Utility Workers Local 1-2 (Consolidated Edison)

National Labor Relations Board - Board Decisions

Nov 3, 1993

312 N.L.R.B. 1143 (N.L.R.B. 1993)

1143
312 NLRB No. 182
UTILITY WORKERS LOCAL 1–2 (CONSOLIDATED EDISON)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has requested that the record be reopened so that
the Respondent can establish the index number of the alleged libel
lawsuit, the date the lawsuit was filed, that all the named defendants
to the lawsuit were properly served, and that proceedings have been
held in the lawsuit. We deny this request because the proffered evi-
dence is neither ‘‘newly discovered’’ nor ‘‘previously unavailable,’’
and, in any event, it would not affect the result in the instant case.
We find it unnecessary to rely on the judge’s discussion at fn. 7
of her decision regarding the meaning of Moran’s statement to Dory
that if Dory was selling wolf tickets Moran would buy them and
they would go out on the street. We note that even if this statement
is given the meaning ascribed to it by the Respondent, it does not
affect the result in this case. We also find it unnecessary to rely on
the judge’s discussion of whether the Respondent’s attorney, Geller,
knew of the complaint in the instant case when he prepared the libel
lawsuit for Business Manager Goodman.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(b)(1)(A) of the Act through Business Manager John Goodman’s
conduct, we rely on the judge’s finding that Goodman threatened to
sue the dissidents in connection with their protected activity; thus,
we find it unnecessary to rely on the judge’s discussion regarding
whether Goodman had actually filed a libel lawsuit because this
issue would not affect the result in this case. Contrary to our dissent-
ing colleague, we find Postal Service, 275 NLRB 360 (1985), distin-
guishable. In Postal Service, a temporary, low-level supervisor pri-
vately threatened suit against the union because it filed grievances
claiming that she, in her individual capacity, received preferential
treatment. By contrast, in the instant case, the Respondent, through
its agent Goodman, threatened to sue employees because they had
criticized official conduct of Goodman as an agent of the Respond-
ent and because they had secured a court order against the Respond-
ent. Under these facts, we find this case governed by Carborundum
Materials Corp., 286 NLRB 1321 (1987), rather than Postal Service,
and agree with the judge that the Respondent’s threat violated Sec.
8(b)(1)(A).
3 All dates are in 1991 unless otherwise noted.
4 Although the judge’s order had specified that the Local was to
permit copying of the records, the Local’s attorney interpreted that
to mean hand copying only.
Local 1–2, Utility Workers Union of America,
AFL–CIO (Consolidated Edison of New York)
and Thomas Moran. Case 2–CB–13637
November 3, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 30, 1992, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel resubmitted its brief to the judge.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 only to the extent
consistent with this Decision and Order and to adopt
the recommended Order as modified.
The judge found that the Respondent violated Sec-
tion 8(b)(1)(A) of the Act when its business agent,
William Dory, threatened two union dissidents with
physical violence. For the following reasons, we dis-
agree with the judge, and instead dismiss this portion
of the complaint.
The Respondent Union and the Employer have been
parties to successive collective-bargaining agreements.
In August 1990, new Union Local 1–2 officers were
elected. This new administration consisted of John
Walsh, president; John Goodman, business manager;
and Phil Varicchio, assistant business manager.
Some union members who had been active with the
former local administration formed a dissident group
and published a newsletter called ‘‘Members’ Voices,’’
which criticized the new administration. The dissidents
also had asked to see some local books and records,
and wanted some proposed bylaws that they had ad-
vanced to be read at a local meeting. When the Local
refused to cooperate on these matters, the dissidents
brought an action in district court. Pursuant to the dis-
trict court judge’s temporary restraining order, it was
arranged for the dissident group to inspect the re-
quested records at the local office on March 7, 1991,3
and for the dissident-supported bylaw proposals to be
read at the March 7 local meeting.
