you continue to do what you do, using my name, you're going to be sued.2 I'm going to sue your ass off, because I can buy and sell you and all your friggin lawyers." He also told him, "just off the record here from the griev- ance, if you keep this crap up, you're harassing the shit out of me buddy and I'm getting angry, and if I get angry, it has got nothing to do with you or the union or the NLRB or anybody." McGarry said to others that Angelides was threatening him and Angelides said, "I am, I am." At some point in the meeting, McGarry told Branca of his "background" with Angelides, and "at that point I might have mentioned that Mr. Angelides was one of the-he was the person that I felt was responsible and this is why I was going to court." McGarry testified that he has informed fellow employees and others (during the court action) that Angelides discriminates against him. McGarry clandestinely taped recorded this entire meeting, although he had previously been in- 8 The affidavit Angelides gave to the Board states that at this meeting* "I did not say I was going to sue McGarry " formed that he would not be permitted to tape record such meetings. B. The 23 October Telephone Conversation On the following morning, while McGarry was at his desk at work, he received a telephone call from Ange- lides3 who asked him what was going on, he heard he was going to the Board; McGarry said that he was dis- criminating against him. Angelides said that McGarry was harassing him by accusing him of discriminating against him; he said, "I have friends in high place at Con Ed and on the outside and I'm going to use these people to get back at you for harassing me. I'm going to make you sorry." About this point in the conversation, McGarry motioned to Masullo to pick up the telephone so that he could listen to the conversation, which he did. Angelides told McGarry that he took care of his mother and other older people in the home; therefore how could McGarry accuse him of discriminating against someone on the basis of his age. Angelides said that he spoke to his lawyers and they said that he could sue if he contin- ued to be harassed; McGarry said, "you're harassing me, I'm not harassing you." Angelides accused McGarry of hiding behind his union with his grievances; McGarry answered that he could not be because his union was not representing him. At that point, Masullo slammed down the phone, and shortly thereafter the conversation ended. Angelides testified that since 1981, he has been told that McGarry has informed other Respondent's employ- ees that he discriminates against McGarry because of his age. He testified: Michael McGarry was not saying that Con Edison discriminates against him because of his age. He was saying Paul Angelides, using my name was discriminating against him because of his age, and that to me is slanderous. The only thing that bothered me was when he would say Paul Angelides discriminates against me. He was saying my name personally. If he wants to talk about the company, that's one thing. Angelides testified that McGarry's unfair labor prac- tice charges before the Board and the grievances he filed did not disturb him; it was only the statements that he discriminated against McGarry (some of which were made at grievances meetings) that bothered him. Angelides testified that his position with Respondent did not clothe him with the authority to sue anyone on behalf of Respondent, nor did he ever inform any repre- sentative of Respondent that he intended to sue McGarry, or request authorization from any representa- tive of Respondent to sue McGarry. In December 1983, McGarry wrote to the general manager of personnel in Respondent's Weshchester divi- sion requesting that Angelides and Ed Quinn, the person- nel manager of Respondent's Westchester division, be 3 Angelides testified that he called McGarry after Mechman told him that McGarry had told him that he was going to the Board Angelides could not understand why he would do that because he gave him the 3 days' pay he requested CONSOLIDATED EDISON CO disqualified from participating in his grievances. In a grievance he filed on 30 November McGarry stated: "Due to the personal conflict between Mr. Angelides and I, I do not feel he would be judicious in the pro- ceeding of this grievance. I therefore request that he be disqualified from hearing the grievance." Respondent alleged as an affirmative defense in its amended answer that this proceeding should be deferred to the grievance and arbitration procedure of the collec- tive-bargaining agreement between it and Respondent. As stated, supra, the Union has never informed McGarry that his grievance was being taken to arbitration.4 The sole support for this allegation is. the statement made by counsel for Respondent that "the parties are willing to go to arbitration. The company is willing to waive any time limits set forth in the collective-bargaining agree- ment in respect to a presentation, a timely presentation of a grievance to arbitration," together with McGarry's tes- timony that his attorney has represented and appeared with other Fight Back members in arbitration hearings involving Respondent and the Union. Respondent repeat- ed this allegation in the form of a motion at the com- mencement of the hearings; I deferred decision at that time. The collective-bargaining agreement contains a griev- ance clause and the following arbitration clause: 49. Board of Arbitration