Local 147 Laborer's International Union of North America (Northeast Remsco Construction, Inc.,)

National Labor Relations Board - Administrative Judge Opinions

Mar 25, 2020

02-CB-231600 (N.L.R.B. Mar. 25, 2020)

JD(NY)-03-20
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
LOCAL 147, LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA (NORTHEAST
REMSCO CONSTRUCTION, INC.)
Case No. 02-CB-231600
and
RICHARD BACQUIE, an Individual
Nikhil A. Shimpi, Esq., for the General Counsel.
Marianne Manning Russo, Esq. (Manning & Russo, LLP),
of Bronxville, New York, and Ira Sturm, Esq. (Raab, Sturm &
Ganchrow, LLP), of Fort Lee, New Jersey for the Respondent
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. This case was tried before
me in New York, New York, on September 4 through 6, 2019, October 10, 2019, and
November 1, 2019. On November 23, 2018, Richard Bacquie filed a charge in Case
No. 2-CB-231600, which he amended on March 29, 2019, against Local 147, Laborers’
International Union of North America (Local 147 or the Union). On August 2, 2019, the
Regional Director, Region 2, issued an Amended Complaint and Notice of Hearing
alleging that on September 23, 2018 and October 28, 2018, Local 147 violated Section
8(b)(1)(A) of the Act by threatening employees that they would no longer obtain
employment, including by loss of Union membership, because they complained about
racial discrimination in the Union’s referral of members to work.1 Local 147 filed an
Answer on August 15, 2019 denying the Amended Complaint’s material allegations.
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed by Counsel for the General Counsel (General
Counsel) and Local 147, I make the following
1 The Amended Complaint also alleged at Paragraph 5(b) that on September 23, 2018, Local 147, by its
agent Joseph Fitzsimmons, intentionally pushed and threatened employees with bodily harm because
they complained to Local 147 about racial discrimination in the Union’s referral of members to work.
General Counsel withdrew this allegation on the record on September 4, 2019. Tr. 17. General Counsel
subsequently withdrew the allegation contained in Paragraph 4 of the Amended Complaint that Joseph
Fitzsimmons is an agent of Local 147 pursuant to Section 2(13) of the Act in his Post-Hearing Brief at
page 1.
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New York, NY
Findings of Fact
I. Jurisdiction
General Counsel and Local 147 have stipulated that Northeast Remsco
Construction, Inc. (Remsco), a corporation with an office and place of business in South
Farmingdale, New Jersey, and a member of the General Contractors Association of
New York, Inc. (GCA), has at all material times been engaged in the construction
business as a utility and transportation contractor. Jt. Ex. 1. General Counsel and
Local 147 have stipulated and I find that in conducting its operations, Remsco annually
performs services valued in excess of $50,000 in states other than the State of New
York. General Counsel and Local 147 have further stipulated that the GCA has been at
all material times an organization comprised of various employers performing
construction services in the State of New York, and has represented its members in
multi-employer negotiations of collective bargaining agreements, including a collective
bargaining agreement with Local 147. Based upon the foregoing, I find, consonant with
the parties’ stipulation, that Remsco is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Siemons Mailing Service, 122 NLRB 81
(1959); Laundry Owners Assn. of Greater Cincinatti, 123 NLRB 543 (1959).
Local 147 has not admitted labor organization status. However, based upon the
above stipulation between General Counsel and the Union, and the evidence that Local
147 negotiates collective bargaining agreements with employers and multi-employer
associations, including the GCA, I find that Local 147 exists for the purpose of “dealing
with” employers regarding matters including “grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work,” and is therefore a labor organization
within the meaning of Section 2(5) of the Act. See Tr. 34, 231; Jt. Ex. 1; G.C. Ex. 2, 3,
4; Vencare Ancillary Services, 334 NLRB 965, 969 (2001).
II. Alleged Unfair Labor Practices
A. Local 147’s Operations
Local 147 represents employees who work in tunnel construction and mining in
the New York City area. Tr. 34, 231. Local 147 has collective bargaining agreements
with construction industry employers, including a multi-employer agreement with the
GCA. Jt. Ex. 1; G.C. Exs. 2-3. Local 147’s offices are located at 4332 Katonah
Avenue, between 235th Street and 236th Street, in the Bronx, New York. Tr. 457. In
2018 and 2019, Local 147 had three full-time employees – Chris Fitzsimmons, Richard
Fitzsimmons, Sr., and John Ryan – and one part-time office manager, Cindy
Fitzsimmons. Tr. 554-555. Richard Fitzsimmons, Jr. also works at Local 147’s offices
for a few weeks each year, covering for other staff members. Tr. 577-579.
Pursuant to Article IV, Section H of the LIUNA Uniform Local Union Constitution,2
the Local 147 Executive Board consists of the Union’s President, Vice President,
2 There is no dispute that Local 147 operates pursuant to the LIUNA Uniform Local Union Constitution.
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Recording Secretary, Secretary-Treasurer, Business Manager, and two other Board
members elected by the membership. G.C. Ex. 4, p. 87. The Local 147 Constitution
vests the Executive Board with the authority of the Local Union between meetings, and
provides that the Executive Board’s actions shall be binding unless modified by a
membership vote. G.C. Ex. 4, p. 87. The Executive Board also comprises the trial
board to hear and decide all internal union charges, and to ensure that the business of
the Local Union is properly conducted in accordance with the Constitution. G.C. Ex. 4,
p. 88, 105-106. The Executive Board appoints Field Representatives or Organizers as
necessary, and establishes their salary and compensation. G.C. Ex. 4, p. 88.
At all times material to the events at issue in this case, John Ryan has been the
President of Local 147, Andrew Hickey has been the Vice President, Gerard Schnell
has been the Recording Secretary, and Richard Fitzsimmons, Sr. has been the
Business Manager. Tr. 45, 458, 552. Chris Fitzsimmons has been Local 147’s
Financial Secretary-Treasurer since approximately 2013. Tr. 45, 456-457. Richard
Fitzsimmons, Jr. is the Sergeant-at-Arms. Tr. 45, 552. Mike O’Shea and Andrew
Joseph are also Executive Board members. Tr. 551-552. Richard Fitzsimmons, Sr.
and Chris Fitzsimmons are brothers. Tr. 45, 551. Richard Fitzsimmons, Jr. and Joseph
Fitzsimmons are Richard Fitzsimmons, Sr.’s sons, and Chris Fitzsimmons’ nephews.
Tr. 45-46, 551, 579.
As Financial Secretary-Treasurer, Chris Fitzsimmons is responsible for the
collection of dues and employer contributions, addressing issues regarding investments
and insurance policies, maintaining Local 147’s financial records, and general
secretarial duties as defined in the local constitution. Tr. 457. Members coming to pay
dues at the office meet with Chris,3 sitting on chairs next to his desk. Chris testified that
he is also generally the individual who assists members who visit the office seeking
information and documents, or signing up for the out-of-work list.4 Tr. 459. Chris also
responds to members’ questions submitted by e-mail. Tr. 460-461. Members who call
the Local 147 office generally speak with Ryan, Richard Fitzsimmons, Jr., or Chris
Fitzsimmons. Tr. 460.
Richard Fitzsimmons, Jr. testified that he has been a member of Local 147 for
approximately 15 years, and is an elected Sergeant-at-Arms. Tr. 569. In that position,
he is a non-voting member of the Executive Board, and while he attends Executive
Board meetings, he can only speak at these meetings if called upon. Tr. 552, 569, 579-
580. Article IV, Section 4(F) of the Constitution provides that the Sergeant-at-Arms
“shall determine the right of those who shall be permitted to enter the meeting hall,” and
“shall execute such orders received from the President for the maintenance of order and
decorum at meetings.” G.C. Ex. 4, p. 86. Richard, Jr. testified that the Sergeant-at-
Arms maintains order at Union meetings by issuing two warnings to individuals who are
3 Because a number of the personae involved in the pertinent events are members of the Fitzsimmons
family, I will often refer to them solely by their first names for the purposes of clarity and brevity.
4 On the wall directly behind the chairs near Chris Fitzsimmons’ workstation is a bulletin board above
some filing cabinets, where Local 147 posts its workers compensation information, the Union’s out-of-
work list, the out-of-work list rules, and other internal Union policies. Tr. 43, 239-240, 459.
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disruptive, and ejecting members who fail to comply. Tr. 569, 576-577. The Sergeant-
at-Arms also tallies the number of members at each monthly membership meeting,
reporting this information to the Recording Secretary. Tr. 578-579.
Charging Party Richard Bacquie and Local 147 member Tyrone Wallace testified
at the hearing for the General Counsel. Tr. 229-230. Chris Fitzsimmons and Richard
Fitzsimmons, Jr. testified on Local 147’s case, as did Thomas J. Smith, a senior health
and safety specialist for the New York State Laborers’ Health and Safety Trust Fund.
Tr. 597. Michael Hunter, a foreman at Remsco from July to November 2018, was also
called as a witness by Local 147. Tr. 217-218.
B. Interactions Between Bacquie and the Local 147 Executive Board Prior to the
Fall 2018 Union Meetings
Richard Bacquie has been a member of Local 147 in good standing since
January 1998. Tr. 33. Other members of Bacquie’s family have been members of
Local 147 and have worked in the trade, including Bacquie’s father and nephew. Tr.
297-298, 300-301. He has never served as a shop steward or other representative for
the Union. Tr. 34. Bacquie has worked for a number of employers subject to collective
bargaining agreements with Local 147, including Schiavone Construction in 2004, and
Frontier-Kemper in 2014. Tr. 35-36. Bacquie most recently worked for Remsco from
March to September 2018. Tr. 47-48.
Local 147 refers members to available jobs in the trade via its out-of-work list.
Tr. 39, 328, 329-330; G.C. Ex. 6. Bacquie testified that he placed his name on the out-
of-work list on one occasion in October 2018, by visiting Local 147’s office and writing
his name and contact information in a book. Tr. 41, 330-331. Bacquie testified that until
the hearing in the instant case, he was not aware that rules existed for the out-of-work
list. Tr. 41, 329-330.
In the spring of 2016, Bacquie requested a copy of Local 147’s constitution and
grievance procedures in connection with a layoff from Frontier-Kemper and issues with
a union-appointed auditor and the shop steward on the job. Tr. 40-41, 462-464. On
March 8 and 9, 2016, Bacquie and Chris Fitzsimmons exchanged several e-mails
regarding Bacquie’s request for documents. Tr. 464-465; R.S. Ex. 10. On March 8,
2016, Chris Fitzsimmons sent an e-mail to Bacquie attaching Local 147’s then-current
collective bargaining agreement with the GCA, and providing a link to the LIUNA
website leading to the constitution, with instructions regarding the use of the link. Chris
further explained that Local 147 follows the bylaws in the uniform local constitution
contained on the website, and that the constitution describes Local 147 Executive Board
positions, qualifications, and functions, as well as grievance procedures. Chris stated
that he would also locate materials which would describe interim Executive Board
appointments, noting that while Bacquie’s request had been forwarded to Local 147’s
attorney, he wanted to provide Bacquie with access to the requested information without
document reproduction charges. Finally, Chris invited Bacquie to call him once Bacquie
had been able to review the documents. R.S. Ex. 10. Bacquie responded later that
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day, stating that referral of his request to an attorney “validate[d]” his concerns
regarding discrimination in obtaining future employment, and questioning the
qualifications and interests of the appointed auditor. R.S. Ex. 10. Chris stated in
response that he was only attempting to gather the information Bacquie had requested,
and that having gained a better understanding of Bacquie’s issues he intended to “work
toward a resolution.” R.S. Ex. 10. The next day, Bacquie stated that he had not
received all of the information he sought, and requested an extension of “my right to a
grievance” as a result. Bacquie again protested the auditor’s conduct in purportedly
providing information that Bacquie “abused” an employee of Frontier-Kemper, and
asserted “a claim of violation” against the Local 147 shop steward. Finally, Bacquie
requested a meeting with Chris, Richard Fitzsimmons, Sr., and John Ryan. R.S. Ex. 10.
