Amalgamated Transit Union, Local 689 a/w Amalgamated Transit Union AFL-CIO, CLC (Transdev North Amer

373 NLRB No. 49 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Amalgamated Transit Union, Local 689 a/w Amalga- mated Transit Union, AFL–CIO, CLC (Transdev Services, Inc.) and Thomas Henry McLamb. Cases 05–CB–286354 and 05–CB–286964 April 26, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX On September 29, 2022, Administrative Law Judge Christal J. Key issued the attached decision. The General Counsel, Charging Party Thomas McLamb, and Amalga- mated Transit Union, Local 689 a/w/ Amalgamated Transit Union, AFL–CIO, CLC (the Respondent or ATU Local 689) filed exceptions and supporting briefs. The General Counsel and the Charging Party filed answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent did not violate Section 8(b)(1)(A) of the Act when Union Steward Tiyaka Boone slapped Charging Party Thomas McLamb, and we agree for the reasons set forth below. The judge also found, however, that the Respondent violated Section 8(b)(2) by seeking McLamb’s termination. As explained below, we reverse this finding and dismiss the complaint. Background From its Hubbard Road facility in Hyattsville, Mary- land, the Employer, Transdev Services, Inc., provides transportation services to private and governmental enti- ties in Maryland, the District of Columbia, and Virginia. In February 2013, the Employer hired McLamb as a driver. At that time, ATU Local 1764 represented Trans- dev’s drivers, mechanics, dispatchers, maintenance clerks, and gatekeepers. About a year after he was hired, 1 The General Counsel and the Charging Party except to the judge’s rejection of CP Exh. 1, a video of Respondent President Raymond Jack- son telling employees to slap coworkers who spoke badly about him. They argue that the exhibit establishes that the Respondent created an environment that was hostile to dissidents. The judge rejected the exhibit as irrelevant on the basis that it was made a year before the events at issue here and did not have a tendency to prove the facts alleged in the com- plaint. After a careful review of the record, we find that the judge did not abuse her discretion. See Pain Relief Centers, P.A., 371 NLRB No. 70, slip op. at 2, fn. 3 (2022) (“ . . . the Board will affirm an evidentiary McLamb began engaging in dissident activities and, in November 2014, he filed a petition seeking to decertify ATU Local 1764. The petition was unsuccessful; unit em- ployees voted in favor of continued representation. In February 2016, McLamb sent a letter to ATU’s Interna- tional Secretary Treasurer requesting to become a fee ob- jector. In August 2016, McLamb filed a deauthorization petition against ATU Local 1764. ATU Local 1764 cam- paigned against deauthorization by distributing a flyer that stated, in part, “McLamb and Transdev have no plan to improve anything.” In another flyer, ATU Local 1764 noted that McLamb’s 2014 decertification petition had de- layed contract negotiations and “cost every worker at Hubbard Road real money.” As with the decertification petition, the deauthorization petition failed. In 2020, McLamb unsuccessfully campaigned against the merger of ATU Local 1764 with the Respondent, accusing the Re- spondent and its predecessor’s officers of being thieves who mismanaged unit members’ dues. In June 2021,3 ATU Local 1764 merged with the Respondent, ATU Lo- cal 689, and the latter became the exclusive bargaining representative of the unit employees. Meanwhile, in February 2016, the Employer hired Boone as a driver. That same year, the Respondent ap- pointed Boone as a shop steward. At an unspecified time during her shop steward tenure, Boone’s husband died and she started an online “GoFundMe” account to raise funds to help pay for his funeral expenses. Then, in early No- vember, Boone’s son was the victim of a stabbing. Also in early November, the Respondent held a meeting for the nomination of officers and stewards in the upcom- ing December election. McLamb accepted a nomination for Paratransit at Large Executive Board Member and shop steward. Employees Gary Rouse and Mischelle Woodfork, who were aligned with Respondent’s President Raymond Jackson, also accepted nominations for the Par- atransit at Large position. Shop Steward Alma Williams and employees Valerie Thomas and Sandra Beckman ac- cepted nominations for shop steward. Boone did not run for office, but she actively supported candidates Wood- fork and Williams. At the end of the overnight shift on November 11, can- didates and their supporters gathered in the operators’ ruling of an administrative law judge unless that ruling constitutes an abuse of discretion.”). 2 The parties have excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless a clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 All subsequent dates are in 2021 unless stated otherwise. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 lounge and distributed campaign literature. Boone stumped for Williams, who was also present. McLamb distributed his flyers and told employees that the incum- bent officers and stewards were crooks who stole union money, and that on the coming Tuesday he would “let it all out” and expose the Respondent.4 He added that some employees kept Virginia license plates on their vehicles even though they no longer lived in Virginia because they could not pay their bills or vehicle insurance, and he called out Boone by name.5 He stated that Boone should pay her bills and care properly for her children. Williams asked McLamb to “cool it,” but McLamb continued making dis- paraging remarks to and about Boone. Boone told McLamb that she was not running for office and that he should talk about the candidates and the issues. Boone also told McLamb to “keep [her] name out of his fucking mouth” and to “stop putting my personal business in the street.” Support Operations Specialist Brenard Bolling told Boone that cussing was not “lady-like” and he took McLamb outside to talk to him and try to de-escalate the situation. Boone attempted to call the Employer’s General Manager Conrad Marshall from her cell phone but could not get service in the building. Boone walked outside to make the call, and the confrontation between herself and McLamb reignited. Boone told McLamb to “leave [her] the fuck alone” and told Bolling, who was standing be- tween her and McLamb, to “get the fuck out of the way.” Bolling moved away and another employee, Michelle Smith, stepped in front of McLamb. Boone reached around Smith and slapped McLamb in the face. McLamb said that Boone assaulted him. Other employees inter- vened and escorted Boone away from McLamb. Later, on November 11, General Manager Marshall be- gan investigating the Boone-McLamb incident. He met with Boone and shop steward Williams and told Boone that slapping another employee was a fireable offense. Williams responded that disparaging coworkers was also a terminable offense, adding that if the Employer was go- ing to fire Boone it should also fire McLamb. On Novem- ber 14, Williams submitted a statement to Transdev about the incident that downplayed Boone’s responses to McLamb’s offensive personal comments. 4 Nothing happened the following Tuesday. 5 Virginia has the least expensive automobile insurance rates in the Washington, D.C. metropolitan area, which includes Washington D.C. and the Maryland and Virginia suburbs. See WANADA (Washington Area New Automobile Dealers Association), 2023, https://wanada.org/how-maryland-virginia-dc-compare-in-car-insur- ance-costs/. See also https://bankrate.com/insurance/car/states/. At the time of McLamb’s remark, Boone lived in Maryland, but her vehicle dis- played a Virginia license plate. 