as to grievances: (1) If a grievance is not adjusted or disposed of to the satis- faction of the parties in accordance with the Griev- ance Procedure and it is the desire of either party to arbitrate, the moving party shall so notify the other in writing. Such notification shall include a state- ment of the moving party's contention as to the grievance and the name of that party's designee to the Board of Arbitration. The other party shall thereafter and within five (5) days from the date of receipt of said notification furnish in writing to the moving party the name of its designee to the Board of Administration. The Company's designee and the Union's desig- nee shall jointly select a third party to serve as the Impartial Chairman of the three (3) man Board of Arbitration. IV. ANALYSIS Although I personally disapprove of clandestine tape recordings of conversations, that does not affect my find- ings that McGarry is a forthright and credible witness, while, at times, to Respondent's agents, an irritating and contentious individual. The sole issue is whether Ange- lides' threats to sue McGarry on 22 and 23 October were ° Counsel for Respondent, in his brief, states that this grievance "is the subject of the demand by the Utility Workers Union for arbitration " The sole support for this statement is a letter dated 5 April 1985 from the Union to Respondent stating that it "seeks to arbitrate the grievance of Mr Michael McGarry" without specifically identifying which grievance The speciousness of this argument is that this letter is part of the formal papers only because it is an attachment to counsel 's motion to Associate Chief Judge Bennett, dated 19 April 1985 to direct deferral to arbitration, which was made a part of the formal papers There was no testimony regarding this demand for arbitration , nor was it authenticated, therefore, it will not be considered 1037 in retaliation for his filing grievances and charges with the Board, and testifying in Board proceedings, and whether these threats therefore constitute a violation of Section 8(a)(1) of the Act. The remaining question is whether a decision in this proceeding should be deferred to the grievance arbitration provisions of the collective- bargaining agreement between the parties. It is a well settled principle by now that a threat by an employer or union "to resort to civil courts as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act" is unlawful. Electrical Workers IBEW Local 11 (Los Angeles Chapter), 258 NLRB 374 (1981); United Aircraft Corp., 192 NLRB 382 (1971); Hit 'N Run Food Stores, 231 NLRB 660 (1971). In Clyde Taylor Co., 127 NLRB 103 at 108 (1960), the Board found that the threat of filing a libel suit against certain employees unless they withdrew certain unfair labor practice charges amounted to harassment because it would "normally tend to intimidate an individual con- templating filing a charge, from doing so, or one who had filed a charge, to withdraw it." In S. E. Nichols Marcy Corp., 229 NLRB 75 (1977), the Board stated: "there is longstanding Board precedent consistently hold- ing that the filing of a civil suit, as opposed to the threat to file a civil suit, does not constitute an unfair labor practice." See also Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983). The initial question is whether Angelides' threat to sue McGarry was calculated to restrain McGarry's exercise of his Section 7 rights. The ultimate determination must be whether Angelides' threats were caused by, and de- signed to, stymie McGarry's statements to others that Angelides discriminated against him. In Access Control Systems, 270 NLRB 823 (1984), the employer threatened to sue an employee if a wage claim he filed with the state labor department was successful. The Board first found that this was not concerted activity, and then dis- missed this 8(a)(1) allegation because the employer's "re- taliatory threat was grounded on employee activity not encompassed by the Act." In a recent case, Postal Service, 275 NLRB 360 (1985), the union had filed a number of grievances asserting that a temporary supervisor was receiving preferential treat- ment in job assignments and working hours. At a private meeting with the union president, this temporary super- visor told him that too many grievances were being filed against her and that she felt that the union was harassing her. She said further that she had retained an attorney who instructed her that at the moment when the union made a mistake or said the wrong word, they would file a lawsuit against the union. The Board reversed the ad- ministrative law judge and found no violation because her remarks "while acting as a temporary low-level su- pervisor, concerned the filing of a civil lawsuit on her own personal behalf and cannot be construed to involve any threatened retaliation by the Respondent." The Board ruled that they would not find such a statement unlawfully "in the absence of any knowledge by the Re- spondent of these statements or any additional circum- stances which would make them attributable to Respond- ent." Member Dennis, in her concurring opinion, stated 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the temporary supervisor "was not complaining about grievances against her in her supervisory capac- ity," but rather was "speaking only for herself." Based on all the testimony I find that Angelides' threats were personal to him and cannot be