Chris responded an hour later, stating that he was continuing to gather the requested
documents and would attempt to arrange a meeting. R.S. Ex. 10. After a meeting
between Local 147, Bacquie, and representatives of Frontier-Kemper, the issues raised
by Bacquie were resolved. Tr. 478-479.
Bacquie testified that in April 2018 he learned that Local 147 members from a
project he had previously worked on were working at another jobsite, even though the
Local 147 shop steward on the project had told him that there was no work available.
Tr. 49-50. He called Chris Fitzsimmons and described the situation to him, telling Chris
that white employees were continuing to work and assigned the day shift, whereas
black and other non-white employees were being laid off and assigned later shifts. Tr.
50-51. Bacquie testified that when he identified a specific member involved, Chris
stated, “You know how he’s getting work,” which according to Bacquie referred to the
member’s relationship with Local 147 President John Ryan. Tr. 51-52. Bacquie told
Chris that if the problem was not addressed he intended to write an official grievance,
and Chris stated that an official grievance would provide employers with ammunition
against the Union. Tr. 52. Bacquie told Chris Fitzsimmons that he should find a way to
resolve the issue if he did not want a grievance filed. Tr. 52-53.
Subsequently Bacquie and Chris Fitzsimmons exchanged a number of text
messages between August 13, 2018 and September 23, 2018.5 Tr. 53-62; G.C. Ex. 7;
R.S. Ex. 2. Bacquie began this exchange on August 13, by recounting incidents of “bias
and very selective treatment” in hiring that he had discovered, and asking for
information regarding the process for filing a grievance and appealing in the event that
the grievance was denied. Chris responded that he was only aware of one job in the
Union’s jurisdiction, which employed eight members, and stated that if a relative of
Ryan’s was working he did not obtain the job through the Local 147 out-of-work list.
Chris told Bacquie that he would be available in the Union office the next day if Bacquie
wished to discuss the issue further. Bacquie responded that he would call Chris, and
asked Chris to forward him the grievance process. Chris then sent Bacquie a series of
news articles regarding various contractors in the industry and their opposition to the
Union. Chris said that he would call Bacquie the next day.
5 All subsequent dates are in 2018 unless otherwise indicated.
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On September 11, Bacquie and Chris Fitzsimmons sent one another the
following text messages:
Bacquie: Chris you lied to me again, your brother lied to the membership
and John Ryan told the wrong person.
Chris: Not sure what you are talking about. I’ll be in the office tomorrow.
Bacquie: I know, Chris, everyone plays ignorant till the shit hits the fan.
G.C. Ex. 7 (punctuation and capitalization added for clarity).
On September 19, Bacquie sent Local 147 a letter listing a number of issues he
wished to address “in a matter that is reasonable to the entire membership,” including
“racial discrimination,” “discriminating hiring practice,” and “unqualified and bias[ed]
shop stewards.” Tr. 63-64; G.C. Ex. 8. Bacquie also stated that he wished to address
the grievance policy, “how to file in detail and appeal[s] process,” a “fairer system for
members laid off and out of work,” “appointments to Administration Positions” which
“disenfranchised members opportunities,” “lack of on-site representation” by business
agents,” and members’ “lack of information to fair hiring process” and “fear of retaliation”
by the Union administration. G.C. Ex. 8. Bacquie stated that “the Administration favors
friends and family who are not as tenured within the local, are under qualified and/or not
qualified at all.” G.C. Ex. 8. Bacquie requested that Local 147 provide copies of
documents including the Union’s By-Laws, Constitution, “and any rules, policies, codes
of conduct, amendments, contracts and alike.” G.C. Ex. 8. Bacquie further stated,
“This is my second letter and I have twice requested verbally for the accurate process of
filing grievances which has been ignored in prior attempts. I will if need be forward this
letter along with a written letter to the International requesting this information if I do not
receive a response within 10 working days.” G.C. Ex. 8.
C. The September 23 Union Meeting
Local 147 conducts membership meetings the last Sunday of each month. Tr.
577. Membership meetings take place at a meeting hall in a building owned by Local
237 of the International Brotherhood of Teamsters on 14th Street between 7th and 8th
Avenues in Manhattan. Tr. 43, 65-66. The Union’s Executive Board meets an hour
prior to the membership meetings. Tr. 577.
The meeting hall is a large room with entrance and exit doors on either side. Tr.
66. The Local 147 administration sits at a table facing the membership. Tr. 66. Chairs
for the members are set up facing the table where the administration sits, and between
the members’ chairs and the administration’s table is a podium for speakers, which
faces the chairs.6 Tr. 66-67. Small tables are placed near the entrance and exit doors.
Tr. 66. There are bathrooms adjacent to the entrance and exit signs. Tr. 66.
6 Wallace testified that there is a camera in the meeting hall which faces the podium. Tr. 232, 256-257.
No video recordings of the meetings were introduced into evidence at the hearing.
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There is no dispute that the September 23 meeting was attended by members of
the Local 147 Executive Board, including John Ryan, Chris Fitzsimmons, and Richard
Fitzsimmons, Sr. and Jr. Tr. 553, 569. The evidence establishes that the September
23 meeting proceeded in the manner typical of Local 147’s membership meetings, with
a series of reports to the membership from the Union’s Business Manager and various
shop stewards, discussing the current jobs covered by Union contracts and the number
of workers employed. Tr. 493-494. Bacquie attended the meeting, as did Local 147
member Thomas J. Smith. Tr. 65-66, 599. Bacquie testified that during a presentation
at the meeting regarding the provisions of a new collective bargaining agreement, he
asked a question regarding the criteria for holiday pay. Tr. 67-68. Bacquie testified that
Chris Fitzsimmons responded to his question, explaining the new contract’s terms
regarding holiday pay, but was “very loud” and “aggressive in his tone” when doing so.
Tr. 68-69. Baquie testified that Chris Fitzsimmons “was, in my opinion, super assertive
and directing it to me,” so that Bacquie “took it offensively.” Tr. 68-69. Bacquie testified
that at that point he began recording the meeting on his phone, which he had placed in
either his jacket pocket or his back pants pocket. Tr. 161, 399. A copy of the recording
and a transcript prepared by General Counsel were introduced into evidence during the
hearing. Tr. 69, 190-191; G.C. Ex. 16(a-b).
The recording of the September 23 meeting begins with a presentation regarding
the provisions of the new collective bargaining agreement and legislation potentially
affecting the membership. G.C. Ex. 16(a) (not transcribed). Bacquie testified that later,
“I tried to get up and ask a question…related to the letter I sent in,” but “was
disregarded” and “left the room.” Tr. 67-68, 69. The recording Bacquie made appears
to contain a discussion of the letter from approximately 49:35 to 50:15, after the meeting
ended. Bacquie states that “we need to talk,” and the individual to whom he was
speaking responds that they have not seen his letter, but would read it, after which they
would have a discussion. This portion of the recording is not transcribed, and I am not
able to identify the voice of the person to whom Bacquie was speaking. Tr. 69; G.C.
16(a-b).
It is undisputed that Bacquie then walked up to Chris Fitzsimmons, who was in
front of the podium, and the two had the following exchange:
Chris: What’s up Rich?
Bacquie: What’s up man? You had like an attitude?
Chris: I don’t have an attitude, man. I just, we’re just trying to get through
some difficult stuff.
Bacquie: I understand you’re trying to get through difficult stuff but if
there’s questions these guys don’t understand it because I didn’t even
understand it neither.
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Chris: OK, you understand it now?
Bacquie: Yeah, but what’s your attitude?
Chris: There’s no attitude!
Bacquie: You’re giving me one right now, though. What’s up? We’ve
never been like that.
Chris: I’m not giving you attitude.
Bacquie: Because I’m fucking asking for some information, is there a
problem?
Chris: You, you want a copy of it?
Bacquie: I don’t need a copy of that, that’s not what I’m asking you for.
Chris: Here you go.
G.C. Exs. 16(a) at 51:54-52:19, 16(b), p. 1-2.
From there, the situation escalated somewhat. Bacquie told Chris repeatedly, “I’ll
see you in the [Union] hall,” which Chris stated that he interpreted as bullying and
threatening.7 G.C. Ex. 16(a), 16(b), p. 2. However, Chris’ tone at this point was firm but
relatively calm. G.C. Ex. 16(a) at 52:25. Chris stated to Bacquie that the “problems”
that he had raised were unrelated to Chris’ duties as Financial Secretary-Treasurer,
which consisted primarily of bookkeeping and record keeping. Tr. 72; G.C. Ex. 16(a),
16(b), p. 2-3. At that point, Bacquie accused Chris of having disregarded the Local 147
bylaws. G.C. Ex. 16(a) at 52:45, 16(b), p. 2-3. When Bacquie continued to insist that
Chris’ conduct has contravened the bylaws in some way, Chris responded, “OK Richie, I
can see we have a difference of opinion.” G.C. Ex. 16(a) at 52:59, 16(b), p. 3. Bacquie
then stated, in a noticeably louder tone, “No, we definitely have a difference of opinion,
definitely.” G.C. Ex. 16(a) at 53:05, 16(b), p. 3.
Chris Fitzsimmons then said, “What, you got a problem with me?” G.C. Ex. 16(a)
at 53:08, 16(b), p. 3. Chris spoke more quickly than he had been previously, and his
tone was more abrupt, but his voice was not significantly louder than the volume that
either he or Bacquie had previously been using. G.C. Ex. 16(a). Bacquie testified that
at that point Chris “put his hands up” in a “fighting” or “threatening” stance. Tr. 71.
Bacquie responded by stating, in an intensified tone and at a distinctly raised volume,
“What, you threatening me?” G.C. Ex. 16(a) at 53:09, 16(b), p. 3. Chris replied in a
more conversational tone, “No, I’m asking you if you have a problem with me. Richie,
you seem like you got a problem with me.” G.C. Ex. 16(a), 16(b), p. 3.
7 Local 147 contends that at 52:32 Chris Fitzsimmons states, “I’m taking it that way,” as opposed to, “I’ll
take it that way.” After listening to the recording multiple times, I agree.
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At this point, Joseph Fitzsimmons and a number of other members approached
Bacquie and Chris Fitzsimmons. Tr. 72-73. Joseph Fitzsimmons referred to Bacquie
as “coming around and starting fucking trouble,” and told Bacquie, “Get the fuck outta
here,” and “Get the fuck out!” G.C. Ex. 16(a) at 53:10, et seq., 16(b), p. 3. Chris
Fitzsimmons repeatedly stated “Let’s keep order,” and Bacquie called for Rich
Fitzsimmons, Jr., as the Sergeant-at-Arms, to “check” Joseph. G.C. Ex. 16(a) at 53:30,
16(b), p. 3-4. Bacquie testified that as “The membership pulled me back…closer to the
door area,”8 Joseph Fitzsimmons stated that Bacquie was “dead” and “done in the
union,” after which Richard, Jr. stated that Bacquie was “done in the union” and “won’t
work again.” Tr. 73-74. These statements, however, cannot be heard on the recording
made by Bacquie and do not appear in the transcript prepared by General Counsel.