On March 7, as dissidents Cirignano and Moran re-
viewed the requested records in a small conference
room in the Local’s office, a dispute arose over the
dissidents’ request for photocopies of some of the
records.4 Moran left the room to telephone the dis-
sidents’ attorney, Arthur Schwartz, and Cirignano con-
tinued to read the records. Dory, a union business
agent, then came toward the conference room and
began yelling about democracy and looking at the
records. When Cirignano remarked that the judge had
ruled in the dissidents’ favor, Dory got ‘‘frenzied’’ and
cursed Schwartz. At this point Walsh, president of the
Local, started to pull Dory away, telling him to take
it easy. As Moran walked towards the group, he could
hear Dory shouting obscenities. Moran told Dory to
take it easy, remarking that he and Cirignano were
there to do a job and not to take verbal abuse.
Cirignano testified that Dory replied, ‘‘I’ll give you
verbal abuse. I’ll give you physical abuse. I’ll take you
both outside and kick both your asses.’’ Moran testi-
fied that Dory threatened Cirignano that Dory would
kick his ass, and then Dory told Moran, ‘‘I’m telling
you right here and now I am going to kick your ass
too.’’ A few other local officials arrived, including As-
sistant Business Manager Phil Varicchio, and saw to it
that Dory left the area. Further, according to Moran,
whose testimony concerning this incident was credited
by the judge, both Varicchio and Local Union Presi-
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We find unpersuasive Member Raudabaugh’s argument that there
is a violation here because the two affected employees might believe
that Dory would carry out his threats in the future when he was
away from the other agents of the Respondent. Were we to accept
this logic, we would have to disavow the test set out in Passavant
Memorial Area Hospital, 237 NLRB 138 (1978), for effective repu-
diation of coercive conduct, since it could always be argued that
even if a union or employer met the Passavant standard, coercive
conduct might be repeated by the original actor.
6 Contrary to his colleagues, Member Raudabaugh would adopt the
judge’s findings that the Respondent violated Sec. 8(b)(1)(A). The
Respondent’s business agent, Dory, clearly threatened the employees.
He said: ‘‘I’ll give you verbal abuse. I’ll give you physical abuse.
I’ll take you both outside and kick both your asses.’’ These words
were not mere verbal taunts. They explicitly threatened physical
abuse. Further, the fact that Dory’s colleagues were able to pull
Dory away does not warrant a contrary result. Dory is a business
agent of the Respondent and is likely to have further contacts with
the threatened employees. If the contacts occur outside the presence
of Dory’s colleagues, the employees would have no assurance that
Dory, unrestrained by others, will not resort to the physical violence
that he threatened. My colleagues refer to Passavant. It is clear that,
under the standards of that case, the Respondent’s officials did not
effectively remedy Dory’s misconduct. The Respondent’s representa-
tives told the threatened employees that Dory would not bother them
‘‘the rest of the time’’ and that they could therefore ‘‘resume look-
ing at the records.’’ The judge correctly interpreted this testimony
to mean that Dory ‘‘would not bother them any more that day,’’ i.e.,
the time period for looking at the records (the judge’s decision at
sec. II,B, last sentence of the first par. (emphasis added)). Clearly,
under Passavant standards, this was not an unambiguous repudiation
of Dory’s misconduct and was even less an assurance of protection
in the future.
7 Contrary to his colleagues, Member Devaney would also reverse
the judge’s conclusion that the Respondent violated Sec. 8(b)(1)(A)
of the Act when the Union’s business manager, John Goodman,
threatened to sue Moran and Cirignano for printing an article that
was critical of him in the dissidents’ newsletter and for obtaining a
court injunction against the Union. Member Devaney finds that the
remarks ‘‘concerned the filing of a civil lawsuit on [Goodman’s]
own personal behalf and cannot be construed to involve any threat-
ened retaliation by the Respondent,’’ Postal Service, supra at 361
(1985); cf. Carborundum Materials Corp., supra, and that under the
circumstances of this case, Goodman’s statements did not rise to the
level of an 8(b)(1)(A) violation.
dent Walsh ‘‘reassured’’ Moran that Dory ‘‘wouldn’t
bother [them] the rest of the time,’’ and Varicchio stat-
ed that Moran need not ‘‘worry about it. We’ll take
care of Mr. Dory.’’