6 Rule 11 prohibits “disrespectful conduct - discourteous comments or treatment, or using vulgar, abusive language or gestures to co-workers, On November 18, the Employer issued a 10-day sus- pension to McLamb for violating Rules 11 and 17 of the Respondent’s Standards of Behavior by “continuously making inappropriate remarks and creating a hostile work environment by stating someone can’t pay their rent and has Virginia tags.”6 On December 3, the Employer termi- nated Boone for violating Rule 11 by following McLamb from the lobby and “[striking] him in the face.” The Re- spondent grieved both McLamb’s suspension and Boone’s termination. When the Employer denied the grievances, the Respondent voted to take both grievances to arbitra- tion. McLamb filed unfair labor practices charges against the Employer and the Respondent, alleging that the Em- ployer discriminated against him by suspending him and that the Respondent caused the Employer to discriminate against him. About one month prior to issuance of the complaint, the Employer settled the allegations against it.7 Analysis 8(b)(1)(A) Allegation The consolidated complaint alleges that the Respondent violated Section 8(b)(1)(A) of the Act by assaulting McLamb and violated Section 8(b)(2) by attempting to cause the Employer to discharge McLamb in violation of Section 8(a)(3) because of his dissident union activity.8 As noted above, the judge found that the Respondent did not violate Section 8(b)(1)(A) when Boone slapped McLamb. In dismissing this allegation, the judge rea- soned that Boone’s conduct was personal and not related to McLamb’s protected, dissident activity. We affirm the judge’s conclusion for the following reasons. Section 8(b)(1)(A) prohibits labor organizations and their agents from “restrain[ing] or coerc[ing] . . . employ- ees in the exercise of the rights guaranteed in Section 7 . . . .” In analyzing an alleged 8(b)(1)(A) violation, the Board applies an objective standard that focuses on whether the conduct, considered in context, would have a reasonable tendency to restrain or coerce employees in the exercise of their Section 7 rights. See Graphic Communi- cations Conference/Teamsters Local 735-S (Bemis Co.), 369 NLRB No. 97, slip op. at 12 (2020). We find that standard was not met here because employees would not clients or to the general public. Excessive arguing, violent disagreement, fighting or inflicting bodily harm to another person; . . . committing vio- lent acts; or using language that adversely affects morale, production, or maintenance of discipline.” Rule 17 prohibits “making or publishing false (except as may be protected concerted labor activity), vicious, ma- licious statements concerning co-workers, supervisors, clients, or the Company.” 7 The settlement included retraction of the suspension and backpay with interest. 8 We address the 8(b)(2) allegation below. AMALGAMATED TRANSIT UNION, LOCAL 689 A/W AMALGAMATED TRANSIT UNION, AFL–CIO, CLC (TRANSDEV SERVICES, INC.) 3 reasonably have understood Boone’s conduct to be a reac- tion to McLamb’s dissident activity. Although the inci- dent occurred on a day when candidates and their support- ers were actively campaigning at the facility and McLamb was lambasting the Respondent’s incumbent officers, it is clear from the record that Boone slapped McLamb after he lobbed egregious personal insults at her—from dispar- aging her for keeping Virginia license plates on her vehi- cle and not being able to afford her deceased husband’s funeral expenses to telling her to watch her children— which suggested that she was responsible for the stabbing that her son had suffered.9 Boone’s own comments to McLamb in the moments before slapping him focused on those personal attacks, not on McLamb’s protected con- certed activity. For example, Boone told McLamb to “leave my name out of your . . . mouth” and to “stop put- ting my personal business in the street.” In these circum- stances, employees, including McLamb, would have un- derstood Boone’s conduct as a reaction to McLamb’s per- sonal attacks, not his dissident union activity, and there- fore Boone’s conduct would not have had a reasonable tendency to restrain or coerce them in the exercise of their Section 7 rights.10 The General Counsel cites Philadelphia Council of Carpenters (Society Hill Towers), 335 NLRB 814, 814– 815 (2001) (union violated Section 8(b)(1)(A) when its agents took pictures and videotaped employees of a neu- tral who crossed the picket line), and Graphic Communi- cations Conference, supra, slip op. at 2 (union officer’s threat to hold employee responsible for reporting another officer’s rule infraction to the employer). In each of those cases, however, the union representative’s conduct was focused on the charging party’s protected activity, and the charging party did not repeatedly utter personal verbal at- tacks against the union representative in the moments be- fore the union representative’s conduct at issue. The Gen- eral Counsel also relies on Boilermakers, Local 686, 267 NLRB 1056, 1057 (1983), which is easily distinguishable. In Boilermakers, the local union president threatened to “whip [the] ass” of a coworker who had resigned from the union and lied about soliciting other employees to cross a picket line. The coworker’s actions related to an em- ployee’s right not to participate in a strike, and clearly 9 Driver Tandaleyia Butler testified that McLamb repeatedly called out Boone by name, talking about her license plate and her children. The judge expressly discredited McLamb’s testimony that he accused the Un- ion (rather than individuals) of not paying its bills. 10 The record shows that employees understood McLamb as someone who engaged in personal attacks and that they therefore would have viewed Boone’s November 11 reaction to his comment in that light. Driver Laco King, whom the judge credited, testified that McLamb encompassed Section 7 activity, unlike McLamb’s re- marks to Boone. Charging Party McLamb argues that union officials’ vi- olent response to personal and vitriolic criticisms that are intimately related to dissident activity violates the Act if there is a nexus between those comments and protected activity. Here, however, there is no nexus between Boone’s violent response and McLamb’s protected activ- ity. As a threshold matter, and contrary to McLamb’s claim, it stretches the imagination to consider the personal insults he hurled at Boone, including that she should not be driving a vehicle with a license plate of a state in which she does not live, that she should pay her bills, and that she needed to be at home taking care of her children, as protected activity.11 As noted above, McLamb’s criticism of the Respondent and his telling Boone she should stop working for the Respondent do not change this result. Boone, who planned to step down as steward, was not a candidate in the December 1 election. Moreover, Boone said as much to McLamb when she tried redirecting his focus to the candidates. Although we do not condone Boone’s slapping McLamb, we find that the employees would reasonably view her conduct as separate and dis- tinct from the Respondent, and a reaction to highly per- sonal insults. 8(b)(2) Allegation On November 11, following the incident between Boone and McLamb, Transdev’s General Manager Con- rad Marshall held a meeting with Boone and shop steward Alma Williams. Marshall stated that Boone was alleged to have hit McLamb and that this was a dischargeable of- fense. Williams stated that if Boone were terminated, then McLamb should also be terminated. On November 14, Williams submitted a statement to Transdev that focused on McLamb’s conduct toward Boone while minimizing Boone’s conduct and omitting any reference to her slap- ping McLamb. Ultimately, McLamb received a 10-day suspension, and Boone was discharged. McLamb and Boone each grieved their discipline, and the Union pro- cessed the grievances to arbitration. The judge, applying a duty-of-fair-representation analysis, found that Williams had attempted to cause Transdev to terminate McLamb and that Williams’ actions were not done in good faith or routinely engaged in bashing and picking on people and then “play[ed] the victim.” Butler testified similarly that at an unspecified time before November 11, she observed McLamb and another employee were “going on about personal stuff” and that, on November 11, McLamb repeatedly called out Boone by name, talking about her license plate and her chil- dren. 11 Indeed, the judge discredited McLamb’s testimony that he was re- ferring to the Respondent’s and not Boone’s failure to pay its bills. - DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 based on rational considerations. She concluded that the Union’s conduct violated Section 8(b)(2). We reverse. Section 8(b)(2) provides, in relevant part, that it is unlawful for a labor organization or its agents “to cause or attempt to cause an employer to discriminate against an employee in violation of [Section 8(a)(3)].” Under