G.C. Ex. 16(a), 16(b), p. 3-4. Instead, after Chris Fitzsimmons and Thomas Smith
attempt to calm the situation, Richard Fitzsimmons, Jr. states, “Enough of your shit!”
after which Bacquie and Richard, Jr. trade insults. G.C. Ex. 16(a), 16(b), p. 4. The
transcript then proceeds as follows:
Richard Fitzsimmons, Jr.: …Back up motherfucker…
Bacquie: Y’all, let’s come, come, come. Let’s take it outside.
Unidentified male voice: Rich, Rich!
Joseph Fitzsimmons: [Indistinct]
Richard Fitzsimmons, Jr.: [Indistinct]
Bacquie: …Come, come, come…
Richard Fitzsimmons, Jr.: [Indistinct] You’re done! Get the fuck out of
here.
Unidentified male voice: Rich, Rich!
[Crosstalk]
Bacquie: I’m done?
G.C. Ex. 16(a) at 53:50-53:54, 16(b), p. 4.
8 Bacquie testified that one of the members that pulled him away was Thomas J. Smith, who also testified
at the hearing. Tr. 74-76, 185.
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After additional rancorous discussion punctuated by Bacquie’s incitements to
physical combat9 and other members’ attempts to calm him down,10 the group exited
the meeting room into the hallway, and then proceeded into the street. Tr. 74-76; G.C.
Ex. 16(a), 16(b), p. 4-7. The evening ended with Bacquie determined to “smack up”
Richard Fitzsimmons, Sr. and Jr., and “go to the International” before the recording
ends. G.C. Ex. 16(a), 16(b), p. 7-8.
Richard Fitzsimmons, Jr. testified regarding the September 23 meeting, where he
served as Sergeant-at-Arms for the Union. Richard Jr. stated that as he stood at the
door closest to the podium, about five feet away, he saw Bacquie asking Chris
Fitzsimmons a few questions. Tr. 569-570. Richard Jr. testified that he observed the
argument become heated, and when Bacquie removed his glasses Richard Jr. believed
that the confrontation might become physical. Tr. 570. Richard Jr. testified that he
approached Bacquie and Chris at that point. Tr. 571. Richard Jr. testified that he did
not tell Bacquie that he would no longer obtain employment, including by the loss of
Union membership. Tr. 571. Richard Jr. testified that he directed Bacquie to leave the
meeting hall, but Bacquie did not do so until he was escorted out by Thomas J. Smith
and other members. Tr. 572.
Chris Fitzsimmons also testified regarding the September 23 meeting, and stated
that he was present during the interaction with Bacquie after the meeting ended. Tr.
491-492. Chris testified that during the incident, Richard Fitzsimmons, Jr. never
threatened anyone that they would no longer obtain employment, including through the
loss of Union membership. Tr. 491-493.
Thomas J. Smith also testified regarding the events of the September 23
meeting, which he attended. Smith testified that his relationship with Bacquie was
cordial, and he considered Bacquie a friend. Tr. 599. Smith also grew up with Chris
Fitzsimmons, and has known the family for a significant period of time. Tr. 608. Smith
testified that Bacquie approached Chris Fitzsimmons while Chris was standing at the
front of the room. Tr. 600-601. Smith was about ten feet away from Chris and Bacquie
during their interaction. Tr. 201. Smith testified that Bacquie “stepped in Chris’s face,”
and both were yelling, making him concerned for Chris’ physical safety. Tr. 602.
Therefore, he tried to step in between Chris and Bacquie to defuse the situation. Tr.
601-602. Richard Fitzsimmons, Jr. was behind Chris, to the right of the door. Tr. 603.
Smith testified that he never heard Richard Fitzsimmons, Jr. threaten anyone that they
would no longer obtain employment, including by a loss of Union membership, during
9 “Yeah, go fuck yourself…come—you threatened me, come outside,” “We’ll settle it, you’re right, we’ll
settle it, you’re fucking with the wrong one,” “Then the fucking son comes and acts like a tough guy, the
both of them. I’ll smack them both up by myself.” G.C. Ex. 16(a), 16(b), p. 6-7.
10 “C’mon man…it’s over, bro, come on,” “Come on…it’s not worth it like this, you know that,” “Where is
that gonna get you?” “It’s not even worth it,” “Richie, Richie go in your car and go home.” G.C. Ex. 16(a),
16(b), p. 6-8. Bacquie responded to one such statement, “I’m going to tell them, this is how stupid they
are. I recorded the whole thing.” G.C. Ex. 16(a), 16(b), p. 8. .
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the incident.11 Tr. 603-604, 605. However, Smith admitted that after the September 23
meeting ended a number of people were speaking simultaneously, and he could not
understand everyone’s statements. Tr. 617.
D. Events Occurring Between the September 23 and October 28 Union
Meetings
After the Union meeting and subsequent confrontation on September 23,
Bacquie and Chris Fitzsimmons had the following exchange of text messages:
Bacquie: You and your family fucked up, I’m going to the news and the
International tomorrow, threatening me, your nephew saying I’m dead, I
tried to approach you as a friend, but I guess we never were (6:05 p.m.)
Chris: Rich, I feel you fucked me and my family, go wherever you think
you need to go. Look at your last text where you called me a liar. Friend?
(6:37 p.m.) This is my personal cell phone, all future correspondence
should be sent in writing to the hall. I will no longer be responding via text
message (6:41 p.m.)
Bacquie: Sad you feel that way no problem
G.C. Ex. 7 (punctuation and capitalization added for clarity).
Bacquie testified that a couple of days after the September 23 meeting, he called
the Laborers’ International Union of North America in Washington, DC, and was referred
to a Regional Director in Rhode Island. Tr. 82. Bacquie testified that during this
conversation he described his history with Local 147 and read the Regional Director the
letter he had sent. Tr. 83-84. Bacquie further told the Regional Director that Richard
Fitzsimmons, Jr. had threatened that Bacquie would never work again and was out of
the Union, and that Joseph Fitzsimmons told Bacquie that he was dead and done in the
Union. Tr. 84. According to Bacquie, the Regional Director asked whether he wanted
to transfer to another LIUNA local, but Bacquie stated that because he had so much
time in Local 147 he would prefer to have the issue corrected. Tr. 84. The Regional
Director stated that he would call Local 147 to find out what was going on and contact
Bacquie afterwards. Tr. 84. When Bacquie spoke to the Regional Director again, the
Regional Director said that a representative from Local 147 had told him that they didn’t
know where Bacquie’s issues were coming from, that they liked Bacquie and wanted to
handle things internally. Tr. 105-106. Bacquie told the Regional Director that Local 147
could not be trusted to handle the issue internally, and that he would proceed with filing
a complaint. Tr. 106-107.
11 Smith testified that at a Local 147 meeting on October 27, 2019, Bacquie approached him and told him
to “be careful what you say,” or “watch what you say.” Tr. 606. Smith testified that he assumed Bacquie
was referring to the hearing in the instant case, and shook his head and walked away. Tr. 607.
JD(NY)-03-20
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On September 25, Richard Fitzsimmons, Sr. wrote to Bacquie acknowledging
receipt of his September 19 letter. Tr. 78-79. G.C. Ex. 9. Richard, Sr. stated that
Bacquie’s letter would be addressed at the next Executive Board meeting on October
28, and the Board’s findings would be communicated to Bacquie in writing the following
day. G.C. Ex. 9. On September 26, Bacquie e-mailed a copy of his September 19,
2018 letter, with minor grammatical corrections, to the e-mail address of Richard, Sr.
which appeared on his letter to Bacquie. Tr. 79-82; G.C. Ex. 10. On September 27,
Chris Fitzsimmons sent Bacquie an e-mail regarding the documents Bacquie had
requested, attaching his own March 8, 2016 e-mail discussed previously:
Please see the e-mail with the document request from 2016. The
new contract that was ratified on Sunday is still in draft form, so I am
unable to distribute at this time. Once the General Contractor Association
finalizes and prints copy I will forward it at your request. Rich has sent
you a response to your later Dated September 23, 2018. I will now put
your most recent letter on the agenda for the next Executive Board
Meeting and a response will be mailed to your address on record the
following business day. You were advised of the changes to the contract
at the last meeting which you attended, approved ratified.
Tr. 461-462, 465, 468-471; R.S. Exs. 5, 10.
On October 2, Bacquie sent another e-mail to Richard Fitzsimmons, Sr., stating
that he never asked for an investigation by the Executive Board, “as I was never made
clear their authority and who they are.” Tr. 91-92, 94; G.C. Ex. 11(a). Bacquie further
stated that “If you, your son are part of this board along with your brother and any other
affiliate who allowed the violations mentioned then there is a definite conflict of interest
issue here legally.” G.C. Ex. 11(a). Bacquie stated that he had not received any of the
materials he had requested, and stated that “the administration seeks to hinder the
possession of these documents.” G.C. Ex. 11(a). On October 5, Richard, Sr.
responded, stating that all grievances regarding the Union and its representatives,
including Bacquie’s, are referred to the Executive Board for a review and response. Tr.
91-92, 94; G.C. Ex. 11(b). Richard, Sr. invited Bacquie to forward any additional
concerns to him in writing, for submission to the Executive Board. G.C. Ex. 11(b).
On October 9, Bacquie e-mailed Richard Fitzsimmons, Sr., stating that his
correspondence was “not and should not be treated as a grievance since I have not
been given proper grievance policy and procedure after several attempts to obtain
such.” Tr. 96-98, 101; G.C. Ex. 12. Bacquie stated that if he did not receive the
documents he requested the following week, he would “file appropriately with the
needed government agency, as I have been threatened by you and your family and
openly denied further employment.” G.C. Ex. 12. Bacquie concluded, “This is the third
time I have been threatened, I will take this a sense for extreme precision from this point
on, as the words “I am DEAD” came from the mouth of your son the SGT at Arms
Richard Fitzsimmons Jr.” G.C. Ex. 12. On October 17, Bacquie sent a letter to Local
147 by e-mail and regular mail, stating that his letters did not constitute grievances,
JD(NY)-03-20
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since he was not aware of the grievance process. Tr. 98-101; G.C. Ex. 13. Bacquie
further stated that he had not received any of the documents he requested except for a
collective bargaining agreement dated 2014. G.C. Ex. 13
On October 18, Cindy Fitzsimmons responded for Local 147, stating as follows:
I am in receipt of your October 17, 2018 e-mail and recent letter. I
would like to reiterate that you have been emailed the 2014 to 2018
contract. The 2018-2022 final draft has not been distributed yet from the
General Contractor Association as it was ratified at the last meeting. I
have reached out to GCA and will provide you with a copy as soon as it is
finalized. You have also been sent a link in prior emails for the LIUNA
Constitution w which contains bylaws, officer duties, and grievance
procedures. You can also find the entire constitution online if you are
unable to follow the link. Your communications to the Local Union have
been place on the agenda for the next Executive Board meeting and will
be addressed accordingly.