The judge found that by publishing their views in
‘‘Members’ Voice,’’ by instituting an action in district
court concerning the conduct of union meetings and
the inspection of union records, and by inspecting
union records, Moran and Cirignano were engaging in
protected, concerted activity. She further found, based
on the credited testimony of Moran and Cirignano, that
Dory, a busines agent and an admitted agent of the
Union, told Moran and Cirignano that he would kick
their asses. She stated that Dory made this threat be-
cause Moran and Cirignano were parties to the district
court proceeding, had inspected the union records, and
had participated in the publication of a newsletter
which criticized the Local’s administration. Thus, the
judge concluded that Dory’s threat of physical violence
violated Section 8(b)(1)(A) of the Act.
Contrary to the judge, we find that under the cir-
cumstances here, Dory’s conduct did not rise to the
level of an 8(b)(1)(A) violation. Even assuming
arguendo that the ‘‘kick both your asses’’ remark can
reasonably be construed as a threat of physical vio-
lence, the two dissidents had no reason, given the ac-
tions of other union officers present, to view this as a
threat on behalf of the Respondent. Local President
Walsh was pulling Dory away as this comment was
made, and other local officials quickly arrived and saw
to it that Dory left the area, and also assured Moran
that Dory would not bother them any more. Thus, the
actions of the other local officials who were present di-
rectly countered Dory’s remarks, and Moran and
Cirignano could not have reasonably believed that
Dory’s remarks represented the attitude of the Union.5
Having examined all the circumstances here, we be-
lieve that Dory’s conduct was insufficient to constitute
an 8(b)(1)(A) violation.6 Accordingly, we reverse the
judge’s finding that Dory’s threat of physical violence
violated the Act, and instead we dismiss this portion
of the complaint.7
AMENDED CONCLUSION OF LAW
By threatening employees with a lawsuit because
they engaged in protected, concerted activities, the Re-
spondent violated Section 8(b)(1)(A) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
1–2, Utility Workers Union of America, AFL–CIO,
New York, New York, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Threatening employees with the filing of a law-
suit because they engage in protected, concerted activi-
ties.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
1145UTILITY WORKERS LOCAL 1–2 (CONSOLIDATED EDISON)
1 The record is corrected so that at p. 39, L. 4, the comment is
shown as being made by the administrative law judge; at p. 82, L.
22, the correct phrase is ‘‘now that you have won the appeals case.’’
2 The article did not imply that Goodman had taken any union
funds for his personal use. Rather the newsletter stated that an illegal
loan had been made from the strike fund to the general fund in order
that the Union could pay dues to the national union and thus have
the right to send delegates to the national union convention. The
‘‘Members’ Voice’’ stated that Goodman intended to run for office
at this convention.
3 Moran has been a member of the Union for 26 years and has
held various elective offices in the Local. Before the August 1990
election, Moran had been health and safety director. Cirignano had
been a shop steward and chairman of the shop stewards before the
new local administration was elected.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten you with the filing of law-
suits because you engage in protected, concerted ac-
tivities.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
LOCAL 1–2, UTILITY WORKERS OF
AMERICA, AFL–CIO
Mindy E. Landow, Esq., for the General Counsel.
Kevin G. Jenkins, Esq., of New York, New York, for the Re-
spondent.
Arthur Z. Schwartz, Esq. (Lewis, Greenwald, Kennedy,
Lewis, Clifton & Schwartz), of New York, New York, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on January 21 and
22, 1992. The complaint alleges that Respondent, in violation
of Section 8(b)(1)(A) of the Act, threatened employees with
physical harm and with the filing of a lawsuit because they
engaged in protected concerted activities. Respondent denies
the material allegations of the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel in February 1992, and by the
Respondent in March 1992, I make the following1
FINDINGS OF FACT
I. JURISDICTION
The Employer, Consolidated Edison of New York, is a
New York corporation with its principal office in New York,
New York, where it is engaged in the operation of a public
utility providing gas and electric power in the New York
metropolitan area. Respondent admits, and I find, that the
Employer is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer and the Union have been parties to succes-
sive collective-bargaining agreements the latest of which has
a term from June 25, 1989, to June 24, 1992, for an appro-
priate unit consisting of:
All full-time and regular part-time employees excluding
temporary employees, and guards, and supervisors as
defined in the Act.