the duty-of-fair-representation standard, when a union causes or attempts to cause the discharge of an em- ployee, there is a rebuttable presumption that it acted un- lawfully because by such conduct it demonstrates its power to affect the employee’s livelihood in so dramatic a way as to encourage union membership among the em- ployees. Graphic Communications Conference, supra, slip op. at 5.12 The union may rebut the presumption by showing that its actions were “done in good faith, based on rational considerations, and were linked in some way to its need effectively to represent its constituency as a whole.” Operative Plasterers & Cement Masons, Local No. 299 (Wyoming Contractors Assn.), 257 NLRB 1386, 1395 (1981). The 8(b)(2) allegation here fails at the very first step: the threshold question of whether the Union attempted to cause McLamb’s discharge. A union can be found to have caused or attempted to cause discrimination if the union’s conduct “warrants the inference of an implied request” that an employee be disciplined. Graphic Communica- tions Conference, supra, slip op. at 3. Here, there was no request, express or implied, that McLamb be discharged. Rather, Williams stated that if Boone were discharged, McLamb should also be discharged. Her statement on its face was conditional, and it was made in the context of arguing against discipline for Boone. Williams’ state- ment, therefore, was an attempt to raise the stakes for the Employer in order to discourage Transdev from discharg- ing Boone. Williams was no more seeking McLamb’s ter- mination than she was seeking Boone’s. Indeed, the Un- ion processed grievances for both McLamb and Boone to arbitration. As to Williams’ November 14 written state- ment, though it clearly contained a misleading and overly sympathetic characterization of Boone’s conduct as op- posed to McLamb’s, nothing in the statement stated or im- plied that McLamb should be discharged.13 Having found no attempt to cause McLamb’s discharge, we need not reach the second step of the duty-of-fair- 12 Member Prouty would be willing to consider in a future appropriate case whether this presumption is consistent with Supreme Court prece- dent regarding the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 190 (1967) (“[a] breach of the duty of fair representation occurs only when a union’s conduct toward a member of the collective bargain- ing unit is arbitrary, discriminatory, or in bad faith”); Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (holding that the Vaca v. Sipes standard “applies to all union activity” in its capacity as bargaining representative). representation analysis, which considers whether the Un- ion proved that its attempt to cause a discharge was “done in good faith, based on rational considerations, and [was] linked in some way to [the Union’s] need effectively to represent its constituency as a whole.” If we were to apply that analysis, however, we would find that the Union met its burden. As explained above, Williams’ comment plainly had the objective of preserving Boone’s job, not getting McLamb fired. The gist of Williams’ argument to Transdev was that neither employee should be fired. By pointing out the possibility that Transdev would have to decide whether to discharge two employees rather than one, Williams raised the stakes for Transdev, with the ob- vious goal of persuading them not to discharge Boone. In this respect, Williams acted in good faith based on rational considerations in connection with representing the Un- ion’s constituency as a whole. To the extent that Williams’ suggestion was inartfully phrased, we find it inappropriate to seize upon a single comment made in a preliminary step of the disciplinary investigative process as establishing a breach of the duty of fair representation. As the Supreme Court has held, “a breach of the duty of fair representation occurs only when a union’s conduct toward a member of the collective bar- gaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). “[M]ore than a mere error of judgment” is required. Castello v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985). Mere negligence in representation, which is, at the very most, what Williams’ awkward suggestion amounts to, is not a breach of the duty of fair representation. United Steel- workers v. Rawson, 495 U.S. 362, 372–373 (1990) (“The courts have in general assumed that mere negligence, even in the enforcement of a collective-bargaining agreement, would not state a claim for breach of the duty of fair rep- resentation, and we endorse that view today.”). In other words, “[c]areless or bone-headed conduct is not a breach of the duty of fair representation.” NLRB v. Local 139, International Union of Operating Engineers, 796 F.2d 985, 993 (7th Cir. 1986). “A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, 345 U.S. 330, 13 Contrary to our colleague’s assertion, nothing about our finding re- lies on Williams’ discredited testimony, her claim that Boone and McLamb should be treated equally, or the version of events set forth in her November 14 statement. Rather, we find that the testimony credited by the judge—that Williams said McLamb should be discharged if Boone were discharged—is, on its face, not a request to discharge McLamb, as Williams clearly was not seeking Boone’s or McLamb’s discharge. AMALGAMATED TRANSIT UNION, LOCAL 689 A/W AMALGAMATED TRANSIT UNION, AFL–CIO, CLC (TRANSDEV SERVICES, INC.) 5 338 (1953). In this context we find no breach of the duty of fair representation in Williams’ comment, and we re- verse the judge’s finding of an 8(b)(2) violation.14 We would reach the same result applying a Wright Line analysis.15 Wright Line, when applied in the 8(b)(2) con- text, examines a union’s motivation for causing or at- tempting to cause an employer to discriminate against an employee. As explained above, there was no such attempt here, and therefore the 8(b)(2) allegation fails from the outset.16 Nevertheless, even assuming arguendo that Wil- liams’ conduct amounted to such an attempt, we would find that the General Counsel failed to prove the requisite animus toward McLamb’s protected activity.17 McLamb had engaged in dissident activity for seven years, filing decertification and deauthorization petitions and cam- paigning against the predecessor’s merger with the Re- spondent. Nevertheless, the Respondent took no discrim- inatory action against him. In fact, in November when the Respondent held a meeting for the nomination of officers and stewards in the upcoming December election, McLamb accepted a nomination for Paratransit at Large Executive Board Member and shop steward, and there is no indication that the Respondent opposed his nomination. Moreover, the Respondent grieved McLamb’s suspension and Boone’s termination through to arbitration. Accordingly, we reverse the judge’s 8(b)(2) finding, and we shall dismiss the complaint. ORDER The complaint is dismissed. Dated, Washington, D.C. April 26, 2024 ________________________________________ David M. Prouty, Member 14 Our view of the reasonable understanding of Williams’ isolated statement is buttressed by the fact that the union grieved to arbitration both McLamb’s 10-day suspension and Boone’s discharge, and there is no record of the Union making any statements or taking any steps in that process—or at any time—suggesting that McLamb should be discharged because Boone had been, which is the very fact situation in which the Williams statement would be applicable. There is no evidence the Union took any step in any way to undermine McLamb’s interests in represent- ing him after his discipline. Our dissenting colleague suggests that the Respondent only processed McLamb’s grievance to avoid further liability and therefore he gives “lit- tle weight” to the Respondent’s pursuit of the grievance to arbitration. However, our colleague’s speculation as to the Respondent’s motive for pursuing McLamb’s grievance simply is not supported by the record. The decision to take McLamb’s dispute to arbitration was supported by the Respondent’s Executive Board and the union membership voted in accord. In any event, the issue is not, as our colleague suggests, whether the pursuit of McLamb’s grievance to arbitration “somehow cured” ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting in part. On November 11, 2021, the Employer’s