G.C. Ex. 12. On that same day, Chris Fitzsimmons forwarded Bacquie an e-mail from
John Murray of the GCA, stating “RE: Agreement,” and “we are still in the process of
reviewing the draft and will send comments/feedback when finished.” Tr. 101, 471-473;
G.C. Ex. 13; R.S. Ex. 11. Chris Fitzsimmons testified that he forwarded the e-mail from
Murray to show Bacquie that the GCA was still working on the language for the
successor agreement. Tr. 471-472. Bacquie sent an e-mail to Chris Fitzsimmons in
response stating:
This is in regards to which matter?
And for the record, there are no other policies, codes of conduct, terms,
contracts and/or but not limited to documents regarding the members of
local 47 employment, family matters, funds, children and/or sibling
membership, deceased parents resulting in on job incidents etc.?
The only documents afforded is the collective bargaining agreement
between the membership? and the General Contractors Association?
Tr. 101-104; G.C. Ex. 14; R.S. Ex. 11. On October 19, Chris Fitzsimmons responded
as follows:
This is in regard to the current agreement between the GCA and Local
147 which was ratified at the last meeting. I have attached the Uniform
Local Union Constitution from the International Constitution (The link to
the documents was sent on at least two prior occasions). Please
reference Article XI for charges, trials and appeals. Please direct future
correspondence to Recording Secretary Gerard Schnell and President
John Ryan in accordance with Article XI, Section 1.
JD(NY)-03-20
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G.C. Ex. 14; see also Tr. 473-475, 478; R.S. Ex. 12. Ten minutes later, Bacquie sent
Chris Fitzsimmons an e-mail requesting contact information for Schnell and Ryan, and
fifteen minutes after that, Chris sent Bacquie addresses for Schnell and Ryan at the
Local 147 office. G.C. Ex. 14.
Bacquie testified that some time in October 2018 he went to the Local 147 office,
where Chris Fitzsimmons and John Ryan were present. Tr. 107. Bacquie asked Chris
where the out-of-work list was, and Chris directed him to a stand with a book where he
filled out his information. Tr. 41, 107, 330-331. Bacquie testified that he told Chris that
they needed to have a civil exchange about the letter, and Chris said you could be
recording me. Tr. 107-108. Bacquie stated that he was in fact recording them. Tr. 108.
Ryan then said that he talked to the Regional Director and told the Regional Director
that he liked Bacquie and didn’t understand what was going on. Tr. 108. Bacquie
responded that they needed to talk about the letter, and Ryan said that they could not
do so. Tr. 108. Chris Fitzsimmons, who was then sitting at a nearby desk, stated that
Bacquie and Ryan were making too much noise for him, and told Bacquie to get out.
Tr. 108. Bacquie stated that it was his union hall also. Tr. 109. Bacquie testified that
Chris made a statement to Ryan about getting Bacquie to leave, and Bacquie said to
Ryan, “What are you his puppet?” Tr. 109. According to Bacquie, he then called Chris
an asshole, and Chris did not respond. Tr. 109. Ryan and Bacquie then walked
outside.
Once outside, Bacquie turned off his recording device, and told Ryan, “we really
need to talk about the letter.” Tr. 109. Ryan said that they could not talk about the letter
because it would “rile guys up.” Tr. 109. Bacquie said that if people became upset it
was Ryan and the Sergeant-at-Arms’ job to keep them in check. Ryan said that they
could not discuss the letter that day, and Bacquie said that he was going to bring it up at
the meeting. Tr. 110. According to Bacquie, Ryan then said that if things got riled up
he was going to throw people out of the Union, and Bacquie responded that the
Business Manager would be the one getting riled up. Tr. 110. Bacquie referred to his
having been threatened at the September 23 meeting, stating that “once we talk about
this letter, he’s not going to stop. It’s only going to get worse…you need to talk to him
so that way we can have a civil conversation.” Tr. 110. At that point Ryan said that he
needed to leave for a prior engagement, and the conversation ended. Tr. 111.
E. The October 28 Union Meeting
The October 28 union membership meeting also took place at the Teamsters
meeting hall of 14th Street. Tr. 111. The Local 147 Executive Board members were
present, including Ryan, Chris Fitzsimmons, and Richard Fitzsimmons Sr. and Jr. Tr.
111-112, 553. Local 147 member Tyrone Wallace made a recording of this meeting
using Bacquie’s phone, at Bacquie’s direction. Tr. 193-195, 271. A copy of the
recording and a transcript prepared by General Counsel were introduced into evidence
during the hearing. Tr. 214; G.C. Ex. 17(a-b). During the meeting, Wallace was sitting
at the front of the hall, while Bacquie stood at the back. Tr. 195-197. Wallace testified
JD(NY)-03-20
15
that he recorded the meeting continuously, without turning off the phone, pausing, or
editing the recording. Tr. 269-271-272. He returned the phone with the recording to
Bacquie after the meeting ended. Tr. 271-272.
The recording begins with Richard Fitzsimmons, Sr.’s discussion of routine union
business. After approximately one-half hour, Richard Sr. addressed the union’s policy
prohibiting the recording of meetings.12 G.C. Ex. 17(a) at 34:45-36:45; G.C. Ex. 17(b) at
p. 1-2; R.S. Exs. 4. During this portion of his presentation, Richard Sr. states that the
union leadership was “always going to take the high road.”
After Richard Sr. concluded the Business Manager’s presentation, Ryan opened
the floor to questions from the members, and the following exchange ensued:
Bacquie: Yeah, I have a question, uh. I sent a letter in, say in a
September and it was addressed to the executive board. I also want to
address about the recordings: what you said about the recording is
untrue. It’s also not the right law that you’re bringing up but I’m not here to
debate with you about that. What I do want to know is what the executive
board came up with in regards to that letter that I sent you. And just for
everybody’s own two cents. I sent the letter in asking for equality, some
fairness, some fucking equal treatment.
Richard Fitzsimmons, Sr.: He opened it.
Bacquie: This is what I sent the letter in for. I wasn’t trying to be an
asshole, wasn’t trying to be disrespectful or nothing. The situation
happened between me and Chris. We had a discussion about the letter
before it even got to the office. Am I correct on that?
Richard, Sr.: Um, I’m not going to start doing time frames.
Bacquie: Does it seem like…
Richard, Sr.: I’m just going to agree with you.
Bacquie: It seems like Chris got into his feelings and then things
transpired between the rest of the family members.
Richard, Sr.: I don’t even have a clue what you are talking about, Rich.
12 On March 29, 2019, Bacquie amended the charge in Case No. 2-CB-231600 to include an allegation
that Local 147 violated Section 8(b)(1)(A) by threatening legal action against members for making audio
recordings of Union meetings. G.C. Ex. 1(c). The Regional Director approved a request to withdraw that
allegation by letter dated May 2, 2019. R.S. Ex. 1. There is no evidence that Bacquie was disciplined by
Local 147 for recording the September 23 or October 28 membership meetings.
JD(NY)-03-20
16
G.C. Ex. 17(a) at 54:36-55:44; G.C. Ex. 17(b) at 3. Joseph Fitzsimmons then broke in,
asking, “What’s not fair Rich, just tell us,” and Richard Sr. admonished him, stating, “I’m
going to tell you something, Joe, please, he’s addressing me.” G.C. Exs. 17(a), 17(b) at
3. Chris Fitzsimmons concurred, stating, “Let him speak, let him speak, he’s talking.”
G.C. Exs. 17(a), 17(b) at 3. Bacquie stated, “You said you we’re [sic] going to throw
people out if it got out of hand,” and Richard Sr. responded, “We’re straight with it.
We’re talking right now,13 Rich. I…Corrected. Go ahead, Rich.” G.C. Exs. 17(a) at
56:02; G.C. Ex. 17(b) at 3.
The following exchange ensued:
Bacquie: I wasn’t trying to get stupid with anybody, with anybody here. I
was actually pretty cordial with Chris although he thinks another facet of it
happened. And other things were said to me that were damaging, I’m
going to say that. But again, I was looking for some things, some equality.
The points in that letter were never addressed by me in detail by me at all.
Richard Fitzsimmons, Sr.: That’s why we never addressed it.
Bacquie: So, you’re not going to address it?
Richard, Sr.: No, until you give us some detail. You just said it yourself.
Bacquie: Alright, I’ll send another letter.
Chris Fitzsimmons: Rich, Rich, May I?
Richard, Sr.: yeah.
Chris: You communicated us via certified mail?
[Crosstalk]
Chris: …with the Union via certified mail?
Bacquie: Uh, yeah, that’s right. However, I have two communications
from you guys stating that you were going to address it here today.
Chris: No, no, at the executive board, this is a regularly [sic] membership
meeting. In the letter that I sent you I told you…
Richard, Sr.: Yeah, we took care of it at the executive board meeting.
13 Richard Fitzsimmons, Sr.’s statement here is transcribed as, “We’re letting you talk, right now, Rich,”
but after listening to the recording multiple times the statement is more accurately conveyed in the text
above.
JD(NY)-03-20
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Chris: Hold on, I said that we will communicate with you in writing the next
business day. I have the letter with me, you do want me to share it with
the members.
Bacquie: Yeah, why not?
Richard, Sr.: OK, bring it up Chris.
Bacquie: Yeah, why not share it [with] the members, why don’t you read it
off to them.
Richard, Sr.: Read it off.
Bacquie: So, you can have a better idea of what I was stating in the
letter…of the letter that I gave. And please read the letter in its entirety.
Richard, Sr.: Chris, I wouldn’t do that, we answered him as an executive
board.14
Bacquie: Alright, then I’ll read the letter off.
Richard, Sr.: Uh, Rich, I [sic] going to tell you…
Bacquie: I’m asking for the floor.
Richard, Sr.: Rich, Rich, I’m telling you the executive board addressed it,
it’s been, naw, it’s done in a…
Bacquie: Are you telling me no? Are you telling me no?
Richard, Sr.: You can do it through writing. And this isn’t a nomination or
a convention or anything…
Bacquie: …nomination, listen, one thing you’ve got to…
[Crosstalk
Chris: Keep it to the business at hand. Is this into reference anything that
was discussed at the…
Bacquie: Can I finish speaking?
Chris: Go ahead.
14 Richard Fitzsimmons, Sr. was not at this point speaking in a raised voice, as Bacquie contended in his
testimony. Tr. 113-114.
JD(NY)-03-20
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G.C. Ex. 17(a) at 56:06-58:04; G.C. Ex. 17(b) at 3-5.
At that point, Richard Fitzsimmons, Sr. broke in, stating, “This is four meetings
you disrupted, Rich.” G.C. Ex. 17(a) at 58:05; G.C. Ex. 17(b) at 5. Bacquie responded,
“Matter of fact, go ahead and name them. Did you log that down? Did your secretary
log that down when I got attacked?” G.C. Ex. 17(b) at 5. Richard Sr. then stated, “”I’m
going to tell you guys something. I wasn’t going to do this. Do you guys know that
Richie’s working currently, with us?”15 G.C. Ex. 17(a) at 58:20; G.C. Ex. 17(b) at 5.
Richard Sr. and Chris Fitzsimmons stated that the Union had received reports indicating
that Bacquie had worked in July, August and September 2018. G.C. Ex. 17(b) at 5.
Bacquie responded, “Am I?” and “I’m not…” Richard Sr. called Bacquie a “lying s[]ack
of shit,” and Bacquie stated that he was “not working right now.” G.C. Ex. 17(b) at 6.