There is no dispute that at all times material to the instant
case, the Union has been the exclusive representative of the
employees in the appropriate unit set forth above within the
meaning of Section 9(a) of the Act.
In August 1990, a union local election was held which re-
sulted in a change in the officers of the Local. The new ad-
ministration of the Local was headed by President John
Walsh, Business Manager John Goodman, and Assistant
Business Manager Phil Varicchio. Some of the union mem-
bers who had been active with the former local union admin-
istration formed a dissident group and published a newsletter
called ‘‘Members’ Voice.’’ The articles in the newsletter
were critical of the new union administration. In the second
issue of ‘‘Members’ Voice’’ dated January 1991, but actually
distributed in early March 1991, an article accused the new
local union administration of raiding the union strike fund in
order to further the political aspirations of Goodman. The ar-
ticle asked the question, ‘‘Why is Goodman stealing money
from our Defense Fund?’’2
In addition to publishing a newsletter, the dissidents asked
to see some local union books and records and, when these
were not made available for their inspection, the dissidents
brought an action in district court. Another controversy de-
veloped over the scheduling and conduct of local union
meetings and the reading of some proposed bylaws advanced
by the dissident group. The bylaw dispute also found its way
to the district court. Two of the dissident group named as
plaintiffs in the action pending in district court were Thomas
Moran and Ron Cirignano.3 After Judge David N. Edelstein
issued a temporary restraining order on March 5, 1991, Ar-
thur Z. Schwartz, Esq., counsel for the dissident group, ar-
ranged for Moran and Cirignano to go to the union office on
March 7, 1991, to inspect the records pursuant to the Order
of Judge Edelstein. That day was also the day for the next
union meeting. Judge Edelstein’s order provided that at this
meetings the dissident supported bylaw proposals were to be
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The record does not make clear what Walsh did during all of this
time.
5 This was the first of several telephone calls Moran made to
Schwartz that day in an effort to resolve the problem related to the
copying of union records.
6 Moran testified that while he was talking to Schwartz on the tele-
phone he heard loud noises from the back of the office; he looked
out of the door and saw Dory and Walsh in the doorway of the
small conference room. Schwartz testified that while he was speak-
ing to Moran on the telephone he could hear loud noises in the back-
ground.
7 Contrary to the assertion in the brief filed by Respondent, Moran
did not admit that he offered to settle the dispute out on the street.
Respondent’s brief states that Moran told Dory that together they
would sell ‘‘wolf’’ tickets and go out on the street. I note that Re-
spondent’s brief misquotes the record and that the misquote is of
such a nature as to distort the testimony. In any event, I interpret
Moran’s testimony to mean that he told Dory he was acting like a
wolf and that such behavior was more appropriate for the streets.
Moran immediately followed this up with the statement that, ‘‘We
are not here for that. We are here to take a look at the records.’’
8 By the terms ‘‘leaflets’’ Dory apparently meant the dissident
newsletter, ‘‘Members’ Voice.’’
9 Dory claimed that he did not know that Judge Edelstein had
issued an order requiring the Union to permit examination of its
records by the dissidents. I find this claim incredible and I do not
credit this testimony. The testimony of all the witnesses convinces
me that all the union officials present that day knew that Moran and
Cirignano were there to inspect records pursuant to a court order.
In fact, if Dory had not known the circumstances there would have
been no occasion for him to taunt Cirignano about reviewing the
records. Further, Papa testified that it was common knowledge in the
union office that day that Moran and Cirignano were present pursu-
ant to a judicial mandate.
read and that no other business was permitted to be con-
ducted.
