Columbia University in the City of New York

National Labor Relations Board - Board Decisions

Jul 30, 1980

250 N.L.R.B. 1220 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbia University in the City of New York and
Ramon Sanchez. Case 2-CA-16576
July 30, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 2, 1980, Administrative Law Judge
Charles M. Williamson issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
[ The General Counsel has excepted to certain credibility findings
made by the Administrative Laws Judge. It is the Board's established
policy nol to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
1 /ll Producti, Inc.. 91 NLRH 544 (1950)), enfd 188 F.2d 362 (3d Cir.
1951) We have carefully examined the record and find no basis for re-
versing his findings
DECISION
STATEMENT OF THE CASE
CHARt ES M. WILLIAMSON, Administrative Law Judge:
This case was tried before me in New York, New York,
on February 19, 1980. The complaint was issued on Sep-
tember 5, 1979, pursuant to a charge filed on July 10,
1979. The complaint alleged that Respondent violated
Section 8(a)(l) of the Act by threatening employee Luis
Ferran with bodily harm because he notified Respondent
that he had been ordered to do work in a manner which
imperiled employee safety and violated municipal plumb-
ing regulations.' All parties were afforded full opportu-
' Counsel for the General Counsel withdrew an allegation of violation
of Sec 8(a)(
4
) involving Charging Party Sanchez at the hearing. Counsel
fior the General Counsel also amended par. 6A of the complaint at the
hearing to change the date of the alleged threat to Ferran from April 27.
1979, to May 2, 1979. All dates are 1979 unless otherwise noted
250 NLRB No. 150
nity to appear, to introduce evidence, to examine and
cross-examine witnesses, to argue orally, and to file
briefs. Respondent and the General Counsel filed post-
hearing briefs, both of which have been carefully consid-
ered.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, and
having considered the post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
Columbia University in the City of New York, a New
York corporation, with its principal place of business lo-
cated in New York, New York, is engaged in the oper-
ation of a private, nonprofit university. Annually, Re-
spondent, in the course of its operations, derives gross
revenues (excluding contributions which, because of limi-
tation by the grantor are not available for use for operat-
ing expenses) in excess of $1 million. Annually, Respond-
ent, in the course and conduct of its operation, purchases
and receives at its New York facilities goods and materi-
als valued in excess of $50,000 directly from points out-
side the State of New York. I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Il. ISSUE
Whether Respondent violated Section 8(a)(1) of the
Act by threatening employee Luis Ferran with bodily
harm because he notified Respondent that he had been
ordered to do work in an illegal manner which imperiled
employee safety.
111. THE Al I.EGED) UNFAIR I.ABOR PRACTICES
Facts
This case revolves around certain events in the me-
chanical and maintenance support operations in certain
of Respondent's New York facilities. 2 The General
Counsel presented employee witnesses Luis Ferran, Ra-
phael Castro, Laurent Duvall, and Ramon Sanchez to
testify concerning the alleged threat to Ferran. Respond-
ent presented Supervisor Julio Fernandez.
Ferran testified that he received a work order (G.C.
Exhs. 4 and 5) on Tuesday, May 1, 1979, to connect a
gas line to a laminated hood in room 1227, the William
Black Laboratory. The connection was to be made with
copper tubing. When Ferran received the work order he
informed Supervisor Fernandez that it was contrary to
the municipal plumbing code "to connect copper tubing
2 Respondent moved at the hearing to dismiss the complaint on the
ground that the complaint allegations regarding employee Luis Ferran
were de hors the supporting charges. The charge in Case 2-CA-16576
contained general 8(a)(1) allegations. The Board has ruled that a charge
alleging violation of Sec 8(a)(1) in general terms is sufficient to support a
complaint alleging discriminatory conduct directed at employees in viola-
tion of Sec. 8(a)(I). Pleading of all the evidence in the charge is not re-
quired David G. Leach and Doyle H. Wallace, d/b/a Brook ville Glove
Company, 116 NLRB 1282, 1291-92 (1956) Accordingly, Respondent's
motion to dismiss the complaint on this ground is denied.
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COLUMBIA UNIVERSITY IN THE CIIY ()F NEW YO'()RK
to a gas line." 3 He also complained to an individual in
the planning and design section of Respondent's facilities
about the proposed copper hookups. Ferran performed
the work as directed. He then made a xerox copy of the
work order. At the bottom of the work order he wrote:
"To whom it may concern. This job is a violation of The
N.Y. City Pluming [sic] Code but we followed the fore-
man orders." Ferran affixed his signature to this state-
ment and left it on Fernandez' desk.4 Ferran testified
that he did this to cover himself at the suggestion of a
Mr. Meyer, a member of the safety committee at Colum-
bia University.