Richard Sr. stated that Bacquie possibly wanted “to trip this membership up because of
your own anger,” and reported that Bacquie made “2.2 million dollars in the last ten
years,” during which he had purportedly experienced discrimination in referrals. G.C.
Ex. 17(b) at 6. Bacquie asked Richard Sr. how much he earned, and Richard Sr.
responded, “It’s on the fucking internet!” Bacquie then asked Ryan and Richard
Fitzsimmons, Jr. to “check” Richard Sr. because “You’re cursing now. I find that
disruptive.” G.C. Ex. 17(a) at 59:18; G.C. Ex. 17(b) at 6. Chris Fitzsimmons read the
members Bacquie’s reported hours for September 2018, during a period of time when
members were calling in every three months to be place on the out-of-work list, and
Richard Sr. and Bacquie continued to argue the issue. G.C. Ex. 17(b) at 7. Bacquie
and Richard Sr.’s voices become increasingly louder and their tone becomes more
agitated during this exchange. G.C. Ex. 17(a) at 59:38, et seq.; G.C. Ex. 17(b) at 7.
Richard Fitzsimmons, Sr. then told Bacquie that on Thursday “You came to the
union hall, kissing ass,” and Bacquie responded, “Oh, you’re going to make this lawsuit
great.” G.C. Ex. 17(a) at 1:00:02; G.C. Ex. 17(b) at 7. Bacquie then stated, “Wait, you
want to hear the recording?” and Richard Sr. responded, “You could record whatever
you want.” G.C. Ex. 17(a) at 1:00:12; G.C. Ex. 17(b) at 7. Joseph Fitzsimmons then
broke in and yelled, “You bring recorders into the fucking meeting?” and Richard Sr.
responded, “Shut Up!” G.C. Ex. 17(a) at 1:00:17; G.C. Ex. 17(b) at 7. Bacquie testified
that Joseph Fitzsimmons “walked up to me aggressive,” “in a threatening manner” as he
made this statement. Tr. 114-115. Ryan and Chris Fitzsimmons then broke in, stating,
“Alright, alright, enough, enough,” and “Bring it back to order,” respectively. G.C. Ex.
17(b) at 7-8. However, before the meeting could resume in an orderly fashion, the
recording contains multiple, muffled voices speaking simultaneously, one of which
states, “You’re done.”16 G.C. Ex. 17(a) at 1:00:43; G.C. Ex. 17(b) at 8. Bacquie
15 The evidence establishes that at the time of the September 23 and October 28 meetings only eight to
ten members of Local 147 were employed in jobs covered by the Union’s collective bargaining
agreements. Tr. 493-495. The number of members out of work was a significant issue for the Union,
repeatedly mentioned during the membership meetings. See, e.g., Tr. 493-495; G.C. Ex. 17(b) at 1.
16 General Counsel contends that this is the voice of Richard Fitzsimmons, Jr., while Local 147 claims that
it is not. G.C. Post-Hearing Brief at 15, 31; R.S. Post-Hearing at 7-8. Having listened to the recording
multiple times and heard Richard Jr.’s voice in person at the hearing, I am unable to determine whether
the voice which states, “You’re done” at 1:00:43 on the recording of the October 28 meeting is that of
Richard Fitzsimmons, Jr.
JD(NY)-03-20
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testified that at that point, Richard Fitzsimmons, Jr. told him, that he was “out of the
fucking Union” and would “never work again,” a statement which is not audible on the
recording of the meeting and does not appear in the transcript. Tr. 115.
Richard Fitzsimmons, Jr. testified that he attended the October 28 meeting, and
stood by the door closest to the podium, initially about ten to 25 feet from Bacquie. Tr.
572-573. Richard Jr. testified that he did not threaten Bacquie or any other member
that they would no longer obtain employment, including via the loss of union
membership, during the meeting. Tr. 574-575. Chris Fitzsimmons also testified that he
attended the October 28 meeting, and was at the left of the room approximately five to
ten feet from Bacquie and Richard Fitzsimmons, Jr. Tr. 495-496. Chris Fitzsimmons
testified that Richard, Jr. did not threaten Bacquie that he would no longer obtain
employment, including as the result of a loss of membership in the union, during any of
the interactions which took place at the meeting. Tr. 495-496.
After the meeting resumed, Richard Fitzsimmons, Sr. described certain of
Bacquie’s social media posts, characterizing them as “anti-white,” “anti-Catholic” and
“anti-American,” and speculating that such material could have a detrimental impact on
the Union. G.C. Ex. 17(a) at 1:00:45, et seq.; G.C. Ex. 17(b) at 8-9. After arguing
regarding the social media material, Richard Sr. and Bacquie proceeded to vociferously
dispute Bacquie’s history with the Union before resuming a contentious discussion of
Bacquie’s recent work which again descended into chaos. G.C. Ex. 17(a) at 1:03:13, et
seq.;17 G.C. Ex. 17(b) at 8-11.
Eventually, Local 147 member Sean Bishop stated, “Hey Chris, who’s taking the
high road here, man?” and the following exchange ensued:
Bacquie: …don’t act like that.
Ryan: It’s over, enough, enough.
Richard Fitzsimmons, Sr.: Act like your fucking balls. You attack me, my
family, my fucking credibility!
Unidentified male voice: It’s alright.
Bishop: What goes around comes around.
Richard Sr.: What are you talking about?
Bishop: That’s not the way, man. Who’s taking the high road here, guys?
Richard Sr.: Sean, Sean, Sean…
17 It is not clear from the recording and the transcript whether Richard Fitzsimmons, Sr. is referring to
Bacquie or member Orville Hodgeson as “a little fucking instigator” during this exchange. G.C. Ex. 17(a)
at 1:03:15-1:03:34; G.C. Ex. 17(b) at 9-10.
JD(NY)-03-20
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[Crosstalk]
Bishop: Yeah, but who’s taking the high road, Rich…you’re taking it so
personal now. It’s not a personal thing.
Richard Sr.: It’s so personal, he called the international union. We’ve
given him everything!
Bishop: Richie, you just said, Richie you just said the board is going to
take the high road.
Richard Sr.: We are: we’re not throwing him out of the union!
G.C. Ex. 17(a) at 1:07:38-1:08:12; G.C. Ex. 17(b) at 13.
Following additional heated discussion primarily involving Bacquie and Richard
Fitzsimmons, Sr., Chris Fitzsimmons made a report regarding Union financial issues,
after which the hearing adjourned. G.C. Ex. 17(b) at 14-16.
F. Events Subsequent to the October 28 Union Meeting
On October 29, Richard Fitzsimmons, Sr. wrote to Bacquie stating as follows:
The Executive Board of Local 147 has reviewed your letter dated
September 19, 2018 wherein you have listed concerns.
The Board has determined there are no specific details as to the
events which give rise to the alleged complaints.
Without specific details as to how you as a member were harmed,
the Board cannot determine the validity of the complaint nor how to correct
the alleged violation.
The Board requests specific details from you as to event[s] that
occurred which is reason for your complaint.
Upon receipt of the information the Board will review same and
respond to you.
Tr. 126; G.C. Ex. 15.
JD(NY)-03-20
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III. Decision and Analysis
A. The Alleged Agency Status of Richard Fitzsimmons, Jr.
The Amended Complaint alleges at Paragraph 4 that Richard Fitzsimmons, Jr.
was at all material times an agent of Local 147 pursuant to Section 2(13) of the Act.
General Counsel makes two arguments in support of this allegation, contending that
Richard Jr. is a general agent of Local 147 based upon his actual authority as Sergeant-
at-Arms, and that Richard Jr. had apparent authority to engage in conduct on behalf of
Local 147 at the membership meetings. Post-Hearing Brief at 26-29. Local 147
contends that Richard, Jr. is not an agent of the Union. Post-Hearing Brief at 13, fn. 9.
The record evidence establishes that Richard Fitzsimmons, Jr. is an agent of
Local 147. At all material times, Richard, Jr. was Local 147’s Sergeant-at-Arms, and
therefore a member of the Union’s Executive Board. It is well-settled that the “holding of
elective office” constitutes “persuasive and substantial evidence” of agency status“
which is “decisive absent compelling contrary evidence.” Security, Police and Fire
Professionals of America (SPFPA) Local 444, 360 NLRB 430, n. 1, 436 (2014) (“The
Board regularly finds elected or appointed union officials to be agents of that
organization”); see also Teamsters Local 705 (K-Mart), 347 NLRB 439, 441 (2006).
Pursuant to the Union’s Constitution, the Executive Board constitutes the Union and
conducts its business between meetings, serves as a trial board to hear and determine
charges against members, hires Field Representatives and Organizers, and ensures
that the Union’s business is being conducted in accordance with the Constitution. The
Board has determined that a member of a similarly empowered Executive Board was an
agent of the Union pursuant to Section 2(13). IBEW Local 453 (NECA), 258 NLRB
1427 (1981), enf’d. 696 F.2d 999 (8th Cir. 1982). Local 147’s contention that Richard,
Jr. was not an agent of the Union because he is a non-voting member of the Executive
Board is not convincing in this context. See IBEW Local 453 (NECA), 258 NLRB at
1427-1428 (finding that Executive Board member’s “inactive” status did not obviate his
authority and status as an agent of the union).
I further find that Richard Fitzsimmons, Jr. had apparent authority to act as an
agent of Local 147 at the September 23 and October 28 membership meetings.
Pursuant to the Local 147 Constitution, Richard, Jr., as the Sergeant-at-Arms, was
responsible for determining “the right of those who shall be permitted to enter the
meeting hall,” and for “execut[ing] such orders received from the President of the
maintenance of order and decorum at meetings.” G.C. Ex. 4, p. 86. Richard, Jr.
testified that the Sergeant-at-Arms maintains order at meetings by issuing two warnings
to disruptive individuals, and ejecting those who fail to comply with his directives.
Furthermore, it is undisputed that many of the other Local 147 Executive Board
members were present during both the September 23 and October 28 meetings,
several of whom are members of the Fitzsimmons family. See Electrical Workers Local
45, 345 NLRB 7 (2005) (shop steward had apparent authority to act on Union’s behalf
while running meeting together with union business representative); Automotive & Allied
Industries Local 618 (Sears, Roebuck & Co.), 324 NLRB 865 (1997) (daughter of
JD(NY)-03-20
22
union’s chief executive officer who “routinely” responded to members’ questions
regarding dues had apparent authority to speak for the union with respect to such
issues). The evidence therefore establishes that Richard, Jr. had apparent authority to
act on behalf of the Union during the meetings at issue here.
B. The Alleged Threats Made By Richard Fitzsimmons, Jr.
1. General principles governing credibility determinations
Evaluating the critical issues of fact in this case requires an assessment of
witness credibility. Credibility determinations involve consideration of the witness’
testimony in context, including factors such as witness demeanor, “the weight of the
respective evidence, established or admitted facts, inherent probabilities, and
reasonable inferences drawn from the record as a whole.” Double D Construction
Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001), enf’d.
56 Fed.Appx. 516 (D.C.Cir. 2003); see also Hill & Dales General Hospital, 360 NLRB
611, 615 (2014). Corroboration and the relative reliability of conflicting testimony are
also significant. See, e.g., Precoat Metals, 341 NLRB 1137, 1150 (2004) (lack of
specific recollection, general denials, and comparative vagueness insufficient to rebut
more detailed positive testimony). It is not uncommon in making credibility resolutions
to find that some but not all of a particular witness’ testimony is reliable. See, e.g., Farm
Fresh Co., Target One, LLC, 361 NLRB 848, 860 (2014).