B. The Events of March 7, 1991
Ron Cirignano and Thomas Moran testified that they went
to the union office at about 11:55 on March 7. After a wait
of 30 to 45 minutes during which they sat in the reception
area, John Walsh, president of the Union, escorted them to
a small conference room in the back of the union office
where they were to sit and review the records specified in
the TRO. After Moran and Cirignano told Walsh which
records they wanted to read, Walsh left and then returned
with the documents. He was accompanied by Peter Sagonas,
secretary-treasurer of the Union. While the two men re-
viewed the records, Sagonas remained in the room with
them.4 After a while, a dispute arose over the dissidents’ re-
quest for photocopies of some of the union records. Sagonas
brought Kevin B. Jenkins, Esq., counsel to the Union, into
the conference room. Although Judge Edelstein’s Order had
specified that the Union was to permit copying of its records,
Jenkins took the position that this meant hand copying only.
When the dispute could not be resolved, Moran left the room
to telephone Schwartz from a cubicle about 15 feet from the
small conference room, while Cirignano continued to read
the records in the presence of Sagonas.5 As Cirignano sat
reading, he noticed that William Dory, a business agent for
the Union, was walking down the hall toward the conference
room. When Dory got close to the room, he began yelling
about democracy and looking at records. Dory was red in the
face, according to Cirignano, and when Cirignano remarked
that the Judge had ruled in his favor, Dory got ‘‘frenzied’’
and cursed Schwartz.6 At this point, John Walsh, president
of the Union, came towards the room and pulled Dory away,
telling him to take it easy. Moran, who had ended his tele-
phone call walked toward the group; he could hear Dory
shouting obscenities. When his path crossed that of Dory in
the hall, Moran told Dory to take it easy, remarking that he
and Cirignano were there to do a job and not to take verbal
abuse. Cirignano testified that Dory replied, ‘‘I’ll give you
verbal abuse. I’ll give you physical abuse. I’ll take you both
outside and kick both your asses.’’ Moran testified that he
heard Dory threaten Cirignano that he would ‘‘kick his ass’’
and that Dory also told him, ‘‘I’m telling you right here and
now I am going to kick your ass too.’’7 A few of the other
union officials were walking toward the commotion includ-
ing Phil Varicchio and Joseph A. Papa. They saw to it that
Dory left the area near the conference room. Walsh and
Varicchio assured Moran that Dory would not bother them
any more that day.
Varicchio testified that he heard a commotion and loud
voices but that he could not see what was happening because
there were people in the hall: he denied physically restraining
Dory. Papa stated that he saw Dory and Moran shouting and
that he told Dory to go back to his desk. Dory testified that
he believed that Moran and Cirignano were in the office to
copy material to use for their own purposes in leaflets.8
When he saw Cirignano in the small conference room, he
asked him if this is what he meant by union democracy, that
only a select few get to see the records.9 According to Dory,
this is the only remark he made to Cirignano; Cirignano did
not reply. As Dory was on his way back to his desk with
Walsh, he encountered Moran in the hall. Moran said they
were not in the office to get abused. Dory replied that Moran
was fortunate the membership was not abusing him and a
heated conversation ensued. According to Dory, Moran said
‘‘We can take it outside later.’’ Dory could not recall if he
responded and he could not recall anything else that was
said. He recalled only that Moran said they should take their
dispute outside. According to Dory, Walsh and Sagonas were
present during this exchange. Neither Walsh nor Sagonas tes-
tified herein.
Since neither Papa nor Varicchio testified as to anything
specific that was said during the exchange involving Dory
and since neither Walsh nor Sagonas testified in this pro-
ceeding, my determination must rest on an evaluation of the
testimony about the incident as given by Moran and
Cirignano as opposed to the version given by Dory. Both
Moran and Cirignano testified in detail about the alleged
threat made by Dory. Although their versions are similar in
essential points they are not exactly the same, and this leads
me to believe that the two were testifying without any collu-
sion but instead gave as accurate an account as they could
based on their recollections. I do not expect their recollec-
tions to be exact given the unpleasant and confused nature
of the events they were testifying to. Based on my reading
of the record and on my observations of their demeanors, I
conclude that their testimony had the ring of truth. In con-
trast, Dory claimed not to remember most of what was said;
he only recalled that Moran challenged him to take this dis-
pute outside. Further, the two union officials who testified
did not recall anything specific that was said and the two
union officials who were present throughout the incident did
1147UTILITY WORKERS LOCAL 1–2 (CONSOLIDATED EDISON)
10 The appeals case was actually a refusal by the Second Circuit
to entertain an appeal from the TRO.