general man- ager, Conrad Marshall, met with Union Stewards Tiyaka Boone and Alma Williams to discuss Boone’s physical al- tercation with her coworker, Charging Party Thomas McLamb, a union dissident.1 During this meeting, Mar- shall told Boone and Williams that Boone’s conduct was a terminable offense. Even though Marshall had not men- tioned disciplining McLamb, Williams responded that, if the Respondent decided to discharge Boone, the Respond- ent should discharge McLamb as well. The judge credited that Williams made that statement, and my colleagues concede that she did. I agree with the judge that the union steward’s suggestion to the Employer that McLamb, a un- ion dissident, should be discharged is a clear violation of Section 8(b)(2). Analysis A union violates Section 8(b)(2) when it causes or at- tempts to cause an employer to discriminate against an employee in violation of Section 8(a)(3). “To establish a violation, direct evidence that the union expressly de- manded the discrimination is not necessary. A union can be found to have caused or attempted to cause discrimina- tion if there is sufficient evidence to support a reasonable inference of a union request or a union‒employer under- standing.” Teamsters Local Union 735-S (Bemis Co.), 369 NLRB No. 97, slip op. at 3 (2020) (internal citations and quotations omitted). Under the duty-of-fair- earlier unlawful conduct. Rather, the salient point is that in the circum- stances here, including in the context of its active representation of McLamb, this single, isolated, and nonconsequential comment made by Williams in a preliminary step of the disciplinary investigative process of another employee does not establish a breach of the duty of fair rep- resentation under the relevant legal standard. 15 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 16 We further note that the General Counsel litigated the case under a duty-of-fair-representation theory, the judge decided the case under that theory, and there are no exceptions to her failure to apply Wright Line. 17 The Board has employed a duty-of-fair-representation and/or a Wright Line analysis in determining whether a union has violated Sec. 8(b)(2). Here, having found the that the Respondent violated the Act under a duty-of-fair-representation analysis, the judge deemed it unnec- essary to undertake a Wright Line analysis. 1 Like my colleagues, I agree with the judge that the Respondent did not violate Sec. 8(b)(1)(A) when Boone slapped McLamb. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 representation framework, “[w]hen a union causes or at- tempts to cause an employee to be disciplined, there is a rebuttable presumption that it acted unlawfully because that demonstrates its power to affect the employee’s live- lihood in so dramatic a way as to encourage union mem- bership among the employees. A union may rebut the pre- sumption that it acted unlawfully by demonstrating that its action was necessary to the effective performance of its function of representing its constituency.” Id., slip op. at 5 (internal citations and quotations omitted). Here, a union steward told the Employer that, if it fired her fellow steward, it should also fire the union dissident. On its face, this suggestion creates a rebuttable presump- tion that the Respondent violated Section 8(b)(2). And I see no way in which a steward’s sua sponte suggestion that a union dissident be terminated could be necessary to the Respondent’s “function of representing its constituency” and, thereby, rebut the presumption of unlawfulness. My colleagues disagree. They primarily find that the 8(b)(2) allegation “fails at the very first step” because there was no expressed or implied request by the Union that McLamb be terminated. My colleagues speculate that because Williams stated McLamb should also be dis- charged if Boone were discharged, her statement was con- ditional and an attempt to “raise the stakes for the em- ployer in order to discourage Transdev from discharging Boone.” For essentially the same reason, my colleagues also find that, even if Williams did make a request that the Employer terminate McLamb, they would find that the Respondent rebutted the presumption of unlawfulness be- cause Williams’ statement was “done in good faith, based on rational considerations, and [was] linked in some way to [the Union’s] need effectively to represent its constitu- ency as a whole.” My colleagues’ analysis, however, ig- nores the judge’s well-reasoned findings and credibility determinations to the contrary. In finding that the Respondent violated Section 8(b)(2), the judge specifically rejected Williams’ testimony that by suggesting McLamb’s discharge, she was merely seeking equity in the Employer’s treatment of McLamb and Boone. At the hearing, Williams testified that she told Marshall at the November 11 meeting that “whatever you decide to do [to McLamb and Boone], it should be fair. It should be equal.” “Based on [her] observation of Wil- liams’ demeanor and the record as a whole,” the judge spe- cifically discredited Williams’ professed motive for 2 The judge points to the fact that during the incident, Boone was screaming and told McLamb, “I will fuck you up.” The record demon- strates that Boone immediately began threatening McLamb and using profane language. 3 My colleagues repeatedly minimize Williams’ November 11 state- ment, variously characterizing it as “a single comment,” an “isolated” suggesting that McLamb be discharged, finding, among other things, that it was “slanted.” After having “carefully examined the record,” my colleagues “find no basis for re- versing” the judge’s demeanor-based credibility findings. However, my colleagues’ post-hoc rationalization of Wil- liams’ statement as an attempt to “raise the stakes” neces- sarily rests on their acceptance of Williams’ testimony that she was, in fact, arguing that the two should be treated equally. My colleagues’ alternative finding that the Respondent rebutted the presumption of unlawfulness also runs head- long of the judge’s demeanor-based credibility determina- tions. As the judge rightly observed, Williams unneces- sarily suggested discipline for McLamb at a time when the Employer had only raised the prospect of discipline for Boone. In other words, the Employer had not yet indi- cated that it had made any determination with respect to McLamb’s conduct, and instead of focusing the discussion solely on mitigating Boone’s punishment, Williams blamed McLamb and suggested that the Employer also terminate him. Williams doubled down on this attempted blame-shifting in a statement that she provided to the Em- ployer on November 14, stating, among other things, that “a supervisor informed me that Ms. Boone had been han- dling herself well” during the confrontation with McLamb. As noted by the judge, Williams failed to pro- vide any support for this version of events and that the “overwhelming evidence contradicted” it.2 The judge therefore discredited Williams’ November 14 statement, finding it to be a “dishonest and misleading version of events.” A union steward’s use of “categorically dishon- est” statements to shift blame away from a fellow union steward and onto a union dissident cannot, under any rea- sonable definition, be characterized as “good faith,” as my colleagues seek to do. Perhaps realizing the weakness in their primary and al- ternative findings, my colleagues offer yet another reason to excuse Williams’ conduct: they claim that her statement was merely an inartful slip of the tongue and nothing more. My colleagues contend that their “reasonable un- derstanding” of Williams’ “isolated” statement is “but- tressed by the fact that the union grieved to arbitration” both McLamb’s suspension and Boone’s discharge.3 I re- spectfully disagree. The Union’s membership and/or ex- ecutive board was undoubtedly aware that to process a grievance for a union steward while simultaneously statement, and a “non-consequential statement.” Again, my colleagues fail to account for the “dishonest” statement that Williams provided to the employer on November 14 in which she, again, attempted to shift blame from Boone—who had physically assaulted McLamb—onto un- ion dissident McLamb. AMALGAMATED TRANSIT UNION, LOCAL 689 A/W AMALGAMATED TRANSIT UNION, AFL–CIO, CLC (TRANSDEV SERVICES, INC.) 7 refusing to process one for a union