In making credibility resolutions here, I have considered the witnesses’
demeanor, the context of their testimony, corroboration via other testimony or
documentary evidence or lack thereof, the internal consistency of their accounts, and
the witnesses’ apparent interests, if any. Any credibility resolutions I have made are
discussed and incorporated into my analysis herein.
2. General conclusions regarding witness credibility
General Counsel presented two witness to substantiate the Amended
Complaint’s allegations – Richard Bacquie and Tyrone Wallace. Local 147 presented
four witnesses in support of its defense – Chris Fitzsimmons, Richard Fitzsimmons, Jr.,
Thomas J. Smith, and Michael Hunter.
Based upon the entire record and my observations of the witnesses, I simply
cannot find that Richard Bacquie was a credible witness overall. The evidence
establishes that Bacquie made recordings of the two different incidents during which the
unlawful threats allegedly occurred, one with a recording device physically on his
person. However, despite the raised voices and shouting which characterize both
incidents, neither of these recordings contain the statements alleged to be unlawful, nor
do the transcripts of the recordings prepared by General Counsel. G.C. Exs. 16(a-b),
17(a-b). It is true that at some points in the recordings individuals are speaking
simultaneously, and it is difficult to clearly discern all of the different statements being
made. However, Bacquie’s contradictory and sometimes unsubstantiated testimony
JD(NY)-03-20
23
regarding the accuracy of the recordings, his own recollection of the incidents, and the
discrepancies between them does not inspire confidence in his contention that the
unlawful threats actually occurred. At times, Bacquie’s testimony was flatly belied by
the recordings themselves. For example, when testifying regarding the September 23
meeting, Bacquie claimed that Joseph Fitzsimmons’ statement, “You’re dead; you’re
done in this Union” was actually audible on the recording at 53:45, although it was not
transcribed. Tr. 393, 396-397; G.C. Ex. 16(a-b). Having repeatedly listened to the
audio recording in evidence as General Counsel’s Exhibit 16(a) at and around 53:45, it
is simply not the case that this statement is audible, as Bacquie asserts.18 Later in his
testimony, Bacquie contended that the transcript entered into evidence as General
Counsel’s Exhibit 16(b) “has some typos,” despite his admission that he had the
opportunity to review the transcript, and ostensibly to correct any inaccuracies. Tr. 394-
395, 436-438. More importantly, however, listening repeatedly to the recording of the
September 23 meeting establishes that the specific “typos” which Bacquie purportedly
identified in the transcript19 are not in fact errors at all. Tr. 436-438; G.C. Ex. 16(a-b).
Bacquie also made contradictory assertions regarding the recordings and his
independent recollection, variously claiming that the recordings are more accurate than
his memory and that the recordings contain every factual detail of the September 23
and October 28 meetings to which he had testified.20 Tr. 378, 392-393. These are far
more serious issues involving recollection, and ultimately credibility, than a mere failure
to recall the exact sequence of events, as Bacquie and General Counsel claim. Tr. 378,
392; G.C. Post-Hearing Brief at 17-18. They reflect poorly not only upon Bacquie’s
recollection but his capacity for truthfulness, and undermine his credibility overall.
Bacquie’s testimony was also at odds with the documentary evidence, and he
altered his assertions repeatedly regarding such issues. For example, Bacquie claimed
that he had never read the Union’s Constitution and By-Laws, despite having requested
them in writing in at least two heated exchanges with Local 147. Tr. 301; G.C. Exs. 8,
11(a), 12, 13; R.S. Exs. 5, 10. He initially claimed that this was because he had never
received the Constitution. Tr. 301-302. When asked whether Chris Fitzsimmons
informed him that he could obtain the Constitution through the LIUNA website, Bacquie
said that he never attempted to do so because Chris did not provide him with the
hyperlink. Tr. 302. When confronted with Chris’ March 8, 2016 e-mail providing a
hyperlink to the LIUNA website for the Constitution, Bacquie countered that Chris had
not done so “recently,” but then stated that “It’s possible” that his testimony was
18 In addition, in his October 9 e-mail to Richard Fitzsimmons, Sr., Bacquie claimed that Richard
Fitzsimmons, Jr., as opposed to Joseph Fitzsimmons, told Bacquie, “You’re dead.” G.C. Ex. 12.
19 Bacquie claimed that Thomas J. Smith did not say, “Rich, you’re going to get locked up,” and that his
own statement, “I’m going to tell them this is how stupid they are. I recorded the whole thing” were
inaccurately transcribed. Tr. 436-438.
20 Bacquie also cast doubt on the quality of his own memory and capacity for accurately recollecting the
events at issue here. When questioned on cross-examination regarding his independent recollection of
the September 23 meeting, Bacquie vounteered, completely unprompted, “Also I’d…like to note that
when we [talk] about memory, I was assaulted by six cops, kicked in the head, so sometimes I might not
all – but I took testing that would prove otherwise.” Tr. 400-405. Bacquie went on to contend that “My
memory is pretty much intact” according to testing performed around the time of that incident in 2014. Tr.
405-407. Nonetheless, Bacquie himself raised the possibility that his memory had been impaired in
response to questions regarding his independent recollection of the meetings.
JD(NY)-03-20
24
incorrect. Tr. 302-303; R.S. Ex. 10. Later, Bacquie again denied receiving a hyperlink
leading to the Constitution and By-Laws, despite having been repeatedly sent one by
Local 147. Tr. 314; G.C. Ex. 12; R.S. Ex. 5, 10. Finally, Bacquie was confronted with
Chris Fitzsimmons’ September 27 e-mail resending him the March 8, 2016 e-mail,
which contained a hyperlink and instructions for locating the Constitution on the LIUNA
website. Tr. 316-317; R.S. Ex. 5. While Bacquie claimed that he deleted the
September 27 e-mail from his account and did not provide it to General Counsel,
General Counsel immediately represented that Bacquie had in fact produced that e-mail
in response to Local 147’s Subpoena. Tr. 317-318; R.S. Ex. 5. Bacquie then claimed
that he had not read the By-Laws, because although he had reached the LIUNA
website, “It’s very hard to find material,” despite the explicit instructions for locating the
Constitution and By-Laws contained in the Union’s letters. Tr. 315, 319-320; G.C. Ex.
12; R.S. Exs. 5, 10. Bacquie’s repeatedly mutating contentions with respect to his own
correspondence and document requests evince a propensity for untruthfulness and cast
doubt upon the overall reliability of his testimony.
Bacquie also repeatedly offered speculative testimony and conjecture regarding
events and the thoughts and motivations of other individuals which were clearly beyond
his personal knowledge, even on direct examination. For example, Bacquie testified
that in 2014, the President of Frontier-Kemper prevented him from being hired in
connection with some sort of affirmative action effort that he was in fact entitled to
participate in. Tr. 36-39. With respect to Local 147’s process for selecting union
officers, Bacquie claimed “there hasn’t been one person there that’s nominated,” “either
their father …appointed them…and then what happens is that they asked for two
members to approve the appointment,” despite documentary evidence that the Union
followed a nominations process. Tr. 47; G.C. Ex. 4, p. 91-98; G.C. Ex. 5. Thus,
Bacquie had to be repeatedly directed to respond to questions solely based upon his
personal knowledge. Tr. 64-65, 89.
Finally, Bacquie was not merely evasive but obstreperous and combative with
Local 147’s counsel from the second question asked of him on cross-examination, when
Bacquie refused to admit that he received Local 147’s Subpoena, and then refused to
admit that he ever read it. Tr. 275. When Bacquie was asked a short while later
whether he had a problem with authority, he responded, “Why would you say that? Do
you figure yourself as authority? Did I have a problem with you? I don’t understand the
question. Please elaborate.” Tr. 304. Cross-examination regarding Respondent’s
Exhibit 4, Local 147’s policy prohibiting the recording of membership meetings,
devolved into a metaphysical conundrum:
Q: Okay. So it doesn’t refresh your recollection –
A: No, sir.
Q: -- of having knowledge of the fact that there is a policy against
recording?
JD(NY)-03-20
25
A: I was never given that, in hand, no.
Q: I didn’t ask you if you were given it in hand.
A: Excuse me, sir.
Q: I asked you if you had knowledge of the policy.
A: To have knowledge of the policy – there was – no. I did not have
knowledge of the policy because someone said something. No. That’s
not knowledge of.
Q: So somebody tells you we have a policy against recording, that
doesn’t establish that there is a policy, right?
A: That does not establish there’s a policy.
Q: So in your mind, were told there’s a policy, but you said because I
don’t see it in writing, there is no policy?
A: Because I don’t see it in writing, it’s not a policy
* * *
Q: Okay. And did you ask – well, you already said because you didn’t
see it, it didn’t exist in your mind, correct?
A: Not in my mind. It doesn’t exist. If you don’t see something in writing,
does it exist in your mind if you don’t see it in writing?
Tr. 310-311. My multiple directives to Bacquie to simply answer the questions posed to
him had no impact whatsoever. Tr. 311, 355, 360, 391, 453; see, e.g., Tr. 313-314. In
fact, Bacquie proceeded to deploy this sort of rhetorical jujitsu when questioned
regarding his own affidavit, creating a stand-off over a mundane and rudimentary issue
which ultimately required my intervention:
Q: …Mr. Bacquie, when you came to the NLRB on one occasion or on
many occasions, were you asked to sign an affidavit?
A: A blank affidavit, no.
Q: Were you asked to sign an affidavit?
A: A blank affidavit, no.
Q: Were you asked to sign an affidavit?
JD(NY)-03-20
26
A: Your question is broad, overbroad. So again, a blank affidavit, no.
Q: Just again, do you know what an affidavit is
A: Please elaborate. I’m not an attorney.
Q: What is your perception of an affidavit?
A: A legal document.
Q: That has what on it?
A: A legal document that will be presented to the court.
JUDGE ESPOSITO: Are you asking him about the affidavit he gave in
this case. Were you – did you prepare an affidavit with the Board agent
and sign it
THE WITNESS: He prepared it. He prepared some documents –
JUDGE ESPOSITO: Right.
THE WITNESS: -- asked me to sign them, yes, Your Honor.
Tr. 384-385. Bacquie’s consistent refusal to respond in a straightforward manner to the
questions posed to him on cross-examination further undermines his credibility and the
reliability of his testimony.
It is important to note that in evaluating Bacquie’s credibility as a witness, I have
not considered certain evidence which Local 147 argues is relevant for the purposes of
impeachment. In particular, Bacquie’s conviction in 2002 for fraud and related activity in
connection with an access device has not entered into my analysis. See Tr. 325-326,
328-329, 348-349. Pursuant to Federal Rule of Evidence 609(b), where a witness’
conviction and release from confinement took place more than ten years prior to the
testimony at issue, the conviction is admissible “only” where its “probative value,
supported by specific facts and circumstances, substantially outweighs its prejudicial
effect.” See also Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2nd Cir. 1993)
(convictions over ten years old admitted only “very rarely and in exceptional
circumstances”). The evidence here indicates that Bacquie pled guilty to producing,
selling, or possessing access devices configured to obtain telecommunications services
without authorization, “knowingly and with intent to defraud,” as part of a conspiracy. Tr.