11 Since September 1990, Geller has been one of the two general
counsels of the Union.
12 The named plaintiffs ask for damages in multiples of $1 million
for their various causes of action.
13 According to Geller, he began to prepare the lawsuit in January
when the first issue of ‘‘Members’ Voice’’ allegedly libeled Michael
Ivancich, a union official. The summons incorrectly states that the
issue of ‘‘Members’ Voice’’ which mentions Goodman and the
strike fund was circulated in late January 1991. The witnesses herein
agree that it was published in March 1991.
not testify at all. Based on the foregoing, I credit the testi-
mony of Moran and Cirignano that Dory threatened to kick
their asses. This was a threat of physical violence made be-
cause Moran and Cirignano were parties to a suit that had
forced the Union to open its records to them and because
Dory believed that the two would use the information they
gained from the records in order to print derogatory informa-
tion in the ‘‘Members’ Voice.’’
While Moran and Cirignano continued going through the
records, Business Manager Goodman came to look into the
room several times. Cirignano testified that on one occasion
when Goodman came to the conference room, Moran greeted
him and Goodman said, ‘‘you shouldn’t have written what
you wrote about me in those newsletters Tom. . . . I was
thinking of suing and now that you have won the appeals
case I’m going to sue.’’10 Moran testified that Goodman
said, ‘‘since you got the injunction and there is no Union
meeting tonight I was debating whether to sue you guys or
not but right now I’m going to sue you.’’ Moran recalled
that at a union meeting in December 1990, Goodman had
asked him why Moran was fighting him on everything.
Moran replied that they were trying to do the right thing.
Goodman then said, ‘‘If this keeps up sooner or later we’re
going to have to meet in Court and I’m going to end up
suing you.’’ Schwartz recalled that on March 7, 1991, when
Moran called him a second time to arrange for copying of
the union records, Moran told him that Goodman was saying
that now that the dissidents had obtained a TRO he would
sue Moran for libel.
Goodman testified that he said to Moran, ‘‘I’m surprised
at you. We know each other a long time and I’m surprised
that you’re going along with these lies stating that I stole
money.’’ Moran replied that it was politics and that if the
dissidents were wrong they would apologize. According to
Goodman, he told Moran not to apologize because he had a
lawsuit and was going to sue Moran. Then Cirignano ac-
cused Goodman of suing them because they were dissidents.
Goodman answered that he would never sue a dissident and
that he was bringing a lawsuit because he had been accused
of stealing.
After Goodman had left the conference room following the
exchange about the article in ‘‘Members’ Voice’’ and the
threatened lawsuit, Moran told Sagonas that he did not want
anyone else to bother him or Cirignano. He asked Sagonas
to go get Goodman; when Goodman came back to the room,
Moran repeated his wish not to be bothered further and
Goodman assured Moran and Cirignano that no one else
would come bother them.