dissident would only have further opened itself up to liability under the Act. I therefore give little weight to the Respondent’s subse- quent actions. But even if the Respondent did have a change of heart, my colleagues fail to cite any cases hold- ing that such after-the-fact conduct somehow cured Wil- liams’ earlier unlawful actions. The facts of this case are clear: upon being informed that fellow steward Boone—who had physically assaulted McLamb—had committed a terminable offense, union steward Williams sua sponte threw union dissident McLamb under the bus and told the Employer that it should discharge McLamb if it decided to discharge Boone. My colleagues assert that Williams didn’t really want either Boone or McLamb to be discharged, so the Respondent didn’t really violate the Act. But Williams’ words could not have been clearer, and the judge thor- oughly discredited Williams’ attempts to explain away the express meaning of those words. The fact that the Em- ployer ultimately decided not to grant Williams’ request to discharge McLamb, in addition to Boone, is of no mo- ment. Williams’ direction to the Employer attempted to cause McLamb to be discharged, and the Respondent did not rebut the presumption that such action was unlawful. Because the General Counsel established that the Re- spondent breached its duty of fair representation in viola- tion of Section 8(b)(2), I dissent from that aspect of my colleagues’ decision.4 Dated, Washington, D.C. April 26, 2024 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD Stacey McClurkin, Esq., for the General Counsel. Paul Tyler, Esq., for the Respondent. Nicholas P. Provenzo, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE CHRISTAL J. KEY, Administrative Law Judge. The consoli- dated complaint in this case issued on November 11, 2021. It alleges that Amalgamated Transit Union, Local 689 A/W Amal- gamated Transit Union, AFL–CIO, CLC (Respondent or ATU 4 As my colleagues note, the General Counsel litigated the case under both the duty of fair representation and Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Having found that the Respondent violated Sec. 8(b)(2) under 689) violated 8(b)(1)(A) of the Act, by Shop Steward Tiyaka Boone, physically assaulting Charging Party Thomas McLamb and 8(b)(2), by Shop Steward Alma Williams, requesting that Transdev Services, Inc. (the Employer) discharge him. The case was tried via Zoom on July 6 and 7, 2022. Respondent denied the essential allegations of the consolidated complaint. After the conclusion of the trial, the parties filed briefs, which I have care- fully read and considered. Based on the briefs and the entire record, including the testi- mony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT Jurisdiction and Labor Organization Status At all material times, the Employer has been a corporation with an office and place of business in Hyattsville, Maryland, and has been engaged in the business of operating transit systems for private and governmental entities. During the 12-month pe- riod ending April 30, 2022, the Employer, in conducting its op- erations derived gross revenues in excess of $250,000 and pur- chased and received at its Hyattsville, Maryland facility goods valued in excess of $5000 directly from points outside the state of Maryland. At all material times, the Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times Respondent has been a labor organization within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that this dispute affects commerce and that the Board has jurisdiction of this case, pur- suant to Section 10(a) of the Act. ALLEGED UNFAIR LABOR PRACTICES 1. Background Amalgamated Transit Local 1764 (ATU 1764) had been the exclusive collective-bargaining representative of all full-time and regular part-time bus operators, mechanics, dispatchers, maintenance clerks and gatekeepers employed by the Employer at its Hubbard Road facility in Hyattsville, Maryland. In June 2021, ATU 689 merged with ATU 1764. Following the merger, ATU 689 became the Unit’s exclusive collective-bargaining rep- resentative. Thomas McLamb is employed by the Employer as an operator at its Hubbard Road facility. He has worked at this facility since February 2013. McLamb has a long history of engaging in dis- sident union activities (GC Exhs. 2, 5, 6, 7, 9, 10). On November 20, 2014, he filed a petition seeking to decertify ATU 1764. Unit employees voted against decertification. On February 27, 2016, McLamb submitted a letter to ATU’s International Secretary Treasurer requesting to become a fee objector. On August 15, 2016, he filed a deauthorization petition. ATU 1764 campaigned against the petition by distributing flyers which stated in part, “McLamb and Transdev have no plan to improve anything” (GC the duty of fair representation, the judge found it unnecessary to analyze the facts under Wright Line. Because no exceptions were filed to her failure to apply Wright Line, I find it unnecessary to pass on that theory here or on my colleagues’ dicta analyzing it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Exh. 6). ATU 1764 distributed another flyer which stated that McLamb’s prior decertification petition, had delayed contract negotiations and “. . . cost every worker at Hubbard Road real money” (GC Exh. 7). Unit employees voted against deauthori- zation. On November 26, 2018, McLamb filed a second deau- thorization petition. Unit employees again voted against deau- thorization. In 2020 ATU 1764 sought to merge with ATU 689. McLamb campaigned against the merger. He prepared and dis- tributed literature encouraging employees to vote against the merger. In June 2021, ATU 1764 merged with ATU 689, and ATU 689 took over representation of the drivers at the Hubbard Road facility. Sometime in 2021, McLamb became a member of ATU 689. 2. November 2021, internal union campaign for officers On November 2, 2021,1 Respondent held a meeting to nomi- nate new officers for a December 1, election. At that meeting, McLamb accepted a nomination for Respondent’s Paratransit at Large Executive Board Member, and Shop Steward. McLamb was part of a slate of candidates called People’s Voice (GC Exh. 12). Elections for Respondent’s officers were scheduled for De- cember 1. Gary Rouse and Michelle Woodfork were McLamb’s opponents in the election. They were part of a slate of candidates aligned with the then and current president and business agent, Raymond Jackson. Alma Williams, Valerie Thomas, and Sandra Beckman were also nominated for the position of shop steward for the Hubbard Road Facility. Tiyaka Boone was appointed as an ATU 1764 shop steward in 2016 (Tr. 127, 147). When ATU 1764 merged with ATU 689 she became a shop steward for the Respondent. Boone’s term ran through December. Boone did not seek a union position in No- vember. Boone supported the candidacy of Michelle Woodfork and Alma Williams (Tr. 153–154). Boone created campaign lit- erature for Woodfork and Williams, posted comments support- ive of their campaigns on her Facebook page and distributed campaign literature for them (GC Exhs. 21–23). Some of the campaign literature Boone created and posted, stated that Wood- fork had been successful in defeating McLamb’s attempts to de- certify the Union (GC Exh. 21). Further, the campaign literature Boone prepared stated that Williams and Woodfork would join with Union President Raymond Jackson to further his agenda (GC Exhs. 21–22). 3. Events related to Boone’s alleged assault On November 11, at about 5:05 a.m., McLamb reported to the 1 All dates hereinafter are 2021, unless otherwise stated. 2 I discredit McLamb’s testimony that Boone, Williams, and Wood- fork, told members, “Don’t take any of this literature. Don’t listen to those lies” (Tr. 61). I credit Laco King’s testimony that no one made the alleged statements (Tr. 318). Below I have included a fuller discussion of McLamb and King’s credibility. 