325-326, 348-349; see 18 U.S.C. §§ 1029(a), 1029(b)(2), 1029(c)(1)(A)(ii). Local 147
therefore correctly contends that this conviction involves “a dishonest act or false
statement” on Bacquie’s part pursuant to FRE 609(a)(2). In addition, Local 147
reasonably asserts that a determination in the instant case is almost entirely dependent
JD(NY)-03-20
27
upon Bacquie’s credibility, and that the federal courts have admitted over-aged
convictions in such circumstances. See, e.g., U.S. v. Payton, 159 F.3d 49, 57-58 (2nd
Cir. 1998) (witness’ overage conviction for making a false statement under oath and
larceny admissible where her testimony was “critical” to the outcome); Zinman, 984 F.2d
at 433-434 (overage conviction for Medicare fraud admitted where credibility “highly
relevant to several disputed issues in the case”). However, here there is sufficient
information to make a resolution as to Bacquie’s credibility based
upon Bacquie’s testimony, the recordings of the September 23 and October 28
meetings with their transcriptions, and other documentary evidence, as detailed
above. Such material is substantially more probative with respect to the overall
reliability of Bacquie’s testimony in this case than his 2002 conviction involving a
dishonest act or false statement. As a result, given that fifteen years have passed since
the conviction and the release date, I find that overall the probative value
of Bacquie’s 2002 conviction with respect to his credibility as a witness is
negligible.21 See U.S. v. Babb, 874 F.3d 1027, 1029-1030 (8th Cir. 2017) (evidence of
conviction cumulative given other evidence pertinent to witness’ credibility); U.S. v.
Wilson, 715 F.2d 1164, 1173 (7th Cir. 1983) (same).
General Counsel also presented Tyrone Wallace as a witness in support of the
Amended Complaint’s allegations. However, I cannot find that Wallace’s testimony is
reliable for the purpose of establishing the alleged violations. Wallace was asked
whether he attended a Local 147 meeting in September 2018, and subsequent
questions on direct examination ostensibly addressed that meeting. Tr. 232, et seq.
However, it was clear from Wallace’s testimony that he was describing the October 28
Union meeting, as opposed to the meeting which took place on September 23.22
Furthermore, when describing the unlawful threat alleged in the Amended Complaint,
Wallace testified that Joseph Fitzsimmons, and not Richard Fitzsimmons, Jr., said,
“You’re not going to work here no more.” Tr. 236. Only in response to patently leading
questions on redirect examination did Wallace testify that the meeting he was
describing took place in September 2018, and that the individual who made the
21 In evaluating Bacquie’s credibility I also decline to consider the testimony of Michael Hunter, a foreman
at Remsco, regarding Hunter’s aversion to working with Bacquie after a verbal confrontation between
them. Federal Rule of Evidence 608(b) prohibits the use of extrinsic evidence to “prove specific instances
of a witness’s conduct” unless they are probative of the character for truthfulness or untruthfulness. I do
not find Bacquie’s conduct in this regard tends to establish a predisposition for
untruthfulness. See Erikson’s, Inc., 366 NLRB No. 171 at p. 1, n. 2 and at p. 5 (2018), enf’d. 929 F.3d
393 (6th Cir. 2019) (ALJ appropriately prohibited questioning regarding witness’ discharge from
employment as a police officer); Operating Engineers Local 17 (Hertz Equipment Rental), 335 NLRB 578,
583, fn. 11 (2001).
22 For example, Wallace testified that during the meeting Richard Fitzsimmons, Sr., gave Bacquie the
floor, after which Bacquie addressed the letter he had sent to the Union office. Tr. 235. Wallace further
testified that Joseph Fitzsimmons told Bacquie, “I gave you your first job,” and that during the meeting
Richard, Sr. stated that he was taking the high road by not kicking Bacquie out of the Union. Tr. 237.
Wallace also testified that Joseph Fitzsimmons and Richard, Jr. confronted Bacquie while Bacquie
remained at the back of the room, and Chris Fitzsimmons inserted himself between them. Tr. 236-237,
254-255. Finally, Wallace testified that Bacquie stated, “this is going to be a wonderful lawsuit.” Tr. 241.
The recordings, transcripts and testimony establish that all of these events took place at the October 28
meeting, and not at the meeting on September 23. See G.C. Exs. 16(a-b), 17(a), 17(b) at p. 7, 10, 13.
JD(NY)-03-20
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threatening statement to Bacquie was Richard Fitzsimmons, Jr., and not Joseph
Fitzsimmons. Tr. 268.23 Such testimony is simply not probative with respect to the
allegations that on September 23 and October 28, Richard Fitzsimmons, Jr. threatened
members that they would no longer obtain employment, including by loss of Union
membership, in retaliation for their complaints of racial discrimination in referrals.
General Counsel contends at page 22 of his Post-Hearing Brief that Wallace’s
testimony is particularly reliable because he is current member of Local 147, and
therefore testified against his own pecuniary interests in contradicting the testimony of
the Union’s officers. The Board has held that “the testimony of current employees
which contradicts statements of their supervisors is likely to be particularly reliable
because these witnesses are testifying adversely to their pecuniary interests.”
Advocate South Suburban Hospital, 346 NLRB 209, fn. 1, enf’d. 468 F.3d 1038 (7th Cir.
2006), quoting Flexsteel Industries, 316 NLRB 745 (1995), aff’d. 83 F.3d 419 (5th Cir.
1996) (emphasis added); see also Covanta Bristol, Inc., 356 NLRB 246, 253 (2010).
However, General Counsel does not provide any authority for applying this principle in
the context of a union member whose testimony contradicts the testimony of union
officers at trial. Nor does General Counsel elucidate any basis for comparing the
potential impact of a labor union’s conduct, as opposed to an employer’s, on an
employee’s pecuniary interests. At the hearing General Counsel contended that Local
147 “has some real level of control over members’ employment through its maintenance
of an out of work list and other informal referrals that it makes,” but repeatedly
contended that the non-exclusive status of the Union’s out-of-work list was irrelevant.
Tr. 627; see also Tr. 29-30, 328-329, 558, 627. However, the Board has long held that
a union which operates a non-exclusive hiring hall “lacks the power to put jobs out of
reach of employees,” so that a member’s testimony might not necessarily implicate a
pecuniary interest in such a context. Stage Employees IATSE Local 142 (Various), 361
NLRB 1398, 1401 (2014), citing Carpenters Local 537 (E. I. duPont), 303 NLRB 419
(1991). Thus, I decline to find that Wallace’s testimony is particularly reliable based
upon General Counsel’s assertion in this regard.
23 Q: You were present during Union – a Union membership meeting, again, in September
of 2018, right?
A: I believe it’s – that’s the date, yeah. I don’t know a date. That is the date, yeah.
Q: And you testified about a statement made by Richard Fitzsimmons, Jr., at that meeting –
A: Um-hum. Yes.
Q: -- to Richie Bacquie.
A: Yes.
Q: All right. You heard Mr. Fitzsimmons, Jr. – Richard Fitzsimmons, Jr., make that statement,
is that correct?
A: Yes.
JD(NY)-03-20
29
I note as well that Wallace admitted during his cross-examination that he had a
closer personal relationship with Bacquie than he had initially claimed. Tr. 240, 253-
254. Indeed, Wallace eventually stated that he had spoken to Bacquie the evening prior
to his testimony regarding whether he would be attending he hearing.24 Tr. 269-270. I
do not credit Wallace’s assertion that he could not recall anything said during this
conversation, which had taken place the previous evening. Tr. 270. While I find this
material relevant to the ultimate reliability of Wallace’s testimony, it is less significant
than his apparent confusion of the September 23 and October 28 meetings and his
identification of Joseph Fitzsimmons, as opposed to Richard Fitzsimmons, Jr., as the
individual who told Bacquie that he would “not work here anymore.” For those reasons
in particular, I find Wallace’s testimony less than probative with respect to the Amended
Complaint’s allegations.
Local 147 presented three witnesses who testified regarding the events of the
September 23 and October 28 meetings – Chris Fitzsimmons, Richard Fitzsimmons, Jr.,
and Thomas J. Smith. All of these witnesses when questioned on direct examination
provided a description of their location during the relevant incidents, but were asked for
and provided only conclusory denials regarding Richard Fitzsimmons, Jr.’s alleged
threatening statements to Bacquie. See Tr. 492-496, 571, 575, 603-605. The Board
has previously found that general denials are less probative and insufficient to rebut
more detailed testimony regarding an event or statement. Precoat Metals, 341 NLRB at
1150; see G.C. Post-Hearing Brief at 23-24. However, I find that this principle is less
significant here, given that a recording of both the September 23 and October 28
incidents exists which does not contain the remarks that Bacquie attributed to Richard
Fitzsimmons, Jr.
I otherwise found that Chris Fitzsimmons’ testimony was generally credible.
Chris testified in a straightforward manner, providing complete responses and clear
explanations of union policies and documents on both direct and cross-examination. I
further note that while his interactions with Bacquie became heated during the
September 23 and October 28 meetings, the recording and transcript also demonstrate
that Chris repeatedly attempted to keep the meetings under control, maintain order and
defuse confrontation. See, e.g., G.C. Ex. 16(a), 16(b) at 3; G.C. Ex. 17(a), 17(b) at 3, 5,
8. This is consistent with his written responses to Bacquie in both their 2016 and 2018
exchanges, which generally evince a good-faith effort to understand the issues raised
by Bacquie and provide Bacquie with the requested information. See Tr. 461-464, 467-
475, 478; G.C. Exs. 14; R.S. Exs. 5, 10-12.
I also found Thomas J. Smith to be a credible witness overall. Smith, a senior
health and safety specialist with the New York State Laborers’ Health and Safety Trust
Fund and member of Local 147, attended the September 23 meeting. Tr. 597-599.
24 Wallace testified on September 5, 2019, the second day of the hearing. Bacquie’s testimony had
begun the previous day, but had not yet concluded at the time that Wallace testified. There was no
sequestration order entered in the case. Bacquie later testified based upon information contained in his
phone that he also spoke with Wallace or exchanged phone messages on August 24, 25, and 28, 2019.
Tr. 293-294.
JD(NY)-03-20
30
While Smith testified that he had a long relationship with the Fitzsimmons family and
with Chris Fitzsimmons in particular,25 I also credit his testimony that he considered
Bacquie a friend, which is consistent with his attempts to calm Bacquie down and
prevent a physical altercation after the September 23 meeting. Tr. 599, 608, 618-819,
622; G.C. Ex. 16(a), 16(b) at 4-5, 7-8. I credit Smith’s testimony that one of his
objectives was to prevent police involvement which could have had negative
repercussions for Bacquie personally. Tr. 602, 622. I also note that Smith admitted that
after the September 23 meeting ended a number of people were speaking
simultaneously, and he could not always understand what everyone was saying as a
result. Tr. 617.
Richard Fitzsimmons, Jr.’s testimony was the briefest of the Local 147 witnesses
who addressed the September 23 and October 28 meetings. Like Chris Fitzsimmons
and Smith, after establishing his position during the meetings and the incidents Richard,
Jr. was only asked for and provided only conclusory denials regarding his statements to
Bacquie. Tr. 571, 575. Richard, Jr.’s testimony did not play a significant role in my
ultimate determination as to whether he made the threatening statements alleged.