Upon being questioned about the institution of the libel
suit, Goodman testified that when he read the article that dis-
cussed the strike fund money he instructed Irwin Geller,
Esq., to sue the people who had accused him of stealing.11
It is not clear what the status of the purported lawsuit for
libel is at the present time. Respondent introduced into evi-
dence a Summons signed by Geller on September 4, 1991,
accompanied by a complaint verified by Goodman on the
same date. The Summons names as plaintiffs Goodman and
two other individuals who are also officials of the Respond-
ent.12 All three are asserted to have been libelled by issues
of the ‘‘Members’ Voice.’’ Neither the Summons nor the
complaint bear an index number and there is no indication
that any proceeding was actually filed in a state court. There
is no evidence that any of the named defendants, all of
whom are dissidents affiliated with ‘‘Members’ Voice,’’
were properly served. In order to explain why it took until
September 1991 to prepare the lawsuit, Geller testified that
he was too busy and that he was sick in his legs from Janu-
ary until September 1991; consequently he was unable to
prepare the lawsuit any earlier than that.13
In light of the fact that the instant complaint was dated
August 28, 1991, and that the summons was signed by Geller
on September 4, 1991, Geller was asked if he knew of the
complaint when he prepared the libel suit. Geller testified
that he did not hear of the instant complaint until several
weeks or a month after it issued. I do not credit this testi-
mony. Geller was very much involved in all the litigation
pertaining to the union records and the union meeting on
March 7, 1991. Indeed, he was personally named in the TRO
signed by Judge Edelstein on March 5, 1991, and he testified
that he spoke to Schwartz on March 7 while the controversy
about copying the records was raging in the union office.
Geller recalled that Schwartz cautioned him that he might
personally be held in contempt by the district court. It is in-
conceivable that Geller would not have been advised imme-
diately when the instant complaint issued concerning the
very lawsuit that he was busily putting into final form. In-
deed, my observation of Geller as he testified was that he
identified very closely with the current officers of the Union
and with their position both in the instant matter and the
matters pending in the district court. He seemed quite par-
tisan to me. I believe that when the Union received the in-
stant complaint naming Goodman as an officer who commit-
ted an unfair labor practice involving the dissidents, Good-
man would not have failed to communicate that fact to Gel-
ler who was by his own account making final corrections to
a million dollar lawsuit against the dissidents on Goodman’s
behalf.
C. Discussion and Conclusions
It is well established, and Respondent does not contend
otherwise, that employees have the right to participate fully
and freely in the affairs of their Union. Carpenters Local 22
(Graziano Construction), 195 NLRB 1, 2 (1972). This in-
cludes the right to question the actions of the leadership, Op-
erating Engineers Local 400 (Hilde Construction), 225
NLRB 596, 601 (1976), and the publication of a dissident
newspaper critical of the leadership, Operating Engineers
Local 139 (AGC) of Wisconsin, 273 NLRB 992, 998 (1984),
enfd. F.2d 985, 989 (7th Cir. 1986). By publishing their
views in ‘‘Members’ Voice,’’ by instituting an action in dis-
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Respondent has not shown that the statements in the ‘‘Members’
Voice’’ had lost the protection of the Act. Phoenix Newspapers, 294
NLRB 47, 50 (1989). See generally Linn v. Plant Guards, 383 U.S.
53 (1966).
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
trict court concerning the conduct of union meetings and the
inspection of union records and by inspecting the union
records, Moran and Cirignano were engaging in protected,
concerted activity.
As discussed fully above, I credit the testimony of Moran
and Cirignano and I find that Dory, a business agent and an
admitted agent of the Union, told Moran and Cirignano that
he would kick their asses. Dory made this threat because
Moran and Cirignano were parties to the proceeding that led
to the TRO and the inspection of the union records and be-
cause Moran and Cirignano inspected the records and, Dory
believed, participated in the publication of ‘‘Members’
Voice’’ which was critical of the Local Union’s administra-
tion. This threat of physical violence constituted a violation
of Section 8(b)(1)(A) of the Act. Telephone Answering Serv-
ice Local 780 (Federated Communications), 276 NLRB 507,
510 (1985).
Respondent urges that Dory’s conduct should be excused
because union officials immediately intervened and told Dory
to return to his desk. Further, union officials assured Moran
that he would be left alone. The Board has held that ‘‘under
certain circumstances a [Respondent] may relieve himself of
liability for unlawful conduct by repudiating the conduct. To
be effective, however, such repudiation must be ‘timely,’
‘unambiguous,’ ‘specific in nature to the coercive conduct,’
and ‘free from other proscribed illegal conduct.’’’ Passavant
Memorial Hospital, 237 NLRB 138 (1978). It is evident that
Respondent herein has not repudiated Dory’s conduct in
threatening to kick the asses of Moran and Cirignano. First,
the Union does not acknowledge that Dory threatened the
two dissidents with physical violence. Indeed, the Union’s
brief maintains that Moran initiated references to violence.