3 I discredit McLamb’s testimony that he said the union, rather than people, didn’t pay their bills (Tr. 62, 108). Based on my observation of McLamb’s demeanor and the record as a whole, I did not find him to be a credible witness. McLamb’s testimony is not plausible, and it was con- tradicted by several witnesses. For example, neither McLamb, nor any other witness, provided evidence that the union was delinquent on its bills. Several witnesses testified that McLamb talked about people who lived in Maryland but drove around with Virginia tags and failed to pay drivers’ lounge at the Hubbard Road facility. The drivers’ lounge is a large open room. When McLamb arrived, he checked in at the ready desk with Support Operations Specialist, Brenard Bol- ling (Tr. 205). Bolling told McLamb that his route was closed for the day. McLamb decided to stay in the drivers’ lounge and campaign for the shop steward position. When McLamb arrived, Boone was already in the drivers’ lounge passing out literature and campaigning for Michelle Woodfork and Alma Williams (Tr. 161, 177). Dispatcher and Shop Steward Valerie Thomas, and Driver Laco King were also in the lobby passing out litera- ture and campaigning for Valerie Thomas (Tr. 281, 313). Unit employee and Road Supervisor Michelle Smith was in the driv- ers’ lounge when McLamb arrived (Tr. 297). Shop Steward Alma Williams arrived in the drivers’ lounge sometime after McLamb (Tr. 252). While campaigning in the drivers’ lounge, McLamb passed out campaign flyers to employees and encouraged them to vote for him2 (Tr. 60, 232, 298–299, 307, 327). While campaigning, he made statements about current union officials being crooks and stealing union money (Tr. 176, 182, 253). He repeatedly said that the following Tuesday, he was going to let it all out, and expose more information about the union (Tr. 174, 176, 182, 253, 316–317). McLamb also made multiple statements that were unrelated to the union or his campaign. He made repeated statements about unnamed people not paying their bills (Tr. 178, 181, 284, 286, 300, 316–317, 319). For example, he said he paid his bills, but some people do not pay their bills; they live in Mar- yland but drive around with Virginia tags because they can’t pay their bills or insurance (Tr. 208, 287, 300). McLamb said to Va- lerie Thomas, I know you pay your bills and I pay my bills. You have that big truck, but other people with Virginia tags don’t have the correct tags and don’t pay their bills3 (Tr. 284, 316, 319). McLamb said some people need to focus on their kids ra- ther than the union (Tr. 183, 208, 253). At the time, Boone had a car with Virginia tags (Tr. 178). Boone’s husband had recently passed away and she set up a GoFundMe page to solicit funds to pay for his funeral (Tr. 178). Further, a few days prior to Novem- ber 11, Boone’s son had been stabbed (Tr. 184). Boone believed that McLamb was talking about her, being unable to pay her bills and not properly caring for her kids4 (Tr. 177). Boone responded to McLamb on multiple occasions by screaming at him not to talk about her personal business: to shut the fuck up; don’t worry about me paying my bills; leave her the fuck alone; keep my mother-fucking name out of your mouth; and stop putting my their insurance. McLamb could not recall if he talked about a person who had Virginia tags on their car. I found Valerie Thomas and Laco King’s detailed and consistent testimony particularly credible. It is not plausible that this detailed testimony about insurance and automobile tags related to the Union’s finances. Rather, McLamb was talking about an individ- ual or multiple individuals rather than an entity. 4 I credit Boone’s testimony that she believed McLamb’s statements were directed at her. I did not find Boone to be a credible witness, and I have discredited other portions of her testimony. However, I based this finding on the totality of the evidence. Specifically, her uncontroverted contemporaneous responses to McLamb’s statements, which make clear she was angry because she believed McLamb was talking about her not paying her bills or properly caring for her children. AMALGAMATED TRANSIT UNION, LOCAL 689 A/W AMALGAMATED TRANSIT UNION, AFL–CIO, CLC (TRANSDEV SERVICES, INC.) 9 personal business in the street (Tr. 185, 231–235, 254, 272, 300, 316–317, 319). At one point, Bolling approached Boone and told her to stop cursing (Tr. 233). However, McLamb and Boone continued making comments. In order to defuse the situation, Bolling asked McLamb to step outside (Tr. 234). At 5:30 a.m. Bolling and McLamb exited the drivers’ lounge and went outside (GC Exh. 17). Thirty seconds later, Boone followed them outside. As she exited, she immedi- ately approached Bolling and McLamb (Tr. 235, GC Exh. 17). Smith immediately followed Boone because Boone was upset (Tr. 302, 309). When Boone reached Bolling and McLamb, she swung and hit McLamb in the face5 (Tr. 235–236 and GC Exh. 18). Bolling attempted to move Boone away from McLamb, but she pushed him and told him to, “Get the fuck out of the way” (Tr. 236). Smith got in between Boone and McLamb with her back to McLamb (Tr. 309). She observed Boone’s hands reach- ing toward McLamb, but she could not see whether Boone hit him6 (Tr. 303, 308, 310 and R Ex. 8). Williams came outside last, she testified she heard Boone yelling, but she did not see her strike McLamb (Tr. 268). McLamb immediately stated, that Boone had knocked his glasses off and assaulted him (Tr. 236). Smith and Williams physically restrained Boone and moved her away from McLamb (Tr. 237, 304 309). Next, Bolling went in- side and reported to Roger Crawford, the supervisor on duty, that Boone had struck McLamb (Tr. 237). On November 11, Union President Raymond Jackson heard about the incident between McLamb and Boone. Jackson called Boone to find out what happened. Boone told Jackson that she had struck McLamb (Tr. 130). 4. Events related to Williams’ alleged request that the employer terminate McLamb On November 11, General Manager Conrad Marshall held a meeting with Boone and Shop Steward Alma Williams. Mar- shall said Boone had been accused of hitting McLamb and that such conduct is “terminable” (Tr. 166, 259). Boone testified that, Williams responded, if Boone is let go, McLamb also needed to be let go (Tr. 166). Williams testified that she told Marshall that McLamb’s harassment of Boone was prohibited conduct so whatever the company did needed to be equal pun- ishment7 (Tr. 259). Williams testified that she viewed McLamb’s verbal harassment of Boone to warrant equal treat- ment to Boone’s alleged assault (Tr. 170). 5 I credit Bolling’s testimony that Boone struck McLamb, and I dis- credit Boone’s surprising denial. I base my findings on Bolling and Boone’s demeanor and the record as a whole. Multiple witnesses contra- dicted Boone and corroborated Bolling’s testimony. For example, union president, Jackson testified that on November 11, Boone admitted she struck McLamb (Tr. 130). Bolling’s testimony was corroborated by the fact that Boone, Williams, Smith, McLamb and Bolling all testified that McLamb immediately stated Boone had hit him (Tr. 303). Further, Smith testified, that while her back was to Boone during the incident, she saw Boone’s arms flying everywhere above her head, toward McLamb (Tr. 303, 308). Smith and Williams both testified that they physically pulled Boone away from McLamb (Tr. 303, 304, 309). Additionally, Boling is a supervisor, however, he had no economic motive in this case to skew his testimony. Finally, Bolling’s testimony was consistent, with a November 12, statement he provided to the Employer, and with the On November 14, Williams provided the Employer a dishon- est and misleading statement which states as follows: On 11/11/21, I witnessed Mr. McLamb verbally harass Ms. Boone. As Ms. Boone asked and told him to leave her alone, he continued to make disparaging statements. As the taunting was going on, the management team on duty did not deescalate the situation as it was happening. They advised Ms. Boone to “just ignore him” but not once did they tell him to stop. In fact, a supervisor informed me that Ms. Boone had been handling herself well and had not been using dirty tactics during the un- ion’s campaign and election process. Mr. McLamb’s com- ments were very personal and very offensive. Operators re- acted to some of the statements in an inciting manner and oth- ers questioned why management was allowing him to continue speaking to her disrespectfully (R. Exh. 9). During her testimony, Williams failed to provide any support for her claim that a supervisor told her that “Boone had been handling herself well.” The overwhelming evidence contradicts this claim. Through this statement, Williams provided a dishon- est and misleading version of events intended to minimize Boone’s conduct and blame McLamb. 