3. The alleged threats by Richard Fitzsimmons, Jr.
General Counsel contends that Richard Fitzsimmons, Jr. ”unlawfully threatened
Bacquie with loss of employment, including through loss of Union membership,” after
the September 23 meeting. Post-Hearing Brief at 29. In order to determine whether a
union agent’s statement violated Section 8(b)(1)(A), the Board evaluates whether
“under all the circumstances,” the statement “would have a tendency to restrain and
coerce employees” in the exercise of protected activity. Branch 4779, National
Association of Letter Carriers AFL-CIO (Postal Service), 364 NLRB No. 57 at p. 1, fn. 1,
and at p. 3 (2016), quoting American Postal Workers Union, AFL-CIO, 328 NLRB 281,
282 (1999). The Board applies an objective analysis to determine whether the
statement at issue “can reasonably be interpreted as a threat.” Consolidated Bus
Transit, 350 NLRB 1064, 1066 (2007), enf’d. 577 F.3d 467 (2d Cir. 2009). In particular,
the Board has long held that Union threats of economic reprisals and loss of
employment violate Section 8(b)(1)(A). See Office Employees Local 251 (Sandia
National Laboratories), 331 NLRB 1417, 1418, 1424 (2000); see also Painters Local
466 (Skidmore College), 332 NLRB 445, 446 (2000) (“threats of economic reprisals”
violate Section 8(b)(1)(A)); Teamsters Local 823 (Roadway Express, Inc.), 108 NLRB
874, 875, 882 (1954), enf’d. 227 F.2d 439 (10th Cir. 1955) (threats of loss of
employment unlawful).26 Furthermore, it is well-settled that a member’s criticism of
25 General Counsel contends that Smith was biased because he was appointed to a previous position as
Training Director for the Local 147 Training Fund by the Fund’s trustees, two of whom were Chris and
Richard Fitzsimmons, Sr. Post-Hearing Brief at 24-25; Tr. 609-611. However, the Training Fund had
three management and three labor trustees at the time, and there is no evidence that either Fitzsimmons
had outsize authority among that group. Tr. 611.
26 General Counsel relies primarily on Operating Engineers Local 150, 352 NLRB 360, fn. 3, 380 (2008),
to argue that a union agent’s threat of loss of employment violates Section 8(b)(1)(A). However, that
case was issued during a period when the Board lacked a quorum, and therefore has no precedential
value pursuant to New Process Steel, LP v. NLRB, 560 U.S. 674 (2010). See, e.g., Poudre Valley Rural
JD(NY)-03-20
31
union officials in connection with their operation of a hiring hall or otherwise making
referrals for work constitutes protected concerted activity.27 See LIUNA, Local Union
No. 91 (Council of Utility Contractors and Various Other Employers), 365 NLRB No. 28
at p. 2 (2017) (union member’s attempts “to press the union to change its policies,
especially those policies affecting members’ employment opportunities” protected under
Section 7); Electrical Workers Local 724 (Albany Electrical Contractors Ass’n.), 327
NLRB 730, 735-736 (1999).
Here, General Counsel contends that Local 147 violated Section 8(b)(1)(A) after
the meeting on September 23 when Richard Fitzsimmons, Jr. told Bacquie that he was
“done in the union” and “won’t work again.” General Counsel further contends that
during the October 28 meeting, Richard Fitzsimmons, Jr. threatened that Bacquie was
“out of the fucking Union” and would “never work again.” I have discussed the overall
credibility of the witnesses and the reliability of their testimony above, and for those
reasons I cannot find that the testimony of Bacquie or Wallace constitutes an adequate
basis for establishing that Richard Fitzsimmons, Jr. made the unlawful statements
attributed to him, which are not audible in the recordings of the September 23 and
October 28 meetings or contained in the transcripts of the meetings prepared by
General Counsel. A closer analysis of the evidence regarding the meetings confirms
that conclusion. See Branch 4779, National Association of Letter Carriers, AFL-CIO
(Postal Service), 364 NLRB No. 57 at p. 3 (surrounding circumstances and context of
the statement at issue pertinent to determine whether the remark was legally
permissible or unlawfully threatening), citing American Postal Workers Union, AFL-CIO,
328 NLRB at 282.
For example, the evidence does not unequivocally establish that Bacquie and
Chris Fitzsimmons were discussing Bacquie’s September 19 letter during their initial
encounter after the September 23 meeting, as General Counsel and Bacquie claim.
Post-Hearing Brief at 8-9; Tr. 70; G.C. Ex. 16(b), p. 1-2. Nothing in that discussion
specifically refers to Baquie’s September 19 letter, and Bacquie’s statement – “if there’s
questions these guys don’t understand it because I didn’t even understand it neither” –
makes it plausible that Bacquie and Fitzsimmons were referring to the altered holiday
pay provisions of the contract Bacquie had asked about during the meeting, which
would apply to all members. In fact, when Fitzsimmons asked Bacquie whether “you
understand it now,” Bacquie stated, “Yeah.” Such a response would be inconsistent the
Electric Association, Inc., 366 NLRB No. 21, p. 1, fn. 1 (2018); Chicago Mathematics & Science Academy
Charter School, Inc., 359 NLRB 455, 462, fn. 20 (2012).
27 Local 147 contends that the Richard Fitzsimmons, Jr.’s statements as alleged in the Amended
Complaint do not constitute a violation of Section 8(b)(1)(A) because the dispute between Bacquie and
the Union concerned only internal matters. However, Bacquie’s September 19 letter addressed
discrimination in the Union’s out-of-work list and in the enforcement of its collective bargaining
agreements by shop stewards, and Richard Jr.’s alleged statements pertained to Bacquie’s future
employment. As a result, the instant case involves Union conduct affecting “the employment
relationship,” as opposed to “wholly intraunion conduct and discipline.” Office Employees Local 251
(Sandia National Laboratories), 331 NLRB at 1418. Contrary to Local 147’s
contention, Bacquie’s employment status and the work available within the Union’s jurisdiction at the time
of the hearing are irrelevant to determining whether the statements made were coercive. R.S. Post-
Hearing Brief at 17, fn. 11.
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fact that Bacquie ostensibly had yet to receive any of the documents or information
requested in his September 19 letter. In addition, it is not plausible that Fitzsimmons
would be attempting to hand Bacquie a copy of Bacquie’s own September 19 letter
during this interaction, as opposed to some other document.
Furthermore, while the evidence establishes that the discussion between
Bacquie and Chris Fitzsimmons escalated somewhat after that point, the recording and
transcript are not consistent with Bacquie’s contention that Chris assumed a “fighting” or
“threatening” stance after asking Bacquie, “What, you got a problem with me?” Tr. 71;
G.C. Ex. 16(a) at 53:08, 16(b), p. 3. The recording does not indicate that Chris made
this statement in a significantly louder voice than the volume that either he or Bacquie
had been previously using, as Bacquie claimed. Tr. 71-72; G.C. Ex. 16(a). In addition,
after Bacquie responds at a distinctly raised volume, “What, you threatening me?” Chris
returns to a more conversational tone and states, “No, I’m asking you if you have a
problem with me. Richie, you seem like you got a problem with me.” G.C. Ex. 16(a),
16(b), p. 3. Chris Fitzsimmons’ more conversational mien further undermines Bacquie’s
assertion that Chris had assumed a “fighting” or “threatening stance” seconds earlier.
Bacquie’s account of the ensuing scuffle, during which Richard Fitzsimmons, Jr.
allegedly made the threatening statements, is contradictory and not supported by the
record evidence. As discussed above, Bacquie’s contention that Joseph Fitzsimmons’
statement, “You’re dead; you’re done in this Union” was audible on the recording at
53:45 is simply incorrect. Tr. 393, 396-397; G.C. Ex. 16(a-b). Furthermore, two weeks
after the meeting in an e-mail to Richard Fitzsimmons, Sr., Bacquie attributed this
statement to Richard Jr., and not Joseph. G.C. Ex. 12. Richard Fitzsimmons, Jr.’s
alleged statements that Bacquie was “done in the union” and “won’t work again” do not
appear on the recording or the transcript. Tr. 73-74; G.C. Ex. 16(a) at 53:50-53:54;
G.C. Ex. 16(b), p. 3-4. General Counsel contends that Richard, Jr.’s statement “You’re
done! Get the fuck out of here” constitutes a “partial reflection” of the unlawful threat
alleged. Post-Hearing Brief at 10. However, there is no indication, other than Bacquie’s
testimony, that Richard, Jr. was indicating by this statement that Bacquie would be
ejected from the Union itself, as opposed to the meeting hall. See Pacific Maritime
Ass’n., 308 NLRB 39, 46 (1992) (union representative’s statement not unlawful where
reference to “causing trouble” was “so vague that it could mean anything,” and in light of
surrounding circumstances). Richard Fitzsimmons, Jr. testified that his statement
referred to Bacquie’s leaving the building, a more plausible interpretation given that by
this point an entire group of Local 147 members was attempting to physically direct
Bacquie toward an exit. Tr. 572.
The evidence regarding the allegedly unlawful statements made at the October
28 meeting involves a similar issue. Bacquie testified that in the midst of a scuffle
during this meeting, Richard Fitzsimmons, Jr. stated that Bacquie was “out of the
fucking Union” and would “never work again.” Tr. 115. General Counsel contends that
the recording and transcript of this meeting “partially corroborate” Bacquie’s testimony in
this regard, as they establish that Richard Fitzsimmons, Jr. told Bacquie, “You’re done!
[Indistinct].” Post-Hearing Brief at 31; G.C. Ex. 17(a) at 1:00:43; G.C. Ex. 17(b), p. 8.
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As discussed above, Local 147 denies that the voice making this statement on the
recording is that of Richard Fitzsimmons, Jr., and based upon repeatedly listening to the
recording and having heard Richard, Jr.’s voice during his trial testimony, I am unable to
determine exactly who was speaking. However, even if Richard, Jr. made the
statement, there is no evidence other than Bacquie’s testimony to establish that Richard
Jr. was addressing Bacquie, as opposed to the several other members involved in the
confrontation. Furthermore, the statement, “You’re done!” is sufficiently vague that it
could have referred to ending the altercation itself and maintaining order, which was
Richard Jr.’s responsibility as Sergeant-at-Arms. Pacific Maritime Ass’n., 308 NLRB at
46. Indeed, the recording and transcript indicate that immediately before and after the
“You’re done!” statement, Chris Fitzsimmons, John Ryan, and Sean Bishop attempt to
defuse the situation by stating, “Bring it back to order,” “Guys that’s it, enough,” “Order
guys,” and “It’s over.” G.C. Ex. 17(a) at 1:00:22-1:01:00; G.C. Ex. 17(b), p. 8. This
context makes it more plausible that “You’re done!” referred to participation in the
altercation itself, rather than expulsion from the Union.
For all of the foregoing reasons, the evidence does not establish that Richard
Fitzsimmons, Jr. threatened Bacquie with loss of employment, including by loss of
membership, after the September 23 Union meeting or during the Union meeting on
October 28, in violation of Section 8(b)(1)(A) of the Act.28 As a result, I will recommend
that the Amended Complaint be dismissed.
Conclusions of Law
1. Northeast Remsco Construction, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 147, Laborers’ International Union of North America (Local 147), is a
labor organization within the meaning of Section 2(5) of the Act.
3. Local 147 has not violated the Act in any manner alleged in the Amended
Complaint.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:
28 In that the evidence does not establish that the alleged threats were made, I have not addressed the
parties’ arguments regarding repudiation or the appropriate remedy.
JD(NY)-03-20
34
Order29
The Amended Complaint is dismissed.
Dated, Washington, D.C. March 25, 2020
Lauren Esposito
Administrative Law Judge
29 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 purposes.