The next morning, according to Ferran, he was in Fer-
nandez' office. Duvall, Castro, and Sanchez were alleg-
edly present. According to Ferran, Fernandez "was very
upset." Ferran testified that Fernandez told him the fol-
lowing:
Q. What did Mr. Fernandez say to you?
A. That morning he was very upset and he said,
me I'm going to go by the book and from now on
you want to find out who I am.
I'm going to squeeze you all the way up to
squeeze your neck.
Q. What language did he say this in?
A. He said it in Spanish.5
Ferran, a union official, made a desultory attempt to
file a grievance over this alleged threat by Fernandez but
took it no further than an attempt at a first step.
Ferran testified that employee Castro was "five to six
feet" from Fernandez when the alleged threat was ut-
tered. He said employee Duvall was "in the room" along
with employee Sanchez. He did not know how far the
latter two were from Fernandez. Ferran insisted that the
alleged conversation took place about 8:30 a.m. on
Wednesday, May 2, 1979.
Employee Raphael Castro testified that the alleged
threat was made on a Wednesday, May 2, 1979, and that
employees Sanchez and Duvall were present. 7 Castro
stated that Fernandez stated in Spanish "he was going to
squeeze him, squeeze him by the neck until, you know."
General Counsel's witness Duvall testified that in
"early May 1979" he was by his locker in the shop when
he heard "a lot of Spanish words that I didn't under-
stand." He stated he then heard Fernandez saying, "l'm
the boss and you people are going to listen to what I
have to say." Duvall said he did not know to whom Fer-
nandez was speaking. Duvall does not understand the
Spanish language. Duvall did not remember seeing em-
ployee Castro on this occasion although he did observe
* The "gas" involved here is so-called natural gas of the type normally
supplied by utilities for heating and cooking purposes
4 G.C Lxh. 5 is a copy of the work order as lcfi on Fernandez desk
GC. Exh 4 is a copy with certain additions by Fernandez
I Ferran testified as to the Spanish phrases allegedly used hb Fernan-
dez An interpreter was sworn in and translated them for the record A
similar procedure was followed when other witnesses testified conc.erning
alleged remarks in the Spanish language
a The grievance procedure has at least three steps prior to arhitration.
according to Ferran L ocal 241, TW'U. AFL CIO, has represented the
mechanical and mainteiance employees at least since 1963
? Castro also stated that a Mike Brill was present but that Btrit did not
speak Spanish
employees Ferran, Sanchez, and Britt. Duvall's normal
reporting time was 9:30 a.m.
Employee Ramon Sanchez, a union shop steward for
Local 241, testified that Fernandez told Ferran in Span-
ish, "I'm going to squeeze you and squeeze you until
your neck." Sanchez did not give a precise date for this
alleged statement although he testified that it took place
between 8:30 and 9 a.m.
Respondent's witness, Supervisor Fernandez. testified
that he prepared the work order (G.C. Exhs. 4 and 5)
which led to the dispute. He stated that he later placed
the word "Temp" (meaning temporary) and a statement
at the bottom of the work order to the effect that the
work was "ordered temporarily until material come."
Fernandez testified that he gave the work order to
Ferran on April 27, the day following its preparation on
April 26. When Ferran received the work order, he re-
marked that it was against the code to do it that way
(i.e., with copper tubing) and that he would rather do it
with black pipe and black fitting. Fernandez told him the
right material for the job was ordered but had not ar-
rived Ferran retorted that he (Ferran) "didn't know
why Columbia have people with such experience in the
shop" and that Fernandez "didn't know anything." Fer-
nandez told Ferran that if he did not do the work that he
(Fernandez) would report it to his supervisor. Fernandez
then stated that Ferran began to call him names (some of
them obscene) and that he then told Ferran that he had
to do what he was told. Ferran then stated that he
would write something on the paper "to get even" with
Fernandez. Fernandez acknowledged that the job was
performed in accord with the work order. Fernandez
testified that that same day (April 27) Ferran told him
about 2:30 p.m. that he was going to the Labor Relations
Board. As a result, Fernandez put the notation "LRB"
on Ferran's timecard when he checked out. 8 This was
Fernandez' regular practice because such time spent han-
dling union matters was paid for by the Union. Fernan-
dez denied that there was any further conversation be-
tween himself and Ferran regarding this work order.
About a week later, the proper materials arrived and.
pursuant to a separate work order (Resp. Exh. 7), the
work in the laboratory was converted into a permanent
installation.