5. Employer’s discipline of Boone and McLamb On November 18, the Employer suspended McLamb for 10 days without pay. The disciplinary notice stated that McLamb had violated its Standards of Behavior Policy Bullets 11 and 17 by continuously making inappropriate remarks and creating a hostile work environment by stating someone can’t pay their rent and has Virginia tags (R. Exh. 1). On December 3, the Employer terminated Boone. The termi- nation notice stated that Boone had violated its Standards of Be- havior Policy Bullet 11 by following McLamb from the lobby and striking him in the face (R. Exh. 5). The Employer’s Standards of Behavior Policy states in part: The following-examples of unacceptable conduct are not meant to be all-inclusive. Violations of these standards, de- pending on severity may result in discipline up to and including termination of employment. [Bullet 11] Disrespectful conduct - discourteous comments or treatment, or using vulgar, abusive language or gestures to co- statement he made to supervisor Roger Crawford immediately after the incident (Tr. 237 and GC Exh. 18). 6 Based on my observation of Smith’s demeanor, and the record as a whole, I credit her testimony. 7 Based on my observation of Williams’ demeanor and the record as a whole, I discredit her testimony. For example, she provided slanted testimony. Williams testified, when she stepped outside, she did not see Boone strike McLamb, rather Boone was merely yelling at McLamb to leave her alone, “as opposed to in the lounge, [when] she was just speak- ing calmly, ‘Leave me alone’” (Tr. 268). Overwhelming evidence, in- cluding Boone’s testimony, establishes that Boone yelled and cursed at McLamb in the drivers’ lounge, and even threatened him by saying, “I will fuck you up” (Tr. 316, 320). Thus, contrary to Williams’ testimony Boone was not “speaking calmly” in the drivers’ lounge. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 workers, clients or to the general public. Excessive arguing, vi- olent disagreement, fighting or inflicting bodily harm to an- other person; gambling; using or possessing illegal drugs; be- ing under the influence of or testing positive for drugs/alcoholic beverages; committing immoral or illegal acts; committing vi- olent acts; or using language that adversely affects morale, pro- duction, or maintenance of discipline. [Bullet 17] Making or publishing false (except as may be pro- tected concerted labor activity), vicious, malicious statements concerning co-workers, supervisors, clients, or the Company (R. Exh. 10 p. 40). McLamb filed an unfair labor practice charge with the Na- tional Labor Relations Board (NLRB) against the Employer re- garding the 10-day suspension. After an investigation, the NLRB found merit to McLamb’s charge. The Employer settled that case by removing McLamb’s discipline, paying him for the suspension and posting a notice (GC Exhs. 25–26). ANALYSIS The consolidated complaint alleges that Respondent violated Section 8(b)(1)(A) of the Act, by Tiyaka Boone assaulting McLamb because of his protected activities. The consolidated complaint alleges that Respondent at- tempted to cause the Employer to discriminate against McLamb in violation of Section 8(b)(2) of the Act, by Alma Williams re- questing his discharge. I will consider each alleged violation in turn. 1. The alleged 8(b)(1)(A) physical assault On November 11, McLamb engaged in union activity pro- tected by Section 7 of the Act. He passed out internal campaign flyers, encouraged employees to vote for him, told employees that current union officers were corrupt, and he said he had ad- ditional information about the union that he was going to reveal the following Tuesday. Boone also campaigned that morning for McLamb’s opponents in the internal union elections. Further, on November 11, Boone struck McLamb. However, upon consideration of all the testimony and the rec- ord, I find that Boone did not strike McLamb because he engaged in union activities or in an attempt to coerce him from doing so. Rather, Boone assaulted McLamb because she was angry about the personal nature of McLamb’s provocative remarks about people who did not pay their bills or properly care for their chil- dren and the assault was not intended to coerce McLamb in ex- ercising protected activity. General Building Laborers’ Local Union No. 66, Laborers’ International Union of North America AFL–CIO (Courter & Co., Inc.), 198 NLRB 125, 128 (1972); United Steelworkers of America, Local Union 2610, 225 NLRB 310, 314 (1976). Boone’s contemporaneous responses to McLamb provide the strongest support for my finding, that she struck him because of the personal nature of his remarks, rather than because he was engaged in union activities. For example, Boone testified she said, “McLamb I ask you to leave my name out of your fucking mouth” (Tr. 186). Further, multiple wit- nesses testified that Boone responded to McLamb by saying statements such as, “Keep my mother fucking name out of your mouth. Stop putting my personal business in the street” (231– 232, 234, 254, 272, 316–317, 319). General Counsel’s brief argues, “Boone’s anger arose because McLamb criticized the Respondent’s leadership and its financial profligacy.” However, Boone’s uncontroverted statements disprove this argument. The Charging Party and General Counsel’s briefs argue there is a sufficient nexus between, McLamb’s union activities, and Boone’s assault, to establish a violation. Their briefs argue a nexus by pointing to: (1) the timing of the assault in relation to McLamb’s union activity; and (2) to Boone’s statements regard- ing shop stewards, Sandy Beckman, and Gary Rouse. Boone struck McLamb within 30 minutes of him engaging in union ac- tivity. However, her assault was equally close in time to McLamb’s provocative personal attacks. Uncontroverted testi- mony establishes that at one point, Boone responded to McLamb’s statement about people not paying their bills, by say- ing, “I am not Sandy. I am not Gary. I will fuck you up. You don’t know who you are playing with” (Tr. 303, 317). However, the statements do not establish that Boone hit McLamb because of his union activities. The record does not establish why Boone referenced Sandy Beckman or Gary Rouse. No one asked Boone what she meant or why she referred to them. No other witness, including McLamb, provided any testimony to explain their un- derstanding of the reference or a context for the reference. Thus, General Counsel and the Charging Party simply failed to carry their burden to establish that Boone struck McLamb because of his union activities. The overwhelming evidence establishes that she struck him because she was angry about statements she viewed as personal attacks directed at her. In arguing for a violation, the Charging Party and General Counsel cite: Pipeline Local Union No. 38, 247 NLRB 1250, 1256 (1980); Laborers Local 806, 295 NLRB 941, 958 (1989); and Teamsters Local 729 (Penntruck Co.), 189 NLRB 696 (1971). Those cases involve union officers threatening and/or assaulting employees engaged in dissident activity where per- sonal disputes were also involved. However, the level of coer- cion exerted by union officials in those cases, is not analogous to the facts of this case. In Penntruck, the Board found a union of- ficial’s assault on an employee with a rifle and his threat to kill that employee, was primarily motivated by the resentment the union official felt towards employees because of their participa- tion in a work stoppage not authorized by the union. The Board found his actions were an attempt to force employees to abandon the picket line. Supra. In Pipeline Local Union No. 38, the Board found a business agent’s pistol whipping of a dissident em- ployee, who had come to see the business agent to seek work, was primarily motivated by their long-standing internal union dispute, where they had just had an hour-long discussion about internal union matters and the business agent had previously threatened the dissident for filing an NLRB charge. Supra. La- borers Local 806, involved a business agent that pushed, cursed, and challenged a dissident employee to a fight, where the em- ployee had been picketing against the business agent. The judge in that case found the dissident employee had “neither said any- thing or acted in any manner which may have caused or incited” the incident. Supra. Thus, those cases all involved union agents whose conduct was intended to restrain or coerce employees from engaging in protected activity, while Boone’s conduct was a response to statements she viewed as personal attacks. Thus, I dismiss the allegation that Boone violated 8(b)(1)(A) AMALGAMATED TRANSIT UNION, LOCAL 689 A/W AMALGAMATED TRANSIT UNION, AFL–CIO, CLC (TRANSDEV SERVICES, INC.) 11 by assaulting McLamb. 