attributed to Respondent. As the General Counsel sets forth in his brief, Angelides is a high-level supervisor and agent for Respondent, who was involved in all the large number of grievances, Board actions and lawsuits filed by McGarry, and that he lacks some credibility because he initially denied that he threatened McGarry, prior to learning that McGarry had taped the meeting. Although I agree with that position, the ultimate determination must be made based on what Angelides said on the 2 days in question (and there is no credibility issue in that regard) in conjunction with McGarry's activities in the prior 4 years, and the words used by Angelides in these conversations establish that the threat was a personal one, not the result of McGarry's protected activities. He said that McGarry was harassing him; "forgetting the union matter, you continue to do what you do, using my name, you're going to be sued." "You're harassing the shit out of me buddy and I'm getting angry, and if I get angry, it has nothing to do with you or the union or the NLRB or anybody." In the conversation the following day Angelides said that McGarry was harassing him by accusing him of discriminating against him, and he was going to use his friends at Respondent "to get back at you for harassing me." I therefore find that these threats were personal on the part of Angelides, and did not vio- late Section 8(a)(1) of the Act. Postal Service, supra. I also find that Respondent is not responsible for these threats. In Bio-Medical of Puerto Rico, 269 NLRB 827 (1984), the Board stated: "A principal is responsible for its agents' conduct if such action is done in furtherance of the principal's interest and is within the general scope of authority attributed to the agent, even if the principal did not authorize the particular act." In NLRB v. Long- shoremen Local 10, 283 F.2d 558 (9th Cir. 1960), the court stated: "And when an agent performs an act within the general scope of employment but with no intention to further the interests of his principal, the principal is not responsible for the agent's conduct." Those threats were not made in Respondent's interest, nor were they made to further Respondent's interest. Respondent also defends that this matter should be de- ferred pending arbitration under United Technologies Corp., 268 NLRB 557 (1984). At the hearing and in its briefs, Respondent stated its willingness to arbitrate, "and to waive any time limits provided in the collective-bar- gaining contract and relating to the timely presentation of a grievance to arbitration." Although I have found no evidence of the Union's willingness to arbitrate, this is not a fatal flow. In United Beef Co., 272 NLRB 66 (1984), the Company indicated a willingness to arbitrate the dispute, but the Union, after initially invoking the contractual grievances procedure, withdrew the arbitra- tion demand and notified the Regional Director that it would not take the individual's case to arbitration. The Board found that deferral to the grievance-arbitration procedure was appropriate. "To permit such withdrawal in circumstances where the Respondent is willing to pro- ceed and absent any showing that the arbitral process or result would be repugnant to the Act is clearly contrary to the principles of United Technologies." The Board, however, retained jurisdiction for the limited purpose of further consideration if. "(a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, either been resolved by amicable settlement in the grievance procedure or submitted promptly to ar- bitration, or (b) or the grievance or arbitration proce- dures have not been fair and regular or have reached a result which is repugnant to the Act." As I have found that Angelides' threats were not relat- ed to McGarry's Board action, that is not a defense to deferral under Houston Chronicle Publishing Co., 227 NLRB 1829 (1977), and International Harvester Co., 271 NLRB 647 (1984). However, I do agree with the Gener- al Counsel's further position that deferral is not appropri- ate because of McGarry's position in the Union, McGarry has been an active member of Fight Back for a number of years, running for union office, preparing and distributing literature, and assisting in the institution of legal proceedings against the union leadership. United Technologies cited, with approval, the dissent in General American Transportation, 228 NLRB 808 (1977), that stated that the Board "has refused to defer where the in- terests of the union that might be expected to represent the employee filing the unfair labor practice charge are adverse to those of the employees." The undisguised hos- tility between the union leadership and McGarry and the other Fight Back participants creates sufficient doubt of the Union's representation so they should not be relegat- ed "to an arbitral process authored, adminstered and in- voked entirely by parties hostile to their interests." Kansas Meat Packers, 198 NLRB 543 at 544 (1972). The willingness of Respondent and the Union to allow these individuals to have a representative of their own choos- ing present at the arbitration hearing does not sufficiently lessen this danger. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in any conduct in vio- lation of the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- s ORDER It is recommended that the complaint be dismissed in its entirety. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.