Further, the testimony does not establish that on March 7,
1991, any union official articulated a repudiation that was
specific in nature to the coercive conduct. Thus, no union of-
ficial told Moran and Cirignano that Dory had been wrong
to threaten them and that the Union repudiated any ref-
erences to physical violence against dissidents. See discus-
sion in Douglas Division, 228 NLRB 1016, 1024 (1977). All
of the union comments were ambiguous; Walsh and
Varicchio merely told Moran and Cirignano that Dory would
not bother them any more that day. Even after this half-
hearted assurance, however, Moran and Cirignano were not
left in peace to inspect the records pursuant to the Order of
the district court. Soon, Goodman came to confront them and
it was only after Moran asked for specific assurances, that
Goodman said no one else would come to bother them. It
is clear that after Dory’s coercive conduct occurred, the
union officials had not passed the word that Moran and
Cirignano were to be left undisturbed.
Goodman is an admitted agent of the Union. I credit
Moran and Cirignano that Goodman told them, in substance,
that now that they had won an order affecting the conduct
of the union meeting on the evening of March 7, 1991, he
had decided to sue them for printing the article critical of
him in ‘‘Members’ Voice.’’ I also credit Moran that earlier
Goodman had told him that if the dissidents kept it up Good-
man would end up suing Moran. It is clear to me from my
observation of the witnesses that Goodman was upset about
the allegations printed in ‘‘Members’ Voice’’ and that he
was upset that the court had issued an injunction directing
the order of business at the union meeting. There can be no
dispute that the dissidents’ actions in making allegations
about Union finances in the ‘‘Members’ Voice’’ and in se-
curing the TRO constituted protected activity under the
Act.14 I find that Respondent violated Section 8(b)(1)(A) of
the Act when Goodman, an admitted agent of the Local
Union, threatened to sue Moran and Cirignano.
Respondent urges that Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731 (1983), is relevant to the instant case.
I disagree. In Bill Johnson’s, the Board enjoined a state court
lawsuit filed for a retaliatory motive against an employee en-
gaged in union activity. The Supreme Court held that the
state lawsuit could not be enjoined unless it was filed for a
retaliatory motive and also lacked a reasonable basis in fact
and law. The Court instructed that if the state plaintiff could
show that ‘‘material factual or legal issues exist, the Board
must await the results of the state-court adjudication with re-
spect to the merits of the state suit. . . . In short, then, al-
though it is an unfair labor practice to prosecute an unmeri-
torious lawsuit for a retaliatory purpose, the offense is not
enjoinable unless the suit lacks a reasonable basis.’’ 461 U.S.
at 749. Here, there is no request for an injunction. All that
is alleged is that Goodman threatened to sue the dissidents
in connection with their protected activity. Indeed, the record
herein does not establish that Goodman has actually filed a
lawsuit. It would be improper to withhold a finding in this
case based on Bill Johnson’s. Goodman might never file his
lawsuit and thus he could avoid any state court adjudication
on the merits, including any liability that he might incur by
filing a possibly frivolous claim; however, Moran and
Cirignano would still be under the threat of a lawsuit in re-
taliation for their dissident activities.
CONCLUSION OF LAW
By threatening employees with physical violence and with
a lawsuit because they engaged in protected, concerted ac-
tivities, Respondent violated Section 8(b)(1)(A) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Utility Workers of America, Local 1–2,
New York, New York, its officers, agents, and representa-
tives, shall
1. Cease and desist from
1149UTILITY WORKERS LOCAL 1–2 (CONSOLIDATED EDISON)
16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Threatening employees with physical violence and with
the filing of a lawsuit because they engage in protected, con-
certed activities.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its union office in New York, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’16 Copies of
the notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees and members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Consolidated Edison of New
York, if willing, at all places where notices to employees are
customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.