2. The alleged 8(b)(2) request to discharge A union violates Section 8(b)(2) when it attempts to cause or causes an employer to discriminate against an employee in vio- lation of Section 8(a)(3). International Association of Machinists & Aerospace Workers, AFL–CIO, Dist. 70 & Local Lodge 839 (Spirit Aerosystems), 363 NLRB 1599, 1600 (2016); see also United Paperworkers International Union, Local 1048, AFL– CIO (Jefferson Smurfit Corp.), 323 NLRB 1042, 1044 (1997). In determining whether a union has violated Section 8(b)(2), the Board has applied both the analytical framework set forth in Wright Line and the duty-of-fair-representation framework. Williams’ statement that the Employer should terminate McLamb, if it terminated Boone, violates the Act under the duty- of-fair-representation framework. The duty-of-fair-representa- tion framework establishes “not only that a union may not take action impairing a represented employee’s job tenure or pro- spects based on arbitrary, unfair, irrelevant, or invidious consid- erations, but also that the union bears the practical affirmative burden of justifying virtually any such ‘impairment’ action by showing that its action was taken to fulfill its overriding duty to represent the legitimate interests of its constituency.” Part-Time Faculty Association at Columbia College, 367 NLRB No. 119 slip op. at 13 (2019) quoting Operative Plasterers & Cement Ma- sons, Local 299 (Wyoming Contractors Assn.), 257 NLRB 1386, 1395 (1981). This presumption may be overcome by evidence that the labor organization was acting “in good faith, based on rational considerations, and were linked in some way to its need effectively to represent its constituency as a whole.” Operative Plasterers & Cement Masons, Local 299, supra. See also Acklin Stamping Company, 351 NLRB 1263, 1263 (2007). The duty of fair representation refers to the Union’s “statutory obligation to serve the interests of all members without hostility or discrimi- nation toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). The duty of fair representation has been likened to the duty owed by other fiduciaries, e.g., trus- tee/trust beneficiaries; attorney/client, corporate officers, and di- rectors/shareholders; a union officer thus owes employees a duty to represent them adequately as well as honestly and in good faith. Chauffeurs, Teamsters & Helpers, Loc. No. 391 v. Terry, 494 U.S. 558, 569, (1990); see also Air Line Pilots Assn., Int’l v. O’Neill, 499 U.S. 65, 74, 111 S. Ct. 1127, 1134 (1991). Thus, on November 11, when Shop Steward Williams walked into the meeting with General Manager Conrad Marshall, she owed Boone and McLamb the obligation to represent them with- out hostility or discrimination, to exercise her discretion with complete good faith and honesty, and to avoid arbitrary con- duct. However, when Marshall stated that Boone’s alleged as- sault constituted terminable conduct, Williams responded that if Boone was let go, McLamb also needed to be let go. Even if one accepts Williams’ testimony, which I have discredited, that the 8 Having found that Respondent violated 8(b)(1)(A) and (2) under the duty of fair representation framework, I find it unnecessary to analyze the facts under the Wright Line framework. 251 NLRB 1083 (1980). discipline should be equal, Williams was suggesting discipline for McLamb when the Employer raised no prospect of such. Fur- ther, as discussed in greater detail above, on November 14, Wil- liams provided the Employer a statement regarding its investiga- tion of McLamb and Boone’s interactions. That statement, dis- honestly, minimized Boone’s conduct and accentuated McLamb’s conduct. Williams went so far as to write that a su- pervisor told her that “Boone had been handling herself well. . .” (R. Exh. 9). This statement is categorically dishonest, consider- ing that during the incident Boone was screaming and told McLamb, “I will fuck you up.” The Union argues, that by suggesting McLamb’s discharge, Williams was merely seeking equity in the Employer’s treatment of McLamb and Boone. However, this argument lacks merit. Williams’ actions were not done in good faith or based on ra- tional considerations. At the end of the day, Boone’s conduct of striking McLamb was objectively more egregious than McLamb’s statements about people who did not pay their bills or properly care for their children. While the Employer’s Stand- ards of Behavior Policies address both, it is disingenuous to claim they warranted equal treatment. Thus, Williams’ state- ment to Marshall constituted a breach of Respondent’s duty of fair representation. Accordingly, I find that Respondent violated 8(b)(1)(A) and 8(b)(2) of the Act by attempting to cause the Employer to termi- nate McLamb.8 CONCLUSIONS OF LAW 1. Transdev Services, Inc. (the Employer) has been an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent, Amalgamated Transit Union, Local 689 A/W Amalgamated Transit Union, AFL–CIO, CLC is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By requesting that the Employer discharge Thomas McLamb, Respondent has restrained and coerced employees in violation of Section 8(b)(1)(A) of the Act and has attempted to cause the Employer to discriminate against its employees in vio- lation of Section 8(a)(3) of the Act, in violation of Section 8(b)(2) of the Act. 4. The consolidated complaint is dismissed for any other al- legations not found herein REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall order that it cease and desist and take certain affirm- ative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that Respondent Amalgamated Transit Union, Local 689 A/W Amalgamated Transit Union, AFL–CIO, CLC, its officers, agents, successors, and assigns shall DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 1. Cease and desist from Attempting to cause Transdev Services, Inc., or any other em- ployer, to suspend, discharge, or otherwise discriminate against employees because they engaged in union and/or protected con- certed activities. 2. Take the following affirmative actions necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from its files, and ask the Employer to remove from the Employer’s files, any reference to the unlawful reports of misconduct against Thomas H. McLamb, and within 3 days thereafter notify McLamb in writing that it has done so and that it will not use the reports against him in any way. (b) Post at its Forestville, Maryland facility copies of the at- tached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 5, after be- ing signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customar- ily communicates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Deliver to the Regional Director of Region 5 signed copies of the notice in sufficient number for posting by the Employer at its Forestville, Maryland facility, if it wishes, in all places where notices to employees are customarily posted. (d) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated at Washington, D.C., September 29, 2022. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT attempt to cause Transdev Services, Inc., or any other employer, to discipline or discharge you because of your union or protected concerted activities. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of your rights under Section 7 of the Act. WE WILL, within 14 days, remove from our files, and ask the Employer to remove from the Employer’s files, any reference to our request that Thomas McLamb, Jr. should be discharged be- cause he engaged in union or protected concerted activities, and WE WILL notify Thomas McLamb, in writing that we have done so, and that we will not use that against him in any way. AMALGAMATED TRANSIT UNION, LOCAL 689 A/W AMALGAMATED TRANSIT UNION, AFL- CIO,CLC(TRANSDEVSERVICES,INC.) The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CB-286354 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.