The General Counsel contends that under Board Deci-
sions such as Al4leluia Cushion Co. Inc., 221 NLRB 999
(1975). Ferran was engaged in concerted activity with
other employees when he complained to Supervisor Fer-
nandez and others regarding the safety aspects of the lab-
oratory installation. He then reasons (G.C. hr., p. 6) that,
". . by threatening Ferran with bodily harm because he
informed Respondent that he had been ordered to do
work in a manner which imperiled employee safety and
violated municipal plumbing regulations, Respondent
violated Section 8(a)(l) of the Act because Ferran's
action was protected concerted activity." Granted, ar-
guendo, that the General Counsel's view of the law is
correct, I must still dismiss the complaint because, in my
judgment, the alleged threat has not been established. I
]'he timecard is in1 cxidenznc as Rcp Fxh 3
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observed carefully the relative demeanors of Ferran,
Sanchez, Castro, Duvall, and Fernandez while they testi-
fied concerning this matter. Fernandez impressed me as
attempting to tell the truth of the matter as best he
could. I was less impressed with Ferran, Castro, Duvall,
and Sanchez, all of whom impressed me at times as eva-
sive or lacking genuine recall of matters to which they
testified. Ferran and Castro, in particular, showed signs
of longstanding personal animosity toward Fernandez.
Certain documentary evidence reinforces the conclu-
sion that the General Counsel's witnesses are not to be
credited concerning the alleged threat. Ferran insisted
that the threat took place on May 2. Castro corroborated
this testimony and Duvall placed the conversation in
"early May." Timecards were presented for both Castro
and Duvall (Resp. Exhs. 2, 6(a), 6(b), 6(c), 6(h)) which
show that they were both absent from work on May 2.
Castro and Ferran attempted to claim that the timecards
were a fabrication, but there is no evidence to support
this surmise on their part.9 Duval's timecards show him
to have been absent on both Wednesday, May 2, and
Friday, April 27. He, therefore, could have heard neither
the May 2 conversation alleged by Ferran nor the April
27 conversation testified to by Fernandez. '° Ferran, fi-
nally, claimed that he did not go to the Labor Board Re-
gional Office about the alleged threat until sometime in
July. However, Respondent's Exhibit 3, Ferran's time-
card for the week ending April 29, contains the notation
by Supervisor Fernandez "LRB" for the date April 27.
Fernandez testified that "LRB" stands for "Labor Rela-
tions Board" and that he put the notation there, pursuant
' II should be noled in this c.nnection Ihal the General Counsel origi-
nally slated in the complaint that the alleged conversation too1k place on
April 27. ; date when, according to Respondent's timecard records.,
Castro wa's at work Only at the hearing did the General Counsel switch
to the allegatliln ,ff May 2 for the date.
a" Addilionally. D)uvall's tiniecards all show that for the 2-week period
April 21 to May 6 the earliest he clocked in was 9:15 a m on April 23
except fior April 2s w hen he clotked in at 7:46 a.m apparently for a
uniln grievance matiler Ferran alleged that the May 2 conversation wlas
.l Ittle after 1 i:t a m Duvall testifred he normally got lo work at 9:30
aI nl
to a conversation with Ferran on April 27, to explain
why Ferran clocked out early at 2:30 p.m. that day. I
find it inconceivable that Fernandez would have placed
this notation on Ferran's timecard on April 27 had
Ferran not told him that he intended to go to the Labor
Board office that day. Finally, I note that Sanchez testi-
fied to the presence of both Duvall and Castro when
Fernandez allegedly uttered the threat. The General
Counsel did not establish the date of the alleged threat
through Sanchez except by the conclusionary testimony
that the threat occurred the day after Ferran showed
Sanchez the work order in question. The latter date was
not established except for the assertion by Sanchez that
Ferran showed him the work order "the same day he
got it."
Accordingly, I find that the General Counsel has
failed to establish by a preponderance of the evidence, as
is his burden, that Respondent, through its supervisor,
Fernandez, threatened physical harm to Luis Ferran be-
cause he concertedly complained about a matter involv-
ing safety on the job as alleged and therefore I will rec-
ommend dismissal of the complaint.
CONCL USIONS 01 LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in the unfair labor
practice alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '
The complaint is dismissed in its entirety.
In the event no exceptliolns are filed as provided by Sec 10246 of
the Rules and Regulations of the National Labor Relations Board. the
findings, cnclus,ions. and recolnmended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations. be adopted by the Board and
become its finldinigs. c)nilClusionis. and Order, and all objections thereto
shall be deemed waived for all purp<,ses.
1222